RENDERED: MARCH 23, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0048-TG

2022-SC-0095-TG

LEIF HALVORSEN APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT

V. HONORABLE JULIE MUTH GOODMAN, JUDGE 

NO. 83-CR-00152-001

COMMONWEALTH OF KENTUCKY APPELLEE

AND

2022-SC-0039-MR

JOHNATHAN WAYNE GOFORTH APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT

V. HONORABLE JULIE MUTH GOODMAN, JUDGE 

NO. 99-CR-00146-002

COMMONWEALTH OF KENTUCKY APPELLEE

AND

2022-SC-0040-MR

VIRGINIA SUSAN CAUDILL APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT

V. HONORABLE JULIE MUTH GOODMAN, JUDGE 

NO. 99-CR-00146-001
2

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE VANMETER

AFFIRMING

This case came before the Fayette Circuit Court upon the filing of three 

post-conviction collateral attack motions seeking to vacate the murder 

convictions of Virginia Caudill, Johnathan Goforth and Leif Halvorsen 

(collectively, “Appellants”) pursuant to RCr1 11.42(10), CR2 60.02, and CR 

60.03. Appellants requested post-conviction relief on grounds that the 

“combination” jury instructions rendered their verdicts non-unanimous, in 

violation of their constitutional right to a unanimous jury and ran afoul of the 

unanimity requirement recently announced in in Ramos v. Louisiana, 140 S. 

Ct. 1390 (2020). Concluding that Ramos does not apply retroactively to these 

cases and further, that Appellants’ claims were time-barred, the trial court 

denied them relief. For the reasons set forth below, we affirm.

I. Factual and Procedural Background

Caudill and Goforth were tried together in 2000 and were both convicted 

of murder, robbery in the first degree, burglary in the first degree, arson in the 

second degree, and tampering with physical evidence. Caudill v. 

Commonwealth, 120 S.W.3d 635 (Ky. 2003). Each received a death sentence 

1 Kentucky Rules of Criminal Procedure.

2 Kentucky Rules of Civil Procedure. 
3

for the murder conviction and the maximum authorized penalties for the other 

four convictions. Id. In a separate case, years before Caudill and Goforth’s 

convictions, Halvorson was found guilty of three counts of murder and 

sentenced to death on two counts, and life imprisonment on the third count. 

Halvorsen v. Commonwealth, 730 S.W.2d 921 (Ky. 1986).

3 Each of the 

Appellants was convicted under a combination jury instruction, which 

permitted the jury to convict if it determined beyond a reasonable doubt that 

he or she was guilty of either murder or complicity to murder, but was unable 

to ascertain from the evidence whether each committed the crime as the 

principal or as an accomplice. 

Appellants challenged their convictions on direct appeal as nonunanimous verdicts under the principal-accomplice combination instruction. 

This Court rejected that claim across the board, noting that the unanimity 

requirement was not violated because both the principal and accomplice 

theories were supported by the evidence. Caudill, 120 S.W.3d at 648; 

Halvorsen, 730 S.W.2d at 925. Following our affirmance of their convictions on 

direct appeal, each Appellant received additional state and federal collateral 

review of their case, none of which bore any fruit.

In 2020, the United States Supreme Court rendered its decision in 

Ramos, which addressed the issue of juror unanimity – unanimity in numerical 

count. 140 S. Ct. at 1393. Specifically, the Court examined the criminal 

3 In December 2019, then Governor Bevin commuted Halvorsen’s death 

sentences to sentences of life with the possibility of parole.
4

justice systems of Oregon and Louisiana, both of which allowed a defendant to 

be convicted of a serious crime based on a jury verdict in which at least 10 of 

12 jurors found the defendant guilty beyond a reasonable doubt. Id. The 

Supreme Court held that the Sixth Amendment’s right to an impartial jury 

implicitly included the right to a unanimous verdict in criminal trials, as 

applied equally to federal and state criminal trials (via the Fourteenth 

Amendment). Id. In addressing concerns that its decision would spawn a 

“tsunami” of litigation, the Ramos majority emphasized that “prior convictions 

in only two States [Oregon and Louisiana] are potentially affected by our 

judgment.” Id. at 1406.

