                                                       RENDERED : NOVEMBER 1, 2007
                                                                  TO BE PUBLISHED


                  ,*UyrrMr (~Vurt of ~i
                                    2005-SC-000879-DG                 -®   I




                                                                               LC   _   '    Cr. .~.t   C   aJ
 FLOYD MIKE JONES III                                                               APPELLANT


                        ON REVIEW FROM COURT OF APPEALS
                           CASE NUMBER 2003-CA-002422
                       MEADE CIRCUIT COURT NO. 01-CR-00117


 COMMONWEALTH OF KENTUCKY                                                               APPELLEE


                    OPINION OF THE COURT BY JUSTICE MINTON

                                AFFIRMING IN PART AND

                        REVERSING AND REMANDING IN PART


                                   I . INTRODUCTION.

       Floyd Mike Jones III was convicted of one count of incest, thirteen counts of

sodomy in the third degree, eight counts of rape in the third degree, and one count of

bribing a witness. The victim of Jones's alleged sexual misconduct was his teenage

stepdaughter, M .G. The Court of Appeals affirmed Jones's conviction.

       We granted discretionary review to consider the propriety of the trial court's

decisions to (1) limit the testimony of Jones's DNA expert ; and (2) permit the

Commonwealth to introduce pornographic images into evidence, despite the lack of a

nexus between those images and the testimony of M.G . We reverse and remand on

the first issue and provide direction on remand as to the second issue .
                        II. FACTUAL AND PROCEDURAL HISTORY .

         The grand jury indicted Jones on one count of incest, thirteen counts of sodomy

 in the first degree, eight counts of rape in the third degree, one count of using a minor in

 a sexual performance, one count of possession of matter portraying a sexual

 performance by a minor, and one count of bribing a witness . At trial, numerous heated

 disputes arose between Jones's counsel and the Commonwealth . Chief among those

 disputes was Jones's counsel's attempt to present the testimony of a DNA expert,

 Dr. Yuri Melekovets, and Jones's repeated, vehement objection to the Commonwealth's

 showing the jury pornographic images allegedly copied from Jones's home computers .

                               A. Dr. Melekovets's Testimony .

        Jones had furnished a copy of Dr. Melekovets's one-page report to the

 Commonwealth as pretrial discovery several months before trial. The Commonwealth

 reciprocated with a copy of the two-page report of its DNA expert, Benedict Arrey .

Arrey's report stated that "[t]he human DNA recovered from the male fraction of the

[v]aginal swab [taken from M .G.] . . . was a mixture of at least two contributors . [M .G.]

and Floyd Jones III . . . could be contributors to the DNA mixture . . . . The expected

frequency of possible contributors to the mixed profile in the male fraction is fewer than

1 in 15,000,000 (1 in 15 million) among Caucasian, Black[,] and Hispanic Americans ."

In contrast, Dr. Melekovets's report stated that he "did not find any traces of the Y-

chromosome or of the DNA profile from Exhibit 2A (bloodstain standard from Floyd

Jones III) on the vaginal swabs from [M.G .] ."

       The trial court allowed Dr. Melekovets to testify about the contents of his report .

But the trial court did not allow Dr. Melekovets to testify about any perceived
 shortcomings in the Commonwealth's DNA expert's report or methodology because

 Jones had not informed the Commonwealth during discovery that he intended for

 Dr. Melekovets to criticize the Commonwealth's expert's methodologies . In other

words, the trial court essentially confined Dr. Melekovets's testimony to the four corners

of his report.

                        B . Introduction of the Pornographic Images
                            Taken from Jones's Computers .

        M .G. testified that Jones frequently showed her pornographic images of young

women engaged in sexual activity before his sexual encounters with her. But M.G . did

not testify that the pornographic images introduced by the Commonwealth, which were

copied from computers in Jones's home, were the actual images shown her by Jones .

