Introduction

This memorandum opinion from the Supreme Court of Kentucky affirms the convictions and sentence of Denarrius Terry arising from a drug-trafficking prosecution in Logan County. Two issues framed the appeal: (1) whether the trial court committed palpable error by instructing the jury on the Class A penalty range for first-degree trafficking in cocaine, second offense, with a firearm enhancement, and by ordering the penalty instructions such that the jury considered the firearm enhancement before the second-offense enhancement; and (2) whether a mistrial was required because the Commonwealth allegedly failed to disclose information suggesting a confidential informant’s attempted drug buy did not involve Terry.

Although designated “Not to be Published,” the decision provides a clear reaffirmation of Kentucky’s enhancement framework for trafficking offenses under KRS Chapter 218A: when a defendant is convicted of first-degree trafficking in cocaine (≥4 grams) as a second offense, and the offense is firearm-enhanced under KRS 218A.992, the offense is penalized one class more severely—here, elevated to a Class A penalty. The Court also reiterates that the ordering of penalty-phase instructions, even if potentially confusing, is not reversible absent palpable error and manifest injustice, and that mistrials remain an extraordinary remedy reserved for fundamental defects producing manifest necessity.

Summary of the Opinion

• Enhancement stacking and penalty classification: First-degree trafficking in cocaine (≥4g) as a second offense is a Class B felony. Adding the KRS 218A.992 firearm enhancement increases the penalty classification by one class to Class A. The Court relied on Mills v. Department of Corrections Offender Information Services and Jackson v. Commonwealth to confirm that the firearm enhancement elevates classification at the charging level.
• Order of penalty instructions: The trial court instructed on the firearm-enhanced penalty range (Class B range, 10–20 years) and then instructed on the second-offense-with-firearm enhancement (Class A range, 20–50 years or life). Even if the sequence might cause confusion, the instruction language tracked authoritative sample instructions (Coopers & Cetrulo), and any error was not palpable because the final sentence (20 years) was permissible under either classification.
• Truth-in-sentencing misstatement cured by agreement: A probation and parole witness mistakenly testified that the Class A offense carried 20% parole eligibility; in fact, Terry was subject to 85% service. The Commonwealth conceded palpable error and agreed to the statutory minimum (20 years) in lieu of a new penalty phase, preserving appellate issues.
• Mistrial denial affirmed: The trial court did not abuse its discretion in denying a mistrial based on late-disclosed information about a confidential informant. The defense did not demonstrate materiality or prejudice, and the alleged information, even if accepted, would at most show a single non-sale to the informant without undermining the trial evidence, including co-defendant testimony.
• Other notable point: The court declined to instruct on PFO 2nd as an impermissible “double enhancement,” consistent with KRS 532.080(10).

Case Background

Following a “trash pull,” officers obtained a search warrant for the residence shared by Terry and his wife, Jennifer Cross. In the bedroom, they found baggies containing approximately 46 grams of methamphetamine and 42 grams of cocaine; scales; numerous empty baggies; and two handguns (one defaced). In a separate room, officers found an additional 38 grams of cocaine and a digital scale; drug paraphernalia was found throughout the residence.

Terry admitted he “messed with cocaine” and that the cocaine found was his, but denied knowledge of the methamphetamine and the guns. Cross, who later entered a plea to amended charges and agreed to testify, stated that she and Terry jointly trafficked drugs: she sold methamphetamine, Terry sold cocaine; she often purchased cocaine using Terry’s money; and they acquired multiple ounces weekly, indicating distribution-level activity.

A jury convicted Terry of complicity to first-degree trafficking in methamphetamine (second offense), first-degree trafficking in cocaine (second offense) with a firearm enhancement, possession of drug paraphernalia, and possession of a handgun by a convicted felon. He was acquitted of possessing a defaced firearm. At the penalty phase, the jury initially recommended 35 years for the cocaine count as enhanced (Class A). Due to truth-in-sentencing testimony error on parole eligibility, the parties agreed to a 20-year sentence—the statutory minimum for a Class A felony—preserving appellate review.

