RENDERED: MARCH 23, 2023 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0048-TG 2022-SC-0095-TG
LEIF HALVORSEN APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JULIE MUTH GOODMAN, JUDGE NO. 83-CR-00152-001
COMMONWEALTH OF KENTUCKY APPELLEE
AND
2022-SC-0039-MR
JOHNATHAN WAYNE GOFORTH APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JULIE MUTH GOODMAN, JUDGE NO. 99-CR-00146-002
2022-SC-0040-MR
VIRGINIA SUSAN CAUDILL APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE JULIE MUTH GOODMAN, JUDGE NO. 99-CR-00146-001 COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
AFFIRMING
This case came before the Fayette Circuit Court upon the filing of three
post-conviction collateral attack motions seeking to vacate the murder
convictions of Virginia Caudill, Johnathan Goforth and Leif Halvorsen
(collectively, “Appellants”) pursuant to RCr1 11.42(10), CR2 60.02, and CR
60.03. Appellants requested post-conviction relief on grounds that the
“combination” jury instructions rendered their verdicts non-unanimous, in
violation of their constitutional right to a unanimous jury and ran afoul of the
unanimity requirement recently announced in in Ramos v. Louisiana, 140 S.
Ct. 1390 (2020). Concluding that Ramos does not apply retroactively to these
cases and further, that Appellants’ claims were time-barred, the trial court
denied them relief. For the reasons set forth below, we affirm.
I. Factual and Procedural Background
Caudill and Goforth were tried together in 2000 and were both convicted
of murder, robbery in the first degree, burglary in the first degree, arson in the
second degree, and tampering with physical evidence. Caudill v.
Commonwealth, 120 S.W.3d 635 (Ky. 2003). Each received a death sentence
1 Kentucky Rules of Criminal Procedure. 2 Kentucky Rules of Civil Procedure.
2 for the murder conviction and the maximum authorized penalties for the other
four convictions. Id. In a separate case, years before Caudill and Goforth’s
convictions, Halvorson was found guilty of three counts of murder and
sentenced to death on two counts, and life imprisonment on the third count.
Halvorsen v. Commonwealth, 730 S.W.2d 921 (Ky. 1986).3 Each of the
Appellants was convicted under a combination jury instruction, which
permitted the jury to convict if it determined beyond a reasonable doubt that
he or she was guilty of either murder or complicity to murder, but was unable
to ascertain from the evidence whether each committed the crime as the
principal or as an accomplice.
Appellants challenged their convictions on direct appeal as non-
unanimous verdicts under the principal-accomplice combination instruction.
This Court rejected that claim across the board, noting that the unanimity
requirement was not violated because both the principal and accomplice
theories were supported by the evidence. Caudill, 120 S.W.3d at 648;
Halvorsen, 730 S.W.2d at 925. Following our affirmance of their convictions on
direct appeal, each Appellant received additional state and federal collateral
review of their case, none of which bore any fruit.
In 2020, the United States Supreme Court rendered its decision in
Ramos, which addressed the issue of juror unanimity – unanimity in numerical
count. 140 S. Ct. at 1393. Specifically, the Court examined the criminal
3 In December 2019, then Governor Bevin commuted Halvorsen’s death
sentences to sentences of life with the possibility of parole.
3 justice systems of Oregon and Louisiana, both of which allowed a defendant to
be convicted of a serious crime based on a jury verdict in which at least 10 of
12 jurors found the defendant guilty beyond a reasonable doubt. Id. The
Supreme Court held that the Sixth Amendment’s right to an impartial jury
implicitly included the right to a unanimous verdict in criminal trials, as
applied equally to federal and state criminal trials (via the Fourteenth
Amendment). Id. In addressing concerns that its decision would spawn a
“tsunami” of litigation, the Ramos majority emphasized that “prior convictions
in only two States [Oregon and Louisiana] are potentially affected by our
judgment.” Id. at 1406.
Thereafter, Appellants each filed a motion for post-conviction relief,
which the trial court consolidated. While their motions were being litigated,
the United States Supreme Court decided Edwards v. Vannoy, 141 S. Ct. 1547
(2021), which clarified that Ramos was not to be retroactively applied in federal
collateral attacks, pursuant to Teague v. Lane, 489 U.S. 288 (1989).
Resultingly, prisoners who were convicted by non-unanimous juries and whose
cases were final in state court before rendition of Ramos cannot rely on Ramos
as support for federal collateral relief.
Based on the holding of Edwards and application of the Teague
standard, adopted by this Court with regard to state collateral attacks in
Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), the trial court held that
the Ramos did not apply retroactively to Appellants’ claims. The trial court
4 further observed that the underlying basis for Appellants’ motions - a lack of
unanimity - had been previously rejected by this Court on direct appeal.
