Com. v. Bailey

• Decision Date: 21 March 2002
• Docket Number: No. 1999-SC-1004-DG.,1999-SC-1004-DG.
• Parties: COMMONWEALTH of Kentucky, Appellant, v. James BAILEY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

71 S.W.3d 73

COMMONWEALTH of Kentucky, Appellant, v. James BAILEY, Appellee.

No. 1999-SC-1004-DG.

Supreme Court of Kentucky.

March 21, 2002.

As Amended April 29, 2002.

A.B. Chandler, III, Attorney General, Dennis W. Shepherd, Office of Attorney General, Criminal Appellant Division, Frankfort, Jay A. Wethington, Owensboro, Counsel for Appellant.

Ben S. Fletcher, III, Fletcher, Cotthoff & Willen, Hopkinsville, Counsel for Appellee.

KELLER, Justice.

I. ISSUE

After a jury found Appellee guilty of a felony offense, the trial court granted him a new trial. The Commonwealth appealed from the trial court's new trial order and asked the Court of Appeals to reinstate the jury's verdict. The Court of Appeals held that the Commonwealth could not obtain the relief it requested because the Commonwealth could appeal from a new trial order only for the purpose of certifying the law. Accordingly, the Court of Appeals declined to review the circuit court's order and dismissed the Commonwealth's appeal. Is the Commonwealth's appeal from an order granting a new trial limited to a certification of the law? Because we find that, in the context of an appeal by the Commonwealth from an order granting a new trial, KRS 22A.020(4) authorizes the Court of Appeals to reverse the trial court's ruling and to reinstate the trial verdict, we hold that the Commonwealth is not limited to seeking certification of the law when a trial court grants a motion for a new trial.

II. FACTS

A Christian Circuit Court jury found Appellee, a deputy county clerk, guilty of Tampering With Public Records, a violation of KRS 519.060, and recommended the minimum sentence of one (1) year. At trial, the Commonwealth introduced evidence suggesting that Appellee had deliberately under-reported monies collected by the county clerk's office from the public and diverted this money to a co-defendant who was tried separately. Before his formal sentencing, Appellee filed a motion for a judgment notwithstanding the verdict (or "JNOV," an abbreviated form of the Latin "judgment non obstante veredicto")¹ or, in the alternative, for a new trial.² In an order ruling favorably upon Appellee's motion, the trial court expressed its concern that the jury's verdict had been influenced by irrelevant testimony concerning other office practices in the county clerk's office, and thus ordered: "A judgment n.o.v. is granted and a new trial ordered which will deal only with whether or not KRS 519.060 was violated as it regards how the money was handled and receipted going out of the box."

The Commonwealth appealed to the Court of Appeals from this order. The Court of Appeals characterized the trial court's order as one granting a new trial rather than a JNOV, held that the Commonwealth could not appeal from such an order except for purposes of certifying the law, and, inasmuch as the Commonwealth did not raise any issue for certification, dismissed the Commonwealth's appeal. The Commonwealth sought, and this Court granted, discretionary review to consider issues relating to the right of appeal provided for by KRS 22A.020(4).

III. CHARACTERIZATION OF TRIAL COURT'S ORDER

We agree with the Court of Appeals that the trial court's order granted a new trial pursuant to RCr 10.02 rather than a JNOV pursuant to RCr 10.24. Although certain language in the order purports to grant a JNOV, we find the language that orders a new trial dispositive as to the trial court's clear intent. A JNOV would constitute an acquittal of the charge³ that would leave nothing to be decided at a subsequent trial under the indictment. In other words, to grant both a JNOV and a new trial is a conflict in the use of the terms because a trial court could grant one or the other, but not both because "[a] motion for JNOV raises the single question: whether the evidence is sufficient to sustain a conviction."⁴ However, "RCr 10.02 permits a trial court to grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice."⁵ Under RCr 10.02, therefore, absent a cause that does not appear from the record of the trial, "the trial judge's authority would not differ from that of this court in reviewing the case on appeal ...."⁶ Stated otherwise, a motion for a new trial is generally directed towards alleged errors committed during the course of the trial, while a motion for JNOV is directed towards the sufficiency of the evidence. In the case sub judice, the trial court's order reflects the court's belief that certain evidence admitted at Appellee's trial affected the fairness of the proceedings, but the court clearly did not determine that the evidence presented was insufficient to support the jury's guilty verdict.⁷ We agree with the Court of Appeals that the trial court did not intend to acquit Appellee of the offense by granting a JNOV, but rather granted him a new trial at which a jury could again deliberate the evidence.

