Kiper v. Commonwealth

• Decision Date: 25 April 2013
• Docket Number: No. 2010–SC–000768–MR.,2010–SC–000768–MR.
• Citation: 399 S.W.3d 736
• Parties: Randal Keith KIPER, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

399 S.W.3d 736

Randal Keith KIPER, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000768–MR.

Supreme Court of Kentucky.

Nov. 21, 2012.

As Modified on Denial of Rehearing April 25, 2013.

Karen Shuff Maurer, Assistant Public Advocate, Department Of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, James Daryl Havey, William Robert Long, Jr., Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

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.¹ We affirm the remainder of his convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

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 struck Saylor's spine and left her paralyzed for life. At the scene, and again at the hospital, Burton named Appellant as the assailant.

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.²

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,³ for a total of seventy years' imprisonment.

This appeal followed.

II. APPELLANT'S CONVICTIONS FOR BOTH ATTEMPTED MURDER OF BURTON AND FIRST–DEGREE ASSAULT OF BURTON VIOLATE KRS 505.020(1)(b)

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, seeRCr 10.26.⁴Cardine v. Commonwealth, 283 S.W.3d 641 (Ky.2009) (“Double jeopardy violation resulting when defendant was retried following trial court's sua sponte declaration of mistrial on less than manifest necessity constituted palpable error.”).

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,⁵ which is the test we typically employ to determine if multiple convictions have been improperly imposed for the same conduct in violation of the double jeopardy clause of the Fifth Amendment. Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.1996) (“Thus, [after a period of abandonment] ⁶ we return to the Blockburger analysis.”); see alsoKRS 505.020(1)(a), (2). In the alternative, the Commonwealth argues that there was no double jeopardy violation because some of the shots fired at Burton constituted criminal attempt to commit murder, while other shots represented first-degree assault.⁷

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.

A. Double Jeopardy and KRS 505.020

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.

KRS 505.020 expresses our statutory structure for analyzing whether multiple convictions for the same course of conduct are permissible as follows:

(1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:

(a) One offense is included in the other, as defined in subsection (2); or

(b) Inconsistent findings of fact are required to establish the commission of the offenses; or

(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.

(2) A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:

(a) It is established by proof of the same or less than all...