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RENDERED: OCTOBER 28, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0623-MR
SHILO THOMAS JOSEPH APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
NOS. 18-CR-003099 & 19-CR-002096
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Shilo Joseph (Joseph) was found guilty of second-degree manslaughter,
first-degree burglary, and being a second-degree persistent felony offender
(PFO). He now appeals his convictions and resulting twenty-year sentence as a
matter of right.1 After review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Joseph was indicted in relation to the stabbing death of Antonio Starks
(Antonio). Joseph was accused of stabbing Antonio after burglarizing the
apartment Antonio shared with Jerrica Goodlowe (Jerrica). Apart from Joseph
and Antonio, there was one person present during the stabbing: Dennis
Madorskiy (Dennis). At trial, Joseph argued that he stabbed Antonio in self-
defense. He further asserted that he sought to retrieve only his personal
1 Ky. Const. § 110(2)(b).
belongings from Jerrica and Antonio’s apartment and therefore could be guilty
of, at most, criminal trespass.2
Joseph, Antonio, and Dennis were all connected via their relationships,
current and former, with Jerrica. Jerrica and Dennis dated first. They met in
high school, were together for about six years, and have one child in common,
Anna.3 Jerrica and Dennis eventually stopped seeing each other romantically,
but continued to have a cordial, co-parenting relationship for Anna’s sake.
Around 2008, Jerrica began seeing Joseph. They dated on and off until July
2018, when they ended their relationship for good. Jerrica and Joseph had two
children together: Betty and Caroline. In June 2018, during a period when
Jerrica and Joseph were separated but still trying to work on their relationship,
Jerrica began dating Antonio. Later, in early August 2018, Antonio moved into
Jerrica’s apartment where she and her three daughters were already living. As
Antonio had three daughters of his own, this meant that the eight of them were
living in Jerrica’s small, third floor apartment together.
On October 13, 2018, about two months after Antonio moved in with
Jerrica, Jerrica threw a birthday party for her middle child, Betty. The party
was at Jerrica’s mother’s house, which is a couple minutes’ drive from Jerrica’s
apartment. Jerrica invited both Dennis and Joseph because their daughters
were going to be there, and Joseph also brought his infant child from a
different relationship with him. Antonio was also there, primarily cooking
2 See Kentucky Revised Statute (KRS) 511.060.
3 We refer to all of the children by pseudonym to protect their privacy.
2
outside on the grill. It was undisputed that shortly after Joseph arrived, he
and Jerrica went off to the side of the house to have a private conversation.
However, the Commonwealth and Joseph presented differing accounts as to
the content of that conversation.
Jerrica testified that during their conversation Joseph was upset and
angry, but not irate or unhinged. His primary complaint was about Antonio’s
presence at the party. Joseph told her that Betty was his daughter, and that
Antonio did not need to be there. Joseph also mentioned to Jerrica that he was
upset that their daughters were having a difficult time adjusting to living in her
apartment with Antonio and his children. Jerrica explained to Joseph that the
girls were not upset about Antonio. Rather, there was tension among the six
children because they were having trouble learning to live together. Jerrica
denied that Joseph said anything about her still having any of his personal
belongings, though she did acknowledge during cross-examination that she
still had some of his shirts. She stated that Joseph had previously told her she
still had some of his things at her apartment that he wanted to get, but she
was adamant that it was not discussed during their conversation at the party.
Joseph similarly testified that his conversation with Jerrica at the party
was tense, but insisted that they discussed him getting the rest of his
belongings back from her. He claimed that she still had a trunk that belonged
to his father with several of his father’s belongings in it, as well as some of
Joseph’s clothing, his cologne, and a laptop. He testified that when he told her
he wanted his stuff back, “she said she didn’t care, whatever.” Though during
3
cross-examination, he acknowledged that he did not specifically tell her that he
intended to go to her apartment as soon as he left the party to retrieve his
things. And, Jerrica testified that Joseph did not give her any indication that
he was going to her apartment when he left the party. However, Dennis
testified that he saw Jerrica and Joseph talking and remembered Joseph
saying something like “I’ve got some stuff in there,” but he could not remember
exactly what Joseph said. It should also be noted that Joseph never lived in
that apartment with Jerrica, nor did he have a key or permission to be in the
apartment when Jerrica was not there.
Joseph left the party shortly after his conversation with Jerrica. Both
Jerrica and Joseph testified that Joseph intended to come back when the party
was over to get Anna, Betty, Caroline, and the baby so he could throw another
party for Betty at his house. Jerrica testified that after Joseph left, Antonio
inquired about the conversation they had. Jerrica could tell Antonio was very
angry, but told him not to worry about it. Jerrica fixed herself and Antonio a
plate of food and they sat down to eat. She said that about the time they sat
down to eat, Dennis told them he was leaving. Dennis did not say where he
was going, but Jerrica assumed he was going home. Then, Jerrica suddenly
realized that Antonio was gone, but he had not told her where he was going.
Dennis testified that as he was leaving, he noticed Antonio in a car in the
driveway and stopped to talk to him. Antonio told Dennis that he was going to
Jerrica’s apartment because he had a feeling that Joseph went over there after
he left. Dennis told Antonio that he would follow him over there just to make
4
sure everything was okay, though he thought Antonio was being paranoid.
The Commonwealth and Joseph presented opposing versions of what
occurred after Joseph, Antonio, and Dennis arrived at the apartment complex.
Security cameras from the exterior of the apartment building showed that
Joseph arrived at the apartment complex approximately fifteen minutes before
Antonio and Dennis. The same cameras also showed that Antonio entered the
apartment building before Dennis, but Dennis was very close behind him. The
Commonwealth posited that Joseph kicked the apartment door in, and was
presumably already in the apartment when Antonio and Dennis arrived.
Dennis testified for the Commonwealth that he could hear Antonio’s
footsteps above him on the stairs when he entered the apartment building. He
said he never heard anything that sounded like two people crashing through a
door when he was coming up the stairs. When Dennis got to Jerrica’s and
Antonio’s apartment on the third floor, both Antonio and Joseph were in the
apartment. Dennis noticed that the wood around the apartment door was
broken as he was walking towards the door. As soon as Dennis reached the
threshold of the apartment, Joseph came running out and bumped into him.
