Opinion of the Court by Justice VENTERS.
Appellant, Randal Keith Kiper, appeals as a matter of right from a judgment of the Jefferson Circuit Court convicting him of attempted murder, two counts of first-degree assault, one count of first-degree wanton endangerment, and of being a first-degree persistent felony offender. He received a sentence totaling seventy years' imprisonment.
Appellant argues on appeal that his convictions for both attempted murder and first-degree assault, resulting from the shooting of victim Tim Burton, constitute a double jeopardy violation. Our review of that argument requires us to contrast the constitutional protection against double jeopardy found in the Fifth Amendment of the United States Constitution and the statutory restraint embodied in KRS 505.020 against prosecutions of multiple offenses that arise out of a single course of conduct. In light of the particular facts of this case, we agree that Appellant's convictions for both attempted murder and first-degree assault for the same shooting resulted in a double jeopardy violation of KRS 505.020.
Appellant's remaining arguments may be characterized as allegations of prosecutorial misconduct. They contain the following claims: 1) that during his voir dire examination of the jury, the prosecutor misstated the law about what facts the Commonwealth must prove "beyond a reasonable doubt" in order to obtain a conviction; 2) that during his opening statement the prosecutor improperly vouched for the credibility of victim Tim Burton; 3) that the prosecutor improperly suggested that Appellant was guilty merely because he had been indicted by the grand jury; and 4) that the prosecutor improperly "testified" during his cross examination of Appellant. For the reasons stated below, we conclude that none of these arguments establish reversible error.
As a result of the statutory double jeopardy violation, we reverse Appellant's conviction for first-degree assault and remand for entry of a new judgment that excludes the reversed conviction.
In the light most favorable to the verdict, the evidence established the facts as follows. In November 2009, Burton was riding as a passenger in the front seat of his car, which was being driven by his mother, Christine Saylor. His nephew, one-year old Keyvin, rode in the back seat.
Just after they stopped at the curb in front of Keyvin's mother's residence, Appellant in his white pickup truck pulled up alongside the Burton vehicle. Burton was acquainted with Appellant. Appellant then pointed a handgun through the open window of his truck at Burton, and fired several shots in rapid succession. Burton was struck seven times. As Appellant drove away he fired one more shot, which
As a result of the shooting, Appellant was indicted on three counts of attempted murder; three counts of first-degree assault; one count of first-degree wanton endangerment, and of being a first-degree persistent felony offender (PFO). Appellant's defense was that he was not at the scene, and he presented alibi witnesses who placed him elsewhere at the time of the shooting. Nevertheless, the jury convicted him of attempted murder for shooting at Burton, one count of first-degree assault for the shooting of Burton, one count of first-degree assault for the shooting of Saylor, one count of first-degree wanton endangerment for endangering Ferguson, and of being a first-degree persistent felony offender.
The jury's PFO enhanced sentencing recommendation totaled 100 years; however, pursuant to the sentencing cap contained in KRS 532.110, the trial court modified the jury's sentencing recommendation to the statutory maximum of seventy years. As modified, the trial court sentenced Appellant to forty-five years for the attempted murder of Burton; twenty years for each of the two first-degree assault convictions (Burton and Saylor); and five years for the wanton endangerment conviction (Ferguson). The assault convictions were ordered to run concurrently with each other, but consecutive to the forty-five-year sentence for attempted murder and consecutive to the five-year sentence for wanton endangerment,
This appeal followed.
We first address Appellant's contention that a double jeopardy violation occurred as a result of his convictions for both attempted murder and first-degree assault for the shooting of Burton. We begin by noting that although Appellant failed to raise this issue at trial, "the constitutional protection against double jeopardy is not waived by failing to object at the trial level." Walden v. Commonwealth, 805 S.W.2d 102, 105 (Ky.1991)(overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996)). Accordingly, Appellant's constitutional double jeopardy argument is properly raised for our review. It is important to note that this rule is premised upon the constitutional stature of the right, and as further discussed below, we ultimately resolve this issue upon statutory grounds. Nevertheless, review of the unpreserved claim of a violation of statutory double jeopardy is proper upon application of the palpable error rule, see RCr 10.26.
Appellant argues that a double jeopardy violation occurred pursuant to KRS 505.020(2)(a) because he was convicted of both attempted murder and first-degree assault for the Burton shooting. More specifically, he contends that first-degree assault is a lesser-included offense of attempted murder because first-degree assault may be established by the same facts or less than all the facts required to establish the crime of attempted murder. Consequently, he claims both convictions cannot stand.
The Commonwealth responds that there is no double jeopardy violation here because a conviction under both charges does not violate the Blockburger same-elements test,
The Commonwealth is correct in its assertion that convictions for both charges do not violate the Blockburger test. Nevertheless, for the reasons stated below, we conclude that a double jeopardy violation did indeed occur as a result of Appellant's conviction because, under the circumstances of this case, convictions for both attempted murder and first-degree assault would result in a violation of KRS 505.020(1)(b). KRS 505.020(1)(b) prohibits a conviction for more than one offense when inconsistent findings of fact are required to establish the commission of the offenses.
