Com. v. Hicks, 93-SC-048-DG

• Citation: 869 S.W.2d 35
• Decision Date: 31 January 1994
• Docket Number: No. 93-SC-048-DG,93-SC-048-DG
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Scott W. HICKS, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 35

869 S.W.2d 35

COMMONWEALTH of Kentucky, Appellant, v. Scott W. HICKS, Appellee.

No. 93-SC-048-DG.

Supreme Court of Kentucky.

Jan. 31, 1994.

Chris Gorman, Atty. Gen., Rickie L. Pearson, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, John Anthony Fortner, Covington, for appellant.

D. Anthony Brinker, Wehrman & Wehrman, Chartered, Covington, for appellee.

LAMBERT, Justice.

This Court granted the Commonwealth's motion for discretionary review of an opinion of the Court of Appeals which directed the trial court to grant appellee's petition for writ of prohibition. The Court of Appeals determined that dismissal of the underlying DUI and reckless driving charges was with prejudice by virtue of CR 41.02(3).

In April of 1991, appellee was charged with third offense DUI and reckless driving. Following arraignment in the Kenton District Court, trial was set for August 1, 1991. On the day set for trial, on motion of the Commonwealth and without objection from appellee, the case was continued to October 2, 1991.

When the case was called on October 2, 1991, the Commonwealth again moved for a continuance on grounds that the technician who had administered the breathalyzer test, a subpoenaed witness, had not appeared. On learning of this, the trial judge became annoyed at the failure of state police officials and witnesses to appear in court, particularly in view of a legislative mandate that DUI cases be disposed of in ninety days. The judge stated he wished to make a record on the issue because

.... I am going to drag the commissioner of the state police up here to explain to me why they won't provide personnel to dispose of these cases. I brought a jury in here today to try these cases and now the state police has decided not to honor the subpoena. .... And its [sic] not fair to Mr. Hicks, its [sic] not fair to the police officer, its [sic] not fair to you, its [sic] not fair to the jury members, its [sic] not fair to anybody. .... I am not going to tolerate it.

Thereafter, defense counsel moved to dismiss the charges and after noting the date of the arrest (less than six months earlier), the court stated that the motion to dismiss would be sustained for lack of prosecution. Protesting the ruling, the prosecutor reminded the court that his motion to continue was pending and informed the court that if a continuance was denied, the Commonwealth was nevertheless prepared to proceed to trial without the breathalyzer technician. The trial court refused to reconsider the order of dismissal but informed the parties that the charges could be refiled. On the court calendar for that day and with respect to appellee's case, the court made abbreviated notations, the translation of which is as follows:

The defendant was present with his attorney, the arresting officer was present, the breathalyzer technician was not available, and the date of arrest was April 25, 1991.

The abbreviated final order may be accurately translated as follows:

The Commonwealth's motion to continue is overruled and the defense motion to dismiss is sustained.

The Commonwealth did not appeal from the order of dismissal but promptly refiled the charges against appellee. In response, appellee moved to dismiss on grounds of double jeopardy. The trial court denied the motion holding that jeopardy had not attached in the earlier proceeding. Appellee then brought this action for prohibition in the Kenton Circuit Court. See Crawley v. Kunzman, Ky., 585 S.W.2d 387 (1979). In circuit court, the issue framed was whether the order of dismissal barred the subsequent refiling and prosecution of the same charges. The circuit court held that the original charges had not been dismissed for failure to grant a speedy trial; that they were not dismissed for failure of the Commonwealth to prosecute; and that the earlier charges did not constitute former jeopardy. Prohibition was denied.

Appellee appealed as a matter of right to the Court of Appeals from denial of prohibition. Reversing the trial court and directing entry of an order of prohibition, the Court of Appeals analyzed CR 41.02, a rule which governs involuntary dismissals. The court took the position that appellee's motion to dismiss was on grounds of failure to prosecute and concluded that the effect of the trial court's notations which constituted its final order was to dismiss the case with prejudice under CR 41.02(3). It also recognized the inconsistency between the legal effect of the district court's order of dismissal and the court's oral statement that the charges could be refiled, a view which was reaffirmed upon denial of the motion to dismiss the refiled charges. Unwilling to rely entirely on the effect of the order of dismissal, however, the Court of Appeals surmised that the dismissal must have been for denial of appellee's right to a speedy trial and notwithstanding the trial court's advice to the Commonwealth that the charges could be refiled, held that the original order of dismissal was res judicata, thereby barring the subsequent prosecution.

We recognize that this proceeding is not for direct review of the trial court's order of dismissal. No appeal was taken from that order and it long ago became final. However, as we are called upon to construe the effect of that order, we must review the surrounding circumstances and brief comment is appropriate.

From the transcript of the hearing at which the motion to dismiss was granted, it is unmistakable that the trial judge perceived an indifference by the Kentucky State Police to its duty to provide breathalyzer technicians to testify in court. As a punitive gesture toward the state police, the judge determined that the case should be dismissed. In so doing, he overlooked clear authority to the contrary. It is an age-old principle that a party is not required to produce all the evidence which might be in existence, nor even the most persuasive evidence which might be obtainable. A party who announces ready for trial is entitled to go forward and it is not within the province of the trial judge to evaluate the evidence in advance to determine whether a trial should be held. The time for such an evaluation is upon motion for a directed verdict. At the hearing which resulted in dismissal of the underlying case, the prosecution announced ready for trial and informed the court that the arresting officer was present, a fact which the trial court noted in its order. In Allen v. Commonwealth, Ky.App., 817 S.W.2d 458 (1991), the Court of Appeals affirmed a DUI conviction and forcefully stated that such a conviction may be sustained without evidence procured by use of a device for measuring intoxication.

We believe we should remind those who have an interest in the prosecution and defense of driving under the influence of intoxicants cases that there has arisen a supposition that c...