RENDERED: MAY 14, 2015
TO BE PUBLISHED
uprrtur (Court of eicfirnfurku
2014-SC-000124-MR
NERY J. RUIZ APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V. HONORABLE JOHN L. ATKINS, JUDGE
NO. 13-CR-00004
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
VACATING AND REMANDING
Appellant, Nery Ruiz, appeals from a judgment of the Christian Circuit
Court convicting him of first-degree sexual abuse and first-degree sodomy. As
grounds for relief Appellant contends that (1) flawed jury instructions and a
duplicitous indictment violated his right to a unanimous verdict; and (2) the
Commonwealth improperly elicited testimony from a police officer which
impermissibly bolstered the credibility of the victim.
Because the instructions given in this case denied Appellant his
constitutional right to a unanimous verdict, we vacate the judgment and
remand for a new trial. Because the bolstering issue may arise upon retrial, we
also address that issue on the merits.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant is the stepfather of "Linda," who was six years old during the
relevant time frame of July 1, 2012, to November 25, 2012. During that time,
Linda's mother, who is Appellant's wife, was deployed overseas with her Army
unit. Linda and her younger sister resided with Appellant, their grandmother,
and their fifteen-year old aunt. On November 28, 2012, Linda told her
grandmother and aunt that Appellant had, on several occasions, subjected her
to various forms of sexual contact. Linda's grandmother and aunt took her to
be examined at a nearby Army hospital. At the hospital, they met with police
officers Mike Havens and Ben Walden of the Oak Grove (Kentucky) Police
Department.
Based upon Linda's allegations, Appellant was indicted on three counts
of sexual abuse (KRS 510.110) and three counts of first-degree sodomy (KRS
510.070). At trial, Linda testified that on many occasions within the five-
month period, Appellant took her into his bedroom and subjected her to
various forms of sexual contact, including anal sodomy, forcing her to perform
oral sodomy on him, and forcing her to touch his penis. Officer Havens
testified about the demeanor of Linda and her family when he met them at the
hospital. Appellant testified at the trial and denied all of the allegations. He
suggested that his mother-in-law (Linda's grandmother) disliked him, and for
that reason she coached Linda to make the allegations.
P`Linda" is a pseudonym we use here to protect the anonymity of a child
victim/witness.
2
At the conclusion of the evidence, the trial court submitted instructions
to the jury on one count of first-degree sexual abuse for forcing Linda to touch
his penis, one count of sodomy for penetrating Linda anally, and one count of
sodomy for having Linda perform oral sodomy on him. The jury acquitted
Appellant of anal sodomy, but convicted him of the other two crimes.
Consistent with the jury's recommendation, Appellant was sentenced to
imprisonment for twenty years. This appeal followed.
II. UNANIMOUS VERDICT/"DUPLICITOUS INDICTMENT" ISSUES
Appellant contends that the jury instructions given in the case deprived
him of the constitutional right to the verdict of a unanimous jury, and, further,
that both counts of the indictment were "duplicitous" because they each
charged a single crime out of numerous indistinguishable allegations, leaving
him with "no adequate notice of the charges that he needed to defend himself
against." He also contends for the same reason that the jury instructions,
which mirrored the charges of the indictment, were duplicitous. Appellant
concedes that these issues are not preserved but requests that we undertake
review under the manifest injustice standard contained in RCr 10.26. 2
A. Unanimous Verdict
The two jury instructions under which Appellant was convicted stated as
follows:
2 RCr 10.26 provides that "A palpable error which affects the substantial rights
of a party may be considered by the court on motion for a new trial or by an appellate
court on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice has
resulted from the error."
3
Instruction No. 5 [first-degree sexual abuse]
You will find the Defendant guilty of First Degree Sexual Abuse
under this instruction if and only if, you believe from the evidence
beyond a reasonable doubt all of the following:
A. That in this county on or between July 1, 2012, and November
25, 2012 and before the finding of the indictment herein, he
subjected the victim to sexual contact involving the victim's hand
on his penis and the victim touching his penis with her hand;
AND
B. That at the time of such conduct the victim was less than 12
years of age.
