# Commonwealth v. Burge

> Kentucky Supreme Court · June 19, 1997 · 947 S.W.2d 805

URL: https://www.frixlaw.com/law-library/cases/9769792

## Case

- **Full name:** COMMONWEALTH of Kentucky, Appellant, v. Roger Keith BURGE, Appellee; And Gary E. HERRIFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee; And COMMONWEALTH of Kentucky, Appellant, v. Kenny EFFINGER, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** June 19, 1997
- **Citations:** 947 S.W.2d 805; 1997 WL 346711
- **Precedential status:** Published
- **Opinion:** Dissent by Stumbo
- **Judges:** Stephens, Baker, Graves, Lambert, Wintersheimer, Stumbo, King, Cooper, Johnstone
- **Cited by:** 172 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/9769792

## How later opinions describe it (automated extraction)

- stating “double jeopardy violations can be addressed as palpable error because the nature of such errors is to create manifest injustice[]”

## Opinion text

STUMBO, Justice,
dissenting.
Respectfully, I must dissent. By way of petition for rehearing, without hearing oral argument, we have substantially broadened our original opinion and overruled a number of cases not even referred to initially. Over the course of seven years this Court has rendered a multitude of opinions purporting to be the definitive ruling on double jeopardy, only to backtrack or complicate further the test in the next case.
In my view, we should not stray from the holding of Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990). Therein we recognized a view of double jeopardy broader than that articulated in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), or in KRS 505.020. In the course of the Ingram opinion, we acknowledged that the statute constituted a collateral estoppel element of the double jeopardy principle, barring a state prosecution on a single act after a jury had acquitted a defendant of federal charges deriving from the same act. Id. at 324 . We found in Ingram but “a single impulse and a single act, having no compound consequences”; thus, the dual conviction was constitutionally inappropriate. Id. As recently as Baker v. Commonwealth, Ky., 922 S.W.2d 371 (1996), we noted that in Ingram “[w]e held that Section 13 of the Constitution of Kentucky mandated double jeopardy protection which went beyond the so-called ‘federal floor.’ As such, our [decision] in Ingram ... [has] now been engraft-ed upon the Constitution of Kentucky and while such does not provide insulation from modification or overruling, principles of stare decisis counsel caution.” Id. at 375 (citation omitted).
Caution has now been thrown to the winds. The opinion issued today returns to a strict analysis of the statutory elements of each offense and whether each requires proof of an additional fact which the other does not. No attention is to be paid to the question of whether compound consequences result from the criminal act. As stated in Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 706 (1995), once it has been determined that one offense charged is not included within the other, the court must then inquire whether “the offense(s) arose from a single act or impulse with no compound consequences, even though ‘[b]y virtue of additional, circumstantial facts, the behavior was offensive to two criminal statutes.’” In Eldred , the *814 compound consequences found by the court were the death of the victim and the destruction of the vehicle, both of which were achieved by the act of setting the automobile on fire. Id. at 707 .
As applied to the instant cases, the compound consequences prong of the Ingram test would prohibit the criminal prosecutions involved. In each case the defendant was prohibited by a restraining order of some type from coming about the home of or injuring the victims involved. The additional facts described in each of the cases by the majority are just the type of “additional, circumstantial facts” that we meant to address in Ingram . Each defendant was or will be twice punished for precisely the same behavior.
Nowhere in the majority opinion does the Court explain why it finds it necessary to take from our citizens the additional protection from double jeopardy that this Court deemed appropriate to recognize just seven years ago. In so abruptly retracting this protection, we do these defendants an injustice and the jurisprudence of this state an injury through our apparent willingness to overrule precedent so recently established. I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769792. Public record. Not legal advice.