Detailed Analysis

Precedents and Authorities Cited

• Mills v. Department of Corrections Offender Information Services, 438 S.W.3d 328 (Ky. 2014): The Court reaffirmed Mills’s core point that a firearm-enhanced drug offense is “charged at the higher level,” equating the firearm enhancement with statutory enhancements that elevate the classification of the offense, including at the charging stage. Mills, quoting Jackson v. Commonwealth, frames the firearm enhancement as a classification escalator, not a mere sentencing factor.
• Jackson v. Commonwealth, 363 S.W.3d 11 (Ky. 2012): Cited for treating the firearm enhancement akin to other statutory mechanisms that elevate offense class.
• Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006): Defines “palpable error” as easily perceptible, plain, and readily noticeable.
• Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006): Explains palpable error review focuses on defects so manifest and fundamental that they threaten the integrity of the judicial process and require a probability of a different result or a due process threat.
• Commonwealth v. Padgett, 563 S.W.3d 639 (Ky. 2018): Articulates the abuse-of-discretion standard for mistrial rulings and the principle that mistrial is an extreme remedy reserved for manifest necessity.
• Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004): Quoted in Padgett for the “manifest necessity” standard governing mistrials.
• Statutes and Rules:
  • KRS 218A.1412(1)(a), (3)(a): Defines first-degree trafficking in cocaine (≥4 grams) and sets penalties (Class C for a first offense; Class B for a second offense).
  • KRS 218A.992(1)(a): Firearm enhancement provision—felony drug offense is penalized one class more severely when committed in possession of a firearm in furtherance of the offense.
  • KRS 532.060(2): General felony sentencing ranges.
  • KRS 532.080(10): Prohibits certain double enhancements; the trial court declined PFO 2nd instruction on this basis.
  • RCr 10.26: Palpable error review standard for unpreserved claims.
• Secondary Authority: Coopers & Cetrulo, Kentucky Instructions to Juries, Criminal (2022): The penalty-phase instruction language followed this source’s samples, supporting the propriety of the trial court’s formulations.

Legal Reasoning

1) Enhancement Stacking and Classification to Class A

The baseline offense—first-degree trafficking in cocaine ≥4 grams—is a Class C felony for a first offense and a Class B felony for a second offense. KRS 218A.1412(3)(a). The firearm enhancement under KRS 218A.992(1)(a) mandates that a felony drug offense be penalized “one class more severely” when committed in possession of a firearm “in furtherance of the offense.” As interpreted in Mills and Jackson, the firearm enhancement elevates the classification of the offense itself, not merely the sentence within the same class. Thus, once the offense is a Class B by virtue of being a second offense, the firearm enhancement increases it to Class A for penalty purposes.

The Court embraced this straightforward stacking: second offense (Class B) + firearm-in-furtherance (one class up) = Class A penalty exposure. Nothing in the statutes or case law demands the jury consider “second offense” before “firearm,” or vice versa; what matters is that the jury properly finds each factual predicate and the instructions accurately convey the resulting penalty ranges.

2) Order of Penalty Instructions and Palpable Error

Terry argued the judge sequenced the penalty instructions incorrectly by having the jury first select a term within the Class B range for the firearm-enhanced cocaine trafficking count (10–20 years) and then consider the second-offense finding with firearm enhancement triggering the Class A range (20–50 years or life). The jury recommended 20 years on the first step and then 35 years after the second-offense-with-firearm instruction.

