APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 10-CR-00954
The opinion of the court was delivered by: Moore, Judge:
RENDERED: FEBRUARY 22, 2013; 10:00 A.M.
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES.
Benjamin William Meyer appeals the Fayette Circuit Court's judgment convicting him of two counts of receiving stolen property over $500.00; one count of possession of marijuana; and one count of possession of drug paraphernalia. After a careful review of the record, we affirm in part regarding the circuit court's denial of Meyer's motion for a directed verdict. We also reverse in part and remand regarding Meyer's remaining claims because the circuit court erred in declaring a mistrial as to counts three, four, and five during the first trial; and the evidence concerning counts three, four, and five should not have been heard by the second jury.
I. FACTUAL AND PROCEDURAL BACKGROUND
Meyer was indicted on six counts: Count one -- receiving stolen property valued over $500.00, i.e., a projector; count two -- receiving stolen property valued over $500.00, i.e., a projector; count three -- receiving stolen property valued over $500.00, i.e., a laptop computer; count four -- possession of marijuana; count five -- possession of drug paraphernalia; and count six -- display or possession of a cancelled/fictitious operator's license.*fn1
Meyer's case proceeded to a jury trial. Following the presentation of evidence, and during jury deliberations, the jury sent the circuit court a note stating: "Jury cannot come to a unanimous verdict on Counts [sic] # 1 [and] Count # 2." The note was signed by Juror # 4172, who was the foreperson of the jury.
During a discussion at the bench with counsel for both sides, the circuit court stated that it would not accept a partial verdict. The court subsequently asked the jury whether any of them thought further deliberations would be helpful in reaching a verdict, to which they responded in the negative.
The court decided not to give the jury an instruction concerning the
desirability of reaching a verdict, pursuant to RCr*fn2
9.57, and the court then declared a mistrial. The circuit
court entered an order stating that the jury had been "unable to agree
upon a verdict, [so] they were discharged from further consideration
of this case and a Mis-trial [sic] was declared." The jury verdict
form that is in the record provides no verdict as to counts one and
two, both of which allege that Meyer received stolen property valued
at $500.00 or more (i.e., two projectors). However, the jury verdict
form provides that the jury reached verdicts as to count three (not
guilty on charge of receiving stolen property valued at $500.00 or
i.e., a laptop computer); count four (guilty on charge of possession
of marijuana); and count five (guilty on charge of use or possession
of drug paraphernalia). The jury's verdicts for counts three, four,
and five were signed by the jury foreperson.
Prior to the second trial, Meyer filed a motion to dismiss count three of the indictment. Meyer argued that during the first trial, the jury foreperson had reported to the court that the jury had reached a "not guilty" verdict on count three, but because the jury was unable to reach a unanimous verdict on all counts, the court had declared a mistrial. Meyer contended that to be tried again on count three after the first jury had reached a "not guilty" verdict on that count would violate his right against double jeopardy. The circuit court held a hearing on the motion and denied it orally on the record, reasoning that the court did not believe it was permitted to take a partial jury verdict.
During the second trial, Meyer moved for a mistrial on the ground that the jury in the first trial had unanimously voted "not guilty" on count three and "guilty" on counts four and five. Meyer argued that because: The jury had voted unanimously regarding counts three, four, and five; the decisions on those counts were signed by the jury foreperson; the circuit court clerk had file-stamped the partial jury verdict; and the clerk had entered the partial jury verdict into the record, there was previously a jury verdict on those three counts and, accordingly, Meyer was prejudiced by the introduction of evidence at his second trial concerning the three counts. The circuit court denied the motion, reasoning that during the first trial, the court had released the jury to leave without taking an "official" return of the jury's verdict on counts three, four, and five, and that at the time the court had done so, the court was unaware that the jury had voted "not guilty" on count three.
At the end of the second trial, the jury returned a verdict of "guilty" on counts one, two, four, and five, and a verdict of "not guilty" on count three. The jury recommended sentences for the counts on which it had convicted Meyer, and the circuit court sentenced Meyer to: One and one-half years of imprisonment on count one; one and one-half years of imprisonment on count two; six months of imprisonment and a $100.00 fine on count four; and six months of imprisonment and a $100.00 fine on count five. The sentences for counts one and two were ordered to be served consecutively, and the sentences for counts four and five were ordered to be served concurrently with each other and concurrently with count one, for a total sentence of three years of imprisonment. The court ordered the judgment to be withheld, and sentenced Meyer to five years of probation, contingent upon Meyer's meeting certain conditions specified in the written judgment. The circuit court's judgment also provided that count six was dismissed.
Meyer now appeals, contending that: (a) the second jury trial of counts three, four, and five violated his right against double jeopardy; (b) the introduction of evidence during the second trial concerning counts three, four, and five was prejudicial to Meyer; and (c) the circuit court should have granted a directed verdict as to the felony versions of counts one and two because the Commonwealth failed to prove that the value of each projector was at least $500.00.