INSTRUCTIONS
Legal Standard – A court is required to give instructions applicable to every state of the case covered by the indictment and deducible from or supported to any extent by testimony. Com. v. Collins, 821 S.W.2d 488 (Ky.1991), Gabow v. Com., 34 S.W.3d 63 (Ky.2000), overruled on other grounds. Jury instructions must be complete, and the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions. Hudson v. Com., 202 S.W.3d 17 (Ky.2006). Although a trial judge has a duty to prepare and give instructions on the whole law of the case, including any lesser included offenses supported by the evidence, that duty does not include instructing on theories without any evidentiary foundation. Houston v. Com., 975 S.W.2d 925 (Ky.1998). See also RCr 9.54(1).
A jury must be instructed on the presumption of innocence. RCr 9.56(1). A jury must also be instructed on the defendant not testifying, if requested to do so by the defendant. RCr 9.54(3).
Defense Theory of the Case - Slaven v. Com., 962 S.W.2d 845 (Ky.1997), Sanborn v. Com., 754 S.W.2d 534, 549-550 (Ky.1988), Kohler v. Com., 492 S.W.2d 198 (Ky.1973), Rudolph v. Com., 504 S.W.2d 340 (Ky.1974). See Taylor v. Com., 995 S.W.2d 355 (Ky.1999), see also Hayes v. Com., 870 S.W.2d 786, 788 (Ky.1993), where the court explained that when the defendant admits the facts constituting the offense, but relies on an affirmative defense, “such defendant is entitled to a concrete or definite and specific instruction on the defendant’s theory of the case.”
Lesser Included Offenses - Ward v. Com., 695 S.W.2d 404, 406 (Ky.1985), Trimble v. Com., 447 S.W.2d 348 (Ky.1969), Martin v. Com., 571 S.W.2d 613 (Ky.1978), Luttrell v. Com., 554 S.W.2d 75 (Ky.1977). An instruction on lesser included offenses is required when the prosecution presents evidence which might support such an instruction. Com. v. Collins, 821 S.W.2d 488 (Ky.1991).
Nevertheless, it is not palpable error to fail to instruct on a lesser-included offense of that charged in the indictment, and a trial judge is not required to sua sponte rule accordingly. Clifford v. Com., 7 S.W.3d 371 (Ky.1999).
Objecting to – See the discussion above under “Directed Verdicts, Renewing.” RCr 9.54(2) states: “No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.” See Johnson v. Com., 105 S.W.3d 430 (Ky.2003).
Preserving - Tendering an instruction and arguing to the court in support of the instruction is not sufficient to preserve the objection. A party must specifically object to the instructions given by the court before the court gives those instructions. Com. v. Collins, Ky., 821 S.W.2d 488 (Ky.1991), see also Baker v. Com., 973 S.W.2d 54 (Ky.1998), and Tamme v. Com., 973 S.W.2d 13 (Ky.1998), where defendant failed to request instructions on intoxication, moral justification, or other mitigating circumstances, it was not preserved for appellate review.
A defendant did not preserve for review his allegation of error challenging the trial court’s failure to instruct the jury on alcohol intoxication in a public place where he never requested that instruction. Blades v. Com., 957 S.W.2d 246 (Ky.1997), RCr 9.54(2), see also Graves v. Com., 17 S.W.3d 858, 864 (Ky.2000).
Practice Tip: Tendering Instructions. Any instructions requested and denied by the court should be tendered and placed in the record for review. (Beware that some judges do not automatically place tendered instructions into the record.) If you object to giving instructions on a specific charge but then tender instructions on that charge anyway, state for the record that you are not waiving your objection to the giving of instructions but that, if the court is going to give instructions, these are the instructions you would move the court to adopt.
Interrogatories - Trial courts may use fact-based interrogatories (special verdicts) in the jury instructions in a criminal case if, and only if, the interrogatories are accompanied by verdict forms which authorize the return of general verdicts. The interrogatories cannot take a jury step-by-step to any one verdict, and the court cannot direct a general verdict of guilty based upon the jury’s answer to the interrogatories. They should be used only sparingly and with due consideration of the defendant’s rights to due process. Com. v. Durham, 57 S.W.3d 829 (Ky.2001).
Practice Tip: Jury Instruction Conferences. Jury instruction conferences often take place in the judge’s chambers and are not on the record. Many judges then go back on the record regarding the matter of instructions once everyone returns to the courtroom. If the judge does not do this you should either move the court to put the conferences on the record or, once you return into the courtroom, state for the record; (1) whether you tendered instructions, and (2) any objections you made to the giving of instructions or to the contents of any instructions.
PROSECUTION CLOSING ARGUMENT
Legal Standard – The prosecutor is given wide latitude in closing argument, Maxie v. Com., 82 S.W.3d 860 (Ky.2002), Bowling v. Com., 873 S.W.2d 175 (Ky.1993), but the prosecutor may not cajole or coerce the jury to reach a verdict. Lycans v. Com., 562 S.W.2d 303 (Ky.1978). Except in extraordinary circumstances, a proper ruling is usually to remind the jury that argument of counsel is not evidence and that the jury is charged with the duty to recall the evidence. Com. v. Petry, 945 S.W.2d 417 (Ky.1997). The standard for reversal in cases of prosecutorial misconduct during closing argument is either: (1) misconduct which is “flagrant,” or (2) the proof of the defendant’s guilt is not overwhelming and defense counsel objected and the trial court refused to sustain the objection or cure the error with a sufficient admonition to the jury. Barnes v. Com., 91 S.W.3d 564 (Ky.2002), U.S. v. Dakota, 188 F.3d 664 (6th Cir.1999).