IV. APPEALS FROM AN ORDER GRANTING A NEW TRIAL

While the Kentucky Constitution prohibits the Commonwealth from appealing a judgment of acquittal in a criminal case,⁸ this Court has held (in the context of the Commonwealth's appeal from an order granting a JNOV) that the Constitution "does not prevent an appeal by the Commonwealth when a jury has returned a verdict of guilty which has been set aside by a ruling of law to a postverdict motion."⁹ The same logic supports the conclusion that no constitutional prohibition prevents the Commonwealth from appealing an order granting a new trial. However, because new trial orders have been characterized not as final orders,¹⁰ but as interlocutory orders, the state—in the absence of a statute or rule—generally cannot bring a direct appeal¹¹ from an order setting aside a jury's verdict and granting a new trial in a criminal case.¹²

The Judicial Amendment¹³ authorized the General Assembly to prescribe the appellate jurisdiction of the newly-created Court of Appeals:

The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the Commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as provided by law.¹⁴

And, as part of the legislative package implementing the recently-adopted Judicial Amendment, the legislature enacted KRS 22A.020(4)¹⁵ and authorized the Commonwealth to file an interlocutory appeal¹⁶ from "an adverse decision or ruling" of the circuit court:

An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the Circuit Court, but only under the following conditions:

(a) Such appeal shall not suspend the proceedings in the case.

(b) Such appeal shall be taken in the manner provided by the Rules of Criminal Procedure and the Rules of the Supreme Court, except that the record on appeal shall be transmitted by the clerk of the Circuit Court to the Attorney General; and if the Attorney General is satisfied that review by the Court of Appeals is important to the correct and uniform administration of the law, he may deliver the record to the clerk of the Court of Appeals within the time prescribed by the above-mentioned rules.

(c) When an appeal is taken pursuant to this subsection, the Court of Appeals, if the record so warrants, may reverse the decision of the Circuit Court and order a new trial in any case in which a new trial would not constitute double jeopardy or otherwise violate any constitutional rights of the defendant.

Subsections (a) and (b) of KRS 22A.020(4) are analogous to sections 335 and 337 of Kentucky's former Code of Practice in Criminal Cases:

An appeal shall only be taken on a final judgment, except on behalf of the Commonwealth. An appeal by the Commonwealth from a decision of the circuit court shall not suspend the proceedings in the case. The decision of the Court of appeals shall be obligatory on the circuit courts, as being the correct exposition of the law.¹⁷

If an appeal on behalf of the Commonwealth be desired, the Commonwealth's attorney shall pray the appeal ..., whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney-general, or deliver the transcript to the Commonwealth's attorney, to be transmitted by him. If the attorney-general, on inspecting the record, be satisfied that error has been committed to the prejudice of the Commonwealth, upon which it is important to the correct and uniform administration of the criminal law that the Court of Appeals should decide, he may, by lodging the transcript in the clerk's office of the Court of Appeals, within sixty days after the decision, take the appeal.¹⁸

In construing those sections, this Court's predecessor stated, "Sections 335 and 337, when construed together, appear to authorize this court to review any ruling of the court below in felony cases, whether it be final or not, and without reference to whether the judgment be upon a verdict of a jury or whether it be a bar to another prosecution for the same offense."¹⁹ We agree with our predecessor, and in construing KRS 22A.020(4)(a) & (b), we find that the General Assembly has authorized the Commonwealth to appeal a circuit court order granting a new trial in a criminal case regardless of whether or not the order is a final order.²⁰

The question remaining before us, however, is whether the Commonwealth may appeal a new trial order in a criminal case for the purpose of seeking reinstatement of a trial verdict of guilty or whether the Commonwealth may bring such an appeal only for the limited purpose of certifying the law. Previously, in Commonwealth v. Littrell,²¹ this Court—after reviewing the creation and evolution of the Commonwealth's right of...