IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 18, 2016 N WO I3 PUBLISHED
oi5uprrtur (Court of 'ficfi 2014-SC-000466-MR
KEVIN HIGGINS DAT E l-tt ?...tairCIA-04A-44:P.c. • APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT V. HONORABLE DAVID A. TAPP, JUDGE NOS. 13-CR-00065 AND 13-CR-00071
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING AND REMANDING
Kevin Higgins appeals as a matter of right from a judgment of the Lincoln
Circuit Court sentencing him to life imprisonment for first-degree rape, two
counts of first-degree burglary, and two counts of theft by unlawful taking,
value $500.00 or more. Ky. Const. § 110(2)(b). Higgins raises four issues on
appeal: 1) the joinder of his two indictments was improper; 2) the trial court
erred when it refused to declare a mistrial following a juror's contact with a
family member of a witness; 3) the trial court erred in sentencing Higgins to
three consecutive life sentences, to run consecutively to a five-year sentence for
which Higgins was incarcerated at the time of trial; and 4) the Commonwealth's
statements during closing argument constituted palpable error. For the
following reasons, we affirm the judgment and sentence of the Lincoln Circuit
Court, but remand for entry of a corrected judgment consistent with the trial
court's stated intent. FACTS AND PROCEDURAL HISTORY
During the evening of June 14, 2013, Nancy was at home alone when
Higgins arrived at her residence and rang her doorbell.' Higgins requested to
enter the home, ostensibly to use the telephone, but was refused entry.
Subsequently, Higgins forced the front door open and locked it behind him.
Inside the home, Higgins raped Nancy and stole twenty-eight dollars. Prior to
leaving, Higgins threatened to return and kill Nancy if she informed the
authorities about his crimes. Due to injuries sustained during the rape, Nancy
was bleeding profusely, necessitating medical attention. Nancy contacted 911
to receive medical assistance at approximately 11:00 p.m. After being
transported to the hospital, Nancy underwent surgery to close lacerations in
her vagina. As part of her examination at the hospital, a rape kit was collected.
The following morning at approximately 10:18 a.m., Officer Harold
Timothy Morris of the Stanford City Police Department (SCPD) was dispatched
to investigate a report of a residential burglary at the Blanton residence located
at 1117 Star Avenue. During the previous evening, the Blanton family had
fallen asleep in their living room. Upon waking, Kathy Blanton went to her
bedroom and noticed that her jewelry box had been rifled through. Her
daughter, Ashley Blanton, went into her brother's room and discovered Higgins
sleeping in the bed. Higgins was a stranger to the Blanton family, who
Higgins arrived at Nancy's residence between 10:20 p.m. and 11:00 p.m. At trial, Lisa Dolin, the granddaughter of Nancy, testified that she had visited Nancy that night and left the home between 10:20 p.m. and 10:30 p.m.
2 responded to his presence in the home by alerting the authorities. After
receiving the burglary report, Officer Morris arrived and woke Higgins.
Confronting Higgins, Officer Morris discovered that he was in possession
of a kitchen knife. Officer Morris further observed that Higgins's clothes had
blood on them. After placing him under arrest, Officer Morris also discovered
that Higgins had jewelry in the pockets of his clothes, jewelry later confirmed to
be Kathy Blanton's. Outside the residence, the police located a stool beneath
Ashley Blanton's bedroom window, along with a hoodie that contained a stolen
GPS device which belonged to Kevin Watson.
Inside Ashley Blanton's room, police found the window screen on the
floor and a stick that Higgins had presumably used to pry open the window
screen and obtain entry into the home. Also in the room, were shoes and a hat
which belonged to Higgins. Additionally, police located a stolen cell phone and
charging cords which belonged to Shannon Watson. Police made contact with
Shannon Watson who confirmed to police that three vehicles belonging to her
and her husband had been broken into near their residence early that
morning. 2
After being placed under arrest, Higgins made a recorded statement to
the police in which he admitted to getting drunk at his uncle's residence the
previous evening. He was not able to explain where the jewelry found in his
pockets came from. While he initially told police that he thought the jewelry
2 Watson later provided to prosecutors Higgins's identification card which she found in the yard near where her cars had been parked.
