COMMONWEALTH OF KENTUCKY v. DAVID A. RAY
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RENDERED: November 25, 1998; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001979-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 94-CR-002842
DAVID A. RAY
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * * * * * * * * * * * * * *
BEFORE:
ABRAMSON1, BUCKINGHAM, and COMBS, Judges.
BUCKINGHAM, JUDGE.
The Commonwealth of Kentucky appeals from an
order of the Jefferson Circuit Court granting David A. Ray’s
motion to dismiss a criminal indictment against him on the ground
of double jeopardy.
After a careful review of the record and the
applicable law, we reverse and remand.
In November 1994, a grand jury indicted Ray and Darryl
Robbins on one felony count of first-degree assault in violation
1
Judge Abramson concurred in this opinion prior to leaving
the Court on November 22, 1998.
of Kentucky Revised Statute (KRS) 508.010 and KRS 502.020.
The
indictment charged Ray and Robbins with intentionally or wantonly
shooting Arthur Stevenson, Jr., while acting alone or in
complicity with each other.
Ray testified at trial that he shot
Stevenson in self-defense, but his testimony and claim of selfdefense were disputed by the Commonwealth.
The trial court instructed the jury to find Ray not
guilty or to find him guilty of first-degree assault, seconddegree assault (wanton belief in self-protection), fourth-degree
assault (reckless belief in self-protection), second-degree
assault (wanton), or assault under extreme emotional disturbance.
While the jury was deliberating, it sent a note to the trial
judge stating “[w]e cannot reach a verdict on David Ray, signed
Thomas B. Butler, 6-13-97.”
The jury was then called into the
courtroom, and the foreman stated that the jury was hopelessly
deadlocked on a final verdict as to Ray but that it had reached a
verdict acquitting Robbins.
Since the jury was unable to reach a
verdict in his case, the court declared a mistrial as to Ray and
the jury was released.
The court then reviewed the verdict forms and noticed
that the jury had signed and dated the verdict form on the charge
of first-degree assault and had found Ray not guilty of that
offense.
blank.
The verdict forms on the remaining offenses were left
The court then had the jurors brought back into the
courtroom and polled regarding the unanimity of their verdict on
the charge of first-degree assault.
The polling revealed that
the not-guilty verdict on the first-degree assault charge
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instruction was unanimous.
The court again declared a mistrial,
and the jury was released.
Ray’s counsel subsequently filed a motion to dismiss
the indictment on the ground of double jeopardy under the Fifth
Amendment of the U. S. Constitution and § 13 of the Kentucky
Constitution.
Ray argued that the return of the not-guilty
verdict on the first-degree assault charge constituted an
absolute acquittal and barred further prosecution.
The
Commonwealth filed a response arguing that the jury’s verdict of
acquittal on the first-degree assault charge did not bar retrial
on the remaining lesser included offenses submitted to the jury.
Agreeing with Ray that further prosecution was barred by double
jeopardy, the trial court entered an order dismissing the
indictment.
This appeal by the Commonwealth followed.
The Fifth Amendment to the U. S. Constitution provides
in relevant part that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb[.]”
Section
13 of the Kentucky Constitution likewise provides that “[n]o
person shall, for the same offense, be twice put in jeopardy of
his life or limb . . . .”
These two provisions “are identical in
the import of their prohibition against double jeopardy.”
v. Commonwealth, Ky., 703 S.W.2d 870, 872 (1985).
Jordan
These
constitutional provisions “protect a criminal defendant from
three distinct abuses:
(1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same
offense after conviction,; and (3) multiple punishments for the
same offense.”
Hourigan v. Commonwealth, Ky., 962 S.W.2d 860,
-3-
862 (1998), citing United States v. Halper, 490 U.S. 435, 109
S.Ct. 1892, 104 L.Ed.2d 487 (1989).
Jeopardy attaches when a jury is impaneled and sworn.
Lear v. Commonwealth, Ky., 884 S.W.2d 657, 661 (1994), citing
Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).
Once jeopardy attaches, prosecution of a defendant before a jury
other than the original jury or contemporaneously-impaneled
alternates is barred unless 1) there is a “manifest necessity”
for a mistrial or 2) the defendant either requests or consents to
a mistrial.
KRS 505.030(4); Leibson v. Taylor, Ky., 721 S.W.2d
690, 693 (1986); United States v. Dinctz, 424 U.S. 600, 606-07,
96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976).
A well-established
situation of “manifest necessity” involves a hung jury or a jury
unable to reach a verdict.
Richardson v. United States, 468 U.S.
317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); Gray v. Goodenough,
Ky., 750 S.W.2d 428, 429 (1988).
Thus, the principle of double
jeopardy does not bar a subsequent retrial where the jury has
failed to reach a verdict in the initial trial.
In the case sub judice, the jury rendered a partial
verdict unanimously finding Ray not guilty of first-degree
assault but reached no verdict on the remaining lesser included
offenses.
A partial verdict where the jury finds guilt or
innocence on one or more charges but is unable to reach a verdict
on the remaining charges does not bar a retrial on the charges
for which no verdict was rendered.
