KYSC - Sifuentes - Batson - non-unanimous verdict

Fernando Sifuentes v.Commonwealth, 16-SC-485-MR (rendered 2/15/18)(not to be published).  

Sifuentes was convicted of first degree rape, first degree sodomy, and incest.  The Court reversed Sifuentes’ convictions and sentence and remanded for a new trial for two reasons.

First, Mr. Jimenez was the sole Latino on the jury pool.  The Commonwealth used a peremptory strike on him.  When the defense challenged the removal under Batson, the prosecutor merely responded he looked “belligerent” and “hostile” when he glanced at the Commonwealth’s counsel table. The Court found a Batson violation:  “Although an observation of a juror's body language or demeanor may properly prompt a peremptory challenge, to avoid a Batson violation, counsel must state with reasonable specificity how that particular body language forms the basis of the challenge.”  Because the prosecutor offered no explanation as to why Jimenez’s hostile expression made him an unfit juror, the trial court could not have found that the reason was legitimate under step three of Batson

Second, the bare bones jury instructions given by the court on the rape and sodomy counts were duplicative and resulted in non-unanimous verdicts. The instructions provided no specificity, and included a three year range of time.  “However, the jury was not presented with any specific act or a specific date of either rape or sodomy instance upon which to base a conviction. B.M.'s testimony as to a three-year time frame in which dozens of instances of inappropriate sexual behavior are alleged to have occurred does not support one count of each crime.”   

Emily Rhorer of Appeals represented Sifuentes on direct appeal to the Kentucky Supreme Court.   

KYSC - Jenkins - Unanimity and other issues

David Alan Jenkins v. Comm., affirming in part, reversing in part, and remanding, Kentucky Supreme Court, To Be Published. 

71 page Opinion. Convictions for rape first and sodomy first, forty-year sentence.     

·        Reversal of sodomy conviction b/c of unanimity issue in jury instruction.

·        Very, very slight evidence of physical force was sufficient to raise a jury question on rape and sodomy. 

·        No error in refusal to provide a sexual misconduct jury instruction; sexual misconduct is not a lesser included of rape. Sexual misconduct available only where non-consent is based on age.  But see dissents, below.

·        Complaining witness’s testimony that Jenkins committed the same acts against her as a child was relevant to motive and lack of consent.  No 404(b) violation. 

·        No abuse of discretion in trial court’s allowing portions of Jenkins’s post-polygraph interview into evidence, rejecting Jenkins’ arguments on rule of completeness and being forced to  give up his right to defend himself in order to exercise his right not to be convicted based on unreliable polygraph evidence.

·        Dissents: Cunningham, joined by Venters, and Venters, joined by Cunningham, would have overruled Cooper and held sexual misconduct to be a lesser included offense of forcible rape. 

Susan Balliet represented Jenkins on appeal.

KYSC - Hill - Unanimous Verdicts

Howard Hill Anderson v. Commonwealth, 14-SC-153-MR (rendered 10/29/15) (not to be published).

 

The Court ordered a new trial in Mr. Anderson’s case due to a non-unanimous jury instruction on manufacturing methamphetamine. Mr. Anderson was indicted for manufacturing methamphetamine at his home due to the possession of two or more chemicals or two or more items of equipment. 

 

The trial court had allowed his alleged participation in an earlier manufacture [Drury incident] to be admitted as a prior bad act.  The court used a combination jury instruction that allowed Mr. Anderson to be convicted of manufacturing methamphetamine by the making of methamphetamine or by the possession of two or more chemicals or two or more items of equipment.  In closing argument, the prosecutor argued to the jury they could convict Mr. Anderson for manufacturing methamphetamine at his home or the Drury incident.

 

As the Court stated, “Up until this point in the trial, the combination jury instruction employed by the trial court in this case did not present a potential unanimous verdict problem. However, after the June 30 event was recast as a possible corpus delicti of the crime charged in the jury instructions, under the jury instruction and verdict form provided, some jurors could have believed Appellant was guilty of manufacturing methamphetamine by making meth at Drury's on June 30, while other jurors believed Appellant was guilty of manufacturing methamphetamine only because he possessed at his home on July 1 two or more of the chemicals or items of equipment needed for making meth. The creation of this possibility runs afoul of our well-delineated unanimous verdict rules.” 

          David Curlin of the Henderson office represented Mr. Anderson before the McLean Circuit Court, and Emily Rhorer represented him on direct appeal to the Kentucky Supreme Court.   

KYSC - Martin - Unanimous Verdict

Joseph David Martin v. Commonwealth, Ky. Sup.  Ct., 2/19/15 Affirming in part, Reversing in part, Remanding - to be published

The Court remanded this case, and Mr. Martin’s 580 years sentence,  to the Henry Circuit Court for a new trial for numerous unpreserved unanimous verdict violations.  The Court found that both types of unanimity violations existed in this case; “one borne from indistinguishable instructions” and the “second type of unanimous-verdict violation, which arises when evidence adduced at trial presents the jury with multiple acts by the defendant that may satisfy a single general-verdict instruction.”  The Court held  “all unanimous-verdict violations constitute palpable error resulting in manifest injustice.” 

In addition there was instructional error by the trial court for failing to instruct the jury on the seventy (70) year statutory cap,  however the issue was not reviewable per Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013) (A separate case from the instant case) because the issue was not preserved. The Opinion however contained strong language regarding “the judge’s purposeful disregard of the sentencing-cap statute.” 

Jason Apollo Hart  of the Appeals Branch represented Mr. Martin on appeal. 

SC - Bauer - Unanimous Verdict

Bauer v. Commonwealth – 12-SC-241 – not to be pub. – Affirming in part, reversing in part, and remanding

Bauer’s conviction for manufacturing meth must be reversed and remanded for a new trial because the court found palpable error where jury instruction violated unanimity by covering two separate instances of the offense. Molly Mattingly represented Ms. Bauer on appeal. 

Contributed by Julia Pearson

KYSC - Rodriguez - Unanimous Verdict

Rodriguez v. Commonwealth, 2012-SC-000049-MR (rendered 4/25/13) (to be published)

The Court reversed a Class A felony incest conviction for new proceedings because the trial court’s jury instruction, which covered an extremely long time period, failed to require a unanimous determination beyond a reasonable doubt that the victim was under 12 years of age at the time of the offense.  

Susan Balliet was the appellate attorney.

Contributed by Kathleen Schmidt