*1 Gary BENTON, Appellant, CRITTENDEN,
Roger Judge, Franklin Court, Appellee,
Circuit (Real Kentucky
Commonwealth
Party Interest), Appellee. Kentucky, Appellant, Benton, Appellee. 97-SC-1075-MR,
Nos. 98-SC-263-DG.
Supreme Kentucky.
Dec. 1999.
Rehearing April Denied *2 Ky. for a
petition prohibition, writ of § 115. Const.
I. FACTS. evening of On December Rhenda Doyle and Mills and Rhenda’s fa- ther, Bonner, shopping William had been McNally, McNally M. Kevin & Robin- Wal-Mart store in Frankfort. son, Frankfort, Maurer, Karen Assistant Upon their return to the Millses’ Advocate, of Department Public Public Ad- automobile, Buick LeSabre which sedan Frankfort, Seoville, N. vocacy, Warren lot, parked parking the Wal-Mart Scoville, Cessna, Associates, London, & for brandishing an a African-American male Gary Benton. seat pistol way his the back forced into next to where Bonner was seated. Chandler, III, Attorney General,
A.B. around Frankfort, gunman Doyle forced to drive Cleveland, Mills Wayne Larry Cleve- Frankfort, Ayer, approxi- land & Matthew D. Nel- and Shelby Franklin Counties for son, General, Attorney Assistant Office of trip, Mr. mately During an hour. General, Attorney Criminal Divi- Appellate gunman Mills overheard the tell sion, Frankfort, for Commonwealth of me, you “I told not to look at I you told Kentucky. gunman me.” Eventually, look at stop
ordered Mills to at a secluded location of Opinion the court by Justice on Woodlake Road where the car he took COOPER. keys from Mills and ordered Mr. and Mrs. get Mills and Bonner to out of the vehicle Benton a was indicted hill. walking adjacent and start down an jury for grand “carjacking,” the offenses of separated became in the dark- § three a U.S.C. and use of firearm violence, during crime 18 U.S.C. testified ness. Mr. and Mrs. Mills both 924(c). § A trial resulted in complain- they gunman overheard the general verdict guilty. of not Benton was keys and ing that he could not find the car subsequently indicted a Franklin Coun- responded Mills that there was Mrs. ty, Kentucky, grand charges jury on keys Shortly set of purse. extra her murder, kidnapping robbery and thereafter, both Millses like heard sound degree, arising first all out the same jingling keys, single gunshot, then a which gave incident rise to the federal following gunman departed indictment. The Franklin Circuit Court scene in their vehicle. The Millses subse- dismissed indictment for murder as quently single found Bonner dead of estoppel, barred KRS gunshot Doyle wound to the Neither head. 505.050(2), but denied a to dismiss motion Mills of the nor Rhenda ever saw the face the indictments for and rob- kidnapping them, person kidnapped who and robbed bery. appealed they phy- though dismissal of the murder indictment and were able to describe petitioned prohibit Benton for a writ to identify sique. specifically Neither could robbery the kidnapping trial of indict- Gary gunman. as the Benton Both ments. issues are now before this However, circum- there was substantial discretionary review Com- was indeed stantial evidence 76.20, appeal, monwealth’s CR and on di- appeal rect from Bon- kidnapped the denial Benton’s and killed results, (3)if fined under death Doyle kidnapped ner and robbed any number or imprisoned title A testified expert Rhenda Mills. ballistics life, both, or sentenced years up to fired a 9-mm that the fatal bullet was to death. Warfield by Frank Warfield. pistol owned *3 provisions, to these Pursuant weapon to testified that he had loaned the respect as followswith instructed days two before the murder. Benton of the indictment: to Count One Benton There witnesses saw were Code, Section 18 United States Title night driving a Buick LeSabre anyone, makes a crime stolen, others who Millses’ vehicle was and death or serious bodi- the intent to cause say heard he obtained the vehicle Benton harm, to take a ly attempt to take or Warfield, Jago, “at Wal-Mart.” D’Von transport- has been vehicle which motor and Damon Stroud all testified Ben- ed, in