Instruction No. 6 [first-degree sodomy]
You will find the Defendant guilty of First Degree Sodomy under
this instruction if and only if, you believe from the evidence beyond
a reasonable doubt all of the following:
A. That in this county on or between July 1, 2012, and November
25, 2012 and before the finding of the indictment herein, he
engaged in deviate sexual intercourse involving her mouth on his
penis.
AND
B. That at the time of such conduct the victim was less than 12
years of age.
Significantly, as the crimes are phrased in these instructions, the jury is
not directed to consider a specific, uniquely identifiable event (such as, at a
particular place or time, near a notable date, while wearing particular clothing,
or while attending a particular birthday or other such event, etc.). Instead, the
instructions, without any other particularized distinction, broadly refer to the
five month period of July 1, 2012, and November 25, 2012. Such phrasing
poses no problem when the evidence itself relates only to a single,
unambiguous occurrence; but when the evidence equally suggests the
commission of two or more similar crimes, the potential for unanimous verdict
problems arise.
Citing to our recent case Johnson v. Commonwealth, 405 S.W.3d 439 (Ky.
2013), Appellant contends that his constitutional right to a unanimous verdict
was violated because at trial, the victim testified to multiple indistinguishable
instances of sexual abuse and multiple indistinguishable instances of sodomy
as having occurred during the relevant time period, and so there is no
assurance that each of the jurors were focused upon the same occurrence
when they cast their respective guilty votes.
"Section 7 of the Kentucky Constitution requires a unanimous verdict."
Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). A violation of this
provision may occur in several ways; however, as relevant here and as we
explained in Johnson, a general jury verdict based upon a single instruction
convicting a criminal defendant of a crime when two or more separate
instances of that single crime were presented at trial violates the requirement
of a unanimous verdict. 405 S.W.3d at 449. In Johnson, the victim suffered
two bone fractures at different times, either of which could have supported a
conviction of first-degree criminal abuse. The defendant in Johnson was
convicted of criminal abuse under a single crime instruction. We held that a
unanimous verdict violation occurred because it was entirely possible that
some jurors voted for a guilty verdict based upon one fracture, while other
jurors voted for a guilty verdict upon the other. The clear import of Johnson is
that a verdict is not unanimous unless all of the jurors based their conviction
5
of the defendant on the same criminal act; and that the instructions and
verdict forms must be couched in language that eliminates any ambiguity
regarding the jury's consensus.
Here, as Appellant contends, the rule of Johnson was violated. As in
many cases of child sex abuse, Linda was the only eye-witness to the crimes
charged against Appellant. Although his brief is conspicuously deficient in
providing precise citations to Linda's testimony, our review of her one hour and
forty-one minutes of testimony bears out Appellant's claim.
Linda testified that Appellant fondled her many times, and on multiple
occasions forced her to perform oral and anal sex. In its examination of Linda,
the Commonwealth did not have her isolate and identify any individual episode
of sexual abuse or sodomy that would relate the specific crime to the
instructions to be given to the jury. Instead, her testimony described a
generalized, nonspecific and undifferentiated continuing course of conduct of
sexual misconduct perpetrated by Appellant using descriptions such as:
"sometimes he would make me touch his front 3 and would make me suck on it
sometimes"; "sometimes I would be watching TV"; "it would normally happen
after I got back from school"; "sometimes he would call me to go in there
because he was going to do all that stuff to me"; when he had me get under the
covers he "would just tell me to suck on his front"; when Appellant would have
her suck his front it would be in the bedroom; and that this conduct would
occur "two or three times per week."
3 "Front" was the term Linda used as a reference to male and female genitalia.
6
Consequently, the instructions were prepared on these two charges with
no distinguishing descriptions that would fairly apprise the jury of exactly
which criminal episode it was charged to consider. Without an instruction to
channel the jury's deliberation, the jury was left to adjudicate guilt on any or
all of the vaguely alleged incidents, resulting in a verdict of doubtful unanimity.
We are unable to distinguish what occurred in this case from the situation in
Johnson. Indeed, the violation here is even more apparent, because as the
number of indistinguishable criminal events described in the evidence
increases, from two as in Johnson, to the non-specific "many" times and "2 or 3
times a week" for a five-month period that we see in this case, the probability
that all jurors agreed on the same event substantially declines. Upon
application of Johnson and cases preceding it, we are constrained to conclude
that Appellant's right to a unanimous verdict was violated.
