Dunn v. Maze
| Decision Date | 17 March 2016 |
| Docket Number | 2015–SC–000437–MR |
| Parties | Michael A. Dunn, Appellant v. Honorable Beth Lewis Maze (Judge, Montgomery Circuit Court), Appellee and Commonwealth of Kentucky, Real Party in Interest |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Matthew McGavock Robinson, Robinson & Brandt, P.S.C., 629 Main Street, Suite B, Covington, Kentucky 41011
APPELLEE: Honorable Beth Lewis Maze, Judge, Montgomery Circuit Court, 21st Judicial Circuit, PO Box 1267, Mt. Sterling, Kentucky 40353
COUNSEL FOR REAL PARTY IN INTEREST: Andy Beshear, Attorney General, Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, 1024 Capital Center Drive, Frankfort, Kentucky 40601, Ronnie Lee Goldy, Jr., Commonwealth's Attorney, 44 West Main Street, Suite A, Mt. Sterling, Kentucky 40353
The Appellant, Michael A. Dunn, was previously prosecuted for seven identically worded counts of first-degree sodomy. He was acquitted on two of those counts, and convicted of the other five. His convictions were later vacated, and a new trial was ordered. On remand to the trial court, Dunn claimed his re-prosecution was barred by double jeopardy. The trial court denied his claim. The Court of Appeals declined to grant a writ of prohibition barring the impending retrial. A new trial on the vacated counts, however, raises a substantial risk that Dunn will be tried for crimes for which he has already been acquitted, thereby violating his double-jeopardy rights. For that reason, the order of the Court of Appeals denying Dunn's petition for a writ of prohibition is reversed.
In 2008, Dunn was charged with seven counts of first-degree sodomy with a minor. All seven counts of the indictment read identically. At trial, the minor described five instances of anal sodomy in detail, including the approximate time and circumstances surrounding the events. The minor also testified that Dunn forced him to perform oral sex twice, though there appears to have been less detail about those events. Though there was ample testimony that would have allowed the jury to distinguish between the various incidents, at least as to the anal sodomies, the jury instructions on all seven counts were worded identically. The jury found Dunn guilty of five counts (counts 1 to 4, and count 7) and not guilty of two counts (counts 5 and 6). He was sentenced to fifty years in prison.
Dunn appealed to this Court. See Dunn v. Commonwealth, 360 S.W.3d 751 (Ky.2012)
. He raised several issues but did not complain that the jury instructions failed to factually differentiate between the counts, despite clear law holding such failure to be reversible error. See Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.2009) (). The closest he came to this issue was in complaining that the trial court erred in failing to order a bill of particulars, and that he was misled about which incidents were included in the indictment and was thereby deprived of proper notice of the charges. Dunn, 360 S.W.3d at 760. This Court affirmed his convictions.
Nine months after this Court affirmed, Dunn filed a pro se motion under Criminal Rule 11.42
collaterally attacking his conviction.
He raised numerous issues, including that his trial counsel had been ineffective by failing to object to the identically worded jury instructions. The trial court denied the motion.
The Court of Appeals vacated Dunn's convictions and remanded for a new trial. The court's opinion in that case was very short, as the Commonwealth conceded both that Dunn's counsel had been ineffective, given that instructions like those used in his case are palpable error under Miller,
and that Dunn was entitled to a new trial. See Dunn v. Commonwealth, 2013–CA–000222–MR, 2014 WL 1155474, at *1 (Ky.App. Mar. 21, 2014) (unpublished opinion).
On remand, Dunn moved to dismiss the indictment, claiming that his right to a speedy trial was being violated and that retrial would violate the bar on double jeopardy. The circuit court denied his motions. As to the double-jeopardy claim, the court concluded that retrial was not barred because his convictions had been vacated for instructional errors and remanded for a new trial, with no appellate finding of insufficiency of the evidence. Interestingly, the court ordered retrial on all seven counts, even the two of which Dunn had been acquitted by the jury. Dunn moved the court to reconsider its order, but the motion was denied.
Dunn then filed a petition for a writ' of prohibition in the Court of Appeals seeking to bar his retrial. He again claimed that his right to a speedy trial and the prohibition on double jeopardy would be violated by retrial. The Court of Appeals granted the writ as to the two counts for which Dunn had been acquitted, but denied the writ otherwise. As to the other five counts, convictions for which had been vacated, the court concluded Dunn had not shown that he lacked an adequate remedy by appeal, as required for the remedy of a writ to even be available. The court did not specifically address how Dunn had an adequate remedy by appeal for his speedy-trial and double-jeopardy claims.
Dunn now appeals to this Court as a matter of right. See CR 76.36(7)(a)
(); Ky. Const. § 115 (). He has not asked this Court for intermediate relief under Civil Rule 76.36(4), though it appears that the circuit court has continued the underlying case while this appeal is pending. The Commonwealth did not cross-appeal that portion of the Court of Appeals' order barring retrial of the two counts of which Dunn was acquitted, and has indicated its assent to that part of the opinion.
Although Dunn has raised two issues, that his right to a speedy trial has been violated and that his right against double jeopardy will be violated by retrial, we address only the latter because it is dispositive of his case. Dunn's double jeopardy argument is that because he was acquitted on two of the seven identically worded counts, he may not be retried on the remaining five counts. His claim is, in essence, that because the counts were identically worded, we cannot know whether the counts to be retried are ones that have already resulted in an acquittal. Kentucky has not addressed this issue, though it has hinted that identically worded "carbon copy" jury instructions contain a double-jeopardy problem. See Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.2009)
(). Other jurisdictions, however, have consistently concluded that under such circumstances, "nothing would preclude a new jury from convicting [the defendant] for alleged incidents for which he already has been acquitted," and that would "constitute double jeopardy." State v. Heaven, 127 Wash.App. 156, 110 P.3d 835, 838 (2005).
But this is not a typical appeal where we can jump immediately to the merits of an appellant's claims. It is, instead, the appeal of a denial of a petition for a writ of prohibition. Generally speaking, cases in which a writ of prohibition or mandamus is sought proceed in two steps. Collins v. Braden, 384 S.W.3d 154, 158 (Ky.2012)
. First, the court must look at whether such an extraordinary remedy is even available, before deciding the merits of the claimed legal error. Id. Second, if the court finds that the remedy is available, it may then look at the merits of the claimed error. Id. And if the trial court has erred or is about to err, the court may issue the writ. Id. Thus, we must first examine whether the remedy is even available.
In deciding whether the remedy is available, this Court has divided writ cases into "two classes ..., one addressing claims that the lower court is proceeding without subject matter jurisdiction and one addressing claims of mere legal error." Id. at 158
. Dunn has not made a claim under the first class, and thus we address only the second.
Under the second class, a writ may be granted—that is, the remedy is available—if "there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Hoskins v. Ma ri c l e, 150 S.W.3d 1, 10 (Ky.2004)
. Of the two prerequisites for this class of writ, the first is mandatory, and thus Dunn is required to prove that he has no adequate remedy by appeal. Marcum v. Scorsone, 457 S.W.3d 710, 715 (Ky.2015).
The Court of Appeals held that Dunn had an adequate remedy by appeal, concluding that any double-jeopardy claim could be addressed by an appeal if he were again convicted. In so concluding, the Court of Appeals acted in accordance with our cases stating that double-jeopardy questions generally may be remedied by appeal, and thus whether to examine a double-jeopardy issue in a writ action is wholly discretionary. See, e.g., St. Clair v. Castlen, 381 S.W.3d 306, 309 (Ky.2012)
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