Com. v. Hubbard, 88-SC-938-DG

• Decision Date: 07 July 1989
• Docket Number: No. 88-SC-938-DG,88-SC-938-DG
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Jack Curtis HUBBARD, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 882

777 S.W.2d 882

COMMONWEALTH of Kentucky, Appellant, v. Jack Curtis HUBBARD, Appellee.

No. 88-SC-938-DG.

Supreme Court of Kentucky.

July 7, 1989.

As Corrected Sept. 21, 1989.

Rehearing Denied Nov. 9, 1989.

Frederic J. Cowan, Atty. Gen., Robert W. Hensley, Ian Sonego, Asst. Attys. Gen., Frankfort, for appellant.

J. Kirk Griggs, II, Lexington, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict convicting Hubbard of reckless homicide. He was sentenced by the circuit judge to three years in prison when the jury failed to agree on a sentence.

The precise questions presented are whether the employment of private counsel to assist the Commonwealth Attorney in the prosecution of a criminal case violates the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and whether K.R.S. 532.055(4) violates the due process clause of the Fourteenth Amendment to the United States Constitution by authorizing the trial judge to impose a sentence in excess of the minimum sentence but less than the maximum prescribed by statute if the jury fails to agree on a sentence.

In regard to the matter of private prosecutorial assistance, the Court of Appeals decided that private prosecutors were untenable relics of the past and violative of federal due process. The Court of Appeals majority did recognize that the practice had been long sanctioned in Kentucky and most other states. Similarly, despite acknowledging the acceptance of K.R.S. 532.055(4) in Commonwealth v. Reneer, Ky., 734 S.W.2d 794 (1987), the majority of the Court of Appeals panel distinguished Reneer, supra, because it was argued as a separation of powers violation rather than as a due process case. This Court accepted review.

The employment of private counsel to assist the Commonwealth Attorney in the prosecution of a criminal case does not violate the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. It has been previously held that it is permissible for the circuit court and the Commonwealth Attorney to permit a private attorney to assist the Commonwealth Attorney in prosecuting a criminal case. Goehring v. Commonwealth, Ky., 370 S.W.2d 822 (1963); Earl v. Commonwealth, Ky.App., 569 S.W.2d 686 (1978). The Sixth Circuit Court of Appeals in Stumbo v. Seabold, 704 F.2d 910 (6th Cir.1983) held that the employment of private counsel to assist an elected prosecutor is not per se unconstitutional. See also, Jones v. Richards, 776 F.2d 1244 (4th Cir.1985), cited in 63A Am.Jur.2d Prosecuting Attorneys Sec. 13 (1988 pocket pt. p. 48). Also see 27 C.J.S., District and Prosecuting Attorneys Sec. 28(2a), pp. 710-712, 1988 pocket pt. p. 196.

The Court of Appeals for the Second Circuit has determined in Sassower v. Sheriff of Westchester County, 824 F.2d 184, 191 (2nd Cir.1987), that Young v. United States, ex rel Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), the case relied on by our Court of Appeals panel in deciding this issue, is not applicable to state criminal contempt proceedings because it was decided under the U.S. Supreme Court's supervisory authority over federal courts, and not as a federal constitutional ruling. Decisions of the U.S. Supreme Court based on its supervisory authority over federal courts are not binding on the states. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). A majority of the U.S. Supreme Court in Young, supra, declined to adopt the concurring opinion of Justice Blackmun which found a due process clause violation, but rather, the Court held that, "We rely today on that (supervisory) authority to hold that counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a violation of that order." Young, at 481 U.S. at 808, 107 S.Ct. at 2137, 95 L.Ed.2d 759.

It is our opinion that Young does not require a reversal of Hubbard's conviction. Unlike Young, supra, the Commonwealth Attorney's office maintained control over the prosecution of the case. It should be noted that the ethical conduct of any private counsel should be measured by the same standard as applied to the Commonwealth Attorney. Private counsel who undertake the duties of prosecution may not become involved in any civil matter related to the criminal prosecution. DR 9-101(B).

K.R.S. 532.055(4) does not violate the due process clause of the Fourteenth Amendment of the U.S. Constitution by authorizing the trial judge to impose a sentence in excess of the minimum sentence prescribed by statute if the jury fails to agree on a sentence.

