Johnson v. Commonwealth

676 S.W.3d 405

Mark JOHNSON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2021-SC-0541-MR

Supreme Court of Kentucky.

June 15, 2023

Rehearing Denied September 28, 2023

COUNSEL FOR APPELLANT: Aaron Reed Baker, Assistant Public Advocate.

COUNSEL FOR APPELLEE: Jenna M. Lorence, Assistant Solicitor General, Bryan D. Morrow, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE CONLEY

This case comes before the Court on appeal as a matter of right¹ by Mark Johnson, the Appellant, from the conviction and sentence of the Muhlenberg Circuit Court. After a jury trial, Johnson was found guilty of theft by unlawful taking, $500 - $1,000; and two counts of burglary in the third degree. The jury then found him guilty of being a persistent felony offender in the first degree. The jury recommended a consecutive sentence of five years each for the third-degree burglaries, totaling ten years, with an enhanced sentence to twenty years each for being a persistent felony offender. The total sentence imposed by the trial court was twenty years.

Johnson now appeals alleging four errors. First, that the greenhouse he burglarized cannot be considered a building under KRS ² 511.010(1) ; second, that the instructions for both counts of burglary in the third degree violated his right to a unanimous jury; third, during the penalty phase, the Commonwealth elicited misleading testimony as to when Johnson would be eligible for parole in order to convince the jury to impose the maximum sentence; and fourth, also during the penalty phase, that the Commonwealth elicited testimony about alleged crimes Johnson was charged with but subsequently were dismissed or amended. For the following reasons, we affirm in part, reverse in part, and remand for a new penalty phase to be conducted.

I. Facts

Johnson was "friends with benefits" of Samantha Hall. Hall had a Chevy Cobalt vehicle that she frequently used to drive Johnson where he wanted to go. On January 12, 2021, Johnson asked Hall to drive him to a piece of property located on Highway 2270 in Muhlenberg County, owned by Kenneth Dillihay. He told her he wanted to go and steal things. At the Dillihay property, Hall testified, she waited in the car and from there observed Johnson enter multiple buildings, including a greenhouse. Dillihay testified this was a "high tunnel" greenhouse and was being used to store farm equipment and house goats. Specifically, among the farm equipment stored in the greenhouse, was a tiller, grinding stone, miter saw, and a corn sheller. Johnson left the greenhouse and placed these items in the trunk of Hall's car. The vehicle, however, got stuck in the mud and grass. In the process of dislodging the car, Hall took a photo of the items in her trunk and sent them to a Sheriff's Deputy with whom she worked as an informant. She told the deputy where they were, that "he"—referring to Johnson—was stealing things, and that the car was stuck. By the time the deputy arrived on the scene, Johnson and Hall had dislodged the car, but the deputy testified his visual inspection of the scene showed tire marks and tracks confirming Hall's story. Hall testified she and Johnson drove to his mother's residence and stored the stolen property there. The miter saw, at least, was eventually recovered at the residence by police.

Later, on January 18, 2021, Johnson again asked Hall to drive him to another property for the purpose of theft. This property was on Lonely Lane in Muhlenberg County, and was owned by the Muhlenberg Alliance for Progress, Inc. William Scott was the previous owner, and he had sold the property to the Muhlenberg Alliance but had an agreement with it that he could continue to use the land for farming purposes. Johnson had told Hall that he had previously been to the property on January 16, 2021. Once again, Hall testified to observing Johnson enter multiple buildings on the property, leaving one building with gas cans and another building with milk cans.

Between January 16 and 18, Scott was aware a theft had occurred because he noticed some items missing, including a Marlin rifle. He owned some trail cams and set those cameras up to observe the property. Photos from the trail cameras taken on January 18 show Johnson carrying the gas jugs. The gas jugs were subsequently recovered at Johnson's own residence. During both thefts Johnson was wearing a GPS ankle monitor and records submitted show that Johnson was indeed on the respective properties on the dates in question.

