Background
On April 14, 2021, Covington police conducted a traffic stop of a vehicle for loud exhaust and possible missing muffler. Officer Kevin Igo initiated the stop while Officer Raven Cioca arrived as backup. Igo spoke with the driver, James Pitts; Cioca approached the passenger side and spoke with Raechel Nicole Holt. Cioca observed Holt appearing nervous, wanting to smoke a cigarette, fidgeting with her sweatshirt and moving her hands toward the center console.
During the stop, officers discovered Holt had an active arrest warrant. When she was removed from the vehicle and requested her belongings be retrieved, officers found a bag containing methamphetamine between the console and passenger seat. Holt claimed Pitts had thrown the bag at her and ordered her to dispose of it because she was afraid of him. She denied ever having the drugs in her clothing. Testing confirmed the substance was methamphetamine.
Holt was indicted by Kenton County Grand Jury for Possession of a Controlled Substance in the First Degree (Complicity). Following a jury trial, she was found guilty and sentenced to two years’ imprisonment. She appealed, challenging the jury instructions.
The Court’s Holding
Holt argued the trial court erred by submitting a jury instruction with two alternative theories of culpability, creating a unanimous verdict violation. The instruction provided that the jury could find guilt either if Holt: (A) knowingly possessed methamphetamine, OR (B) aided Pitts in possessing the drug with intent to promote or facilitate the offense. Holt claimed this combination instruction violated the requirement that jury verdicts be unanimous as to the specific crime.
The Court of Appeals acknowledged that unpreserved jury instruction defects can be reviewed for “palpable error” under Kentucky Rules of Criminal Procedure 10.26. However, the court distinguished between merely failing to object to an instruction and affirmatively waiving the right to challenge it. The court held that waiver occurs when a defendant “knowingly relinquishes the right”—which can happen by “expressly agreeing to the trial court’s instructions.” Here, when the trial judge asked if counsel had objections to the proposed jury instructions, Holt’s attorney responded: “We are good with them.” This express agreement constituted waiver under Kentucky Supreme Court precedent in Sanchez v. Commonwealth, making any alleged jury instruction error “invited error” not subject to appellate review.
Accordingly, the Court of Appeals affirmed Holt’s conviction and two-year sentence, holding that she had waived her right to challenge the jury instructions on appeal by expressly agreeing to them at trial.
Key Takeaways
- Defendants who expressly agree to jury instructions waive their right to challenge those instructions on appeal, even if the instructions contain legal defects.
- Kentucky law distinguishes between failing to object to jury instructions (which may allow palpable error review) and affirmatively agreeing to instructions (which constitutes waiver and bars review).
- Express agreement at trial—such as counsel stating “we are good with” instructions—can constitute knowing relinquishment of the right to challenge those instructions, regardless of their legal sufficiency.
- Invited error doctrine bars appellate review when a party has effectively consented to the allegedly erroneous instruction.
Why It Matters
This decision provides important guidance on when Kentucky defendants can challenge jury instructions on appeal. The court’s emphasis on distinguishing between failing to object and affirmatively waiving the right reflects recent Kentucky Supreme Court precedent tightening the rules around jury instruction challenges in unanimity cases. Defense counsel must now be particularly careful to either lodge specific objections to jury instructions or explicitly preserve their right to challenge them—silence or affirmative agreement will constitute waiver.
The decision has practical implications for trial strategy: defense attorneys should carefully review proposed jury instructions, object to any alternative theories of liability they contest, and avoid express agreement to instructions they intend to challenge on appeal. The court’s reliance on the defendant’s attorney’s statement (“We are good with them”) demonstrates that courts will interpret affirmative statements of satisfaction as knowing waiver of appellate rights, even when counsel may not have explicitly contemplated all legal implications of the instruction.