It is worth noting that the Kentucky Penal Code, KRS Chapters 500-534,
does not criminalize serial acts of sex abuse or sodomy as a "course of conduct"
crime, such that a similar series of indistinguishable criminal acts would be
deemed to constitute the commission of a single crime, and could then be
prosecuted as such. As suggested by Justice Abramson in her comment below,
the General Assembly could enact such a crime; however, until it does,
prosecutors must charge and prove sex crimes as specific, individual acts of
criminal behavior.
Having concluded that Appellant's conviction is tainted by unpreserved
error, we must consider whether the error was palpable under CR 10.26, so as
7
to compel relief despite his failure to bring the error to the attention of the trial
court. When confronted with the same question in Johnson, we said:
This Court concludes that this type of error, which violates a
defendant's right to a unanimous verdict and also touches on the
right to due process, is a fundamental error that is
jurisprudentially intolerable. For that reason, the error in this case
was palpable and requires reversal of Appellant's criminal-abuse
conviction.
Johnson, 405 S.W.3d at 457. Accordingly, we must regard the error as
jurisprudentially intolerable. We reverse the judgment and remand the matter
for a new trial.
B. Duplicitous Indictment
Appellant contends that the indictment handed down in this case was
duplicitous because it combined multiple separate acts of sexual misconduct
into a single description. A duplicitous indictment is "the joining in a single
count of two or more distinct and separate offenses." Johnson at 453 (quoting
United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975)). "In other words, a
duplicitous count includes in a single count that must be charged in multiple
counts." Id.
An examination of the indictment in this case discloses that Counts 1-3
are identical as to the three first-degree sexual abuse charges and that Counts
1-4 are identical as to the three first-degree sodomy charges. Thus, it would
seem that the indictment is indeed duplicitous and a violation of the
parameters as set forth in Johnson. Id. at 453-455. However, because we have
8
reversed on other grounds we need not further review this unpreserved issue
on the merits.
III. EVIDENTIARY ISSUES: THE MISNOMER OF "INVESTIGATIVE
HEARSAY;" BOLSTERING/VOUCHING; AND OPINION TESTIMONY ON
PROBABLE CAUSE
Appellant also cited as error testimony of Officer Havens, which
Appellant contends was improper "investigative hearsay," and which, in turn,
impermissibly bolstered the allegations and credibility of the victim. He also
cites as error Officer Havens' testimony that "there was probable cause to file a
report." Because these matters may recur upon retrial, we address them on
the merits.
A. Out of court statements to Officer Havens; so-called "investigative
hearsay"
The trial court granted Appellant's pre-trial motion to prevent the
Commonwealth from eliciting "investigative hearsay" from any of its witnesses.
Despite the order, Appellant complains on appeal that the Commonwealth's
first witness was permitted to introduce improper "investigative hearsay." Lest
our repetition of the term "investigative hearsay" be misconstrued, we state
here without equivocation: there is no such thing in our jurisprudence as
"investigative hearsay." There is no special rule of evidence known as
"investigative hearsay." The term simply is not a part of the evidentiary
lexicon.
Despite our condemnation in Sanborn v. Commonwealth, 754 S.W.2d
534, 541 (Ky. 1988) (overruled on other grounds by Hudson v. Commonwealth,
9
202 S.W.3d 17, 22 (Ky. 2006)), of what has been termed the "investigative
hearsay" rule, it is still invoked on occasion. Perhaps we have failed in our
decisions to vanquish it with sufficient vigor to send the message. We said in
Sanborn, "Prosecutors should, once and for all, abandon the term 'investigative
hearsay' as a misnomer, an oxymoron." We now extend that suggestion to all
of the bench and bar.
The use of the term exposes a fundamental misconception about the
nature of the evidence it purports to describe; what it purports to describe is
far more effectively, and more precisely, explained by the basic definition of
hearsay itself and the conventional rules of evidence pertaining to hearsay.
The term, "investigative hearsay" creates the false impression that there is a
special or unique species of hearsay evidence that abides by its own rules
removed from the rigors of ordinary hearsay law. Using this inartful term
serves only to muddle the analysis of issue at hand and to distort the language
by which hearsay issues must be resolved.