Dennis said that Joseph immediately became defensive as though he thought
Dennis and Antonio were going to jump him. Dennis asked Joseph what he
was doing there, and Antonio exited the apartment simultaneously with him
asking the question. At this point, the three men stood in a triangle outside
the apartment; Joseph was the closest to the top of the stairs with his back to
the stairs. Dennis said that Joseph had a pocketknife in his hand with the
5
blade out, but neither Dennis nor Antonio had a weapon. Antonio then said to
Joseph, “I already knew you were gonna be on some bullshit that’s why I called
the police. They’re already out there waiting on you.” Joseph, still with a
pocketknife in one hand, offered Antonio a fist bump with his other hand as a
kind of peace offering. He said to Antonio, “this ain’t even about you, this is
between me and my baby momma.” Antonio rejected Joseph’s fist bump, and
Joseph turned towards the stairs.
According to Dennis, when Joseph turned towards the stairs, Antonio
“rushed at him” and pushed Joseph down the stairs with both hands onto the
landing below. On that landing, there was a railing connected to the walls on
either side of it at the railing’s left top and bottom corners and right top and
bottom corners. The other side of the railing was open to the rest of the
stairwell, meaning that if one were to look over the railing, they would see all
the way down the stairwell to the first floor. Dennis said that after Antonio
pushed him, Joseph lost his balance and caught himself on the railing, causing
it to break. Joseph then fell down towards the bottom corner of the railing,
and was sitting there when Antonio came down the stairs at him. Antonio had
his fist raised at Joseph like he was going to hit him, and Joseph stabbed
Antonio once toward the top of his chest. Dennis said that Joseph looked “pale
white and scared” and ran out of the building. Antonio died from the stab
wound very shortly thereafter.
In contrast, Joseph agreed that he arrived at the building about fifteen
minutes before, but asserted that he was stopped by a man that he did not
6
know for several minutes. Joseph said the man kept talking to him and
Joseph “could not get him to shut up”. Eventually, Joseph cut him off and got
the man to leave him alone. At that point, he went up to Jerrica’s apartment
and started to try to card the lock. As he was messing with the lock, he heard
someone running up the stairs. Joseph turned and saw that it was Antonio,
who angrily asked him what he was doing there. Antonio then tackled Joseph
through the door, breaking it. They fell into the apartment, and Antonio ran
towards the back of the apartment. Fearing that Antonio was going to get a
weapon, Joseph ran out of the apartment and into Dennis who was standing
near the threshold. Antonio then came running out of the apartment, and
Joseph got his pocketknife out because he feared the pair were going to jump
him. He claimed he did not open the knife to expose the blade at that time, but
he agreed that neither Antonio nor Dennis had a weapon. Joseph also
recounted that Antonio told him the police were there, and that he offered
Antonio a fist bump, which he rejected. However, Joseph claimed that his
knife was in his pocket and not his other hand when he made the peace
offering.
Joseph said he then turned to go down the stairs because he feared for
his safety and believed the police were outside. He turned and took a couple of
steps toward the stairs, and thought that both Antonio and Dennis pushed him
down the stairs. When the three of them got to the landing below, Antonio and
Dennis began pushing him against the railing. Joseph’s upper torso was over
the railing as it started to break. He was scared that the railing was going to
7
fully give way and that he would fall three stories. Therefore, he got his
pocketknife out of his pocket, pushed Antonio back with his elbow, opened the
knife, and made a stabbing motion at Antonio. He claimed that he did not
intend to kill or hurt Antonio or Dennis, he just wanted to get them off of him.
After that he ran down the stairs and left the scene. He did not know that
Antonio died until either that night or the next morning. He turned himself in
several days later on October 18. It was undisputed that the inside of the
apartment was not disturbed, and nothing was taken from it.
In relation to the stabbing, the jury was instructed on murder, first-
degree manslaughter, three different theories of second-degree manslaughter,
and three different theories of reckless homicide. Ultimately, the jury convicted
Joseph under a theory of second-degree manslaughter that required that he
either intentionally or wantonly caused Antonio’s death, but that he acted in
imperfect self-defense. Regarding Joseph’s entry into the apartment, the jury
was instructed on both first-degree burglary and first-degree criminal trespass.
He was found guilty of first-degree burglary.
Additional facts are discussed below as necessary.
II.ANALYSIS
Joseph presents a litany of alleged reversible errors to this Court, and we
will address each argument in turn.
8
A. The Commonwealth did not make impermissible comments on
Joseph’s post-Miranda4 silence. No reversal is required.
Joseph first asserts that the Commonwealth made two impermissible
comments on his Fifth Amendment5 right to remain silent. The first occurred
during the Commonwealth’s cross-examination of him. The complained-of
exchange was as follows:
Q: So, we’ve talked about the time frame between October 13,
2018, and when you turned yourself in on October 18, 2018. You
never called the police, correct?
A: That is correct.
Q: You never called 911, correct?
A: Correct.
Q: Okay, you never reported being assaulted, correct?
A: That is correct.
Q: In fact, this is the first time you’re ever giving this version of
events, correct?
Defense counsel objected to the last question and contended that the jury
could draw an inference from the question that Joseph had never told the
police his version of events, thereby constituting a violation of his Fifth
Amendment right to remain silent.6 The trial court disagreed and reasoned
that the question did not concern a refusal to speak to or give a recorded
statement to police. Instead, the question was meant to demonstrate that
4 Miranda v. Arizona, 384 U.S. 436 (1966).
5 See U.S. Const. amend. V.
6 This issue is therefore properly preserved for our review. See Kentucky Rule
of Criminal Procedure (RCr) 9.22.
9
Joseph had “x” amount of time to fabricate his story, which was permissible.
The trial court therefore overruled the objection. The Commonwealth
nevertheless immediately moved on from that line of questioning.
The second alleged comment on Joseph’s right to remain silent occurred
during the Commonwealth’s closing argument. The Commonwealth spent a
great deal of time discussing the differences between Dennis’ and Joseph’s
version of events, and asserting reasons why Dennis’ version was more
credible. It then said, “one of these guys told the police what happened two
hours later, one of them sat in hiding for five days and waited 8 months to tell
his version of events.” Defense counsel objected on the same grounds as the
cross-examination question.7 The trial court again disagreed, and found that
“in context it’s comparing what Mr. Madorskiy said shortly thereafter to what
Mr. Joseph said eight months after. It’s not talking about his failure to answer
questions by the police. It’s temporal, and appropriate.”
