Graham v. Com.
| Decision Date | 21 February 1978 |
| Citation | 562 S.W.2d 625 |
| Parties | Timothy GRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Blake H. Page, Winchester, for appellant.
Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
Appellant, Timothy Graham, was accused by indictment in the Wolfe Circuit Court of the murder of his brother, Reed Graham. Venue was changed first to Rowan County and then to Bath County. A jury trial in the Bath Circuit Court resulted in a conviction for manslaughter. Appellant claims that he was subjected to double jeopardy and that, in any event, the prosecution's evidence failed to make out a submissible case against him. We affirm.
From the sketchy record presented, it appears that when the case was first called for trial and after the jury was selected and sworn, but before the first witness was sworn, the appellant through counsel stated to the court that he had not been arraigned. The Commonwealth thereupon moved to set aside the swearing of the jury and to continue the case. The trial judge granted the Commonwealth's motion. The swearing of the jury was set aside, the appellant was properly arraigned, and the case was reset for trial at a later date.
When the case was again called for trial, the appellant pleaded double jeopardy. The trial judge denied the plea and the trial proceeded. The jury verdict found appellant guilty and fixed his punishment at confinement for 20 years. From the final judgment entered pursuant to the verdict, this appeal is prosecuted.
The Kentucky Penal Code, which was made effective January 1, 1975, provides at KRS 505.030:
"When a prosecution is for a violation of the same statutory provision and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: . . .
(4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper;
(a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or
(b) The trial court, in the exercise of its discretion, finds that the termination is manifestly necessary." (emphasis supplied).
The official commentary to our Penal Code states:
This definition of the attachment of jeopardy is identical to that contained in the American Law Institute's Model Penal Code. See Model Penal Code section 1.09, Comment at 53, Tent. Draft No. 5, (1956). The Institute could find no compelling reason to perpetuate the distinction between jury and bench trials as to the point at which jeopardy should be deemed to attach.
Appellant appears to concede the applicability of KRS 505.030(4), but urges that the change effected by the statute violates a mandate of the Constitution of the United States. He cites Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) in support of this contention. We read Serfass as holding that because jeopardy had not attached under either of the historical rules of construction for the determination of the point of attachment when the proceedings were terminated, a subsequent trial to judgment did not violate the federal Double Jeopardy Clause. The Supreme Court has neither in Serfass nor in any other case of which we have knowledge held that the federal rules for the determination of the attachment of jeopardy are constitutionally obligatory on the states. From Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), to Serfass, the Supreme Court has recited without discussion or analysis the federal case law rules that jeopardy attaches in a jury trial when the jury is impaneled and sworn and in a nonjury trial when the first witness is sworn.
In Bretz v. Crist, 546 F.2d 1336 (1976), the federal Ninth Circuit Court of Appeals struck down a Montana statute which has the same provisions as does KRS 505.030(4). The Supreme Court granted certiorari sub nom. Crist v. Cline, --- U.S. ----, 98 S.Ct. 603, 54 L.Ed.2d 475. The Court has ordered reargument in this case on the following questions:
1. Is the rule heretofore applied in the federal courts that jeopardy attached in jury trials when the jury is sworn constitutionally mandated?
2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial state or federal,...
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Whorton v. Com.
...S.Ct. 3037, 49 L.Ed.2d 1067 (1976).10 Compare Crist v. Bretz, --- U.S. ----, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) With Graham v. Commonwealth, Ky., 562 S.W.2d 625 (1978) And Cross v. Commonwealth, 270 Ky. 537, 109 S.W.2d 1214 (1937) (when jeopardy attaches).11 This change has been advocated ......
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Derry v. Com., No. 2006-SC-000181-DG.
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