In this case, the jury made all factual findings necessary to determine the applicable sentencing statute and range of sentence, reckless homicide, Class D Felony, K.R.S. 507.050 and K.R.S. 532.060. Once the jury found Hubbard guilty of reckless homicide, no further findings were necessary. The only decision remaining was that of fixing a sentence at one to five years.

The Court of Appeals reliance upon Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980) is misplaced because the Oklahoma statute required the jury to fix the punishment in the first instance. The trial judge in Hicks, supra, acted with no statutory authority in fixing the initial sentence. We have similarly held in Wilson v. Commonwealth, Ky., 765 S.W.2d 22 (1989), that the criminal defendant has a statutory right to have his sentence set by the jury. In Wilson, we did not need to address subsection 4 of K.R.S. 532.055. However, this Court in Commonwealth v. Reneer, supra, under the principles of comity, has approved of the limited circumstances that K.R.S. 532.055(4) encroaches upon the defendant's right to jury sentencing under RCr 9.84.

Here, the action of the trial judge in determining sentence without a sentencing verdict from the jury was not arbitrary because it was authorized by statute. The action of the trial judge was the result of the state statute applicable to all felony cases, except death penalty cases. This case, unlike Hicks, supra, was not irrationally singled out or irrationally treated differently than any other felony case. The Commonwealth has a legitimate state interest in avoiding the retrial of criminal defendants solely for the purpose of sentencing. Cf. Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906 at 2915-2916, 97 L.Ed.2d 336 (1987).

In this case, the trial judge correctly refused to consider the statements by individual jurors regarding votes for a particular sentence during the deliberations of the jury. The verdict of the jury at the sentencing phase was in effect a failure to reach agreement on sentencing. In such a situation, the statute clearly authorizes the trial judge to act. K.R.S. 532.055(4) does not violate Hubbard's right to due process under the U.S. Constitution and the U.S. Constitution does not prohibit judicial sentencing when the jury fails to agree on a sentence.

The judgment of conviction is affirmed and the decision of the Court of Appeals is reversed.

COMBS, GANT, LAMBERT and VANCE, JJ., concur.

LEIBSON, J., dissents by separate opinion in which STEPHENS, C.J., joins.

LEIBSON, Justice, dissenting.

Respectfully, I dissent.

The flaw in the Majority Opinion is that it states the issues before us too narrowly. It restricts the problems of private prosecutor and judge sentencing to whether the procedures utilized violate the "due process" clause in the Federal Constitution. It omits the broader question, which is, what is our duty and responsibility under the "Rule-Making Power" entrusted to us under Section 116 of our Kentucky Constitution?

If our only concern is to narrow the issues to what is essential to affirm a criminal conviction, I would agree there is no United States Supreme Court majority decision prohibiting on "due process" grounds, where state law so permits, either the use of a private prosecutor or judge sentencing. As stated in the Majority Opinion, Young v. United States, ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), utilized the supervisory authority of the United States Supreme Court to strike down the use of the victim's privately employed attorney as a public prosecutor. Only the Concurring Opinion by Justice Blackmun speaks to "a failing more fundamental than that relied upon by the Court," i.e., lack of "due process" in this procedure. 481 U.S. at 814-815, 107 S.Ct. at 2141, 95 L.Ed.2d at 763. And, as our Majority Opinion states, Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), does not establish a "due process" right, per se, to jury sentence. Hicks "held only that where state law creates for the defendant a liberty interest in having the jury make particular findings, the Due Process Clause implies that appellate findings do not suffice to protect that entitlement." Cabana v. Bullock, 474 U.S. 376, 387-388 n. 4, 106 S.Ct. 689, 697 n. 4, 88 L.Ed.2d 704, 717 n. 4 (1986).

Thus, if our only concern is whether Hubbard's conviction can squeeze by the standards imposed by the Due Process Clause as thus far interpreted by the United States Supreme Court, we need go no further. But this approach abdicates the responsibility entrusted to us under the Kentucky Constitution to provide and administer appropriate "rules of practice and procedure for the Court of Justice," and to supervise the practice of law in this Commonwealth. Ky. Const., Section 116.

It is true that Kentucky has a long history of permitting private counsel to participate in criminal prosecution. This is a history founded upon the circumstances of a different age. The Court of Appeals' Opinion, which we have reversed, takes the view that "[p]rivate prosecutors are untenable relics of the past," and I agree. They have become an anachronism with the reform of the prosecutorial function embodied by the "Unified...