STANLEY JACKSON, Ill V. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 15,200O
TO BE PUBLISHED
1999-SC-0605-MR
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STANLEY JACKSON, Ill
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
97-CR-1375-2 AND 98-CR-1085
V.
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT
AFFIRMING
Stanley Jackson, III, was convicted in the Fayette Circuit Court of second-degree
escape and of being a persistent felony offender (PFO) in the first degree.
He was
sentenced to five years’ imprisonment for the escape, which was enhanced to twenty
years by the PFO conviction. He appeals to this Court as a matter of right. Ky. Const.
§ 11 W)(b).
Jackson was indicted by a Fayette County grand jury in December of 1997 for
one count of first-degree robbery and one count of being a first-degree persistent felony
offender. During his pretrial incarceration, he was released on a six-hour pass and
failed to return. He was rearrested on August 10, 1998 and subsequently indicted for
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second-degree escape.
Over Appellant’s objection, the Fayette Circuit Court ordered
the robbery, PFO, and escape indictments consolidated for the purpose of trial.
Following a one-day trial, Appellant was acquitted of the robbery charge, but was
convicted of second-degree escape. During the penalty phase, the Commonwealth
presented evidence of two prior felony convictions, a 1991 conviction of theft by
unlawful taking and a 1986 conviction of complicity to first-degree robbery. The jury
returned a verdict sentencing Appellant to five years for second-degree escape,
enhanced to twenty years pursuant to a guilty verdict on the PFO charge. Appellant
asserts two claims of error on appeal, vim: (1) that he was unduly prejudiced by the
joinder for trial of his indictments for robbery and escape; and (2) that the PFO charge
should have been dismissed.
I. JOINDER.
The jury deliberated for five hours during the guilt phase of the trial, but for only
ten minutes during the penalty phase before finding Appellant guilty of first-degree PFO
and imposing the maximum enhanced sentence of twenty years. Appellant argues that
the jury’s “rush to judgment” in the penalty phase indicates they must have felt “duped”
after acquitting him of first-degree robbery in the guilt phase, then learning of his prior
convictions of theft and complicity to first-degree robbery during the penalty phase. He
posits that the jury concluded that they had mistakenly acquitted him of the robbery.
charge and that their decision to impose the maximum enhanced sentence of twenty
years was intended as punishment for both the escape and the robbery.
Criminal Rule 9.12 permits two or more indictments to be consolidated for trial if
the offenses could have been joined in a single indictment. Rule 6.18 permits joinder of
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two or more offenses in the same indictment if the offenses are of the same or similar
character or are based on the same acts or transactions connected together or
constituting parts of a common scheme or plan. A trial court has broad discretion with
respect to joinder and a decision in that regard will not be reversed absent a showing of
prejudice and clear abuse of discretion. Cannon v. Commonwealth, Ky., 777 S.W.2d
591, 596-97 (1989).
The joinder clearly did not prejudice Appellant with respect to the robbery
charge, because the jury acquitted him of that offense. Nor could it have prejudiced
him on the escape charge, because the evidence of the escape was uncontroverted at
trial. The same evidence of Appellant’s prior convictions would have been admissible in
the penalty phase of Appellant’s trial for escape regardless of joinder.
Appellant’s
speculation that the jury must have sentenced him to the maximum enhanced penalty
because they concluded from his prior convictions that they had mistakenly acquitted
him of the robbery charge is simply that -- speculation unsupported by any fact in the
record. “No conclusion of prejudice . . . can be supported by mere speculation.”
Kinser v. Commonwealth, Ky., 741 S.W.2d 648, 653 (1987), habeas aranted sub nom.
on other arounds, Vincent v. Parke, 942 F.2d 989 (6th Cir. 1991).
The jury’s relatively
brief deliberation of Appellant’s penalty virtually precludes the possibility of any redeliberation of the robbery charge and could as easily be explained by the facts that (1)
the penalty phase evidence was uncontroverted, and (2) the jury did not begin their’
penalty phase deliberations until the late hour of 1 I:19 p.m.
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II. PFO.
Appellant complains that although the first-degree robbery and first-degree PFO
charges were contained in the same indictment, the audiotape of the grand jury
proceedings does not reflect that any evidence supporting the PFO charge was
presented to the grand jury. His pretrial motion to dismiss the PFO count on this
ground was denied.