On appeal to this Court, Joseph renews his argument that the
Commonwealth’s question and statement were impermissible comments on his
post-Miranda silence in that they suggest that Joseph refused to speak to
police and give his version of events to them prior to trial. The Commonwealth
asserts that it did not comment on Joseph’s post-Miranda silence because it
said nothing about Joseph refusing to speak to police. Rather, the statements
were a temporal comparison of Joseph’s and Dennis’ version of events.
7 This issue is therefore properly preserved for our review. See RCr 9.22.
10
Therefore, its purpose was not to prejudice Joseph by suggesting that he
refused to speak to police, but instead to imply that he had eight months to
fabricate his version of events to tell the jury. Consequently, the first question
this Court must address is whether the cross-examination question and the
statement during closing arguments were in fact impermissible comments on
Joseph’s post-Miranda silence. After close review of the case law in this area,
we hold that they were not.
The United States Supreme Court’s seminal case concerning the use of a
defendant’s post-Miranda silence at trial is Doyle v. Ohio.8 In Doyle, federal
agents used a confidential informant to buy marijuana from Jefferson Doyle
(Doyle) and Richard Wood (Wood).9 At their respective trials, the prosecution
presented evidence that federal agents surveilled the undercover buy, and that
after the transaction was complete, Doyle and Wood were quickly stopped,
arrested, and read their Miranda warnings by narcotics agent Kenneth
Beamer.10 Doyle’s and Woods’ defenses were, in part, that the informant had
framed them.11 During cross-examination, the prosecution asked them why
they did not tell Agent Beamer that they had been framed when he arrested
8 426 U.S. 610 (1976).
9 Id. at 611-612.
10 Id. at 611-12.
11 Id. at 613.
11
them.12 The defense objected to the question, but was overruled, and
appealed.13
On appeal, the Supreme Court rejected Ohio’s argument that it should
be able to cross-examine a defendant about his post-arrest silence for the
limited purpose of impeachment.14 The Court expounded that
[d]espite the importance of cross-examination, we have concluded
that the Miranda decision compels rejection of the State's position.
The warnings mandated by that case, as a prophylactic means of
safeguarding Fifth Amendment rights, require that a person taken
into custody be advised immediately that he has the right to
remain silent, that anything he says may be used against him, and
that he has a right to retained or appointed counsel before
submitting to interrogation. Silence in the wake of these warnings
may be nothing more than the arrestee's exercise of these Miranda
rights. Thus, every post-arrest silence is insolubly ambiguous
because of what the State is required to advise the person arrested.
Moreover, while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty, such
assurance is implicit to any person who receives the warnings. In
such circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence to
be used to impeach an explanation subsequently offered at trial.15
The Court additionally cited Justice White’s concurring opinion in United
States v. Hale, 422 U.S. 171 (1975), with approval.16 In his concurrence,
Justice White asserted that when an individual is arrested and informed that
he has a right to remain silent, and that anything he says can be used against
him,
12 Id.
13 Id. at 614.
14 Id. at 616-17.
15 Id. at 617-18 (internal footnotes and citations omitted).
16 Doyle, 426 U.S. at 619.
12
it does not comport with due process to permit the prosecution
during the trial to call attention to his silence at the time of arrest
and to insist that because he did not speak about the facts of the
case at that time, as he was told he need not do, an unfavorable
inference might be drawn as to the truth of his trial testimony.17
Accordingly, the Supreme Court held that “the use for impeachment purposes
of petitioners’ silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth Amendment.”18
The jurisprudence that developed in the years following Doyle
demonstrates that “the stage of the pre-trial proceedings—such as whether the
accused has been taken into custody or has been given the Miranda
warnings—plays a significant role in whether and how an accused's silence
may be used.”19 This concept was recently addressed extensively by this Court
in Bartley v. Commonwealth.20 In Bartley, this Court was tasked with
determining, inter alia, “whether pre-arrest, post-Miranda-warnings silence
may be used at trial in the prosecution’s case-in-chief,” notwithstanding that
the Miranda warnings were given unnecessarily.21
To begin, the Bartley Court noted that Doyle “presented a post-arrest,
post-Miranda warnings situation,” and that its holding “[suggested] that
17 Id.
18 Id.
19 Bartley v. Commonwealth, 445 S.W.3d 1, 6 (Ky. 2014).
20 Id.
21 Id. at 8 (emphasis added).
13
invocation of the right to silence is not necessary to protect silence, at least
after having been given Miranda warnings.”22 In contrast, in Jenkins v.
Anderson, 447 U.S. 231 (1980), “the Court ruled that a defendant may be
impeached by his pre-arrest, pre-Miranda warnings silence, noting that ‘no
governmental action induced petitioner to remain silent before arrest,’ and that
‘[c]onsequently, the fundamental unfairness present in Doyle is not present in
this case.’”23
Two years later, in Fletcher v. Weir, 455 U.S. 603 (1982), the Supreme
Court addressed whether a defendant could be impeached by his post-arrest,
pre-Miranda silence.24 The Court held that “[i]n the absence of the sort of
affirmative assurances embodied in the Miranda warnings, we do not believe
that it violates due process of law for a State to permit cross-examination as to
postarrest (sic) silence when a defendant chooses to take the stand[.]”25
Then, in Wainwright v. Greenfield, 474 U.S. 284, 295 (1986), the Court
held that the prosecution’s use of the defendant’s post-arrest, post-Miranda
silence as evidence of his sanity was fundamentally unfair.26 The Wainwright
Court expounded that “[t]he point of the Doyle holding is that it is
fundamentally unfair to promise an arrested person that his silence will not be
22 Id. at 6-7 (emphasis added).
23 Bartley, 445 S.W.3d at 7 (emphasis added).
24 Bartley, 445 S.W.3d at 7 (emphasis added).
25 Id.
26 Bartley, 445 S.W.3d at 7 (emphasis added).
14
used against him and thereafter to breach that promise by using the silence to
impeach his trial testimony.”27
Finally, the Bartley Court favorably cited the United States Supreme
Court plurality opinion of Salinas v. Texas, 570 U.S. 178 (2013). Bartley
discusses Salinas as follows:
The accused took part in a pre-custodial, pre-Miranda-warnings
interview. He answered several questions but remained silent
when asked whether ballistics testing would show that a shotgun
owned by him was linked to a recent murder. After a few moments
of silence, the police asked additional questions, and the accused
continued answering them. At trial, prosecutors admitted the
defendant's silence as substantive evidence of his guilt. The
[Salinas] plurality concluded that silence alone was not enough to
invoke the protections of the Fifth Amendment, and, thus, the
government's use of the defendant's silence was permissible
because his silence was not under the auspices of his Fifth
Amendment privilege.