Thereafter, Appellants each filed a motion for post-conviction relief, 

which the trial court consolidated. While their motions were being litigated, 

the United States Supreme Court decided Edwards v. Vannoy, 141 S. Ct. 1547 

(2021), which clarified that Ramos was not to be retroactively applied in federal 

collateral attacks, pursuant to Teague v. Lane, 489 U.S. 288 (1989). 

Resultingly, prisoners who were convicted by non-unanimous juries and whose 

cases were final in state court before rendition of Ramos cannot rely on Ramos

as support for federal collateral relief.

Based on the holding of Edwards and application of the Teague

standard, adopted by this Court with regard to state collateral attacks in 

Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), the trial court held that 

the Ramos did not apply retroactively to Appellants’ claims. The trial court 
5

further observed that the underlying basis for Appellants’ motions - a lack of 

unanimity - had been previously rejected by this Court on direct appeal. 

The trial court determined that even if this Court were to now decide that 

the combination jury instruction did not satisfy the requirement of unanimity, 

absent a finding of retroactivity, the cases at bar are final and the postconviction motions untimely. The trial court noted that Halvorsen’s murder 

convictions were final 33 years before, and Goforth and Caudill’s convictions 

were final 16 years ago. Moreover, Appellants’ RCr 11.42 motions had been 

denied and affirmed on appeal. Caudill v. Commonwealth, No. 2006-SC000457-MR, 2009 WL 1110398 (Ky. Apr. 23, 2009); Halvorsen v.

Commonwealth, 258 S.W.3d 1 (Ky. 2007). Thus, the trial court concluded that 

Appellants’ RCr 11.42 motions were untimely and must be dismissed. The trial 

court likewise dismissed the motions under CR 60.02 and CR 60.03, noting 

that those rules do not allow a defendant to circumvent the time limitations of 

a RCr 11.42 motion. This appeal followed.

II. Analysis

In Kentucky, the structure for attacking the final judgment of a trial 

court in a criminal case “is not haphazard and overlapping but is organized 

and complete.” Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). The 

structure “is set out in the rules related to direct appeals, in RCr 11.42, 

and thereafter in CR 60.02. . . . [which] is for relief that is not available by 

direct appeal and not available under RCr 11.42.” Id. In an RCr 11.42 

proceeding, the movant must establish that he was deprived of some 
6

substantial right that would justify the extraordinary relief afforded by the 

post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 

(Ky.1968). 

Likewise, CR 60.02 is an extraordinary remedy and “[t]o justify relief, the 

movant must specifically present facts which render the original trial 

tantamount to none at all.” Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 

2014) (internal quotation and citation omitted). To warrant reversal of a lower 

court’s ruling on a CR 60.02 motion, the appellant must demonstrate some 

“flagrant miscarriage of justice.” Id. at 886 (quoting Gross, 648 S.W.2d at 858). 

As noted by the United States Supreme Court in Strickland v. Washington, 

“[t]he presumption that a criminal judgment is final is at its strongest in 

collateral attacks on that judgment.” 466 U.S. 668, 697 (1984). With 

retroactivity being an issue that is purely a matter of law, we review the trial 

court’s ruling de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 

(Ky. 2000) (applying de novo standard of review to matters of law in cases in 

which no facts are in dispute).

The relevant portion of RCr 11.42(10) provides that a motion must be 

filed within three years after the judgment is final unless it presents new facts, 

or the fundamental constitutional right asserted was not established within the 

three-year period and has been held to apply retroactively. Appellants argue 

that Ramos announced a new constitutional right and urges us to apply its 

holding retroactively. Alternatively, they request relief under CR 60.02 on 

equitable grounds.
7

In Leonard, Kentucky adopted Teague’s proscription against applying 

new federal constitutional rules of criminal procedure retroactively once a 

judgment is final on direct review. 279 S.W.3d at 160. The Leonard court 

reasoned, “Teague’s proscription against applying new rules retroactively once 

a judgment has become final on direct review makes sense, given the interest 

in finality of judgments.” Id. The Court noted this was especially so in cases 

that have been final for a significant amount of time. Id. Thus, “[u]nder 

Teague, once a conviction becomes final, that is, it has gone through the direct 

appeal process and been affirmed, the new rule is not applicable, even if the 

collateral attack is pending when, or has begun after, the new decision is 

rendered.” Id. at 159. See also Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (“A 

