Martin v. Commonwealth

KELLER, J.,

DISSENTING:

The majority opinion accurately sets forth the law with regard to unanimous verdict issues. However, ,1 dissent from the majority’s opinion reversing Martin’s convictions for two reasons. First, I believe that, in this case, the error cited by the majority simply is not palpable. To establish that palpable error occurred, a defendant must show that, absent the .error, the result would have been different or that the error was “so fundamental as to threaten [his] entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1; 3 (Ky.2006).

The jurors believed that Martin committed all of the crimes with which he was charged because the evidence of Martin’s guilt in this matter was overwhelming. Not only did Sally testify in detail regarding their ongoing and long-term sexual relationship, Martin confessed in consistent detail about that relationship to Tina, Detective Moore, Pastor Maroni, Pastor Mar-oni’s wife, and Brittany Piascik, a supervisor and social worker for the Cabinet for Health and Family Services. The majority concedes that, in light of this overwhelming evidence of guilt, there is no chance that, absent the error, the result would have been different. I agree. However, I cannot agree with the majority that, in light of this overwhelming evidence of guilt, the error deprived Martin of due process of law, particularly when Martin did not object to the instructions.

As Justice Cunningham noted in his dissent in Johnson:

We are watering down our palpable error standard with holdings such as this to the point that it behooves the defense lawyer not to object on jury instructions and just allow the trial court to walk— unwarned — onto the unanimity land mine.

[[Image here]]

It is because of this strong sense of fairness to our trial judges that we have developed a long line of cases dictating that we reverse on unpreserved error only in the most drastic of cases. See McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky.2012) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006)) (Manifest injustice is found “if the error seriously affected the ‘fairness, integrity, or public reputation of the proceeding.’ ”); Chavies v. Commonwealth, 374 S.W.3d 313, 322-23 (Ky.2012) (“A party claiming palpable error must show a probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law. It should be so egregious that it jumps off the page ... and cries out for relief”)-, Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.2006) (“To discover manifest injustice, a reviewing court must plumb the depths of the proceeding ... to determine whether the defect in the proceeding was shocking or juris-prudentially intolerable.”); Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky.1997) (“[T]he requirement of ‘manifest injustice’ as used in RCr 10.26 [ ] mean[s] that the error must have prejudiced the substantial rights of the defendant, i.e., a substantial possibility exists that the result of the trial would have been different.”); Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky.2009) (“An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the etror so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "‘shocking or jurisprudentially intolerable.’ ”) (Emphasis added throughout citations).

405 S.W.3d at 461.

Second, the majority’s decision herein, without any guidance to the parties, ere-ates a nearly insurmountable problem with regard to the jury instructions in this case.⁵⁰ The evidence indicated that Martin and Sally had sexual intercourse, at a minimum, three to four times a week over a period of more than three years. That evidence supported the jury’s finding of guilt on all of the charges, and it certainly supported the jury’s finding that Martin was guilty of four counts of first-degree unlawful transaction with a minor under indictment ll-CR-00061, and of four counts of incest under indictment 12-CR-00060.

Under the majority’s holding, if the Commonwealth wants to prosecute Martin for each individual criminal act, it will be required to indict Martin for 468 to 624 separate counts of intercourse. Furthermore, depending on the evidence introduced at trial, the court may then be required to provide the jury with 468 to 624 separate instructions on each individual criminal act. With this opinion, the majority is placing a potentially significant burden on the trial court and the parties. While I believe the trial court and the parties are capable of crafting a way to meet that burden, I also believe that it might be beneficial for this Court to provide more specific guidance regarding indicting defendants and instructing juries in these types of cases.

Finally, I cannot help but note the irony in Martin’s implicit complaint that the Commonwealth failed to bring enough charges against him. Palpable error simply cannot arise and flow from the Commonwealth’s decision to charge Martin with 28 counts of incest and unlawful transaction with a minor instead of charging him with more than 624 counts.

Cunningham, J. joins.

50 . I recognize the creation of such a problem could not override a defendant’s right to due process; however, as I stated, I do not believe Martin's due process rights were violated.