The trial court determined that even if this Court were to now decide that
the combination jury instruction did not satisfy the requirement of unanimity,
absent a finding of retroactivity, the cases at bar are final and the post-
conviction motions untimely. The trial court noted that Halvorsen’s murder
convictions were final 33 years before, and Goforth and Caudill’s convictions
were final 16 years ago. Moreover, Appellants’ RCr 11.42 motions had been
denied and affirmed on appeal. Caudill v. Commonwealth, No. 2006-SC-
000457-MR, 2009 WL 1110398 (Ky. Apr. 23, 2009); Halvorsen v.
Commonwealth, 258 S.W.3d 1 (Ky. 2007). Thus, the trial court concluded that
Appellants’ RCr 11.42 motions were untimely and must be dismissed. The trial
court likewise dismissed the motions under CR 60.02 and CR 60.03, noting
that those rules do not allow a defendant to circumvent the time limitations of
a RCr 11.42 motion. This appeal followed.
II. Analysis
In Kentucky, the structure for attacking the final judgment of a trial
court in a criminal case “is not haphazard and overlapping but is organized
and complete.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The
structure “is set out in the rules related to direct appeals, in RCr 11.42,
and thereafter in CR 60.02. . . . [which] is for relief that is not available by
direct appeal and not available under RCr 11.42.” Id. In an RCr 11.42
proceeding, the movant must establish that he was deprived of some
5 substantial right that would justify the extraordinary relief afforded by the
post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118
(Ky.1968).
Likewise, CR 60.02 is an extraordinary remedy and “[t]o justify relief, the
movant must specifically present facts which render the original trial
tantamount to none at all.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky.
2014) (internal quotation and citation omitted). To warrant reversal of a lower
court’s ruling on a CR 60.02 motion, the appellant must demonstrate some
“flagrant miscarriage of justice.” Id. at 886 (quoting Gross, 648 S.W.2d at 858).
As noted by the United States Supreme Court in Strickland v. Washington,
“[t]he presumption that a criminal judgment is final is at its strongest in
collateral attacks on that judgment.” 466 U.S. 668, 697 (1984). With
retroactivity being an issue that is purely a matter of law, we review the trial
court’s ruling de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719
(Ky. 2000) (applying de novo standard of review to matters of law in cases in
which no facts are in dispute).
The relevant portion of RCr 11.42(10) provides that a motion must be
filed within three years after the judgment is final unless it presents new facts,
or the fundamental constitutional right asserted was not established within the
three-year period and has been held to apply retroactively. Appellants argue
that Ramos announced a new constitutional right and urges us to apply its
holding retroactively. Alternatively, they request relief under CR 60.02 on
equitable grounds.
6 In Leonard, Kentucky adopted Teague’s proscription against applying
new federal constitutional rules of criminal procedure retroactively once a
judgment is final on direct review. 279 S.W.3d at 160. The Leonard court
reasoned, “Teague’s proscription against applying new rules retroactively once
a judgment has become final on direct review makes sense, given the interest
in finality of judgments.” Id. The Court noted this was especially so in cases
that have been final for a significant amount of time. Id. Thus, “[u]nder
Teague, once a conviction becomes final, that is, it has gone through the direct
appeal process and been affirmed, the new rule is not applicable, even if the
collateral attack is pending when, or has begun after, the new decision is
rendered.” Id. at 159. See also Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (“A
state conviction and sentence become final for purposes of retroactivity
analysis when the availability of direct appeal to the state courts has been
exhausted and the time for filing a petition for a writ of certiorari has elapsed
or a timely filed petition has been finally denied[]”). The Teague doctrine has
been consistently and repeatedly applied in Kentucky jurisprudence. See, e.g.,
Phon v. Commonwealth, 545 S.W.3d 284, 300-01 (Ky. 2018); Commonwealth v.
Lawson, 454 S.W.3d 843, 846 (Ky. 2014); Hallum v. Commonwealth, 347
S.W.3d 55, 57 (Ky. 2011).
In Edwards, the Supreme Court expressly held that the rule announced
in Ramos could not be applied retroactively to overturn final convictions on
federal habeas corpus review. 141 S. Ct. at 1551. Citing Teague, the Edwards
Court noted that “a decision announcing a new rule of criminal procedure
7 ordinarily does not apply retroactively on federal collateral review.” Id. The
Edwards court specified that the Ramos case “directly affected Louisiana and
Oregon, which were the only two States that still allowed non-unanimous
verdicts[,]” thereby solidifying that the Ramos jury-unanimity rule does not
apply to any situation that does not involve the number of jurors required for a
unanimous verdict. 141 S. Ct. at 1554.
