FREDERICK MILLER V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : MAY 21, 2009
TO BE PUBLISHED
'$UyrrMr
(~Vurf of "Pfir
2007-SC-000048-TG
It
K~.(~a..fwr ~. C.
APPELLANT
FREDERICK MILLER
V.
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN GRISE, JUDGE
NO. 03-CR-00204
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
Appellant, Frederick Miller, appeals his convictions of four (4)
counts of third-degree rape and one (1) count of third-degree sodomy
enhanced by one (1) count of being a Persistent Felony Offender (PFO),
first-degree, as a matter of right . Ky . Const. § 110(2) (b) . He was
sentenced to twenty (20) years imprisonment .
BACKGROUND
Appellant was charged with one (1) count of first-degree rape,
seven (7) counts of third-degree rape, two (2) counts of third-degree
sodomy, and of being a PFO, first-degree . These charges were the result
of a sexual relationship, from March 2002 until October of 2002, between
Appellant and a young girl, C .O., who was under the legal age of consent .
The two met in 2001 and eventually became friends. This
friendship soon turned sexual, during the course of which C.O . was
fifteen (15) years of age and Appellant was over twenty-one (21) .
In September of 2002, Warren County police interviewed C.O .
about the nature of the relationship . At first C.O. denied any sexual
contact, but later admitted to it. Subsequently, she recanted, asserting
she made up the allegations against Appellant . Then, C.O . recanted her
recantation, acknowledging that she and Appellant did have a sexual
relationship .
At trial, C.O . testified to several instances of sexual contact with
Appellant. According to C .O ., all of the instances were consensual,
except one. Appellant was convicted of one (1) count of third-degree
rape, as a lesser included offense of the first-degree rape charge, three (3)
of the six (6) third-degree rape charges,' one (1) count of the two (2)
third-degree sodomy charges, and of being a PFO in the first-degree . He
was acquitted of the remaining charges and sentenced to a total of
twenty (20) years, from which this appeal follows.
Appellant alleges the court erred, in that: (1) the jury instructions
lacked specificity and thus denied him a unanimous verdict and due
process of law; (2) there was insufficient evidence to convict him of all the
charges; (3) he was prejudiced by the court's refusal to instruct the jury
on attempted sodomy in the third-degree ; (4) his constitutional right to a
1 One of the seven (7) counts of third-degree rape was dismissed prior to
submission to the jury.
2
speedy trial was violated; (5) the court erred in failing to dismiss the PFO
charge; and (6) he was unduly prejudiced by the Commonwealth's
penalty phase closing argument . Upon review, we reverse Appellant's
convictions for reasons that shall be set forth herein .
I . Improper Jury Instructions
Appellant first alleges the identical jury instructions for the six (6)
counts of third-degree rape and two (2) counts of third-degree sodomy
lacked such factual differentiation that they denied him a unanimous
verdict and thus, due process of law, because there is no assurance that
the jurors were voting for the same factually distinct crime under each of
the indistinguishable instructions . Appellant concedes the issue was not
properly preserved by his motion for directed verdict on grounds of
insufficiency of the evidence. Seav v . Commonwealth , 609 S .W.2d 128,
130 (Ky. 1980) ; Combs v. Commonwealth, 198 S.W.3d 574, 578-579 (Ky.
2006) . Therefore, Appellant requests palpable error review pursuant to
RCr 10.26.
Under RCr 10 .26, an unpreserved error may be reviewed on appeal
if the error is "palpable" and "affects the substantial rights of a party."
Even then, relief is appropriate only "upon a determination that manifest
injustice has resulted from the error." Id. An error is "palpable," only if
it is clear or plain under current law. Brewer v. Commonwealth, 206
S .W.3d 343 (Ky. 2006) . Generally, a palpable error "affects the
substantial rights of a party" only if "it is more likely than ordinary error
to have affected the judgment." Ernst v . Commonwealth, 160 S .W.3d
3
744, 762 (Ky. 2005) . We note that an unpreserved error that is both
palpable and prejudicial, still does not justify relief unless the reviewing
court further determines that it has resulted in a manifest injustice; in
other words, unless the error so seriously affected the fairness, integrity,
or public reputation of the proceeding as to be "shocking or
jurisprudentially intolerable ." Martin v. Commonwealth, 207 S .W:3d 1, 4
(Ky. 2006) .
