Home -> Law Blog Directory -> Kentucky Blogs -> Kentucky Cases

Kentucky

: Kentucky Cases

CRIMINAL PROCEDURE - Double Jeopardy, Blockburger, burglary/assault convictions: Commonwealth v. Kevin T. McCombs (SC 3/19/2009)

By Michael Stevens

Commonwealth v. Kevin T. McCombs
2007-SC-000127-DG March 19, 2009
Opinion by Justice Cunningham; all sitting, all concur.

McCombs was convicted of violation of a protective order, first degree burglary and fourth degree assault. The Court of Appeals reversed the burglary and assault convictions on double jeopardy grounds, ruling that the same injury was used to prove both offenses.

The Court of Appeals further held that the trial court committed reversible error by substituting ?crowbar? for ?deadly weapon? and ?dangerous instrument? in the jury instructions-- ruling that determination was an issue for the jury to decide.

The Supreme Court reinstated the convictions. Applying the Blockburger analysis, the Court held that the assault conviction required a finding of an intentional, wanton or reckless mental state while the first degree burglary offense required only that the accused ?causes physical injury? with no culpable mental state requirement. Therefore, there was no double jeopardy violation. In reaching this conclusion, the Court overruled its decision in Butts. The Court agreed that the trial court erred in substituting ?crowbar? for ?deadly weapon? and ?dangerous instrument? in the jury instructions since the jury should have been allowed to determine if a crowbar was a deadly weapon or dangerous instrument under the facts and circumstances. However, the Court held the error was harmless beyond a reasonable doubt.

Full post as published by Kentucky Cases on September 30, 2009 (boomark / email).