Nonetheless, Appellants ask that we abandon state precedent relying on
the federal habeas non-retroactivity doctrine because of the fundamental right
at stake. They maintain that their constitutional right to a unanimous verdict
was violated when they were convicted by a jury that was not unanimous as to
the actus reus. In this vein, Appellants assert that sufficiency of the evidence
and unanimity are independent constitutional rights.
However, unlike the Oregon and Louisiana unanimity issues presented in
Ramos, “Kentucky has long required criminal convictions by a unanimous jury
verdict.” Capstraw v. Commonwealth, 641 S.W.3d 148, 158 (Ky. 2022).
Indeed, over four decades ago, this Court held that “Section 7 of the Kentucky
Constitution requires a unanimous verdict reached by a jury of twelve persons
in all criminal cases.” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky.
1978). See also KRS 29A.280(3) (“A unanimous verdict is required in all
criminal trials by jury”); RCr 9.82(1) (“The verdict shall be unanimous. It shall
be returned by the jury in open court[]”).
Furthermore, Kentucky law is clear that “jurors may reach a unanimous
verdict even though they may not all agree upon the means or method by
8 which a defendant has committed the criminal act.” King v. Commonwealth,
554 S.W.3d 343, 352 (Ky. 2018). Juror unanimity in this context “means that
jurors must agree upon the specific instances of criminal behavior committed
by the defendant but they need not agree upon his means or method of
committing the act or causing the prohibited result.” Id.
In Capstraw, this Court considered whether to apply Ramos retroactively
to a claim of unanimity violation (combination murder instruction – wanton or
intentional) and was “unconvinced that Ramos requires us to revisit our long-
standing precedent.” 641 S.W.3d at 158. The 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. The
rationale in Capstraw echoes the reasoning of this Court’s ruling on the
unanimity issue raised in Appellants’ direct appeal and is consistent with
Kentucky precedent. See, e.g., Futrell v. Commonwealth, 471 S.W.3d 258, 277
(Ky. 2015) (finding a combination principal-accomplice wanton murder
instruction appropriate because the evidence supported both alternatives); St.
Clair v. Commonwealth, 140 S.W.3d 510, 559 (Ky. 2004) (holding that murder
instructions combining principal and accomplice liability was proper).
Here, noting its obligation to follow Edwards and Leonard’s adoption of
Teague’s retroactivity principles, the trial court correctly denied relief under
RCr 11.42(10). As for relief under CR 60.02, that rule “is not a separate
avenue of appeal to be pursued in addition to other remedies but is available
only to raise issues which cannot be raised in other proceedings.” McQueen v.
9 Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); see also Gross, 648 S.W.2d at
857 (holding the language of RCr 11.42 forecloses the defendant from raising
any questions under CR 60.02 which are “issues that could reasonably have
been presented” by RCr 11.42 proceedings). “A change in the law simply is not
grounds for CR 60.02 relief except in aggravated cases where there are strong
equities.” Leonard, 279 S.W.3d at 161–62 (citation omitted).
To justify CR 60.02 relief, a movant bears the burden to “affirmatively
allege facts which, if true, justify vacating the judgment and further allege
special circumstances that justify CR 60.02 relief.” McQueen, 948 S.W.2d at
416. Appellants’ CR 60.02 motions are not only procedurally deficient, as they
raise the same claim in their request for RCr 11.42 relief, but they have further
failed to persuade us that the equities weigh in favor of using CR 60.02 to
apply Ramos’s holding to their cases. Thus, the trial court properly denied
relief under this rule.
Lastly, as to CR 60.03, the trial court’s order summarily denied relief
under that rule as well. Notably, Appellants have not briefed this issue on
appeal and therefore we consider it abandoned. That said, for purposes of
clarity, any claim for relief under that rule would likewise be barred. CR 60.03
“is intended as an equitable form of relief when no other avenue exists.” Meece
v. Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017). The plain language of that
rule requires “an independent action” to be brought, with relief unavailable “if
the ground of relief sought has been denied in a proceeding by motion under
Rule 60.02[.]” CR 60.03; Jackson v. Commonwealth, 640 S.W.3d 99, 103 (Ky.
10 App. 2022). Since Appellants did not bring an independent action seeking CR
60.03 relief, and we affirm the denial of CR 60.02 relief, they are prohibited
from seeking CR 60.03 relief on this basis in the future.
In summary, Appellants’ cases have received direct and collateral review
at the state and federal levels, with the unanimity/combination instruction
issue squarely addressed. Appellants’ current attempt to vacate their
convictions by arguing for retroactive application of Ramos is distorted, as the
holding of Ramos simply does not apply to their claims. Moreover, Appellants
have failed to persuade us that their cases warrant abandoning long-standing
precedent concerning unanimity and combination instructions or justify
renouncing this state’s continued adherence to the Teague bar. We conclude
that the trial court’s denial of Appellants’ post-conviction motions was correct
as a matter of law and therefore affirm.