In this regard, "[i]t is [] elementary that the burden is on the
government in a criminal case to prove every element of the charged
offense beyond a reasonable doubt and that the failure to do so is an
error of Constitutional magnitude ." Miller v. Commonwealth , 77 S.W.3d
566, 576 (Ky. 2002) . Plainly, a defendant cannot be convicted of a
criminal offense except by a unanimous verdict. Ky. Const. § 7; Cannon
v. Commonwealth, 291 Ky. 50, 163 S .W.2d 15 (1942) ; RCr 9 .82(l) .
Therefore, we have held that:
[w]hether the issue is viewed as one of insufficient evidence,
or double jeopardy, or denial of a unanimous verdict, when
multiple offenses are charged in a single indictment, the
Commonwealth must introduce evidence sufficient to prove
each offense and to differentiate each count from the others,
and the jury must be separately instructed on each charged
offense.
Miller, 77 S.W.3d at 576.
Prior to our recent decision in Harp v. Commonwealth , 266 S.W.3d
813 (Ky. 2008), it was possible for an instructional error such as this to
be "cured" by the Commonwealth's introduction and explanation of the
identifying characteristics from which the jury could determine the
4
existence of facts proving each of the offenses, rendering any error in the
instructions harmless . See Bell v. Commonwealth, 245 S .W.3d 738, 744
(Ky. 2008) . Then, in Dixon v. Commonwealth, 263 S .W.3d 583, 593 (Ky.
2008), we recognized that "the arguments of counsel are not [now]
sufficient to rehabilitate otherwise erroneous or imprecise jury
instructions" because the arguments of counsel are not evidence. Harp
further corrected dictum in Bell which supported the proposition that
counsel could "cure" defects in identical instructions in closing
argument, reaffirming the proposition that:
a party claiming that an erroneous jury instruction, or an
erroneous failure to give a necessary jury instruction [is
harmless error], bears a steep burden because we have held
that "[i]n this jurisdiction it is a rule of longstanding and
frequent repetition that erroneous instructions to the jury
are presumed to be prejudicial; [thus,] an appellee claiming
harmless error bears the burden of showing affirmatively
that no prejudice resulted from the error."
Harp, 266 S .W.3d at 818 .
Thus, it is now settled that a trial court errs in a case involving
multiple charges if its instructions to the jury fail to factually
differentiate between the separate offenses according to the evidence.
Combs, 198 S.W.3d at 580 . Here, because the trial court used identical
jury instructions on multiple counts of third-degree rape and sodomy,
none of which could be distinguished from the others as to what
factually distinct crime each applied to, Appellant was presumptively
prejudiced . Nor has the Commonwealth met its burden to show
affirmatively that "no prejudice resulted from the error." Harp, 266
S.W.3d at 818. Therefore, the identical jury instructions, here, can not
be considered harmless .
[I]t must be evident and clear from the instructions and
verdict form that the jury agreed, not only that [Appellant]
committed one count of sodomy, but also exactly which
incident they all believed occurred [and voted for] .
Otherwise, [Appellant] is not only denied a unanimous
verdict, but is also stripped of any realistic basis for
appellate review of his conviction for sodomy. In other
words, without knowing which instance of sodomy is the
basis of his conviction, [Appellant] cannot rationally
challenge the sufficiency of the evidence on appeal.
Bell, 245 S .W .3d at 744 .
Being error, we now hold such instructional error as this to be
palpable error Id. "[T]he instructional error explained above . . .
constituted palpable, reversible error." Id. ; cf. Commonwealth v.
Davidson , --- S.W .3d ----, 2009 WL 424931 1, 3 (Ky. February 19,
2009) .2 Yet, that is not to say that every error in jury instructions rises
to the level of palpable error.
As this Court noted in Nichols v. Commonwealth , 142 S.W .3d 683,
691 (Ky. 2004), an alleged error is not reviewable under RCr 10.26
unless (1) it is "[a] palpable error," and (2)
"a determination is made that
manifest injustice [has] resulted from the error." By definition, the word
"palpable" means "[e]asily perceived ; obvious ." Id. (quoting American
Heritage Dictionary of the English Language 946 (4th ed. 2000)) . Thus, a
"palpable error" is an error that is easily perceived or obvious . Id. In
Brock v. Commonwealth, 947 S .W.2d 24, 28 (Ky. 1997), this Court
2 As Davidson is not yet final, this opinion must be held until it is.
6
"interpreted the requirement of `manifest injustice' as used in RCr 10 .26 .