But in reaching this decision, the [Salinas] plurality noted in a
footnote, citing Doyle and Jenkins, that “Petitioner is correct that
due process prohibits prosecutors from pointing to the fact that a
defendant was silent after he heard Miranda warnings, but that
rule does not apply where a suspect has not received the warnings'
implicit promise that any silence will not be used against him.”28
Bartley ultimately held that “the giving of Miranda warnings generally bars the
use of any ensuing silence.”29 And, even when Miranda warnings are given
unnecessarily, “[w]hen an accused receives the Miranda warnings' implicit
27 Id.
28 Bartley, 445 S.W.3d at 7-8 (emphasis added) (internal citations omitted).
29 Id. at 9.
15
promise that any silence will not be used against her, it is fundamentally unfair
and a violation of due process to then use that silence against her.”30
The foregoing case law establishes that in order to address whether an
improper comment on a defendant’s right to post-Miranda silence occurred,
appellate courts look at three dispositive factors: (1) whether the defendant had
been arrested, i.e., was in custody when he remained silent; (2) whether the
defendant had been read his Miranda warnings prior to remaining silent; and
(3) whether the prosecution used the defendant’s silence against him at trial.
The most significant of the factors, of course, being whether the defendant had
been Mirandized.
In this case, the only evidence regarding Joseph’s arrest came from
Detective Timothy O’Daniel. Detective O’Daniel testified that on October 18, he
was notified that Joseph had turned himself in at the courthouse, that Joseph
was then transferred to the homicide unit’s office, and that Detective O’Daniel
later transferred Joseph to corrections. There was never any discussion, from
any witness, about Joseph being read his Miranda warnings, and Detective
O’Daniel never stated that he attempted to interview Joseph either before or
after his arrest. There was no evidence, for example, that Joseph had been
Mirandized and then refused to tell the police his version of events, nor was his
hypothetical post-Miranda refusal to speak to police used against Joseph by
the Commonwealth. The Commonwealth simply pointed out that trial was the
30 Id.
16
first occasion that Joseph had provided his side of the story. We therefore
agree with the trial court’s ruling that the Commonwealth’s question was
motivated by a desire to highlight that Joseph had ample time to fabricate his
version of events, not to impeach him by pointing out that he did not tell the
police that version of events upon his arrest.
Based on the foregoing, we hold that neither the cross-examination
question, nor the prosecutor’s statement during its closing argument were
impermissible comments on Joseph’s post-Miranda silence. We therefore will
not review the alleged errors for constitutional harmless error, as is required
for impermissible comments on Fifth Amendment silence.31 Rather, we will
review the trial court’s ruling on the cross-examination question for abuse of
discretion, and the Commonwealth’s statement during closing argument for
prosecutorial misconduct.
First, whether the trial court erred by allowing the cross-examination
question depends on whether its ruling “was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”32 Based on the reasoning we have
already provided, we hold that the trial court did not abuse its discretion in
allowing the Commonwealth’s question. Next, “prosecutorial misconduct may
result from a variety of acts, including . . . improper closing argument.”33 But,
31 See id. at 18 (“The admission of the tape was not harmless error because this
Court is not convinced that the error was harmless beyond a reasonable doubt.”
(citing) Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
32 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
33 Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011).
17
as we have held that the Commonwealth’s argument was proper, we hold there
was no prosecutorial misconduct in the Commonwealth’s argument.
B. Issues related to the first-degree burglary conviction.
(1) The Commonwealth’s closing argument contained a misstatement
of the law, but the misstatement does not warrant reversal.
Joseph argues that the Commonwealth made a misstatement of the law
regarding first-degree burglary in its closing argument, and that the
misstatement constituted reversible prosecutorial misconduct. For our
purposes,
[a] person is guilty of burglary in the first degree when, with the
intent to commit a crime, he knowingly enters or remains
unlawfully in a building, and . . . while in the building or in the
immediate flight therefrom, he . . . [c]auses physical injury to any
person who is not a participant in the crime[.]34
In its closing argument, the Commonwealth argued:
[t]he other, I think, absurd argument here is that his intent is to
break into this home to recover his personal belongings, and that
makes it, ‘oh, you know what? It’s okay.’ I mean, think about that,
logically. You’re saying as long as you break into someone else’s
home to recover your personal property, or just use the bathroom,
it’s not a burglary. He kicked that door in, and we’re left to
speculate as to what his intentions were. He wants you to give him
the benefit of the doubt.
Defense counsel objected to the argument on the grounds that it was a
misstatement of the law.35 First, it asserted that the act of kicking in the door
could not satisfy both the “unlawful entry” and the “with intent to commit a
crime” elements of first-degree burglary. Further, it argued that if you break
34 KRS 511.020(1)(b).
35 The issue is therefore properly preserved for our review. See RCr 9.22.
18
into someone’s home to take your own belongings, it is not first-degree
burglary, it is criminal trespass. The trial court ruled that kicking in the door
could satisfy both the unlawful entry and intent to commit a crime elements of
burglary if his intent was to cause damage to the home. It therefore overruled
the defense’s objection and gave no curative admonition to the jury.
We agree with Joseph that the Commonwealth’s argument was a
misstatement of the law. As this Court stated in Hedges v. Commonwealth,
“[f]or the ‘intent’ element of the burglary statute to have been satisfied . . . ‘with
the intent to commit any crime’ must be understood to refer to intent to
commit a crime in addition to criminal trespass.”36 In other words, because
the burglary statutes specifically require that an individual makes an unlawful
entry with the intent to commit a crime,37 the intent to commit a crime element
must be understood to be separate from the unlawful entry itself. It would be
inconsistent with the plain language of the statute to allow the Commonwealth
to “double dip” and assert that the intent to commit a crime element is satisfied
based solely on the nature of the unlawful entry. Certainly, almost any means
of unlawful entry employed by an individual could automatically suggest some
kind of nefarious intent once entry is gained. Therefore, in this case, the
means of the unlawful entry—kicking a door in—cannot also be used to satisfy
the intent to commit a crime element of burglary. Accordingly, to the extent
36 937 S.W.2d 703, 706 (Ky. 1996) (emphasis added) (quoting Leibson, J.
dissenting in McCarthy v. Commonwealth, 867 S.W.2d 469 (Ky. 1993) overruled on
other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)).
