Cardine v. Com.

• Decision Date: 22 January 2009
• Docket Number: No. 2006-SC-000680-MR.,No. 2006-SC-000677-MR.,2006-SC-000677-MR.,2006-SC-000680-MR.
• Citation: 283 S.W.3d 641
• Parties: Eddie CARDINE; and Michael Curry, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

283 S.W.3d 641

Eddie CARDINE; and Michael Curry, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000677-MR.

No. 2006-SC-000680-MR.

Supreme Court of Kentucky.

January 22, 2009.

Rehearing Denied June 25, 2009.

Rebecca Lynn Hobbs, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant, Eddie Cardine.

Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant, Michael Curry.

Jack Conway, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

When Appellants Eddie Cardine and Michael Curry first went to trial, the trial court declared a mistrial soon after the jury was sworn. After a second joint jury trial, the Appellants were both found guilty of murder, attempted murder, and assault in the second degree, and were sentenced to thirty years' imprisonment. On appeal, both Appellants raise a number of issues, though only one need be addressed. Because the second jury trial in this case violated the Fifth Amendment's proscription against double jeopardy, Appellants' convictions are reversed.

I. Background

Appellants Cardine and Curry were both indicted on June 22, 2004 in a five-count indictment charging them with complicity to murder, two counts of complicity to attempted murder, complicity to assault in the first degree, and complicity to assault in the second degree.

After a previous confrontation between the Appellants and Deonte Neal, Tyson Gibbs, Otha Burney, and Dejuan Smith, the Appellants picked up a third person and met the other group for a second time. It was at this second meeting that a gunfight ensued, resulting in the death of Gibbs and injury of Neal and Burney, allegedly from shots fired by the Appellants.

As became apparent from the testimony at the second trial, it was undisputed that Cardine fired a gun. Curry, however, disputed having a gun, which would have been an issue at the first trial.

At the first jury trial, both parties made numerous pretrial motions before and after the jury was selected and sworn. The last matter brought to the court's attention by the Commonwealth was a newly discovered witness, a man who claimed Curry tried to sell a gun to him on the day of the shooting. Even though the Commonwealth conceded that it had other witnesses that would testify that Curry had a gun on the day of the shooting, it argued that this new witness was more disinterested than the others (despite the fact that he was discovered by the mother of one of the victims). Defense counsel objected that this witness's testimony was evidence of other bad acts under KRE 404(b) and should be excluded because the KRE 404(c) notice requirements were not met. As both sides made their arguments about this witness's admissibility to the judge, he was located, brought in the courtroom, and sworn to reappear. The witness then left the courtroom and the court took a break for lunch. After lunch, the parties argued over whether the new witness should be allowed to testify.

Each Appellant's defense counsel moved to exclude the new witness, or in the alternative, for a continuance. The Commonwealth claimed the witness was crucial. It should be noted that the Commonwealth's description of the testimony given by this "crucial witness" at the eventual second jury trial is limited to one sentence in its brief. The Commonwealth argued in favor of allowing the new witness to testify and stated that it preferred a continuance to exclusion.

The trial judge denied defense counsels' motions to exclude the witness. Immediately thereafter, the trial judge determined that the witness was an important factor in obtaining a fair trial and sua sponte declared a mistrial "pursuant to manifest necessity." Neither the defense nor the Commonwealth objected.

After the second jury trial in this case, Appellants were both convicted and sentenced to thirty years in prison. Their appeals to this Court, therefore, are a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

A. Cardine and Double Jeopardy

Appellant Cardine's first claim of error is that the second trial violated his double jeopardy rights under Section 13 of the Kentucky Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. For the reasons discussed herein, this Court agrees.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V; see also Ky. Const. § 13 ("No person shall, for the same offense, be twice put in jeopardy...."). The Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Further, the Fifth Amendment and Section 13 of the Kentucky Constitution are "identical in the import of their prohibition against double jeopardy." Jordan v. Commonwealth, 703 S.W.2d 870, 872 (Ky.1985).

