RATLIFF V. COM.
CRIMINAL: Severence (counts; defendants)
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
This criminal appeal arose from a conviction for the child abuse and death of a minor. Ratliff was living with the mother of the deceased child, and both were charged with the child’s death. The child’s autopsy revealed several injuries over time and before the fatal injury. The trial had joined both Ratliff and the mother. On appeal, Ratliff raised several issues. Among those issues was joinder with the co-defendant mother and the failure to sever the murder charges from the child abuse charges.
Appellant asserts error in the denial of his RCr 9.16 motion to sever (1) the murder count from the criminal abuse counts against him; and (2) his own criminal prosecution from the prosecution of Kirk. RCr 9.16 provides in pertinent part: If it appears that a defendant . . . will be prejudiced by a joinder of offenses or of defendants in an indictment, . . . the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires .
Under RCr 9.16, "a defendant must prove that joinder would be so prejudicial as to be ‘unfair’ or’unnecessarily or unreasonably hurtful ."’ Commonwealth v. Rogers, 698 S .W.2d 839, 840 (Ky. 1985); see also Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992); Ware v. Commonwealth, 537 S.W.2d 174, 176-77 (Ky. 1976). A trial judge has broad discretion in ruling on an RCr 9 .16 motion, and that determination will not be overturned on appeal unless an abuse of discretion is shown. Taylor v. Commonwealth, 995 S .W .2d 355, 360 (Ky. 1999); Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky. 1991). We review each claim separately.
There was no error in joining the criminal abuse with the murder charges as the victim and the alibi defense were identical for all joined counts.
There was no error in the joinder of parties even though the mother pointed the blame at Ratliff. The fact that an inference from the evidence tends to blame either does not make the defenses antagonistic.
Other issues rejected by the court included the juror strikes for cause, sufficiency of the evidence (much discussion of expert testimony), KRE 403 objection to autopsy photos of child; juror instructions; alleged sleeping jury.
However, the judgment must be vacated insofar as it recites a conviction of and sentence for an offense of which Appellant was not convicted, and insofar as it imposes a maximum aggregate sentence in excess of seventy years .
Michael Stevens, ed.