Nevertheless, prosecutorial misconduct can also have a cumulative effect throughout a trial. In that case, the test on appeal is the overall fairness of the trial, not the personal culpability of the prosecutor. The misconduct must be so serious as to render the entire trial fundamentally unfair. Soto v. Com., 139 S.W.3d 827 (Ky.2004), U.S. v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir.1979).
OBJECT! - Notice that the legal standard for misconduct during closing arguments requires that defense counsel object to the improper argument. Failure to object waives the issue on appeal. Johnson v. Com., 892 S.W.2d 558, 562 (Ky.1994), Caudill v. Com., 120 S.W.3d 635 (Ky.2003), Barnes v. Com., 91 S.W.3d 564 (Ky.2002). Counsel must make a contemporaneous objection (RCr 9.22) to the improper argument and move for a mistrial. Counsel should always invoke Section 2 of the Kentucky Constitution and the Due Process Clause of the 14th Amendment to the U.S. Constitution to support the objection and motion for mistrial. Counsel should resist the judge’s offer to give the jury a “curative” instruction or an admonition, rather than grant a mistrial. Counsel should point out that such an instruction or admonition is insufficient to cure the prejudice. (See “Admonitions.”).
In fact, two recent decisions from the Kentucky Supreme Court have made it clear that the court may have reversed the defendant’s convictions if only counsel for the defendant had objected during closing argument.
In Brewer v. Com., 206 S.W.3d 343, 351 (Ky.2006) the prosecutor told the jury they needed to “send a message” to the community by convicting the defendant. Defense counsel did not object. The court said: “Lest this opinion be misconstrued, we do find that the Commonwealth’s exhortation to this jury to ‘send a message’ to the community was improper. We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments. Indeed, had a timely objection been made, we may have found the Commonwealth’s comments to constitute reversible error.”
And in Scott v. Com., 2006 WL 3751391 (Ky.2006), unpublished, the prosecutor again argued that the jury should “send a message.” The court said that, “...had the issue been preserved, a more rigorous analysis would have been required. Thus, while such comments do not constitute manifest error in the instant case, we note that, generally, any benefit the Commonwealth perceives in utilizing such an argument is far outweighed by the risk of reversal on appeal.”
Compare those two cases with Barnes, supra, in which in court sustained 29 objections by defense counsel during the prosecutor’s closing argument, and admonished the jury 11 times. Nevertheless, the conviction was still reversed because the court refused to sustain an objection to the prosecutor’s statement to the jury that finding the defendant innocent would be the only crime greater than the murder itself.
What if the trial court forbids attorneys to object during closing arguments? “We cannot hold trial counsel strictly accountable to the rules regarding making contemporaneous objections when the record suggests counsel was repeatedly denied a reasonable opportunity to make a record.” Alexander v. Com., 864 S.W.2d 909, 915 (Ky.1993). Think about starting the trial with a detailed motion in limine regarding improper argument during closing, and if possible, offer to make avowals of the grounds for your objections.
REQUEST RELIEF! –. If an objection is overruled, the contemporaneous objection (RCr 9.22) preserves the issue on appeal. On the other hand, if an objection is sustained, there is no further issue preserved for appeal unless the defendant also then requests a mistrial or admonition which is then denied. “An admonition is appropriate only if the objection is sustained.” Barnes, supra, at 568. “In the absence of a request for further relief, it must be assumed that appellant was satisfied with the relief granted, and he cannot now be heard to complain.” Baker v. Com., 973 S.W.2d 54, 56 (Ky.1998). “[M]erely voicing an objection, without a request for a mistrial or at least an admonition, is not sufficient to establish error once the objection is sustained.” Hayes v. Com., 698 S.W.2d 827, 829 (Ky.1985). So request further relief!
The exact same situation obtains when a trial court offers an admonition and the defendant declines to accept it. If you request a mistrial and the court offers an admonition, accept the admonition if you want to, but make clear you are not waiving your motion for a mistrial.
Practice Tip: Being Explicit. Lest you think that you have already been told enough times to be clear and explicit about your position while speaking on the record, please note that, in some very recent decisions, remarks which would normally be understood as nothing more than ordinary politeness and civility have been interpreted on appellate review as waivers of some very important issues. In Alley v. Com., 160 S.W.3d 736 (Ky.2005), defense counsel spent a good deal of time arguing that his client should not be forcibly medicated to gain competency to stand trial. The trial court refused to rule on the issue, saying there was no proper motion before the court on the matter. Defense counsel’s response was “That’s fine. We understand.” The appellate court ruled that defense counsel had, by saying that, waived the issue he had fought over so long and hard. In Lattner v. Com., 2006 WL 2924653, (Ky.App.2006), unpublished, the defendant had testified that he was against the use of drugs. The prosecutor wanted to impeach the defendant with a former conviction for drug possession. Defense counsel objected. The trial judge responded by saying that he thought the defendant had opened the door to the impeachment by setting himself up as a “innocent lamb type guy.” Defense counsel’s response was, “That’s fine.” Even though the appellate court explicitly acknowledged that defense counsel had objected to the intended impeachment, it ruled that defense counsel had waived the issue on appeal by then saying “That’s fine.” So, be polite, but be explicit
IMPROPER CLOSING ARGUMENTS, EXAMPLES
The following is meant to be illustrative but not exhaustive.
Defining Reasonable Doubt - Counsel is not allowed to define reasonable doubt. Com. v. Callahan, 675 S.W.2d 391 (Ky.1984). Nevertheless, pointing out that “beyond a reasonable doubt” is different from “beyond a shadow of a doubt” is not an attempt to define reasonable doubt. It is, rather, simply to point out the obvious. Howell v. Com., 163 S.W.3d 442 (Ky.2005).
