Commonwealth v. Burge
947 S.W.2d 805
Ky.
1997
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*1 Kentucky, COMMONWEALTH of

Appellant,

Roger BURGE, Appellee, Keith

Gary HERRIFORD, Appellant, E. Kentucky,

COMMONWEALTH of

Appellee, Kentucky,

COMMONWEALTH of

Appellant,

Kenny EFFINGER, Appellee. 92-SC-287-DG,

Nos. 92-SC-873-

TG and 92-SC-896-TG. Kentucky. Court of

Aug. 1996.

As Modified on Denial of Rehearing

June *2 restraining for violation of a order issued case,

in a marriage dissolution of can bar a on double grounds. case, In each the individual in- *3 imprison- volved was sentenced to a term of contempt on ment citation. THE FACTS —NO. 92-SC-287-DG Roger Burge burglary, was convicted of rape, sodomy, degree. all in the first At the time of the event that led to these charges, Burge restraining was to a by order issued the Jefferson Circuit Court pending marriage dissolution of action. restraining prohibited Burge order from going entering about or occupied house wife, threatening, his assaulting, interfering or By otherwise with her. enter- ing the marital Burge residence violated that restraining order. He was found con- (90) tempt ninety days and sentenced to jail. Burge charges was then indicted on burglary, rape, sodomy. burglary charge Burge’s entry on founded into the marital home and assault on his wife. Trial counsel moved for dismissal of the bur- glary charge jeopardy grounds, Mulhall, Rogers, Turner, Wallace N. Hoff- contending Burge’s conviction for con- Coombs, Louisville, man & Roger for Keith tempt precluded subsequent prosecution. his Burge. denied, The motion was but the Court of reversed, Appeals relying upon Grady v. Goyette, Louisville, Daniel T. Frank W. Corbin, Heft, Jr., Chief Appellate Defender of the discretionary granted L.Ed.2d 548 Defender, Jefferson District Public Louis- view.1 re ville, Gary for E. Kenny Herriford and Ef- finger. THE FACTS —NO. 92-SC-873-TG Chandler, III, General, Gary DVO,

