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NOT TO BE PUBLISHED OPINION

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RENDERED: DECEMBER 17, 2020

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0348-MR

JODY SCOTT APPELLANT

ON APPEAL FROM PIKE CIRCUIT COURT

V. HONORABLE EDDY COLEMAN, JUDGE 

NO. 18-CR-00289

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Jody Scott appeals as a matter of right1 from the Pike Circuit Court final 

judgment sentencing him to twenty years’ imprisonment for his convictions of 

nine counts of first-degree trafficking in a controlled substance. Scott’s sole 

claim on appeal is that palpable error resulted from the prosecutor’s alleged 

flagrant misconduct during closing argument. Finding no palpable error, we 

affirm.

I. Factual and Procedural Background

From July 31, 2017 through September 13, 2017, a confidential 

informant conducted a total of eight recorded undercover drug buys from Scott 

on behalf of Kentucky State Police (“KSP”). On September 14, 2017, KSP 

 

1 Ky. Const. § 110(2)(b).
2

detectives executed a search warrant of Scott’s home and discovered 

incriminating evidence. Scott cooperated with police and called his supplier, 

Lonnie Kerr, to have him bring over cocaine with the understanding that Scott 

would sell it, as usual. Kerr was then arrested and later pled guilty.

During trial, Scott called Kerr to testify in his case-in-chief. Kerr testified 

to two facts: (1) he received a call from Scott on September 14, 2017 and (2) he 

lived about two miles from Scott. At this point, the trial court sua sponte called 

a bench conference and inquired as to who represented Kerr. The trial court 

then recessed so Kerr could consult with his counsel. Upon retaking the 

stand, Kerr invoked his Fifth Amendment right against self-incrimination. The 

court then excused Kerr from the witness stand.

The conduct which Scott takes issue with on appeal occurred during the 

Commonwealth’s guilt phase closing argument, when the prosecutor 

commented on the quality issues with the video and audio recording of Scott’s 

sales to the confidential informant and how the cameras did not capture 

everything perfectly. The prosecutor stated that the recordings are

corroborating evidence, as no witness was going to come in and testify to being 

at Scott’s house and watching Scott sell drugs directly to the confidential 

informant. The prosecutor then stated, “You saw it. His own supplier got on 

the stand and wouldn’t say anything. Not me, I know nothing.” The 

prosecutor remarked that the audio and video recording, albeit imperfect, is the 

best documentation they have.

Scott did not object to the prosecutor’s remarks. He now claims those 

remarks amounted to flagrant prosecutorial misconduct which resulted in 

palpable error and requires reversal. We disagree.
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II. Standard of Review

RCr2 10.26 provides that “[a] palpable error which affects the substantial 

rights of a party may be considered . . . by an appellate court on appeal, even 

though insufficiently raised or preserved for review, and appropriate relief may 

be granted upon a determination that manifest injustice has resulted

from the error.” “Palpable error relief is available under RCr 10.26 only upon a 

determination that manifest injustice has resulted from the error. ‘Manifest 

injustice’ is ‘error [that] so seriously affect[s] the fairness, integrity, or public 

reputation of the proceeding as to be ‘shocking or jurisprudentially 

intolerable.’” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) 

(citations omitted).

III. Analysis

Prosecutorial misconduct is defined as a prosecutor’s “improper or 

illegal” attempt to persuade the jury to wrongly convict or assess an unjustified 

punishment. Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011). 

Appellate consideration of alleged prosecutorial misconduct focuses on the 

overall fairness of the trial. Id. (citations omitted).

With respect to allegations of prosecutorial misconduct during closing 

arguments, we note that counsel is afforded wide latitude during those 

arguments. Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010). “The 

longstanding rule is that counsel may comment on the evidence and make all 

legitimate inferences that can be reasonably drawn therefrom.” Id. (citations 

omitted). This Court will reverse on grounds of prosecutorial misconduct in a 

 

2 Kentucky Rules of Criminal Procedure.
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closing argument “only if the misconduct was ‘flagrant’ or if we find all of the 

following to be true: (1) the proof of guilt is not overwhelming, (2) a 

contemporaneous objection was made, and (3) the trial court failed to cure the 

misconduct with a sufficient admonition.” Dickerson v. Commonwealth, 485 

S.W.3d 310, 329 (Ky. 2016) (citation omitted).

Scott does not argue that the three-prong test for non-flagrant 

misconduct was met. Rather, he seeks reversal on grounds that the 

prosecutor’s conduct was “flagrant.” In determining whether a prosecutor's 

improper comments constitute reversible flagrant misconduct, we use a fourpart test: “(1) whether the remarks tended to mislead the jury or to prejudice 

the accused; (2) whether they were isolated or extensive; (3) whether they were 

deliberately or accidentally placed before the jury; and (4) the strength of the 

evidence against the accused.” Id. (citation omitted).

As to the first prong, the comment by the prosecutor here did not serve 

to mislead the jury. Indeed, the prosecutor’s statement was accurate: no 

witness testified to seeing Scott sell drugs to Kerr and Kerr refused to testify. 

And in context, the prosecutor’s comments were more along the lines of an 

explanation as to what weight to afford certain evidence. Further, Scott points 

to no prejudice resulting from the prosecutor’s comment on evidence of record. 

Secondly, the comment by the prosecutor was isolated. Third, while the record 

is unclear as to whether the comment was made deliberately or accidentally, it 

was at most an offhand, explanatory remark. Lastly, the evidence against Scott 

was overwhelming: proof was presented that he sold drugs to a confidential 

informant on numerous occasions, incriminating evidence was seized from his 
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home, and he admittedly cooperated with police to set up Kerr after police 

searched his home. 

As none of the Dickerson factors weigh in Scott’s favor, and considering 

the totality of the prosecutor’s closing argument, we find that this single, 

isolated offhand remark does not rise to the level of flagrancy so as to require 

reversal. Scott has presented no legitimate reason to believe that the jury

convicted on anything but the evidence of his guilt. Finally, given that Scott 

failed to contemporaneously object at trial, we are unable to say that palpable 

error resulted.

IV. Conclusion

The judgment of the Pike Circuit Court is affirmed.

All sitting. All concur. 
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COUNSEL FOR APPELLANT:

Karen Shuff Maurer

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Kenneth Wayne Riggs

Assistant Attorney General