The Fifth Amendment's Double Jeopardy Clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb[.]" U.S. Const. Amend. V. Similarly, Section 13 of the Kentucky Constitution ensures no person shall "be twice put in jeopardy of his life or limb" for the same offense. See Burge, 947 S.W.2d at 809. In addition to prohibiting retrial for the same crime following a conviction or retrial following an acquittal, the "final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). Therefore, a defendant may not be convicted of multiple crimes when there was but one course of conduct and a single mens rea.
(emphasis added).
Section (1)(a) and Section (2) together represent our codification of the Blockburger test, by which the constitutional standard of double jeopardy must be evaluated. In Blockburger, the United States Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. 180. Pursuant to this test, "[a] defendant is put in double jeopardy when he is convicted of two crimes with identical elements, or where one is simply a lesser-included offense of the other." Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky.2011).
We have previously analyzed whether first-degree assault is a lesser included offense of attempted murder under the Blockburger test and concluded that it is not because each of the two crimes contains an element that the other does not. As we noted in Perry v. Commonwealth, 839 S.W.2d 268, 272-73 (Ky. 1992), a comparison of the elements of attempted
While some of our cases seem to imply that the Blockburger test is our exclusive method for evaluating whether a conviction for one offense necessarily precludes conviction for another offense,
A careful analysis of the elements of attempted murder and first-degree assault discloses that in the factual context of this case — that is, where the attack with a deadly weapon is the same act that constitutes the "substantial step" required for the attempt charge — verdicts convicting a defendant for both crimes must necessarily be the result of inconsistent findings of fact by the jury. More specifically, to convict a defendant of attempted murder, the jury must find that he specifically intended during the attack to kill the victim. See KRS 507.020, 506.010. On the other hand, and quite inconsistently, for the jury to convict the same defendant of first-degree assault for engaging in the same course of conduct, it must determine that his specific intent was not to kill, but merely to cause serious physical injury to the victim. See KRS 508.010. Therefore, as may easily be seen in the circumstances of this case, to convict Appellant for both attempted murder and first-degree assault, the jury had to conclude that Appellant intended to kill Burton and, at the same instant, intended not to kill him but only to injure him. These inconsistent and mutually exclusive findings of fact regarding Appellant's mens rea at the moment he fired the shots at Burton lead precisely to the result that KRS 505.020(1)(b) prohibits. It follows, therefore, that the judgment convicting Appellant for both attempted murder and first-degree assault is a violation of our statutory restraint on double jeopardy.
The Commonwealth argues that Appellant's convictions for both offenses are proper because Burton was shot multiple times and thus Appellant's conduct warrants multiple punishments. This theory postulates that some of the gunshots were fired with the intention of causing Burton's death, while others were fired with the intention of causing only serious physical injury.
We have previously acknowledged that KRS 505.020 does not bar the prosecution or conviction upon multiple offenses arising out of a single course of conduct when the facts establish that two or more separate and distinct attacks occurred during the episode of criminal behavior. Welborn v. Commonwealth, 157 S.W.3d 608, 611-12 (Ky.2005). However, for multiple convictions to be proper there must have been a cognizable lapse in his course of conduct during which the defendant could have reflected upon his conduct, if only momentarily, and formed the intent to commit additional acts. Id. at 612; see also Terry v. Commonwealth, 253 S.W.3d 466, 474 (Ky.2008). The facts in Welborn illustrate the principle as follows:
Welborn, 157 S.W.3d at 612.
The facts in the present case are readily distinguished from Welborn. In Welborn, the evidence established that the defendant had ample time to pause and
In summation, we reiterate that the Blockburger test and its codification in KRS 505.020(1)(a) and 505.020(2) remain the standard by which we shall analyze the constitutional concerns implicit in multiple prosecutions for offenses arising out of the same course of conduct. However, KRS 505.020(1)(b) addresses circumstances not covered by Blockburger and, therefore, not rooted in the Fifth Amendment of the U.S. Constitution or Section 13 of the Kentucky Constitution. Despite its lack of constitutional luster, the legislative directive embodied by KRS 505.020(1)(b) plainly speaks to the situation presented in this case and clearly prohibits Appellant's conviction for both of the crimes arising from the gunshots directed at Burton.
Having determined that a KRS 505.020(1)(b) double jeopardy violation occurred, our final task is to determine the proper remedy for the error. Appellant contends that the only proper and possible remedy is a new trial. However, we have repeatedly held that "[t]he remedy for these types of double jeopardy violations is to vacate the conviction for the lesser offense." Lloyd v. Commonwealth, 324 S.W.3d 384, 391 n. 26 (Ky.2010); Brown v. Commonwealth, 297 S.W.3d 557, 562-563 (Ky.2009) ("Given that first-degree fleeing or evading police is a felony and that second-degree wanton endangerment is a misdemeanor, the remedy is to vacate the lesser offenses of wanton endangerment."); Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky.2008) (When a person is improperly convicted of two or more offenses arising "out of a single course of conduct and not requiring proof of a fact which the other does not[,]" the double jeopardy violation is remedied "by maintaining the more severe conviction and vacating the lesser" conviction.).