37 KRS 511.020; KRS 511.030; and KRS 511.040.
19
that the Commonwealth suggested that Joseph kicking the door in satisfied the
first-degree burglary elements of both unlawful entry and intent to commit a
crime, it misstated the law.
In that vein, the Commonwealth also misstated the law by arguing that
breaking into someone else’s home “to recover your personal property, or just
use the bathroom” would constitute burglary. Again, burglary requires that
the individual breaking in has the intent to commit a crime upon entering.
Taking only your own property is not a crime. Using the bathroom is not a
crime. Therefore, the specific scenario presented by the Commonwealth, would
in fact, not constitute burglary, but would instead be criminal trespass. This is
because, while that individual unlawfully entered a dwelling, they did not
intend to commit a crime while in that dwelling. Therefore, that argument was
also technically a misstatement of the law.
Nevertheless, that does not end our inquiry.
A claim that the prosecutor misstated the law in closing argument
is a claim of prosecutorial misconduct. We follow the approach of
the Court of Appeals for the Sixth Circuit when reviewing alleged
prosecutorial misconduct, thus we reverse for prosecutorial
misconduct in a closing argument only if the misconduct is
“flagrant” or if each of the following three conditions is satisfied: (1)
Proof of defendant's guilt is not overwhelming; (2) Defense counsel
objected; and (3) The trial court failed to cure the error with a
sufficient admonishment to the jury.38
We must also bear in mind that closing arguments are just that, arguments.
They are not evidence, and therefore counsel on both sides are given a great
38 Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006).
20
deal of latitude while making closing arguments.39 Accordingly, “[a]ny
consideration on appeal of alleged prosecutorial misconduct must center on the
overall fairness of the trial. In order to justify reversal, the misconduct of the
prosecutor must be so serious as to render the entire trial fundamentally
unfair.”40
To address whether the prosecutor’s argument was “flagrant,” an
appellate court must ask the following: “(1) whether the remark[] tended to
mislead the jury or to prejudice the accused; (2) whether [it was] isolated or
extensive; (3) whether [it was] deliberately or accidentally placed before the
jury; and (4) the strength of the evidence against the accused.”41
First, because the prosecutor’s argument in this case was a
misstatement of the law, it was inherently misleading to the jury. However, we
cannot say that Joseph was prejudiced by the misstatement. This is because
the Commonwealth also suggested that the crime he intended to commit was to
take things from the apartment that did not belong to him, which was
appropriate. In addition, the jury was properly instructed on the law of first-
degree burglary. That instruction provided that the jury could only find Joseph
guilty if it found:
(1) That in this county on or about October 13, 2018,
he entered or remained in a dwelling located at 9614
Westport Road without the permission of any person
authorized to give such permission; -AND-
39 See, e.g., Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006).
40 Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001).
41 Hall v. Commonwealth, 551 S.W.3d 7, 17 (Ky. 2018).
21
(2) That in so doing he knew he did not have such
permission; -AND-
(3) That he did so with the intention of committing a
crime therein; -AND-
(4) That while in the dwelling or in immediate flight
therefrom, he caused physical injury to Mr. Starks.42
Therefore, the first element of flagrancy is in favor of neither Joseph nor the
Commonwealth.
Second, the misstatement was isolated: the complained-of statement was
one argument during an approximately hour and a half closing argument.
That element therefore weighs in the Commonwealth’s favor. Third, the
argument was deliberately placed before the jury in the sense that the
prosecutor intentionally made the argument. But we cannot say that the
prosecutor intentionally misstated the law. In other words, the prosecutor may
very well have believed he was accurately stating the law. This factor must
therefore be considered neutral.
Finally, the strength of the evidence against Joseph regarding first-degree
burglary was strong. The identity of the perpetrator was never in question.
Joseph himself stated that he knew he did not have permission to be at the
apartment and that he intended to break into it. And Jerrica was adamant
that he said nothing about going to get his belongings from her apartment.
Additionally, the Commonwealth played a recorded phone conversation
42 (Emphasis added).
22
between Jerrica and Joseph from two or three days after the stabbing. During
the call, Jerrica asked Joseph why he went to the apartment, and he
responded that he wanted to get his father’s trunk. She responded that it was
her brother’s trunk and had her brother’s belongings in it. His intention to
take a trunk that was not his would have been more than enough for the jury
to find that he intended to commit a crime. Finally, it was undisputed that he
stabbed Antonio while in the building. This factor weighs in the
Commonwealth’s favor.
Consequently, on balance, we hold that the prosecutor’s misconduct in
misstating the law was not “flagrant.” We must therefore next address whether
it met the three-part test for prosecutorial misconduct. That is, (1) whether
proof of Joseph’s guilt was overwhelming; (2) whether counsel objected; and (3)
whether the trial court failed to cure the error with a sufficient admonishment
to the jury.43 As mentioned, defense counsel objected to the Commonwealth’s
argument, and the trial court overruled the objection. But counsel did not
request an admonition, and the court did not provide one sua sponte.
However, for the reasons already provided, the proof of Joseph’s guilt was
overwhelming. We therefore hold that the three-part test for prosecutorial
misconduct is not met.
43 Matheney, 191 S.W.3d at 606.
23
Based on the foregoing, we cannot say that the prosecution’s
misstatement of the law was “so serious as to render the entire trial
fundamentally unfair.”44 Reversal is not required.
(2) Joseph was not entitled to a directed verdict on the first-degree
burglary charge.
Joseph’s third argument to this Court is that the trial court erred by
denying his motion for directed verdict on the charge of first-degree burglary.
