Travis v. Commonwealth
2010 Ky. LEXIS 296
| Ky. | 2010Background
- Aug. 21, 2007: police respond to report of a man hurt; victim Humphrey describes two robbers and later identifies Travis and Dawson.
- Police locate Travis and Dawson within an hour near the robbery site; a loaded, defaced .45 handgun is found nearby.
- Humphrey testifies that Travis and Dawson robbed him at gunpoint, taking wallet and cell phone; he identifies both men.
- TRAVIS and DAWSON are convicted after a four-day trial of first-degree robbery, handgun by felon, defaced firearm, and first-degree persistent felony offender (PFO).
- Sentences: Travis 20 years robbery + 8 years firearm, concurrent total 20 years (enhanced to 27 via PFO); Dawson 20 years robbery + 8 years firearm, consecutive total 28 years (enhanced to 35 via PFO).
- Court costs ($130) and a felony-conviction fee ($1000) are imposed despite indigent status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Imposition of fines and costs on indigents | Travis, Dawson argue fines/costs improper for indigents | Commonwealth argues sentencing cures error? | Fines/costs vacated; sentencing error acknowledged but harmless as to other issues. |
| Whether robbery verdict was unanimous given combination instruction | Instruction allowed conviction on theory (theft or attempted theft) not fully supported by evidence | Evidence supported either theft or attempted theft; verdict remains unanimous | No reversible unanimity problem; testimony supported robbery under either theory. |
| Whether PFO instructions contained superfluous theories not supported by evidence | Parts 5 and 7 (and for Dawson parts 6,7) unsupported by evidence | Superfluous language could be harmless if not reasonably relied upon by jurors | Errors were harmless; Burnett v. Commonwealth overruled as to preservation; conviction affirmed but fines reversed. |
Key Cases Cited
- Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994) (indigence affects imposition of fines and costs)
- Wellman v. Commonwealth, 694 S.W.2d 696 (Ky. 1985) (sentencing issues may be raised on appeal despite no objection)
- Cummings v. Commonwealth, 226 S.W.3d 62 (Ky. 2007) (jurisdictional sentencing issues proper on appeal)
- Boulder v. Commonwealth, 610 S.W.2d 615 (Ky. 1980) (unanimity issues with multiple theories; evidence-supported theories valid)
- Hayes v. Commonwealth, 625 S.W.2d 583 (Ky. 1981) (same concept as Boulder; properly framed theories required)
- Burnett v. Commonwealth, 31 S.W.3d 878 (Ky. 2000) (overruled on some grounds; surplus language may be harmless if not preserved)
- Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008) (identical-instruction risk of nonunanimous verdict; need for distinguishable instructions)
- Leahy, 445 F.3d 634 (3d Cir. 2006) (overbroad instructions can be harmless where no evidence supports them)
- Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2007) (palpable error vs harmless error; avoid mixing concepts)