However, the use of an analogy is an attempt to define reasonable doubt, and it violates the 14th Amendment safeguard “against the dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” See, e.g., Rice v. Com., 2006 WL 436123, unpublished, in which the prosecutor used the example, during voir dire, of deciding to marry someone. See also Marsch v. Com., 743 S.W.2d 830 (Ky.1988) in which the prosecutor, during voir dire, used the example of himself as a hypothetical witness to an auto accident. “In all those cases [where this court found an impermissible attempt to define ‘reasonable doubt’], some attempt was made to use other words to convey to the jury the meaning of ‘beyond a reasonable doubt’.” Howell, supra, at 447, quoting Simpson v. Com., 759 S.W.2d 224, 226 (Ky.1988).
Arguing Legal Presumptions - The primary purpose of a statutory presumption for the Commonwealth is to enable the Commonwealth to overcome a directed verdict. A statutory presumption for the Commonwealth should not be used to compel an inference from a jury. They should not be included in jury instructions in any way which might lead a jury to infer that the Commonwealth need not prove every element of the offense beyond a reasonable doubt. County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), Com. v. Collins, 821 S.W.2d 488 (Ky.1991), Wells v. Com., 561 S.W.2d 85 (Ky.1978). Of course, the great exception to the rule that juries are not instructed on presumptions is that juries in every criminal case must be instructed on the presumption of innocence. RCr 9.56 (1).
Irrelevant Matters:
A lawyer shall not knowingly or intentionally allude to any matter that the lawyer does not reasonably believe is relevant. SCR 3.130-3.4(e).
Matters Not in Evidence:
A lawyer shall not knowingly or intentionally allude to any matter that will not be supported by admissible evidence. SCR 3.130-3.3(e).
A prosecutor may not mention facts prejudicial to the defendant that have not been introduced into evidence. Sommers v. Com., 843 S.W.2d 879 (Ky.1992), Bowling v. Com., 279 S.W.2d 23 (Ky.1955).
It was error for the prosecutor to argue there was a vast store of incriminating evidence which the jury was not allowed to hear because of the rules of evidence. Mack v. Com., 860 S.W.2d 275 (Ky.1993).
Where the trial court ruled that part of a tape recording was not admissible, it was error for the prosecutor to tell the jury he “wished” it could have heard those parts that had been excluded. Moore v. Com., 634 S.W.2d 426 (Ky.1982).
Misstatements of Law, Evidence:
It was improper for the prosecutor to misstate the testimony of the psychologist both on cross-examination and in closing argument. Ice v. Com., 667 S.W.2d 671 (Ky.1984).
A prosecutor misstated the law on insanity when he told the jury the test was whether the defendant knew right from wrong. Mattingly v. Com., 878 S.W.2d 797 (Ky.App.1994).
Personal Opinions, Beliefs, Knowledge:
A lawyer shall not state a personal opinion as to the justness of a cause, the credibility of a witness or the guilt or innocence of an accused. SCR 3.130-3.4(e).
It is always improper for the prosecutor to suggest the defendant is guilty simply because he was indicted or is being prosecuted. U.S. v. Bess, 593 F.2d 749 (6th Cir.1979).
It is improper for a prosecutor to tell the jury that he knows of his own personal knowledge that the persons referred to by the defendant’s alibi witness were “rotten to the core.” Terry v. Com., 471 S.W.2d 730 (Ky.1971).
Credibility and Character of Witnesses:
A lawyer shall not state a personal opinion as to the credibility of a witness, including the defendant. SCR 3.130-3.4(e).
The personal opinion of the prosecutor as to the character of a witness is not relevant and is not proper comment. Moore v. Com., 634 S.W.2d 426 (Ky.1982).
It is improper for a prosecutor to comment that he has known and worked with a police officer for a long time, that the officer is honest and conscientious, and that the officer’s word is worthy of belief. Armstrong v. Com., 517 S.W.2d 233 (Ky.1974).
When the defendant is on trial for possession of a controlled substance, it is improper for a prosecutor to try to make the defendant appear to be involved in trafficking. Jacobs v. Com., 551 S.W.2d 223 (Ky.1977).
It is error for the prosecutor to comment on the defendant’s spouse’s failure to testify. Gossett v. Com., 402 S.W.2d 857 (Ky.1966).
Failure of Accused to Testify:
The Commonwealth should not comment on the defendant’s failure to testify. Powell v. Com., 843 S.W.2d 908 (Ky.App.1992).
A prosecutor violates a defendant’s right to remain silent when he tells the jury, for example, that if the defendant, who was a passenger in the car, had really been innocent, he would have accused the other individual in the car of committing the crime. Churchwell v. Com., 843 S.W.2d 336 (Ky.App.1992).
A prosecutor violates a defendant’s right to remain silent when he tells the jury that the defendant would have denied ownership of the pouch containing drugs if he were innocent. Green v. Com., 815 S.W.2d 398 (Ky.App.1991).
In a joint trial, counsel for the co-defendant may not comment on the defendant’s failure to testify. Luttrell v. Com., 554 S.W.2d 75 (Ky.1977).
Inflammatory, Abusive Language:
It is error for a prosecutor to make demeaning comments about the defendant and defense counsel. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988). The prosecutor must stay within the record and avoid abuse of the defendant and counsel. Whitaker v. Com., 183 S.W.2d 18 (Ky.1944).
A prosecutor must not be permitted to make unfounded and inflammatory attacks on the opposing advocate. U.S. v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).