III. Conclusion
For the foregoing reasons, the order of the Fayette Circuit Court is
affirmed.
All sitting. VanMeter, C.J.; Conley, Keller, Lambert and Nickell, JJ.,
concur. Thompson, J., concurs in result only by separate opinion in which
Bisig, J., joins.
THOMPSON, J., CONCURRING: While I agree with the majority opinion
affirming the Fayette Circuit Court’s denial of the appellants’ postconviction
motions, I write separately to clarify what I believe to be the appropriate focus
for resolving these appeals. Two points are key: (1) Ramos v. Louisiana, 140 S.
11 Ct. 1390 (2020), does not apply to invalidate verdicts in which twelve jurors
concluded the defendant was guilty of murder; and (2) there is no unanimity
problem when a jury finds a defendant guilty of murder under an appropriate
principal-accomplice combination instruction.
The appellants argue their jury verdicts were not unanimous because it
is unknown whether each of the twelve jurors convicted them of murder as
principals or accomplices. Their jury instructions were as follows:
If you believe from the evidence beyond a reasonable doubt that the Defendant, [defendant’s name], is guilty of either Murder under Instruction No. 2 or Complicity to Murder under Instruction No. 3, but are unable to determine from the evidence whether the Defendant committed this crime as Principal under Instruction No. 2 or Accomplice under Instruction No. 3, then you will find [defendant’s name] guilty of Murder, Principal or Accomplice, under this Instruction and so state in your verdict.[4]
Ramos invalidates state convictions reached by ten jurors out of twelve
on the basis that such does not constitute a unanimous jury verdict. 140 S.
Ct. at 1397. While the opinion addresses unanimity generally, it does not
reach the type of problem raised by the appellants. Therefore, there is no need
to discuss whether Ramos applies retroactively or not, as it simply does not
apply.
In Kentucky, “a general jury verdict based on an instruction
including two or more separate instances of a criminal offense, whether
explicitly stated in the instruction or based on the proof—violates the
4 This was the exact wording for the instructions concerning Caudill and
GoForth, and very close to the wording for the instructions regarding Halvorsen.
12 requirement of a unanimous verdict.” Johnson v. Commonwealth, 405 S.W.3d
439, 449 (Ky. 2013) (emphasis added). However, such a situation is not to be
confused with one instance of a criminal offense which may have been
committed directly, through being the actor who physically did it, or indirectly
as an accomplice.
As explained in as explained in King v. Commonwealth, 554 S.W.3d 343,
352 (Ky. 2018):
This court recognizes and has consistently maintained that the jurors may reach a unanimous verdict even though they may not all agree upon the means or method by which a defendant has committed the criminal act. Conrad v. Commonwealth, 534 S.W.3d 779, 784 (Ky. 2017) (quoting Miller v. Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002) ) (A “conviction of the same offense under either of two alternative theories does not deprive a defendant of his right to a unanimous verdict if there is evidence to support a conviction under either theory.”). Nor is the jury required to agree upon the defendant's mental state in cases where alternative mental states authorize conviction for the same criminal act. Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978) (“We hold that a verdict cannot be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense.”). Neither Harp, Johnson, nor their progeny changes that.
However, we have also held consistently with virtually every other American jurisdiction to address the matter, that juror unanimity means that jurors must agree upon the specific instance of criminal behavior committed by the defendant but they need not agree upon his means or method of committing the act or causing the prohibited result.
The fact that either Caudill or GoForth may have bludgeoned the victim
to death, with each of them “accus[ing] the other of murdering and robbing the
victim and of setting fire to the automobile[,]” Caudill v. Commonwealth, 120
S.W.3d 635, 648 (Ky. 2003), does not mean that they are not each guilty of 13 murder under KRS 507.020, whether as a principal or as an accomplice
pursuant to KRS 502.020, for this single act. Similarly, where the evidence
indicated that Halvorson and his co-defendant both shot the victims, rendering
lethal wounds and “it was impossible to determine that either appellant was
only a principal or only an accomplice[,]” the Court correctly determined, citing
Wells, that “[a] verdict cannot be attacked as being non-unanimous where both
theories are supported by sufficient evidence.” Halvorsen v. Commonwealth,
730 S.W.2d 921, 925 (Ky. 1986). Accordingly, there is no unanimity problem
and affirmance of the denial of the appellants’ postconviction actions was
appropriate.
14 COUNSEL FOR APPELLANTS, LEIF HALVORSEN AND JOHNATHAN WAYNE GOFORTH:
David Michael Barron Assistant Public Advocate
COUNSEL FOR APPELLANT. VIRGINA SUSAN CAUDILL:
J. Robert Linneman Santen & Hughes
Dennis James Burke Assistant Public Advocate
Kathleen Kallaher Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Matthew R. Krygiel Assistant Attorney General