JESSE FEGLEY V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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RENDERED : FEBRUARY 21, 2008
NOT TO BE PUBLISHED
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2006-SC-000329-MR
JESSE FEGLEY
V.
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
NO . 04-C R-001065-001
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
For his role in robbing a string of convenience stores, Jesse Fegley was
convicted of six counts of robbery in the first degree and sentenced to a total of sixty
years' imprisonment . Fegley filed this appeal as a matter of right,' raising only two
issues . First, Fegley contends that the jury instructions were fatally flawed because
they did not require the jury to find that the BB gun used to commit the robberies was a
deadly weapon . Second, Fegley contends that his conviction must be vacated because
a probation and parole officer testified incorrectly about Fegley's maximum possible
punishment. We agree with Fegley that under the current state of our law, the trial court
erred by not submitting to the jury the question of whether the BB gun was a deadly
weapon . But we do not find that error to rise to the level of a palpable error
1
See Ky. Const . §110(2)(b) .
necessitating vacating Fegley's convictions . We also agree with Fegley that the
probation and parole officer's testimony was incorrect. We, likewise, find that error not
to rise to the level of a palpable error necessitating vacating Fegley's sentences. Thus,
we affirm .
I . THE DEADLY WEAPON ISSUE .
During Fegley's trial, the Commonwealth presented evidence that the object
used by Fegley and his alleged accomplice to perpetrate the robberies was a BB gun,
which someone had colored to make it look more like an actual firearm . The trial court
ruled as a matter of law that the BB gun possessed by Fegley was a deadly weapon .
So the jury was only asked to find that Fegley or his accomplice stole money and that in
the course of those thefts, Fegley or his accomplice threatened the immediate use of
physical force upon various people while armed with a BB gun. Fegley contends that
the trial court's failure to submit the issue of whether the BB gun was a deadly weapon
to the jury constitutes reversible error.
In Thacker v. Commonwealth, we held that the question of whether an object
used in a robbery was a deadly weapon must be submitted to the jury. Fegley's trial,
however, occurred before we issued our opinion in Thacker . So Fegley's counsel
understandably did not make a Thacker-related objection to the instructions .
Consequently, the Commonwealth contends that this issue is unpreserved for appellate
review. We agree .
A person commits first-degree robbery "when, in the course of committing theft, he uses or
threatens the immediate use of physical force upon another person with intent to accomplish
the theft [while) . . . armed with a deadly weapon . . . ." KRS 515.020(1)(b) .
194 S.W.3d 287, 290-91 (Ky. 2006).
Before we issued our opinion in Thacker, we had held that the issue of whether
an object is a deadly weapon was an issue for the trial court to decide as a matter of
law.4 Although Thacker obviously overruled our earlier holding on this point, the
controlling law at the time of Fegley's trial was that the question of whether an object
was a deadly weapon was a matter for the court alone to determine. However,
SCR 3 .130(3 .1) expressly permits attorneys to make good faith arguments for reversal
of existing law. In order properly to preserve this issue for our review, therefore, Fegley
was required to make a timely objection to the trial court's preemptive finding that the
BB gun was a deadly weapon . The lack of a contemporaneous objection means that
we must analyze this issue under the strict palpable error rubric of Kentucky Rules of
Criminal Procedure (RCr) 10.26.E
The instructions at issue clearly do not follow our holding in Thacker . The
question then becomes whether the trial court's preemptive finding that the BB gun was
a deadly weapon as a matter of law is a palpable error. Under our somewhat confusing
precedent on what may constitute a deadly weapon, we must find that the error is not a
palpable one .
Our longstanding precedent on this point holds that "any object that is intended
by its user to convince the victim that it is a pistol or other deadly weapon and does so
Hicks v. Commonwealth ; 550 S.W.2d 480, 481 (Ky. 1977) ("Whether the particular
instrument is or is not a deadly weapon should be determined by the court as a matter of
law.").