Rather, these pornographic images were shown to the jury and introduced into evidence

via the testimony of a state police computer forensics expert who had copied the hard

drives from Jones's home computers onto a compact disc. The Commonwealth brought

a computer into the courtroom and used it to show numerous pornographic images to

the jury. Though the trial videotape did not definitively tell us which images the jury

saw, Commonwealth's Exhibit #8 (the compact disc containing dozens of pornographic

images ostensibly taken from Jones's home computers' hard drives) has numerous

hardcore images of nude females, some of whom appear to be multiple-amputees,

engaged in various sexually explicit activities, including urination and bestiality.

       Although Jones's counsel lodged vehement objections to the admissibility of the

images in question, Jones's counsel did not specifically object to the lack of an
    evidentiary nexus between the images allegedly shown by Jones to M.G . and the

    images shown by the Commonwealth to the jury.'

           After several days of testimony, the jury convicted Jones of one count of incest,

    thirteen counts of sodomy in the third degree, eight counts of rape in the third degree,

    and bribing a witness . The jury found Jones not guilty of possession of matter

    portraying a sexual performance by a minor, and the trial court granted the

    Commonwealth's motion to dismiss the charge of using a minor in a sexual

    performance.

           In accordance with the jury's recommendation, the trial court sentenced Jones to

    ten years for the incest offense, one year on each of the thirteen convictions for third-

    degree sodomy, three years for each of the eight convictions for third-degree rape, and

    five years for the conviction for bribing a witness. The sodomy, rape, and bribing a

 witness sentences were ordered to run concurrently with the incest sentence, for a total

 sentence of ten years' imprisonment.

           Jones appealed to the Court of Appeals, claiming two errors: (1) the trial court

erred by limiting Dr. Melekovets's testimony to the four corners of his report, and (2) the

trial court erred by permitting the Commonwealth to introduce allegedly irrelevant and

prejudicial pornographic images into evidence when M .G . had not testified that the

images shown to her by Jones were the same images shown to the jury.

          The Court of Appeals affirmed Jones's conviction, finding that the limitation of

Dr. Melekovets's testimony was proper because Jones's failure to disclose during

discovery Dr. Melekovets's theories regarding alleged errors made by the


'     Curiously, Jones's counsel did successfully raise this lack of a nexus argument
      regarding an apparently sexually-oriented book found in Jones's home .
Commonwealth's DNA expert ran afoul of the reciprocal discovery requirements set

forth in Kentucky Rule of Criminal Procedure (RCr) 7.24. The Court of Appeals also

held that Jones had not preserved his claim regarding the lack of a nexus between the

pornographic images shown to the jury and M.G.'s testimony ; and, in any event, any

error in introducing the pornographic images was harmless in light of the totality of the

evidence arrayed against Jones.

       We granted discretionary review to consider the same two issues Jones raised

before the Court of Appeals . We hold that the trial court erred in limiting

Dr. Melekovets's testimony to the four corners of his report. Thus, since this case is

being remanded for further proceedings, the issue involving the pornographic images is

technically moot. But since the Commonwealth will likely again attempt to introduce

these pornographic images on remand, we must address that issue .


                                       111. ANALYSIS .

              A. Restricting Dr. Melekovets's Testimony Was Erroneous.

       The trial court refused to permit Dr. Melekovets to testify as to anything outside

the parameters of his report, apparently because the trial court believed that

RCr 7 .24(3)(A)(i) required the parties to provide in discovery the theories underlying

their experts' opinions . We disagree .

       The trial court's order of reciprocal discovery 2 essentially tracked the

requirements of RCr 7 .24(3)(A)(i), which requires a defendant to "permit the




   The discovery order issued by the trial court required Jones to provide "a list of, and
   an opportunity to inspect, copy or photograph, all statements, scientific or medical
   reports, books, papers, documents or tangible objects which the Defendant intends
Commonwealth to inspect, copy, or photograph any results or reports of physical or

mental examinations and of scientific tests or experiments made in connection with the

particular case . . . ." We recently expressly rejected the notion that RCr 7.24

encompasses anything not explicitly covered by the rule by holding that

RCr 7.24(3)(A)(i) "applies only to results or reports of scientific tests or experiments ." 3

Of course, we do not countenance any attempt to skirt what we hold to be the limited

parameters of RCr 7.24; and the courts of the Commonwealth must not allow either the

Commonwealth or defense counsel to play a "cat and mouse game ,4 with the rules

governing discovery .5




   to produce at the trial and are in his possession, custody or control, within fifteen
   (15) days after receiving discovery ."

