         IMPORTANT NOTICE
    NOT TO BE PUBLISH ED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                                      RENDERED : AUGUST 27, 2009
                                                             T

                 'SuprPmr (~Vurf of `~ftrly
                        2008-SC-000892-MR


 BROCK BOWLING


                      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

       Appellant, Brock Bowling, appeals as a matter of right from a November

2008 Court of Appeals order denying him intermediate relief against Appellee,

Clay Circuit Judge Oscar Gayle House . Appellant requests the writ to prohibit

Appellee from retrying him for the murder of Jimmy Mills . Appellant contends

that a second trial would subject him to double jeopardy. For the reasons set

forth herein, we now affirm the 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 the jury believed that defendant was the principal actor in killing

 Mills. The second instruction allowed a guilty verdict if the jury 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 MURDER-
       ACCOMPLICE, 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 .

The jury 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 combined jury instruction which required sufficient evidence

that he acted as either the principal actor or accomplice, the jury's verdict was
 not 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

 double jeopardy . 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 from retrying 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 faulty jury instruction, and not a lack of proof, there was no

Constitutional bar to retrying Appellant for murder, and no double jeopardy

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) . A writ 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 its
       jurisdiction, 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) . A double jeopardy claim is 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 the jury'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 double jeopardy .

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 a jury 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 the jury

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 retried
without 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 the jury's failure to return a verdict on the principal actor instruction

invokes double jeopardy 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 them the jury'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 the jury 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 the jury intended to acquit Appellant based on

him serving as the principal actor in the murder, we 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 FOR APPELLANT:

Stephan Charles
304 Bridge Street
Manchester, Kentucky 40962


COUNSEL FOR APPELLEE :

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


COUNSEL FOR COMMONWEALTH OF KENTUCKY
AND HON . GARY GREGORY, COMMONWEALTH ATTORNEY, 41 ST JUDICIAL
DISTRICT
REAL PARTIES IN INTEREST

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