interstate received shipped, or had to them that he car- ton admitted person presence from the or commerce jacked and killed Bon- the Millses’ vehicle or by by and violence of another force said he ner. Stroud testified Benton intimidation. killed Bonner had “looked Bonner because guilty to find the defendant you For of the getting at him” as out car. crime, of the alleged Count One Indictment, you similar to that of the be physique Benton’s must convinced of the proved has each government Mr. Mrs. Mills. gunman by described and doubt. following beyond a reasonable fingerprint palm print A latent and a found That on December FIRST: prints inside the Millses’ vehicle matched defendant, Benton, or took at- taken from Benton. to take a motor vehicle from tempted His was an alibi. ver- Benton’s defense Mr. Bonner presence or person Mills; carjacked the and Mrs. sion was that Warfield and Mr. LeSabre, That the defendant did so
Buick SECOND: then used the vehicle to intimidation; force, violence, or home, give explaining ride thus the defendant intended THIRD: That finger palm prints how Benton’s came harm; bodily death or serious to cause to be in the Millses’ vehicle. taking That FOURTH: statute, carjacking 18 U.S.C. by the the motor vehicle § provides: transported in inter- vehicle had been commerce; state Whoever, the intent to cause acted the defendant FIFTH: bodily harm death or serious takes intentionally. knowingly and transported,
motor vehicle that has been or or received for- shipped, interstate term “interstate commerce” eign person pres- or commerce from between one commerce or travel means violence ence of another force and or state, possession or territory intimidation, so, to do attempts or state, territo- and another United States shall— ry possession or including District Columbia. (1) impris- fined under this title or trade, travel, trans- Commerce includes both, years, or more than 15 oned not portation, communication. (as (2) bodily injury if defined serious that he and wife Doyle Mills testified ...) results, 1365 of this title section Buick new LeSabre purchased imprisoned Louisville, be fined under this title or Ken- Buick from Jim Cooke both, company pro- tucky. employee An of that years, than or not more factory duced a invoice which reflected the Franklin require proof Circuit been shipped vehicle had Jim element which others do KRS not. 505.050(l)(a); Cooke Buick from General Corpo- Motors Commonwealth v. Burge, ration, Flint, (1996), Michigan. Ky., 947 S.W.2d de cert. nom., nied Effinger sub v. Kentucky, 522 924(e) § 18 U.S.C. is a penalty en- L.Ed.2d 323 provides hancement statute which for in- only remaining creased penalties if crime of violence or a whether the Franklin Circuit Court indict drug trafficking crime is committed while ments are barred doctrine of collat of, in possession convicted was eral as embodied in KRS brandished, discharged a firearm. 505.050(2). *4 924(c)(1). § Carjacking is a “crime of vio- 924(c)(3). § lence” under this statute. jury
The
III. COLLATERAL
separately
was instructed
ESTOPPEL.
under
Count Two
penalty
as to this
enhancement
case on the application
seminal
statute,
including an instruction that “you of
prosecu
collateral
to a criminal
cannot convict under Count Two unless
Swenson,
436,
tion is
397
90
Ashe v.
U.S.
you have found
defendant guilty
under
(1970).
1189,
S.Ct.
L.Ed.2d 469
In that
25
Count
One.” Since the
returned a
case,
engaged
poker
six men
were
in a
general verdict
“not guilty,” they
of
never
game in
private
of a
resi
basement
reached the enhancement
instructions of dence
were robbed
several masked
Count Two.
men.
of
acquitted
Ashe was indicted and
of
robbery
poker players.
of one
The Franklin
Court
Circuit
indictment
He was subsequently indicted and convict
charged Benton with the intentional or
ed of the
of another of
robbery
poker
wanton murder
kidnappings
of
players. The
Supreme
United States
Millses,
of Bonner and the
and the first-
Court held that the second trial
pre
was
degree robbery Mrs.
