combination instruction in Kentucky

2019Therein, we further determined that “[t]he right to a unanimous verdict is not violated by a combination instruction so long as there is sufficient evidence to convict under both theories of culpability and the jurors are satisfied beyond a reasonable doubt that the defendant is guilty under one of the theories.” Id. (citing Travis v. Commoniuealth, 327 S.W.3d 456, 459-60 (Ky. 2010)).

2013We have previously determined that when either of the theories contained in a combination instruction lacks evidentiary support, there is a unanimous verdict violation if “there is a reasonable possibility that some member or members of the jury actually relied on the erroneously included theory.” Malone v. Commonwealth, 364 S.W.3d 121, 130-31 (Ky.2012). “[I]f there is no reasonable possibility that the jury actually relied on the erroneous theory!,] ... then there is no unanimity problem.” Travis, 327 S.W.3d at 463 (“Though such a case presents an error in the instructions, namely, the inclus

2024If the Commonwealth lacks the evidence to distinguish or specifically describe the crime the jury is to consider, it is likely that its evidence is insufficient to convict. “[I]t is better practice in these instances to either set forth the separate theories on separate verdict forms or when a combination instruction is given, require the jury to specify on the verdict upon which theory they find.” Benjamin, 266 S.W.3d at 786 . 14 the Court of Appeals’ conclusion that double jeopardy principles bar Roark’s simultaneous convictions for manufacturing and possession, we remand this matter to the

2011See Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky. 2008) (stating that "if the trial judge finds that the evidence is unlikely to support a combination instruction, the court should include separate verdict forms, and if the evidence suffices, the court may use a combination instruction which permits the jury to distinguish upon which theory it bases its findings.").

2024Kentucky precedent holds that the principal/complicitor combination instruction of the type offered in this case does not create a “no unanimous verdict issue ‘as long as the evidence [is] sufficient to support a combination instruction.’” Halvorsen v. Commonwealth, 671 S.W.3d 68 , 73 (Ky. 2023) (quoting Capstraw v. Commonwealth, 641 S.W.3d 148 , 158 (Ky. 2022)). “[W]here both alternatives are supported by the evidence, combination principal/accomplice instructions . . . are proper.” Futrell, 471 S.W.3d at 277-78 .

2023The Capstraw court upheld the combination instruction and found no unanimous verdict issue “as long as the evidence was sufficient to support a combination instruction.” Id.

2022Malone v. Commonwealth, 364 S.W.3d 121, 130 (Ky. 2012) (citing Robinson v. 20 Commonwealth, 325 S.W.3d 368 (Ky. 2010)). 21 __ U.S. __, 140 S. Ct. 1390 , 206 L. Ed. 2d 583 (2020). 22 Ramos, 140 S. Ct. at 1397 . 23 Id. at 1394 . 15 criminal cases.”24 And, several cases that were rendered post-Wells made it clear that jury instructions such as the one given in this case do not violate a defendant’s right to a unanimous verdict as long as the evidence was sufficient to support a combination instruction.25 We are accordingly unconvinced that Ramos requires us to revisit our long-standing precedent,

2013We have previously determined that when either of the theories contained in a combination instruction lacks evidentiary support, there is a unanimous verdict violation if “there is a reasonable possibility that some member or members of the jury actually relied on the erroneously included theory.” Malone v. Commonwealth, 364 S.W.3d 121, 130-31 (Ky.2012). “[I]f there is no reasonable possibility that the jury actually relied on the erroneous theory!,] ... then there is no unanimity problem.” Travis, 327 S.W.3d at 463 (“Though such a case presents an error in the instructions, namely, the inclus

2009We continue to “strongly emphasize that, when intentional and wanton murder are included in a single instruction, the preferred practice is to include a form verdict that requires the jury to state whether guilt is found under the theory of intentional murder or under the theory of wanton murder.” Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky.1998); Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky.2008) (“Therefore, we reiterate our prior directive: when giving combination jury instructions reflecting distinct theories of culpability which bear equal punishment, trial courts should prelimin

1999Johnson.” The instruction in this case was identical to that given in Hudson v. Commonwealth, Ky., 979 S.W.2d 106, 109 (1998), ie., a combination instruction which permitted the jury to find Appellant guilty of murder under either KRS 507.020(l)(a) (intentional murder) or KRS 507.020(l)(b) (wanton murder).