Criminal Rule 5.10 states that “[t]he grand jurors shall find an indictment where
they have received what they believe to be sufficient evidence to support it.”
Appellant
argues that the grand jurors could not possibly have believed that they had received
sufficient evidence to support the PFO indictment if no evidence at all was presented to
them. This issue was addressed and resolved in Rice v. Commonwealth, Ky., 288
S. W.2d 635 (1956):
[T]his court has on several occasions held that the court has
no power to go behind an indictment for the purpose of
inquiring into the competency of the evidence before the
grand jury. . . . [T]he court will not inquire into the legality or
sufficiency of the evidence on which an indictment is based
even if it is averred that no legal evidence was produced
before the grand jury.
Id. at 638 (citations omitted). Although the Court in Rice was addressing section 107 of
the former Criminal Code of Practice and its mandate that the grand jury “receive none
but legal evidence,” the logic and rationale of Rice applies as well to the requirement of
RCr 5.10. Both rules are “directed to the grand jury and not to the courts,” and
therefore it is not for the courts to look behind the face of the indictment.
Rice, supra,
at 638.
Appellant next cites RCr 5.16(l) which states that “[t]he attorney for the
Commonwealth shall cause all of the testimony before a grand jury to be recorded,”
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and RCr 5.16(2), which states that “[fjailure to have a record made . . . shall be ground
for dismissal of the indictment unless the Commonwealth can show good cause for the
failure.”
The Commonwealth’s attorney offered no explanation for the failure to record
the presentation of the PFO evidence to the grand jury.
omission required dismissal of the indictment.
Appellant asserts that this
However, the rule provides that “[fjailure
to have a record made . . . shall be around for dismissal of the indictment.” (Emphasis
added.) If dismissal were required under those circumstances, the rule would read:
“Failure to have a record made . . . shall result in dismissal of the indictment.” The rule
was not intended to require automatic dismissal, but only to establish a ground for
dismissal with the ultimate decision in that regard left to the sound discretion of the trial
court.
The PFO evidence consisted solely of the certified judgments of Appellant’s prior
convictions, not, m, factual testimony of an eye-witness to an offense. The fact of the
prior convictions was uncontroverted and Appellant does not assert that the information
contained in the PFO indictment was incorrect. Thus, he was not prejudiced by the
Commonwealth’s failure to record the grand jury evidence. We, therefore, conclude
that the trial judge did not abuse his discretion in denying Appellant’s motion to dismiss
the indictment.
Appellant further asserts error in permitting PFO enhancement of his sentence
for second-degree escape, because the PFO count was contained only in the
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indictment for robbery and not in the indictment for escape. In Price v. Commonwealth,
Ky., 666 S.W.2d 749 (1984), we addressed a similar argument:
While it is true that KRS 532.080 is an enhancement
provision and that a present felony conviction is required to
trigger its operation, this does not mean that a PFO charge
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cannot be set out in a separate indictment. If the legislature
had intended that PFO charges be presented only in the
indictment which charges the underlying substantive
offense, it could have set out this requirement in specific
terms just as it stated that a defendant’s status as a PFO is
to be determined in a proceeding ancillary to the proceeding
in which the defendant’s guilt on the substantive offense is
decided.
Id. at 750. The facts in Price were slightly different from those herein, in that the PFO
charge in Price was the sole count in a separate indictment rendered subsequent to
Price’s initial indictment for the underlying offense of robbery. Here, the PFO count was
included as a separate count in the initial indictment for robbery, whereas the
underlying offense of second-degree escape of which Appellant was ultimately
convicted was charged in a separate and subsequent indictment. We regard this
factual distinction as immaterial.
We interpret the PFO statute as requiring that if the
Commonwealth seeks enhancement by proof of PFO status,
the defendant is entitled to notice of this before the trial of
the underlying substantive offense. A separate indictment
meets this requirement just as does a separate count in the
indictment charging the substantive offense to which it
refers.
u. The PFO indictment here, though contained in a separate indictment than that
charging the underlying offense of which Appellant was convicted, gave Appellant
notice well before trial of the Commonwealth’s intent to seek enhancement of any
sentence imposed upon conviction of any underlying substantive offense. As in Price it
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is immaterial that the underlying offense was charged in a separate indictment than the
PFO charge.