3 might have been given to him by his father, he later alleged that he had been
set up. Additionally, Higgins denied prying open the window to the Blanton
residence, saying that the window was already open. He denied ownership of
the hoodie and claimed to have no knowledge of the stolen property contained
inside it. Further, he denied committing a rape the previous evening.
When Higgins was taken into custody, investigators took samples of his
DNA (including taking a swab of blood which was located on his penis) to
prepare a biological identification kit. Both Higgins's biological identification
kit and the rape kit collected from Nancy were analyzed by the Kentucky State
Police lab. Their forensic examination concluded that the blood on Higgins's
penis matched the DNA of Nancy at 15 loci, resulting in the estimated DNA
profile for that match being 1 in 16 quintillion.
After receiving the DNA results, Detective Barry Allen of the SCPD
contacted Nancy. He showed her a photograph of Higgins, whom she identified
as the man who had raped her. Additionally, police conducted a canvas of the
neighborhood, speaking to Nancy's neighbors about what they saw that
evening. Gary Manning who lived two houses away from Nancy stated that he
saw Higgins that night at approximately 10 p.m. Also, Alice Bolin, Nancy's
neighbor recalled an African American man walking towards her house that
evening.
Higgins was charged with first-degree rape, first-degree burglary, and two
counts of persistent felony offender (PFO) in the first degree under indictment
number 13-CR-0071. He was also charged with first-degree burglary, two
4 counts of theft by unlawful taking (value $500.00 or more), and three counts of
being a PFO in the first degree under indictment number 13-CR-0065. Prior to
trial the Commonwealth was granted permission, over Higgins's objection, to
consolidate the two indictments into one case.
A Lincoln County jury found Higgins guilty of the charged offenses and
recommended a sentence of life for first-degree rape; twenty years for each
count of first-degree burglary enhanced by the PFO to life imprisonment; and
five years for each count of theft by unlawful taking, value $500.00 or more,
enhanced by the PFO to 10 years. 3 The jury further recommended that the
sentences be served consecutively to each other. The trial court's judgment
sentenced Higgins to life imprisonment and that sentence was orally ordered to
run consecutively to Higgins's pre-existing five-year sentence. Higgins now
appeals as a matter of right.
ANALYSIS
I. The Trial Court Did Not Err in Granting the Commonwealth's Motion to Join Higgins's Two Indictments.
Higgins first claims that the trial court abused its discretion and
committed reversible error by granting the Commonwealth's motion to join
Higgins's two indictments. Specifically, Higgins alleges that there was an
3 During the penalty phase three counts of Persistent Felony Offender in the first degree were submitted to the jury. The jury found Higgins to be a persistent felony offender on each count. The charge of Persistent Felony Offender acts as a sentence enhancer to other eligible charges present in the indictment. The use of multiple persistent felony offender charges does not offer any further enhancement, rather it is needlessly duplicative. While the inclusion of the multiple persistent felony offender counts was not error in this case, we caution the Commonwealth concerning this practice, to avoid unnecessary confusion and error.
5 insufficient relationship between the offenses to permit them to be joined, due
to the offenses not being based on the same acts or transactions and their
occurring at different locations and times. 4
Kentucky Rule of Criminal Procedure (RCr) 6.18 permits the joinder of
offenses in separate counts of an indictment on condition that the offenses are
of "the same or similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or plan."
However, RCr 8.31 serves to limit the ability to join defendants or charges,
requiring that a trial court "grant separate trials of defendants or provide
whatever other relief justice requires" if either the defendant or the
Commonwealth is prejudiced by joinder. 5 Prejudice in this context constitutes
that which is "unnecessarily or unreasonably hurtful." Romans v.
Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977).
We review the trial court's decision to join or sever separate counts of an
indictment under an abuse of discretion standard. Hedgepath v.
Commonwealth, 441 S.W.3d 119, 131 (Ky. 2014) (citing Hammond v.
Commonwealth, 366 S.W.3d 425, 429 (Ky. 2012). "[That discretion will not be
disturbed unless clear abuse and prejudice are shown." Keeling v.
Commonwealth, 381 S.W.3d 248, 270 (Ky. 2012) (quoting Schambon v.
4 Higgins alleges that the trial court's decision to join the indictments violated
RCr 9.16, Kentucky Rule of Evidence (KRE) 404, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 5 RCr 8.31 was previously RCr 9.16. Effective January 1, 2015, RCr 9.16 was
deleted and the text of the rule was shifted to RCr 8.31. As Higgins was charged and tried when the previous version of RCr 9.16 was still in effect, we will apply it to the present case.