state conviction and sentence become final for purposes of retroactivity 

analysis when the availability of direct appeal to the state courts has been 

exhausted and the time for filing a petition for a writ of certiorari has elapsed 

or a timely filed petition has been finally denied[]”). The Teague doctrine has 

been consistently and repeatedly applied in Kentucky jurisprudence. See, e.g.,

Phon v. Commonwealth, 545 S.W.3d 284, 300-01 (Ky. 2018); Commonwealth v. 

Lawson, 454 S.W.3d 843, 846 (Ky. 2014); Hallum v. Commonwealth, 347 

S.W.3d 55, 57 (Ky. 2011).

In Edwards, the Supreme Court expressly held that the rule announced 

in Ramos could not be applied retroactively to overturn final convictions on 

federal habeas corpus review. 141 S. Ct. at 1551. Citing Teague, the Edwards

Court noted that “a decision announcing a new rule of criminal procedure 
8

ordinarily does not apply retroactively on federal collateral review.” Id. The 

Edwards court specified that the Ramos case “directly affected Louisiana and 

Oregon, which were the only two States that still allowed non-unanimous 

verdicts[,]” thereby solidifying that the Ramos jury-unanimity rule does not 

apply to any situation that does not involve the number of jurors required for a 

unanimous verdict. 141 S. Ct. at 1554. 

Nonetheless, Appellants ask that we abandon state precedent relying on 

the federal habeas non-retroactivity doctrine because of the fundamental right 

at stake. They maintain that their constitutional right to a unanimous verdict 

was violated when they were convicted by a jury that was not unanimous as to 

the actus reus. In this vein, Appellants assert that sufficiency of the evidence 

and unanimity are independent constitutional rights. 

However, unlike the Oregon and Louisiana unanimity issues presented in 

Ramos, “Kentucky has long required criminal convictions by a unanimous jury 

verdict.” Capstraw v. Commonwealth, 641 S.W.3d 148, 158 (Ky. 2022). 

Indeed, over four decades ago, this Court held that “Section 7 of the Kentucky 

Constitution requires a unanimous verdict reached by a jury of twelve persons 

in all criminal cases.” Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 

1978). See also KRS 29A.280(3) (“A unanimous verdict is required in all 

criminal trials by jury”); RCr 9.82(1) (“The verdict shall be unanimous. It shall 

be returned by the jury in open court[]”). 

Furthermore, Kentucky law is clear that “jurors may reach a unanimous 

verdict even though they may not all agree upon the means or method by 
9

which a defendant has committed the criminal act.” King v. Commonwealth, 

554 S.W.3d 343, 352 (Ky. 2018). Juror unanimity in this context “means that 

jurors must agree upon the specific instances of criminal behavior committed 

by the defendant but they need not agree upon his means or method of 

committing the act or causing the prohibited result.” Id.

In Capstraw, this Court considered whether to apply Ramos retroactively 

to a claim of unanimity violation (combination murder instruction – wanton or 

intentional) and was “unconvinced that Ramos requires us to revisit our longstanding precedent.” 641 S.W.3d at 158. The Capstraw court upheld the 

combination instruction and found no unanimous verdict issue “as long as the 

evidence was sufficient to support a combination instruction.” Id. The 

rationale in Capstraw echoes the reasoning of this Court’s ruling on the 

unanimity issue raised in Appellants’ direct appeal and is consistent with 

Kentucky precedent. See, e.g., Futrell v. Commonwealth, 471 S.W.3d 258, 277 

(Ky. 2015) (finding a combination principal-accomplice wanton murder 

instruction appropriate because the evidence supported both alternatives); St. 