Accordingly, the judgment of conviction and the sentence imposed by the
Fayette Circuit Court are affirmed.
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Cooper, Graves, Johnstone, and Wintersheimer, JJ., concur. Keller, J., concurs
in part and dissents in part by separate opinion. Stumbo, J., dissents by separate
opinion, with Lambert, C.J., joining that dissent and in which Keller, J., joins in part.
COUNSEL FOR APPELLANT:
V. Gene Lewter
Lettricea Jefferson-Webb
Fayette County Legal Aid, Inc.
111 Church Street
Lexington, KY 40507
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Kathryn Holland Dunnigan
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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RENDERED: JUNE 152000
TO BE PUBLISHED
1999-SC-0605MR
APPELLANT
STANLEY JACKSON, III
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HON. LEWIS G. PAISLEY, JUDGE
INDICTMENTS NO. 97-CR-1375-2 AND 98-CR-1085
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
While I concur with Section One of the majority opinion which holds that the trial
court properly joined the robbery and escape charges for trial, I disagree with the
majority’s analysis of RCr 5.16. Although I agree with Justice Stumbo’s interpretation
of RCr 5.16, I write separately to further discuss the authority cited by the majority and
to express my opinion that, in this case, Jackson could be retried upon remand as a
persistent felony offender (PFO) if the Commonwealth properly secured his
reindictment as a PFO.
I merely wish to supplement Justice Stumbo’s analysis of RCr 5.16 by
demonstrating that the authority cited by the majority opinion for its conclusion that “it is
not for the courts to look behind the face of the indictment,” was written in an era when
Commonwealth’s Attorneys had greater latitude with respect to the preservation of
grand jury testimony.
Rice v. Commonwealth,’ predates the adoption of RCr 5.16, and,
in Rice, our predecessor court did not address the issue now before this Court. The
majority correctly notes that the Rice court interpreted Section 107 of the former Code
of Practice in Criminal Cases, but ignores the relevance of Section 110 of the former
Code which allowed the Commonwealth’s Attorney sole discretion regarding whether
grand jury testimony was transcribed:
[Aluthority is hereby given to the Commonwealth’s attorney
to appoint a stenographer, who shall on order of the said
Commonwealth’s, attend any session of the grand
jury. . . and be present during the examination of any
witness or witnesses before the grand jury and shall make
full and correct notes of the testimony of the witnesses[.]*
The present Rules of Criminal Procedure require the Commonwealth’s Attorney to
record the testimony before the grand jury” and I believe RCr 5.16 requires the trial
court to dismiss an indictment when the Commonwealth’s Attorney fails to do so unless
good cause is shown for the failure.4
The majority’s interpretation of RCr 5.16 renders it
meaningless.
I agree with Justice Stumbo that the trial court should have set aside Jackson’s
PFO indictment, and Jackson, therefore, cannot be retried as a PFO under Fayette
Circuit Court Indictment Number 98-CR-1085 I disagree, however, with Justice
Stumbo’s suggestion that, if this Court reversed Jackson’s PFO conviction for failure to
abide by RCr 5.15, the Commonwealth could never seek PFO enhancement of
‘KY., 288 S.W.2d 635 (1965).
*The Code of Practice in Criminal Cases § 1 lO.(Emphasis added).
3RCr 5.16(l).
4RCr 5.16(2).
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Jackson’s sentence for second degree escape. While I would reverse Jackson‘s first
degree PFO conviction, I do not believe such a reversal would preclude the
Commonwealth from seeking reindictment of Jackson as a PFO for the purpose of
enhancing the penalty for the underlying escape offense.
Although the PFO statute requires a separate proceeding from the proceeding
that resulted in the sentence to be enhanced,5 and expresses a preference for
conducting PFO proceedings before the same jury that imposed the sentence to be
enhanced,‘j the statute recognizes that such procedure is not always possible and
authorizes, for good cause, the PFO proceedings to be conducted before a new jury
empaneled for that purpose.7
I can find no reason that the Commonwealth, if
necessary, could not seek a reindictment of the PFO charge since the defendant
undisputedly had notice prior to his trial that the Commonwealth would seek
enhancement of any felony sentence imposed on the underlying charges.