(relating
Mills
cluded
principle
estop
the theft
purse).
of her
pel as
in the Fifth
embodied
Amendment
proscription against
jeopardy.
double
II. DOUBLE JEOPARDY.
test
applied
was stated as follows:
The United States of America
previous judgment
Where a
acquittal
and the
of Kentucky
Commonwealth
are
verdict,
was based
upon
general
as is
separate sovereigns. Under the dual sov
case,
usually this approach requires
doctrine,
ereignty
mere fact that
Ben
a court to
prior
“examine the record of a
ton
was tried
in
proceeding,
taking into account
court
preclude
prosecution
does not
evidence,
pleadings,
charge, and other
the Franklin
if
Circuit
even
both
matter,
relevant
conclude whether
prosecutions involved the same conduct
grounded
rational
have
could
its
and the same offenses. Koon v. United
upon
verdict
an issue other than that
States,
112,
81,
2035,
116 S.Ct.
which the defendant seeks to foreclose
2053,
(1996);
135
392
L.Ed.2d
Heath v.
the subsequent
[in
consideration
Alabama,
433,
474
106
U.S.
S.Ct.
88
proceeding].”
(1985);
Illinois,
L.Ed.2d 387
v.
Bartkus
359
U.S.
79 S.Ct.
5
“actually
was
victim;
igation he seeks
foreclose
identity of
and a
trials
”
not
believed that
rational
could
have
and Mon
first proceeding,
decided
robbery
participate
in the
Ashe did
147,153,
U.S.
tana v. United
poker players,
partici-
but
one
(1979)
tion in the added.) (Emphasis necessarily prior pro was determined in a ceeding”). holding These statutes and our in in with the
Hillebrand are accord test de- argues that because Ashe, in enunciated as as the supra, well alibi, an carjacking at the trial was fense Supreme post-As/ie United States Court’s necessarily jury must have de- the federal States, Dowling in decisions su person cided that he was not 350-51, 1, 493 110 at pra, n. S.Ct. LeSabre, he carjacked Buick thus that 673 that burden on the defendant to person been who kid- relit- could not have demonstrate that issue whose Supreme unnecessarily applied higher may have a stan- 1. The United States Court has since 404(b) acquittal a criminal case does held that in of Rule evi- dard introduction preclude of the introduction of evidence dence, interpretation holding in its "prior trial as a same conduct in applicable is at least to Ashe v. Swenson 404(b), FRE bad act” under because Rule represent- estoppel scenario normal collateral 404(b) jury merely evidence is relevant if the this ed the facts of case. preponderance believes of the evidence act the defendant was occurred and 505.040(2) prose- applies to former KRS States, Dowling the 342, v. United actor. 505.050(2) jurisdiction. KRS cution this 348-49, 107 L.Ed.2d here) (as prosecution in applies to a former (1990) (citing v. United Huddleston 1496, 1501, jurisdiction. another U.S, (1988)). Although Hillebrand L.Ed.2d napped and engaged murdered kidnapped interstate commerce. One of Mills, Mr. and the drivers died from Mrs. and stole Mrs. wounds received in Mills’s the attack. Smith was first indicted and purse. disagree. Regardless We of Ben- tried charges federal authorities on defense, ton’s government alibi he willfully, intent endanger still required prove every element of the safety board, any or with a offense. There were at least two other disregard reckless safety for the of human possible jury’s general bases ver- life, disabled, disable, or attempted to guilty. dict of not could have used, operated motor employed vehicle believed that Benton did not form in- §§ interstate commerce. 18 U.S.C. tent to cause the death of Bonner until 34. Smith was of the federal after had already he stolen Millses’ charge general “not guilty” under ver- ie., automobile, after took the keys dict. He then indicted a Pike Doyle Mills and ordered occu- Kentucky, County, grand jury for the mur- pants out of the vehicle. Or the could der of Against the truck driver. a claim of have believed that government pre- estoppel, the Commonwealth ar- sented insufficient to prove evidence be- gued could have yond a reasonable doubt that the Buick found guilty Smith because did not had transported been in interstate com- believe proven beyond government merce. a reasonable doubt that the coal truck was being operated interstate commerce at usually “Since it is impossible to deter majority the time A shooting. any precision upon mine with what basis argument Court found that reached a in a verdict criminal “more theoretical than real” concluded *6 case, it a in is rare situation the jury acquitted federal the defen- estoppel collateral will defense be available they dant because did not believe was to a defendant.” States v. Tra shooting. involved in the 792 S.W.2d at (2d munti, 1334, Cir.1974), 500 F.2d 1346 374-75. denied, cert. 419 95 42 In concluding solely sup- on the basis