Bradley Allen Day v. Commonwealth 1009-SC-641-DG. To be Published.After deliberating for over 4 hours as to Day’s guilt, the jury asked the trial court to tell them the penalty range for the lesser included offense of first-degree sexual abuse. The trial court, over Day’s objection, told the jury the penalty was one to five years’ imprisonment. Forthwith, the jury returned with a guilty verdict on the lesser included charge and eventually a three year sentence.
The trial Court erred by telling the jury the penalty range for the lesser included offense during the guilt phase of trial. In Norton v. Commonwealth, 37 S.W.3d 750 (Ky. 2001), the Kentucky Supreme Court propounded the general rule that penalty evidence, such as the sentencing range for the instructed upon offenses, is not admissible during the guilt phase. However, in the case at bar, The Court of Appeals found no indication the trial court gave the penalty range information to the jury in order to impermissibly influence the jury to convict based on a desired verdict.
The Kentucky Supreme Court held that the Court of Appeals expanded existing case law (Norton) to create an exception where one has not been previously existed. In addition, the trial court’s conclusion the jury would have heard the information anyway is belied by Lawson v. Commonwealth, 53 S.W.3d (Ky. 2001), which held that defense counsel’s voir dire on penalty range is limited to the range encompassed by the indicted offenses. In the case at bar, the sexual abuse instruction arose as a result of the evidence presented at trial, thus, the parties would have erred by informing potential jurors of the penalty range for sexual abuse during voir dire.
Contributed by Erin Yang