A.B. Attorney Herriford’s wife obtained a Grandon, provided Lana which Ferguson, Todd D. that he was restrained from Assistant Attorneys General, committing further acts of violence and abuse Appellate Criminal Divi- of, sion, disposing any and from Frankfort, Balliet, damaging, or Special John Assis- (1) property. their Less than one month Attorney General, Vest, II, Lloyd tant C. later, contempt Herriford was found General, Attorney Louisville, Assistant for having court for violated the DVO enter- Kentucky. Commonwealth of ing apartment, striking his wife’s her causing injury. with a bottle and He was OPINION OF THE COURT (6) sentenced to six months in the Home Program, granted Incarceration work appeals We have consolidated these be- release. they present cause the common issue of finding contempt whether a of criminal Herriford was then indicted the Jeffer- violation of a County domestic violence order Jury, [herein- son him Grand which DVO], 403.750, pursuant after degree by issued to KRS with assault the second inten- Appellant challenge rape omy does not his and sod- convictions in this Court. jail may for civil tionally causing injury his one sentenced physical wife While contemptuous contempt, it is said that deadly weapon dangerous in- means of keys jail pocket, to the his one carries strument. It is clear that the criminal release he is entitled immediate because charge arose from the same assault sentence, to the court’s order. upon his obedience in the of court resulted Campbell Schroering, Ky.App., 763 S.W.2d particulars bill of indicated that the dan- gerous a bottle. Herriford instrument was moved dismissal on double conduct Criminal grounds, but his motion was denied. He justice, to an obstruction “which amounts guilty plea to a then entered a conditional bring court into disre tends charge under extreme reduced of assault *4 463, Gordon, Ky. at supra, 141 pute.” disturbance, emotional and a sentence of “ punish ‘It is not the fact of at 208. S.W. (3) years imposed. three was Herriford’s purpose, its and rather character ment but to this Court. appeal was transferred distinguish’ from to civil that often serve v. contempt.” United criminal Shillitani THE 92-SC-896-TG FACTS —NO. 1531, 1535, States, 364, 369, 86 S.Ct. 384 U.S. (1966) 622, (quoting Gompers 16 L.Ed.2d Kenny Effinger charged first- was with 418, Co., Range Bucks & Stove retaliating against a wit- degree assault and 797, 492, 498, 441, 55 L.Ed. 31 S.Ct. entering Madry’s apartment Tonya ness (1911)). punish, purpose If the is to court’s August striking pipe on her with a metal and contempt. is criminal the sanction 1991, 3, act, 15, July 1991. Prior issued, Ef- which restrained DVO had been contempt can be either Criminal finger committing further acts of vio- contempt is A direct com direct or indirect. abuse, ordered that he was to lence and presence of the court and is mitted the Madry. August no On have contact with may be of the court. It dignity affront to the contempt of court Effinger held in was court, and re summarily by the punished to six and sentenced violation of the DVO function, all the fact-finding quires (6) jail. by months in He was then indicted matters within the offense are elements of for, Jury County among the Jefferson Grand In re personal knowledge of the court. the offenses, A crimes at issue. review other the Terry, 32 L.Ed. 128 U.S. Madry support filed of the affidavit (1888). contempt is com Indirect itself, hearing, hearing contempt and the the presence of the court and mitted outside the charges and the that the criminal reveals hearing presentation of requires and the the proceeding grounded on were of the court’s a violation evidence to establish Effinger’s motion to dismiss incident. same may punished only proceed It order. grounds granted jeopardy was on double satisfy v. Unit ings process. due Cooke that ap- Commonwealth circuit court. The ed transferred to pealed, appeal was (1925). L.Ed. 767 this Court. bar, of the cases In each which for behavior punished defendant v. Civil Criminal CONTEMPT: court. presence of the occurred outside given, witnesses allegations was Notice of the disobedi Contempt the willful opportuni for, open court with toward, called disrespect the rules were open ence or same, had and the defendant ty to confront “Contempts either are of a court. orders The trial court right present proof. v. Common or criminal.” Gordon civil fact, that the findings and concluded 461, 463, wealth, 208 made Ky. 133 S.W. contemptu indeed behavior was defendant’s the failure consists of Civil imposed. It is court, Punishment was ous. something under order do of one to herein were the defendants litigant. clear party of a the benefit generally for in, with, criminal con and found pay child willful failure Examples are the classically tempt understood. term is ordered, testify as ordered. or to support as DOUBLE manslaughter. JEOPARDY fendant of reckless This concept “same conduct” test redefined the jeopardy The double clause of the Fifth a lesser included offense for double Amendment to the United States Constitu purposes thereby expanded the Block- provides tion pertinent part person that no burger “same elements” test. shall “be for the same offence to be put in jeopardy eight twice Less than months after of life or limb.” Ken decided, tucky’s opin Corbin was we rendered our virtually Constitution includes iden provision Ky., § tical ions in Walden Cooley v. Com (1991) monwealth, Ky., S.W.2d 102 Common wealth, that, Ky., 801 acknowledged large, we have followed the Supreme decisions of the Walden, supra, The facts in were almost of the United States and interpreted have Grady, except identical those in that the § Kentucky 13 of the Constitution as afford (wanton DUI and vehicular homicide mur- ing protections parallel guaran those der) charges brought in- the same Therefore, teed the Fifth Amendment. dictment of in separate proceedings. instead United States Court’s decisions adopted the “same conduct” test enunci- germane are analysis to an jeopar of double ated v. Corbin and held that *5 dy under both the Federal and this Common defendant could not be convicted of both wealth’s Constitution. offenses if the intended to use the DUI offense as the element of wanton- jeopardy Double does not occur necessary prove ness to the homicide offense. person when a is with two crimes subsequently Identical were results reached arising conduct, from the same course of Commonwealth, Ky.App., Hall v. long as each “requires proof statute of an (1991), a homicide DUI/reckless additional fact which the other does not.” conviction, Commonwealth, Ky., and Bush v. Blockburger 299, v. United (1992), 839 S.W.2d 550 a murder DUl/wanton 180, 182, S.Ct. 76 L.Ed. course, conviction. Of the “same conduct” 505.020(l)(a) (2)(a) KRS codify test Grady described in v. Corbin and Wal- this rule. Blockburger expand rule was application den v. Commonwealth has no ed the United States here, it since is not contended that the con- Corbin, Grady supra, wherein that Court upon adjudications duct which held that double occurs when the predicated being prove is offered to an “same conduct” constituting one offense is felony element of one or all of the offenses prove used to an essential element of another which are the appeals. these offense. was a vehicular homicide Rather it is contended that the conduct con- ease which the defendant had entered a stituting is the same conduct guilty plea to the driving offense of while necessary prove applicable to felony of- (DUI), under the influence of alcohol ie., fense, they “single arose from a im- prosecuted was manslaughter for reckless pulse.” separate a proceeding. Under the Blockbur ger test, “same elements” Ingram the defendant offenses, could have been convicted of both defendant was convicted of D two class felo- nies, because the DUI selling marijuana minor, offense contained an ele to a KRS (intoxication) 218A.990(5) ment statutory which was not a (repealed, Acts ch. 30), manslaughter; 1,000 § element of reckless selling marijuana and reck within (re- manslaughter school, 218A.990(16) yards less contained element of a KRS (death victim), 30). pealed, § which was not a statu ch. Acts Both con- tory However, Grady, element of single DUI. victions arose out of a transaction of jeopardy precluded maz'ijuana was held that double selling cigarettes con two to a minor offenses, 1,000 prosecu yards of both Although viction because the within of a school. required prove tion prohibition against was to the conduct con cited the v. Corbin stituting prove conduct,” in order multiple punishments DUI the element for the “same necessary opinion Ingram premised recklessness to convict the de- our on the Commonwealth, Ky., 659

