Hamilton v. Commonwealth

659 S.W.2d 201, 1983 Ky. LEXIS 272

• Court: Kentucky Supreme Court
• Decided: August 31, 1983
• Status: Published

Opinions

GANT, Justice.

Appellant and his wife, Pauline, were tried jointly for the crimes of rape and incest, emanating from a sexual intercourse by appellant upon their ten-year-old daughter. Appellant was found guilty and sentenced to life imprisonment for the rape, and ten years for incest, sentences to be served concurrently. Three errors are asserted on this appeal.

Appellant first contends that the introduction of evidence by the wife, during their joint trial, by which she sought to prove that she was a battered spouse and thus so frightened of her husband that she acceded to his demands, constituted evidence of other nonrelated offenses, thereby denying appellant a fair trial. This argument is without merit. There was no motion for separate trials filed herein, pursuant to RCr 9.16; nor was there any contemporaneous objection made to the evidence as it was adduced, thus not preserving any alleged errors for our consideration. Huff v. Commonwealth, Ky., 560 S.W.2d 544 (1977). Appellant participated in cross-examination concerning this alleged abuse, and even testified himself concerning at least one incident, thus effectively waiving any objection to that evidence. Oney v. Commonwealth, 225 Ky. 590, 9 S.W.2d 723 (1928).

Appellant next argues prejudicial error because the clerk, in calling the docket for the day and before the jury was even called or empaneled, read aloud that appellant was charged with “rape and persistent felony offender.” The record contains no evidence that this occurred and, even assuming it did occur, there is no evidentiary record that it was heard or noted by the jury or that there was any influence on the verdict resulting therefrom. This argument, based upon the record before us, is also without merit.

The third error brought before us is apparently one of first impression. Appellant was convicted in this instance for both rape and incest resulting from a single act of sexual intercourse with his then 10-year-old daughter. Appellant contends that to permit the jury to impose both sentences for this single act constitutes violation of his constitutional guarantee against double jeopardy. We agree.

The standard rule for determination of whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....

However, the Blockburger test is not applied in the abstract, so that we merely look at the statute standing alone. The test must be applied subjectively. When we view the .present case, we find that the proof utilized to convict the appellant of rape was that he had sexual intercourse with a ten-year-old child, who was, in actuality, his daughter. The only additional fact — the relationship of father/daughter— was required in the incest charge. Thus, in a sense, the additional fact was not present in “each” case, as required by Blockburger, but in only one case.

Of nearest analogy is the case of Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In that case, Harris had been tried and convicted of the felony murder of a grocery clerk. The state then sought to try him for the armed robbery of the store. Armed robbery, of course, was a separate offense, and not an included offense, to a murder charge, just as incest is a separate offense and not an included offense to the charge of rape. See Breeding v. Commonwealth, 191 Ky. 128, 229 S.W. 372 (1921), and Burdue v. Commonwealth, 144 Ky. 428, 138 S.W. 296 (1911). In holding that the second prosecution was barred by the Double Jeopardy Clause, the court held that the ingredients of the lesser offense were necessary to prove the greater offense, thus constituting two trials for the same incident. The court quoted In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), as follows:

[A] person [who] has been tried and convicted for a crime which has various incidents included in it, ... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.

That part of the judgment finding the appellant herein guilty of the crime of rape and sentencing him to life imprisonment therefor is affirmed. That part of the judgment finding the appellant guilty of incest is reversed, and this case is remanded to the lower court with directions to set aside the incest conviction.

All concur except AKER and WINTER-SHEIMER, JJ., who dissent and file herewith separate dissenting opinions.