Blockburger test applied in double jeopardy re sexual assaults: CLARK V. COM. (SC 8/21/2008)

CRIMINAL:   Double jeopardy, Blockburger Test applied
PUBLISHED: Affirming in part and Reversing in Part
DATE RENDERED: 8/21/2008

Appellant, David A. Clark, appeals his conviction of one count of first-degree rape, seven counts of first-degree sodomy, three counts of second-degree sodomy, eight counts of incest, one count of promoting a sexual performance by a minor, two counts of using a minor in a sexual performance, one count of criminal attempt to commit a sexual performance by a minor, and two counts of criminal attempt to commit use of a minor in a sexual performance. In sum, Appellant was found guilty of twenty-five felony offenses, all of which were committed against his two biological children and the child of his live-in girlfriend.

Appellant appealed his convictions as a matter of right and argues four allegations of error in the underlying proceeding: 1) that the trial court erred to his substantial prejudice and denied him due process when it failed to disqualify the entire jury panel because of alleged bias; 2) that his convictions for the promotion of sexual performance of a minor and use of a minor in a sexual performance violated double jeopardy; 3) that the jury instructions on two of his charges did not properly reflect the crimes charged in the indictment; and 4) that the testimony of the mother of the victims was improper. He further argues that the trial court erred in failing to disqualify the entire jury panel based on alleged bias stemming from their contact with a member of the media.

SC affirmed in part and reversed in part, holding held that: the defendant failed to demonstrate that jury panel was biased by an incident involving a confrontation with a newspaper reporter and a not guilty verdict in another case;  convictions for use of a minor in a sexual performance and promotion of a sexual performance by a minor violated double jeopardy; a variance between indictment and proof offered at trial, involving identities of victims of two offenses, did not amount to palpable error;  trial court was required to formally amend indictment by order to reflect variance between indictment and proof;  “other bad acts” testimony by girlfriend that she had suffered physical abuse by defendant was admissible as being inextricably intertwined with other evidence critical to the case; and any error in Commonwealth’s failure to provide adequate notice of intent to introduce  “other bad acts” testimony was harmless.

Appellant claimed the entire jury pool had been tainted due to the confrontation with the reporter and, thus, were prejudiced against acquitting another accused sex offender. The trial judge, however, denied the motion, indicating that she would go forward with empanelling a jury from the pool, but would permit counsel from both parties to call prospective jurors to the bench and question them as to any relevant matter.

Significantly, no motions were made to strike any juror for cause.  Although Appellant argues that the jury pool was invariably tainted by some of the members’ contact with the reporter, he fails to demonstrate such bias . Appellant offers little more than unsubstantiated speculation that the confrontation may have had some bearing on his conviction.  It is presumed that potential jurors are qualified to serve unless there is a showing .of actual bias. Moreover, "[i]t is incumbent upon the party claiming bias or partiality to prove the point" and must make the claim before empanelling the jury.

SC agreed with the appellant that his convictions for use of a minor in a sexual performance, KRS 531.310, and promotion of a sexual performance by a minor, KRS 531 .320, arise from the same course of conduct and therefore violate double jeopardy.  Any failure to present a double jeopardy argument to the trial court should not result in allowing a conviction which violates double jeopardy to stand.  Appellant’s convictions under KRS 531 .310 and KRS 531 .320 violate double jeopardy as they fail the Blockburger test, representing convictions which arise out of a single course of conduct and not requiring proof of a fact which the other does not.


Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Digested by Michael Stevens

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