of (1974); L.Ed.2d 673 United States v. Ciof position the jury acquitted that F,2d (2d fi, Cir.1973), and n. Smith on the substantive issue rather than nom., cert. denied sub Ciuzio v. United jurisdictional one, the in the Court Smith 40 v. ignored “necessarily Lowe deter- the (1974). Swenson, L.Ed.2d 774 In Ashe mined” requirement established the jury the first could have rationally not federal courts and the “must have been grounded upon its verdict a belief that decided” in standard enunciated Common- participate Ashe did in the robbery of Hillebrand, fact, wealth v. supra. poker one player, but in participate did opinion in completely ig- v. Lowe Smith However, robbery of another. the federal Hillebrand, nored which was control- in jury Benton’s case carjacking could have ling precedent state Finally, this issue. rationally instead of grounded assigning proof its verdict on an issue the burden of of the issue in to Court other than whether Benton was the simply Smith v. a finding Lowe made of who way forced his into the Millses’s vehi premised upon fact what it assumed was night cle on the of December 1995. likely jury the most basis for verdict: holding asserts that our in this that “[I]t obvious ac- directly case is contrary holding in quitted it simply Paul Smith because Lowe, Ky., Smith v. S.W.2d not believe Irvin Smith.” 792 S.W.2d at (Smith) There, the defendant and others lawyers judges Trial and trial of ambushing were accused two coal deal juries daily trucks on a basis know that inqui sense kind of common gen- precisely a anything “obvious” about seldom is Supreme Court States a it is naive which the United jury, ry and that eral verdict There, analysis. particular a Ashe urged a decided in its that assume most which received the on the issue stated: case true particularly at trial. attention made clear have decisions The federal where the Common- in a criminal case in estoppel rule of collateral ele- every to prove has burden
wealth applied with not to be cases is criminal doubt beyond case reasonable ment of its ap- and archaic hypertechnical required prove and the defendant is century pleading proach aof 19th all. anything at book, rationali- with realism and but significant v. Lowe was Smith ac- ty. previous judgment Where ex departure from and unwarranted upon general ver- was based quittal in Ashe tension of rule enunciated dict, case, approach usually isas Swenson, supra. now overrule Smith We to ‘examine record requires a court estab v. Lowe and reinstate the standard taking into ac- proceeding, of a 505.050(2) in KRS and Common lished evidence, charge, pleadings, count the Hillebrand, supra, prin viz: the wealth v. matter, conclude and other relevant precludes a ciple could have a rational whether prosecution only if the defen subsequent upon an issue other its verdict grounded for the decision proves dant defendant seeks to which the than that prosecution required mer a determination in- from consideration.’ foreclose to his any necessary inconsistent practical in a frame quiry ‘must be set subsequent prosecution, conviction eye to all the cir- with an and viewed e., first must have decided i. Any proceedings.’ cumstances necessary to first on an issue convict case technically restrictive test more case. course, would, simply to a amount estop- rejection of collateral rule meet bur- Because Benton did not pel proceedings, at least in criminal case, in this we affirm the proof den judgment every the first case where petition of prohibi- denial of a writ upon general verdict of based 97-CA-2233, the dismissal *7 tion reverse acquittal. for murder 97-CA- of his indictment to Frank- and remand this action the 443-44, Ashe, at at 90 S.Ct. 397 U.S. proceedings
lin Circuit Court for further added) (emphasis at 475-76 25 L.Ed.2d indictment. on the merits of the omitted). (internal citations
GRAVES, KELLER and which Benton seeks precise The WINTERSHEIMER, JJ., concur. in the from consideration” foreclose “to case(s) bar, the Benton was at whether STUMBO, J., separate dissents acts the horrendous who committed LAMBERT, C.J., and opinion, and Mr. Bonner. the Millses against JOHNSTONE, J., that dissent. joining in the jury the to whether order determine STUMBO, Justice, dissenting. Benton acquitted could have federal case (or, than its disbelief any reason other I strenu I must dissent. Respectfully, rather, reasonable beyond a lack of belief to result reached ously object not doubt) perpetrator, case, was the to its that Benton majority in this but also by the Lowe, to record of federal Ky., must look we to overrule Smith decision us. As stated is now before being an trial which Far 792 S.W.2d above, in a prac- “must be set inquiry our of Ashe v. Swen “unwarranted