Commonwealth v. Litteral, No. 2006-CA-002034-MR (Ky. App. 7/25/2008)

• Decision Date: 25 July 2008
• Docket Number: No. 2006-CA-002034-MR.,2006-CA-002034-MR.
• Parties: COMMONWEALTH of Kentucky, Appellant v. Robert D. LITTERAL, Appellee.
• Court: Kentucky Court of Appeals

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COMMONWEALTH of Kentucky, Appellant v. Robert D. LITTERAL, Appellee.

No. 2006-CA-002034-MR.

Court of Appeals of Kentucky.

July 25, 2008.

Appeal from Fayette Circuit Court, Honorable Gary D. Payne, Judge, Action No. 05-CR-00905.

Gregory D. Stumbo, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, Kentucky, Briefs for Appellant.

R. Burl McCoy, Lexington, Kentucky, Brief for Appellee.

Before: STUMBO and TAYLOR, Judges; HENRY,¹ Senior Judge.

OPINION

STUMBO, Judge.

This appeal arises from an Opinion and Order finding that the Commonwealth entered into an immunity agreement with Robert Litteral (Appellee) which required dismissal of criminal charges against Mr. Litteral. The Commonwealth appeals and argues that a new hearing is called for due to errors committed by the lower court. Specifically it alleges that the trial court erred by allocating the burden of proof to the Commonwealth, by employing a subjective standard in determining the existence of the agreement as opposed to a reasonable person standard, in not hearing from the prosecuting attorney, and by dismissing the case against Mr. Litteral.

After reviewing the facts of this case and the law, we find that no new hearing is required. We do find however that the trial court's Opinion and Order was unclear in respect to the burden of proof and standard of review (subjective or objective) employed in reaching its decision. For this reason, we remand the case to the lower court for action in accordance with this opinion.

The facts of this case are irrelevant because the agreement itself is not being contested, only the lower court's actions during the hearing. Kentucky law is unclear regarding the burden of proof for a defendant in establishing the existence of an immunity agreement. It appears that most jurisdictions utilize the standard set forth in Zani v. State, 701 S.W.2d 249 (Tex. Cr. App. 1985), which states that "the initial burden is on the defendant to show the existence of an agreement by a preponderance of the evidence . . . the burden then shifts to the State to show beyond a reasonable doubt why the agreement is invalid or why prosecution should be allowed despite the agreement." Id. at 254. We believe that the burden of proof is upon the defendant to prove the existence of the agreement. The Commonwealth argues that here the lower court allocated the burden to it by requiring the Commonwealth to present its evidence first. While the party who bears the burden of proof normally presents its evidence first, this is not always the case. See CR 43.02(3); RCr 9.42; and Jenkins v. Louisville and Jefferson County Planning and Zoning Commission, 357 S.W.2d 846, 847-848 (Ky. 1962) (Where the normal order of the introduction of evidence was changed by the trial judge in order for him to have a better understanding of the case).

The Commonwealth argues that this shift in the order of the presentation of evidence demonstrates that the trial court believed the Commonwealth had the burden of proving no agreement existed. We disagree. In the Opinion and Order the trial court states: "This Court finds that the Defendant believed he had an agreement to produce evidence in exchange for immunity. . . ." This finding indicates that the trial court properly understood that the burden of proof lay with Mr. Litteral to prove the existence of an immunity agreement. By finding Mr. Litteral believed he had an agreement, the trial court is stating that he proved the existence of the agreement. We do not find that the unusual order in which the evidence was presented at the hearing constitutes a shift in the burden of proving the agreement's existence. We do, however, find that it is not apparent from the face of the Opinion and Order what burden of proof the trial court applied to Mr. Litteral's evidence. For this reason, we remand the case to the lower court for it to apply the Zani standard to the evidence presented at the hearing.

The Commonwealth's second argument is based on the court's finding that Mr. Litteral "believed he had an agreement. . . ." The Commonwealth asserts that the court used the subjective state of mind standard in its ruling rather than the objective, reasonable person standard. We believe that the test set forth in Roberts v. Commonwealth, 896 S.W.2d 4, 6 (Ky. 1995),...