Derry v. Com., No. 2006-SC-000181-DG.

• Citation: 274 S.W.3d 439
• Decision Date: 18 December 2008
• Docket Number: No. 2006-SC-000181-DG.
• Parties: Matthew DERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

274 S.W.3d 439

Matthew DERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000181-DG.

Supreme Court of Kentucky.

December 18, 2008.

Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Matthew Derry, challenged his conviction on the grounds that his conviction in Metcalf County, after a mistrial had been declared on the same charges in the middle of a previous trial in an adjacent county for lack of venue, violated the constitutional prohibition on double jeopardy. The Court of Appeals affirmed his conviction. Because the mistrial was the result of Appellant's own motion, the Court of Appeals ruled correctly that there was no double jeopardy violation.

I. Background

Appellant, Matthew Derry, was charged with Rape in the First Degree, Sodomy in the First Degree and Sexual Abuse in the First Degree in an indictment filed in Barren Circuit Court. The case proceeded to trial on March 5, 2003 in Barren County. The jury was empanelled and sworn, and testimony was taken from three witnesses. At some point, the Commonwealth was put on notice that the house where the crime occurred actually sat in Metcalfe County. On recess, the parties and the trial court judge, according to his later in-court statements, "checked with the Sheriff, ... checked with the Property Valuation Administrator, and ... looked at the maps," and concluded that while part of the real estate was in Barren County, the house was in fact in Metcalfe County. After explaining this to the jury, the trial court then asked, "So, is there a motion to dismiss the indictment?", to which the defense attorney replied, "Yes, your honor." The trial court then specifically granted the motion to dismiss the indictment on the record.

Later that day, the trial court entered an order declaring a mistrial and dismissing the indictment without prejudice. In his comments to the jury, the judge had said that the mistake about where the events occurred "will require that I dismiss this case without prejudice" and that the Commonwealth could "reindict if they choose to proceed in Metcalfe County," and held that "Barren Circuit Court has no venue in this matter."

The Commonwealth did choose to indict the Appellant in Metcalfe County. The Appellant objected to the indictment on the ground of double jeopardy, claiming that when the trial court dismissed the indictment in Barren County, it was tantamount to a directed verdict since jeopardy had attached and the Commonwealth was unable to prove its case in regard to venue. The trial court overruled the motion on the basis that the dismissal had been a mistrial due to "manifest necessity." Appellant subsequently entered a conditional Alford plea to one count of Sexual Abuse in the First Degree, and was sentenced to two years, a $1000 fine, and three years of conditional discharge. He was required to register as a sexual offender and was ordered to sexual offender assessment and treatment.

The Court of Appeals held that double jeopardy did not bar Appellant's subsequent prosecution in Metcalfe County and affirmed his conviction. This Court granted discretionary review.

II. Analysis

Appellant claims that he was entitled to a dismissal of the Metcalfe County indictment because jeopardy had attached during the trial of the previous indictment in Barren County. Specifically, he argues that there was no manifest necessity for the trial court's mistrial because the trial could have continued in Barren County He also argues that he actually moved for a dismissal, rather than a mistrial, and the trial court granted the dismissal on the grounds that an element—venue—could not be proven, thus making the trial court's ruling "the functional equivalent of a directed verdict...."

A. Venue

Appellant is correct to the extent that he argues that the trial could have proceeded in Barren County after discovery that the crime actually occurred in Metcalf County. Venue is often tied to the concept of "vicinage," which refers to the area surrounding the place of commission of an offense. Spencer v. Commonwealth, 194 Ky. 699, 240 S.W. 750, 752 (1922). The Kentucky Constitution, at section 11, provides that an accused in a criminal case "shall have a speedy public trial by an impartial jury of the vicinage...." Just after, the language refers to venue, by allowing the General Assembly to provide by law how both the Commonwealth and the defendant may obtain a change of venue to the most convenient county in which a fair trial can be obtained. Possibly because of this proximity, venue and vicinage have sometimes been regarded as synonymous, though they are actually two distinct concepts. See Woosley v. Commonwealth, 293 S.W.2d 625, 626 (Ky.1956).