In its most common application, the term "investigative hearsay" is
tagged to an out-of-court statement made to, or in the presence of, a police
officer, such that it tends to explain subsequent investigative action taken by
the police as a result of the statement. See Gordon v. Commonwealth, 916
S.W.2d 176, 179 (Ky. 1995); and Young v. Commonwealth, 50 S.W.3d 148, 167
(Ky. 2001). We said recently in McDaniel v. Commonwealth: "[I]nvestigative
hearsay' is a 'misnomer . . . derived from an attempt to create a hearsay
exception permitting law enforcement officers to testify to the results of their
10
investigations.' This erroneous basis for the admission of hearsay evidence was
rejected in a line of cases beginning with Sanborn []." 415 S.W.3d 643, 652
(Ky. 2013) (citations omitted).
To be clear, there is no special rule regarding out-of-court statements
made to police officers investigating crimes. Nor do we need such a special
rule. The conventional rules of evidence and the traditional evidentiary
vocabulary are perfectly suited to describe the legal concept at hand.
"Hearsay" is "a statement, other than one made by the declarant while
testifying at the trial [ ], offered in evidence to prove the truth of the matter
asserted." KRE 801(c). "Hearsay is not admissible except as provided by [the
Rules of Evidence] or by rules of the Supreme Court of Kentucky." KRE 802.
The principal exceptions to the hearsay rule are found in KRE 801A, KRE 803,
and KRE 804. There is no exception particularly dealing with statements
made to police officers.
An out-of-court statement made to a police officer is judged by the same
rules of evidence that govern any out-of-court statement by any out-of-court
declarant. If it is relevant and probative only to prove the truth of the matter
asserted by the out-of-court declarant, then the statement is hearsay, and its
admission into evidence is governed by the traditional hearsay rule. And, as
any other statement, if the out-of-court statement made to a police officer has
relevance and probative value that is not dependent upon its truthfulness, and
it is not offered into evidence as proof of the matter asserted, then by definition
the evidence is not hearsay.
11
For example, we held in Daniel v. Commonwealth that a police officer's
testimony that he had been told by a woman that the defendant had raped
her, and that, as a result of her statement, he took the woman into protective
custody, was inadmissible hearsay because its only relevance was to prove the
fact of the rape; that the officer acted upon the statement to protect the
woman was not relevant to any issue in the case. 905 S.W.2d 76, 79 (Ky.
1995). Similarly, in Young v. Commonwealth, we held that because "[t]he only
purpose for introducing the details of [the out-of-court statement to a police
officer] would be to prove that Combs's description did not fit Thomas; thus, it
would have been offered to prove the truth of Combs's description and, thus,
that Thomas was not the killer." 50 S.W.3d 148, 167 (Ky. 2001).
Correspondingly, when the reason that a witness has taken certain
actions is an issue in the case, an out-of-court statement that tends to explain
that action would not be hearsay because it is not offered "to prove the truth of
the matter asserted." Rather, it is offered to explain the action that was taken
and has relevance regardless of whether the statement was true or false. See
Id. at 167 ("If so, the out-of-court statement is not hearsay, because it is not
offered to prove the truth of the matter asserted but to explain why the officer
acted as he did."). It matters not whether the witness was a police officer; the
same rules applies.
In such circumstances, because the out-of-court statement would not be
subject to the hearsay rule, its admissibility would be determined by
12
application of other rules of evidence. 4 So-called "investigative hearsay" is
still, fundamentally, hearsay. Chestnut v. Commonwealth, 250 S.W.3d 288,
294 (Ky. 2008). There is no special kind of evidence known as "investigative
hearsay;" we have no rule of evidence called the "investigative hearsay rule."
Use of the term imparts no meaningful information to the analysis that is not
otherwise supplied by the word "hearsay."
Of further difficulty in the review of the "hearsay" issue raised by
Appellant, is that he does not identify with any specificity a single instance
where Officer Havens offered into evidence an out-of-court statement that we
can review to determine if it is hearsay. Despite his complaint about
unspecified "investigative hearsay," Appellant's larger concern with Havens'
testimony seems to be Havens' description of the demeanor of Linda and her
family members as he interviewed them about the allegations of rape and
sexual abuse. The issue seems to fall more naturally within Appellant's
argument that Havens was improperly permitted to bolster the family members'
testimony, and we discuss that argument below.