6 Commonwealth, 821 S.W.2d 804, 809 (Ky. 1991)). "The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles." Daugherty v.
Commonwealth, 467 S.W.3d 222, 231 (Ky. 2015) (quoting Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
As we have previously articulated, there are several advantages to
conducting a joint trial which addresses multiple charges. Peacher v.
Commonwealth, 391 S.W.3d 821, 836 (Ky. 2013). Trials are costly and
burdensome to each of the actors involved in the proceedings. Id. Joint trials
further aid in assuring that defendants are tried in a timely manner, while at
the same time reducing the risk of inconsistent verdicts. Id. Due to these and
other advantages afforded by the joinder of charges, RCr 6.18 provides for the
liberal joinder of offenses.
However, separate offenses are not permitted to be joined
indiscriminately. In order to justify a single trial there must be a sufficient
nexus among the joined offenses. Id. This Court has long held that joinder is
proper where "the crimes are closely related in character, circumstances, and
time." Seay v. Commonwealth, 609 S.W.2d 128, 131 (Ky. 1980). "Offenses that
stem from closely related events and which occur within a short period of time
may be properly joined in one indictment." Chestnut v. Commonwealth, 250
S.W.3d 288, 299 (Ky. 2008).
Higgins's offenses all occurred within a close time period. Higgins's first
offenses - burglary and rape - occurred between 10:20 p.m. and 11:00 p.m.
7 Subsequently, Higgins broke into and stole property from, the cars belonging to
the Watsons. After completing the theft, Higgins forced entry into the Blanton
residence, stole property, and fell asleep while in the residence. Higgins was
discovered the following morning by the Blanton family, who promptly called
the authorities at 10:18 a.m. As a result, all of Higgins's offenses occurred
during a twelve-hour period.
In addition to the offenses being closely related in time, they also were in
close geographic proximity to one another. The Nancy and Blanton residences
were both located on Star Avenue. According to the testimony of Detective
Allen, the total distance from one end of Star Avenue to the other was two
hundred and fifty feet. He also testified that the distance between the Nancy
and Blanton residences was between seventy-five and one hundred and twenty-
five feet. Those residences are also located near 830 East Main Street where
the auto thefts occurred. 6
Additionally, the indictments concerned crimes of a similar character. In
both indictments, Higgins committed crimes against property, by burglarizing
the residences of Nancy and Blanton and by stealing property belonging to the
Watsons. These property crimes were each part of an ongoing course of
conduct that began with Higgins burglarizing Nancy's residence and only ended
with his arrest approximately twelve hours later. The facts here demonstrate
that a clear nexus and logical relationship exists between these close-in-time
6 During his testimony, Detective Allen described that by cutting across a small field Star Avenue and Main Street are easily accessible to each other.
8 events. We therefore conclude that the separate offenses were properly joined
under RCr 6.18.
Having concluded that joinder was proper, the inquiry turns to whether
Higgins was unnecessarily prejudiced by the joinder of the indictments.
Higgins claims that the joinder of the indictments hampered his ability to
produce evidence of an intoxication defense that would have been relevant to
his burglaries, but not his rape charge. Higgins fails to specify how his ability
to put forward an intoxication defense was hampered by the joinder of the
indictments.
Additionally, despite the joinder of the charges, evidence was introduced
and argument was made during the trial that could have potentially supported
a voluntary intoxication defense. An edited recording of Higgins's conversation
with police was played for the jury, during which Higgins admitted to drinking
and becoming drunk at his uncle's residence. Further, Higgins's counsel was
able to establish during the cross examination of Officer Morris that Higgins
had the odor of alcohol about him when he was apprehended.
However, that evidence was contradicted by the testimony of Higgins's
uncle, Darnell Simpson. Simpson testified that he had a small party at his
home the night of the rape, and that while there was drinking at the party,
Simpson did not recall Higgins drinking. Further, Simpson concluded that he
did not believe that Higgins was under the influence of any other substance.
The trial court ultimately declined to include a jury instruction for voluntary
intoxication concerning the burglary of the Blanton residence.