Clair v. Commonwealth, 140 S.W.3d 510, 559 (Ky. 2004) (holding that murder 

instructions combining principal and accomplice liability was proper). 

Here, noting its obligation to follow Edwards and Leonard’s adoption of 

Teague’s retroactivity principles, the trial court correctly denied relief under 

RCr 11.42(10). As for relief under CR 60.02, that rule “is not a separate 

avenue of appeal to be pursued in addition to other remedies but is available 

only to raise issues which cannot be raised in other proceedings.” McQueen v. 
10

Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); see also Gross, 648 S.W.2d at 

857 (holding the language of RCr 11.42 forecloses the defendant from raising 

any questions under CR 60.02 which are “issues that could reasonably have 

been presented” by RCr 11.42 proceedings). “A change in the law simply is not 

grounds for CR 60.02 relief except in aggravated cases where there are strong 

equities.” Leonard, 279 S.W.3d at 161–62 (citation omitted). 

To justify CR 60.02 relief, a movant bears the burden to “affirmatively 

allege facts which, if true, justify vacating the judgment and further allege 

special circumstances that justify CR 60.02 relief.” McQueen, 948 S.W.2d at 

416. Appellants’ CR 60.02 motions are not only procedurally deficient, as they 

raise the same claim in their request for RCr 11.42 relief, but they have further 

failed to persuade us that the equities weigh in favor of using CR 60.02 to 

apply Ramos’s holding to their cases. Thus, the trial court properly denied 

relief under this rule.

Lastly, as to CR 60.03, the trial court’s order summarily denied relief 

under that rule as well. Notably, Appellants have not briefed this issue on 

appeal and therefore we consider it abandoned. That said, for purposes of 

clarity, any claim for relief under that rule would likewise be barred. CR 60.03 

“is intended as an equitable form of relief when no other avenue exists.” Meece 

v. Commonwealth, 529 S.W.3d 281, 295 (Ky. 2017). The plain language of that 

rule requires “an independent action” to be brought, with relief unavailable “if 

the ground of relief sought has been denied in a proceeding by motion under 

Rule 60.02[.]” CR 60.03; Jackson v. Commonwealth, 640 S.W.3d 99, 103 (Ky. 
11

App. 2022). Since Appellants did not bring an independent action seeking CR 

60.03 relief, and we affirm the denial of CR 60.02 relief, they are prohibited 

from seeking CR 60.03 relief on this basis in the future. 

In summary, Appellants’ cases have received direct and collateral review 

at the state and federal levels, with the unanimity/combination instruction 

issue squarely addressed. Appellants’ current attempt to vacate their 

convictions by arguing for retroactive application of Ramos is distorted, as the 

holding of Ramos simply does not apply to their claims. Moreover, Appellants 

have failed to persuade us that their cases warrant abandoning long-standing 

precedent concerning unanimity and combination instructions or justify 

renouncing this state’s continued adherence to the Teague bar. We conclude 

that the trial court’s denial of Appellants’ post-conviction motions was correct 

as a matter of law and therefore affirm.

III. Conclusion

For the foregoing reasons, the order of the Fayette Circuit Court is 

affirmed.

All sitting. VanMeter, C.J.; Conley, Keller, Lambert and Nickell, JJ., 

concur. Thompson, J., concurs in result only by separate opinion in which 

Bisig, J., joins.

THOMPSON, J., CONCURRING: While I agree with the majority opinion 

affirming the Fayette Circuit Court’s denial of the appellants’ postconviction 

motions, I write separately to clarify what I believe to be the appropriate focus 

for resolving these appeals. Two points are key: (1) Ramos v. Louisiana, 140 S. 
12

Ct. 1390 (2020), does not apply to invalidate verdicts in which twelve jurors 

concluded the defendant was guilty of murder; and (2) there is no unanimity 

problem when a jury finds a defendant guilty of murder under an appropriate 

principal-accomplice combination instruction.