2
See Richardson, supra.2
The
Richardson was tried on two counts of distributing a
controlled substance and one count of conspiracy to distribute a
(continued...)
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issue in the case sub judice, however, is whether double jeopardy
prohibits a retrial on the offenses of second-degree assault,
fourth-degree assault, or assault under extreme emotional
disturbance merely because they are lesser included offenses of
the first-degree assault offense on which the jury acquitted Ray.
Uncharged lesser offenses are necessarily included in a charged
offense “if the lesser offense involves fewer of the same
constituent elements than the charged greater offense so that the
proof necessary to establish the greater offense will of
necessity establish every element of the lesser offense.”
v. Commonwealth, Ky.App., 904 S.W.2d 239, 244 (1994).
Cheser
See also
KRS 505.020(2)(a).
Ray’s argument to the trial court was that the verdict
acquitting him on the charge of first-degree assault had the
effect of acquitting him on the lesser included offenses.
The
“implied acquittal” component of double jeopardy was introduced
in the seminal case of Green v. United States, 355 U.S. 184, 78
S.Ct. 221, 2 L.Ed.2d 199 (1957).
and first-degree murder.
Green was indicted for arson
The trial court instructed the jury
that it could find him guilty of either first-degree murder or
second-degree murder under the original murder count.
The jury
convicted Green of arson and second-degree murder and left the
verdict form on first-degree murder blank.
2
The murder conviction
(...continued)
controlled substance. The jury acquitted Richardson of one
charge but was unable to reach a verdict on the two remaining
charges. The U.S. Supreme Court held that a retrial on the two
remaining charges following the partial verdict was not barred by
double jeopardy. 468 U.S. at 323 and 325-26, 104 S.Ct. at 308586.
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was reversed on appeal, and Green was convicted of first-degree
murder on retrial.
The Supreme Court held that double jeopardy barred the
retrial on the first-degree murder charge because the conviction
on the lesser second-degree murder charge represented an implied
acquittal of the first-degree murder charge.
The jury’s guilty
verdict on the second-degree murder charge necessarily implied
acquittal on the first-degree murder charge.
See United States
v. Ham, 58 F.3d 78, 85 (4th Cir. 1995), cert. denied, 516 U.S.
986, 116 S.Ct. 513, 133 L.Ed.2d 422 (1995) (“[a] jury’s failure
to decide an issue will be treated as an implied acquittal only
where the jury’s verdict necessarily resolves an issue in the
defendant’s favor.”).
Arguments similar to Ray’s argument that the jury’s
acquittal on the greater offense and its failure to reach a
verdict on the lesser offenses constitutes an implied acquittal
of all charges have been rejected by several courts.
In the case
of United States v. Gooday, 714 F.2d 80 (9th Cir. 1983), cert.
denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 884 (1984), the
defendant was indicted for first-degree murder.
The trial court
instructed the jury on the lesser included offenses of seconddegree murder, voluntary manslaughter, and involuntary
manslaughter.
The jury acquitted Gooday of first-degree murder but
could not reach a verdict on the remaining lesser offenses.
court rejected Gooday’s argument that because he had been
acquitted on the only offense explicitly stated in the
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The
indictment, he could not be retried on the lesser offenses.
The
court held that double jeopardy did not bar retrial on the lesser
offenses because the mistrial on those offenses was due to a
deadlocked jury and the lesser offenses should be treated as if
they had been specified in separate counts of the indictment.
Id. at 83.
The Gooday court distinguished Green by noting that
the Supreme Court merely prohibited retrial on the greater
offense of first-degree murder after the jury rendered a verdict
on the lesser offense and did not deal with retrial on a lesser
offense.
Id. at 82.
Courts in other jurisdictions have adopted
the reasoning in Gooday.
See Tennessee v. Seagroves, 691 S.W.2d
537 (Tenn. 1985); State v. Grabowski, 644 A.2d 1282 (R.I. 1994);
and Andrade v. Superior Court, 183 Ariz. 113, 901 P.2d 461 (Ariz.
App. 1995).
In the case sub judice, the jury clearly acquitted Ray
of the offense for which he was indicted but was unable to reach
a verdict on the remaining lesser included offenses.
The issue
of double jeopardy in this situation is a matter of first
impression in Kentucky, and we are persuaded by Gooday and cases
from other jurisdictions which hold that an acquittal on a
greater offense does not bar a retrial on lesser included
offenses for which the jury was unable to reach a verdict.
As
the Kentucky Supreme Court stated in McGinnis v. Wine, Ky., 959
S.W.2d 437 (1998), “the concept of acquittal by implication
climbs up the ladder, not down.”
-7-
Id. at 439.
The order of the Jefferson Circuit Court is reversed,
and this case is remanded for a retrial on the lesser included
offenses.
All CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. B. Chandler, III
Attorney General
Frankfort, KY
No Brief filed
Carol H. Cobb
Spec. Asst. Attorney General
Louisville, KY
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