Travis v. Commonwealth

¶1concurring in result only:

¶2I agree with the majority that the error in this case is not sufficiently egregious to rise to the level of being a palpable error. But I believe the majority goes afield by concluding that this type of surplus language in an instruction would be harmless error if it had been properly preserved. *464Obviously, that conclusion is dicta because the jury instruction issue in question clearly was not preserved for review. Unfortunately, the majority relies upon that dicta to overrule Burnett,2 a decision that would mandate reversal if this type of issue were properly preserved. Maybe Burnett should be re-examined, but this is not the case for it. Simply put, Burnett’s viability is not squarely before us; and I am reluctant to use dicta to overrule precedent.

¶3By overruling Burnett, the majority ostensibly has concluded that lay jurors would always be wise enough to ignore any superfluous instruction the judge might give. It appears to me that such a conclusion rests upon the dubious proposition that lay jurors have a greater degree of discernment about the evidence presented at trial than do the judges who draw the instructions. After all, an instruction deemed superfluous by the appellate court would not have been submitted to the jury unless the trial judge believed the instruction was necessary and proper. So I am unable to join the majority’s view that a lay juror — mindful of their oath to follow both the evidence and the law as given to them by the trial court — could identify a superfluous instruction and disregard it.

¶4In addition to being unnecessary to the resolution of the case at hand, the majority’s mixing the language of harmless error analysis into this case runs afoul of Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2007). The majority in Martinexhorts appellate courts to “endeavor to avoid mixing the concepts of palpable error and harmless error. One is not the opposite of the other.” Id. at 5. I fear we have failed to follow our own advice by injecting the concept of harmless error into this palpable error case.

¶5Finally, neither a party nor a judge can invade the sanctity of the jury room to determine what arguments or theories any individual juror relied upon in rendering a verdict. So I believe the majority requires an Appellant to complete an insuperable task when it holds that an extraneous instruction can only be palpable error if an Appellant can show that “it is reasonably likely that some members of the jury actually followed the erroneously inserted theory in reaching their verdict.” Slip opinion, p. 463. In practical terms, I believe the majority opinion will stand for the proposition that an Appellant will not be entitled to palpable error relief if he or she fails to object timely to a superfluous instruction, such as the one at hand. Instead of requiring the impossible from Appellants, I would prefer to analyze these types of cases under our traditional, well-settled standards for conducting palpable error review.

¶6Since I do not believe Burnett’s viability is necessarily at stake in this case and because I do not believe we should gratuitously address what relief, if any, Travis and Dawson would be entitled to receive if they had properly preserved this unanimity issue, I only concur with the majority’s conclusion that the instructional errors did not rise to the level of palpable error in this case, I do not join the majority’s overruling of Burnett Because I cannot subscribe to all aspects of the majority opinion, I respectfully concur in result only.