theory that a could not convict- ton v. S.W.2d defendant (1983), held a defendant multiple arising ed of out of a “sin- in which we offenses rape and gle impulse.” Essentially, ex- not be convicted of both this is but an could arising year his ten the' a out of one act with tension of “same conduct” test from incest prohibition against daughter. An identical result was of the conduct consti- old use Commonwealth, Ky., Denny tuting reached in prove one offense to an essential ele- of these prohibition ment of offense to a Neither another S.W.2d against required reversal under the use of one of conduct to cases would have incident analysis, age prove multiple since the offenses. rape, statutory is an element of but victim only In subsequent case decided incest, relationship of the victim not gram in which conviction was reversed incest, but is an element of to the defendant solely application “single impulse” However, primarily rape. Ingram relied not Commonwealth, Ky.App., test is Hellard v. Commonwealth, Ky., 756 Jones (1992), the Court of 829 S.W.2d which (1988), “[t]he we held that Com- wherein Appeals Ingram precluded held that convic out of a is to carve permitted monwealth forgery tions both theft and where the of- episode the most serious single criminal signed a defendant false name on rental fense, punish single episode not but agreement for a recorder. We videocassette Interesting- multiple at 463. offenses.” Id. Cooley v. Common also cited support for this ly, purported to find Jones wealth, Ky., 821 S.W.2d 90 but relied itself, quoting Blockburger, proposition in statutory interpretation primarily on our following U.S. at legislature did not for KRS intend at 181: 514.110, proscribes receiving stolen by Mr. Wharton The distinction stated property, permit multiple convictions *6 single, but one impulse that “when the is receiving, retaining disposing and of the lies, long the indictment matter how v. property. same item of In Stark Com impul may If action continue. successive monwealth, (1991), Ky., 828 603 over S.W.2d separately though all given, ses even are grounds, Common ruled other Thomas v. swelling common of united in stream wealth, (1996), Ky., held 931 S.W.2d 446 we action, separate lie.’ indictments Whar Ingram precluded convictions of two Law, ed., § 34- 11th ton’s Criminal robbery the defendant of a store clerk where Jones, However, quote is the money belonging supra, the clerk and at stole both quote of the employer during of The remainder the course of the rob out his context. bery. have been is follows: The same result could robbery simply by noting since reached section, Or, in note to that ... as stated 3 only against person, is there was a crime the are ‘The is the individual acts whether test victim, only Finally, in one crime. one thus of action which prohibited, or course Grubb, Ky., v. 862 S.W.2d Commonwealth former, they If the then each constitute. (1993), holding Ingram in that a we cited separately.... If the punishable act selling of not be convicted defendant could latter, penalty.’ be one there can but multiple of controlled sub items different entirety is the in its second passage Id. The same same schedule. stances of the Blockburger test prong less used by application been reached result could have 505.020(l)(c), for KRS source test, Blockburger “same elements” constitutes defines when course of conduct all violated the same statute. since the sales v. See Jordan Common but one offense. Commonwealth, Ky., Compare Jackson v. (1985). Thus, wealth, Ky., 703 S.W.2d (1984), theft which held that 670 S.W.2d 828 Jones, underpinning primary which was the victim is but multiple items from the same in “single impulse” test announced theft. one fundamentally insofar as Ingram flawed support concept in the sought it for that “single impulse” test was Support for the Any foun constitutional Blockburger in case. Grady in v. not so much Corbin found impulse” an- First, “single test dation for the we cited Hamil- precedents. our own Commonwealth, Ingram, Ky., nounced therefore must be Baker v. traced 922 S.W.2d by analogy to the “same conduct” an- test nounced v. Corbin. While this Court “is not unmindful Dixon, In United States v. the doctrine admonition of of stare 125 L.Ed.2d 556 decisis,” recognize that “this rule is not Supreme specifically United States Court Supply Depart inflexible.” D & Auto v. W overruled v. Corbin. Court Revenue, Ky., ment