Because we deem attempted murder to be the more serious of the two crimes, we affirm the conviction and sentence for attempted murder and vacate Appellant's conviction for the "lesser" offense of first-degree assault.
Appellant raises several arguments imputing improper conduct to the trial prosecutor, none of which were preserved for appellate review by a contemporaneous objection in the trial court. Accordingly, we review the alleged errors pursuant to the palpable error standard contained in RCr 10.26.
Under the palpable error standard, an unpreserved error may be noticed on appeal only if the error is "palpable" and "affects the substantial rights of a party," and even then relief is appropriate only "upon a determination that manifest injustice has resulted from the error." RCr 10.26. In general, a palpable error affects the substantial rights of a party "only if it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.2005). An unpreserved 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." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006). Additionally, relief will be afforded if the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Id.
Appellant first contends that the prosecutor "misstated the law" concerning the facts the Commonwealth must prove beyond a reasonable doubt in order to obtain a conviction.
An examination of this statement discloses that the prosecutor was fundamentally correct in his characterization of what the Commonwealth is required to prove beyond a reasonable doubt. It is obviously a correct statement of the law that the Commonwealth is not required to prove every single fact it presents during the entire course of the trial beyond a reasonable
Appellant next contends that the prosecutor caused reversible error by improperly commenting on the credibility of Burton during his opening statement. Appellant directs our attention to the following comment by the prosecutor, made during his opening statement:
RCr 9.42(a) requires the prosecutor in his opening statement to "state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it." Thus, "[t]he only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced." Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355, 357 (1933); see Fields v. Commonwealth, 12 S.W.3d 275, 281 (Ky.2000). Further, "it is never proper in an opening statement for counsel to argue the case or to give his personal opinions or inferences from the facts he expects to prove." Turner v. Commonwealth, 240 S.W.2d 80, 81 (Ky.1951).
From a purely technical viewpoint, it may well be argued that the rhetorical flourish inherent in this statement deviated from the rule. Nevertheless, whether Burton had any reason to lie about who did the shooting, or whether he had a strong motive not to do so, was to become a critical point of the Commonwealth's case. Appellant would suggest that Burton had a motive to falsely identify him as the shooter. The prosecutor essentially alerted the jury to evidence that was to be adduced during the trial.
The substance of the comment simply informed the jury of a factual controversy coming its way. It did not amount to improperly "vouching" for Burton's credibility. In any event, there is no substantial possibility that the prosecutor's statement affected the result, and therefore the lack of palpable error precludes relief. RCr 10.26; Martin, 207 S.W.3d at 3.
Appellant next claims that the prosecutor engaged in misconduct by "testifying" during his cross-examination of Appellant. During direct-examination, the following exchange occurred between Appellant and his trial counsel:
On cross-examination, the following response ensued:
The Appellant then claimed that he did not understand the question.
We recently reiterated the noncontroversial notion that the Commonwealth "is entitled to ... make a reasonable argument in response to matters brought up by the defendant." Childers v. Commonwealth, 332 S.W.3d 64, 73 (Ky. 2010). Here, the questioning on cross-examination was a clear response to Appellant's assertion that Burton made up the allegation in order to cause dissension between Appellant and his girlfriend. The cross-examination cited by Appellant was no more than a "test [of] the accuracy of the knowledge of the witness, his source of information, his motives, interest and memory." Louisville & N. R. Co. v. Gregory, 284 Ky. 297, 144 S.W.2d 519, 521 (1940). "[C]ross-examination [can be] essentially a request for detail and elaboration on appellants' theory of defense." McCranney v. Commonwealth, 449 S.W.2d 914, 915 (Ky.1970).
It was Appellant who first tried to establish Burton's testimony as false by ascribing to him the motive of trying to damage the relationship between Appellant and his girlfriend. It was proper for the prosecutor to cross-examine him on the point, and this questioning fell well within the wide latitude permitted for cross-examining a witness. Accordingly, there was no error.
Finally, Appellant argues that the Commonwealth engaged in misconduct by suggesting that Appellant's guilt could be inferred from the fact that he had been indicted. In his closing argument, defense counsel claimed that some people can be charged "automatically" because the grand jury serves as the Commonwealth's "rubber stamp." He used the oft-repeated claim that "[the Grand Jury] will indict a ham sandwich." The prosecutor responded to those remarks in his closing argument, as follows:
The prosecutor was responding directly to defense counsel's claim that the grand jury would indict anyone for any reason. The prosecutor's comment in no way suggests that Appellant's guilt should be inferred from the fact that he was indicted, and we
Accordingly, we find that none of Appellant's claims of prosecutorial misconduct during the trial of his case have any merit.
For the reasons stated above, we reverse Appellant's conviction for first-degree assault relating to the shooting and serious physical injury inflicted upon Tim Burton. We affirm all of his other convictions presented herein. We remand this matter to the Jefferson Circuit Court for entry of judgment consistent with this opinion.
All sitting. All concur.