. . to mean that the error must have prejudiced the substantial rights of
the defendant, i .e., a substantial possibility exists that the result of the
trial would have been different ." (internal citation omitted)
Here, it is obvious that the identical jury instructions used in this
case patently failed to adequately differentiate the alleged instances of
multiple third-degree rape and sodomy. Therefore, the error was
palpable. Further, as the trial court's error "prejudiced the substantial
rights of the defendant," the use of identical jury instructions resulted in
manifest injustice, potentially depriving Appellant of his right to a
unanimous verdict and to challenge the sufficiency of the evidence on
appeal. Id.
Thus, we reverse Appellant's convictions for third-degree rape and
sodomy, as well as, their enhancement by virtue of the finding of
Persistent Felony Offender (PFO) first-degree and remand for a new trial
consistent with this opinion.
Having found cause for reversal, we will consider such other issues
as may call for dismissal, or are capable of repetition .
II. Insufficiency of the Evidence
Appellant alleges there was insufficient evidence to convict him of
four (4) counts of third-degree rape . Having reviewed the evidence under
the appropriate standard, there is no merit to this argument as there was
clearly sufficient evidence for the crimes actually charged . The error in
this case was in the jury instructions, not the sufficiency of the evidence .
7
The standard for determining whether the trial court has properly
overruled a motion for directed verdict "is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) . It is
the jury's responsibility to weigh the credibility of the evidence . Clement
Brothers Construction Co . v. Moore, 314 S.W.2d 526, 530 (Ky. 1958) .
So far as the question of the sufficiency of the evidence
offered here to sustain the conviction is concerned, we point
to the fact that Kentucky follows the common law rule that
the unsupported testimony of the prosecutrix, if not
contradictory or incredible, or inherently improbable, may be
sufficient to sustain a conviction .
Stoker v. Commonwealth, 8 28 S .W.2d 619, 624 (Ky. 1992) (quoting
Robinson v. Commonwealth, 459 S .W.2d 147, 150 (Ky. 1970)) . We will
further address these charges by reference to the location of the sexual
encounter.
a. Super 8 Incident
Appellant claims that the sexual encounter that, according to
C .O .'s testimony, occurred at the Super 8 motel can not be classified or
punished as third-degree rape . He contends that C.O . never testified to
penetration or consent pertaining to the incident at the Super 8 motel
and therefore the trial court should have granted Appellant's motion for a
directed verdict on this charge . We disagree .
KRS 510 .060 criminalizes third-degree rape. It requires
penetration for a conviction; however, there is no requirement of
testimony specifically describing penetration. "A fact may be proved by
circumstances no less than by words, and this rule is applied to the
question of penetration just as it is in other questions of fact arising in
criminal cases." Williams v. Commonwealth, 202 Ky . 664, 261 S.W. 18,
19(1924) .
Here, the prosecutor asked C.O . if she and Appellant ever went to a
hotel to have sex. C.O . testified that she and Appellant had sex in two (2)
different hotels on three (3) separate occasions . C .O. did not offer
testimony specifically describing penetration at the Super 8, but that is
not required for a third-degree rape conviction. Given her previous
descriptions of sex, C.O .'s testimony to the effect that she and Appellant
had sex at the hotel was sufficient. Id. C.O .'s testimony was not
contradicted, incredible, or inherently improbable . Viewing the evidence
in a light most favorable to the prosecution, a motion for directed verdict
was not warranted as there was sufficient evidence to support this
charge of third-degree rape.
b . Other Third-Degree Rape Charges
Appellant next argues that there was insufficient evidence to
support the other three (3) counts of third-degree rape . These charges
include two (2) sexual encounters at the Best Western Hotel and another
incident on the hood of Appellant's car.3 Yet, as in subsection (a), C.O.'s
C.O. testified to an incident of consensual sex that occurred in
Jackson's Orchard. C .O. testified that it was daytime, during the summer, her
brother was home, and she arranged for Appellant to pick her up. Appellant
pulled his car off the road and the two had sex on the hood of his car.
9
3
unsupported testimony is sufficient, in and of itself, to support a thirddegree rape conviction. Thus, Appellant's arguments are without merit .
c. One Count of Third-Degree Sodomy
Appellant next argues that there was insufficient evidence to
convict him of third-degree sodomy and, thus, the trial court should have
granted Appellant's motion for a directed verdict on this charge. We
disagree .
