Grasch v. Commonwealth
| Decision Date | 17 December 2015 |
| Docket Number | 2014-SC-000075-MR |
| Parties | NORMAN W. GRASCH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
NOS. 10-CR-01342 AND ll-CR-01986
MEMORANDUM OPINION OF THE COURTNorman Grasch appeals from his conviction for manufacturing methamphetamine and for being a persistent felony offender in the second degree. For the following reasons, we affirm.
Officer Satterly, responding to a complaint about a barking dog, discovered Grasch sleeping on a bench in his aunt's backyard. While he was attempting to awaken Grasch, Officer Satterly noticed a coffee grinder and a container of Coleman fuel in a backpack that was on the bench near Grasch. After waking Grasch, Officer Satterly patted him down and found 30 pseudoephedrine pills, which, in conjunction with the coffee grinder and fuel, led him to believe Grasch had a portable methamphetamine lab. Officer Satterly arrested Grasch and charged him with manufacturingmethamphetamine, and Grasch was subsequently charged with being a persistent felony offender in the second degree.
This case was assigned to Judge Perry, who presided over the majority of the pre-trial proceedings; however, because Judge Perry was scheduled to be out of town the week of trial, Judge Morris presided over the trial. At one of the pre-trial proceedings, the Commonwealth's attorney indicated that he had been advised by Grasch's counsel that she had a transcript of a previously held suppression hearing.1 The Commonwealth's attorney moved the court to order Grasch's counsel to provide him with a copy of the transcript so that he could verify the transcript's accuracy in the event Grasch used it at trial. Grasch's counsel objected, noting that the Commonwealth could obtain a copy of the video recording and make its own transcript to use for comparison purposes at trial. Furthermore, Grasch's counsel noted that she was not going to introduce the transcript into evidence and would not know whether she would even need to use it until the witnesses from the suppression hearing testified. Judge Perry found that the transcript was attorney work product and that counsel had the obligation to use it in good faith, which he anticipated counsel for Grasch would do. Therefore, he did not order Grasch's counsel to give a copy of the transcript to the Commonwealth at that time. However, Judge Perry recognized the accuracy of the transcript might become an issue at trial, and he stated that Judge Morris could address the Commonwealth's motion then.
Following jury selection, the Commonwealth moved Judge Morris to order Grasch's counsel to provide a copy of the suppression hearing transcript. Counsel for Grasch argued that Judge Perry had already ruled against the Commonwealth on that issue. The Commonwealth argued that Judge Perry had stated the decision would be made at trial and, since trial had begun, it was renewing its request. Judge Morris stated that he would review the video of the hearing and determine from that review what Judge Perry had actually ruled.
The next day, Judge Morris stated that he had reviewed the video and concluded that Judge Perry had not ruled on the Commonwealth's initial motion, but had indicated the decision would be Judge Morris's to make. Judge Morris then stated that, although the transcript might be work product, it was not privileged, and he ordered Grasch's counsel to provide a copy to the Commonwealth. In support of his decision, Judge Morris noted that providing the transcript prior to the witness's testimony would make the trial run more smoothly. Neither party introduced the transcript into evidence when examining the two witnesses who testified at that hearing. Grasch's counsel did not use the transcript; however, the Commonwealth did use the transcript to impeach Grasch's aunt when she testified at trial.2
Grasch argues on appeal that, because Judge Perry had previously ruled on the Commonwealth's motion to compel production of the suppression hearing transcript, Judge Morris's subsequent ruling was contradictory and erroneous. Grasch also argues that Judge Morris's order requiring Grasch to produce that transcript violated the attorney work product protection afforded by Kentucky Rule of Criminal Procedure (RCr) 7.24. We set forth additional background information as necessary below.
We review a trial court's rulings regarding discovery issues for abuse of discretion. See Commonwealth v. Nichols, 280 S.W.3d 39, 43 (Ky. 2009).