2024“Combination instructions – instructions incorporating alternative theories of a single crime – are appropriate, we have many times held, when, but only when, the evidence supports all of the alternatives.” Id. at 277 (citations omitted). -14- Chaka testified that both defendants went to Myrna’s apartment and at least one of them was armed.

2024Kentucky precedent holds that the principal/complicitor combination instruction of the type offered in this case does not create a “no unanimous verdict issue ‘as long as the evidence [is] sufficient to support a combination instruction.’” Halvorsen v. Commonwealth, 671 S.W.3d 68 , 73 (Ky. 2023) (quoting Capstraw v. Commonwealth, 641 S.W.3d 148 , 158 (Ky. 2022)). “[W]here both alternatives are supported by the evidence, combination principal/accomplice instructions . . . are proper.” Futrell, 471 S.W.3d at 277-78 .

2024A combination instruction permits a jury to convict “of the same offense under either of multiple alternative theories . . . .” Brown v. Commonwealth, 553 S.W.3d 826, 839 (Ky. 2018) (citation omitted).

2023See Stepp, 680 F.3d at 665 (citations omitted); United States v. Smith, 263 F.3d 571, 594 (6th Cir. 2001) (citation omitted).

2023See Stepp, 680 F.3d at 665 (citations omitted); United States v. Smith, 263 F.3d 571, 594 (6th Cir. 2001) (citation omitted).

2020That in so doing: (1) He caused the death of [the child] intentionallyf. ]22 The defendant argued that this instruction violated his right to a unanimous verdict because it “failed to require all twelve members of the jury to identify the specific physical act by [the defendant] that caused [the child’s] death.”23 This Court disagreed, noting that the instruction at issue was a combination instruction, i.e. one that “permit[s] a conviction of the same 553 S.W.3d 808 (Ky. 2018). 18 See Thornton v. Commonwealth, 421 S.W.3d 372, 376 (Ky. 2013) (holding that the appellant invited any alleged jury

2020That in so doing: (1) He caused the death of [the child] intentionallyf. ]22 The defendant argued that this instruction violated his right to a unanimous verdict because it “failed to require all twelve members of the jury to identify the specific physical act by [the defendant] that caused [the child’s] death.”23 This Court disagreed, noting that the instruction at issue was a combination instruction, i.e. one that “permit[s] a conviction of the same 553 S.W.3d 808 (Ky. 2018). 18 See Thornton v. Commonwealth, 421 S.W.3d 372, 376 (Ky. 2013) (holding that the appellant invited any alleged jury

2012In fact, as explained by our sister state, “[t]he sexual molestation of young children ... is widely viewed as one of the most, if not the most, reprehensible crimes in our society.” State v. McKinniss, 153 Ohio App.3d 654 , 795 N.E.2d 160, 163 (2003).

2012In fact, as explained by our sister state, “[t]he sexual molestation of young children ... is widely viewed as one of the most, if not the most, reprehensible crimes in our society.” State v. McKinniss, 153 Ohio App.3d 654 , 795 N.E.2d 160, 163 (2003).

2010See, e.g., Todd v. Commonwealth, 716 S.W.2d 242, 246 (Ky.1986). 5 .Importantly, as the jury was never advised that self-protection is to be analyzed from a defendant's subjective perspective, the jury may well have determined that Hatcher did not act in self-protection based upon their own interpretation of whether the belief was objectively reasonable.

2010Not only did Ragland evince an indifference to DiGiuro’s health, his purpose was to kill him. 6 Finally, DiGiuro’s death was the result of Ragland’s intentional malice and no mere accident. 7 The combination of these factors supports a finding of reprehensibility and affirms the obvious general conclusion that the intentional taking of human life “is the most reprehensible conduct that society condemns.” Rufo v. Simpson, 86 Cal.App.4th 573, 624 , 103 Cal.Rptr.2d 492, 528 (Cal.App. 2 Dist.2001).

2010Not only did Ragland evince an indifference to DiGiuro’s health, his purpose was to kill him. 6 Finally, DiGiuro’s death was the result of Ragland’s intentional malice and no mere accident. 7 The combination of these factors supports a finding of reprehensibility and affirms the obvious general conclusion that the intentional taking of human life “is the most reprehensible conduct that society condemns.” Rufo v. Simpson, 86 Cal.App.4th 573, 624 , 103 Cal.Rptr.2d 492, 528 (Cal.App. 2 Dist.2001).