9 The simple fact that a defendant claims to have different defenses to
similar or identical charges does not inherently preclude joinder of those
charges in a single trial. Further, that the joinder of charges will hamper a
defendant from presenting a certain defense is not enough to mandate
severance. See Owens v. Commonwealth, 572 S.W.2d 415, 416 (Ky. 1977).
Higgins is unable to demonstrate how his voluntary intoxication defense was
hampered by the joinder of the charges in his case. Additionally, Higgins was
able to present an intoxication defense, it simply was unsuccessful, due in
large measure to the testimony of his own witness. Under these
circumstances, Higgins has not demonstrated undue prejudice flowing from
the joinder of his charges.
Higgins also argues that the rape and burglary charges in indictment
number 13-CR-0071 were so heinous that they unjustly impacted the jurors'
thoughts and views on the charges included within indictment number
13-CR-0064. Higgins alleges that prejudice is shown by the jury's decision to
recommend the maximum sentence in his case. Due to his status as a
persistent felony offender in the first degree, Higgins was eligible to receive a
life sentence if convicted of rape or either of the burglary charges.
At trial, the Commonwealth presented overwhelming evidence of
Higgins's guilt. Between the DNA evidence regarding the Nancy crimes and
Higgins being caught in the Blanton residence, there was no question as to his
culpability. Given his criminal history and the nature of his crimes, the
decision of the jury to recommend a life sentence was not unreasonable. It is
10 unsupported speculation to conclude that the penalty decision of the jury was
due to the presence of one charge. As such, Higgins has not shown sufficient
undue prejudice to convince us that the trial court abused its discretion in
refusing to sever the charges.
II. The Trial Court Correctly Denied Higgins's Motion For a Mistrial
Higgins also alleges that the trial court committed reversible error when
it failed to declare a mistrial when a juror admitted that she had spoken to a
family member of Nancy. After the jury had been sworn and counsel had made
their opening statements, the trial court recessed the trial for lunch. During
the lunch break, juror Melissa Adams was sitting outside on a bench when she
recognized a young man with whom she used to work. Adams approached and
hugged the young man and they spoke briefly.
Adams immediately alerted the trial court to this interaction. Outside
the presence of the jury, the trial court conducted an inquiry. The trial court
learned that the pair did not discuss the case and that Adams did not know if
the man she spoke to was related to the victim in the case. After excusing
Adams, the trial court, learned that the young man who spoke to Adams was
the grandson of the victim. Subsequently, Higgins requested a mistrial due to
Adams's contact with Nancy's grandson. The trial court denied the request.?
7 Higgins alleges that the trial court's denial of his motion for a mistrial denied
him the right to an impartial jury, in violation of Section 11 of the Kentucky Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
11 "[The trial judge is in the best position to determine the nature of alleged
juror misconduct and the appropriate remedies for any demonstrated
misconduct." Ratliff v. Commonwealth, 194 S.W.3d 258, 276 (Ky. 2006)
(quoting United States v. Sherrill, 388 F.3d 535, 537 (6th Cir. 2004)). A trial
judge's factual findings are reviewed only for clear error. Miller v. Eldridge, 146
S.W.3d 909, 915 (Ky. 2004). In the case at hand, the trial court determined
that Adams's interaction with the rape victim's grandson was only casual
contact. Further, he found no evidence that Adams was being anything less
than forthright about the interaction.
"A mistrial is not warranted if the conversation between the witness and
the juror was 'innocent' and matters of substance were not involved." Talbott v.
Commonwealth, 968 S.W.2d 76, 86 (Ky. 1998) (citing Jones v. Commonwealth,
662 S.W.2d 483-84 (Ky. App. 1983)). "The true test is whether the misconduct
has prejudiced the defendant to the extent that he has not received a fair trial."
Talbott, 968 S.W.2d at 86 (citation omitted).
Here, the contact between Adams and a relative of the victim was clearly
innocent, a chance encounter that amounted to only a few moments of casual
greetings. At no time during their conversation were matters of substance
discussed. Additionally, Adams was unaware that the man she was speaking
to was related to the victim. Under these circumstances, we conclude that the
trial judge properly concluded that a mistrial was not warranted. See
Woodward v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) ("[A] mistrial is an
extreme remedy and should be resorted to only when there is a fundamental
12 defect in the proceedings and there is a 'manifest necessity for such an action."'
(quoting Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002))).