It is improper, for example, for a prosecutor to refer to a defendant as a “black dog of a night,” “monster,” “coyote that roamed the road at night hunting women to use his knife on,” and “wolf.” Sanborn v. Com., 754 S.W.2d 534 (Ky.1988).
A prosecutor may not encourage a verdict based on passion or prejudice, or for reasons not reasonably inferred from the evidence. Bush v. Com., 839 S.W.2d 550 (Ky.1992). See also Clark v. Com., 833 S.W.2d 793 (Ky.1991), Dean v. Com., 777 S.W.2d 900 (Ky.1989), Morris v. Com., 766 S.W.2d 58 (Ky.1989), Ruppee v. Com., 754 S.W.2d 852 (Ky.1988), and Estes v. Com., 744 S.W.2d 421 (Ky.1988).
Local Prejudice:
Reversal was required when the prosecutor argued in closing argument, “If you want a Clark County lawyer to come over here to defend a Clark County thief who breaks into and steals from an Estill County place of business, then that is your business, and if you want that then you will find this thief here not guilty.” Taulbee v. Com., 438 S.W.2d 777 (Ky.1969).
Golden Rule:
It is error for a prosecutor to urge jurors to put themselves or members of their families in the shoes of the victim. Lycans v. Com., 562 S.W.2d 303 (Ky.1978).
Send a Message:
In both Com. v. Mitchell, 165 S.W.3d 129 (Ky.2005), and Brewer v. Com., 206 S.W.3d 343 (Ky.2006), the Kentucky Supreme Court clearly indicated it had lost patience with this form of argument but could not reverse the cases because defense counsel did not object and the argument did not rise to palpable error. However, in McMahon v. Com., 2007 WL 4208652 (Ky.App.2007), decided Nov. 30, 2007, to be published, not yet final, the court reversed the defendant’s conviction for this kind of argument when defense did object and when there was no need for this type of argument because defense counsel had conceded there was sufficient evidence to convict.
Jury Responsibilities:
A prosecutor may not minimize a jury’s responsibility for its verdict or mislead the jury as to its responsibility. Clark v. Com., 833 S.W.2d 793 (Ky.1992).
A prosecutor may not argue to jurors that a not guilty verdict (or a guilty verdict on a lesser-included offense) is a violation of their oath. Goff v. Com., 44 S.W.2d 306 (Ky.1931), Barnes v. Com., 91 S.W.3d 564 (Ky.2002).
Effect of Verdict:
It is prosecutorial misconduct for a prosecutor to repeatedly refer the jury to the danger to the community if it turned the defendant loose. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988).
Neither the prosecutor, defense counsel, nor the court should relate to the jury the future consequences of a particular verdict anytime during a criminal trial. Woodward v. Com., 984 S.W.2d 477 (Ky.1998).
It is error for a prosecutor to urge the jury to convict in order to protect community values, preserve civil order, or deter future lawbreaking. U.S. v. Solivan, 937 F.2d 1146 (6th Cir.1991). It is error for a prosecutor to tell the jury that if they do not convict, they have no right to complain when they become victims of crime. Dennis v. Com., 526 S.W.2d 8 (Ky.1975).
It is error for a prosecutor to appeal to the community’s conscience in the context of the war on drugs and to suggest that drug problems in the community would continue if the jury did not convict the defendant. U.S. v. Solivan, 937 F.2d 1146 (6th Cir. 1991).
The Commonwealth is not at liberty to place upon the jury the burden of doing what is necessary to protect the community. King v. Com., 70 S.W.2d 664 (Ky.1934).
Demonstrations:
A demonstration during closing argument may repeat evidence already offered but cannot introduce new evidence. For example, a prosecutor cannot reveal the scar of the complaining witness, have the complaining witness reenact the crime, or have the complaining witness and the defendant stand together for the purpose of comparing their height. See, e.g., Price v. Com., 59 S.W.3d 878 (Ky.2001).
Reading Law to the Jury:
Counsel should not read extracts from the statutes or law books to the jury or offer dissertations on abstract rules of law. The only law counsel should argue is the jury instructions. Broyles v. Com., 267 S.W.2d 73 (Ky.1954), Reed v. Com., 131 S.W. 776 (Ky.1910).
CONTACT WITH JURORS
KRS 29A.310(2) prohibits contact between jurors and witnesses or officers of the court after they have been sworn. If this occurs, the proper procedure is for the court to hold a hearing. Henson v. Com., 812 S.W.2d 718 (Ky.1991), see also Combs v. Com., 198 S.W.3d 574 (Ky.2006). Likewise, jurors should not be contacted after they begin deliberations. KRS 29A.320(1), RCr 9.74. But see Combs v. Com., 198 S.W.3d 574 (Ky.2006), in which a juror personally delivered a verdict to the judge’s office in the mistaken belief that it was proper procedure.
After deliberations have begun, the officer in charge of the jury must swear to keep them together and to allow no one to communicate with them on any subject connected with the trial. RCr 9.68. The jury should not be placed in the custody of a sheriff or deputy who has been an important prosecution witness. Sanborn v. Com., 754 S.W.2d 534, 547 (Ky.1988), citing Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).
DELIBERATIONS
“[A]ny decision to allow the jury to have testimony replayed during its deliberations is within the sound discretion of the trial judge.” Baze v. Com., 965 S.W.2d 817 (Ky.1997).
However, all information given to the jury after deliberations have begun must be given in open court, before the entire jury, in the presence of the defendant, and with counsel. RCr 9.74
Sworn depositions should not go into the jury room because the jury may give greater weight to the written testimony than to the “live” testimony at the trial. Berrier v. Bizer, 57 S.W.3d 271 (Ky.2001), see also Welborn v. Com., 157 S.W.3d 608 (Ky.2005).
