allegation of instructional error in Kentucky

2023In Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013), our Supreme Court explained that where, as here, “the allegation of instructional error is that a particular instruction . . . should not have been given but was given, RCr 9.54 operates as a bar to appellate review unless the issue was fairly and adequately presented to the trial court for its initial consideration.” Defense counsel merely expressed a generalized preference against the wording without raising a formal objection -- indeed, even acknowledging that he had lacked a legal basis for an objection.

2020See Martin, 409 S.W.3d at 346 (“[W]hen the allegation of instructional error is that a particular instruction should have been given but was not…, RCr 9.54 operates as a bar to appellate review unless the issue was fairly and adequately presented to the trial court for its initial consideration.”); Martin v. Commonwealth, 456 S.W.3d 1, 12 (Ky. 2015) (extending the holding in Martin, 409 S.W.3d at 346 , to sentencing-phase instructions).

2023Although Fojan submits that her tendered instruction, using the language “one or more of her horses” preserved the claim of error, we disagree. “[A] tendered instruction will not fairly and adequately present the party’s position as to an allegation of instructional error when . . . the minor differences between the language of the tendered instruction and the instruction given by the trial court would not call the trial court’s attention to the alleged error[.]” Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 163-64 (Ky. 2004) (footnotes omitted); see also Norton Healthcare, Inc. v. Disselka

2022See CR6 51(3); Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 163 (Ky. 2004) (citation omitted) (noting that an allegation of instructional error is not preserved for appellate review when “the omitted language or instruction was not contained in the instruction tendered to the trial court; i.e., when the allegation of error was not presented to the trial court at all[.]”).

2023In Sand Hill Energy, the Kentucky Supreme Court quoted with approval the former -16- Court of Appeals in its pithy summary of the rule: “The instruction tendered by him does not point up the claimed error; thus he is not in a position to complain now.” Sand Hill Energy, 142 S.W.3d at 164 n.20 (quoting Miller v. Quaife, 391 S.W.2d 682, 684 (Ky. 1965)).

2020See Martin, 409 S.W.3d at 346 (“[W]hen the allegation of instructional error is that a particular instruction should have been given but was not…, RCr 9.54 operates as a bar to appellate review unless the issue was fairly and adequately presented to the trial court for its initial consideration.”); Martin v. Commonwealth, 456 S.W.3d 1, 12 (Ky. 2015) (extending the holding in Martin, 409 S.W.3d at 346 , to sentencing-phase instructions).

2015It is well established that “[i]n a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); see also RCr 9.54(1).