COMMONWEALTH OF KENTUCKY V. RICKEY D. LEAP
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2004-SC-000138-DG
COMMONWEALTH OF KENTUCKY
V
APPELLANT
ON DISCRETIONARY REVIEW FROM COURT OF APPEALS
APPEAL FROM CAMPBELL CIRCUIT COURT
NO . 00-CR-00241
RICKEY D. LEAP
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
The Defendant-Appellee, Rickey D. Leap, was convicted of assault
in the 4th degree, wanton endangerment in the 1 St degree and of being a
persistent felony offender (PFO) in the 1 St degree .
Upon appeal, the Court of
Appeals remanded Leap's convictions for wanton endangerment and as a PFO
for further findings by the trial court regarding vacation of several of the
convictions . The Commonwealth sought relief in this court and we granted
discretionary review .
We now reverse the Court of Appeals and reinstate the
judgment of the trial court.
The victim, testified that after meeting Appellant at a bar she agreed to
take a ride with him . They left and went to another bar where they drank some
more and smoked some pot .
Her blood alcohol level when tested was .322 .
Eventually, they ended up in Leap's mothers' basement, where Leap beat her
savagely and repeatedly . She did not know how her clothes came off, but she
remembers being in a car, and then the next thing she knew she was on the
ground and he kept kicking her . He ultimately left her, beaten and nude on the
side of the road . She had fractures on the left side of her face and the bone was
split down the middle . Her eyeball muscle was trapped in the fracture and she
did not have normal movement of her eyeball, while her vision was blurred . She
had another fracture that would never heal completely.
Currently she has a
plastic insert behind her eye to keep it from sinking further into her skull .
She was in bed for a month, her head hurt, she was dizzy and could not
focus. She also testified that the left side of her face sags and she would always
have double vision.
Leap was initially indicted for assault 2nd degree, unlawful imprisonment
degree and PFO 1 St degree.
1St
However, on the morning of the trial, the
Commonwealth dismissed the unlawful imprisonment charge . The trial ended in
a mistrial on February 7, 2002 due to a hung jury; whereupon it was reassigned
for retrial on May 8, 2002 .
On
March 21, 2002,
Leap was indicted for 1 St degree
wanton
endangerment . At retrial, both indictments were tried together and he was found
guilty of
4th
degree assault, 1 St degree wanton endangerment and as a PFO in
the 1 St degree and sentenced to ten (10) years imprisonment .
Upon appeal, the Court of Appeals remanded Leap's convictions for
wanton endangerment and as a PFO. They found that the late addition of the
degree
wanton
presumption
of
endangerment charge
"prosecutorial
following the
vindictiveness ."
mistrial,
However,
created
because
1St
a
the
Commonwealth had not had an opportunity to rebut the "presumption of
vindictiveness" post-trial, the Court of Appeals remanded the matter to the trial
court for a hearing on the issue, placing the burden, however, on the
Commonwealth to demonstrate a "neutral objective reason" why it could have not
brought the wanton endangerment charge concurrently with the original
indictment.
PALPABLE ERROR
The Court of Appeals acknowledged in its opinion that the issue of
"prosecutorial vindictiveness" was not properly preserved for appellate review,
unless it was reviewable as "palpable error" under RCr 10.26.
Thus, the
allegation of error can only be reviewed under the "palpable error" rule to
determine if (1) error resulted, (2) it affected the substantial rights of the party,
and (3) whether or not it resulted in manifest injustice .
RCr 10.26, see
Schoenbachler v. Commonwealth, 95 S.W .3d 830, 836 (Ky. 2003) .
But first we must consider whether or not the allegation is in fact "error ."
Only then can we consider the questions of "palpable," "substantial rights" and
"manifest injustice ."
THE APPLICABILITY OF "PROSECUTORIAL
VINDICTIVENESS" PRIOR TO CONVICTION .
The Appellee contended, and the Court of Appeals held, on the facts at
hand, that the presumption of "prosecutorial vindictiveness" as first enunciated in
North Carolina v . Pearce , 395 U .S . 711, 89 S .Ct. 2072, 23 L.Ed.2d 656 (1969),
(overruled in part by Alabama v . Smith, 490 U.S. 794, 109 S.Ct. 2201, 104
L. Ed.2d 865 (1989)), was applicable to additional charges brought following a
mistrial. Thus, the Court of Appeals remanded the case back to the trial court for
a hearing on any evidence the Commonwealth might present to overcome the
presumption applied.
In this regard, it must first be noted that Pearce was
actually two (2) consolidated cases; one on behalf of the Appellant, Pearce,
the other on behalf of the Appellant, Rice.
"Pearce was convicted in a North Carolina Court . . . .The trial judge
sentenced him to prison for a term of 12-15 years .
