Released for Publication March 12, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM HENRY CIRCUIT COURT. HONORABLE KAREN A. CONRAD, JUDGE. CASE NOS. 11-CR-00061, 12-CR-00060, AND 13-CR-00019.
COUNSEL FOR APPELLANT: Jason Apollo Hart.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky; James Hays Lawson, Assistant Attorney General.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON. Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., sitting. Noble and Venters, JJ., concur. Abramson, J., concurs except as to Section II.B.2., in which she concurs in result only. Keller, J., dissents by separate opinion in which Cunningham, J., joins.
MINTON, CHIEF JUSTICE.
A circuit court jury convicted Joseph David Martin of fourteen counts of first-degree unlawful transaction with a minor, fourteen counts of incest, and a single count each of use of a minor in a sexual performance, complicity to tampering with a witness, and complicity to tampering with physical evidence. The jury recommended Martin consecutively serve the statutory maximum for each conviction, totaling 580 years. And the trial court adopted this recommendation in full--ignoring the consecutive-sentence cap in Kentucky Revised Statutes (KRS) 532.110--and imposed a sentence of 580 years' imprisonment. Martin appeals from the resulting judgment as a matter of right.
Martin alleges the trial court erred by (1) instructing the jury in a manner that violated his right to a unanimous verdict; (2) failing to instruct the jury regarding the consecutive-sentence cap in KRS 532.110 or to impose a sentence consistent with that cap; and (3) allowing the victim during her testimony at trial to refresh her memory with previously written notes.
We agree with Martin that the trial court's jury instructions, except for those pertaining to his complicity charges, denied him a unanimous verdict. So we are constrained to reverse those convictions. We find no error in Martin's complicity to tampering with a witness and complicity to tampering with physical evidence convictions. And we affirm those convictions. We address the other allegations of error as they may be relevant to a retrial.
I. FACTUAL AND PROCEDURAL HISTORY.
Joseph and Tina Martin were married when Sally, Tina's daughter from a previous relationship, was a year old. Sally resided in the Martins' marital home from the inception of the marriage until Martin's arrest. Three more children were born to the Martins.
In response to disturbing changes in Sally's behavior, Martin, Tina, and Sally entered into family counseling with their pastor, James Maroni, when Sally was sixteen years old. It was during this counseling session that Sally revealed Martin treated her more like a girlfriend than a step-daughter. This prompted Martin to confess that he had engaged in an on-going sexual relationship with Sally for the past three years. Tina also admitted she was informed of the relationship on two prior occasions. Pastor Maroni then privately informed Martin and Tina that he had to report the sexual activity to the proper authorities.
Days later, Martin voluntarily met with Detective Tim Moore at the Kentucky State Police Post. During the meeting, Martin again confessed his sexual relationship with Sally. He disclosed that over the course of three years he engaged in sexual intercourse, oral sex, and anal sex with Sally starting when she was thirteen years old. Martin also admitted to videotaping some of their sexual interactions
beginning when Sally was approximately fourteen years old. In support of his oral confession, Martin provided Detective Moore with a handwritten statement explaining the nature of his relationship with Sally and chronicling specific sexual events. Detective Moore arrested Martin on the basis of his oral and written confessions.
The grand jury indicted Martin on fourteen counts of first-degree unlawful transaction with a minor and one count of use of a minor in a sexual performance (Indictment No. 11-CR-00061). The fourteen counts of unlawful transaction with a minor charged that Martin engaged in sexual intercourse, oral sodomy, or anal sodomy with Sally between October 2, 2008, and March 18, 2011. The count of use of a minor in a sexual performance was alleged to have taken place during the same time period. The grand jury returned another indictment against Martin some months later. The second indictment charged an additional fourteen counts of incest (Indictment No. 12-CR-00060). All fourteen counts charged that Martin engaged in sexual intercourse or deviate sexual intercourse with Sally, his step-daughter, between September 2, 2008, and March 18, 2011.
While Martin was in jail awaiting trial, Sally withdrew her allegations of a sexual relationship with Martin. This prompted Detective Moore to visit Martin's mother, Joyce McClain. During this visit, McClain provided Detective Moore with letters Martin sent her from jail. In these letters, amidst other incriminating statements, Martin urged McClain to dispose of a computer and two external hard drives, and told McClain to inform Sally he planned to claim his earlier confessions were fabricated.