The appellants argue their jury verdicts were not unanimous because it 

is unknown whether each of the twelve jurors convicted them of murder as 

principals or accomplices. Their jury instructions were as follows:

If you believe from the evidence beyond a reasonable doubt that 

the Defendant, [defendant’s name], is guilty of either Murder under 

Instruction No. 2 or Complicity to Murder under Instruction No. 3, 

but are unable to determine from the evidence whether the 

Defendant committed this crime as Principal under Instruction No. 

2 or Accomplice under Instruction No. 3, then you will find 

[defendant’s name] guilty of Murder, Principal or Accomplice, 

under this Instruction and so state in your verdict.[4]

Ramos invalidates state convictions reached by ten jurors out of twelve 

on the basis that such does not constitute a unanimous jury verdict. 140 S. 

Ct. at 1397. While the opinion addresses unanimity generally, it does not 

reach the type of problem raised by the appellants. Therefore, there is no need 

to discuss whether Ramos applies retroactively or not, as it simply does not 

apply.

In Kentucky, “a general jury verdict 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—violates the 

4 This was the exact wording for the instructions concerning Caudill and 

GoForth, and very close to the wording for the instructions regarding Halvorsen.
13

requirement of a unanimous verdict.” Johnson v. Commonwealth, 405 S.W.3d 

439, 449 (Ky. 2013) (emphasis added). However, such a situation is not to be 

confused with one instance of a criminal offense which may have been 

committed directly, through being the actor who physically did it, or indirectly 

as an accomplice.

As explained in as explained in King v. Commonwealth, 554 S.W.3d 343, 

352 (Ky. 2018):

This court recognizes and has consistently maintained that the 

jurors may reach a unanimous verdict even though they may not 

all agree upon the means or method by which a defendant has 

committed the criminal act. Conrad v. Commonwealth, 534 S.W.3d 

779, 784 (Ky. 2017) (quoting Miller v. Commonwealth, 77 S.W.3d 

566, 574 (Ky. 2002) ) (A “conviction of the same offense under 

either of two alternative theories does not deprive a defendant of 

his right to a unanimous verdict if there is evidence to support a 

conviction under either theory.”). Nor is the jury required to agree 

upon the defendant's mental state in cases where alternative 

mental states authorize conviction for the same criminal act. Wells

v. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978) (“We hold that a 

verdict cannot be successfully attacked upon the ground that the 

jurors could have believed either of two theories of the case where 

both interpretations are supported by the evidence and the proof of 

either beyond a reasonable doubt constitutes the same offense.”). 

Neither Harp, Johnson, nor their progeny changes that.

However, we have also held consistently with virtually every other 

American jurisdiction to address the matter, that juror unanimity 

means that jurors must agree upon the specific instance of 

criminal behavior committed by the defendant but they need not 

agree upon his means or method of committing the act or causing 

the prohibited result.

The fact that either Caudill or GoForth may have bludgeoned the victim 

to death, with each of them “accus[ing] the other of murdering and robbing the 

victim and of setting fire to the automobile[,]” Caudill v. Commonwealth, 120 

S.W.3d 635, 648 (Ky. 2003), does not mean that they are not each guilty of 
14

murder under KRS 507.020, whether as a principal or as an accomplice

pursuant to KRS 502.020, for this single act. Similarly, where the evidence 

indicated that Halvorson and his co-defendant both shot the victims, rendering 

lethal wounds and “it was impossible to determine that either appellant was 

only a principal or only an accomplice[,]” the Court correctly determined, citing 

Wells, that “[a] verdict cannot be attacked as being non-unanimous where both 

theories are supported by sufficient evidence.” Halvorsen v. Commonwealth, 

730 S.W.2d 921, 925 (Ky. 1986). Accordingly, there is no unanimity problem 

and affirmance of the denial of the appellants’ postconviction actions was 

appropriate. 

Bisig, J., joins.
15

COUNSEL FOR APPELLANTS,

LEIF HALVORSEN AND 

JOHNATHAN WAYNE GOFORTH:

David Michael Barron

Assistant Public Advocate

COUNSEL FOR APPELLANT.

VIRGINA SUSAN CAUDILL:

J. Robert Linneman

Santen & Hughes

Dennis James Burke

Assistant Public Advocate

Kathleen Kallaher Schmidt

Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General