extension” eye to all with an son, frame and viewed 25 tical 90 S.Ct. 397 U.S. proceedings.” (1970), circumstances of the Smith demonstrates L.Ed.2d at at Based on the Millses’ uncontradicted trial, testimony L.Ed.2d at 476. at there can be no doubt first, that events described in the sec- reviewing After tran- portions and fifth easily prov- ond instructions were trial, script of the federal along with the car, en. clearly Someone took their instructions, jury indictment and it force, intimidation, violence and and did so clear to me that knowingly intentionally. trial did simply beyond not believe a rea- Similarly, hearing testimony after sonable doubt Benton was the perpe- the medical testified examiner who trator. The transcript clearly reflects that Mr. Bonner shot in head at was close in dispute the sole issue at the federal trial range, the jury could not have doubted identity was the perpetrator. perpetrator intended cause Mr. defense did not contradict Millses’ ver- harm, bodily Bonner’s death or serious as sion of the events they suffered on that required by the third instruction. Con- tragic but night, merely rather established trary majority’s analysis of this that neither got good survivor look issue, the instructions this case did not assailant, their and that neither could iden- require to find that Benton tify Benton as the man who rode formed the intent to cause Mr. Bonner’s them in the vehicle for Fur- over hour. stealing death the Millses’ car. before thermore, testimony of Benton’s Lastly, given the fact defense “friends,” who stated that Benton con- had did dealer cross-examine the car them, fessed committing the crime to was car established that the Millses’ had been Moreover, full of contradictions. several commerce, shipped through interstate of these friends gun had access to the can there be little doubt that fourth Mr. killed to the Millses’ jury’s instruction satis- proven car, and to the car which the Millses iden- argues faction. The it is assailant, belonging tified as to their possible quite jury simply did not un- several accepted pros- a deal from the importance derstand the car-dealer’s ecution in exchange testimony for their testimony in establishing the interstate against Benton. commerce element set forth in instruction four, number thus Benton instructions federal trial because believe element required to find each of the fol- proven beyond doubt. a reasonable lowing beyond a reasonable doubt before majority opinion this ridicu- latches convicting Benton: denying notion lous as its basis for 16,1995, FIRST: on December relief, requested simply ground on the Benton, at- took or judges that “trial ... lawyers and trial *8 tempted take a motor from vehicle anything know there is seldom ‘obvious’ or presence of Mr. Bonner general In jury.” about of a verdict Mills; and Mr. and Mrs. case, nothing instant could be further from the truth. That SECOND: the defendant did so
force, intimidation; violence or jurist What rational could believe that jury, convinced that Benton although That THIRD: the defendant intended to gunpoint, abducted these drove people bodily harm; cause death or serious hours, of them in them around for shot one taking FOURTH: That head, then the others on a desert- left the motor vehicle by the car, ed road while he took off in their transported vehicle had been in inter- acquitted simply the man because it commerce; state transported car had been believe the FIFTH: the defendant acted interstate commerce? To so conclude and knowingly intentionally. the com- ignore completely would approach dictated Ashe and mon-sense
deftly applied Smith. tried
Benton was and disput- jury. District Court issue in that trial was whether
ed By acquitting the crimes. Ben-
committed charged, resolved
ton of the crime words, con- other issue. it, at least
cluded that Benton didn’t do prove failed to prosecution that Benton did
beyond reasonable doubt This fact the crux of all
it. issue of and charges state court
three “necessary quintessential is the subsequent prosecution.”
conviction identity is that
What matters the issue favor, been resolved once in Benton’s
has may be forced to defend time. The
against second pro- principle jeopardy
bedrock double
tection, 505.050(2),prohib- in KRS codified Kentucky Benton’s trial in state court
its acquittal criminal
after the same in federal court.
conduct
Accordingly, I would affirm trial charge,
court’s dismissal the murder trial grant prohibiting the writ proceeding charges on the
court robbery.
kidnaping JOHNSTONE,
LAMBERT, C.J., and
J., join. Kentucky,
COMMONWEALTH of
Appellant, DAVIS, Appellee. Edward
Charles
No. 98-SC-0164-DG. *9 Kentucky.
Supreme Court
Dec. 1999. Modified Jan. 2000.
As
Rehearing April Denied