Paul T. Elam Jr v. Commonwealth of Kentucky
2015 SC 000701
| Ky. | Nov 15, 2016Background
- Appellant Paul T. Elam was indicted on multiple sexual-offense counts: 32 sodomy and 32 sexual abuse counts as to one child (Brenda) and one sexual-abuse count as to a second child (Mary); two witness-tampering counts arose from a jail letter asking his wife to dissuade the children from testifying.
- The Commonwealth consolidated the tampering indictment with the sexual-offense indictment; the court denied Elam's motion to sever Count 33 (the single count involving Mary) from the counts involving Brenda.
- Prior to jury submission the Commonwealth dismissed 37 counts; the jury convicted Elam of 15 sodomy counts (all concerning Brenda), 13 sexual-abuse counts (12 Brenda, 1 Mary), and 2 tampering counts.
- Elam appealed, arguing (1) improper consolidation/severance (joinder prejudice), and (2) violations of unanimity and indictment duplicity due to numerous identically-worded counts.
- The Supreme Court of Kentucky reviewed joinder/severance under RCr 6.18/9.12 and severance under RCr 8.31 (formerly 9.16), and reviewed unanimity/duplicitous-indictment arguments under Johnson/Ruiz precedent.
Issues
| Issue | Plaintiff's Argument (Elam) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether trial court erred by consolidating witness-tampering indictment with sexual-offense indictment | Consolidation was improper because tampering is not "same or similar character" as sexual offenses and would be prejudicial | Tampering arose from and was logically connected to the sexual charges (effort to prevent testimony); consolidation permissible as "transactions connected together or parts of a common scheme or plan" | Affirmed: consolidation proper; strong nexus and evidence would be admissible in separate trials (inextricably intertwined / consciousness of guilt) |
| Whether trial court abused discretion by denying severance of Count 33 (Mary) from counts involving Brenda | Joinder of Mary count with many Brenda counts was prejudicial; KRE 404(b) would bar cross-admission and jury might punish for multiple victims | Counts are of same/ similar character and connected (same perpetrator, similar victims, similar time/age pattern); mutual admissibility under common-scheme exception to KRE 404(b) | Affirmed: denial of severance not an abuse of discretion—joinder proper and not unduly prejudicial |
| Whether jury instructions violated unanimous-verdict requirement (Johnson) | Identical/indistinguishable counts and flawed instructions risk non-unanimous verdicts because jurors might convict on different acts | Jury instructions differentiated the events and tied verdicts to specific factual descriptions; unanimity preserved | Affirmed: instructions complied with Johnson/Ruiz; verdicts unanimous |
| Whether indictment was duplicitous and whether defect was preserved | Indictment contained many identically-worded counts (duplicitous); this undermines notice and unanimity | Defendant failed to timely object or seek bill of particulars; remedies available at trial were not pursued; thus defect waived | Affirmed: any defect waived for failure to raise pretrial/request bill of particulars; no palpable error shown |
Key Cases Cited
- Johnson v. Commonwealth, 405 S.W.3d 439 (Ky. 2013) (unanimous-verdict principles for multiple-count sexual-offense prosecutions)
- Ruiz v. Commonwealth, 471 S.W.3d 675 (Ky. 2015) (duplicitous-indictment concerns and permissive charging practices discussion)
- Peacher v. Commonwealth, 391 S.W.3d 821 (Ky. 2013) (joinder advantages and requirement of a logical nexus for joinder)
- Cherry v. Commonwealth, 458 S.W.3d 787 (Ky. 2015) (trial court should sever if joinder would be prejudicial despite meeting RCr 6.18)
- Roark v. Commonwealth, 90 S.W.3d 24 (Ky. 2002) (test for undue prejudice on consolidation: would evidence be admissible in separate trials)
- Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998) (evidence of attempt to suppress testimony/tampering shows consciousness of guilt)
- Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky. 2006) (standard of review for severance under RCr 9.16/8.31)
- Murray v. Commonwealth, 399 S.W.3d 398 (Ky. 2013) (appellate review requires showing of actual prejudice and clear abuse of discretion)
- Rearick v. Commonwealth, 858 S.W.2d 185 (Ky. 1993) (common-scheme exception for admitting related sexual-act evidence)
- Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978) (constitutional requirement of unanimous jury verdict)