CRIMINAL – Procedure, double jeopardy: Commonwealth v. Gary Davidson (SC 2/19/2009)

Commonwealth v. Gary Davidson
2006-SC-000180-DG 2/19/2009
Opinion by Special Justice Moore; Justice Noble, Justice Venters, Justice Cunningham, Justice Abramson and Special Justice R. Michael Sullivan concur.

Davidson was found guilty of unlawful imprisonment in the first degree and assault in the second degree. The Court of Appeals affirmed the unlawful imprisonment conviction, but reversed the assault conviction, holding that the trial court committed palpable error when it instructed the jury on second degree assault on the theory that fists were “dangerous instruments.” The Court of Appeals held that double jeopardy prevented retrial on the assault charge since there was insufficient evidence to support a finding that the victim suffered “serious physical injury” as defined by KRS 500.080(15). The Supreme Court affirmed the Court of Appeals, noting that under Burks, double jeopardy prevents retrial when the reviewing court has found the evidence legally insufficient, since the defendant should have received a directed verdict of acquittal at trial. Justice Scott dissented in part, characterizing reversal as a product of “trial error” which would not preclude retrial on the on assault second charge.

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