holding that “the required showing [for palpable error relief] is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.”
How later courts described this case
- holding that “the required showing [for palpable error relief] is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.”
- holding that unpreserved errors are only reviewed for palpable error which results in manifest injustice
- interpreting language in RCr5 10.26, which has been construed “identically” to CR 61.02. See Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018)
- the concept of manifest injustice requires a showing that a different result would have occurred or the error was so fundamental it threatens a party’s right to due process of law
Written by the judges who cited it.
The opinion
Concurring Opinion by
Justice WINTERSHEIMER.
The majority opinion reaches the correct result but needlessly creates new criteria for review of alleged palpable error. In Martin’s original case before this Court, we affirmed when our palpable error analysis started with the improper argument at trial that was not a preserved error. Martin now seeks relief pursuant to RCr 11.42 alleging that trial counsel’s failure to preserve that error was ineffective assistance of counsel.
There is nothing to prevent a collateral attack when alleging error of counsel in such a situation. The Court of Appeals was not correct when it affirmed the trial court’s denial of RCr 11.42 relief. Martin should be able to proceed with an RCr 11.42 action. It is only then that a decision regarding whether any ineffective assistance of counsel reaches the level of reversible error may be determined. See Humphrey v. Commonwealth 962 S.W.2d 870 (Ky.1998).
Palpable error review is governed by RCr 10.26 and requires a showing of manifest injustice. We have most recently confirmed the understanding of that term to mean “a substantial possibility does not exist that the result would have been different”. Graves v. Commonwealth, 17 S.W.3d 858 (Ky.2000). That concept remains clear, concise, and correct. The majority opinion however, after acknowledging that “the language used is clear enough” then provides an additional definition or step in the process. Besides the probability of a different result, the majority opinion states that in addition, the er *6 ror could merely be “so fundamental as to threaten a defendant’s entitlement to due process of law”.
This added requirement to manifest injustice analysis is not provided for in our rules and is not needed. If an error at trial threatens a defendant’s entitlement to due process of law, there are appropriate avenues of relief. Ky. Const. § 14. One would hope that the method would be an objection followed by a ruling from the trial court. A direct appeal from the trial court ruling is then available. Should an objection not be provided, palpable error review and then collateral review through RCr 11.42 would provide ample opportunity to fulfill any due process requirements.
It is easy to create a myriad of hypothetical examples where an error may enter a trial and be so fundamental that it affects entitlement to due process of law. Yet those situations would not necessarily create manifest injustice. The errors would not necessarily change the result. If any error is significant enough to cross the threshold of due process requirements it should be reviewed in that manner. It is only after that analysis that a manifest injustice review would be appropriate.
The majority opinion acknowledges the substantial differences between our RCr 10.26 and the Federal Rules of Criminal Procedure 52(b). It also clearly notes that the analysis of the federal rules in U.S. v. Cotton, 535 U.S. 625 , 122 S.Ct. 1781 , 152 L.Ed.2d 860 (2002) is outside any application to our RCr 10.26 yet proceeds to then adopt the Cotton determination of “whether the defect in the proceeding was shocking or jurisprudentially intolerable”. This melding of the federal definition along with the due process requirements added to the original Graves, supra, requirement of a changed result has now created a palpable error analysis that is riddled with conflict. The new steps are not needed and will only open the floodgates of further litigation because we will then be called upon to clarify what was once already clear.
I concur in result only
GRAVES and ROACH, JJ., join.