B. Bolstering
In response to the prosecutor's questioning, Havens testified that he
spoke with Linda about "the events that occurred," and based upon this
discussion he found probable cause to issue a report. In response to a
question regarding the demeanor of Linda, her aunt, and her grandmother at
4 For example, if a proffered out-of-court statement was relevant for reasons
unrelated to whether it was true, factors such as those mentioned in KRE 403 may
influence the trial court's discretion in admitting or excluding the statement.
13
the time he met with them to investigate the accusations, Havens said that
Linda would not look him in the eye. He also explained that the aunt and
grandmother were upset and anxious. He said they "broke down" as they
discussed the abuse, and that he, too, at that point, was overcome with
emotion.
Appellant complains that the Commonwealth used this demeanor
testimony in its closing argument to bolster the credibility of its witnesses.
Appellant concedes that "Havens was very careful not to testify as to the actual
statements given to him by the witnesses" but "the purpose of his testimony
was to indirectly vouch for the credibility of the witnesses that would follow."
He complains that in a case without forensic medical evidence to support the
charges the prejudicial effect of that testimony is significant.
As a general rule, a competent witness may testify concerning matters of
which he has personal knowledge, including events he has personally observed
and perceived. KRE 602. See Marshall v. Commonwealth, 60 S.W.3d 513, 520
(Ky. 2001) (Witness's] testimony as to what she observed during that time was
competent testimony, not hearsay."). We further clarified in Ordway v.
Commonwealth that a witness may describe another person's "conduct,
demeanor, and statements [ ] based upon his or her observations to the extent
that the testimony is not otherwise excluded by the Rules of Evidence." 391
S.W.3d 762, 777 (Ky. 2013).
In McKinney v. Commonwealth, we agreed that characterizations by
witnesses of a defendant's demeanor upon learning of the death of his wife and
14
stepchildren and the destruction of his home, as "non-emotional," "nothing out
of the ordinary," and "calm, didn't show any emotion," were relevant because
inferences of guilt or innocence could be drawn from such evidence. 60 S.W.3d
499, 503 (Ky. 2001). The same rule would apply to the demeanor of any
witness whose demeanor at a specific time was relevant. 5
In opposition to the general rule, Appellant contends that statements
describing the anguish of Linda, her aunt and her grandmother were relevant
only to bolster, or vouch for, their testimony. It is well established that a
witness may not vouch for the truthfulness of another witness. Stringer v.
Commonwealth, 956 S.W.2d. 883, 888 (Ky. 1997) (citing Hall v. Commonwealth,
862 S.W.2d 321, 323 (Ky. 1993)); Hoff v. Commonwealth, 394 S.W.3d 368 (Ky.
2011). We are not persuaded that the situation here implicates our rule
against improper bolstering.
Havens did not express a view upon the veracity of Linda and her family.
He described their demeanor immediately after claims surfaced that another
family member had engaged in a disturbing pattern of child sexual abuse. He
said the aunt's and the grandmother's "eyes were swollen" because they had
been crying; and that they all "broke down." The rule against bolstering or
vouching addresses attempts by one witness to express belief in the credence of
another witness. Cf. Bell v. Commonwealth, 245 S.W.3d 738, 744-45 (Ky.
5 KRE 401: "'Relevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
15
2008) 6 (a social worker's statement that a child's testimony seemed
"spontaneous" and "unrehearsed" constituted implicit improper bolstering,
because it was an attempt to opine upon the veracity of the child.). Here, the
overwrought demeanor of Linda's aunt and grandmother as described by
Haven was not so much of an effort to enhance their credibility—the child's
accusation alone, believable or not, would reasonably give rise to anguish and
sorrow. Rather, the testimony more clearly suggests an effort to arouse
sympathy for Linda and her family, which may pose its own relevancy
concerns.