The Supreme Court concluded that, even assuming the sequence might have been confusing, two features defeated palpable error:

• Substantive correctness of the law: The language of the instructions correctly reflected Kentucky law and tracked model instructions. The firearm enhancement and second-offense enhancement, together, yield Class A exposure. The jury was accurately told the applicable ranges at each step.
• Lack of prejudice/manifest injustice: The final sentence imposed was 20 years—the maximum for Class B and the minimum for Class A—after the parties agreed to cure a separate truth-in-sentencing error. Thus, even if the jury’s Class A recommendation was influenced by instruction sequencing, the actual judgment did not exceed what would be permissible had the offense remained at Class B. No probability of a different result or due-process-threatening defect was shown, as required under RCr 10.26 and Martin/Brewer.

The Court also noted that presenting the firearm enhancement in the guilt phase is permissible because some connection between the offense and the firearm must be found by the jury; reserving it for the penalty phase is allowed but not required, and doing otherwise is not inherently prejudicial.

3) Truth-in-Sentencing Error and Agreed Remedy

The probation and parole witness mistakenly testified that the Class A offense carried 20% parole eligibility; the correct figure for Terry was 85%. Recognizing the potential for palpable error affecting the jury’s penalty recommendation, the Commonwealth agreed to the minimum Class A sentence (20 years) while preserving appellate rights. The trial court accepted the agreement, mooting any need to conduct a new penalty phase. Although not the subject of a separate issue on appeal, this episode underscores the sensitivity of truth-in-sentencing evidence and the remedy courts may employ when it is materially inaccurate.

4) Mistrial Standard and Discovery Complaint

On the mistrial claim, the defense asserted after jury selection that an officer had mentioned a confidential informant’s attempted buy in which Cross, not Terry, sold drugs, suggesting an inference that Terry did not sell to this informant. The Commonwealth clarified that the CI knew Terry and Cross were dealers but that the CI attempted to buy from someone else while Cross was present; defense counsel did not contest this clarification, responding “Okay.” The trial court denied the mistrial motion.

Applying Padgett and Woodard, the Supreme Court affirmed. A mistrial is an extreme remedy for fundamental defects producing manifest necessity. Here:

• The defense did not show suppression of material evidence or how the information would have altered the defense theory or outcome in light of substantial trial evidence (large quantities of cocaine and meth; trafficking paraphernalia; and co-defendant testimony that Terry sold cocaine).
• The Commonwealth represented the information had just been learned; the defense neither rebutted that assertion nor sought a lesser remedy, such as a continuance or a targeted evidentiary ruling.
• Even crediting the defense’s initial framing, a single non-sale to this CI would not materially undercut the trafficking case presented to the jury.

Accordingly, the denial of a mistrial was not an abuse of discretion.

5) Persistent Felony Offender (PFO) and Double Enhancement

The trial court declined to instruct on PFO 2nd under KRS 532.080(10) as an impermissible “double enhancement” in the posture of this drug case. Although not a contested appellate issue, this reflects the continued vigilance Kentucky courts exercise to avoid stacking enhancements in ways prohibited by statute when an offense has already been elevated by specific recidivist provisions in KRS Chapter 218A.

Impact and Implications

For Prosecutors

• Charging and instruction strategy: The opinion confirms it is doctrinally sound to treat the firearm enhancement as elevating classification at the charging level. When both “second offense” and “firearm in furtherance” apply to first-degree trafficking in cocaine, the case belongs in the Class A penalty range.
• Penalty-phase sequencing: While the Court found no palpable error here, best practice remains to give clear, consolidated instructions that minimize any potential confusion about how enhancements interact and what ranges apply at each step.
• Truth-in-sentencing vigilance: Inaccuracies about parole eligibility can prompt new penalty phases or negotiated cures. Prepare and vet truth-in-sentencing witnesses to ensure correct percentages and eligibility rules.

For Defense Counsel

• Preservation matters: Instructional-order arguments must be timely preserved with specific objections and proposed alternatives; palpable error review is a steep climb absent clear prejudice.
• Discovery disputes and remedies: When late-disclosed information emerges, articulate materiality, request targeted relief (continuance, exclusion, or specific discovery orders), and make a record of how the information would change trial strategy or undermine key proof.
• Enhancement stacking awareness: Expect the Commonwealth to seek Class A exposure by combining KRS 218A.1412(3)(a) second-offense status with KRS 218A.992. Build defense theories accordingly, including contesting “in furtherance” firearm nexus where plausible.