Several years later he
initiated a state post-conviction proceeding which culminated in the reversal of
his conviction by the Supreme Court of North Carolina, upon the ground that the
involuntary confession had unconstitutionally been admitted into evidence
against him . He was retried, convicted and sentenced by the trial judge to an 8year prison term, which, when added to the time Pearce had already spent in
prison . . . amounted to a longer total sentence than that originally imposed." Id. at
713.
Rice, on the other hand "[p]leaded guilty in an Alabama trial court to four
separate charges. . . .He was sentenced to prison terms aggregating ten years .
Two and one-half years later the judgments were set aside . . . upon the ground
that Rice had not been accorded his constitutional right to counsel . (citation
deleted) He was retried upon three of the charges, convicted and sentenced to
prison terms aggregating 25 years ." Id . at 714.
In Pearce, the United States
Supreme Court held that "in order to insure the absence of such [vindictiveness],
we have concluded that whenever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for his doing so must affirmatively
appear . Those reasons must be based upon objective information concerning
identifiable conduct on the part of the defendant occurring after the time of the
original sentencing proceeding . And the factual data upon which the increased
sentence is based must be made a part of the record, so that the constitutional
legitimacy of the increased sentence may be fully reviewed on appeal." Id. at
726.
Later however, the Rice companion case in Pearce was overruled by
Alabama v . Smith, 490 U.S . 794,109 S.Ct . 2201, 104 L. Ed.2d 865 (1989) . In
Smith , a grand jury indicted respondent for burglary, rape and sodomy, all related
to a single assault.
"He agreed to plead guilty to the burglary and rape
charges in exchange for the state's agreement to
dismiss the sodomy charge . The trial judge granted
the state's motion to dismiss the sodomy charge,
accepted respondent's guilty plea, and sentenced him
to concurrent terms of 30 years imprisonment on each
conviction . Later, respondent succeeded in having
his guilty plea vacated and went to trial on the three
original charges before the same trial judge . The jury
found him guilty on all three counts . This time the
judge imposed a term of life imprisonment for the
burglary conviction plus a concurrent term of life
imprisonment on the sodomy conviction and a
consecutive term of 150 years imprisonment on the
rape conviction . The judge explained that he was
imposing a harsher sentence than that imposed
following the guilty plea because the evidence
presented at trial, which he had been unaware of at
the time sentence was imposed on the guilty plea,
convinced him that the original sentence had been too
lenient." Id . at 794.
On appeal, the Alabama Supreme Court reversed, holding that "the increased
sentence created a presumption of vindictiveness similar to that set forth in
Pearce . . . ." Id.
The United States Supreme Court then reversed the Alabama
Supreme Court, holding the application of the "presumption of vindictiveness" is
limited to circumstances in which there is a reasonable likelihood that an
unexplained increase in a sentence is a product of actual vindictiveness .
Notably, the rule has now been extended to prosecutors in post-conviction
stages . BIackledcLe v. Perry, 417 U .S . 21, 94 S .Ct. 2098, 40 L.Ed.2d 628 (1974) .
Later in Bordenkircher v. Hayes , 434 U.S . 357, 98 S .Ct. 663, 54 L.Ed .2d
604 (1978), the court held it is not a violation of "due process" when the state
prosecutor carries out a threat made during plea negotiations to have the
accused re-indicted on more serious charges on which he is plainly subject to
prosecution if he does not plead guilty to the offense with which he was originally
charged .
"The court has emphasized that the due process violation in cases
such as Pearce and Perrv lay not in the possibility that a defendant might be
deterred from their exercise of a legal right (citation deleted), but rather in the
danger that the state might be retaliating against the accused for lawfully
attacking his conviction." Bordenkircher at 667, 668.
"The imposition of punishment is the very purpose of virtually all criminal
proceedings . The presence of a punitive motivation, therefore, does not provide
an adequate basis for distinguishing governmental action that is fully justified as
a legitimate response to perceived criminal conduct from governmental action
that is an impermissible response to noncriminal, protected activity . Motives are
complex and difficult to prove .
As a result, in certain cases in which action
detrimental to the defendant has been taken after the exercise of a legal right,
the court has found it necessary to `presume' an improper vindictive motive.
Given the severity of such a presumption, however - - which may operate in the
absence of any proof of an improper motive and thus may block a legitimate
response to criminal conduct - - the court has done so only in cases in which a
reasonable likelihood of vindictiveness exists." United States v. Goodwin , 457
U.S . 368, 373 102 S .Ct. 2485, 2489 73 L.Ed .2d 74 (1982) .