Nevertheless, the witnesses' distress upon hearing of the allegation of
abuse says nothing about the truth of the allegation. In other words, the
revelation of the accusation alone, whether true or false and whether believed
or doubted, would understandably provoke emotions of distress and sadness,
and it bears little, if any, relevance to a fact in controversy. Upon retrial
Havens' testimony that Linda's family members were overwrought by the
allegations, and that he, too, was emotionally affected by their anguish, should
not be admitted.
C. Police Report/Probable Cause
Appellant also complains of Havens' testimony that upon speaking to
Linda about her experience, he "found probable cause" to prepare a report so
further investigation would ensue. Although ambiguous, Havens' testimony
6 Overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky.
2008).
.16
could be readily understood to mean that he personally believed Linda's
account. While it was certainly relevant and admissible for Havens to explain
that he filed his report and further investigation followed, his characterization
of the process as having "found probable cause" certainly expresses sufficient
belief in the truthfulness of the victim to run afoul of the rule against vouching,
and more importantly, the officer's belief that "probable cause" existed is
absolutely irrelevant. Upon retrial, Officer Havens should not be permitted to
testify as to his personal finding of "probable cause."
IV. CONCLUSION
For the foregoing reasons, the judgment of the Christian Circuit Court is
vacated, and the proceeding is remanded for a new trial consistent with this
opinion.
All sitting. Minton, C.J., Abramson, and Noble, JJ., concur. Keller, J.,
dissents. Cunningham, J., dissents by separate opinion in which Barber, J.,
joins.
ABRAMSON, J., I join the majority but share the dissent's grave concerns
about this type of continuing sexual abuse case and reiterate that the General
Assembly can address the problem, as have the legislatures in sister states, by
adopting a "course of conduct" statute for multiple sex crimes against a minor.
Johnson, 405 S.W.3d at 456 n.1.'
CUNNINGHAM, J., DISSENTING: With an abiding and profound respect
for the members of the majority, I must fervently dissent.
17
A bright, articulate and pretty little seven year old girl, we call Linda,
testified that for a period of time covering the charge under the indictment, and
while she was six years old, her step-father sexually abused her. The step-
father was entrusted with her care while her mother was deployed with the
military overseas. That step-father is the Appellant.
With the assistance of pictures and anatomical dolls, Linda recalled how
at least two or three times a week, Appellant would take her into his bed and
sometimes have her commit oral sex upon him, and sometimes make her touch
his penis. The multiple acts, occurring weekly over a five month period were
always in his bed, at the same house and usually about the same times. There
was nothing more distinguishable about these acts than that. No "specific,
identifiable event." No "notable date, while wearing particular clothing, or
while attending a particular birthday party or other such event . . . ." There
was an awful redundancy to the perversion.
Our Supreme Court today is directing the prosecutor and trial judge to
do that which is impossible to do—give vivid definition to each individual act.
Justice Scott and I protested the fallacy of this requirement in Johnson v.
Commonwealth, 405 S.W.3d 439, 461 (Ky. 2013). We wrote in part:
The most disturbing result of our decision here today is that it will
seriously impair the prosecutions and convictions of those charged
with the molestation and rape of small children. A defendant is
typically charged with one count of rape of a child under 12 years
of age. A small four-year-old toddler testifies and, perhaps with
the aid of anatomical dolls, describes the criminal acts committed
upon him or her. The victim testifies that the act happened more
than once—maybe weekly. It will be impossible for the prosecutor
to nail down a certain one as identified by date and place in order
to comply with the results of our decision here today.
18
Except for the age, this is exactly what we have before us. The ugly old
chicken given flight in Johnson has come home to roost.
We will never see this case again. It will be impossible for it to be retried
under the dictates of the majority.
Counsel for the Appellant did not object to the instructions given in this
case. Why should he? Instead of facing scores of charges of sodomy which
would have been justified under the evidence, he faced only two with
particularized manner of the offense. The majority today punishes both the
prosecutor for showing admirable restraint in charging the Appellant, and the
trial judge for giving the instruction agreed upon by the Appellant, yet rewards
the defense lawyer for allegedly being asleep at the switch.
