Williamson v. Com.

• Decision Date: 06 April 1989
• Docket Number: No. 88-SC-157-MR,88-SC-157-MR
• Citation: 767 S.W.2d 323
• Parties: Robert WILLIAMSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 323

767 S.W.2d 323

Robert WILLIAMSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-157-MR.

Supreme Court of Kentucky.

April 6, 1989.

Allen Button, Gittleman Bleidt & Barber, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Michael L. Harned, Asst. Atty. Gen., Frankfort, for appellee.

LAMBERT, Justice.

This matter of right appeal is from appellant's conviction of two counts of trafficking in cocaine for which he received sentences totaling twenty years. In this proceeding, two claims of error are asserted.

For a proper understanding of the issues, it is necessary to review the procedural history of this case. In 1985, appellant was tried upon these charges and convicted. He received sentences totaling ten years. Upon appeal to the Court of Appeals, error was claimed, inter alia, in the trial court's instructions to the jury pertaining to the penalty to be imposed. Specifically, the instructions failed to inform the jury that in lieu of imprisonment a fine of not less than $5000 nor more than $10,000 might be imposed. The relief sought was a new trial on both guilt and punishment.

Despite appellant's failure to properly object to the instructions, the Court of Appeals reviewed the error pursuant to CR 61.02 and granted a measure of relief. In its opinion, the Court of Appeals said:

Complying with the dictates of Bruce v. Commonwealth, Ky., 581 S.W.2d 8 (1979), a new trial is warranted on the penalty phase only, and appellant's conviction is otherwise affirmed. The newly impaneled jury will be advised of the appellant's guilt, as per the conviction and will be charged with the responsibility of fixing a sentence and/or imposing fine pursuant to KRS 218A.990(1).

Thus, appellant was granted a new trial on only the penalty phase with a new jury to impose sentence under a proper instruction. Appellant did not petition the Court of Appeals for rehearing or modification of its opinion nor did he move this Court for discretionary review. At the expiration of the prescribed time, the opinion of the Court of Appeals became final and the case was remanded to the trial court.

On remand, the trial court obeyed the direction of the Court of Appeals. Over appellant's objection, a new jury was selected for the purpose of fixing sentence and as a result of this proceeding, appellant received two ten-year sentences to be served consecutively.

The principal issue raised on this appeal is appellant's contention that KRS 532.055 requires determination of both guilt and penalty by the same jury and that the trial court and/or the Court of Appeals erred in ordering retrial only of the penalty phase by a different jury. Prior to addressing the merits, we must first determine whether this is properly before us or whether the "law of the case" doctrine precludes our consideration of this question.

It is fundamental that when an issue is finally determined by an appellate court, the trial court must comply with such determination. The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision. City of Lexington v. Garner, Ky., 329 S.W.2d 54 (1959) and E'town Shopping Center, Inc., v. Holbert, Ky., 452 S.W.2d 396 (1970).

It necessarily follows, therefore, that if a party is aggrieved by an adverse appellate determination, his remedy is in an appellate court at the time the adverse decision is rendered. This is so because an objection in the trial court is futile and an appeal from the trial court's implementation of the appellate determination is nothing more than an attempt to relitigate an issue previously decided.

In Siler v. Williford, Ky., 375 S.W.2d 262 (1964), an action was brought for damages arising out of an automobile collision. On the first appeal (Siler v. Williford, Ky., 350 S.W.2d 704 (1961)), the judgment was reversed for erroneous instructions and the case remanded for a new trial. In its opinion on the first appeal, however, the Court of Appeals also decided a separate issue and determined that the question of plaintiff's contributory negligence was properly submitted to the jury. Upon retrial, similar evidence was presented upon the contributory negligence issue and this Court held that the law of the case doctrine governed the second appeal. We said:

When an appellate court decides a question concerning evidence or instructions, the question of law settled by the opinion is final upon a retrial in which the evidence is substantially the same and precludes the reconsideration of the claimed error on a second appeal.

375 S.W.2d at 263. Likewise, in Martin v. Frasure, Ky., 352 S.W.2d 817 (1962), upon the fifth appeal involving various phases of a thirty-year family legal feud, appellant attacked certain earlier proceedings on the grounds that they were "inequitable and unlawful." In response, we said:

A final decision of this Court, whether right or wrong, is the law of the case and is conclusive of the questions therein resolved. It is binding upon the parties, the trial court, and the Court of Appeals. It may not be reconsidered by prosecuting an appeal from a judgment entered in conformity therewith.

352 S.W.2d at 818. The policy underlying the rule was explained as follows:

Such decisions are in accord with the policy that all litigation should finally come to an end. The judgments entered in the Floyd Circuit Court in obedience to the mandates of this Court and the judgments therein from which no timely appeal has been taken or on which no timely attack has been made are final.

352 S.W.2d at 819.

For litigation to proceed in an orderly manner and finally settle the rights of the parties, it is necessary for parties to timely assert the rights they claim to a court with power to grant the relief sought. Martin v. Frasure, supra, at 818. One cannot accept the benefits of that portion of an opinion which is favorable and later relitigate that portion which is not. Upon receipt of an appellate court opinion, a party must determine whether he objects to any part of it and if he does, petition for rehearing or modification or move for discretionary review. Upon failure to take such procedural steps, a party will thereafter be bound by the entire opinion.

In the case at...