Commonwealth v. Grider

• Decision Date: 12 August 2011
• Docket Number: NO. 2009-CA-002080-MR,2009-CA-002080-MR
• Parties: COMMONWEALTH OF KENTUCKY APPELLANT v. LEON GRIDER APPELLEE
• Court: Kentucky Court of Appeals

COMMONWEALTH OF KENTUCKY APPELLANT

v.LEON GRIDER APPELLEE

NO. 2009-CA-002080-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: AUGUST 12, 2011

TO BE PUBLISHED

APPEAL FROM RUSSELL CIRCUIT COURT

HONORABLE GARY PAYNE, SPECIAL JUDGE

ACTION NO. 05-CR-00074

OPINION

REVERSING AND REMANDING

WITH DIRECTIONS

BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON, JUDGE; LAMBERT,¹ SENIOR JUDGE.

TAYLOR, CHIEF JUDGE:

The Commonwealth of Kentucky brings this appeal from an October 6, 2009, order of the Russell Circuit Court granting Leon Grider's motion to dismiss an indictment charging him with a total of fifteen counts oftrafficking in a controlled substance and bribing a witness. We reverse and remand with directions.

We begin with a short recitation of the material facts. Grider is a licensed pharmacist in Russell Springs, Kentucky, who owned three pharmacies. In connection with civil and criminal investigations against Grider, vast numbers of documents, including some 124 boxes, were seized from Grider's pharmacies during the period of 2004-2007. Grider was indicted in Russell County in 2005 on eight counts of drug-related offenses and seven counts of bribing a witness. To assist Grider with preparation of his defense, Grider sought return of the original seized documents, access to these documents, or complete copies of the seized documents. By order entered May 1, 2007, the circuit court ordered the Commonwealth to "either immediately return . . . the originals or complete and legible copies of all prescriptions and daily audit logs, . . . or, in the alternative, immediately produce those same records for inspection and copying." Thereafter, on September 9, 2009, Grider filed a motion to dismiss the indictment or in the alternative, to hold the case in abeyance. Grider maintained that the original records were neither returned to him nor were copies of same made available to him by the Commonwealth as ordered by the circuit court.

By order entered October 6, 2009, the circuit court dismissed without prejudice the indictment. As grounds thereof, the court concluded:

Although the Commonwealth has maintained that it has provided meaningful access to all of the seized records in its possession, the Commonwealth hasconceded that it will not return the originals of the seized documents to defendant Leon Grider, Eric Grider or Grider Drug Stores. Indeed, the Commonwealth has informed this Court, through Tad Thomas, Assistant Deputy Attorney General, who was present at the September 14, 2009[,] hearing, that should this Court order the return of the original seized documents to defendant Leon Grider, the Commonwealth will immediately file a petition for a writ of prohibition in the Kentucky Court of Appeals to prevent the return of the defendant's own records to him.

Each of the first eight (8) counts of the indictment involve allegations of trafficking in controlled substances where the prosecution will no doubt contend that the recipients of those controlled substances did not have prescriptions for the drugs they allegedly obtained from defendant Leon Grider. If indeed those confidential informants had prescriptions for the drugs in question, those prescriptions would most likely be in the records seized by the Commonwealth by administrative subpoena and criminal law search warrant.

The defense will need all of their original records returned to them to ensure the validity of their own audits of the inventories of the three Grider Drug Stores to determine whether any controlled substances are missing, which would be necessary regardless of whether any evidence by the Commonwealth indicates that any of the Grider Drug Stores had shortages of the drugs in question.

The seven (7) counts of bribing a witness are premised on Western Union records showing that defendant Leon Grider sent money to two (2) of the confidential informants, Leah Wilson and Phillip Grider. Due to the extensive amount of records seized from the three drug stores, there may be records in the possession of the Commonwealth that apply or are relevant to the seven (7) counts of bribing a witness.

Although the Commonwealth has maintained that it has provided meaningful access to all of the seized records in its possession, the Commonwealth has conceded that in the past it has maintained that defendant Grider would have to pay for the costs of copying all of the records seized from the three Grider Drug Stores. Additionally, the original records to be copied would have to remain in the custody and control of the Commonwealth while being copied. The Commonwealth conceded that the seized records are so numerous that it would require more than a month for the Commonwealth using its own resources to copy all of these records.

