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Ray v. Commonwealth3/28/2003
those of the defense counsel during the penalty phase. See Smith, 734 S.W.2d at 452.
In Appellant's penalty phase, defense counsel asked the jury to consider when recommending sentencing that a police officer testified that Appellant had been forthright, candid and fully cooperative. In response, the prosecutor instructed the jury to add two or three more years to its sentence recommendation on the trafficking charge "'cause he's never really accepted responsibility. We've had to fight him every step to get to this point. I ask that you take that into consideration." Defense counsel objected; however, defense counsel did not express his concern that he believed the Commonwealth was asking the jury to punish Appellant for exercising his right to a jury trial. The trial court overruled the objection, stating in front of the jury, that the prosecutor's statement went to Appellant's cooperation. Considering the context, we do not believe the prosecutor's conduct affected the fairness of the penalty phase. Appellant urged the jury to fix the confinement at the minimum sentence, 10 years, and the Commonwealth recommended the maximum, 20 years. The jury fixed the confinement at 15 years. We do not accept the appellant's contention that this sentence was directly attributable to the prosecution's vague comment on Appellant's cooperation.
Judgment affirmed.
ALL CONCUR.
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