Based on these letters, the grand jury returned a third indictment against Martin, this time charging complicity to tampering with physical evidence and complicity to tampering with a witness (Indictment No. 13-CR-00019).
At trial, the Commonwealth presented testimony from Detective Moore, Pastor Maroni, and Tina, among others. Their testimony was consistent with the facts as outlined above.
Sally, who, according to evidence adduced at trial, has an IQ of 72, also testified. She revealed her sexual relationship with Martin and described many of their sexual interactions in considerable detail. Sally's testimony also described the three different homes in which her family lived during the time period relevant to the charges made in the indictments. The first home was destroyed by fire, causing the family to move to a nearby double-wide trailer where they remained until a new home could be built. Sally was unable to remember the dates of each sexual interaction described in her testimony, but she did provide a temporal reference for each sexual act by noting in which of the three homes it took place. Sally's testimony showed that the sexual acts were frequent and continuous throughout the time period relevant to Indictment Nos. 11-CR-00061 and 12-CR-00060.
Martin testified on his own behalf. He denied any sexual relationship with Sally. Martin explained he fabricated his pre-trial
confessions because two unidentified men threatened to kill Tina and their children if Sally was not moved into her father's home. According to Martin, Sally wanted to live with her father, so she agreed to cooperate with the fabrication whereby Martin would confess a sexual relationship to a pastor in order to facilitate Sally's removal from his home. As part of this plan, Martin claims Sally agreed to recant her allegations upon turning eighteen in order to minimize any criminal penalties that may be imposed on him.
The jury convicted Martin of all charges and recommended the maximum allowable sentence for each count, to be served consecutively for a total of 580 years' imprisonment. The trial court accepted the jury's recommendation and entered a conforming judgment. This appeal followed.
A. The Jury Instructions Leading to Martin's Convictions Under Indictment Nos. 11-CR-00061 and 12-CR-00060 Violated his Right to a Unanimous Verdict. Those Convictions Must be Reversed.
Martin claims the jury instructions by which the jury convicted him of all charges presented in Indictment Nos. 11-CR-00061 and 12-CR-00060 violated his right to a unanimous verdict. This issue is unpreserved, so we review for palpable error.
1. The Instructions for the Charges Presented in Indictment Nos. 11-CR-00061 and 12-CR-00060 Violated Martin's Right to a Unanimous Verdict.
Martin's allegation provides us an opportunity to explore each of the two archetypal unanimous-verdict violations. The first type of unanimous-verdict violation occurs when multiple counts of the same offense are adjudicated in a single trial. In those situations, we have repeatedly found it a unanimous-verdict violation for a trial court to submit identical instructions to the jury. If a trial court fails " to include some sort of identifying characteristic in each instruction that will require the jury to determine whether it is satisfied from the evidence the existence of facts proving that each of the separately charged offenses occurred,"  then the defendant is not guaranteed to receive a unanimous verdict from the indistinguishable instructions.
More recently, we clarified a second type of unanimous-verdict violation. In Johnson v. Commonwealth, we held that the requirement of a unanimous verdict is violated when " a general jury verdict [is] 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."  This type of unanimous-verdict violation occurs when a jury instruction may be satisfied by multiple criminal acts by the defendant. When that is the case, and the instruction does not specify which specific act it is meant to cover, we cannot be sure that the jurors were unanimous in concluding the defendant committed a single act satisfying the instruction. Instead, the jury's verdict only reflects their unanimous view that the defendant committed the crime, without necessarily resulting in a unanimous conclusion that the defendant committed a single criminal act beyond a reasonable doubt. Therefore, in those circumstances, the jury fails to reach a unanimous verdict.
The Commonwealth concedes error in the following instructions, which suffer from a unanimous-verdict defect of the first type:
Indictment No. 11-CR-00061:
o Counts II and III;
o Counts V and VI;
o Counts VIII and IX;
o Counts XI and XII; and
o Counts XIII and XIV
Indictment No. 12-CR-00060:
o Counts II and ...