Dixon stated as follows: reasoning Adopting cited fusion and on, Id., in example L.Ed.2d at 576. analysis beyond Blockburger has created con L.Ed.2d at 573. As jeopardy. roots. The that the conduct of the accused was one Amdt. been nounced is Supreme subsequent prosecution, “[w]hile it is true and the of which being tion of what Unlike clear [421] *7 Dixon, 509 U.S. at 509 U.S. at the United States other”). common-law at 416 Court, Grady accepted of the “same Blockburger analysis, application of the “same conduct” same, is “unstable this “confusion” had has wholly See, U.S., [423, deep “same-conduct” rule 709, prevents two offenses in numerous Dixon notes a e.g., Gavieres v. United element not precedent inconsistent with earlier understanding [338] historical roots and has 113 S.Ct. at offence,” 113 S.Ct. at in L.Ed. lacks constitutional application.” two crimes from by resulted, and with the precedents citing whose defini- embraced Court noted compelling (1911)] (in 2863, of double United Const., S.Ct., Dix each 125 an- 906 tion of two distinct statutes each statute transaction one offense included within another? does not. Eldred v. Hamilton v. Commonwealth and Ingram v. sis. We are contrary Commonwealth, supra, which were decided cated on the supra, conduct” dance with the pulse” cutions henceforth will burger monwealth, supra, 505.020. Commonwealth and Commonwealth, supra, “same Court Thus, which were conduct” test test enunciated v. United we return to the test; issues Specifically, Dixon, complained Commonwealth, requires proof to determine and Jones principles “single arising all we now States, predicated on Hall we overrule Walden v. adopted Commonwealth, Ky., of constitutes a viola- out impulse” and the declare that Blockburger analy- Put differently, set which were analyzed of a fact the other supra, and, depart Commonwealth, Commonwealth, and Hellard v. multiple prose forth Block KRS if it “single test; Walden the “same the act or Denny and KRS from the in accor 505.020. does, predi Com Id. im is if v. Felix, 378, 1377, States v. U.S. S.Ct. DISCUSSION 118 L.Ed.2d 25 wherein the Court then, question, The is whether crimi recognize large exception “forced to a contempt nal prosecution can act a bar to as Dixon, to” the conduct” “same test. jeopardy grounds? on double 709, 2863, at 113 S.Ct. at L.Ed.2d at 576. Court in The Felix held The issue has addressed in been several subsequent prosecution states, that a conspiracy by other as well as the federal courts. See, Winter, was not previous e.g., barred a conviction for United States 70 F.3d (1st attempt. agree Cir.1995); Kipi, We with the United States State 72 Haw. Supreme (1991); Court’s that Magazine, conclusion the need to 811 P.2d 815 State v. (1990); recognize “large longstanding Oregon such a ex 302 S.C. 393 S.E.2d 385 ception [gives] McIntyre, to the rule Or.App. cause for P.2d (1988). Indeed, concern that opinion [is] the rule not an accurate of the United expression Recently, upon Supreme Id. we States law.” Court we have recognized, overruling, heavily so problems previously opinion without relied analysis. very inherent in the In “same conduct” addressed this issue. United States unnecessary Dixon, question to convict him of con- formulated ments cases, tempt. “In of these the Court was: both contempt