For Trial Courts

• Instructional clarity: While the sequence used here survived palpable-error review, clarity in explaining how enhancements aggregate is critical. Adhering to established model instructions is prudent.
• Truth-in-sentencing safeguards: Consider pre-admission proffers or stipulations regarding parole eligibility and eligibility percentages to avoid reversible error in penalty phases.
• Mistrial threshold: Reinforce that mistrials are extraordinary; evaluate proposed alternatives and insist on concrete showings of materiality and prejudice before granting such relief.

Systemic Significance

Although this decision is not published and is therefore non-binding under RAP 40(D), it is a cogent reaffirmation of how KRS 218A enhancements interact and of Kentucky’s stringent standards for palpable error and mistrials. Practitioners can reasonably treat it as persuasive guidance where no published decision adequately addresses similar instructional sequencing questions in drug/firearm enhancement cases.

Complex Concepts Simplified

• Palpable error (RCr 10.26): An obvious, plain error that likely affected the outcome or seriously undermined the fairness of the proceeding. Relief is granted only if a manifest injustice occurred.
• Manifest necessity (mistrials): A high bar for aborting a trial midstream—used only when a fundamental defect would prevent a fair verdict and no lesser remedy suffices.
• Enhancement stacking: When multiple statutory enhancements apply, courts determine the base classification, apply recidivist upgrades (e.g., second offense), then apply the firearm enhancement to increase the class by one (if a felony), resulting in higher penalty ranges.
• Firearm “in furtherance” of the offense: The gun must be possessed in a manner that advances or facilitates the drug offense (not mere incidental presence); the jury must find this nexus.
• Truth-in-sentencing: Evidence presented to help a jury understand sentencing ranges and parole eligibility. Inaccurate information can taint penalty recommendations and require corrective action.
• Double enhancement (KRS 532.080(10)): Kentucky limits stacking certain recidivist (PFO) enhancements on top of offenses already enhanced under specific statutes, to avoid disproportionate punishment for the same prior conviction.
• Not to be published (RAP 40(D)): Such opinions are not binding precedent but may be cited for consideration, post–January 1, 2003, when no published opinion addresses the issue; a copy must be provided.

Conclusion

The Supreme Court of Kentucky affirmed Terry’s convictions and sentence, delivering three practical messages. First, the statutory scheme for drug offenses under KRS 218A is clear: for first-degree trafficking in cocaine ≥4 grams, a second-offense conviction is Class B, and the KRS 218A.992 firearm enhancement elevates it to Class A. Second, alleged confusion caused by the sequencing of penalty-phase instructions does not amount to palpable error where the instruction language is accurate, model-based, and the actual sentence imposed is authorized even under a lower classification. Third, mistrials remain exceptional; absent a showing of material, prejudicial nondisclosure creating manifest necessity, denial is within a trial court’s broad discretion.

While unpublished, this opinion provides useful, structured guidance for charging decisions, jury instruction drafting, penalty-phase practice (especially truth-in-sentencing accuracy), and the proper framing and preservation of appellate arguments in drug/firearm enhancement cases in Kentucky.

Key Citations

• KRS 218A.1412(1)(a), (3)(a)
• KRS 218A.992(1)(a)
• KRS 532.060(2)
• KRS 532.080(10)
• RCr 10.26
• Mills v. Dep’t of Corr. Offender Info. Servs., 438 S.W.3d 328 (Ky. 2014)
• Jackson v. Commonwealth, 363 S.W.3d 11 (Ky. 2012)
• Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006)
• Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006)
• Commonwealth v. Padgett, 563 S.W.3d 639 (Ky. 2018)
• Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004)
• Coopers & Cetrulo, Kentucky Instructions to Juries, Criminal (2022)