Nery J. Ruiz v. Commonwealth of Kentucky

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.

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 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."

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 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

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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.

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 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.

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 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.

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 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.
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 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.
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 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.

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 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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