   Gray v . Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006) (emphasis added).

   James v. Commonwealth, 482 S.W .2d 92, 94 (Ky. 1972) .

   See, e.g., George v. Commonwealth , No. 2001-SC-001067-MR, 03 WL 22227195
   at *7 (Ky. September 18, 2003) . In George , the Commonwealth spoke with a
  forensic pathologist before trial in an effort to learn more about the nature and extent
  of the injuries to a victim in a case involving charges of rape and assault . The
  pathologist did not issue a written report, and no notice was given to defense
  counsel that the pathologist had given an oral report or would be a witness for the
  Commonwealth . At trial, defense counsel objected to the pathologist's testimony
  due to the lack of pretrial discovery . The trial court overruled the objection . On
  appeal, we acknowledged that the Commonwealth was not required under the
  explicit provisions of RCr 7.24 to disclose the basis of the pathologist's testimony
  because the pathologist had not issued a written report. However, we further held
  that permitting the expert to testify was reversible error because the Commonwealth
  had violated the "spirit" of RCr 7 .24 by having only an undisclosed oral conversation
  with the expert prior to offering the expert's testimony. Id. at *6. Such a seemingly
  deliberate attempt to surprise opposing counsel "produce[d] in acute form the very
  evils that discovery has been created to prevent." Id. Since Jones provided
  Dr. Melekovets's report to the Commonwealth in discovery, there obviously was no
  deliberate attempt to skirt the requirements of RCr 7.24 .
        So the conclusion of the Court of Appeals that the trial court properly limited

 Dr. Melekovets's testimony (because Jones committed a discovery violation when he

did not provide the Commonwealth with the entire underlying bases for Dr. Melekovets's

testimony) is premised upon an impermissibly broad interpretation of RCr 7.24.

Therefore, since Jones provided the Commonwealth all that was required in discovery

concerning Dr. Melekovets's report, the trial court erred when it relied upon RCr 7.24 to

limit Dr. Melekovets's testimony .

       Moreover, we reject the Commonwealth's argument that the trial court merely

exercised its discretion to sanction a discovery violation when it limited Dr. Melekovets's

testimony. We certainly do not approve of any party engaging in improper dilatory

tactics during the discovery process . And we agree with the Commonwealth's

unassailable contention that a trial court generally has broad discretion under

RCr 7 .24(9) to impose an appropriate sanction for a discovery violation . But we do not

agree with the Commonwealth that the trial court's limitation of Dr. Melekovets's

testimony was merely an example of a trial court exercising its discretion to sanction a

discovery violation . Simply put, no party may be sanctioned for committing a

nonexistent discovery violation .

       Having determined that nothing in the language of RCr 7.24 itself supports the

trial court's decision to bar Dr. Melekovets's contested testimony, we also reject the

Commonwealth's contention that our prior precedent compels us to find that the

limitations imposed by the trial court were proper. Specifically, we hold that Barnett v.
Commonwealth ,6 which the Court of Appeals relied upon, does not support the trial

court's decision to limit Dr. Melekovets's testimony.

       Barnett was a case involving a murder for which there were no eyewitnesses.

The Commonwealth contended that Barnett killed his wife late at night on an isolated

road . In an effort to prove Barnett's guilt, the Commonwealth offered the testimony of

an expert serologist who testified that traces of blood found on Barnett were consistent

with Barnett having washed blood off his hands in a nearby puddle after stabbing his

wife. The serologist's report did not contain his opinion regarding Barnett's purported

hand washing. On appeal, we held that it was error for the trial court to permit the

serologist to testify at trial about the hand washing because the serologist's report did

not contain any opinions regarding hand washing.'



