Commonwealth v. Carman, 2013–SC–000684–CL

• Decision Date: 19 February 2015
• Docket Number: 2013–SC–000684–CL
• Citation: 455 S.W.3d 916
• Parties: Commonwealth of Kentucky, Movant v. Shannandoah Carman and Kenneth Westbay, Respondents
• Court: United States State Supreme Court — District of Kentucky

455 S.W.3d 916

Commonwealth of Kentucky, Movant

v.Shannandoah Carman and Kenneth Westbay, Respondents

2013–SC–000684–CL

Supreme Court of Kentucky.

RENDERED: FEBRUARY 19, 2015

Counsel for Movant: Michael J. O'Connell, Jefferson County Attorney, David A. Sexton, Assistant Jefferson County Attorney.

Counsel for Respondent Shannandoah Carman: James R. Moore.

Counsel for Respondent Kenneth Westbay: Michael Romano Mazzoli, Louisville, Scott James Barton.

Opinion

OPINION OF THE COURT BY JUSTICE ABRAMSON

Under Section 115 of the Kentucky Constitution and Kentucky Rule of Civil Procedure (CR) 76.37(10), the Commonwealth, by and through the Jefferson County Attorney, moved this Court to certify the law on the following question:

In light of this Court's decision in Commonwealth v. Wilson, 384 S.W.3d 113 (Ky.2012), does Kentucky law authorize ex parte communications to change the conditions of release after the initial fixing of bail with no notice for the Commonwealth to be heard?

The certified question refers to Commonwealth v. Wilson, a case arising from a previous certification of law request by the Jefferson County Attorney. In that case, a Jefferson District Court judge issued a warrant for Wilson's arrest, and shortly thereafter Wilson's attorney made an ex parte request of another District Court judge to set aside the warrant and issue a summons instead. Without notice to the Commonwealth, the second judge granted Wilson's request. The County Attorney represented that such ex parte motions by defense counsel to vacate or to set aside arrest warrants were business as usual in Jefferson District Court. We answered the certified question in Wilson as to the legality of that practice with an emphatic condemnation: “We need go no further to deplore this practice than Supreme Court Rule 4.300, Canon 3(B)(7), which prohibits ex parte contacts in these circumstances.” In this case, the County Attorney alleges a similar, recurring violation of the Supreme Court Rules, this one involving the issue of ex parte contacts regarding bail. Upon careful consideration of the rule applicable to certification of questions of law by the Commonwealth, we conclude that we improvidently granted the certification request in this case. However, given the importance of the issue presented, we elect to employ our discretionary authority under Section 110 of the Kentucky Constitution to issue a general writ of prohibition “to exercise control of the Court of Justice.” Simply put, judges are prohibited from engaging in ex parte communications to change the conditions of a defendant's release after the initial fixing of bail, such practice being another clear violation of SCR 4.300, Canon 3(B)(7).

FACTS

At about 1:00 p.m. on July 24, 2013, Louisville Metro Police Department narcotics detectives executed a search warrant for a residence in the 2500 block of Bank Street in Louisville. The search revealed illegal drugs—methamphetamine and marijuana—and the paraphernalia of drug use and trafficking—pipes for smoking the drugs along with digital scales, torn baggies, a large sum of cash, and a 9 mm handgun. The officers arrested the three individuals present, brothers Kenneth Westbay and Shannandoah Carman, and their friend Robert Jecker, and charged the three men with trafficking in a controlled substance, possession of marijuana, and possession of drug paraphernalia. Westbay and Jecker were further charged with being convicted felons in possession of a hand gun.

Although the record is silent as to the details of what happened next, there is no dispute that the three suspects were booked routinely into the Jefferson County Jail and that at some point they were interviewed by Pretrial Services employees, who prepared reports on each of them including assessments of the risks each posed if released from custody. Nor is there any dispute that the suspects were not arraigned that day. Instead, their cases were referred to the “duty” judge, for that day,¹ Judge David Bowles. Judge Bowles ordered that the men were not to be released without the posting of a bail bond—$5,000 full-cash each for Westbay and Jecker, and $1,000 full-cash for Carman. Arraignments were scheduled for 9:00 a.m. the next day.

Early the next day, however, a different District Judge, Judge Donald Armstrong,² apparently phoned the Pretrial Services office and ordered that Westbay and Carman be released on their own recognizance.³ The orders of release, on which Judge Armstrong's name is noted, also postponed the two suspects' arraignments for four days until July 29, 2013.