RCr 10.26 provides that "[a] palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or 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."
convince him is one." s Since the victims were apparently convinced that the BB gun
was a deadly weapon, the Commonwealth argues that the error must not be palpable
because the jury, inevitably, would have found the BB gun to be a deadly weapon under
the principle announced in Merritt . We agree with the Commonwealth that the
application of Merritt inevitably would have led the jury to this conclusion . So we find
that the erroneous instruction at issue was not of sufficient magnitude to rise to the level
of palpable error.
We recognize that our continuing reliance upon Merritt7 has been criticized by
some legal scholars$ and has led to some strained results .9 Indeed, Merritt 's continuing
viability warrants further analysis . But because the issue was not properly preserved,
this case is not the vehicle for us to explore fully whether we should depart from the
holding in Merritt.
M erritt v. Commonwealth, 386 S.W.2d 727, 729 (Ky. 1965).
See, e.g., Kennedy v. Commonwealth , 544 S .W.2d 219,221 (Ky . 1976); Shegoqv.
Commonwealth , 142 S.W .3d 101, 109-10 (Ky. 2004); Thacker, 194 S.W.3d at 291 n .2.
See Robert G. Lawson & William H . Fortune, Kentucky Criminal Law § 13-7(c)(3) (1998)
(opining that when we continued to rely upon Merritt in Kennedy , supra, we ignored the plain
language of the defining statute [KRS 500.080(4)] and ruled that any object (even one that is
harmless in fact) can be a deadly weapon if it was intended by its user to convince a victim
that it was deadly and if the victim was in fact convinced .)
See Whalen v. Commonwealth , 205 S .W.3d 238, 242-43 (Ky.App. 2006) ("Again, we note
that there is no indication that Whalen actually possessed a firearm or any other object that
one would normally deem a deadly weapon or dangerous instrument . But Whalen did
possess a glove, which he pointed at Newman while threatening to shoot her in the head.
Newman further testified that she was frightened and believed that the glove may have been
a weapon . Thus, though it is contrary to the normal usage of the term, the glove may
constitute a deadly weapon under the theory that any object that is intended by its user to
convince the victim that it is a pistol or other deadly weapon and does [so] convince him is
one .") (internal quotation marks omitted)
II . PROBATION AND PAROLE OFFICER'S ERRONEOUS TESTIMONY .
During the sentencing phase, a probation and parole officer erroneously testified
that Fegley's maximum possible sentence was 120 years' imprisonment . In fact, under
KRS 532.110(1)(c), Fegley's maximum sentence could be only 70 years . But Fegley
did not lodge a timely objection to this erroneous testimony . Fegley now contends that
the officer's erroneous testimony is a palpable error under RCr 10.26. We disagree .
Fegley's sentence falls well below the legally prescribed maxiumum set forth in
KRS 532 .110(1)(c). Thus, Fegley cannot show that the officer's erroneous testimony
caused him to suffer such severe prejudice as to necessitate palpable error relief.
III . CONCLUSION .
For the foregoing reasons, Jesse Fegley's convictions and sentence are
affirmed .
All sitting . Lambert, C.J. ; Abramson, Cunningham, Minton, and Noble, JJ .,
concur . Schroder, J ., concurs in result only. Scott, J ., concurs in result only by
separate opinion .
COUNSEL FOR APPELLANT :
Daniel T . Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202 ,
J. David Niehaus '
Deputy Appellate Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentucky
Clint Evans Watson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : FEBRUARY 21, 2008
NOT TO BE PUBLISHED
Let
"VUyrruir Courf -of ~Rrufurhv
2006-SC-000329-MR
JESSE FEGLEY
V.
APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
NO. 04-CR-001065-001
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE SCOTT
While I concur in result with this opinion, I do not agree with the
suggestion that Merritt v. Commonwealth, 386 S.W.2d 727 (Ky. 1965) needs to
be reexamined; otherwise every armed robber will simply pull the cylinder pin
from the weapon and throw it away as he exits the robbery site. Such a change
in the law would present immense difficulties for the prosecution to prove the
weapon used was a "deadly weapon," i.e., operable and capable of firing a bullet .
As it is now, anyone can avoid the application of Merritt - don't rob people with a
gun or in any manner such as to convince them you really have one!
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