Likewise, transcripts of trial testimony, in places where the record is transcribed instead of videotaped, cannot go back into the jury room, but must be read to the jury in open court. St. Clair v. Com., 140 S.W.3d 510 (Ky.2004).
Transcripts of a defendant’s tape-recorded confession cannot go back into a jury room. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988), overruled on other grounds.
”Non-testimonial exhibits” may be allowed into the jury room. RCr 9.72, Burkhart v. Com., 125 S.W.3d 848 (Ky.2004) (the exhibit was a surveillance video from a security camera).
Providing the jury with any evidence not admitted into evidence during trial requires automatic reversal, and no prejudice need be shown. Mills v. Com., 44 S.W.3d 366 (Ky.2001).
DEADLOCK, THE “ALLEN CHARGE”
See RCr 9.57(1). As explained in Ali v. Com., 2007 WL 1159953, (Ky.2007), unpublished, this jury instruction is referred to as the “Allen charge,” based on a case in which the United States Supreme Court approved instructions which might be given to a deadlocked jury. See Allen v. U.S., 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Some defense attorneys object to the giving of this charge in the belief that the charge has a tendency to make deadlocking pro-defendant jurors cave in and change their vote. If that is your concern, you should object to giving the instruction and move for a mistrial on the grounds that the jury should not be coerced into rendering a verdict. Of course, the argument gets stronger the more times the judge sends the jury back to keep deliberating.
UNANIMOUS VERDICT
A defendant is entitled to a unanimous verdict under the 6th Amendment and Section 7 of the Kentucky Constitution. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). See also RCr 9.82(1). Unanimity becomes an issue when the jury is instructed that it can find the defendant guilty under either of two theories, since some jurors might find guilt under one theory, while others might find guilt under another. The rule is that if the evidence would support a conviction under either theory, the requirement of jury unanimity is satisfied. If the jury is instructed on a theory under which it could not have found guilt, however, then the requirement of unanimity is violated because, in that situation, there is no way to know that every juror voted for conviction under the proper theory. Davis v. Com., 967 S.W.2d 574 (Ky.1998). See also Wells v. Com., 561 S.W.2d 85 (Ky.1978), Boulder v. Com., 610 S.W.2d 615 (Ky.1980), Hayes v. Com., 625 S.W.2d 583 (Ky.1981), Burnett v. Com., 31 S.W.3d 878 (Ky.2000).
If a defect in a verdict is merely formal, the defense must bring the error to the court’s attention before the jury is discharged; but if the defect is one of substance, the error may be raised after the jury is discharged such as in a motion for a new trial. Caretenders, Inc. v. Com., 821 S.W.2d 83 (Ky.1991).
INCONSISTENT VERDICTS
In the Same Trial - The test here is basically the same as in the case of unanimous verdicts: what matters is not the logical consistency of the verdicts but the sufficiency of the evidence. Inconsistent verdicts are tolerated as long as there was sufficient evidence for the jury to find guilt on the guilty verdicts it returned. Com. v. Harrell, 3 S.W.3d 349 (Ky.1999), Fister v. Com., 133 S.W.3d 480 (Ky. 2003), both citing Dunn v. U.S., 284 U.S. at 393, 52 S.Ct. at 190, 76 L.Ed. at 358 (1932) and U.S. v. Powell, 469 U.S. at 67, 105 S.Ct. at 475, 83 L.Ed.2d at 467 (1984), for the proposition that “each count of an indictment should be regarded as a separate indictment, and thus consistency in a verdict is not necessary.”
In Separate Trials – Can a defendant charged with complicity be found guilty, as a matter of law, when all his co-defendants have already been tried and acquitted? The answer is “yes.” KRS 502.030 says: “In any prosecution for an offense in which the criminal liability of the accused is based upon the conduct of another person pursuant to ... KRS 502.020, it is no defense that: (1) Such other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense, or has an immunity to prosecution or conviction for such conduct....”
However, an exception to this rule seems to have been carved out in Robinson v. Com., 2007 WL 2459196 (Ky.App.2007), to be published, not yet final. In that case, the conviction of the principal had been reversed after the Kentucky Supreme Court ruled that, as a matter of law, no offense was committed. The Kentucky Court of Appeals held that since complicity requires the commission of an underlying offense, the defendant’s complicity conviction would have to be reversed as well.
TRUTH-IN-SENTENCING, KRS 532.055
Nature of Prior Convictions - The jury may be informed of the “nature” of the defendant’s prior convictions, but that term is generic, rather than specific, and is meant to include the “kind, sort, type, order, or general character of the offense.” Detailed testimony by the victim of the defendant’s prior assault on her exceeded the scope of the statute. Robinson v. Com., 926 S.W.2d 853, 855 (Ky.1996). Likewise, warrants and citations including factual information concerning the defendant’s prior convictions also exceeded the scope of the statute. Hudson v. Com., 979 S.W.2d 106 (Ky.1998).
Unlike KRE 609, which limits the age of prior convictions used for impeachment to ten years, there is no age limit on prior convictions for the purposes of truth-in-sentencing. McKinnon v. Com., 892 S.W.2d 615 (Ky.App.1995).
Proof of Prior Convictions - Proof of the defendant’s prior convictions in the form of a certified computer printout from the Kentucky State Police was admissible and certified copies of the judgments of conviction themselves were not necessary, despite the best evidence rule, in a case in which there was no dispute whatsoever as to the defendant’s prior convictions. Hall v. Com., 817 S.W.2d 228 (Ky.1991), overruled on other grounds.