The record does not indicate what prompted Judge Armstrong's intervention,⁴ but the Commonwealth asserts that phone conversations recorded at the jail between Carmen and his mother include comments by the mother to the effect that someone “pulled strings” on Carman's behalf so as to bring about his release. Armed with this information, at the July 29, 2013 joint arraignment of Westbay and Carman, the Commonwealth maintained that Judge Armstrong's release of the two men was improper. The Commonwealth argued the releases were not authorized, because Judge Armstrong was not one of the duty judges, nor were they procedurally valid, because the Commonwealth had not been notified and thus had no opportunity to be heard on the matter. Accordingly, the Commonwealth moved to have Judge Armstrong's order set aside and Judge Bowles's original bond order for the two men reinstated.

The judge to whom the case was assigned, Judge Stephanie Burke, explained that the ex parte modification of bond prior to arraignment was not uncommon and declined to grant the Commonwealth's motion. Judge Burke commented that at least some members of the Jefferson District Court bench considered ex parte contacts prior to arraignment permissible, interpreting the “initial fixing of bond,” SCR 4.300, Canon 3(B)(7)(a) as not occurring until arraignment. Concerned, however, that the taped jail telephone conversations suggested an impropriety, the court did agree to take up the matter again a few days later, when the Commonwealth would be allowed the opportunity to present its evidence.

The case was reconvened on August 5, 2013, but at that point newly retained counsel for Westbay requested a continuance, and the Commonwealth agreed that a continuance would be appropriate. The trial court concurred and rescheduled the matter for August 29, 2013. In the course of doing so, however, it indicated that upon further reflection it did not consider itself authorized to pass upon either the propriety or the correctness of a coordinate judge's order. If the Commonwealth wished to pursue its disagreement with Judge Armstrong's actions in the case, the court advised, it would need to bring its claims in a forum authorized to hear them. Declaring itself at a loss as to what alternative forum might exist for discovering who had contacted Judge Armstrong and how the challenged release orders had been issued, the Commonwealth asked for and was granted an opportunity to brief the question of the trial court's authority to reinstate the original bail bonds.

Notwithstanding the Commonwealth's brief, Judge Burke's position had not altered by August 29, 2013, when Carman next appeared before the court and agreed to forego a probable cause hearing and to waive his case to the grand jury.⁵ The court again denied the Commonwealth's motion to reinstate the cash bonds originally set by Judge Bowles, and, emphasizing that this was not the appropriate forum to address the propriety of Judge Armstrong's order setting aside those bonds, it refused the Commonwealth's request to have an evidentiary hearing addressing Judge Armstrong's involvement in the case. While acknowledging that under Bolton v. Irvin, 373 S.W.3d 432 (Ky.2012),⁶ it had authority, at the probable-cause-hearing stage, to consider the bond issue anew, the trial court nevertheless denied the Commonwealth's request that Carman's release be conditioned on his posting a $1,000 full-cash bond. The court noted that the Pretrial Services employee had initially recommended Carman's recognizance release, and he had in fact shown up for every hearing. The case having ended in the district court, the Commonwealth brought its concerns regarding the ex parte bail order to us by way of the certified question noted above.

This Court initially entered an order on November 21, 2013, denying the Commonwealth's request for certification of the law regarding the ex parte amendment of conditions of release. The Commonwealth then filed a motion for reconsideration pursuant to CR 76.38, requesting that we reassess our prior denial of its certification request. That motion was granted, and we allowed certification of the question of law, received briefs from the parties and held oral arguments. Having carefully considered the facts of this matter, the language of our civil rules and prior opinions of this Court, we conclude that our initial decision denying the Commonwealth's request to certify the law was the correct one.

ANALYSIS

I. Although the Certification of Law is Improper, this Court may Issue a Writ Under Section 110 of the Kentucky Constitution.

Section 115 ⁷ of the Kentucky Constitution expressly prohibits the Commonwealth from appealing the acquittal of a criminal defendant, but that same provision, when read with CR 76.37, permits the Commonwealth to certify a question of law to this Court. Subsection (10) of CR 76.37, the provision of the certification rule specific to the Commonwealth, provides as follows:

A request by the Commonwealth of Kentucky pursuant to Section 115 of the Constitution of Kentucky for a certification of law shall be initiated in the Supreme Court. The request shall be initiated within thirty (30) days of a final order adverse to the Commonwealth. The Commonwealth shall initiate the certification procedure by motion requesting the Supreme Court to accept the question(s) for review. The motion shall contain the same

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