At trial, C .O. testified to two counts of sodomy, one oral and one
anal. Appellant argues that the oral sodomy testified to referred to an
encounter which was outside of the time frame specified by the
indictment. Admittedly, from review of the record, it appears that C .O.
did not testify to the exact date of the oral sodomy; however, it seems
C .O . got confused on the stand and did not remember the exact date of
this incident.4 We note, however, that when the prosecutor asked her if
she ever gave Appellant oral sex in his car in the specified time frame,
she answered in the affirmative.
Thus, pursuant to our holding in Stoker, this evidence is sufficient
to support the charge of third-degree sodomy. 828 S .W.2d at 624 . This
is because it is the jury's responsibility to weigh the credibility of C .0 -'s
testimony. Clement Brothers, 314 S .W.2d at 530. A rational trier of fact
could have believed the oral sodomy occurred during the time frame
We have previously held that "proof of the precise dates on which the
offenses were committed is not required of a child sexual abuse victim where
the evidence is `ample to separately identify the various offenses charged."'
Miller, 77 S.W.3d at 576 (quoting Hampton v. Commonwealth , 666 S .W.2d 737,
740 (Ky. 1984)) .
10
charged in the indictment . Thus, when C.O .'s testimony is taken in a
light most favorable to the prosecution, a directed verdict was not
warranted as there was sufficient evidence of third-degree sodomy.
Therefore, Appellant's claim is without merit.
d. Lesser Included Offense Pertaining to First-Degree Rape
Appellant's final insufficiency argument regarding the first-degree
rape charge for the "bathroom incident," alleges that there was
insufficient evidence to support an instruction on the lesser included
offense of third-degree rape. We address this issue as it is capable of
repetition . However, the issue was not properly preserved, so we will
review it under the palpable error standard . RCr 10 .26 .
During trial, C .O. testified to numerous consensual sex acts and
one non-consensual sex act. The non-consensual act happened in the
bathroom of Appellant's home . C.O . had refused to have sex with
Appellant, but Appellant refused to take no for an answer. C .O . locked
herself in the bathroom in an attempt to stop Appellant's sexual
advances . Unfortunately, Appellant was nonetheless able to gain access
to the bathroom . C .O. continued to tell Appellant that she did not want
to have sex, but she was overpowered . C .O. testified that she told him
no, and told him to stop, but he did not and eventually penetrated her.
The trial court instructed the jury on both first and third-degree
rape for this incident. Rape in the first degree, however, occurs when the
defendant engages in sexual intercourse with another: (1) by forcible
compulsion; or (2) who is incapable of consent because they are
11
physically helpless or less than twelve years old . KRS 510 .040
(emphasis added) . Rape in the third degree occurs when a defendant has
consensual sexual intercourse with another person who is: (1) mentally
retarded; (2) less than sixteen years old, when the defendant is twentyone years old or more. . . . KRS 510 .060 (emphasis added) .
C .O .'s testimony was the only evidence admitted at trial. She
testified that the intercourse was non-consensual, and Appellant testified
that he never had sexual contact with C .O . "An instruction on a lesser
included offense is required only if, considering the totality of the
evidence, the jury might have a reasonable doubt as to the defendant's
guilt of the greater offense, and yet believe beyond a reasonable doubt
that he is guilty of the lesser offense ." Houston v. Commonwealth, 975
S.W.2d 925, 929 (Ky. 1998) (quoting Wombles v. Commonwealth , 831
S .W .2d 172, 175 (Ky. 1992)) (emphasis added) .
We note, however, that it has long been held that the trier of fact
has the right to believe the evidence presented by one litigant in
preference to another. King, v. McMillan , 293 Ky. 399, 169 S .W.2d 10
(1943) . The trier of fact may believe any witness in whole or in part.
Webb Transfer Lines, Inc. v. Taylor, 439 S .W.2d 88, 95 (Ky. 1968) . The
trier of fact may also take into consideration all the circumstances of the
case, including the credibility of the witness . Haves v. Hates , 357
S.W.2d 863, 866 (Ky. 1962) .
Therefore, having weighed the evidence in this case, the jury was
entitled to believe the sexual encounte r at issue was not forcible rape . It
12
was within the jury's province to conclude Appellant and C.O . had
"consensual" sex while she was under the age of consent, especially given
the numerous consensual sexual encounters to which C .O. testified.
Thus, under any standard, there was sufficient evidence to support the
charge of third-degree rape.
III. Failure to Instruct on the Lesser Included Offense of Attempted
Sodomy in Third-Degree
Appellant next argues that, in relation to his third-degree anal
sodomy charge, he was entitled to a jury instruction on attempted
sodomy in the third-degree. Appellant claims that the evidence at trial
supports this instruction because C.O. never testified to penetration. For
the following reasons, we disagree .
