Payne v. Com., 80-SC-627-MR

• Citation: 623 S.W.2d 867
• Decision Date: 13 October 1981
• Docket Number: No. 80-SC-627-MR,80-SC-627-MR
• Parties: Kenneth N. PAYNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 867

623 S.W.2d 867

Kenneth N. PAYNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 80-SC-627-MR

Supreme Court of Kentucky.

Oct. 13, 1981.

Rehearing Denied Dec. 15, 1981.

Jack E. Farley, Public Advocate, M. Gail Robinson, Kevin Michael McNally, Asst. Public Advocates, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.

STERNBERG, Justice.

A Fayette County Grand Jury, on November 12, 1979, returned an indictment against the appellant charging him with eight counts of first-degree sodomy (KRS 510.070), one count of first-degree sexual abuse (KRS 510.110), and twenty counts of using a minor in a sexual performance (KRS 531.310). The acts giving rise to this indictment occurred during 1978 and 1979 and involved eleven juveniles and the appellant.

The eight counts of sodomy charge appellant with deviate sexual intercourse with a boy less than twelve years of age. The one count of sexual abuse charges appellant with subjecting a boy under the age of twelve years to sexual contact. Seven of the twenty counts of using a minor in a sexual performance are predicated upon appellant's act of video-taping a sexual performance by boys under the age of sixteen years. The remaining thirteen counts of using a minor in a sexual performance are predicated upon appellant's act of taking photographs of a juvenile less than sixteen years of age engaged in sexual conduct.

A nine-day jury trial resulted in appellant's being found guilty on all counts. The jury recommended the minimum sentence for each count, which would make a total sentence of forty years, and that all sentences run concurrently, for a maximum commitment of twenty years. The trial court sentenced appellant to the minimum penalty on each offense, but provided for the sentences to run consecutively, for a maximum period of forty years.

Appellant's motion for a new trial was denied. He brings this case to this court as a matter of right. On this appeal appellant argues ten alleged errors. The first two issues will be considered and disposed of together. They charge that:

"I. Appellant was deprived of a fair trial by the trial court's refusal to permit his counsel to inform the jury in closing argument about the consequences of a not guilty by reason of insanity verdict." (NGRI)

"II. Appellant was denied due process of law and a fair trial by the trial court's refusal to give the jury any cautionary instruction regarding the consequences of a not guilty by reason of insanity verdict."

At the appropriate time counsel for appellant requested the trial court to permit final arguments to include a discussion of the consequences of a NGRI verdict. Also, counsel for appellant tendered and sought to have the trial judge instruct the jury on the consequences of a NGRI verdict. Both motions were denied.

The time has come for this court to re-evaluate our position on these two very important issues.

In Edwards v. Commonwealth, Ky., 554 S.W.2d 380, 383 (1977), we held that an instruction which informs the jury that a defendant found not guilty by reason of insanity would be admitted to a mental hospital for treatment is improper because it "... has no legitimate bearing on the issue of fact to be decided by the jury when the defense of insanity has been raised, that issue being whether the defendant was mentally responsible when the criminal act was done ...."

While denying a jury instruction on the consequences of an acquittal by reason of insanity, our cases have allowed both prosecuting and defense counsel during closing arguments to comment on the consequences of an insanity verdict. Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977); Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980); Paul v. Commonwealth, Ky., --- S.W.2d ---- (rendered September 1, 1981).

The main function of the jury is to determine guilt or innocence. The constitutional right to a trial by jury is limited to that determination. Perry v. Commonwealth, Ky., 407 S.W.2d 714 (1966), cert. den. 386 U.S. 968, 87 S.Ct. 1052, 18 L.Ed.2d 121; Allison v. Gray, Ky., 296 S.W.2d 735 (1956), cert. den. 353 U.S. 914, 77 S.Ct. 673, 1 L.Ed.2d 668; Williams v. Jones, Ky., 338 S.W.2d 693 (1960), cert. den. 365 U.S. 847, 81 S.Ct. 808, 5 L.Ed.2d 811. The consideration of future consequences such as treatment, civil commitment, probation, shock probation, and parole have no place in the jury's finding of fact and may serve to distort it. For that reason we now hold that neither the prosecutor, defense counsel, nor the court may make any comment about the consequences of a particular verdict at any time during a criminal trial.