There is some confusion under Kentucky law about when jeopardy attaches. The current federal rule is clear: in jury trials, jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Before the enactment of the Kentucky Penal Code, the rule for attachment of double jeopardy was the same as the current federal rule. Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766, 767 (1939) ("[J]eopardy attaches when the jury is impaneled and sworn."). However, in 1975, the General Assembly enacted KRS 505.030(4), which states that jeopardy attaches "after the first witness [i]s sworn...."

According to the official commentary to the Penal Code, the drafters intentionally changed the point at which jeopardy attaches to make it the same in both bench and jury trials. The official commentary to KRS 505.030(4) provides,

The provision provided in subsection (4) is a codification of prior law, except for a slight change in the point at which jeopardy attaches. Previously, in a jury case, jeopardy attached when the jury was impaneled and sworn. The change that is made by subsection (4) serves only to create the same rule for jury and nonjury trials.

KRS 505.030(4) cmt. (citation omitted).

This Court heard a challenge to the constitutionality of KRS 505.030(4) soon after its enactment. See Graham v. Commonwealth, 562 S.W.2d 625, 626 (Ky.1978). In Graham, this Court noted that the U.S. Supreme Court had recently granted a writ of certiorari to the Ninth Circuit regarding its decision in Bretz v. Crist, 546 F.2d 1336 (9th Cir.1976), a case that expressly addressed the issue of when jeopardy attaches in a jury trial. The Ninth Circuit had recently ruled as a matter of constitutional law that jeopardy attached in a jury trial when the jury was sworn. Id. at 1343. Rather than waiting for the U.S. Supreme Court to rule on the issue, this Court issued its opinion in Graham, rejecting the approach employed by the Ninth Circuit and upholding the constitutionality of KRS 505.030(4). Graham, 562 S.W.2d at 627. This Court acknowledged that the new statute was subject to further challenge if the United States Supreme Court held that such a double jeopardy attachment rule did not comport with the U.S. Constitution. Id. at 627 ("If the U.S. Supreme Court holds otherwise as a matter of federal constitutional law we will, of course, respectfully conform to its decision....")

The U.S. Supreme Court issued its opinion in Crist four months later. The Court, in analyzing the Montana statute at issue, framed the issue as "whether the federal rule governing the time when jeopardy attaches in a jury trial is binding on Montana through the Fourteenth Amendment. The federal rule is that jeopardy attaches when the jury is empaneled and sworn; a Montana statute provides that jeopardy does not attach until the first witness is sworn." Crist, 437 U.S. at 29, 98 S.Ct. 2156.

As an initial matter, the U.S. Supreme Court noted:

The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury.... It is an interest with roots deep in the historic development of trial by jury in the Anglo-American system of criminal justice. Throughout that history there ran a strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict.

Id. at 35-36, 98 S.Ct. 2156 (footnotes omitted). Applying this rationale to the statute at issue in Crist—a statute with a double jeopardy attachment provision identical to Kentucky's statute—the U.S. Supreme Court concluded that

the federal rule as to when jeopardy attaches in a jury trial is not only a settled part of federal constitutional law. It is a rule that reflects and protects the defendant's interest in retaining a chosen jury. We cannot hold that this rule, so grounded, is only at the periphery of double jeopardy concerns. Those concerns—the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury—have combined to produce the federal law that in a jury trial jeopardy attached when the jury is empaneled and sworn.... [Therefore,] the time when jeopardy attaches in a jury trial "serves as the lynchpin for all double jeopardy jurisprudence."

Id. at 37-38, 98 S.Ct. 2156 (quoting Bretz, 546 F.2d at 1343). Thus, under the Double Jeopardy Clause, as applied to the states through the Fourteenth Amendment, the U.S. Supreme Court explicitly held that "[t]he federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against...