Just as it did in Johnson, we once again encourage the defense bar to
blind side trial judges by simply remaining mute while the trial court gives
instructions we now hold as "palpable error." Again, as Justice Scott and I
lamented in Johnson:
Our trial judges are being ambushed by such decisions as this one
when we so lightly deem palpable error when the mistake has not
been preserved. We are watering down our palpable error
standard with holdings such as this to the point that it behooves
the defense lawyer not to object on jury instructions and just allow
the trial court to walk—unwarned—onto the unanimity land mine.
Id. at 461.
A unanimous jury found that the small child we call Linda was
sodomized by her step-father, not once, but numerous times. We are reversing
the conviction under such terms as he will now go free. Therein, lies the
"manifest injustice" in the majority opinion.
19
I appreciate the suggestion by the Majority—and as emphasized by
Justice Abramson's concurrence—that the legislature needs to give their
attention to a "course of conduct" crime. If that would appease the majority
and change future outcomes such as the one we have in this case, I welcome it.
However, I would respectfully submit that we do not need legislative assistance
to solve a problem we have ourselves created. Furthermore, since the
unanimity issue arises under our own state constitution, any new crime
created by our legislature is still going to run afoul of Section 7 of our
constitution as it is now interpreted by the majority in this case.
The whole unanimity issue discussed in this opinion exploded upon the
appellate scene within the last ten years or so. As noted in the Johnson
majority, the "federal constitution's requirement of unanimity has been held
not to apply to the states." We recognize, however, that under Section 7 of our
state constitution, a unanimous decision by the jury has long been required in
criminal cases.
Our Section 7 unanimity cases over the first 110 years of our
constitution were fairly simple and straightforward. The 1942 Cannon decision
and the 1951 Coomer case dealt with recalcitrant jurors who reported being
coerced into a vote, thus undermining the unanimous verdict. Cannon v.
Commonwealth, 163 S.W.2d 15 (1942); Coomer v. Commonwealth, 238 S.W.2d
161 (Ky. 1951). Even the 1978 Wells case held that alternative methods of an
assault case—intentional or wanton—was not a breach of the unanimity
requirement.
20
I submit that we jumped the tracks in the Harp case, as well as in Miller
v. Commonwealth, 283 S.W.3d 690 (Ky. 2009). We focused on the wrong issue.
Harp was charged with numerous counts of the same crime. These went to the
jury with identical instructions. The jury found Harp guilty of all counts.
While the wording is less than clear in Harp, it appears we reversed that case
on the unanimity issue. And we have thrown Harp into our growing line of
unanimity cases.
Miller is similar to Harp, except for one major difference. Miller was not
convicted on all identical instructions, as Harp was. Miller was rightly decided,
I believe, for the wrong reason. It was not a unanimity problem. I respectfully
submit that it was actually an appellate due process problem. Miller was
denied his right to appeal because he did not know, from the jury verdict,
which crimes he had been convicted.
Miller dealt solely with the lack of unanimity of which crimes the
defendant committed—not acts. Out of seven identical instructions for third-
degree rape, Miller was convicted on only four. It was impossible to determine
for which of the crimes the jury reached unanimous verdicts. But there was no
unanimity problem. The jury was unanimous in finding Miller guilty of some
crimes, but not others. But which ones?
The critical issue in Miller and in many of our so-called "unanimity" issue
cases is that the reviewing court cannot be certain Which offense or offenses
were committed—not whether the jury voted unanimously. So it is not a
unanimity issue. It is a review problem.
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I would respectfully submit that the reason we are just recently wrestling
so much at the appellate level with the so called "unanimity question" is
because we have mislabeled it. Section 115 of our state constitution states in
part: "In all cases, civil and criminal, there shall be allowed as a matter of right
at least one appeal to another court . . . ." Not knowing for which crime you
are convicted deprives one of any effective means to appeal.
The jury instruction on unanimity is simple. "The verdict of the jury
must be in writing, must be unanimous and must be signed by one of you as
FOREPERSON." 1 Cooper, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 2.07A
(5th ed. 2006) (emphasis added). The jury is commanded only to reach a
unanimous decision on the verdict.
There is no Section 115 review problem in this case.
Therefore, I strongly dissent.
Barber, J., joins.
COUNSEL FOR APPELLANT:
Allison E. Coffeen
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Taylor Allen Payne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
Rosa Ramsey Groves
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