At the close of the Commonwealth’s evidence, and at the close of all evidence,
Joseph moved for directed verdict on first-degree burglary. Each time he
alleged that the Commonwealth failed to prove that he intended to commit a
crime inside the apartment. His argument is therefore properly preserved for
our review.45
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony. On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly unreasonable for
a jury to find guilt, only then the defendant is entitled to a directed
verdict of acquittal.46
As previously mentioned, the relevant elements of first-degree burglary
are: (1) with intent to commit a crime; (2) a person knowingly enters or remains
44 Stopher, 57 S.W.3d at 805.
45 See Ray v. Commonwealth, 611 S.W.3d 250, 266 (Ky. 2020).
46 Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
24
unlawfully in a building; and (3) when effecting entry or while in the building or
in the immediate flight therefrom, he causes serious physical injury to any
person who is not a participant in the crime.47 Joseph contends that he was
entitled to a directed verdict because the Commonwealth failed to prove that he
intended to commit a crime in Jerrica and Antonio’s apartment. Again, he
asserts that he only went into the apartment to retrieve his belongings, and
therefore he did not intend to commit a crime upon his unlawful entry into the
apartment. However, based upon the evidence, it would not have been clearly
unreasonable for the jury to find him guilty.
As discussed in Section II(B)(1) of this opinion, the Commonwealth
introduced evidence that Joseph told Jerrica that he went to the apartment to
take a trunk that he claimed belonged to him. But, as Jerrica claimed that the
trunk belonged to her brother, ownership of the trunk became a factual
question for the jury to decide. If they believed it belonged to Jerrica’s brother,
it would not have been clearly unreasonable for them to find that the “intent to
commit a crime” element of first-degree burglary was satisfied. Accordingly,
Joseph is not entitled to a directed verdict of acquittal.
C. Joseph was not entitled to a directed verdict for the sentencing
enhancement of being a second-degree PFO.
Joseph contends that he was also entitled to a directed verdict on the
charge of being a second-degree PFO. During the sentencing hearing defense
counsel moved for directed verdict at the close of the Commonwealth’s evidence
47 KRS 511.020(1)(b).
25
and at the close of all the evidence. Counsel argued that the Commonwealth
failed to prove that Joseph was eighteen years old at the time of the prior felony
offenses.48 The trial court denied the directed verdict motion, finding that there
was sufficient evidence of record that Joseph was eighteen during his prior
felony offenses. We agree.
During the sentencing hearing, a paralegal with the Commonwealth’s
Attorney’s office testified regarding Joseph’s prior felony convictions. The
paralegal testified to two prior felony convictions, but the jury was instructed
on only one: 14-CR-1087, a conviction for trafficking in a controlled substance
and tampering with physical evidence. She testified that the date of that
offense was March 26, 2014, and that Joseph turned eighteen in 1999.
Therefore, it would not have been clearly unreasonable for the jury to find that
Joseph was eighteen at the time of his prior felony offense. The trial court
accordingly did not abuse its discretion by denying the defense’s motion for
directed verdict.
D. The trial court erred by limiting the defense’s cross-examination of
Jerrica, but the error was harmless.
During the defense’s cross-examination of Jerrica, it asked: “did Antonio
tell you he was going to fight [Joseph]?” The Commonwealth objected to the
question, and the trial court sustained the objection. The trial court ruled that
48 This argument is therefore preserved for our review. See Ray, 611 S.W.3d at
266. Joseph also argues that the jury instructions did not require that the jury find
that Joseph was eighteen at the time of his prior offenses. However, Joseph did not
object to the instructions, see RCr 9.54(2), and did not request palpable error review of
the alleged error under RCr 10.26. This Court will accordingly not address it.
26
the question was only relevant if Joseph was aware that Antonio told Jerrica
that he was going to fight Joseph, and he was not. The defense argued that it
could be admitted under KRE49 803(3)’s state of mind exception.50 It submitted
an exhibit by avowal of an excerpt from an interview between Jerrica and one
of the investigating officers in the case from October 13. The exhibit states:
Q: Okay. I mean if—but has [Chyna Bradley]51 talked to you at all
about [Joseph], about anything that’s going on tonight?
A: No, I mean she just, you know, told me that, uh, [Joseph] said
he was going to fight Antonio. But he told me that too, he was
going to fight him.
Q: Okay.
A: Antonio said he was going to fight him. And I was just telling
Antonio like “We don’t,” you know, “just leave it alone ‘cause he’s
acting stupid, you know. I’m with you, and you who I want to be
with so don’t even worry about [exhibit ends].
To be clear, we are not addressing the admissibility of the double hearsay
statement contained in the exhibit. Rather, we are only addressing whether
the defense should have been permitted to ask Jerrica if Antonio told her that
he was going to fight Joseph. A trial court’s ruling on the admissibility of
evidence is reviewed for abuse of discretion.52 A trial court abuses its
discretion when it rules in a way that is “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”53
49 Kentucky Rule of Evidence.
50 This error was therefore properly preserved for our review. See RCr 9.22.
51 Chyna Bradley has a child in common with Joseph.
52 Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007).
53 English, 993 S.W.2d at 945.
27
Joseph asserts that the evidence was admissible under KRE 803(3)’s
“state of mind” exception to hearsay. The Commonwealth contends that, under
Saylor v. Commonwealth,54 the statement was inadmissible because Joseph
was not aware that Antonio made it. We agree with Joseph.
In cases where a defendant claims self-defense, the victim’s threats
about the defendant are admissible regardless of whether the defendant was
aware of them. In Wilson v. Commonwealth, this Court held that
[g]enerally, as well as in this Commonwealth, it is a well-settled
rule that on a plea of self-defense evidence of threats made by the
deceased against the accused, though not communicated to the
accused, are competent to show the state of mind of the deceased
and may be heard by the jury for the purpose of determining who
was the aggressor.55
In Wilson, which involved a claim of self-defense, this Court concluded that the
trial court erred by excluding testimony from two witnesses that would have
testified that the victim said she was going to kill the defendant
notwithstanding that the defendant was unaware of the statements.56
This notion was reiterated in another self-defense case, Brock v.
Commonwealth.57 In Brock, this Court held that a recording of the victim’s
mother saying that the victim told her he was going to kill the defendant
54 144 S.W.3d 812 (Ky. 2004).
55 551 S.W.2d 569, 570 (Ky. 1977).
56 Id.
57 947 S.W.2d 24 (Ky. 1997).