It is error to allow the introduction of prior convictions which are still pending on direct appeal or have been granted discretionary review, but not if they are being attacked collaterally. This is true for truth-in-sentencing as well as for PFO purposes. Melson v. Com., 772 S.W.2d 631 (Ky.1989), Thompson v. Com., 862 S.W.2d 871 (1993), overruled in part by St. Clair, below, Kohler v. Com., 944 S.W.2d 146 (Ky.App.1997), Tabor v. Com., 948 S.W.2d 569 (Ky.App.1997).
The word “conviction” is ambiguous, however, and can refer either to an initial conviction after a guilty verdict or guilty plea, or it can refer to the more refined legal conception of a final judgment after all appeals have been exhausted. In some statutes, the word conviction refers to the former event. For example, a person is a “convicted felon” for purposes of the handgun statute (KRS 527.040) the moment the verdict or plea occurs. See Thomas v. Com., 95 S.W.3d 828, 829 (Ky.2003). Also, based on a meticulous reading of the phrase “prior record of conviction” in KRS 532.025(2)(a)(1), the Kentucky Supreme Court has ruled that prior convictions, for purposes of the aggravator which must be found before imposition of the death penalty is possible, are also merely “a plea of guilty accepted by the trial court or a jury’s or judge’s verdict of guilty.” St. Clair v. Com., 140 S.W.3d 510, 570 (Ky.2004), overruling in part Thompson. Melson, supra, was presumably not affected by the decision in St. Clair. (But see Hayes v. Com., 175 S.W.3d 574 (Ky.2005), in which the Kentucky Supreme Court seems to have applied St. Clair in a non-capital, truth-in-sentencing case.)
Out-of-state Convictions - On the other hand, a computer printout from another state showing the defendant’s record of convictions and also a number of dismissed charges was ruled inadmissible. The dismissed charges were not proper evidence, and the record did not meet the requirements of KRS 422.040. That statute requires records of out-of-state convictions to be certified by the clerk with the seal of the court and also certified by the “judge, chief justice, or presiding magistrate.” Robinson v. Com., 926 S.W.2d 853 (Ky.1996), Merriweather v. Com., 99 S.W.3d 448 (Ky.2003).
Juvenile Convictions - The provisions of KRS 532.055 allowing introduction of a defendant’s felony juvenile adjudications in a truth-in-sentencing hearing have been ruled unconstitutional. Manns v. Com., 80 S.W.3d 439 (Ky.2002).
Challenging Prior Convictions - When the prosecution offers evidence of prior convictions based on guilty pleas, the burden shifts to the defendant to show that the pleas were not valid. The Commonwealth is not required to prove both that the prior conviction occurred and that it was constitutionally proper. The defendant’s prior convictions were properly admitted when he failed to meet the burden of demonstrating the invalidity of the pleas. See Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), Dunn v. Com., 703 S.W.2d 874 (Ky.1986). This includes even misdemeanor convictions introduced for the purposes of truth-in-sentencing. McGinnis v. Com., 875 S.W.2d 518 (Ky.1994), overruled on other grounds.
The proper time to raise the question of the constitutional validity of a prior conviction is in a pretrial motion, and the trial court did not err in refusing to allow the defendant to put on evidence raising the issue when the defendant waited until the sentencing/PFO phase to do it. Com. v. Gadd, 665 S.W.2d 915 (Ky.1984).
Parole Eligibility – Although the truth-in-sentencing statute explicitly authorizes the prosecution to establish “minimum parole eligibility,” a defendant may also introduce such evidence. Boone v. Com., 780 S.W.2d 615, 617 (Ky.1989), Offut v. Com., 799 S.W.2d 815, 818 (Ky.1990).
Victims – Victim impact evidence is largely irrelevant to the issue of guilt or innocence and should be reserved for the penalty phase of the trial. Bennett v. Com., 978 S.W.2d 322 (Ky.1998). KRS 532.055 defines “victims,” pursuant to KRS 421.500(1). That statute defines a victim in one of four ways, but only allows for the testimony of one witness. Terry v. Com., 153 S.W.3d 794 (Ky.2005). Only one victim impact statement should be considered by the trial court.
Mitigation – Proper mitigation evidence does not include the sentences received by co-defendants for the same crime, Com. v. Bass, 777 S.W.2d 233, 236 (Ky.1989), or plea offers made by the prosecution, Neal v. Com., 95 S.W.3d 843, 847 (Ky.2003).
Preservation of Sentencing Error - Error which occurs at sentencing can be addressed by a motion to alter, amend or vacate a judgment under CR 59.05, which is applicable to criminal cases and must be filed within 10 days after entry of the final judgment. See, e.g., Crane v. Com., 833 S.W.2d 813, 819 (Ky.1992), in which the Supreme Court suggested that a motion to recuse the trial judge based on comments made prior to sentencing should have been raised in a CR 59.05 motion.
Bail Pending Appeal - RCr 12.78 permits the trial court to grant bail pending appeal in any case except one in which the defendant has been sentenced to either life or death. Defense counsel needs to request this at sentencing. An appellate court will not deal with the issue of bail unless “application to the trial court is not practicable,” or unless the trial court denied the request. In most situations, if the request has simply never been made at the trial court level, the court of appeals will send the defendant’s attorney back to the trial court.
KRS 532.070 allows a judge to convert an indeterminate sentence of one year on a Class D felony to a determinate sentence of 12 months in the local jail, if the prison sentence would be unduly harsh. This statute only applies to jury verdicts and is not applicable to guilty pleas. Bailey v. Com., 70 S.W.2d 414 (Ky.2002).
