Johnson v. Commonwealth

CUNNINGHAM, J.,

concurring in part and dissenting in part:

I respectfully dissent from the majority’s decision to reverse this conviction on the grounds that there was palpable error in regard to the unanimity issue with the jury instructions.

Jury Instructions were not eironeous

The whole unanimity issue discussed in this opinion exploded upon the appellate scene within the last six years or so. As noted in the majority opinion, the “federal constitution’s requirement of unanimity has been held not to apply to the states.” Also, as noted by the majority, we recognize that under Section 7 of our state constitution, a unanimous decision by the jury has long been required in criminal cases.

Our Section 7 unanimity cases over the first 110 years of our constitution were fairly simple and straightforward. The 1942 Cannon decision and the 1951 Comer case dealt with recalcitrant jurors who reported being coerced into a vote, thus undermining the unanimous verdict. Even the 1978 Wells case held that alternative methods of an assault case — intentional or wanton — was not a breach of the unanimity requirement.

I submit that we jumped the tracks in the Harp case, as well as in Miller v. Commonwealth, 283 S.W.3d 690 (Ky.2009). We focused on the wrong issue.

Harp was charged with numerous counts of the same crime. These went to the jury with identical instructions. The jury found Harp guilty of all counts. While the wording is less than clear in Harp, it appears we reversed that case on the unanimity issue. And we have thrown Harp into our growing line of unanimity cases.

Miller is similar to Harp, except for one major difference. Miller was not convicted on all identical instructions, as Harp was. Miller was rightly decided, I believe, for the wrong reason. It was not a unanimity problem. I respectfully submit that it was actually an appellate due process problem. Miller was denied his right to appeal because he did not know from the jury verdict of which crimes he had been convicted.

Miller dealt solely with the lack of unanimity of which crimes the defendant committed — not acts. Out of seven identical instructions for third-degree rape, Miller was convicted on only four. It was impossible to determine for which of the crimes the jury reached unanimous verdicts. But there was no unanimity problem. The jury was unanimous in finding Miller guilty of some crimes, but not others. But which ones?

The critical issue in Miller and in many of our so-called “unanimity” issue cases is that the reviewing court cannot be certain which offense or offenses were committed — not whether the jury voted unanimously. So it is not a unanimity issue. It is a review problem.

I would respectfully submit that the reason we are just recently wrestling so much at the appellate level with the so called “unanimity question” is because we have *461 mislabeled it. Section 115 of our state constitution states in part: “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court....” Not knowing for which crime you are convicted deprives one of any effective means to appeal.

I would respectfully submit that, in this case, we are stepping across the line and unnecessarily requiring unanimity in the jury’s deliberation. The jury instruction on unanimity is simple. “The verdict of the jury must be in writing, must be unanimous and must be signed by one of you as FOREPERSON.” 1 Cooper, KentucKy INSTRUCTIONS TO JURIES (CRIMINAL) § 2.07A (5th ed.2006) (emphasis added). The jury is commanded only to reach a unanimous decision on the verdict.

We are requiring juries to be unanimous on matters that the unanimous verdict requirement never anticipated. We can start with the weather. Juries are not required to unanimously believe the weather was the same on the day of the crime. Neither is the jury required to unanimously agree that the victim was stabbed six times as opposed to nine. If six jurors believe the victim was stabbed six times and six believe the victim was stabbed nine, all twelve jurors — a unanimous jury — has decided the main issue. The victim was stabbed.

And now, in this case, we are requiring the jury to be unanimous in deciding whether the one count of first-degree criminal abuse happened on one date or another, or both. In this case, all twelve jurors have unanimously held that Appellant committed one offense of first-degree criminal abuse.

Our holding here today will create problems and confusion in many different areas of the criminal law. First, let’s start with inchoate offenses. Criminal attempt to commit a crime requires a “substantial step” towards the course of conduct planned to culminate in the commission of the crime. KRS 506.010(l)(b). This “substantial step” may be one act or many. Is there a unanimity problem if there is not a delineation of which act or acts the jury unanimously agrees?

The most disturbing result of our decision here today is that it will seriously impair the prosecutions and convictions of those charged with the molestation and rape of small children. A defendant is typically charged with one count of rape of a child under 12 years of age. A small four-year-old toddler testifies and, perhaps with the aid of anatomical dolls, describes the criminal acts committed upon him or her. The victim testifies that the act happened more than once — maybe weekly. It will be impossible for the prosecutor to nail down a certain one as identified by date and place in order to comply -with the results of our decision here today.

Here, unlike in Miller , it is easily reviewable under the Section 115 requirement. Appellant can easily claim that there was insufficient evidence as to either act for a conviction. This comes close to our analysis in Travis and Dawson.

Palpable Error

Our trial judges are being ambushed by such decisions as this one when we so lightly deem palpable error when the mistake has not been preserved. We are watering down our palpable error standard with holdings such as this to the point that it behooves the defense lawyer not to object on jury instructions and just allow the trial court to walk — unwarned—onto the unanimity land mine.

Even if the instructions in this case are deemed error, they are a far cry from “manifest injustice.” As evidenced by the present opinion, to which I object, we typically spend page after page doing textbook *462 analysis of this issue with almost every jury unanimity issue we review. I strongly believe it is totally unfair for us to stand by on this complicated matter and let our trial courts be blind-sided by such a casual application of the palpable error standard.

It is because of this strong sense of fairness to our trial judges that we have developed a long line of cases dictating that we reverse on unpreserved error only in the most drastic of cases. See McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky.2012) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006)) (Manifest injustice is found “if the error seriously affected the ‘fairness, integrity, or public reputation of the proceeding.’ ”); Chavies v. Commonwealth, 374 S.W.3d 313, 322-23 (Ky.2012) (“A party claiming palpable error must show a probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law. It should be so egregious that it jumps off the page ... and cries out for relief ”); Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006) (“To discover manifest injustice, a reviewing court must plumb the depths of the proceeding ... to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.”); Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky.1997) (“[T]he requirement of ‘manifest injustice’ as used in RCr 10.26 [] mean[s] 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.”); Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.2009) (“An unpre-served 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, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’ ”) (Emphasis added throughout citations).

In the case before us — in its worse unanimity posture — six people believed Appellant committed first-degree criminal abuse on one date and six believed the offense was committed on a different date, both within the time period of the charge. Nevertheless, a unanimous jury found Appellant guilty of one count of first-degree criminal abuse. Surely, this is not “palpable error” as we have traditionally envisioned.

I concur in part, but dissent as to the reversal of Appellant’s criminal abuse conviction and sentence.

SCOTT, J., joins.