366 S.W.3d 399
Ky.2012Background
- Defendant Robert D. Smith and two accomplices robbed a grocery store on July 26, 2010; clerk identification linked Smith to the attack and accomplices to the case.
- Sharon Smith and Karmisha Hughes pled guilty and testified against Smith; clerk testified that Smith attacked her with a flashlight.
- Smith confessed to a beating but denied using any implement; evidence showed a flashlight used as the weapon.
- Jury convicted Smith of first-degree robbery and first-degree persistent felony offender; sentence of 32 years recommended.
- Smith challenged (a) the jury instruction allowing a theory that accomplices used force, despite no evidence of such force, and (b) a surplus clause in the judgment stating court costs and fines are credit time served.
- The Kentucky Supreme Court held the instruction error harmless and vacated the surplus clause, remanding for entry of a new judgment excluding that clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity requirement violated by the instruction | Smith | Commonwealth | Harmless error; no unanimous-error reversal |
| Surplus language about fines/costs in judgment | Smith | Commonwealth | Vacate surplus language; remand for new judgment excluding it |
Key Cases Cited
- Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978) (combination instructions allowed when evidence supports both theories)
- Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980) (inadequate evidence for one theory makes instruction error)
- Hayes v. Commonwealth, 625 S.W.2d 583 (Ky.1981) (same principle as Boulder re: insufficiently supported theory)
- Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000) (earlier rule on unanimity; later narrowed by Travis)
- Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010) (reaffirmed unanimity concern; held surplus language harmless if no evidence misled jury)
- Shepherd v. Commonwealth, 251 S.W.3d 309 (Ky.2008) (preservation of error; palpable error review context)