Garrett v. Commonwealth Of Ky.

ARTEZ GARRETT, APPELLANT

v.COMMONWEALTH OF KENTUCKY, APPELLEE

2008-SC-000471-MR

Kentucky Supreme Court

RENDERED: DECEMBER 16, 2010

IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM KENTON CIRCUIT COURT

HONORABLE DOUGLAS M. STEPHENS, JUDGE

NO. 05-CR-00723-001

MEMORANDUM OPINION OF THE COURT

AFFIRMING

On October 7, 2005, Appellant and his two colleagues, John Edwards and Rayshawn Kelly, broke into a Kenton County house where they found three residents: Shawn Ruff, Michael Johnson, and Phillip Northcutt. The first housemate the perpetrators encountered was Shawn Ruff. While Kelly threatened Ruff, forcing him to the couch on the first floor, Appellant and Edwards went upstairs and found Michael Johnson lying on a bed. They put a gun to his head and demanded money. He gave them $650.00. Johnson was told that if he looked up he would be shot. The perpetrators then took Johnson's cell phone and a lock box belonging to Phillip Northcutt. As Appellant left, he turned back towards the couch and shot Ruff, who was attempting to shut the front door.

Later that day, when police arrested Appellant and his two comrades, they found $240.00 on Appellant and the lock box containing marijuana and drug-dealing accessories. Appellant admitted entering the house and firing his pistol, but maintained that he was only trying to scare the residents.

On December 9, 2005, Appellant, Edwards, and Kelly were indicted on two counts. The first count charged Appellant with first-degree robbery, in violation of KRS 515.020, and stated that Appellant "committed a theft, in Kenton County, Kentucky and during the theft... used or threatened the immediate use of physical force upon another person to accomplish the theft." The second count charged Appellant with first-degree assault when "he intentionally shot with a gun Shawn Ruff and caused Ruff to suffer a serious physical injury, which is in violation of KRS 508.010."

Three months later, on March 3, 2006, Appellant was again indicted. This indictment charged Appellant as a second-degree persistent felony offender, to which he ultimately entered a guilty plea. Although it was a new indictment, the charge was labeled as Count Three and exhibited the same case number as the original indictment.

Several days later, Appellant was indicted a third time on two more robbery charges, which were marked as Counts Four and Five and were virtual replicas of the initial robbery charge contained in the original indictment. The only distinction is that the latter charges identified Phillip Northcutt and Michael Johnson as the specific victims of the robbery. These charges werealso labeled with the same case number as the original indictment. However, the latter robbery charges were subsequently severed from the other charges for purposes of trial.

Appellant was convicted as charged in the original indictment for first-degree robbery and first-degree assault. He received a sentence of ten years on each conviction, enhanced to twenty years by virtue of his status as a persistent felony offender. He now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

Unanimity and Due Process

Appellant challenges his conviction on the first-degree robbery charge on due process and unanimity grounds. He states that the jury was permitted to convict him of first-degree robbery based on any of four possible combinations of victims. At trial, Appellant objected to the court's instructions and tendered his own. However, he never raised any specific concern about the instructions given by the court. His own instructions did not improve on those of the court as to the unanimity issue. They refer to unidentified "persons," whereas the instructions now being challenged simply identify those persons. In essence, they say the same thing. Therefore, the issue was not preserved and is subject to review only for palpable error. See RCr 10.26.

To say the least, the drafting of the indictments in this case, as well as the jury instructions, was ineptly done and constituted error. The three indictments returned against Appellant referred to varying identities of thevictims. In fact, as Appellant argues in one of his claims of error, the instructions to the jury included victims from counts which had been severed from this trial and set for trial at a later time. This was clearly error; however, the challenged instruction was merely a consolidation of all the offenses into one and for all of which there was sufficient evidence. We cannot find that Appellant suffered palpable error, when in reality he received a break by being convicted of only one count of first-degree robbery. The bungling of the charges and instructions did not create "manifest injustice." RCr 10.26. See Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006) (holding that an unpreserved error does not justify relief "unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.'"); Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).

Instruction No. 5 given to the jury in this case advised the jury to find Appellant guilty of first-degree robbery if they believed three elements beyond a reasonable doubt:

A. That [he]... stole or attempted to steal property from Michael Johnson and/or Phillip Northcutt;

AND

B. That in the course of so doing, and with intent to accomplish the theft, he used or threatened the immediate use of physical force upon Shawn Ruff and/or Michael Johnson;

AND

C. That when he did so, he was armed with a deadly weapon....

Appellant asserts that based on these instructions, especially the two alternatives listed in both A and B, there are four distinct ways in which the jury could convict him of first-degree robbery. Namely, the jury could convict Appellant of:

1. stealing or attempting to steal from Johnson and using or threatening physical force against Ruff;

2. stealing or attempting to steal from Johnson and using or threatening physical force against Johnson himself;

3. stealing or attempting to steal from Northcutt and using or threatening physical force against Ruff; or

4. stealing or attempting to steal from Northcutt and using or threatening physical force against Johnson.

Appellant contends that these combinations permitted the jury to convict him without reaching a unanimous verdict.

This Court held more than thirty years ago "that a verdict can not [sic] be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense." Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978). See also Ice v. Commonwealth, 667 S.W.2d 671, 677 (Ky. 1984); Caudill v. Commonwealth, 120 S.W.3d 635, 666-67 (Ky. 2003).

In Halvorsen v. Commonwealth, 730 S.W.2d 921, 925 (Ky. 1986), the trial court instructed the jury to find the defendants guilty of murder under eitherprincipal or complicity thereof. Although the instructions led to a guilty verdict that was silent as to which jurors found principal liability and which found complicity, this Court found no error. The Court stated: "A verdict cannot be attacked as being non-unanimous where both theories are supported by sufficient evidence.'' Id. As there was sufficient evidence of both principal and complicity liability, the Court determined that the defendants had not been deprived of their right to a unanimous verdict. Id.

With this case law soundly in place, we now apply it to the facts in this case.

The first requirement of the instruction in question was that Appellant "stole or attempted to steal property from Michael Johnson and/or Phillip Northcutt." The evidence was ample that he did. He took $650.00 and a cell phone from Michael Johnson and a lock box from Phillip Northcutt. The second element required that, "with the intent to accomplish the theft, he used or threatened the immediate use of physical force upon Shawn Ruff and/or Michael Johnson." Appellant and his partners in crime shot Shawn Ruff. They also placed a gun to the head of Michael Johnson.

Therefore, while there may have been more than one way in which Appellant could have been convicted of first-degree robbery, each theory was amply supported by the evidence. It should be noted that for first-degree robbery, under KRS 515.020, there is no requirement that the theft be committed against the same person against whom the physical force is used orthreatened to be used. Morgan v. Commonwealth, 730 S.W.2d 935, 938 (Ky. 1987). Appellant was ultimately convicted of a single offense of first-degree robbery. The fact that the evidence and jury instructions could have amounted to several convictions of first-degree robbery is of no significance as long as all theories are supported by sufficient evidence.

The U.S. Supreme Court held in 1991 that there was no due process violation when, under the instructions, the defendant could have been convicted of either intentional killing or felony murder—two entirely different types of murder. Schad v. Arizona, 501 U.S. 624 (1991). It would be stretching "palpable error" to the breaking point in this case...