# Brown v. Commonwealth

> Kentucky Supreme Court · June 17, 2010 · 313 S.W.3d 577

URL: https://www.frixlaw.com/law-library/cases/9692198

## Case

- **Full name:** Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** June 17, 2010
- **Citations:** 313 S.W.3d 577; 2010 Ky. LEXIS 148; 2010 WL 2470872
- **Precedential status:** Published
- **Opinion:** Concurring in part by Abramson
- **Judges:** Noble, Cunningham, Minton, Abramson, Venters, Scott, Schroder
- **Cited by:** 259 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/9692198

## How later opinions describe it (automated extraction)

- stating that the law-of-the- case doctrine “refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the liti…
- observing that “Brown does not contend that his second jury was informed of either his prior conviction or the reason for his retrial,” and “[a]bsent such an express invasion of the jury’s independence, the fact that the jury may have been aware that Brown was being retried no…
- holding that evidence of murder victim’s drug use was properly excluded where there was no evidence tending to show that murder was drug related
- holding that a jury’s knowledge that defendant was being retried but not that he had been found guilty, did not violate the defendant’s rights
- holding that where “none of the errors individually raised any real question of prejudice,” there is no cumulative error

## Opinion text

ABRAMSON, J.,
concurring in part and dissenting in part:
I respectfully dissent from the majority’s view, expressed in footnotes 2 and 3, that the reasonable doubt instruction set forth at § 12.08 of Kentucky Instructions to Juries, Criminal should no longer be given. Although KRS 532.025 does not require that the propriety of death be found beyond a reasonable doubt, I believe that an instruction to that effect is consistent with the Kentucky capital sentencing scheme. KRS 532.025(2) requires that the fact finder “shall consider ... any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which may be supported by the evidence_” This direction of the jury’s deliberations in a capital sentencing phase as to the finding and weighing of aggravating and mitigating circumstances and the indisputable proposition that “death is different,” in my opinion, render it appropriate to direct the jury to find the propriety of death beyond a reasonable doubt before that sentence may be imposed. Even if that particular instruction is omitted, however, I believe that the death penalty “acquittal” concept enunciated by Justice O’Connor in both Rumsey, 467 U.S. at 211, 104 S.Ct. 2305 and in Sattazahn, 537 U.S. at 117, 123 S.Ct. 732 , would still apply to bar the prosecutor’s second attempt at securing the death penalty where the first jury chooses something less than death as the appropriate sentence.
VENTERS, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692198. Public record. Not legal advice.