We have previously held that a PFO charge may properly be presented by an
indictment separate from the indictment for the underlying substantive offense:
KRS 532.080, the PFO statute, requires that a defendant
be charged as a persistent felon, but does not require that
the charge be included in the same indictment which
charges the underlying substantive offense. While this
procedure may be preferred, we are aware of no cases
‘KRS 532.080(l). (“When a defendant is charged with being a persistent felony
offender, the determination of whether or not he is such an offender and the
punishment to be imposed . . . shall be determined in a separate proceeding from that
proceeding which resulted in his last conviction.“!&)
‘ld.(“Such proceeding shall be conducted before the court sitting with the jury
that found the defendant guilty of his most recent offense . . . .“ld.)
‘ld.(“[U]nless the court for good cause discharges that jury and impanels a new
jury for that purpose.“M.)
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holding that failure to include a PFO charge in the indictment
charging the underlying substantive offense renders a
subsequent PFO conviction void. The only cases cited by
Price which touch upon this issue were decided well before
enactment of KRS 532.080 and are not controlling. While it
is true that KRS 532.080 is an enhancement provision and
that a present felony conviction is required to trigger its
operation, this does not mean that a PFO charge cannot be
set out in a separate indictment. If the legislature had
intended that PFO charges be presented only in the
indictment which charges the underlying substantive
offense, it could have set out this requirement in specific
terms just as it stated that a defendant’s status as a PFO is
to be determined in a proceeding ancillary to the proceeding
in which the defendant’s guilt on the substantive offense is
decided.
We interpret the PFO statute as requiring that if the
Commonwealth seeks enhancement by proof of PFO status,
the defendant is entitled to notice of this before the trial of
the underlying substantive offense. A separate indictment
meets this requirement just as does a separate count in the
indictment charging the substantive offense to which it
refers.
The real issue in this case is whether Price was
substantially prejudiced by the Commonwealth’s procedure
of separately indicting him for first-degree robbery and as a
first-degree PFO. Given the fact that Price was arraigned on
the PFO charge nearly one full month before he proceeded
to trial, we do not conclude that he was in any way deprived
of notice of or an opportunity to defend against the charge.’
Although KRS 532.080 indicates a legislative preference that PFO proceedings be
conducted before the same jury that found the defendant guilty of the underlying
substantive offense9
and suggests a preference that a PFO charge be indicted prior to
the trial of the underlying substantive offense, the legislature did not specifically require
8Price v. Corn., Ky., 666 S.W.2d 749, 750 (1984).
‘Supra note 6.
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such a procedure, and the realities of criminal prosecution require procedural
flexibility.”
In holding that West Virginia’s procedure of allowing an indictment of a PFO
charge subsequent to a conviction of the underlying substantive offense did not violate
due process, the United States Supreme Court stated:
Even though an habitual criminal charge does not state a
separate offense, the determination of whether one is an
habitual criminal is ‘essentially independent’ of the
determination of guilt on the underlying substantive offense.
Thus, although the habitual criminal issue may be combined
with the trial of the felony charge, ‘it is a distinct issue, and it
may appropriately be the subject of separate determination.’
If West Virginia chooses to handle the matter as two
separate proceedings, due process does not require
advance notice that the trial on the substantive offense will
be followed by an habitual criminal proceeding. As
interpreted by its highest court, West Virginia’s recidivist
statute does not require the State to notify the defendant
prior to trial on the substantive offense that information of his
prior convictions will be presented in the event he is found
guilty.”
Under the circumstances of this case, the Commonwealth should be allowed to seek
reindictment of Jackson for first degree PFO because Jackson had notice, prior to his
trial on the underlying substantive offense, that the Commonwealth would seek
enhancement of any felony conviction. With such notice, Jackson would not, therefore,
be prejudiced by his reindictment.
“Ovler v. Boles, 368 U.S. 448, 452-453, 82 S.Ct. 501, 503-504 (1962) (“Any
other rule would place a difficult burden on the imposition of a recidivist penalty.
Although the fact of a prior conviction is within the knowledge of the defendant, often
this knowledge does not come home to the prosecutor until after the trial, and in many
cases the prior convictions are not discovered until the defendant reaches the
penitentiary.” Id. at 368 U.S. 448, 452 note 6.).
“Ovler v. Boles, supra note 10 (citations omitted).
