Kelly v. Commonwealth, 554 S.W.3d 854

Background

In April 2013, J.K., then 16, left her home with Jeremy Kelly and was sexually assaulted; DNA from semen on her stomach matched Kelly. Kelly was later indicted on multiple felony counts including first-degree rape, incest, first-degree sexual abuse, and fleeing or evading.
A bench warrant issued; in December 2014 the Commonwealth asked the court to place the matter on a "fugitive docket." The court entered an order described as dismissing the indictment without prejudice and stating the indictment could be reinstated upon arrest.
Kelly was arrested in Washington, extradited, arraigned October 2, 2015, and the Commonwealth moved to "reinstate" the indictment; the court granted the motion without objection and no new indictment was returned.
At a March 2017 jury trial Kelly was convicted of first-degree rape, incest, first-degree sexual abuse, and second-degree fleeing or evading; jury also found him a second-degree persistent felony offender; sentencing was capped at 70 years.
On appeal Kelly raised five claims: (1) procedural defect in indictment reinstatement violated due process; (2) insufficient evidence for fleeing or evading; (3) mistrial was required after alleged 404(b) testimony; (4) verdicts were non-unanimous; and (5) improper fine imposed on an indigent defendant.

Issues

Issue	Plaintiff's Argument (Kelly)	Defendant's Argument (Commonwealth)	Held
Indictment reinstatement/ due process	Dismissal without re-indictment meant prosecution was invalid and violated due process	Procedural misstep but subject-matter jurisdiction existed; no prejudice and issue was waived at trial	Reinstating the indictment was procedurally impermissible, but Kelly waived the particular-case jurisdiction claim; no due process violation shown because he had fair notice and suffered no prejudice — conviction affirmed
Sufficiency of evidence for fleeing or evading	Conviction should stand with other counts	Commonwealth concedes insufficient evidence for fleeing or evading	Conviction for second-degree fleeing or evading vacated
Mistrial for alleged admission of excluded 404(b) evidence	J.K.'s testimony alluding to prior acts required mistrial	Defense did not request admonition or mistrial; statements were confused/attenuated and some were elicited or invited by defense strategy	Claim unpreserved; no palpable error affecting substantial rights; mistrial not required
Jury unanimity (multiple-incident testimony)	Multiple vague references to other incidents deprived Kelly of unanimous verdict	Evidence of other incidents was vague/hearsay and not sufficient to create a unanimity problem; any statements were fleeting and some were invited by defense	No reasonable likelihood jurors relied on different incidents; unanimity preserved
Imposition of fine on indigent defendant	Fine violated statute because Kelly was indigent	Commonwealth concedes error	Fine vacated

Key Cases Cited

Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005) (dismissal without prejudice is final and trial court loses particular-case jurisdiction; re-indictment required)
Commonwealth v. Smith, 131 S.W. 391 (Ky. 1910) (distinguishing "filing away" with reservation from an unconditional dismissal; re-indictment or new warrant required after dismissal)
Commonwealth v. Steadman, 411 S.W.3d 717 (Ky. 2013) (distinguishing subject-matter jurisdiction from particular-case jurisdiction; latter is waivable)
Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010) (erroneous jury theories only implicate unanimity if jurors could reasonably have relied on them)
Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (multiple-incident testimony can violate unanimity if jurors could convict based on different incidents)
Hagner v. United States, 285 U.S. 427 (U.S. 1932) (formal defects in indictments that do not prejudice substantial rights are disregarded)
United States v. Combs, 369 F.3d 925 (6th Cir. 2004) (indictment protects notice, double jeopardy, and Fifth Amendment guarantees)