Kevin B. Herp v. Commonwealth of Kentucky

RENDERED: JUNE 16, 2016
-.1 T1) IBXRB1.1AffErti
0,Sularrntt Cum of 7r
2014-SC-000447-MR
119 F
KEVIN B. HERP APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE JAMES M SHAKE, JUDGE
NO. 12-CR-001316
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
A circuit court jury convicted Kevin Herp of two counts of first-degree
sodomy and two counts of first-degree sexual abuse. The trial court sentenced
him to seventy years' imprisonment. He appeals the resulting final judgment to
this court as a matter of rights, alleging errors relating to the amendment of the
indictment and the content of the jury instructions denied him a fair trial.
Because we conclude the trial court abused its discretion in refusing to grant a
continuance after allowing amendment of the indictment at the beginning of
trial, we reverse and remand this case to the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Herp's criminal charges derive from accusations of inappropriate sexual
conduct from his nephew. In 2011, the nephew reported to the police that
1 Ky.Const. § 110(b)(2).
Herp had molested him over twenty years earlier, around when he was a child
of eight or nine years old. In an interview with law enforcement, the nephew
recounted the contact began with Herp brushing his hands on the nephew's
genitals, and eventually led to masturbation, mutual masturbation, and oral
sex. The nephew's decision to go to the police after such a long period of time
stemmed from Herp's recent move back to Kentucky, and the nephew's desire
to prevent his uncle from abusing another child.
Herp was indicted on two counts of first-degree sodomy (class A felony)
and two-counts of first-degree sexual abuse (class D felony). The indictment
detailed that the conduct in question occurred sometime between February 18,
1987 and February 17, 1989.
On the opening day of trial nearly two years after indictment, the
Commonwealth moved to amend all charges in the indictment to include an
additional year in which the crimes may have occurred. So under the amended
indictment, the applicable period became between February 18, 1987, and
February 17, 1990. Herp objected to the modification. The trial court overruled
his objection and allowed the amendment. Herp then moved for a one-week
continuance, which the trial court denied. The trial court also denied a similar
motion for a two-day continuance.
The jury convicted Herp of all charges. It recommended a thirty-five year
sentence for each sodomy offense and a five-year sentence for each sexual
abuse charge. The sentences were recommended to be served consecutively for
an eighty year total sentence. At final sentencing, the trial court reduced the
jury's recommendation to the maximum seventy-year sentence with no
possibility of parole for twenty years.
2
II. ANALYSIS.
Herp presents two claims of error for our review. First, he contends that
the trial court erred in allowing the Col -nmonwealth to amend the indictment,
or in denying his motion for a continuance. Second, he claims that the trial
court submitted improper instructions to the jury that inadequately reflected
the Commonwealth's burden of proof. We will address each issue in turn.
A. The Amended Indictment and Denial of Motions for Continuance.
Herp's first claim before us is that the trial court erred in allowing the
Commonwealth to add an additional year to the range of time charged in the
indictment, or, alternatively, the trial court erred in denying his motions for a
continuance. Under the Kentucky Rules of Criminal Procedure (RCr), a
criminal defendant is entitled to an indictment or information containing a
"plain, concise and definite statement of the essential facts constituting the
specific offense with which the defendant is charged." 2 The rules also provide
that the court may permit an indictment to be amended at any time before
verdict if "no additional or different offense is charged and if the substantial
rights of the defendant are not prejudiced." 3 But in instances where
amendment is permitted, the court shall grant a continuance "if justice
requires." 4
The rules expressly declare that the decision to allow the amendment of
an indictment is within the sound discretion of the trial court. So we will review
this decision in Herp's case under the abuse-of-discretion standard, and we
2 RCr 6.10 (specifying the requirements of an indictment or information).
3 RCr 6.16.
4 Id.
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will not disturb the amendment absent a finding that the trial court's ruling
was "arbitrary, unreasonable, unfair, or unsupported by sound legal
principles." 5 And the same standard applies to a trial court's decision to grant
or deny a continuance in a criminal case. 6
Indictment amendments to include an enlargement of time for the
commission of the offense are not new to this Court. Often times, such
amendments are proposed for reasons similar to this case—some offenses may
have occurred in the distant past and the prosecution simply wishes to put
forth an accurate timeline of when, roughly speaking, the events may have
occurred.
In Gilbert v. Commonwealth, we allowed the prosecution to amend the
date of a defendant's alleged sexual misconduct with his stepdaughters from
the summer of 1985 to the summer of 1986. 7 We held that such an
amendment is not error when a defendant "did not base his entire defense on a
mix up in dates" and was not "surprised or misled" by the amendment. 8 And
we have repeatedly endorsed the position that the date of the occurrence of an
alleged offense can be changed by the amendment. 9 We think much of the
reasoning in Gilbert may be aptly applied to Herp's case.
5 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
6 See RCr 9.04. See also Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky.
1994) ("It is quite settled that whether to grant a motion for continuance is well within
the sound discretion of the trial court.") (internal citations omitted).
7 838 S.W.2d 376, 377 (Ky. 1991).