28
should be admitted on retrial, if it could be properly authenticated.58 This
Court reiterated under Wilson, that “[e]ven an uncommunicated threat by the
deceased against the defendant is admissible to show the deceased's state of
mind prior to the killing and as evidence to prove who was the aggressor.”59
Finally, in Rogers v. Commonwealth, this Court held that the exclusion of
testimony that the victims had talked about killing the defendants and were
planning to kill the defendants was error.60 Specifically, we held that “the
alleged remarks about killing the [defendants] were admissible under KRE
803(3)'s exception for statements regarding then existing mental, emotional, or
physical conditions (such as intent, plan, motive . . . ).”61
The case relied upon by the Commonwealth, Saylor v. Commonwealth,62
is distinguishable. In Saylor, the defendant attempted to introduce police
reports demonstrating that the victim had committed numerous acts of
violence.63 However, it was undisputed that the victim’s violent acts were not
perpetrated on the defendant, and the defendant was unaware of the previous
acts of violence until he got the police reports in discovery.64 This Court
58 Id. at 31.
59 Id. at 29.
60 60 S.W.3d 555, 557 (Ky. 2001).
61 Id at 558 (citing KRE 803(3) and Wilson, supra) (internal quotation marks
omitted).
62 144 S.W.3d 812 (Ky. 2004).
63 Id. at 814.
64 Id.
29
therefore ruled that the trial court properly prevented the defense from
introducing the police records.65
The factual distinction between Saylor and Wilson, Brock, and Rogers,
then, is that, in the latter cases, the victims made threats about the
defendants. Whereas, in Saylor, the victim’s prior acts of violence had nothing
to do with the defendant. Therefore, in Wilson, Brock, and Rogers, the victims’
threats were admissible both because they were highly relevant to the
defendants’ claims of self-defense, and because they qualified under the “state
of mind” exception to hearsay.
Accordingly, in this case, the trial court erred by not allowing the defense
to ask Jerrica if Antonio said that he was going to fight Joseph. KRE 803(3),
“Hearsay exceptions, availability of declarant immaterial,” directs that
The following are not excluded by the hearsay rules, even though
the declarant is available as a witness:
[. . .]
(3) Then existing mental, emotional, or physical condition. A
statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
Antonio’s statement on the day of the stabbing that he was going to fight
Joseph was a statement of his then existing state of mind. Further,
[t]he crucial component of KRE 803(3) is contemporaneity of the
declarant’s state of mind and the statement describing it, and it
65 Id. at 816.
30
leaves no room for the use of a statement describing a state of
mind that existed at some earlier point in time. Accordingly, the
statement cannot solely concern past information, but may instead
cast light upon future intentions.66
Antonio’s statement clearly casts light upon his intent to fight Joseph at some
point in the future. This requirement under KRE 803(3) is therefore also
satisfied.
However, while the trial court erred by not allowing the testimony, “[o]ur
harmless error standard requires that if upon a consideration of the whole case
this court does not believe there is a substantial possibility that the result
would have been any different, the irregularity will be held nonprejudicial.”67
According to the Commonwealth’s own version of events as testified to by
Dennis, Antonio was clearly the aggressor. Dennis said that after Antonio
rejected Joseph’s peace offering, Joseph turned toward the stairs to leave.
Antonio then pushed Joseph down a set of stairs, and ran down the stairs with
his fist raised at Joseph. It is therefore unlikely that testimony about Antonio’s
intention to fight Joseph would have affected the jury’s verdict. In addition, the
defense elicited the following testimony from Jerrica on cross-examination:
Q: Did you think that [Antonio] was going to fight Shilo Joseph?
A: Not that day, no.
Q: Not that day but other days you thought he was going to fight
him?
66 Rucker v. Commonwealth, 521 S.W.3d 562, 571 (Ky. 2017).
67 See, e.g., Brewer, 206 S.W.3d at 324 (internal quotation marks omitted). See
also RCr 9.24.
31
A: I mean, I just knew, I kind of figured they were going to
eventually fight because it was so much tension. They had tension
with each other. So, I eventually thought that, but I didn’t think
they were going to fight that day, no.
Finally, the jury was instructed on murder, but instead found that Joseph
acted in self-defense, albeit imperfect self-defense. We therefore do not believe
there is a substantial possibility that the result of this case would have been
different if the defense had been permitted to inquire about Antonio’s
statement.
E. The trial court did not improperly limit the scope of Joseph’s voir dire
regarding self-defense.68
Joseph next contends that the trial court impermissibly limited his
opportunity to explore the potential jurors’ biases and ability to follow the law
regarding self-protection by prohibiting counsel from questioning the jurors
about various aspects of the law in that area.
[I]t is within the trial court's discretion to limit the scope of voir
dire. And, appellate review of such a limitation is one for an abuse
of discretion. The crucial inquiry is not whether a particular
question should have been permitted, but whether denial of that
question implicates fundamental fairness.69
68 Joseph also argues that the trial court improperly limited his voir dire
regarding questions about police officer testimony and burglary. Review of the record
reveals that neither of those issues were properly preserved: the defense did not object
to the court’s ruling on either of those issues, and none of the avowal questions
submitted by the defense concern either of those topics. Joseph did not request
palpable error review for either issue under RCr 10.26, and this Court will therefore
not review them. His arguments regarding questions about self-defense were
preserved by contemporaneous objection. See RCr 9.22.
69 Ordway v. Commonwealth, 391 S.W.3d 762, 784–85 (Ky. 2013) (internal
citations and quotation marks omitted).
32
“Questions. . .might be helpful in assessing whether a juror is impartial. To be
constitutionally compelled, however, it is not enough that such questions might
be helpful. Rather, the trial court's failure to ask these questions must render
the defendant's trial fundamentally unfair.”70 Counsel may not ask questions
that attempt to educate the jury on the law71 or that attempt to commit a juror
in advance to a particular result.72
Defense counsel’s attempt to question the venire about self-defense went
as follows:
Defense: (Addressing the venire) Do you, generally speaking, does
a person have a right to defend himself or herself?
Venire: (“Yes” responses.)
Defense: Does anyone have a problem or an issue with that?
Venire: (No response.)
Defense: Let me ask you a tougher question, does a person have
the right to use force to defend himself or herself?
Court: (Addressing counsel and then the venire) I’ve got to stop
you. This is, we had this discussion before we started, this is
conceptually, I’m going to instruct you on the law of self-defense.