respondents tried for criminal Gary charge against Herriford violating pro of court for court orders that degree would have of the second assault engaging hibited them from in conduct that prove that he required the to prosecu of a criminal Commonwealth was later the intentionally injury physical caused to his subsequent tion. We consider whether the dangerous instrument. wife means of a prosecutions criminal Dou are barred charge against Kenny KRS 508.020. Jeopardy at ble Clause.” Id. degree in the would Effinger of assault first at at L.Ed.2d prove required have the Commonwealth It is that criminal con- well established intentionally physical that serious he caused through tempt, at the sort enforced least injury Madry “by Tonya means of dead nonsummary proceedings, is “a crime dangerous ly weapon or a instrument.” KRS ordinary sense.” charges required assault thus 508.010. The protec- We have held constitutional unnecessary convict proof of elements other than tions for criminal defendants Effinger contempt. of Herriford and jeopardy provision apply the double nonsummary contempt prosecu- criminal Further, charge Effinger against just they in other criminal tions do retaliating against a witness would have obvious, prosecutions. think it Tonya required proof that he attacked Ma- hold, today protection Dou- that the against dry had testified him or because she Jeopardy ble likewise attaches. Clause officials, reported him enforcement to law at at 125 L.Ed.2d Id. 524.055, required to KRS an element not omitted). (citations 567-568 contempt. him It is clear that convict in each of the “there are distinct elements the United States Just as other, which required not for the offenses obvious, no hesitation found we have jeopardy” un finding precludes § 13 declaring protections that the v. Com test. Eldred der the attach in non-sum- Kentucky Constitution monwealth, Ky., 906 just mary proceedings criminal prosecutions. they do in other criminal CONCLUSION non-summary, Having found above, hereby forth For the reasons set jeop contempt is crime for double Appeals of the Court reverse decision must now determine ardy purposes, we 92-SC-287-DG, Cir- affirm the Jefferson barred further 92-SC-873-TG, reverse the cuit Court hold that it is not. three cases. We these in 92-SC-896-TG. Circuit Court Jefferson conviction,it must order obtain a *8 knowledge had proven that the defendant prohibiting the con a court order that valid BAKER, STEPHENS, C.J., and Dixon, States v. in effect. United duct was GRAVES, and LAMBERT 2858-59, at U.S. at 509 JJ., WINTERSHEIMER, with concurred Contempt § 18. at 125 L.Ed.2d C.J.S. original opinion.