8 Id. at 378.
See Stephens v. Commonwealth, 397 S.W.2d 157 (Ky. 1965) and Anderson v.
9
Commonwealth, 63 S.W.3d 135 (Ky. 2001).
4
In addition to no reliance on the date of offense in presenting a defense,
the Gilbert Court was also relatedly motivated by the defendant's total denial of
misconduct altogether. 10 So when no-date-specific defense is mounted—when
the defendant denies liability at any time—and when the specific dates are not
essential to the defense in the case, we did not consider amending the
indictment prejudicial. Like Gilbert, Herp is on trial for a sex crime, and he
denies any inappropriate behavior. But perhaps most importantly, the nature
of his alleged offense has not changed, and the amendment imposes no
additional criminality than he has faced throughout the entire criminal-trial
process. And he has offered no evidence that his defense is dependent on
specific dates.
The indictment is intended to serve as a "plain, concise and definite
statement of the essential facts constituting the specific offense with which the
defendant is charged." The amendment does nothing to change that, and we
are confident there is no undue prejudice to Herp's capacity to defend himself
of the charges. So we must conclude that the trial court did not abuse its
discretion in allowing the Commonwealth to amend the indictment.
Although Herp takes issue with the trial court's allowing the amendment,
to be sure, his real complaint appears to be the court's refusal to allow him a
continuance in light of the amendment. He twice moved for a continuance with
the trial court—first seeking a one-week continuance and later backing down to
a two-day request. Similar to a petition to amend an indictment, the decision to
10 Gilbert, 838 S.W.2d at 378 ("he also denied any sexual impropriety with the
victims").
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grant or deny a continuance is one of judicial discretion, 11 and subject to the
abuse-of-discretion standard of review. 12
RCr 6.16 provides: "The court may permit an indictment...to be
amended any time before verdict or finding if no additional or different offense
is charged and if substantial rights of the defendant are not prejudiced. If
justice requires, however, the court shall grant the defendant a continuance
when such an amendment is permitted." 13 In Snodgrass v. Commonwealth, we
articulated seven factors to aid trial courts in determining whether to grant a
motion for a continuance." In reviewing a timely motion, a court should
consider:
1. The length of delay;
2. Whether there have been any previous continuances;
3. Inconvenience to litigants, witnesses, counsel, and the
court;
4. Whether the delay is purposeful or caused by the
accused;
5. The availability of other competent counsel;
6. The complexity of the case; and
7. Whether denying the continuance will lead to identifiable
prejudice. 15
We also made clear that the appropriateness of a continuance depends on the
unique facts and circumstances of the case. 16 Although Herp presented an
argument implicating all seven factors, the only true issue before us today is
11 RCr 9.04 ("The court, upon motion and sufficient cause shown by either
party, may grant a postponement of the hearing or trial.") (emphasis added).
12 See English, supra. See also Bartley v. Commonwealth, 400 S.W.3d 714, 733
(Ky. 2013) (denial of motion for continuance does not provide grounds for reversing a
conviction "unless that discretion has been plainly abused and a manifest injustice
has occurred").
13 (emphasis added).
14 814 S.W.2d 579 (Ky. 1991).
15 Id. at 581.
16 Id. (referring to Ungar v. Sarafite, 376 U.S. 575 589 (1964)).
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whether the trial court's decision to deny the continuance caused identifiable
prejudice. And we hold that it did.
It is absolutely and unequivocally established that a constitutionally
effective criminal defense requires trial counsel reasonably to investigate the
circumstances of the alleged crime. "This Court has recognized the necessity
for complete investigation by defense counsel." 17 Herp's trial counsel was not
excused from that duty and Herp's right to effective counsel is not relegated to
a lesser standard of representation simply because the Commonwealth
suddenly discovered a potential problem with its proof.
Herp's defense counsel first requested a continuance of one week so that
he could reasonably investigate the whereabouts of his client and the putative
victim during the newly added year of potential culpability. After that request
was denied, counsel renewed the request for a postponement, asking for only
two days. An effective defense requires, at least, an investigation of the newly
revealed circumstances thorough enough to allow counsel to make a reasoned
and deliberate determination whether further investigation is necessary to
develop a defense that may apply to the new circumstances. The failure to do
so is ineffective representation, a constitutional deficiency that is not cured
simply because counsel's failure to investigate was forced upon the defendant
17 Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001) (overruled on other
grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). See also
Commonwealth v. Tigue, 459 S.W.3d 372, 394 (Ky. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 691 (1984)) ("While the duty to investigate is not absolute,
a less-than-complete investigation may be supported only by a reasoned and
deliberate determination that further investigation is not warranted. In other words,
counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.").
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by the Commonwealth's dilatory discovery of the facts and its opposition,
sustained by the trial court, to a modest delay of two days.
More than 8,770 days passed between the last possible date of Herp's
alleged crimes and the beginning of his trial. More than 7,900 days passed
before Herp's nephew even reported the alleged crimes. All the defense counsel
asked for was two days to do what we say he is required to do: investigate to
determine if a plausible defense can be asserted. Justice required that Herp's
trial counsel be afforded that modest opportunity to carry out his duty to
provide effective assistance. Justice required that a prosecution deferred for
more than two decades could stand to wait two more days, and refusal to grant
that request was an abuse of the trial court's discretion. We accordingly reverse
and remand to the trial court for further proceedings consistent with this
opinion.