"The trial court is required to instruct the jury on lesser included
offenses when requested and justified by evidence ." Wombles, 831
S .W.2d at 175 (quoting Martin v. Commonwealth , 571 S.W.2d 613, 615
(Ky. 1978)) . Here, however, the evidence did not support a lesser
included offense .
At trial, C.O . testified that Appellant, "tried to stick it in her butt."
A jury could reasonably infer that he attempted to penetrate her anus
but she stopped him before that could happen . Appellant did not offer
any evidence against this. In fact, he vehemently denies ever having any
sexual contact with C .O. However, "(p]enetration is not a requirement
under the sodomy statute." Bills v. Commonwealth , 851 S.W .2d 466,
470 (Ky. 1993) . The only requirement is contact. Id . Thus, our holding
in Bills is dispositive .
C .O . testified Appellant tried to have anal intercourse with her, but
she told him to stop because it hurt. Appellant made no attempt to
refute C.O .'s testimony, he simply denied ever having sexual contact with
her. Thus, an instruction on attempted sodomy is unsupported by the
evidence and no error occurred.
IV. Speedy Trial
a. Sixth Amendment
Appellant next alleges that his constitutional right to a fast and
speedy trial, enumerated by the Sixth Amendment of the United States
Constitution and KRS 500 .110, was violated. We disagree.
Under both the United States and Kentucky Constitutions, a
defendant's right to a speedy trial is analyzed under the four-prong
balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972) . The
four factors to be considered in a speedy trial analysis are: 1) length of
the delay; 2) reason for the delay; 3) defendant's assertion of his right to
a speedy trial ; and 4) prejudice to the defendant . Barker, 407 U .S . at
530 .
i. Length of Delay
Regarding the first factor, in this case we deem the thirty-five (35)
month delay between the indictment and the beginning of the trial to be
presumptively prejudicial. See Bratcher v. Commonwealth , 151 S .W.3d
332, 344 (Ky. 2004) (holding an eighteen (18) month delay in a murder
14
case to be presumptively prejudicial). "That prejudice, however, is not
alone dispositive and must be balanced against the other factors ."
Parker v . Commonwealth, 241 S .W.3d 805, 812 (Ky. 2007) .
"`Presumptive prejudice' does not necessarily indicate a statistical
probability of prejudice; it simply marks the point at which courts deem
the delay unreasonable enough to trigger the Barker enquiry." Dog eg tt v.
United States, 505 U.S. 647, 652 (1992) .
ii. Reasons for Delay
We now turn to the next factor of the Barker inquiry, the reasons
for the delay. This is a fact-intensive analysis because "any inquiry into
a speedy trial claim necessitates a functional analysis of the right in the
particular context of the case." Barker, 407 U.S . at 522 . This is because
"[t]he right of a speedy trial is necessarily relative . It is consistent with
delays and depends upon circumstances . It secures rights to a
defendant . It does not preclude the rights of public justice." Beavers v .
Haubert, 198 U.S. 77, 87 (1905) .
Thus:
Closely related to length of delay is the reason the
government assigns to justify the delay. Here, too, different
weights should be assigned to different reasons. A deliberate
attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government . A more
neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such
circumstances must rest with the government rather than
with the defendant. Finally, a valid reason, such as a
missing witness, should serve to justify appropriate delay.
Barker, 407 U.S. at 531 .
15
We must look to the events that caused the delay to determine
whether this factor weighs in favor of the prosecution or the Appellant.
2003
'
At the time Appellant was indicted for the charges at hand, he was
already under a previous indictment for other unrelated charges . 5 In
June 2003, the Commonwealth elected to try the previous indictment
before addressing the indictment at hand. In July 2003, Appellant wrote
a letter to the court informing it of his desire for a speedy trial. This
request was premature for either indictment. Appellant had only been
incarcerated for about five (5) months awaiting trial. After the trial court
received the letter, in October of 2003, Appellant's original counsel,
Nicholas Brown, withdrew from the case, citing irreconcilable differences
with Appellant. In November 2003, Leslie Rudloff was appointed
counsel. Shortly after being appointed, Rudloff was allowed to withdraw
due to a breakdown in the attorney-client relationship . On November 10,
2003, Terry Boeckham entered an appearance as Appellant's attorney.
2004
In February 2004, Appellant was convicted for the first indictment.