There can be no doubt that under those conditions the economic burden on defendant Grider to pay a copying company or others to conduct such an extensive copying process would be great. This expense would be incurred solely to allow defendant Leon Grider to obtain copies of his own business records including items such as prescriptions and audit logs. The Commonwealth at the September 14, 2009[,] hearing did acknowledge that if ordered by this Court to provide copies at government expense, it would comply.

The Commonwealth has represented that it would provide copies of whatever documents the defense specifically requested and has on occasion done so, but the defense has contended that it should be able to have meaningful access to its own records to search through them to determine whether there is anything in these seized records that would be beneficial to the defense.

Even if the Commonwealth provided copies of the seized records, the defense would still have to review all of the original records that remained in the possession of the Commonwealth to ensure that the defense received copies of all of the original records and that no copying mistakes had occurred, such as an unintentional failure to copy both sides of a document.

The Commonwealth contends that it has the right to maintain the original records because there are ongoingcriminal investigations or pending cases involving the records in question, even though these records have been in the Commonwealth's possession for an extended period of time. As a result, the Commonwealth has not offered this Court or defendant Leon Grider a date certain when the original records will be returned to defendant Leon Grider or Grider Drug Stores.

. . . .

The defendant, Leon Grider, is not asking for the Commonwealth of Kentucky to produce evidence beneficial to the defense that the Commonwealth has obtained through its own investigation. Brady v. Maryland. 373 U.S. 83 (1963); RCr 7.24. Here the Commonwealth of Kentucky has deprived Leon Grider of all of the pertinent pharmacy records over a prolonged period of time and refuses to provide Leon Grider with any meaningful access to those records.

. . . .

In defendant Leon Grider's case, the Commonwealth has seized all of the business records in defendant Grider's possession and for years has retained those records denying defendant Grider meaningful access to his own records. And when Eric Grider invoked compulsory process to obtain the return of his own records, the Commonwealth still refused to turn those records over and instituted an original action in the Kentucky Court of Appeals to resist compliance with the order of the Franklin Circuit Court. The Commonwealth has informed this Court that it would take the same action if this Court ordered the original records returned to defendant Leon Grider.

Defendant Leon Grider should not have to specify which records he wants back from the Commonwealth and certainly not why he wants those records. Defendant Leon Grider and his counsel should have the original records returned, particularly after the Commonwealth has had these records for virtually four years for some records and for virtually two years as toother records. The Commonwealth has had ample time to review the seized records to determine what, if anything, needs to be copied for use in ongoing investigations or for pending cases.

. . . .

Under Kentucky evidence law there is no compelling need for the Commonwealth to maintain the original records in question, particularly when the Commonwealth has had all of these records for nearly two years and some of these records for almost four years.

In view of the contents of the seized records as indicated by both the administrative subpoenas and the inventory of the one hundred and twenty[-]four (124) boxes of records seized on September 6, 2007, the Commonwealth's retention of these original business records of three separate drug stores must have had and must continue to have adverse economic consequences on defendant Leon Grider and his drug stores.

Requiring the defense to request opportunities to review the contents of each of the one hundred and twenty-four (124) individual boxes at the Office of the Attorney General in Frankfort, Kentucky on the Commonwealth's schedule is not meaningful access to the seized records. Under the conditions imposed by the Commonwealth, the defense representatives were required to expend time traveling to and from Frankfort each time they wished to examine some of the one hundred and twenty-four (124) boxes. If the defense desired to copy the contents of the boxes, that too required repeated trips to and from Frankfort on the Commonwealth's schedule and using the Commonwealth's copying machine, which entailed paying the Commonwealth for the cost of reproduction. Faced with the large number of seized documents, not just the one hundred and twenty-four (124) boxes but also the five (5) years of prescriptions and audit logs from the three (3) drug stores, the Commonwealth's procedure for inspection andcopying these records did not provide the defense with meaningful access to these seized records.

Even if the Commonwealth were ordered at this juncture to copy these records for the defense, the process

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