III. The Trial Court Made Clerical Errors in its Sentencing Order
Higgins alleges two errors by the trial court in its sentencing order. The
first alleged error was that the trial court sentenced Higgins to three
consecutive life sentences. The second alleged error was the decision of the
trial court to have Higgins's life sentence run consecutively to a five-year term
of imprisonment that he had received in another case. 8 As the two issues are
intertwined and involve similar analysis they will be addressed together.
Higgins first claims that the trial court committed reversible error in
sentencing Higgins to three consecutive life sentences. The jury's penalty
verdict recommended life sentences for rape and each of two counts of burglary
and ten year sentences for each count of theft by unlawful taking, value
$500.00 or more. Additionally, the jury recommended that each offense run
consecutively to each other for a total sentence of three consecutive life
sentences and twenty years. The trial court's "final judgment on trial verdict
after reviewing pre-sentence investigation sentence of imprisonment," notes the
recommendation of the jury, but is silent as to whether Higgins's sentence was
in accord with the jury's recommendation.
During Higgins's sentencing hearing, the trial court was clear that the
sentences for the charges in indictment numbers 13-CR-0071 and
8 Higgins alleges that the trial court's sentencing order violated his due process
rights under the Fifth and Fourteenth Amendments to the United States Constitution.
13 13-CR-0064 were to run concurrently with each other. Additionally, there was
a discussion between the trial court, the Commonwealth's Attorney, and
Higgins's counsel where it was universally agreed that the sentences as a
matter of law were required to be concurrent. Their conclusion was accurate
as it is well established that life sentences may not be ordered to run
consecutively. Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993).
Additionally, when imposed as a result of the same trial, a sentence for a
number of years cannot run consecutively with a life sentence. See v.
Commonwealth, 746 S.W.2d 401, 403-04 (Ky. 1988). Finally, if the court does
not specify the manner in which a sentence imposed by it is to run, as here,
that sentence "shall run concurrently" with other sentences subject to
exceptions not applicable here. KRS 532.110(2)).
Where there is a conflict between a court's written judgment and its oral
statements, the written judgment controls. Commonwealth v. Taber, 941
S.W.2d 463 (Ky. 1997), overruled on other grounds by Keeling v.
Commonwealth, 381 S.W.3d 248 (Ky. 2012). This general rule does have
several exceptions, including RCr 10.10, which permits a trial court to correct
clerical errors.
Clerical errors are "all errors, mistakes, or omissions which are not the
result of the exercise of the judicial function." Machaniak v. Commonwealth,
351 S.W.3d 648, 652 (Ky. 2011) (quoting Buchanan v. West Ky. Coal Co., 218
Ky. 259, 291 S.W. 32, 35 (Ky. 1927)). The distinction between clerical and
judicial errors "does not depend so much upon the person making the error as
14 upon whether it was the deliberate result of judicial reasoning and
determination, regardless of whether it was made by the clerk, by counsel, or
by the judge." Id. (citation omitted).
We have previously held that "[t]he failure to accurately reduce to writing
the trial court's intended sentence, a sentence which was evident from a review
of the videotaped record and made known to both parties at the sentencing
hearing, was a clerical error[.]" Id. at 654. Such was the situation in the case
at hand. Due to a clerical error, the sentence announced during the
sentencing hearing was not properly reflected in the trial court's written order. 9
As clerical errors are not the result of judicial reasoning, additional
substantive proceedings are unnecessary to correct the trial court's sentencing
order. We choose, instead, to order the trial court to implement the intent
expressed during the sentencing hearing, which would have been given effect in
the judgment absent clerical error. Accordingly, we remand for entry of
judgment consistent with the intent expressed by the trial court during the
sentencing hearing, namely that the sentences under indictments 13-CR-0065
and 13-CR-0071 are to run concurrently with each other.
9 Higgins argues that the trial court's clerical error was in fact a judicial error. In support of this position he cites Dublin v. Osborne, 388 S.W.2d 588 (Ky. 1965). In Dublin, our predecessor Court, granted a writ of mandamus to vacate an order committing Dublin to the penitentiary. Id. at 591. The trial court modified its sentencing order, to run his convictions consecutively rather than concurrently, while Dublin's case was on appeal. Id. at 589. The Court's decision to grant the writ was based on the strong suspicion that the trial court may have arbitrarily increased Dublin's sentence. Id. at 590. The specter of vindictiveness present in Dublin is not present in this case. Rather, the trial court simply erred by failing to include in his written order, the terms pronounced at the sentencing hearing.