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I would reverse Jackson’s first degree PFO conviction and the twenty year
sentence imposed, but affirm the second degree escape conviction and remand the
case to the trial court for resentencing, not only on the underlying escape charge, but if
the Commonwealth secures reindictment of the first degree PFO charge, and Jackson
is found to be a first degree PFO, then for resentencing as a persistent felony offender
as well.
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RENDERED: JUNE 152000
TO BE PUBLISHED
1999-SC-0605MR
APPELLANT
STANLEY JACKSON, III
V.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
97-CR-1375-2 and 98-CR-1085
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. I disagree with the majority opinion on both issues
raised by Appellant. First, although joinder of offenses is within the sound discretion of
the trial court, there are limits to that discretion. Sears v. Commonwealth, Ky., 561
S.W.2d 672, 674 (1978) (citing Riasby v. Commonwealth, Ky., 495 S.W.2d 795 (1973)
and Caraill v. Commonwealth, Ky., 528 S.W.2d
735 (1975)). Here, the offenses of
robbery and escape were clearly not of same or similar character. Nor were the
charged crimes based upon the same acts or transactions, or part of a common
scheme or plan. The offenses were not closely related in time - the robbery occurred
on October 30, 1997, whereas the escape occurred June 24, 1998. While it is true’that
evidence of the escape would have been admissible in the robbery trial as evidence of
Appellant’s guilt, NaDier v. Commonwealth, Ky., 206 S.W.2d 53 79-80 (1947), the
converse is not true - evidence of the robbery would not have been admissible in the
escape trial. Rather, the jury would have heard simply that Appellant was incarcerated
pending a trial on undisclosed charges.
Here, as in Sears v. Commonwealth, supra, the joinder of the escape charge
with the armed robbery charge was clearly error. Sears, 561 S.W.2d
at 674. Unlike in
Sears, which held the error harmless due to the overwhelming evidence of guilt on all
charges, the prejudice here was obvious and overwhelming. The majority concludes
that no prejudice occurred here because Appellant was acquitted of the robbery and
because the evidence of escape was uncontroverted. With this much, I agree.
However, Appellant does not claim he was prejudiced in the guilt phase of the trial, but
only in the penalty phase. The jury, which deliberated for five hours on the guilt phase
issues, clearly struggled with its decision to acquit Appellant of the robbery charge. It is
disingenuous to pretend the jury then turned a blind eye to the robbery acquittal during
the penalty phase and sentenced Appellant to the maximum enhanced penalty of 20
years solely on the escape count, after learning that Appellant had two previous
convictions for robbery and theft. The majority holds that Appellant’s contention of
prejudice in the sentencing phase is mere speculation. I disagree and believe the
prejudice to be obvious to anyone with common sense. Clearly the jury’s decision to
sentence Appellant to an enhanced sentence of twenty years was not intended to
punish him solely for the escape and his PFO status, but also for the robbery charge of
which it has just acquitted him. As the prejudice resulting from the improper joinder of
the robbery and escape charges is clear, I would reverse Appellant’s sentence for
escape and remand for a new trial on the sentencing issue.
Secondly, I must object to the majority’s holding that the trial court’s failure to
dismiss the PFO indictment was not error. The language of RCr 5.16 is clearly
mandatory. The Commonwealth “shall” record the grand jury testimony. Failure to do
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so “shall” be ground for dismissal of the indictment “unless the Commonwealth can
show good cause for the failure.” (Emphasis added). Here, the prosecuting attorney
did not even attempt to explain the failure, and the trial court let the failure pass without
question. This was clearly error.
Appellant’s maximum sentence would only have been five years had the PFO
indictment been dismissed. The majority attempts to avoid this necessary result by
distinguishing the language of RCr 5.16(2)
from hypothetical language of its own
invention. This approach is result-oriented, short-sighted, and a departure from the law
as it is plainly written. No matter how unpalatable the proper resolution of a case may
be, this Court is bound to enforce the mandatory language of our criminal rules. As
Appellant was clearly prejudiced by the trial court’s failure to dismiss the PFO
indictment upon Appellant’s timely request and clear recitation of the criminal rule
precisely on point, I would prohibit retrial of the PFO charge upon remand for the new
sentencing trial on the escape conviction.
Lambert, C.J., joins. Keller, J., joins in part.
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