   763 S.W.2d 119 (Ky. 1988) .

   Id. at 123 ("Next, we consider the testimony of the Commonwealth's serologist who
  testified that there were faint traces of blood that could be found on the appellant's
   hands and arms, and then opined that this was attributable to washing away the
  blood that could have been expected from the victim's wounds. Appellant first
  contends that this was an impermissible speculation, rather than an opinion, there
  being no evidence from which it could be inferred that the appellant engaged in
  washing to support a hypothetical question, as required by Hodge v.
  Commonwealth , 289 Ky. 548, 159 S .W.2d 422 (1942) . The presence of a nearby
  puddle would support an inference, albeit weak, that there was at least an
  opportunity for the appellant to wash the blood off of his hands. This evidence was
  weak because the undisturbed condition of the puddle and of the appellant and of
  his clothing refuted the implication that washing had occurred . All things considered,
  we conclude that the serologist's conclusion was admissible as opinion evidence,
  but the appellant was entitled under RCr 7.24 to be confronted with the fact that this
  opinion would be presented against him before the trial started so that he had a
  reasonable opportunity to defend against the premise . RCr 7.24(1)(b) requires that
  on motion the Commonwealth must produce `results or reports of physical or mental
  examinations, and of scientific tests or experiments made in connection with the
  particular case .' The appellant moved for this discovery and was provided a report
  which did not include this significant piece of information, the expert's opinion as to
  what the physical findings indicated . James v. Commonwealth , supra, suggests that
        The Court of Appeals held in the instant case that the discovery violation in

Barnett is similar to the one in the case now before us. We disagree .

        In Barnett, defense counsel had no way to anticipate that the serologist would

opine at trial that Barnett may have washed his hands in a nearby puddle after stabbing

his wife because nothing in the serologist's report hinted at such a conclusion . Thus, as

we have previously attempted to explain, Barnett stands for the principle that an expert

may not testify to an additional, undisclosed principle or premise not readily deducible

from th e conclusions contained in that expert's report.$ In other words, Barnett was

based upon our desire to prevent a party from being deliberately surprised at trial . The

situation in the case at hand is different .

       Dr. Melekovets's report indicated that he found no Y-chromosomes on the

vaginal swab taken from M .G. Implicitly underlying that conclusion is the obvious fact

that Dr. Melekovets fundamentally disagreed with the Commonwealth's DNA expert's

conclusion that the male DNA found in the vaginal swab taken from M .G . matched

Jones. After all, a lack of Y-chromosomes necessarily rules out a match for Jones's--or


   this was error, and given the equivocal background circumstances, here it was
   reversible error.") .

   See Milburn v. Commonwealth, 788 S .W.2d 253, 256 (Ky. 1989) ("we found in
   Barnett that the report provided by the Commonwealth to Barnett omitted a
   significant piece of information . . . . Unlike the instant case, however, the expert's
   conclusion in Barnett was based not only on the premise contained in the report, but
   also on an additional and necessary premise. To reach the conclusion that Barnett
   may have washed away the victim's blood, the serologist relied on the light blood
   traces he found on Barnett's hands and arms. But in order to be relevant and
   admissible, the expert's opinion also had to be based on evidence that Barnett had
   an opportunity to wash his hands . Yet without prior knowledge of the expert's
   opinion, Barnett had no reason to develop proof that the puddle near the murder
   scene was undisturbed or that Barnett's person or clothing was not damp or
   splashed from washing, so as to refute the expert's opinion .") .
any other male's-DNA on the vaginal swab. In other words, it surely could not have

come as a surprise to the Commonwealth that Dr. Melekovets would disagree with the

conclusion and/or analytical process used by the Commonwealth's DNA expert in light

of the conclusions contained in Dr. Melekovets's report. So we fail to perceive how

permitting Dr. Melekovets to explain why he found fault with the Commonwealth's DNA

expert's conclusion and/or methodology would have been impermissible

"sandbagging ."9

       However, we must note that we reject Jones's contention that the

Commonwealth's burden in a reciprocal discovery case is somehow greater than that

borne by the defendant. We perceive nothing in the language of RCr 7.24 or Barnett , or

its progeny, to support Jones's seeming contention that a defendant is entitled to the

benefits of reciprocal discovery while simultaneously avoiding its concomitant burdens.