On February 5, 2004, a hearing was scheduled and a trial date was set
for July 2004 . Prior to the trial, on June 10, 2004, Boeckham asked for
a continuance because his wife was having surgery. Appellant objected
s
Appellant was indicted three months prior to this indictment by a
Warren County Grand Jury for Failure to Comply with the Sex Registry and as
a Persistent Felony Offender in the First Degree . He was ultimately sentenced
to ten (10) years incarceration.
16
and requested to be appointed co-counsel in order to proceed with the
trial on the scheduled date . In his appointment motion, Appellant
asserted his right to a speedy trial, pursuant to the Sixth Amendment.
On July 1, 2004, Appellant withdrew his motion. In August 2004,
Appellant's counsel filed a motion to dismiss due to the complaining
witness's recantation of her complaint. A hearing was scheduled for
September 27, 2004, but the Commonwealth asked for a continuance
because of conflicting trial dates in another court. The hearing was
rescheduled for October 5, 2004, but, by that time, the complaining
witness had recanted her recantation, causing Appellant's counsel to ask
for a continuance . Another hearing on the matter was scheduled for
November 22, 2004, which was rescheduled again for December 13,
2004 . At the December hearing, the trial court set a tentative date for
the hearing of Appellant's motion to re-notice its motions and, in
addition, set a trial date for May 24, 2005 .
2005
On January 24, 2005, the defense asked to re-notice its motions .
A hearing to re-notice was set for March l, 2005 . Appellant was,not
transported on March 1, and this hearing finally took place on March 16,
2005. The next hearing was scheduled for March 31, 2005, but both
parties agreed to cancel and reschedule it for April 29, 2005. On April
20, 2005, the Commonwealth asked for a continuance due to the
retirement of the attending attorney, to which the defense had no
objection. The parties again agreed to reschedule the next hearing to
17
June 7, 2005 in an attempt to settle . In July 2005, Boeckham was
replaced. There is no evidence on record as to why this happened . In
August of 2005 a pretrial hearing was held . In September of 2005, the
Commonwealth responded to Appellant's speedy trial motion.
The trial commenced on January 10, 2006 .
Analysis
Reviewing the record, we find no deliberate attempt, on the
Commonwealth's behalf, to delay or hamper the defense. The majority of
these delays were caused by the Appellant and his counsel. Very few, if
any, could be attributed to negligence and one, the failure to produce
Appellant on March 1, 2005, could be attributed to overcrowded courts .
However, Barker requires that we analyze all these delays together and
decide where to place the weight. With the majority of the delays being
appropriate, or caused by the defense, and only one actually caused by
negligence or overcrowding, the trial court was acting within its
discretion in refusing to weigh the delays heavily against the
Commonwealth . While it is true that the delays were tedious and
plentiful, on balance, however, we find that the reasons for the delay
weigh in favor of the Commonwealth .
iii. Assertion of the Right
Whether and how a defendant asserts his right is closely
related to the other factors we have mentioned. The strength
of his efforts will be affected by the length of the delay, to
some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always
readily identifiable, that he experiences . The more serious
the deprivation, the more likely a defendant is to complain .
18
The defendant's assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether
the defendant is being deprived of the right. We emphasize
that failure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial .
Barker, 407 U.S. at 531-532 .
Even though the two pro se motions Appellant claims to have filed
are absent from the record, we will err on the side of caution and deem
that Appellant did assert his right, satisfying this requirement. We note
that the assertion of the right to a speedy trial is not dispositive,
however, as "no single one of these factors is ultimately determinative by
itself." Gabow v . Commonwealth , 34 S .W.3d 63, 70 (Ky. 2000) (overruled
in part on other grounds by Crawford v . Washington, 541 U .S . 36, 60-61
(2004)) .
iv. Prejudice to the Defendant
The final factor of the Barker analysis is the prejudice suffered by
the defendant because of the delay.
Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect. This Court has identified three such
interests : (i) to prevent oppressive pretrial incarceration; (ii)
to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired. Of
these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness
of the entire system. If witnesses die or disappear during a
delay, the prejudice is obvious. There is also prejudice if
defense witnesses are unable to recall accurately events of
the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can
rarely be shown.
Barker , 407 U.S . at 532 .
19
The defendant's first enumerated interest is to prevent oppressive
pretrial incarceration. Appellant argues that because he was
incarcerated during the whole delay, this interest was infringed upon .