But this is just conceptually, theoretically, the difference between
being okay with self-defense and just not being okay with the idea
of self-defense. I want to be clear this is not the law of self-
defense.
70 Lawson v. Commonwealth, 53 S.W.3d 534, 540 (Ky. 2001) (quoting Mu'Min v.
Virginia, 500 U.S. 415 (1991)).
71Rogers v. Commonwealth, 315 S.W.3d 303, 307 (Ky. 2010) (“[Voir dire] is not
an occasion for counsel to educate the juror panel regarding legal concepts. . .
Educating the jury on legal concepts is the function of the trial court.”).
72 Meece v. Commonwealth, 348 S.W.3d 627, 700 (Ky. 2011) (“[The parties] were
not allowed, however, to attempt to commit a juror in advance to a particular theory or
result.”).
33
Defense: I was asking about can you use force, generally speaking,
to defend yourself. Does anyone have a problem with that at all?
Court: I need you to approach.
During the side bench that followed, the trial court told defense counsel that he
needed to keep his questions limited to whether the venire is okay with the
concept of self-defense. The trial court explained that counsel had been
discussing self-defense as though it were a right, but there is no generalized
right to self-defense. Rather, self-defense is a privilege that someone can only
use if the law says he can, and the court did not want to get into the minutia of
the law of self-defense during voir dire. The defense asked if it could inquire
about under what circumstances the venire believed someone could act in self-
defense. Initially, court responded,
you can ask about self-defense, but you can’t poll the jury about
what they think is legitimate self-defense and not because it
doesn’t matter. They have to be okay with the idea that there is a
thing called self-defense, and they’ll be instructed on it, and they
will apply that to the exclusion of what they think self-defense is.
After some discussion, defense counsel again requested to ask the venire
“under what circumstances do you think a person can defend himself or
herself.” This time, the trial court responded,
I’ll let you ask that one time and get one answer so long as you
segue it immediately into “we all may have different ideas about
what it is, but do you understand that the law is going to define
what it is and you’re stuck with what the law says, and will
everybody apply what the law is over what your individualized
notions are.”. . . So, ask whatever you think you need to ask but
please understand the court’s ruling that you are limited to talking
about the concept of self-defense, the generalized idea of someone
under the appropriate circumstances being able to use deadly
physical force and I’m okay with that. I think that’s fine because,
if they’re not okay with that, then they can’t be on this jury.
34
Defense counsel then continued questioning the venire:
Defense: As a legal concept, can people accept that a person may
have, under the law, the ability to defend himself or herself with a
weapon? Does anyone have a problem with that? Anybody at all?
Venire: (No response.)
Defense: And, as a concept, does anyone have a problem with a
person using a weapon to defend his or her life? Does anyone say,
“I couldn’t do that, I couldn’t consider that as a defense.” Anybody
at all?
Venire: (No response.)
Defense: Would anyone here, generally, as a concept, say, “you
can’t use deadly force unless you’re about to die.” Does anyone
have that feeling?
Court: You’ve got to leave out that last part. You can ask that
question again, but ask it differently please.
Defense: Would anyone as a concept automatically assume or say
unless you’re about to die you can’t use deadly force.
Court: Sorry, that’s not a concept, approach the bench.
During this side bench the court explained that counsel’s question was a
statement of the law, and that if a juror did have a problem with it then they
would not be following the law. The court again said it would not get into the
law of self-defense because it is too complicated, and there was no authority for
it to do so during voir dire. The court encouraged counsel to continue his
questioning, but told him to stay away from polling the venire about under
what circumstances it may be appropriate to use self-defense. The defense
moved on to questions about burden of proof.
35
So, defense counsel was permitted to ask: (1) “generally speaking, does a
person have a right to defend himself or herself?”; (2) “as a legal concept, can
people accept that a person may have, under the law, the ability to defend
himself or herself with a weapon?”; and (3) “does anyone have a problem with a
person using a weapon to defend his or her life?” These questions would have
been sufficient to identify jurors that could not be fair and impartial regarding
Joseph’s claim of self-defense wherein he used a weapon to defend himself. In
addition, the trial court’s limitation of counsel’s questioning prevented counsel
from asking questions that discussed the law of self-defense, and from polling
the venire about what it believed was legitimate self-defense. This reasoning
was in accordance with law and was therefore not an abuse of discretion.
Accordingly, the trial court preventing counsel from asking such questions did
not render the trial fundamentally unfair, and reversal is not required.
F. The trial court did not err by amending Joseph’s judgment to add a
finding that he was a violent offender.
Joseph’s final argument is that the trial court erred by amending his final
judgment of conviction to include that he was a violent offender under
KRS 439.3401 over his objection. This Court addressed and rejected a similar
argument in Benet v. Commonwealth:
[a]dditionally, we also reject Benet's argument that he should not
be, or cannot be, classified as a violent offender under KRS
439.3401 because the trial court's final judgment did not
specifically designate him as a violent offender. We agree with the
Court of Appeals' recent conclusion that a defendant
automatically becomes a violent offender at the time of his or
her conviction of an offense specifically enumerated in KRS
439.3401(1) regardless of whether the final judgment of
conviction contains any such designation. Thus, the trial
36
court's failure to designate Benet as a violent offender in the final
judgment of conviction is, at least for purposes of this appeal, of no
legal significance.73
KRS 439.3401(1)(c) provides that a “violent offender” is any person who has
been convicted of a Class B felony involving the death of the victim. First-
degree burglary is a Class B felony,74 and to find that first-degree burglary
occurred in this case, the jury was required to find that Joseph stabbed
Antonio “while in the dwelling, or in immediate flight therefrom.” Antonio
ultimately died from that stab wound.
The trial court’s amendment to the judgment was accordingly
appropriate under RCr 10.10: “[c]lerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight or omission may
be corrected by the court at any time on its own initiative or on the motion of
any party[.]”
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. Minton, C.J.; Conley, Hughes, Lambert, Nickell and
VanMeter, JJ., concur. Keller, J., concurs in result only.
73 253 S.W.3d 528, 533 (Ky. 2008) (emphasis added).
74 KRS 511.020(2).
37
COUNSEL FOR APPELLANT:
Michael L, Goodwin
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Lauren Rachel Lewis
Assistant Attorney General
38