RUBEN RIOS SALINAS V. HON. GARY D. PAYNE CHIEF JUDGE, FAYETTE CIRCUIT COURT, ET AL
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2005-SC-0334-OA
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RUBEN RIOS SALINAS
V.
PETITIONER
ORIGINAL ACTION IN SUPREME COURT
HONORABLE GARY D. PAYNE,
CHIEF JUDGE, FAYETTE CIRCUIT COURT
RESPONDENT
AND
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
OPINION AND ORDER
Petitioner, Ruben Rios Salinas, petitions this Court for a writ prohibiting the
Honorable Gary D . Payne from submitting the death penalty as a possible punishment
at his retrial, scheduled to begin August 25, 2005, in the Fayette Circuit Court . For the
reasons set forth herein, we deny Salinas's petition .
In December 1999, Salinas was convicted in the Fayette Circuit Court of capital
kidnapping and murder, for which he received sentences of life without the possibility of
parole and life imprisonment, respectively. In 2002, Salinas's convictions were
overturned by this Court, in part, because the jury had not been properly instructed in
the penalty phase on the capital kidnapping charge. Salinas v. Commonwealth , 84
S .W .3d 913 (Ky. 2002), cert. denied, 538 U .S. 930, 123 S . Ct. 1585, 155 L . Ed. 2d 326
(2003). With respect to that error, we held :
[T]he murder of the victim of a kidnapping is an aggravating
circumstance authorizing capital punishment for the kidnapping
conviction . (Citations omitted) . Here, the guilt phase instruction
on capital kidnapping properly required the jury to find as an
element of that offense that the victim was not released alive.
KRS 509 .040(2). That is the element that enhances kidnapping
from a Class B felony to a capital offense . However, the penalty
phase instruction identified that same fact as the aggravating
circumstance authorizing capital punishment[ .]
As stated above, the fact "that the victim was not
released alive" is the element that enhances kidnapping from a
Class B felony to a capital offense . However, that fact is not an
aggravating circumstance necessary to authorize imposition of
capital punishment under KRS 532 .025(2) . Although there was
sufficient evidence for the jury to find the aggravating
circumstance of murder committed during the course of the
kidnapping, the instruction did not require that finding, and the
verdict did not include that finding .
Id . at 919-20 .
In other words, the death of the victim, while sufficient to enhance the charge to
capital kidnapping, is insufficient to warrant capital punishment. Rather, the jury had to
find that Salinas murdered the victim during the course of the kidnapping . In fact, the
jury did find Salinas guilty of murder . Nonetheless, the penalty phase kidnapping
instruction failed to state the required aggravator.
After the Commonwealth announced its intention to again seek the death penalty
on retrial, Salinas filed a motion in the circuit court to preclude such penalty, arguing
that double jeopardy principles barred the imposition of death . Citing this Court's
decision in Commonwealth v. Eldred , 973 S .W .2d 43 (Ky. 1998), cert. denied , 526 U.S .
1070, 119 S . Ct . 1466, 143 L . Ed . 2d 551 (1999), the trial court denied the motion .
Salinas thereafter filed the instant petition .
As acknowledged by the Commonwealth, this Court recently noted that double
jeopardy is an appropriate subject for a writ of prohibition . St. Clair v. Roark, 10 S.W.3d
482, 485 (Ky. 2000):
The court in which the petition is filed may, in its discretion,
address the merits of the issue within the context of the petition
for the writ, or may decline to do so on grounds that there is an
adequate remedy by appeal. Neither approach is mandatory
and the exercise of discretion may well depend on the
significance of the issue as framed by the facts of the particular
case .
As the issue is well-framed by the facts in this case, we deem it appropriate to address
it now rather than delay resolution until a possible appeal.
In Commonwealth v. Eldred , this Court held that the Commonwealth was not
precluded from seeking the death penalty on retrial if, in the original sentencing phase,
the jury had indicated in writing the finding of an aggravating circumstance beyond a
reasonable doubt, even though it did not choose to impose the death penalty . Id .
Although recognizing the implied acquittal exception under which a defendant convicted
of a lesser-degree offense cannot be convicted on retrial of a higher-degree offense,
Green v. United States, 355 U .S. 184, 78 S. Ct. 221, 2 L . Ed . 2d 199 (1957), the Eldred
opinion noted that such exception is a poor fit with Kentucky's capital sentencing
procedure:
Taken to its extreme, the implied acquittal theory results
in any sentence being an implied acquittal of any higher
sentence. . . . We reject any such outcome out of hand . Thus,
had Eldred's jury returned a recommendation of 20 years'
imprisonment, this recommendation would not have been an
implied acquittal of a term of years greater than 20 or an implied
acquittal of life . Nor would it have been an implied acquittal of
Life-25, even though a sentence of Life-25, like the death
penalty, requires a written finding of the existence of at least
one aggravating factor beyond a reasonable doubt.
Id . at 48 .
Further, as Eldred explains, the only relevant difference between the penalty
phase in a bifurcated felony trial versus a capital case is that a jury may not consider
death, life without parole, or life-25 unless the Commonwealth meets its burden of
proving one or more aggravating circumstances beyond a reasonable doubt. After the
Commonwealth has met that burden, the issue in both penalty phases is the same :
"What punishment is appropriate for the particular defendant? The difference in the
gravity of the offense committed in a capital case and the gravity of the corresponding
possible punishment does not in this case create a constitutional distinction ." Id.
