# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TOBE PUBLISHED ." PURSUANT TOTHE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C), THIS OPINION IS NOT TOBE PUBLISHED ANDSHALL NOT BE CITED OR USEDAS BINDING PRECEDENT INANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDEREDAFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NOPUBLISHED OPINION THAT WOULDADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION BY THE COURT SHALL BE SET OUT AS ANUNPUBLISHED DECISIONIN THE FILED DOCUMENT ANDA COPY OF THE ENTIRE DECISION SHALL BE TENDEREDALONGWITHTHE DOCUMENT TOTHE COURT ANDALL PARTIES TOTHE ACTION

.BROCK BOWLING ' 

# SuprPmr (~Vurf of `~ftrly

2008-SC-000892-MR

ON APPEAL FROM

COURT OF APPEALS V . NO . 2008-CA-000593 CLAY CIRCUIT COURT NO.04-CR-00165-001 HONORABLE OSCAR GAYLE HOUSE, APPELLEE JUDGE 41 ST JUDICIAL DISTRICT, ET AL.

MEMORANDUM

OPINION OF THE COURT AFFIRMING RENDERED: AUGUST 27, 2009 T

Appellant, Brock Bowling, appeals as a matter of right froma November 2008 Court of Appeals order denying himintermediate relief against Appellee, Clay Circuit Judge Oscar Gayle House. Appellant requests the writ to prohibit Appellee fromretrying himfor the murder of Jimmy Mills. Appellant contends that a second trial would subject himto doublejeopardy. For the reasons set forth herein, we now

affirmthe decision of the Court of Appeals to deny Appellant's petition for a writ of prohibition. Appellant, Timothy Finley, Shannon Finley, and Dennis Bowling' were all indicted for murdering Mills. The indictment charged each of the four with murdering Mills, or conspiring to murder Mills, or being an accomplice to his murder . At the conclusion of the Clay Circuit Court trial, three instructions

' Dennis Bowling received a directed verdict of acquittal on all counts at the conclusion of the trial .were given to the jury on the murder charge. One instruction allowed a guilty

verdict if thejury believed that defendant was the principal actor in killing Mills. The second instruction allowed a guilty verdict if thejury believed that defendant acted as an accomplice to killing Mills. The third instruction was as follows: If you believe from the evidence beyond a reasonable doubt that the defendant, , is guilty under one of the other of instructions , MURDER-PRINCIPAL or MURDERACCOMPLICE, but are unable to determine whether he acted as a principal or accomplice in the murder of Jimmy Mills, you will find

guilty under this instruction and will not fix his punishment, but shall say so in your verdict and return the verdict to the Court without deliberating on the question of fixing the punishment . Thejury found Appellant, Timothy, and Shannon guilty under the third instruction --- that they all acted as either the principal actor or an accomplice in Mills' murder . Appellant, Timothy, and Shannon appealed that verdict to this Court as a matter of right. Our opinion, rendered April 19, 2007, found that there was insufficient evidence presented by the Commonwealth to find Timothy or Shannon guilty of murder as either a principal actor or accomplice. Their murder convictions were vacated. However, we found that there was sufficient evidence to find Appellant guilty of murdering Mills under a theory that he was the principal actor, but not as an accomplice. Since Appellant's conviction was predicated on a combinedjury instruction which required sufficient evidence that he acted as either the principal actor or accomplice, thejury's verdict wasnot unanimous. Halvorsen v. Commonwealth, 730 S.W .2d 921, 925 (Ky. 1986) . We thus, reversed his murder conviction and remanded the matter to the Clay Circuit Court for further proceedings. The Clay Circuit Court reassigned the murder charge for trial . Appellant then moved Senior Judge R . Cletus Maricle, of the Clay Circuit Court, to set aside the trial date and dismiss the indictment as barred by doublejeopardy. Senior Judge Maricle heard and denied the motion on October 1, 2007. Appellee was subsequently elected and sworn in as a Clay Circuit Court Judge. Appellant renewed his motion before Appellee. On March 17, 2008, Judge House signed a written order denying the motion. Appellant then petitioned the Court of Appeals for a writ of prohibition to prevent Appellee fromretrying the case. The Court of Appeals denied the writ . The Court of Appeals held that since the reversal of Appellant's conviction was based upon a faultyjury instruction, and not a lack of proof, there was no Constitutional bar to retrying Appellant for murder, and no doublejeopardy claim . See Hobbs v. Commonwealth , 655 S.W .2d 472, 474 (Ky. 1983) . We now affirm the Court of Appeals decision. A writ of prohibition will be granted only in the most exceptional of circumstances. Shobe v. EPI Corp. , 815 S.W .2d 395, 397 (Ky. 1991) . Awrit of prohibition may be granted: upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court ; or (2) that the lower court is acting or is about to act erroneously, although within itsjurisdiction, and there exists no adequate remedy by appeal or

