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Commonwealth v. Leap8/25/2005
REVERSING
The Defendant-Appellee, Rickey D. Leap, was convicted of assault in the 4th degree, wanton endangerment in the 1St degree and of being a persistent felony offender (PFO) in the 1 St degree. Upon appeal, the Court of Appeals remanded Leap's convictions for wanton endangerment and as a PFO for further findings by the trial court regarding vacation of several of the convictions. The Commonwealth sought relief in this court and we granted discretionary review. We now reverse the Court of Appeals and reinstate the judgment of the trial court.
The victim, testified that after meeting Appellant at a bar she agreed to take a ride with him. They left and went to another bar where they drank some more and smoked some pot. Her blood alcohol level when tested was.322. Eventually, they ended up in Leap's mothers' basement, where Leap beat her savagely and repeatedly. She did not know how her clothes came off, but she remembers being in a car, and then the next thing she knew she was on the ground and he kept kicking her. He ultimately left her, beaten and nude on the side of the road. She had fractures on the left side of her face and the bone was split down the middle. Her eyeball muscle was trapped in the fracture and she did not have normal movement of her eyeball, while her vision was blurred. She had another fracture that would never heal completely. Currently she has a plastic insert behind her eye to keep it from sinking further into her skull.
She was in bed for a month, her head hurt, she was dizzy and could not focus. She also testified that the left side of her face sags and she would always have double vision.
Leap was initially indicted for assault 2nd degree, unlawful imprisonment 1St degree and PFO 1 St degree. However, on the morning of the trial, the Commonwealth dismissed the unlawful imprisonment charge. The trial ended in a mistrial on February 7, 2002 due to a hung jury; whereupon it was reassigned for retrial on May 8, 2002.
On March 21, 2002, Leap was indicted for 1 St degree wanton endangerment. At retrial, both indictments were tried together and he was found guilty of 4t" degree assault, 1 St degree wanton endangerment and as a PFO in the 1 st degree and sentenced to ten (10) years imprisonment.
Upon appeal, the Court of Appeals remanded Leap's convictions for wanton endangerment and as a PFO. They found that the late addition of the 1St degree wanton endangerment charge following the mistrial, created a presumption of "prosecutorial vindictiveness." However, because the Commonwealth had not had an opportunity to rebut the "presumption of vindictiveness" post-trial, the Court of Appeals remanded the matter to the trial court for a hearing on the issue, placing the burden, however, on the Commonwealth to demonstrate a "neutral objective reason" why it could have not brought the wanton endangerment charge concurrently with the original indictment.
PALPABLE ERROR
The Court of Appeals acknowledged in its opinion that the issue of "prosecutorial vindictiveness" was not properly preserved for appellate review, unless it was reviewable as "palpable error" under RCr 10.26. Thus, the allegation of error can only be reviewed under the "palpable error" rule to determine if (1) error resulted, (2) it affected the substantial rights of the party, and (3) whether or not it resulted in manifest injustice. RCr 10.26, see Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003).
But first we must consider whether or not the allegation is in fact "error." Only then can we consider the questions of "palpable," "substantial rights" and "manifest injustice."
THE APP
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