Salinas's reliance on Arizona v. Rumsey , 467 U .S. 203,104 S. Ct. 2305, 81 L.
Ed . 2d 164 (1984) and Poland v. Arizona , 476 U .S. 147, 106 S. Ct. 1749, 90 L. Ed . 2d
123 (1986) is misplaced . Although the Supreme Court held in Rumse that an error of
law resulting in the trial judge's failure to find an aggravating circumstance was the
equivalent of an acquittal of the death penalty, the Court was also clear that the trial
judge's findings were that the state had failed to prove the existence of any aggravating
circumstances . Id , at 211, 104 S . Ct. at 2310 (citing Bullington v. Missouri , 451 U .S .
430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981)) . Here, the jury found Salinas guilty of
capital kidnapping and guilty of murder . The penalty phase instruction was erroneous in
failing to include the necessary language of murder in the course of a kidnapping .
Notwithstanding, even our opinion noted that there was sufficient evidence for the jury
to find the aggravating circumstance of murder committed in the course of kidnapping .
Salinas , 84 S .W .3d at 920 .
Salinas similarly misconstrues the holding in Poland as standing for the
proposition that a defendant may only be subjected to death on retrial if the jury
determined that death was the appropriate penalty during the first trial . In fact, the
Poland Court held that although there was insufficient evidence to support the
aggravating circumstance underlying Poland's death sentence, there was evidence in
the record to support another aggravating circumstance which the fact finder had
erroneously rejected . Poland , 476 U.S. at 156-57, 106 S. Ct. at 1756 . "It is true that the
sentencer must find some aggravating circumstance before the death penalty may be
imposed, and that the sentencer's finding, albeit erroneous, that no aggravating
circumstance is present is an 'acquittal' barring a second death sentence proceeding ."
Id . (citing Rumsey, id .). Unlike the decisions cited by Salinas, neither the jury nor this
Court on review ever made a determination that the Commonwealth failed to prove the
existence of an aggravating circumstance .
Salinas further argues that even if we hold that Eldred governs this case, it
should be overruled in light of recent United States Supreme Court decisions in
Apprendi v. New Jersey, 530 U .S. 466, 120 S . Ct. 2348, 147 L. Ed . 2d 435 (2000) ; Rinq
v. Arizona , 536 U .S . 584,122 S . Ct . 2428, 153 L. Ed. 2d 556 (2002); and Sattazahn v.
Pennsylvania , 537 U .S . 101, 123 S . Ct. 732, 154 L . Ed . 2d 588 (2003) . We disagree .
In Apprendi , the Supreme Court held that any fact that enhances a defendant's
penalty, other than a prior conviction, beyond the otherwise applicable statutory
maximum is deemed to be an element of the offense and must be found by the jury to
exist beyond a reasonable doubt . 530 U.S . at 490, 120 S. Ct. at 2363. A year later, in
Ring v. Arizona , the Apprendi decision was extended to death penalty cases. Id . In
Ring the Court stated that the jury, rather than the trial court, must make specific
findings regarding the existence of an aggravating circumstance before the death
penalty may be imposed . 536 U .S . at 589, 122 S. Ct. at 2432.
Finally, most recently in
Sattazahn , the Court noted that the crucial inquiry in determining whether a defendant is
subject to the death penalty on retrial when the first jury did not impose death, is
whether the jury made findings of fact in the first trial that "constituted an 'acquittal' of
the aggravating circumstances ." 537 U .S . at 109, 123 S. Ct. at 738. The Sattazahn
Court concluded that since the jury had deadlocked without reaching a decision
regarding aggravating circumstances (and the trial court thereafter imposed a life
sentence), Sattazahn was not "acquitted" for double jeopardy purposes and, as such,
the state could seek the death penalty upon retrial . Id.
We are of the opinion that the succession of United States Supreme Court cases
since our decision in Eldred does not change the effect of its holding . An "implied
acquittal" of the death penalty occurs only where the jury or reviewing court affirmatively
finds that the Commonwealth has failed to prove the existence of an aggravating
circumstance . If the jury has found that evidence of an aggravating circumstance was
proven beyond a reasonable doubt, but nonetheless imposes a sentence of less than
death, the Commonwealth simply cannot be precluded on double jeopardy grounds
from seeking the full range of penalties, including death, on retrial .
The jury herein found beyond a reasonable doubt that Salinas was guilty of
capital kidnapping and murder. And as previously stated, we held that there was
sufficient evidence for the jury to find the aggravating circumstance of murder
committed during the course of kidnapping, despite the fact that the penalty instruction
did not require such finding. As a result, the Commonwealth is entitled to seek the full
range of penalties, including death, at Salinas's retrial. "If the evidence is the same . . . .
the jury shall be instructed to the effect that capital punishment cannot be imposed
absent a finding that [Salinas] murdered [the victim] during the course of the kidnapping .
Salinas , 84 S .W.3d at 920.
Accordingly, for the foregoing reasons, Ruben Rios Salinas's petition for a writ of
prohibition is hereby denied .
All concur.
Entered : August 16, 2005.
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