# Brown v. Commonwealth

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

URL: https://www.frixlaw.com/law-library/cases/9692199

## 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 Scott
- **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/9692199

## 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

SCOTT, J.,
concurring in part and dissenting in part:
Although I concur with the majority on the other issues, I must dissent as to the majority’s finding of an “implied acquittal” in Section I. of the majority opinion (including their reversal of Commonwealth v. Eldred, 973 S.W.2d 43 (Ky.1998) and Salinas v. Payne, 169 S.W.3d 536 (Ky.2005)), as well as their comment in Section IV. C. that, although they found the error regarding the tattoo testimony to be harmless, it may not have been harmless as to Appellant’s death sentence.
As to the error regarding the introduction of the tattoo evidence, I fail to see— given the voluminous evidence — how it could be found harmless in one instance, yet be doubtful in another. Clearly, this error was harmless in all contexts. As to the majority’s “implied acquittal” of the death penalty, this Court noted in Salinas that:
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.
*634 169 S.W.3d 536, 539 . Thus, we explicitly upheld Eldred .
However, this Court now departs from both. As I do not believe that the Court was wrong in Eldred in 1998 or in Salinas in 2005 (with all concurring), and in deference to all who attempt to comply with the decisions of this Court, when and as we make them, I cannot join the majority here in reversing course. Thus, I dissent and would affirm the conviction and death penalty entered in this case consistent with our prior opinions in Eldred and Salinas .
SCHRODER, J., joins.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692199. Public record. Not legal advice.