We note, however, Appellant would have been incarcerated anyway as he
was serving a ten (10) year sentence on a previous conviction. The
oppressiveness of this incarceration is not what the Sixth Amendment
was intended to protect. See St. Clair v. Commonwealth , 140 S .W .3d
510, 528 (Ky. 2004) .
The second interest is to minimize anxiety and concern of the
accused. It is apparent from the record that Appellant was getting
anxious about his trial and wanted the trial to begin. We agree with
Appellant that this interest was not protected . However, the delay was
largely unattributable to the Commonwealth . The defense was
responsible for much of the delay . Moreover, the Commonwealth is not
responsible for the hesitancy of the complaining witness who recanted
the allegations of sexual abuse, and then recanted her recantation .
The last, and most important of these interests, is to limit the
possibility that the defense will be impaired because of delay. Appellant
claims he was prejudiced by the delay because he could not call all of his
witnesses . Yet, he does not give any details as to how the delay caused
his witness to be unavailable. Our precedent clearly holds that
speculative and generic claims are insufficient to support a claim of
prejudice . See Bratcher, 151 S .W .3d at 345 ("Conclusory claims about
the trauma of incarceration, without proof of such trauma, and the
20
possibility of an impaired defense are not sufficient to show prejudice . As
we noted above, a long delay, while creating `presumptive prejudice'
sufficient to continue the Barker analysis, does not necessarily create
real prejudice to a defendant.") ; see also Preston v. Commonwealth, 898
S.W.2d 504, 507 (Ky. App. 1995) ("The possibility of prejudice alone is
not sufficient to support the position that speedy trial rights have been
violated . It is the burden of the defendant to establish actual prejudice.") ;
United States v. Loud Hawk, 474 U .S . 302, 315 (1986) (holding that the
"possibility of prejudice is not sufficient to support respondents' position
that their speedy trial rights were violated. In this case, moreover, delay
is a two-edged sword . It is the Government that bears the burden of
proving its case beyond a reasonable doubt. The passage of time may
make it difficult or impossible for the Government to carry this burden.") .
"A long delay, while creating `presumptive prejudice' sufficient to
continue the Barker analysis, does not necessarily create real prejudice
to a defendant." Bratcher, 151 S.W.3d at 345.
Upon consideration of all the Barker factors, we find that Appellant
was not denied his Sixth Amendment right to a speedy trial in this case.
b. KRS 500.110
With respect to Appellant's claim that his right to a speedy trial
under KRS 500.110 was violated, we have previously held, "that statute
only applies when a defendant is incarcerated for one offense and a
detainer has been lodged against him for another offense." Gabow, 34
S.W.3d at 69 . Although Appellant alleges that a detainer was lodged
21
against him in June of 2004, there is no evidence of this in the record .
The record does reveal, however, that a detainer was filed against
Appellant on September 9, 2005 . The trial began on January 10, 2006,
well within the 180 days provided for by KRS 500 . 110 . Therefore,
Appellant's KRS 500 .110 claim is without merit. Thus, Appellant's right
to a speedy trial was not infringed upon under either the Sixth
Amendment of the United States Constitution or KRS 500 . 110 .
V. Failure to Dismiss PFO
Appellant next alleges the trial court erred in failing to dismiss the
PFO indictment because the prior convictions relied upon failed to meet
the requirements for purposes of PFO enhancement. We disagree.
"A review of the verdict forms and the potential interpretation the
jurors gave them involves consideration of the instructions they were
given. The inquiry we make involves what a `reasonable juror' would
understand the charge to mean." Wilson v. Commonwealth , 836 S.W.2d
872, 892 (Ky. 1992) (overruled on other grounds by St. Clair v. Roark, 10
S .W.3d 482 (Ky. 1999) (citing Frances v. Franklin, 471 U .S . 307 (1985)) .
At issue is Appellant's case from the Franklin Circuit, case number
86-CR-190 . There, Appellant was convicted of attempted first-degree
sodomy and sentenced to fourteen (14) years incarceration. Appellant
claims that the Franklin County jury failed to sentence him on the
underlying felony and sentenced him solely as a second-degree PFO .
However, after reviewing the verdict form from that case, it is apparent
22
that the jury sentenced Appellant on the underlying felony as well. The
Franklin County verdict form stated:
(a) We the jury find the Defendant, Frederick L. Miller,
Not Guilty of being a Persistent Felony Offender in the
2nd degree . We fix his punishment on his conviction
of Criminal Attempt to Commit Sodomy in the 1 st
Degree, at
years confinement in the penitentiary .
