Kiper v. Commonwealth
399 S.W.3d 736
| Ky. | 2012Background
- Randal K. Kiper was convicted in Jefferson Circuit Court of attempted murder, two counts of first-degree assault, one count of first-degree wanton endangerment, and being a first-degree persistent felony offender, with a total sentence of seventy years.
- Burton and Saylor were the victims of a November 2009 drive-by shooting in which Burton was shot seven times and Saylor was paralyzed by a subsequent shot.
- The jury convicted for attempted murder of Burton, first-degree assault of Burton, first-degree assault of Saylor, first-degree wanton endangerment of Ferguson, and PFO; the assault convictions related to two victims.
- The trial court reduced the jury’s PFO-based sentence under the statutory cap to seventy years, with the 45-year attempted murder sentence, two 20-year assault sentences, and a 5-year wanton endangerment sentence, running in a mixed consecutive/concurrent arrangement.
- On appeal, Kiper challenged the convictions for both Burton’s attempted murder and Burton’s first-degree assault as a double jeopardy violation under KRS 505.020, plus alleged prosecutorial misconduct; the court addressed these challenges and issued a remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy under KRS 505.020 | Kiper argues Burton attempted murder and Burton first-degree assault violate KRS 505.020(l)(b). | Commonwealth contends Blockburger analysis allows both convictions. | KRS 505.020(l)(b) bars both convictions; remedy is vacating the lesser offense. |
| Prosecutorial misconduct claims | Prosecutor misstated law, vouched for credibility, commented on indictment, and cross-examined improperly. | Claims are unpreserved but cured by palpable-error review; no reversible error. | No reversible prosecutorial-misconduct error found. |
| Remedy for the double jeopardy violation | The remedy should be a new trial. | Vacate the lesser offense; keep the greater offense and total sentence intact. | Affirm attempted murder conviction; vacate the first-degree assault conviction for Burton. |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. Supreme Court, 1932) (establishes the Blockburger test for double jeopardy)
- Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996) (reinstated Blockburger as the primary basis for multiple convictions)
- Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992) (explains elements comparison between attempted murder and first-degree assault)
- Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011) (recognizes when first-degree assault is a lesser-included offense of attempted murder under certain conditions)
- Welborn v. Commonwealth, 157 S.W.3d 608 (Ky. 2005) (discusses multiple punishments where separate attacks show a cognizable lapse of conduct)
- Lloyd v. Commonwealth, 324 S.W.3d 384 (Ky. 2010) (remedies for double jeopardy violations in similar contexts)