Affirmation of Trial Courts’ Discretion to Amend Penalty-Phase Instructions Mid-Deliberation: Commentary on Bobby Anderson v. Commonwealth of Kentucky (Ky. 2025)

Introduction

The Supreme Court of Kentucky’s unpublished opinion in Bobby Anderson v. Commonwealth, rendered 14 August 2025, addresses three appellate complaints arising out of a methamphetamine-trafficking conviction and a first-degree persistent felony offender (PFO) enhancement. The appellant, Bobby Anderson, contended that: (1) the trial court erroneously reinstructed the jury during penalty-phase deliberations, (2) the evidence was insufficient to submit the trafficking charge to the jury, and (3) the prosecutor’s closing argument impermissibly shifted the burden of proof. The high court rejected each contention and affirmed the 20-year sentence pronounced by the Graves Circuit Court.

Summary of the Judgment

The court (Lambert, C.J., writing for a unanimous bench, with Thompson, J., concurring in result only) held:

• Mistrial/Instruction Issue: A trial court retains discretion under RCr 9.76 and Garner v. Commonwealth to correct an erroneous penalty-phase instruction even after the jury has retired but before a verdict is returned in open court. The miscue did not create a “manifest necessity” for a mistrial.
• Directed Verdict: When viewed in the Commonwealth’s favor, evidence that Anderson hid 60 grams of methamphetamine, precisely described its location while incarcerated, and instructed another to destroy it sufficed to prove constructive possession and intent to traffic “on or about” the charged date.
• Closing Argument: The challenged remark—pointing out that no proof suggested personal use—was a permissible inference, not burden-shifting or flagrant prosecutorial misconduct.

Analysis

Precedents Cited

• Garner v. Commonwealth, 645 S.W.2d 705 (Ky. 1983)
  – Upheld a trial court’s mid-deliberation amendment of PFO instructions; relied upon Kentucky Rules of Criminal Procedure 9.76 and 9.82. The present court characterized Garner as “laudatory” and dispositive, signalling that the nature of an instruction error is immaterial so long as the jury has not yet rendered a verdict in open court.
• Knuckles v. Commonwealth, 315 S.W.3d 319 (Ky. 2010) & Beard v. Commonwealth, 581 S.W.3d 537 (Ky. 2019)
  – Supply the “manifest necessity / abuse of discretion” framework for mistrial and jury-question responses.
• Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)
• Denton v. City of Florence, 301 S.W.3d 23 (Ky. 2009)
• Jones v. Commonwealth, 567 S.W.3d 922 (Ky. App. 2019)
• Additional references include Quisenberry, Haney, Barrett, Johnson, and Butcher, all framing sufficiency review and prosecutorial-conduct standards.

Legal Reasoning

1. Instruction Amendment. The court emphasized two conjunctive predicates: (a) the jury had not “returned” its verdict because a verdict is “returned” only when announced in open court (RCr 9.82), and (b) the courtroom remains “open” for purposes of the case until that moment (RCr 9.76). Consequently, trial judges not only may but should cure substantive misstatements of law that risk an invalid verdict.
2. Directed Verdict Standard. The court applied the familiar Quisenberry test—whether any rational juror could find each element when evidence is viewed favorably to the Commonwealth. Importantly, “time” is not an element of trafficking; therefore, “on or about” language is flexible unless time is a statutory ingredient or notice is deficient. Constructive possession was satisfied through recorded jail calls showing Anderson’s control over the hidden stash.
3. Alleged Burden-Shifting. The prosecutor’s statement merely highlighted the absence of personal-use indicators; it did not attempt to invert the presumption of innocence. In contrast to the improper declaration “the presumption of innocence is gone” condemned in Barrett, the comment here fell within ordinary fair-comment latitude.

Impact

Although unpublished and therefore non-precedential under RAP 40(D), the opinion consolidates, and arguably broadens, existing instruction-correction authority in three ways:

1. Confirms that an instruction’s substantive amendment during jury deliberations is permissible so long as a verdict has not yet been publicly returned, regardless of who first notices the error.
2. Signals appellate tolerance for “on or about” indictments in drug cases—even when months elapse between possession and discovery—provided no due-process notice concerns arise.
3. Reiterates prosecutors’ latitude in rebutting “personal use” theories without trespassing into burden-shifting territory, offering practical guidance for closing-argument boundaries.

Complex Concepts Simplified

• Persistent Felony Offender (PFO): A Kentucky sentencing enhancement statute that increases penalties for defendants with specified prior felonies. First-degree PFO requires, inter alia, that the defendant was on a listed form of legal release (probation, parole, etc.) when the new felony was committed—KRS 532.080(3)(c)2.
• Constructive Possession: Legal theory treating a person as possessing contraband when that person, while not in physical contact with it, knowingly has both the power and the intent to control it—often proved circumstantially.
• “On or About” Date: Pleading language indicating the alleged offense date may vary slightly; unless time is a statutory element, the Commonwealth need only show the crime occurred prior to indictment and reasonably close to the pled date.
• Manifest Necessity: A high threshold that must be met before a court may declare a mistrial—usually confined to circumstances where an error cannot be cured and would otherwise result in injustice.

Conclusion

Anderson underscores the Kentucky judiciary’s pragmatic approach to trial-phase errors: cure them promptly rather than abort the proceeding. By harmonizing RCr 9.76/9.82 with longstanding precedent, the decision reinforces trial courts’ broad discretion to revise faulty penalty-phase instructions mid-deliberation, provided jurors have not published their verdict. The ruling also reaffirms flexible “on or about” charging, the sufficiency of constructive-possession evidence, and the permissible scope of prosecutorial commentary. While unpublished, the opinion offers instructive guidance to bench and bar on navigating instruction errors, timing nuances in trafficking indictments, and closing-argument boundaries.