"There is good reason to be cautious before adopting an inflexible
presumption of prosecutorial vindictiveness in a pretrial setting. In the course of
preparing a case for trial, the prosecutor may uncover additional information that
suggests a basis for further prosecution or he simply may come to realize that
information possessed by the state has a broader significance ." Id . at 381 .
(emphasis added) .
"As
noted,
United States Supreme
Court cases
have applied a
presumption of prosecutorial vindictiveness to the filing of increased charges
after a successful appeal, but have not extended this presumption to the pretrial
context. The court has never considered a vindictiveness claim in the mistrial
context. Courts in other jurisdictions have pointed out that a mistrial does not fall
clearly into either the pretrial or the post-trial category ." State v. Johnson, 605
N .W.2d 846, 853 (Wis . 2000) (citing United States v. Mays, 738 F.2d 1188, 1190
(11 th Cir. 1984)) .
"in cases like the one before us, the 7th Circuit has observed that `courts
have consistently held that no realistic likelihood of vindictiveness is found when
a jury is deadlocked and both parties agree that a declaration of mistrial is
necessary. . . .' Johnson at 853 (citing United States v. Whaley, 830 F.2d 1469,
1479-80 (7th Cir. 19871, abrogated in part on other grounds by United States v.
Durrive, 902 F.2d 1221, (7th Cir. 1990) .
Many state courts are in agreement .
These courts generally reason that no appearance of vindictiveness is created
when a prosecution adds charges after a mistrial caused by hung jury, because
the defendant has exercised no protected right against which the prosecutor
might retaliate ." Mays-738 F. 2d at 1190.
On the other hand the California Supreme Court in Twiggs v.
Court, 667 P.2d
1165, 1170 (Cal.
Superior
1983) did uphold a presumption of
"prosecutorial vindictiveness" following a mistrial situation . "Here the defendant
has endured a trial and a mistrial due to a hung jury, and when he asserts his
right to a jury retrial rather than plead guilty and accept a prison term, he is faced
with the possibility of greater punishment than he could have received if the
prosecution has secured a conviction, apparently as a result of pursuing his right
to be tried by a jury. . . ." Id. at 1170.
In this case the Appellant was also charged with 1 St degree PFO .
For
PFO purposes, there had to be a concurrent felony conviction . Having dropped
the 1 St degree unlawful imprisonment charge and having later realized from the
mistrial how frail the evidence of 2nd degree assault was, there had to be another
valid felony charge to support the PFO 1 St degree. This decision was validated
when the jury on the retrial again did not find the felony assault, but found the 1 St
degree wanton endangerment, an appropriate charge from the facts of the
incident .
The prosecution has an obligation to the Commonwealth to properly
charge and convict persons guilty of criminal conduct as defined in our Kentucky
Statutes . Adding an additional felony charge, which was appropriate under the
facts, in order to support the charge of PFO, was its job; otherwise the addition of
the PFO charge would not be supportable. This is not evidence of a "vindictive
motive," nor is the timing of the addition .
The first mistrial was in February 2002 and the retrial was ordered for May
8, 2002 .
Adding the charge on March 21, 2002, was appropriate and even
necessary as anything later would have put the scheduled trial, or additional
indictment, at risk . Thus, the timing here is not evidence of vindictiveness .
Finding no evidence of such in this record, we are not disposed to extend
the presumption of "prosecutorial vindictiveness," as enunciated in Pearce and
Perry , to the pretrial setting. As set out in Smith , "[b]ecause the Pearce
presumption may operate in the absence of any proof of an improper motive and
thus . . . block a legitimate . response to criminal conduct. . . we have limited its
application like that of `other judicially created means of effectuating the rights
secured . . .,' to circumstances where its objectives are thought most efficaciously
served . . . . Such circumstances are those in which there is a reasonable
likelihood . . . that the increase in sentence is the product of actual vindictiveness
on the part of the . . .authority. Where there is no such reasonable likelihood, the
burden remains upon the defendant to prove actual vindictiveness ." Alabama at
799. (internal citations omitted) .
Thus, we now reverse the Court of Appeals to the extent of its remand for
a hearing and finding on "prosecutorial vindictiveness" and reinstate the trial
judgment and sentencing in full .
In doing so, we are cognizant of the fact that the Court of Appeals found
the "instructional error" to be harmless . Thus, we do not otherwise consider the
Appellee's
arguments regarding
"double jeopardy" and the
"inclusion
of
misdemeanor language in the instructions" as they are not within the scope of the
discretionary review granted. Commonwealth v. Smith , 5 S .W.3d 126, 129 130
(Ky. 1999).
For the reasons stated, the opinion of the Court of Appeals is reversed .
All concur.
COUNSEL FOR APPELLANT :
Gregory D . Stumbo
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Brenda L. Bonecutter-Tulley
The Barrister Building
530 York Street
Newport, Kentucky 41071
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