Thus, required conviction each felony charges STUMBO, proof J., by separate element which of an dissented not. opinion. did burgla

Roger Burge’s conviction J., KING, sitting. not Common required the ry degree in the first C.J., COOPER, STEPHENS, and Burge the home that entered prove wealth GRAVES, carry JOHNSTONE to commit a crime while

with an intent WINTERSHEIMER, JJ., Thus, with concur deadly weapon. KRS 511.020. ing a opinion. proof ele- modified burglary required of conviction his LAMBERT, J., by separate initially. concurs of cases not even referred to Over opinion. years the course has of seven opinions purporting rendered a of multitude STUMBO, J., by separate dissents ruling jeopar- to be the definitive opinion. modified dy, only complicate to backtrack further the test in the next case. LAMBERT, Justice, concurring. view, my stray In we should not from the I concur with of what most Justice Stumbo Commonwealth, Ky., holding Ingram v. of has dissenting opinion. said her In partic- recog- Therein we ular, I concur with her view that majority nized a view of double broader than opinion insufficiently herein is deferential to that articulated v. United ready stare decisis and far too to overrule S.Ct. 76 L.Ed. precedent. settled (1932), or in KRS 505.020. In the course view, my existing prior law to the ma- Ingram opinion, acknowledged that jority opinion incompatible was not with a estoppel the statute a collateral constituted determination that double jeopardy no bar jeopardy principle, element of the double exists these I cases. concurred with the barring a single state on a act original majority opinion my view of the jury acquitted after a had a defendant result changed. changed has not What has deriving charges federal from the same act. majority substance of opinion with Ingram Id. found in “a We but inflexibility the introduction of an into our act, single impulse single having produce inappropriate law will multiple thus, compound consequences”; the dual con- charges multiple punishments. Our de- constitutionally viction inappropriate. Commonwealth, Ingram cisions in Ky., Commonwealth, recently Id. As as Baker v. (1990), and Walden v. Common- Ky., (1996), 922 S.W.2d 371 we noted that in wealth, Ky., 805 S.W.2d amounted Ingram “[w]e held Section 13 of the Kentucky gloss, means of Section 13 Kentucky Constitution of mandated double Constitution, upon of our Jeopar- the Double jeopardy protection beyond which went dy Clause of the Fifth Amendment to the such, so-called ‘federal As our [deci- floor.’ Constitution of the States. United We were ... engraft- sion] [has] now been entirely rights interpret within our to so upon Kentucky ed the Constitution of Hass, Kentucky (Oregon Constitution provide while such does not insulation from L.Ed.2d 570 overruling, principles modification or of stare (1975)),and inasmuch as has been so inter- (citation decisis counsel caution.” Id. at 375 be, time, preted, should let alone. omitted). majority opinion does not reveal some Caution has now been thrown to the winds. unrecognized theory heretofore of double opinion today issued returns to a strict jeopardy analysis identify any nor does it analysis statutory elements of each arising untoward results out of the current requires proof offense and whether each state the law. should remember an additional fact which the other does not.

judges, lawyers people Kentucky and the paid No question attention is to be to the must live with the decisions we make and consequences compound result from changing law for refrain less than the criminal stated in act. As Eldred compelling reasons. Ky., 906 S.W.2d *9 herein, For the I reasons stated concur (1995), once it has been determined that one only in result. offense is not included within the other, inquire the court must STUMBO, Justice, dissenting. offense(s) single from “the arose act or Respectfully, By way impulse compound consequences, dissent. with I must additional, though ‘[b]y petition rehearing, hearing oral even virtue without cir- facts, argument, substantially behavior broadened cumstantial the was offensive have Eldred, criminal In original opinion overruled a number two statutes.’” the our majority opinion compound consequences found the court Nowhere does necessary explain why finds it were the death of the victim and the destruc- Court vehicle, protec- take from our citizens the additional tion both setting jeopardy that this Court act of automobile tion from double achieved recognize just appropriate to seven on fire. Id. at 707. deemed retracting this years ago. abruptly In so cases, applied As to the instant the com- injus- an protection, we do these defendants consequences prong pound jurisprudence of this state tice and the prohibit prosecutions test would willingness injury through apparent our the defendant was involved. each case recently precedent so established. overrule restraining prohibited order of some respectfully I dissent. injur- or type coming about the home of ing the victims involved. The additional in each the cases

facts described “additional, just

majority type are facts” that we meant to ad-

circumstantial Ingram.

dress in Each defendant was punished precisely be twice the same

will

behavior.