To the extent that Jewell, Gall, and Paul, supra, are inconsistent with this decision, they are overruled. We adhere to the reasoning of Edwards, supra: external considerations have no legitimate bearing on the jury's factual determination of guilt or innocence.

"III. The statute prohibiting use of a minor in a sexual performance (KRS 531.310) is unconstitutionally vague and overbroad."

Appellant charges that the statute prohibiting the use of a minor in a sexual performance (KRS 531.310), as interpreted through its definitional counterpart (KRS 531.300), violates the First and Fourteenth Amendments to the United States Constitution and Sections Eight and Eleven of the Kentucky Constitution as being vague and overbroad.

In Bailey v. Farmers' Bank of White Plains, 227 Ky. 179, 12 S.W.2d 312 (1928), this court said, "The law usually is what the average reasonable man thinks it ought to be." In Arlan's Dept. Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9 (1963), we recognized "... that if a law is so vague that the average reasonable man cannot intelligently choose in advance which course to follow, it is void."

Hindsight is better than foresight and any statutory scheme may possibly have been drafted more articulately. However, "(c)ondemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222, 228-9 (1972). The precise statutory language in question in this case runs afoul of neither the vagueness nor the overbreadth constitutional prohibitions.

KRS 531.310(1) is as follows:

"Use of a minor in a sexual performance.-A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance."

When making any determination in this area, the purpose of the rule against vagueness must be remembered.

"... First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227 (1972).

After dissecting the definitional statute, KRS 531.300, it is appellant's position that a person of ordinary intelligence is unable to determine what sort of conduct is proscribed by the statute prohibiting the use of a minor in a sexual performance. KRS 531.310. Appellant contends that the prohibition of the use of minors in actual or simulated "acts of ... homosexuality (or) lesbianism" is unconstitutionally vague. He finds impermissible vagueness in what he claims is the "circular definitional" process in which sexual conduct includes obscene exhibition of genitals and nudity, while the obscenity definition of KRS 531.300(3)(b) refers back to the sexual conduct definition.

Appellant complains that it is unclear whether the homosexual or lesbian activity prohibition includes such seemingly innocuous activity as "two females embracing or two males standing with their arms around each other." As this court has noted, "... common sense must not be a stranger in the house of the law." Cantrell v. Kentucky Unemployment Insurance Commission, Ky., 450 S.W.2d 235, 237 (1970). The definitional section read as a whole, coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. The possibility of unreasonable enforcement of any statutory prohibition always exists no matter how precise the statute and judicial interpretations of it.

A similar analysis dispenses with appellant's "circular definition" contention. It is true that KRS 531.300(4)(b) and (d) include in the definition of "sexual conduct by a minor" the obscene exhibitions of genitals and nudity. It is also true, as appellant claims, that KRS 531.300(3)(b), in providing a part of the definition "obscene," requires the material to depict or describe sexual conduct by a minor in a patently offensive way. Were this the entire definition of obscene, the reference back and forth between the sections may well be confusing to the ordinary person of common sense. However, appellant fails to note that the other two subsections in the definition of obscene, KRS 531.300(3)(a) and (c), which, together with KRS 531.300(3)(b), must be considered in determining whether the exhibition of male or female genitals or nudity constitutes "sexual conduct by a minor." Thus, in the subject action the exhibition or exposure of the unclothed human male or female genitals, pubic area or buttocks, or the female breast, as included in KRS 531.300(4)(b) and (d), is obscene and sexual conduct under the statute. The method of legislation by definitional cross-reference is one of common usage. It makes for clarity rather than vagueness.

Appellant submits that a clear and precise enactment may nevertheless be broad if in its reach it prohibits constitutionally...