Com. v. Deloney, No. 1999-SC-0598-MR.

• Decision Date: 15 June 2000
• Docket Number: No. 1999-SC-0598-MR.
• Citation: 20 S.W.3d 471
• Parties: COMMONWEALTH of Kentucky (Real Party in Interest) Appellant, and Ann O'Malley Shake, Judge, Jefferson Circuit Court Appellant, v. Richard L. DELONEY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

20 S.W.3d 471

COMMONWEALTH of Kentucky (Real Party in Interest) Appellant, and Ann O'Malley Shake, Judge, Jefferson Circuit Court Appellant, v. Richard L. DELONEY, Appellee.

No. 1999-SC-0598-MR.

Supreme Court of Kentucky.

June 15, 2000.

A.B. Chandler, III, Attorney General, Frankfort, Teresa Young, Assistant Commonwealth's Attorney, Louisville, Counsel for Real Party in Interest Appellant Commonwealth of Kentucky.

Daniel T. Goyette, J. David Niehaus, Robert W. Milburn, Louisville, Counsel for Appellee.

COOPER, Justice.

Appellee Richard Deloney was indicted by the Jefferson County Grand Jury on charges of possession of cocaine and possession of marijuana. The controlled substances were discovered during a "night vision search" conducted by Deloney's parole officer with the assistance of other law enforcement officers, including Louisville Police Department Detective Gayle Clemons. The trial judge entered a pretrial order excluding any reference during the trial to the fact that Deloney was on parole for other convictions at the time of the search. The prosecutor informed all of the Commonwealth's witnesses, including Detective Clemons, of the judge's order and directed them not to mention the words "probation and parole." At trial, Clemons was the Commonwealth's second witness. In response to the prosecutor's question, "Okay, now who knocked on Mr. Deloney's door in the apartment?," Clemons responded, "One of the probation officers, I believe it was Dawson." Defense counsel immediately moved for a mistrial. The prosecutor objected and urged the judge instead to give the jury a curative admonition. The judge overruled the objection and granted the motion for a mistrial.

Prior to retrial, Appellee moved for dismissal of the indictment asserting that a retrial would violate the constitutional proscription against double jeopardy. U.S. Const., amend. V; Ky. Const. § 13. An evidentiary hearing was held at which both the prosecutor and Detective Clemons testified that Clemons had been warned not to mention "probation and parole" both before trial and again immediately prior to being called as a witness. Clemons testified that this was his first "night vision" case, that his identification of the probation officer as a "probation officer" was unintentional, and that he found it difficult to try to concentrate on the question, the correct answer, and then how to censor the answer.

Unfortunately, I have several cases coming up like this and this last incident, that last incident scared me to death. I don't know what I'm going to do. It is very difficult to not say a word. You get to talking, somebody asks you a question, you get to thinking about the answer. It is hard to think about the, you know, the exact words to say the answer. You start thinking about the question and I'm thinking about the answer. I know I've never been in that situation.

Following the hearing, the trial judge entered a written order finding that the prejudicial comment was "inadvertent" and did not amount to "bad faith, overreaching, or some other fundamentally unfair action." The motion to dismiss the indictment was denied. Appellee then filed a petition for a writ of prohibition in the Court of Appeals to prohibit the trial judge from proceeding with the retrial. CR 76.36. The Court of Appeals granted the petition in a one-sentence order, viz:

Having considered petitioner's petition for writ of prohibition, and the response thereto from the real party in interest, and being otherwise sufficiently advised, this Court ORDERS that this petition be, and it is hereby, GRANTED.

The Commonwealth appeals to this Court as a matter of right. CR 76.36(7). We reverse because (1) the trial judge's finding that Clemons's violation of the pretrial order was inadvertent and not the product of bad faith was not clearly erroneous, and, thus, the denial of the motion to dismiss the indictment was not an abuse of discretion; and (2) misconduct on the part of a witness is not imputed to the prosecutor absent evidence that the prosecutor encouraged or condoned the misconduct.

I. STANDARD OF REVIEW.

In Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d 195 (1997), we discussed at length the standard of review applicable to petitions for extraordinary writs.

The decision to grant or deny the petition is committed to the sound discretion of the court.... But because discretion is also committed to the lower court ... in the conduct of its assignment, review of its action is appropriately limited. Where a petition for one of the extraordinary writs alleges that a lower adjudicatory body within its jurisdiction has acted incorrectly, and the threshold factors of inadequate remedy and irreparable injury are satisfied, the writ should be granted only upon a showing that the challenged action reflects an abuse of discretion. If the legitimacy of the challenged action presents only a question of law, the reviewing court may of course determine the law without necessary deference to the lower court or hearing officer. Where the challenge involves matters of fact, or application of law to facts, however, an abuse of discretion should be found only where the factual underpinning for application of an articulated legal rule is so wanting as to equal, in reality, a distortion of the legal rule. Application of any lesser standard for interlocutory intervention would ignore the extraordinary nature of the writs of prohibition and mandamus.

Id. at 199-200.

Thus, although whether to grant or deny a petition for a writ is within the appellate court's discretion, its decision in that regard will be considered an abuse of discretion if that decision amounts to an invasion of the traditional fact-finding role of the trial court. If the trial judge's findings of fact in the underlying action are not clearly erroneous, i.e., are supported by substantial evidence, then the appellate court's role is confined to determining whether those facts support the trial judge's legal conclusion. In other words, deference to the trial judge's role as fact-finder applies as well to an original action as to an action on appeal.

As a general rule, a mistrial granted on the defendant's motion removes any double jeopardy bar to a retrial. Stamps v. Commonwealth, Ky., 648 S.W.2d 868 (1983); Silverburg v. Commonwealth, Ky., 587 S.W.2d 241 (1979). In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), a narrow exception to this rule was recognized "where `bad-faith conduct by judge or prosecutor,' threatens the `[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant." Id. at 611, 96 S.Ct. 1075, 1081 (citations omitted). In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the Court clarified that "bad-faith conduct" means an "intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause," and "[o]nly where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676, 102 S.Ct. 2083, 2089. Our case law is of similar import. Tinsley v. Jackson, Ky., 771 S.W.2d 331, 332 (1989) ("party seeking to prevent his retrial upon double jeopardy grounds must show that the conduct giving rise to the order of mistrial was precipitat ed by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court"); Commonwealth v. Lewis, Ky., 548 S.W.2d 509, 510 (1977) ("if there is no bad faith and the choice has not been forced upon the defendant, he is not in a position to cry double jeopardy when the trial is relaunched").

Appellee points to several facts...