Neither vicinage nor venue is inviolable. A trial is not made unconstitutional because all members of the jury were not from the vicinage. Baxter v. Commonwealth, 292 Ky. 204, 166 S.W.2d 24, 29 (1942). Nor is a trial unconstitutional because venue must be changed in order to get a fair trial, as the plain language of the Constitution provides. Shipp v. Commonwealth, 124 Ky. 643, 99 S.W. 945, 948 (1907). The vicinage language is geared more toward allowing jurors to have familiarity with the location of a crime scene than it is to dictate place of trial. Venue, on the other hand, is a statutory enactment establishing where a case must be tried. Although there is some confusion on this, current law does not deem venue to be jurisdictional. See Commonwealth v. Cheeks, 698 S.W.2d 832, 835 (Ky.1985); Bedell v. Commonwealth, 870 S.W.2d 779, 781 (Ky.1993). Though the older versions of the venue statutes expressly stated that the concept was jurisdictional, the modern statutes do not. Compare Ky. Stat. § 1143-1147 (1936) (section titled "Jurisdiction of the Courts" and using the word "jurisdiction" instead of "venue"), with KRS 452.510-452.650 (enacted in 1962 and using only the word "venue").

However, Kentucky statutory law and case law have continued to accord a special status to venue. In criminal matters, KRS 452.510 requires, unless otherwise provided by law, that venue of criminal prosecutions be in the county or city in which the offense was committed. This incarnation of the statute was drafted in 1962, but follows older versions. This notion of venue has long been the law. See Castle v. Commonwealth, 200 Ky. 577, 255 S.W. 151 (1923) (holding that prosecutions must be confined to offenses committed within the county, and the indictment must describe the offense, time and place of commission).

Much of the confusion about venue and jurisdiction comes from the evolution of our statutory schema. Prior to 1962, venue was a jurisdictional fact because the statutes of the time said so, and it had frequently been treated as such. As Commissioner Stanley wrote,

The Bills of Rights of the Constitution of Kentucky (Section 11), and of the Federal Constitution (Sixth Amendment) declare that a person convicted of a crime shall be tried by a jury of the district or vicinage wherein the crime was committed, except as provision for a change of venue may be made. Section 1145, Kentucky Statutes, declares that all offenses shall be tried in the courts of the county in which they were committed, except in cases otherwise provided for. Section 18 of the Criminal Code of Practice prescribes the local jurisdiction of circuit courts "shall be of offenses committed within the respective counties in which they are held."

Rounds v. Commonwealth, 282 Ky. 657, 139 S.W.2d 736, 738 (1940). But see Stewart v. Sampson, 285 Ky. 447, 148 S.W.2d 278, 281-82 (1941) ("The term `jurisdiction' has been variously and many times erroneously applied and confused with the related question of `venue', the latter of which relates exclusively to the situs of the particular court in which-according to the practice of the forum-the action should be brought. Correctly speaking, such questions do not relate to the jurisdiction of the court over the subject matters involved but only to the particular court wherein the action is localized, notwithstanding all other courts of the same class within the sovereignty possess jurisdiction of like subject matters. Whether or not a court in which an action is brought and is pending is one of proper venue generally depends upon collateral facts with reference to the residence of litigants, and other matters localizing the action, and it is universally held that an erroneous decision of the court, in the determination of the facts required for such localizing does not render its judgment void but only erroneous and until it is set aside in some manner provided by law it remains valid in all respects."). Thus, there was little question that venue was jurisdictional at that time. This view was reaffirmed in the landmark venue case, Woosley v. Commonwealth, which stated,

Venue is a jurisdictional fact of locality charged in the indictment and put in issue by a plea of not guilty. Venue must be proved ...

293 S.W.2d at 626.

Things began to change in 1962, however, when the present set of criminal venue statutes was enacted. The new statutes no longer state that venue was jurisdictional.¹ The change led this Court's predecessor to declare, "As the Commonwealth points out, the prosecution of a charge in the circuit court of the wrong county is not a jurisdictional defect but one of venue, which can be waived." Chancellor v. Commonwealth, 438 S.W.2d 783, 784 (Ky.1969) (emphasis added). By 1985, significant changes had occurred in the constitutional and structural make-up of the courts of the Commonwealth, with the 1976 Judicial Article having made Kentucky a state with a unified court system.

In light of all these changes, this Court undertook to clarify...