otherwise and great injustice and irreparable injury will result if the petition is not granted. Hoskins v. Maricle, 150 S.W .3d 1, 10 (Ky. 2004) . Adoublejeopardy claimis an appropriate subject for a writ of prohibition. St . Clair v. Roark, 10 S.W .3d 

### 482, 485 

### (Ky. 1999) . Appellant's main argument is that thejury's failure to return a verdict on the principal actor instruction indicated that the Commonwealth failed to prove that he was the principal actor in Mills' murder . Thus, Appellant argues that he cannot be retried under that theory without violating doublejeopardy. Tibbs v. Florida, 457 U.S. 31, 

### 41 (1982) ("[The] Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding") . However, "[t]he failure to return a verdict [on ajury instruction] does not have collateral estoppel effect [in double jeopardy cases] . . . unless the record establishes that the issue was actually and necessarily decided in the defendant's favor ." Schiro v. Farley, 

### 510 U.S. 222, 236 (1994) . In this matter, while the jury did not choose to convict Appellant under the principal actor instruction, they did choose to convict him under the combined instruction which included the theory that he was the principal actor. Thus, we cannot say that thejury found in favor of Appellant on the charge that he acted as the principal actor in Mill's murder . Since Appellant's conviction was overturned due to an instructional error regarding the combined instruction, he may be retriedwithout violating double jeopardy principles . See Griffin v. United States, 502

U .S. 46 (1991) . Appellant has cited to several cases in his brief to support his argument that thejury's failure to return a verdict on the principal actor instruction invokes doublejeopardy on retrial . Green v. United States, 355 U.S. 184 (1957) ; Terry v. Potter , 111 F.3d 454 (6th Cir. 1997) ; Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988) . However, these cases are distinguishable because in themthejury's intent to not convict under a certain theory of the case, or the prosecution's failure to prove a case, is clear. Neither situation is present in this case because thejury convicted Appellant under an instruction which included the principal actor theory and sufficient evidence was presented by the Commonwealth in the original trial to find Appellant guilty of being the principal actor. Thus, since Appellant's conviction was reversed due to an instructional error, and it is not clear that thejury intended to acquit Appellant based on him serving as the principal actor in the murder, w e deny his petition for a writ of prohibition. For the above stated reasons, the opinion of the Court of Appeals is affirmed. All sitting. All concur .COUNSEL FORAPPELLANT:

Stephan Charles 304 Bridge Street Manchester, Kentucky 40962 COUNSEL FORAPPELLEE: Hon. Oscar Gayle House, Judge 41 St Judicial District 316 Main Street, Ste 320 Manchester, Kentucky 40962 Edwin A . Logan Logan and Gaines, PLLC 114 W . Clinton Street Frankfort, Kentucky 40601-1949

Jack Conway Attorney General Susan Roncarti Lenz Assistant Attorney General Office of the Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204 COUNSEL FOR COMMONWEALTH OF KENTUCKY AND HON

. GARY GREGORY, COMMONWEALTHATTORNEY, 41 ST JUDICIAL DISTRICT REAL PARTIES IN INTEREST