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RENDERED: November 25, 1998; 2:00 p.m. TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. COMMONWEALTH OF KENTUCKY 1997-CA-001979-MR APPELLANT

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE KEN G. COREY, JUDGE ACTION NO. 94-CR-002842 APPELLEE

DAVID A. RAY

OPINION REVERSING AND REMANDING * * * * * * * * * * * * * * * * * * * BEFORE: ABRAMSON1, BUCKINGHAM, and COMBS, Judges. The Commonwealth of Kentucky appeals from an

BUCKINGHAM, JUDGE.

order of the Jefferson Circuit Court granting David A. Ray's motion to dismiss a criminal indictment against him on the ground of double jeopardy. After a careful review of the record and the

applicable law, we reverse and remand. In November 1994, a grand jury indicted Ray and Darryl Robbins on one felony count of first-degree assault in violation
1

Judge Abramson concurred in this opinion prior to leaving the Court on November 22, 1998.

of Kentucky Revised Statute (KRS) 508.010 and KRS 502.020.

The

indictment charged Ray and Robbins with intentionally or wantonly shooting Arthur Stevenson, Jr., while acting alone or in complicity with each other. Ray testified at trial that he shot

Stevenson in self-defense, but his testimony and claim of selfdefense were disputed by the Commonwealth. The trial court instructed the jury to find Ray not guilty or to find him guilty of first-degree assault, seconddegree assault (wanton belief in self-protection), fourth-degree assault (reckless belief in self-protection), second-degree assault (wanton), or assault under extreme emotional disturbance. While the jury was deliberating, it sent a note to the trial judge stating "[w]e cannot reach a verdict on David Ray, signed Thomas B. Butler, 6-13-97." The jury was then called into the

courtroom, and the foreman stated that the jury was hopelessly deadlocked on a final verdict as to Ray but that it had reached a verdict acquitting Robbins. Since the jury was unable to reach a

verdict in his case, the court declared a mistrial as to Ray and the jury was released. The court then reviewed the verdict forms and noticed that the jury had signed and dated the verdict form on the charge of first-degree assault and had found Ray not guilty of that offense. blank. The verdict forms on the remaining offenses were left The court then had the jurors brought back into the

courtroom and polled regarding the unanimity of their verdict on the charge of first-degree assault. The polling revealed that

the not-guilty verdict on the first-degree assault charge

-2-

instruction was unanimous. and the jury was released.

The court again declared a mistrial,

Ray's counsel subsequently filed a motion to dismiss the indictment on the ground of double jeopardy under the Fifth Amendment of the U. S. Constitution and

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