Practice Tip: Parole Eligibility. The Commonwealth might not present all the evidence relevant to parole eligibility to the jury. If it does not, and it applies in your case, make sure the jury also knows about such things as (1) lack of good time credit, (2) lack of parole eligibility until completing the sex offender treatment program, and (3) the additional 5-year period of conditional discharge.
PERSISTENT FELONY OFFENDER, KRS 532.080
For the relationship between truth-in-sentencing and PFO proceedings, see “Bifurcation.”
Burden of Proof - A defendant may be convicted by reasonable inferences which are a logical consequence of the evidence presented. The Commonwealth retains the burden of proving every element beyond a reasonable doubt, but jurors can make inferences based on the evidence. Martin v. Com., 13 S.W.3d 232 (Ky.2000), overruling Hon v. Com., 670 S.W.2d 851, which required proof of all elements of PFO by direct evidence. For example, proof of the defendant’s age at the time of a prior offense may be inferred from proof of the defendant’s date of birth. Maxie v. Com., 82 S.W.3d 860 (Ky.2002).
Challenging Prior Convictions - When the prosecution offers evidence of prior convictions based on guilty pleas, the burden shifts to the defendant to show that the pleas were not valid. The defendant’s prior convictions were properly admitted when he failed to do so. See Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992), Dunn v. Com., 703 S.W.2d 874 (Ky.1986).
The proper time to raise the question of the constitutional validity of a prior conviction is in a pretrial motion, and the trial court did not err in refusing to allow the defendant to put on evidence raising the issue when the defendant waited until the sentencing/PFO phase to do it. Com. v. Gadd, 665 S.W.2d 915 (Ky.1984), Diehl v. Com., 673 S.W.2d 711 (Ky.1984). However, see Graham v. Com., 952 S.W.2d 206, 209 (Ky.1997), especially the dissent, for a discussion of how complicated the case law on this subject has become: “the most conscientious of counsel is uncertain of whether to raise a challenge, what type of challenge is appropriate and what court to file in..” See also Hodges v. Com., 984 S.W.2d 100 (Ky.1998), in which failure to challenge a prior conviction upon the occasion of the first use of that conviction for enhancement purposes waives later attempts to challenge the same prior conviction. Uncounseled prior convictions appear to remain an exception to this rule. One should argue that uncounseled prior convictions can be attacked at any time, even collaterally. See also Brian Scott West, “Ignorance of the Law Is an Excuse: Suppressing Prior Guilty Pleas Under Boykin v. Alabama, The Advocate, vol. 23, no. 3, May 2001, pp. 50-56.
Sequence of Prior Offenses – In the case of prior convictions used for purposes of PFO, the prior offenses have to have resulted in convictions prior to the date of the current offense. Convictions which occurred after the current charge, but before the defendant’s sentencing on the current charge, cannot be used. Bray v. Com., 703 S.W.2d 478 (Ky.1985), see also Dillingham v. Com., 684 S.W.2d 307, 309 (Ky.App.1985). “[T]he philosophy underlying the legislation is that a person who commits a felony after having been convicted of a felony has doubt cast on his ability to be rehabilitated and that a person who commits a felony after having been convicted of a felony the second time may well be incorrigible and deserving of more extended incarceration. It has always been the progressive acts which so designate an individual.” Bray, at 479-80.
Identity – A name is direct prima facie evidence of the identity of a person. Braden v. Com., 600 S.W.2d 466 (Ky.App.1978). Once the case has been made, however, the burden shifts to the defendant to show he is not the person who was previously convicted. Jones v. Com., 457 S.W.2d 627, 631 (Ky.1970).
Merger of Prior Offenses – KRS 532.080(4) says that “two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.” So, what if the person is probated on his first prior offense, then commits his second prior offense while on that probation, then serves both sentences either concurrently or in an uninterrupted consecutive sentence? Those two prior offenses do not merge. The “concurrent/consecutive sentence break applies only to those who may have committed more than one crime but who have received their sentences for all of the crimes committed before serving any time in prison.” Adkins v. Com., 647 S.W.2d 502, 506 (Ky.App.1982). The same is true in the case of offenses committed while on parole. Williams v. Com., 639 S.W.2d 788, 790 (Ky.App.1982). The court noted that, “the rehabilitative efforts on his first conviction failed, the rehabilitative efforts on his second conviction failed, and he is, under the statute, a persistent felony offender in the first degree upon receiving his third conviction.” See also Combs v. Com., 652 S.W.2d 859 (Ky.1983).
A later-imposed concurrent sentence is deemed to have commenced at the beginning of the original sentence, so that, even if the second sentence standing alone would have fallen within the 5-year time period for use in PFO proceedings, the sentence instead began and ended with a prior sentence which did not fall within the 5-year period, when the two sentences ran concurrently to each other. Lienhart v. Com., 953 S.W.2d 70 (Ky.1997).
Merger of Prior Offenses and Double Jeopardy – When a defendant has twice been convicted for trafficking in a controlled substance, he can be convicted of both trafficking as a subsequent offender and PFO 2nd, even though the two prior convictions would merge into one conviction under the PFO statute. Morrow v. Com., 77 S.W.3d 558 (Ky.2002), overruling Gray v. Com., 979 S.W.2d 454 (Ky.1998).
Separate Indictments – A defendant may be indicted for PFO in an indictment separate from the current offenses. Price v. Com., 666 S.W.2d 749 (Ky.1984). Nevertheless, the defendant must at least be arraigned on the charge before he can be tried on it. The defendant has a right to notice of the charges. Hudson v. Com., 171 S.W.3d 743 (Ky.2005).
PFO CHECKLIST
1) At Least 21 Years Old at Time of Sentencing. See Hayes v. Com., 660 S.W.2d 5 (Ky.1983), in which it was not
error when defendant was not over 21 at the time of the offense but was over 21 at the time of sentencing.