(b) We the jury find the Defendant, Frederick L . Miller,
Guilty of being a Persistent Felony Offender, 2nd
Degree, and fix his punishment at
years in the
penitentiary.
A reasonable juror could have read this form and understood it to
mean that the second choice was a conviction of the felony, with an
enhancement of PFO second-degree.
Moreover, even if the jury from the Franklin Circuit is deemed to
have sentenced Appellant solely on the PFO charge, it is still not
reversible error. In Montgomery v. Commonwealth , 819 S.W.2d 713 (Ky.
1992), we held that a jury's failure to set a penalty for the underlying
offense did not violate the provisions of the PFO statute . "The error here,
if there was one, was a procedural matter which we need not address in
the absence of a contemporaneous objection ." Montgomery , 819 S.W .2d
at 721 . Here, there was no contemporaneous objection in the Warren
County proceedings, or in the Franklin County trial .
The trial court was correct in its ruling.
VI. Improper Closing Argument
Lastly, Appellant claims that he was denied his right to a fair trial
because of an improper penalty phase closing argument by the
23
prosecution . Appellant argues that "the prosecution meant to
dehumanize him and instill the jury with fear and minimize its
sentencing responsibility" when the prosecutor argued in the sentencing
phase, "Mr. Miller is out of jail two years and he is raping children."
Appellant did not object, leaving this issue unpreserved for review.
Therefore, we review under RCr 10.26.
"We reverse for prosecutorial misconduct in a closing argument
only if the misconduct is `flagrant' or if each of the following are satisfied :
(1) proof of defendant's guilt is not overwhelming; (2) defense counsel
objected; and (3) the trial court failed to cure the error with sufficient
admonishment." Barnes v. Commonwealth , 91 S .W .3d 564, 568 (Ky.
2002) (emphasis added) . Here, none of these elements are satisfied.
"[W]e must always consider these closing arguments `as a whole' and
keep in mind the wide latitude we allow parties during closing
arguments ." Young v . Commonwealth , 25 S .W .3d 66, 74-75 (Ky. 2000)
(ci'tin Wallen v . Commonwealth , 657 S .W.2d 232, 234 (Ky. 1983) and
Bowling v. Commonwealth , 873 S.W.2d 175, 178 (Ky. 1993)) .
Given the wide latitude afforded the parties during closing
argument, the prosecutor's closing argument during the sentencing
phase was not flagrant on its face nor did it rise to the level of
prosecutorial misconduct under the Barnes standard . Therefore, no
palpable error appears.
VII. Conclusion
24
For reasons that the jury instructions failed to particularize each of
the offenses they were intended to represent, we reverse Appellant's
convictions and remand for a new trial on all charges .
Abramson, Noble, and Venters, JJ ., concur. Cunningham, J .,
concurs in result only by separate opinion, with Schroder, J ., joining that
opinion . Minton, C .J. ; not sitting.
CUNNINGHAM, JUSTICE, CONCURRING IN RESULT ONLY : Our
decision today is consistent with our most recent case of Bell v.
Commonwealth , 245 S .W. 3d 738 (Ky. 2008), only if our finding of
palpable error is unique to the facts of this case. For instance, as in Bell ,
where we held harmless error, if the defendant had been found guilty
under all of the identical instructions then there would be no palpable
error. "Because the jury ultimately found Bell guilty of all five counts of
sexual abuse, it can be rationally and fairly deduced that each juror
believed Bell was guilty of the five distinct incidents identified by the
Commonwealth ." Id. at 744 . When the jury, as here, finds the defendant
guilty under three of the identical instructions, and not guilty on the
other three, a different picture is painted. As stated in Bell, "[I]t must be
evident and clear from the instructions and verdict form that the jury
agreed, not only that Bell committed one count of sodomy, but also
exactly which incident they all believed occurred. Otherwise, Bell is not
only denied a unanimous verdict, but is also stripped of any realistic
basis for appellate review of his conviction for sodomy." Id.
25
Furthermore, since here the jury found the defendant not guilty
under three of the identical instructions, it is premature for us to do an
analysis on the sufficiency of the evidence . We do not know exactly
which criminal acts the jury unanimously found the defendant guilty of.
Therefore, we should simply reverse and remand for a new trial without
addressing the sufficiency of the evidence issue .
Schroder, J ., joins this opinion.
COUNSEL FOR APPELLANT :
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
David A. Smith
Assistant Attorney General
Office of the Attorney General
Office of the Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.