concurrence">CUNNINGHAM, J.,

CONCURRING:

I concur with Justice Hughes’s well written opinion. I agree that the closing argument was not prejudicial enough to warrant a reversal on those grounds.

However, as a former Commonwealth’s Attorney, I cannot let this case pass without expressing more strongly my disapproval of the prosecutor’s closing argument in this case. Some of his theatrics go up to the line, but are within ethical and legal bounds. However, the questions he posed directly to the defense lawyer were neither rhetorical nor argumentative. Rhetorical questions in closing arguments are to be posed to the jury with full knowledge that they are to be answered only in their deliberations and verdict. It is highly unprofessional, unfair, and inappropriate to pose such questions as were used in this case to a defense lawyer. There were at least two of these questions which required answers that the defense lawyer was procedurally muzzled to answer. In some instances, if not here, it could rise to the level of reversible error. Jurors are not fully aware of trial procedures. Such questions not only put the defendant’s lawyer in an embarrassing situation, but the refusal to answer might be interpreted by the jury in a way which would be incriminating to the defendant.

Prosecution of all felony cases in this state is the responsibility of the elected Commonwealth’s Attorney. The conduct of any assistants assigned by that office holder is imputed to that public servant.

Former Kentucky Supreme Court Chief Justice John Palmore—a former Commonwealth’s Attorney himself—spoke eloquently to this. “One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth’s Attorney. Its very status becomes a mantle of power and respect to the wearer. Though few are apt to wear it lightly, some forget, or apparently never learn, to wear it humbly.” Niemeyer v. Commonwealth, 533 S.W.2d 218, 222 (Ky. 1976).

Although written over forty-one years ago, it is a banner still pristine with meaning and is worth repeating.

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