2) Stands Convicted of a Felony for Current Offense. This has been interpreted to require that the defendant be
first sentenced on the underlying current offense before he can be convicted as a Persistent Felony Offender.
Com. v. Hayes, 734 S.W.2d 467 (Ky.1987), Davis v. Manis, 812 S.W.2d 505 (Ky.1991).
3) Prior Conviction Was for a Sentence of One Year or More. Out-of-state convictions that were misdemeanors in
North Carolina, but which carried sentences of up to 2 years, were felonies for PFO purposes when the
defendant received sentences of 18 months and 2 years, even if the sentences were probated. Ware v. Com., 47
S.W.3d 333 (Ky.2001). An indeterminate sentence of one year modified to a definite sentence of less than
one year under KRS 532.070(2) qualifies as a prior conviction for PFO purposes as well. Com. v. Doughty, 869
S.W.2d 53 (Ky.1994).
4) Defendant Was at Least 18 at the Time the Prior Offense Was Committed. “For purposes of the Penal Code, a
person is ‘over the age of 18’ from the first moment of the day on which his 18th birthday falls.” Garret v.
Com., 675 S.W.2d 1, 1 (Ky.1984).
5) PFO 1st, 2 Priors or 1 Prior Sex Crime as Defined by KRS 17.500; PFO 2nd, 1 Prior.
6) Prior Was Served Out within 5 Years of Date of Current Offense. For purposes of PFO 1st, only one of the prior
felonies has to meet this or one of the following criteria. Howard v. Com., 608 S.W.2d 62, 64 (Ky.App.1980).
OR
7) On Probation or Parole for the Prior Offense at Time of Current Offense.
OR
8) Discharged from Probation or Parole within 5 Years of Date of Current Offense.
OR
9) In Custody for Prior Offense at Time of Current Offense. See KRS 532.080(4), which says these offenses do not
merge into one offense with the prior offense for which the person was imprisoned.
OR
10) Escaped from Custody for Prior Offense at Time of Current Offense. This refers to offenses committed after an
escape. Escape charges themselves fall under the previous criteria of offenses committed while in custody.
Damron v. Commonwealth, 687 S.W.2d 138 (Ky.1985).
Practice Tip: Remember to renew a motion for directed verdict at the close of the PFO evidence. Although the jury is only determining a question of status, it is still making a finding of fact.
PRESENTENCE INVESTIGATION REPORTS (PSI)
Importance Of - There is not likely to be any document which will have a greater impact on the post-sentencing life of the defendant than the PSI. The contents of the PSI will affect: the classification the client will receive and what restrictions may come with that, what kind of work he will be allowed to do and where he can do it, what kind of statutory credit he will receive and, last but not least, whether he will be paroled. The PSI follows the client throughout the prison system.
For instance, upon in-processing at LaGrange, the inmate will be classified as to custody level (maximum, close, medium, restricted, or minimum). His classification will affect which institutions he can go to, job assignments, cell or dorm assignments, eligibility for furloughs, and eligibility for community-based rehabilitation and reassimilation programs. The classification is carried out on a scoring system of different categories in which heavy reliance is placed on the contents of the PSI. Information in the PSI can effect the client’s scores in such categories as “severity of current offense,” “prior assaultive offense history,” “escape history,” “alcohol/drug abuse,” and “prior felony incarceration.”
The “crime story” section of the PSI may also affect classification. For example, even if the client pled to Robbery 2nd Degree, which does not involve injury to the victim, the classification officer can read the “crime story” taken from the arresting officer’s citation and determine that an injury did occur and, on that basis, invoke KRS 197.140 to determine that the client is ineligible to work outside the walls of the prison.
The parole board is also often more interested in the alleged facts of the case than the charge to which the client ultimately pled. The board will even consider, against the client, the facts surrounding charges that were dismissed, if it appears they were only dismissed as part of a plea deal, and not because they were unfounded.
Waiving - RCr 11.02(1) says that a defendant may waive his PSI. On the other hand, KRS 532.050(1) says that a PSI cannot be waived, although it can be delayed until after sentencing upon written request of the defendant when the defendant will not be getting released from custody. This is not the contradiction it appears to be. On the one hand, a defendant can waive inspection and controversion of the PSI, Alcorn v. Com., 557 S.W.2d 624 (Ky.1977), and a court can sentence a defendant without one (although this is frowned upon, Fields v. Com., 123 S.W.3d 914 (Ky.App.2003).) On the other hand, a PSI will be prepared in every felony case, whether the defendant wishes to participate in the final result or not. The PSI will be written regardless of whether the defendant reviews it. So, do not waive review of the PSI unless the client is getting some more important benefit.
Practice Tip: PSI’s. When faced with misleading or incorrect information in a PSI, make sure to do the following:
1) Specifically identify what should be corrected or omitted. If the PSI was prepared from the original police reports but a jury found the client guilty of only a lesser offense, object to any reference to allegations concerning the originally charged offense.
2) Specifically inform the court of exactly what the PSI should say instead.
3) Make a motion on the record that only the amended PSI be submitted to the Department of Corrections. Memorialize the amendments in an order for the judge to sign, if necessary.
4) If the court denies your relief, make sure the record clearly reflects what you think the PSI should say.
5) Offer to help write the PSI. Offer to send information to be included on the PSI if it might be helpful to the client.
See, e.g., Mills v. Com., 2005 WL 2317982 (Ky.2005), unpublished, in which the Kentucky Supreme Court found it difficult to ascertain whether the corrected PSI had ever made it to the Department of Corrections.
