# Miller v. Commonwealth

> Kentucky Supreme Court · May 21, 2009 · 283 S.W.3d 690

URL: https://www.frixlaw.com/law-library/cases/9689529

## Case

- **Full name:** Frederick MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** May 21, 2009
- **Citations:** 283 S.W.3d 690; 2009 Ky. LEXIS 97; 2009 WL 1438781
- **Precedential status:** Published
- **Opinion:** Concurrence by Cunningham
- **Judges:** Scott, Abramson, Noble, Venters, Cunningham, Schroder, Minton
- **Cited by:** 117 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689529

## How later opinions describe it (automated extraction)

- explaining that a failure to differentiate which act each jury instruction relates to can constitute palpable error if the Commonwealth has failed to meet its burden to establish that “no prejudice resulted from the error”
- holding that it was error to use identical instructions for multiple counts of rape and sodomy "none of which could be distinguished from the others as to what factually distinct crime each applied to”
- holding that the failure to instruct according to Reneer is a procedural issue which we need not review without a contemporaneous objection
- finding manifest injustice where the court’s instructions deprived the defendant of a unanimous verdict
- noting that the issue with such instructions may be "viewed as one of ... double jeopardy," among others (quoting Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002))

## Opinion text

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 *705 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.
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689529. Public record. Not legal advice.