   The fact that the Commonwealth had released its DNA expert to return to Virginia
   long before Dr. Melekovets was called as a witness does not alter this analysis . The
   Commonwealth has not indicated that it could not have requested that its expert
   remain in the vicinity of the trial, subject to recall . Had the Commonwealth,
   forewarned from his report that Dr. Melekovets disagreed with its expert's
   conclusions, taken measures to ensure that its expert had remained subject to
   recall, the possibility of any sandbagging would have been entirely eliminated .

  Likewise, we do not agree that Jones's counsel figuratively bound Dr. Melekovets's
  hands by agreeing during one of the numerous bench conferences that semen was
  found in M .G .'s vagina. And Jones's counsel did appear to make such an
  acknowledgement at one point. But after viewing the entire bench conference, we
  accept Jones's counsel's contention that despite his imprecise language, he was
  only acknowledging that the Commonwealth's DNA expert concluded that there was
  semen in M.G.'s vagina . In other words, regardless of the imprecise language
  Jones's counsel may have used, nothing said at that bench conference was
  sufficient to bar Dr. Melekovets from testifying as to why he disagreed with the
  Commonwealth's DNA expert's conclusions ; and we reject the Commonwealth's
  contention that Jones's counsel was somehow attempting to conceal Jones's
  defense. That contention is belied by the fact that Jones provided Dr. Melekovets's
  report during discovery .


                                           10
 And we frown equally upon any discovery violations, including sandbagging, by any

 party .

           Having determined that it was error for the trial court to limit Dr. Melekovets's

 testimony due to a nonexistent discovery violation, we now must address the

 Commonwealth's contention that any error in this regard was harmless .

           Under RCr 9.24, "[n]o error in either the admission or the exclusion of evidence

and no error or defect in any ruling or order, or in anything done or omitted by the court

or by any of the parties, is ground for granting a new trial or for setting aside a verdict or

for vacating, modifying or otherwise disturbing a judgment or order unless it appears to

the court that the denial of such relief would be inconsistent with substantial justice ."

Indeed, since an accused has a constitutional right to present witnesses and evidence

in his own defense,' ° we must determine whether the error in limiting Dr. Melekovets's

testimony was harmless beyond a reasonable doubt."

           The Commonwealth's DNA expert's report opines that Jones and M.G . were

"contributors to the DNA mixture" contained on the vaginal swab taken from M.G.

Furthermore, that report states that "[t]he expected frequency of possible contributors to

the mixed profile in the male fraction is fewer than 1 in 15,000,000 (1 in 15 million)

10
     See, e.g., Chambers v. Mississippi , 410 U.S . 284, 302, 93 S.Ct. 1038, 35 L.Ed .2d
     297 (1973) ("Few rights are more fundamental than that of an accused to present
     witnesses in his own defense."); Taylor v. Illinois , 484 U .S. 400, 409,108 S .Ct. 646,
     98 L.Ed.2d 798 (1988) ("The right to compel a witness' presence in the courtroom
     could not protect the integrity of the adversary process if it did not embrace the right
     to have the witness' testimony heard by the trier of fact. The right to offer testimony
     is thus grounded in the Sixth Amendment even though it is not expressly described
     in so many words[.]").

     See, e.g., Chapman v. California , 386 U.S. 18, 24, 87 S .Ct. 824, 17 L.Ed.2d 705
     (1967) ("before a federal constitutional error can be held harmless, the court must be
     able to declare a belief that it was harmless beyond a reasonable doubt.").
 among Caucasian, Black[,) and Hispanic Americans ." So it was crucial for Jones to

 present testimony to counteract, or at least cast doubt upon, the Commonwealth's DNA

 expert's report. But Jones was unable to attempt fully to cast doubt upon the potentially

 devastating effect of the Commonwealth's DNA expert's conclusions and report

 because of the trial court's limitation on Dr. Melekovets's testimony . Because Jones's

 right to present a defense to the charges against him was substantially curtailed by the

trial court's limitation upon Dr. Melekovets's testimony, we cannot find that error to be

harmless .beyond a reasonable doubt.