15 However, with regard to the trial court's oral order that Higgins's life
sentence run consecutively to his pre-existing five-year sentence, additional
analysis is required. Higgins correctly points out that there are no published
opinions from this Court that state whether a life sentence could be run
consecutively to a five-year sentence he was already serving in another case.
However, there are previous cases that are helpful in determining whether such
a sentence would be permissible.
In Stewart v. Commonwealth, 153 S.W.3d 789 (Ky. 2005), Stewart was
convicted of first-degree rape and first-degree burglary, receiving a sentence of
ten years. While on parole for that sentence, Stewart committed first-degree
robbery and received a life sentence. Id. at 790-791. At issue in the case was
the scope and application of the powers of the Parole Board in making a
decision to deny parole to a prison inmate. Id. at 790. In dicta, the Court
noted that it was improper to order a term-of-years sentence to run
consecutively with a life sentence when the defendant had been convicted of
those offenses in the same trial. Id. at 792. However, the Court distinguished
Stewart's situation as he was sentenced to a term of years and imprisoned
prior to receiving his life sentence. Id. Stewart's life sentence would only begin
upon service of his term of years. Id. While the Court decided Stewart's case
on other grounds, the Court did appear to condone a subsequent life sentence
being run consecutively to an existing term of years.
16 A similar issue was addressed in Clay v. Commonwealth, 2010 WL
2471862 (Ky. 2010). 10 Clay was convicted of rape and sodomy and sentenced
to thirty years' imprisonment. At the time of his sentencing hearing, Clay had
been convicted for rape and murder in an unrelated case and sentenced to life
imprisonment. Id. The trial court elected to run Clay's thirty-year sentence
consecutively to his previously imposed life sentence. Id. Although Clay
argued that this sentencing construction was error, we disagreed.
When read together KRS 532.080 and 532.110 apply to sentences issued
in the same action for separate offenses. Id. at 4. As a result, it is improper to
run a life sentence consecutively to a sentence for a term of years, when both
sentences arise out of the same action. Id. However, Clay had a life sentence
which predated his term-of-years sentence. Id. As those sentences arose out
of different cases, the sentences were permitted to run consecutively to each
other. Id.
Higgins argues against the application of Clay based on the timing of his
offenses. Both his instant case and those charges listed under indictment
number 13-CR-0047 were pending contemporaneously. Additionally, the
criminal acts which were the basis of this case preceded the return of an
indictment in 13-CR-0047. 11 However, those two factors do not impact
1 c) As CR 76.28(4)(c) permits citation of unpublished Kentucky appellate decisions, rendered after January 1, 2003, "if there is no published opinion that would adequately address the issue before the court." 11 The date that the offenses charged under indictment number 13-CR-0047 occurred is not present in the record. However, Higgins's assertions as to the timing of the offenses are not contradicted by the Commonwealth's brief.
17 whether the trial court was able to order the sentences in those cases to be
served consecutively. As Clay permitted a trial court to run a new sentence of
a term of years consecutive to an existing life sentence, that same logic permits
the trial court to i-un an existing term-of-years sentence consecutive to a new
sentence of life imprisonment. 12
The trial court's omission in its sentencing judgment that Higgins's life
sentence was to run consecutively with his previous five-year sentence was a
clerical error made in reducing the oral judgment to writing. As clerical errors
do not require substantive proceedings to be corrected, we remand for entry of
a corrected judgment consistent with the intent expressed by the trial court
during the sentencing hearing as to this issue as well.
IV. The Commonwealth's Statements During Closing Argument Did Not Amount to Palpable Error.
In his argument concerning the impropriety of his sentence, Higgins also
alleged prosecutorial misconduct for a statement made during closing
12 Higgins also argues that as the trial court did not specify in its written order
that Higgins's life sentence be consecutive to his five year sentence, that under KRS 532.110(2) those sentences must be run concurrently. In support of this proposition, Higgins cites the Court to Caldwell v. Commonwealth, 12 S.W.3d 672 (Ky. 2000). However, the Court's decision in Caldwell is contrary to Higgins proposition. Caldwell was serving a five year sentence when he subsequently received a ten year sentence. Id. at 673. At sentencing, the trial court orally ordered for those sentences to be served consecutively for a total sentence of fifteen years. Id. Despite the trial court's statements at sentencing, the sentencing order was silent as to whether the charges would run concurrently or consecutively. Id. Approximately eight months later, the trial court entered an amended judgment and sentence which added language ordering that the sentences be served consecutively. Id. at 674. On review, the Court determined that "the omission in the original judgment of a provision that Caldwell's sentence was to run consecutive with his previous sentence was a mistake made in reducing the oral judgment to writing." Id. The Court permitted the sentences to run consecutively as the failure to include that language in the original sentencing order was deemed to be clerical error. Id. at 675.