At trial, Johnson sought dismissal of the count for third degree burglary related to the high tunnel greenhouse on the Dillihay property arguing it did not qualify as a building under the controlling statute. That motion was denied. A motion for directed verdict for the same reasons was made at the close of the Commonwealth's evidence and once more at the close of all evidence. Both were denied. When the jury was instructed for the guilt phase, it was given instructions for two counts of burglary in the third degree. No objection was made to these instructions at trial, but Johnson now argues they violated his right to a unanimous jury verdict by failing to require the jury to be unanimous as to which building Johnson had unlawfully entered on either property. After finding Johnson guilty of both counts of third-degree burglary, as well as a misdemeanor count of theft by unlawful taking, a penalty phase was conducted.

During the penalty phase, the Commonwealth called Camron Laycock, the Muhlenberg Circuit Clerk, to testify to eight other felonies Johnson had previously committed. One of these was in fact a misdemeanor conviction. Parole Officer Fouse was called to testify regarding parole eligibility and related sentencing matters, as well as Johnson's record while previously on probation or parole. She testified to numerous parole violations as well as "charges" stemming from said parole violations. Johnson has identified three of these charges as being incorrect, because they were later amended prior to a guilty plea or dismissed altogether. Johnson did not object to any of this testimony during the penalty phase. Regarding parole eligibility, Fouse had a colloquy with the Commonwealth regarding good time credits, the difference between two "calendar years" and "jail years," and the impact this would have on Johnson's total sentence and minimum time served to be eligible for parole. This testimony was also not objected to at trial.

We will develop the facts further below in our analysis, but the law must first be clarified before any fruitful consideration of the facts can be made.

II. Analysis

A. Unanimous Verdicts

The issues presented by this case are the two that have bedeviled this Court for more than a decade in jury unanimity cases: defining precisely what constitutes a juror unanimity issue and proper application of the palpable error standard of review. Justice Cunningham once wryly observed, "we typically spend page after page doing textbook analysis of this issue with almost every jury unanimity issue we review." Johnson v. Commonwealth , 405 S.W.3d 439, 461-62 (Ky. 2009) (Cunningham, J., concurring in part and dissenting in part). Alas, we must venture "once more unto the breach[.]" William Shakespeare, Henry V, act. III, sc. 1, l. 1. The dispositive questions we must answer are first, whether the Commonwealth has presented multiple theories (alternative means) of one burglary in the third degree for each count, or whether each instruction encompassed multiple, separate criminal acts (multiple acts) of burglary in the third degree. If there has been an error in the jury instructions, then we must secondarily determine whether it was palpable.

We begin with a review of our recent precedent on what constitutes a juror unanimity violation. In Harp v. Commonwealth , we held

that in a case involving multiple counts of the same offense, a trial court is obliged to include some sort of identifying characteristic in each instruction that will require the jury to determine whether it is satisfied from the evidence the existence of facts proving that each of the separately charged offenses occurred.

266 S.W.3d 813, 818 (Ky. 2008). In Johnson v. Commonwealth , we held "a general jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof—violates the requirement of a unanimous verdict." 405 S.W.3d 439, 449 (Ky. 2013).

This type of unanimous-verdict violation occurs when a jury instruction may be satisfied by multiple criminal acts by the defendant. When that is the case, and the instruction does not specify which specific act it is meant to cover, we cannot be sure that the jurors were unanimous in concluding the defendant committed a single act satisfying the instruction.

Martin v. Commonwealth , 456 S.W.3d 1, 7 (Ky. 2015), abrogated on other grounds by Sexton v. Commonwealth , 647 S.W.3d 227 (Ky. 2022). Finally, a

third type of unanimity error also appears to exist in our jurisprudence—a potential violation of unanimity stemming from a ‘combination jury instruction.’ ‘A "combination" instruction permitting a conviction of the same offense under either of multiple alternative theories does not deprive a defendant of his right to a unanimous verdict, so long as there is evidence to support a conviction under either theory.’

Brown v. Commonwealth , 553 S.W.3d 826, 839 (Ky. 2018) (quoting Robinson v. Commonwealth , 325 S.W.3d 368, 370 (Ky. 2010) ). This leads to the conundrum of the present case as Johnson contends the Johnson rule is controlling—that the proof for each count of burglary in the third degree actually supported two separate unlawful entries into two buildings, i.e., multiple acts of the same criminal offense. The Commonwealth contends that the rule cited in Brown is controlling—that the two separate unlawful entries into a building for each count are merely alternative theories of how a single...