         For the foregoing reasons, we hold that Jones's convictions for incest, rape, and

sodomy must be reversed . But Jones's conviction for bribing a witness is affirmed

because the improper limitation on Dr. Melekovets's testimony had no discernible

bearing upon that conviction .

             B.   On Remand, the Pornographic Images May Not Be Introduced
                  and Shown to the Jury Unless a Nexus is Shown Between the
                  Images and M.G.'s Testimony.

         Because Jones's convictions for incest, rape, and sodomy are being reversed

due to the trial court's improper limitation on Dr. Melekovets's testimony, the issue

regarding the pornographic images shown to the jury is technically moot. But because

the Commonwealth will likely want to present that evidence at any retrial, we must

address the issue. '2

        M .G . did not testify that the images in question which were shown to the jury

were the same images shown to her by Jones. We have previously condemned the


12
     We note that this issue is questionably preserved. However, since the case is being
     reversed on other grounds, we need not definitively state whether the issue was, or
     was not, properly preserved for appellate review .


                                             12
 similar introduction of such unrelated, sexually-oriented testimony in Dyer v.

 Commonwealth . .

         In Dyer, the defendant was charged with sodomizing a boy less than twelve

 years of age . The victim testified that the defendant had shown him pictures depicting

 nudity, but the victim did not specifically identify any of the pictures depicting nudity

 introduced by the Commonwealth as having been shown him by the defendant . On

 appeal, we held that:

               It is obvious the real purpose, the sole purpose, of this
               evidence was, in general, to prove the appellant was a
               sexual pervert, and, in particular, to prove that his perversion
               was pedophilia, and to do so on the basis of reading material
               found in his possession some of which would offend a
               substantial number of jurors, prejudicing them against the
               appellant without regard to whether it proved anything
               against him. The various pornographic pictures and articles
               and the nondescript photographs and memorabilia were
               devoid of meaning except that provided by the investigating
               police officer's testimony and the prosecutor's argument
               labeling the material seized proof that the appellant was a
               pedophile.

               We declare, unqualifiedly, that citizens and residents of
               Kentucky are not subject to criminal conviction based
               upon the contents of their bookcase unless and until
               there is evidence linking it to the crime charged . If the
               boy's testimony was intended to be the connecting link,
               evidence would be limited to that which the boy could
               identify as having been shown to him.14

        Despite the clear warning of Dyer, the Commonwealth made no effort in the case

at hand to link these sexually explicit images to any sexual contact Jones allegedly had



13
     816 S .W.2d 647 (Ky. 1991), overruled on other grounds by Baker v. Commonwealth ,
     973 S .W.2d 54 (Ky. 1998) .
14
     /d. at 652 (emphasis added) .



                                              13
 with M.G . So the introduction of the contents of Jones's electronic bookcase-the

 contents of his home computers--was highly improper . Thus, on remand, the

 Commonwealth should only be allowed to introduce evidence that has a

 demonstratively direct bearing upon the charges against Jones. 15

           Finally, we note that the trial court specifically stated that it purposely never

 viewed the sexually explicit images before they were exhibited to the jury. In its role as

a gatekeeper of evidence, a trial court must view and consider any disputed evidence to

determine its admissibility on relevancy grounds, regardless of the revolting nature of

that evidence . Stated another way: how could the trial court properly weigh the

prejudicial effect of these images against their putative, probative value without first

seeing them? On remand, the trial court must not abdicate its gatekeeping role by

ruling in a vacuum as to the admissibility of unseen images or objects.