We will now examine Herp's other issue on appeal for error capable of
repetition in the event of retrial.
B. The Jury Instructions.
For Herp's second claim of error below, he contends that the jury
instructions improperly verbalized the Commonwealth's burden of proof. The
instructions used in this case told the jury "You will find the Defendant, KEVIN
B. HERP, guilty under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt, all of the following..." Herp contends that
a proper instruction should read: "You will find Kevin Herp not guilty...unless
you believe from the evidence alone and beyond the reasonable doubt all of the
following..." Although the decision to instruct the jury on a specific claim is
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committed to the trial court's discretion, the content of a jury instruction is an
"issue of law that must remain subject to de novo review by appellate courts." 18
As his primary argument, Herp asserts that his proposed jury
instructions closely tracked the model instructions framed by Justice William
Cooper in his treatise on instructions to juries. And indeed, Cooper's treatise
does choose to frame model instructions under the "not guilty unless"
structure as opposed to the "guilty if" method used by the trial court in this
case. 19 Cooper favored his method because he considered this instruction both
to "properly allocate the burden of proof at the outset of instructions" and to
give the jury advance notice of its options. 20 But we have faced this precise
argument before in unpublished decisions and found the competing
instructions logically equivalent. And we reiterate that statement today.
To us there is no logical difference between the two instruction
structures. It is rationally equivalent to say that one may not be guilty absent
proof of all the elements beyond a reasonable doubt, or that one may be guilty
if each element is proven beyond reasonable doubt. Essentially, the Cooper
instruction is something of a contrapositive to the instruction used in this case.
Herp seems implicitly to make this connection as well; in briefing he asserts
that his preferred way is the best way to convey the concept of the
presumption of innocence. That may indeed be true, but the best way to
instruct a jury is not the question before this Court. Rather, it is our task to
18 See Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015).
19 Cooper and Cetrulo, Kentucky Instructions to Juries, Criminal §§ 2.01A-
2.01D (2006).
20 Id. (comment).
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determine whether the trial court accurately stated the law in the instructions
to the jury. And normative considerations aside, we cannot say the form of the
instructions was incorrect.
After briefs were filed in this case, Herp moved this Court seeking leave
to cite additional authority and to correct his brief. Particularly, he sought to
include our recent holding in Rodgers v. Commonwealth 21 as a point of
authority in this argument. We grant the motion and consider his argument.
Facing a nearly identical jury-instruction argument, we held that "the two
formulations are logically equivalent, and whatever may be their rhetorical
difference, if any, the 'guilty...if and only if' version adequately conveys to the
jury the conditions the Commonwealth's proof must satisfy to authorize a
guilty verdict." 22 Although Herp tries to make factual differences material
distinctions, there is nothing in Rodgers to suggest the trial court improperly
instructed the jury in the present case.
Herp tangentially attempts to distinguish the logical identity and our
prior rulings on this matter by also critiquing the separate instruction on the
presumption of innocence. The United States Supreme Court held that failure
to instruct the jury on the presumption of innocence can result in a violation of
due process of law23 , although there are doubts to whether that entails a
separate explicit instruction detailing that legal standard under Kentucky
law. 24 But in this case, the trial court tracked Cooper's presumption-of-
21 285 S.W.3d 740 (Ky. 2009).
22 Id. at 760.
23 See Taylor v. Kentucky, 436 U.S. 478 (1978).
24See Patterson v. Commonwealth, 630 S.W.2d 73, 75 (Ky.App. 1982). This is a
Court of Appeals opinion that has received relatively little attention over the past three
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innocence definition as "Instruction No. 6" to the jury. This is also the exact
language found in RCr 9.56(1). 25 The trial court used an instruction expressly
endorsed by this Court 26 , and Herp is left only to argue that its placement at
the end of instructions and difference in logical structure from the other
instructions confused the jury.
We have no reason to conclude that placing the presumption-of-
innocence standard in Instruction No. 6, as opposed to Instruction No. 1
makes the jury any less aware of the high evidentiary standard imposed on the
Commonwealth. And we are even more skeptical that use of "not guilty" in the
presumption instruction simultaneous with the "guilty" standard when
instructing on the substantive offenses resulted in prejudice to Herp.
In sum, we cannot say the trial court improperly instructed the jury to
the level of reversible error.
III. CONCLUSION
For the foregoing reasons, we grant Herp's motion to file additional
authority and correct his brief, and finding an abuse of discretion in refusing to
allow him a continuance, reverse and remand his case for further proceedings.
All sitting. All concur.
decades, but nonetheless remains as valid precedent at the trial and intermediary
appellate level.
25 "You shall find the defendant not guilty unless you are satisfied from the
evidence alone, and beyond a reasonable doubt, that he is guilty."
26 See Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999).
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COUNSEL FOR APPELLANT:
Daniel T. Goyette
Bruce P. Hackett
Office of the Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Perry Thomas Ryan
Assistant Attorney General of Kentucky
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