18 argument of the penalty phase. Specifically, the Commonwealth requested that
the jury sentence Higgins to three consecutive life sentences. There was no
objection to this statement at trial. Ultimately, the jury followed the argument
of the Commonwealth and recommended a sentence of three consecutive life
sentences and twenty years.
As this issue is unpreserved we review it to determine whether it
constitutes palpable error under RCr 10.26. It is clear that the
Commonwealth's argument to the jury that they run the life sentences
consecutively was error. As explained in the preceding section, life sentences
may not be ordered to run consecutively. Bedell, 870 S.W.2d at 783. The
Commonwealth is not permitted to ask the jury to return a sentence that it
knows to be improper.
However, the Commonwealth's statement did not rise to the level of
palpable error. An appellate court may reverse for prosecutorial misconduct
occurring during closing argument only if the misconduct is "flagrant."
Matheney v. Commonwealth, 191 S.W.3d 599 (Ky. 2006) (citing Barnes v.
Commonwealth, 91 S.W.3d 564 (Ky. 2002)). Alternatively, reversal is proper if
each of the following conditions is satisfied: (1) the proof of guilt is not
overwhelming; (2) an objection is made, and (3) the trial court failed cure the
error with a sufficient admonishment to the jury. Id. (citation omitted).
As the proof in the case was overwhelming and there was no objection to
the Commonwealth's statement, reversal is only proper if the misconduct is
deemed to be flagrant. We use a four-part test to determine whether a
19 prosecutor's improper comments amount to flagrant misconduct. The four
factors to be considered are: "(1) whether the remarks tended to mislead the
jury or to prejudice the accused; (2) whether they were isolated or extensive; (3)
whether they were deliberately or accidentally placed before the jury; and (4)
the strength of the evidence against the accused." Hannah v. Commonwealth,
306 S.W.3d 509, 518 (Ky. 2010) (citing United States v. Carroll, 26 F.3d 1380,
1385 (6th Cir. 1994), superseded by statute KRS 503.055 and 503.050).
As to the first factor it is hard to see how Higgins was prejudiced by the
Commonwealth's statement. While the jury recommended three consecutive
life sentences, it was clear that the trial court would not follow that
recommendation, and instead impose concurrent life sentences. The heinous
nature of Higgins's crimes made it likely that even absent the remarks of the
Commonwealth the jury would have imposed a harsh penalty. This factor
weighs in the Commonwealth's behalf.
As to the second factor, the statement of the Commonwealth was
isolated. Occurring in closing argument during the penalty phase, it amounted
to a brief moment in a two-day trial. This factor weighs in the
Commonwealth's behalf. As to the third factor, we can only conclude that the
comments were deliberately placed before the jury. This factor weighs in
Higgins's behalf. The fourth factor is the weight of the evidence against Higgins.
The Commonwealth put forward overwhelming evidence of Higgins's guilt. Due
to DNA evidence and Higgins's being caught in the Blanton residence, there
20 was no question as to his guilt. This factor weighs in the Commonwealth's
behalf.
After a review of the four factors, we conclude that the Commonwealth's
statement was not so egregious as to have undermined the essential fairness of
Higgins's trial. While we strongly disapprove of the Commonwealth requesting
the jury recommend an improper sentence, we do not believe that statement
merits either reversal of Higgins's convictions or a new penalty phase. While
the statement of the Commonwealth was improper, it did not constitute
flagrant misconduct.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence, and
this case is remanded to the circuit court for entry of a corrected judgment
consistent with the trial court's stated intent at the time of sentencing.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jason Apollo Hart Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear, Attorney General of Kentucky
David Bryan Abner Assistant Attorney General Office of the Attorney General