                                        IV. CONCLUSION .

         For the foregoing reasons, Floyd Mike Jones III's convictions for incest, rape in

the third degree, and sodomy in the third degree are reversed and remanded for

proceedings consistent with this opinion . Jones's conviction for bribing a witness is

affirmed . Jones has not asked us to remand this matter to the trial court for

resentencing on the bribing a witness conviction, and we decline to do so on our own

motion .




15
     The Commonwealth's contention that the images were relevant to prove Jones's
     guilt of the crime of possession of matter portraying a sexual performance is belied
     by the jury's not guilty verdict on that charge. Regardless, Jones's acquittal on that
     charge means that the Commonwealth may not rely upon that rationale to introduce
     the images on remand.


                                                 14
       Ail sitting . Abramson, Cunningham, Noble, Schroder, and Scott, JJ ., concur .

Lambert, C.J., concurs in part and dissents in part by separate opinion .




COUNSEL FOR APPELLANT :

Alec G. Stone
Stone Law Office
469 East Broadway
P. O . Box 487
Brandenburg, KY 40108-0487


COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General of Kentucky

William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
                                                        RENDERED : NOVEMBER 1, 2007
                                                                   TO BE PUBLISHED


             ,Supreme Courf of ~EnfttxkV
                                   2005-SC-000879-DG


FLOYD MIKE JONES III                                                           APPELLANT


                    ON REVIEW FROM THE COURT OF APPEALS
                        CASE NUMBER 2003-CA-002422-MR
                     MEADE CIRCUIT COURT NO. 01-CI-000117


COMMONWEALTH OF KENTUCKY                                                         APPELLEE



                     OPINION BY CHIEF JUSTICE LAMBERT
                 CONCURRING IN PART AND DISSENTING IN PART



       I respectfully dissent from the majority's failure to order re-sentencing of the

defendant for the crime of bribing a witness.

       The defendant was convicted of twenty-two counts of rape, sodomy, and incest,

and of one count of bribing a witness. The jury recommended forty-eight years

imprisonment for all convictions, but the trial court imposed a total sentence of ten

years . On appeal, this court has vacated all convictions except the conviction for

bribing a witness . The vacated convictions will be subject to retrial. Nevertheless, the

majority has not required re-sentencing for bribing a witness.
        As there is no binding authority on this issue, I have consulted cases from

several federal circuits regarding disrupted sentencing packages .' From these

decisions it appears to be the practice that, whenever a defendant is convicted of more

than one count of a multi-count indictment, the district court fashions a sentencing

package in which sentences on individual counts are interdependent. When one or

more of the counts is later reversed and others are affirmed, the result is an unbundling

of the sentencing package . These federal circuits have recognized that an "unbundled"

sentencing package undermines the district court's sentencing scheme . Therefore,

these cases hold that the entire matter is remanded to the trial court for re-sentencing .

        In the case sub judice, the trial court could have sentenced the defendant to

forty-eight years, but chose instead to sentence him to ten years . It is obvious that the

court looked at the totality of the defendant's conduct and fashioned a sentence it

believed to be an appropriate societal response . Now that most of the convictions have

been vacated and are subject to re-trial, the single affirmed conviction for bribing a

witness has become magnified and almost certainly more severe than the trial court

intended . In such a circumstance, it would be far better to require re-sentencing upon

all convictions after re-trial is complete .

       In conclusion, I believe that when a sentencing scheme is disrupted on appeal,

and some, but not all of the counts are vacated, it is appropriate to allow the trial court




       ' United States v. Shue , 825 F.2d 1111 (7th Cir.), cert. denied, 484 U .S. 956
(1987). Accord United States v. Washington , 172 F.3d 1116 (9th Cir. 1998); United
States v. Lail , 814 F.2d 1529 (11th Cir. 1987) ; United States v. Rosen , 764 F.2d 763
(11th Cir. 1985), cert. denied, 474 U .S. 1061 (1986); United States v. Busic , 639 F.2d
940 (3rd Cir. 1981) .
an opportunity to formulate a revised sentencing plan so that the final sentence reflects

the exercise of informed trial court discretion . For these reasons, I respectfully dissent .
