Ordway v. Commonwealth
2011 Ky. LEXIS 142
Ky.2011Background
- Appellant was convicted of multiple robberies, burglaries, and thefts in Christian County in 2007, with one robbery at the Ideal Market.
- Turnley, Appellant's girlfriend, confessed to several robberies and implicated Appellant in each.
- A gun and other items were found in Turnley’s apartment during a search pursuant to a warrant.
- Appellant was convicted on multiple counts; the handgun charge was tried separately and resulted in acquittal.
- The jury found Appellant to be a persistent felony offender and sentenced him to prison terms with some consecutive and concurrent counts.
- Appellant appeals on collateral estoppel, search-warrant standing, jury instruction errors, double jeopardy, and admissibility of a letter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collateral estoppel on armed-robbery issue | Ordway argues acquittal on felon-in-possession bars robbery evidence. | Commonwealth contends acquittal does not bar related robbery proof. | Collateral estoppel does not bar robbery proof; only the acquitted handgun-possessory issue is barred. |
| Standing to challenge search | Ordway had standing as a resident/possessor of Turnley’s apartment. | Ordway lacked standing to contest the search. | No standing shown; suppression denied on that basis. |
| Jury instructions on Eagle Mini Storage burglaries | Identical instructions per count violated unanimity; palpable error. | Unanimity implied by verdict; error harmless. | Nine identical instructions constituted palpable error; those counts reversed. |
| Double jeopardy on thefts from single incident | Appellant argues two thefts arose from one offense. | Two thefts arose from separate acts within the same incident. | One theft conviction vacated; two ATVs treated as one theft. |
| Admission of Appellant's letter | Letter authentication challenged. | Letter authentication proper under KRE 901(b)(4). | Letter properly authenticated; admissible evidence. |
Key Cases Cited
- Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (collateral estoppel as to issues actually decided)
- Dowling v. United States, 493 U.S. 342 (U.S. 1990) (Rule 404(b) admissibility of acquitted conduct)
- Sealfon v. United States, 332 U.S. 575 (U.S. 1948) (restricts interpretation of prior verdicts against retrial)
- Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009) (palpable error standard for identical jury instructions)
- Bell v. Commonwealth, 245 S.W.3d 738 (Ky. 2008) (unanimity and sufficiency when defendant convicted on all counts)
- Jackson v. Commonwealth, 670 S.W.2d 828 (Ky. 1984) (single theft generally supports a single conviction)
- Fair v. Commonwealth, 652 S.W.2d 864 (Ky. 1983) (multiple items from same location – single theft principle)
- Napier v. Jones By and Through Reynolds, 925 S.W.2d 193 (Ky. App. 1996) (scope of collateral estoppel and related evidentiary effect)
- Sussman v. Commonwealth, 610 S.W.2d 608 (Ky. 1980) (standing to challenge search of girlfriend's residence)
- Bruner v. Commonwealth, 192 Ky. 386 (Ky. 1921) (consent to search by owner or person in charge)
- Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004) (authentication considerations under KRE 901)