Grasch appears to be making three arguments: (1) Judge Morris incorrectly interpreted Judge Perry's ruling and impermissibly altered that ruling; (2) the Commonwealth impermissibly and unethically continued to raise the issue of the transcript after Judge Perry had ruled on it; and (3) the transcript was protected attorney work-product and not subject to discovery by the Commonwealth.
Initially, we note that a trial court "retains broad discretion to revisit its interlocutory rulings at any time prior to the entry of a final judgment[.]" Moore v. Com., 357 S.W.3d 470, 496-97 (Ky. 2011), as modified on denial of reh'g (Nov. 23, 2011). That discretion belongs to the trial court, not to a particular trial judge. Judge Perry would have been entitled to exercise his discretion toalter his pre-trial ruling at trial and Judge Morris inherited that same discretion when he presided over trial in Judge Perry's place. While it is certainly a good practice for judges to refrain from making inconsistent rulings, the fact that Judge Perry may have ruled one way and Judge Morris another is not, in and of itself, an abuse of discretion.
Furthermore, whether Judge Morris's ruling contradicted Judge Perry's is not as clear cut as Grasch argues. As noted above, at a pre-trial hearing, Judge Perry stated that he would not order Grasch to give a copy of the transcript to the Commonwealth at that time. However, he stated that, if the accuracy of the transcript became an issue, either he or Judge Morris could revisit his ruling.
Grasch now argues Judge Morris mistakenly interpreted Judge Perry's ruling and should not have re-visited Judge Perry's order. After reviewing the record, it is clear to us that Judge Perry's ruling was open to interpretation. The interpretation Grasch espouses, that Judge Perry's ruling would not be revisited until Grasch attempted to use the transcript to impeach the Commonwealth's witness, is plausible. However, we cannot say that Judge Morris's interpretation, that Judge Perry left the issue undecided, is completely implausible. Judge Perry stated that, at trial, either he or Judge Morris would decide the issue if the accuracy of the transcript was an issue. The Commonwealth argued before Judge Morris that the only reason it wanted the transcript was to check its accuracy prior to its use by Grasch. Thus, the accuracy of the transcript was an issue at trial, albeit the same issue raised bythe Commonwealth prior to trial. Therefore, we cannot categorically say that Judge Morris's interpretation of Judge Perry's order was erroneous, or that he abused his discretion by making his ruling.
In support of his argument that the Commonwealth impermissibly, unethically, and repeatedly raised the transcript issue, Grasch cites to Moore v. Commonwealth, 357 S.W.3d 470 (Ky. 2011) and Kentucky Bar Ass'n v. Blum, 404 S.W.3d 841 (Ky. 2013). However, the fact that the Commonwealth raised this issue twice is not the repetitious filing or raising of motions that we condemned in Moore and Blum.
In Moore, the court ordered the Commonwealth to perform DNA testing on several items, including pants and a pair of shoes. Following the court's order, the Commonwealth filed a motion to reconsider, advising the court that the pants and shoes had been lost. The Commonwealth then made a second motion asking the court to reconsider its order to test the pants and shoes. The court declared the order moot and therefore denied the motions to reconsider. The Commonwealth argued on appeal that the court erred by denying its motions to reconsider. This Court, noting that the Commonwealth had not been aggrieved by the trial court's denial of the motions to reconsider, stated that:
Such repetitious motions are improper. While it is true that under CR 54.02 the trial court retains broad discretion to revisit its interlocutory rulings at any time prior to the entry of a final judgment, that discretion is properly invoked only when there is abona fide reason for it, i.e., a reason the court has not already considered. See Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99 (Ky. App. 2011); Bank of Danville v. Farmers National Bank of Danville, 602 S.W.2d 160 (Ky. 1980). Otherwise a motion to reconsider amounts to no more than badgering the court, a practice that could well be deemed a violation of Civil Rule 11. The bench and bar are admonished to take notice that this...
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