Hilbert v. Seay, No. 2008-SC-000312-OA (Ky. 8/21/2008)
| Decision Date | 21 August 2008 |
| Docket Number | No. 2008-SC-000312-OA,2008-SC-000312-OA |
| Parties | John T. HILBERT, Appellant v. Hon. John David SEAY (Judge, Nelson Circuit Court) et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Petitioner, John Hilbert, petitions this Court for a writ of prohibition or mandamus prohibiting, on double jeopardy grounds, the Nelson Circuit Court from allowing the Commonwealth to seek the death penalty against him at his retrial for the murder of Joe Stump, Jr. For the reasons set forth herein, we deny the writ of prohibition.
Petitioner was indicted on December 23, 1999, for two counts of intentional murder. The two counts in the indictment charged that, on December 18, 1999, Petitioner shot and killed Danny Elmore and Joe Stump, Jr. On November 20, 2001, after a jury trial, a Nelson County jury recommended that Hilbert's punishment for those killings be set at twenty-seven (27) years for the murder of Elmore and, upon the finding of an aggravating circumstance, set Petitioner's punishment for the murder of Stump at confinement in the penitentiary for life without the benefit of probation or parole, until he served a minimum of twenty-five (25) years.
As a matter of right, Petitioner directly appealed to the Kentucky Supreme VOL Ky. Const. § 110(2)(b). On May 19, 2005, this Court reversed Petitioners conviction, citing the failure of the trial court to grant Hilbert's request for a self defense instruction. The case was remanded to the trial court for a new trial.
The trial court set the trial date for May 12, 2008. However, in response to Hilbert's request for a stay pursuant to CR 76.36(4), the trial court granted the stay on May 2, 2008. On May 5, 2008, this Court granted Petitioner's motion to withdraw the motion for stay of the trial (which had previously been filed in this Court).
Petitioner now seeks interlocutory review of the trial court's order entered on April 24, 2008, denying Hilbert's motion to prohibit the Commonwealth from seeking the death penalty upon retrial with respect to the intentional murder of Stump.1 Petitioner asks this Court for a writ prohibiting the Commonwealth from seeking the death penalty against him for the intentional murder of Stump, based on an alleged violation of the Double Jeopardy Clause of the United States and Kentucky Constitutions. U.S. Const. amend. VII I; Ky. Const. § 13.
Specifically, Petitioner contends the Double Jeopardy Clause precludes the Commonwealth from seeking the death penalty against a defendant who successfully appealed an earlier conviction and sentence for the same offense where the jury gave meaningful consideration and effect to mitigating evidence as required by the Eighth Amendment, and decided that the balance of the aggravating and mitigating circumstances did not justify imposing a death sentence. Petitioner also argues the Double Jeopardy Clause prohibits the Commonwealth from seeking the death penalty against a defendant who successfully appealed his conviction and sentence where the only aggravating circumstance found by the jury was an aggravating circumstance that did not exist under state law.
In order for Petitioner to obtain the relief sought, he must first establish that his petition has been filed in the proper forum. At the outset, we note that, traditionally, a writ of prohibition will originate in the Court of Appeals, upon the request of such relief. However, this is not to say that the Court of Appeals is the exclusive avenue for seeking such remedy. As we recognized in Russell County, Kentucky Hosp., Dist. Health Facilities Corp. v. Ephraim McDowell Health, Inc., 152 S.W.3d 230, 235 (Ky. 2004), the Supreme Court is explicitly vested with the authority to entertain writs of prohibition under both the Kentucky Constitution and the Civil Rules. Ky. Const. § 110(2)(a) vests this Court with the authority to issue all writs necessary to aid our appellate jurisdiction, or to aid in the "complete determination of any cause," or as may otherwise be required "to exercise control of the Court of Justice." Likewise, the Civil Rules establish that an original proceeding may be brought in "an appellate court [and] may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court." CR 76.36(1) (emphasis added).
Thus
[n]one of the Civil Rules says that an original action may not be prosecuted in the Supreme Court, and the rules that do discuss original actions refer either to "an appellate" or "appropriate" court, or explicitly to the Supreme Court. Thus, even though "[a] petition seeking relief under this rule is normally filed in the Court of Appeals," we can only conclude that the Rules also allow for the prosecution of an original action in this forum.
Russell County, 152 S.W.3d at 235 (quoting Kurt A. Phillips, Jr. Kentucky Practice, Rules of Civil Procedure Annotated, Rule 76.36 cmt. 1, at 697 (5th ed. 1995) (emphasis in original). Therefore, recognizing that this Court has the authority to entertain such writs, the question becomes when is it proper for us to do so? As we have previously recognized, this is not per se a matter of jurisdiction, but rather one of discretion. See Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004) (citing Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)) ("The exercise of this authority has no limits except our judicial discretion."). Bearing in mind the exceptional nature of a writ of prohibition, and that traditionally these proceedings initiate in the Court of Appeals, we are of the mindset that our discretion should extend to their issuance in this Court in extremely limited circumstances. See Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 214 (Ky. 2003).
The preliminary threshold which must be satisfied in order for this Court to exercise its discretion in issuing a writ, is that the underlying decision must be reviewable by this Court as a matter of right. See CR 76.36(1).
In Russell County, we observed that this will typically only occur in a very limited set of circumstances if the petition has been contemporaneously brought before the Court of Appeals. 152 S.W.3d at 235 () In Russell County, the respondent had initially filed both an original action seeking a writ of prohibition and a motion for relief from the temporary injunction with the Court of Appeals. The Court of Appeals granted his request for stay of the temporary injunction; however, the writ of prohibition was still pending. Id. at 231-233.
Thereafter, while respondent's writ in the Court of Appeals was still pending, petitioner filed a writ of prohibition in this Court seeking to prohibit enforcement of the Court of Appeals' stay of the temporary injunction. In granting the writ, we concluded that because the petitioner was seeking a writ of prohibition against the enforcement of a temporary stay by the Court of Appeals, and because the original action in the Court of Appeals was still pending, the matter fell within a very narrow class of cases where a writ against the Court of Appeals, filed in the Supreme Court was allowed. Id. at 236.
In so holding, we concluded that when one has filed a writ in the Court of Appeals, but a writ is also filed in this Court seeking to prohibit the pending Court of Appeals action, it may be brought before this Court because the Court of Appeals decision with regard to the writ would be appealable as a matter of right. Id. at 235-236. As noted, however, this is very limited situation and only exists when the underlying writ is already in the Court of Appeals and is still pending.
However, another narrow class of petitions exists in which this Court may exercise its discretion with regards to an original action. In St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 1999), a defendant filed a petition for a writ of prohibition in this Court seeking to preclude the death penalty as a punishment in the event that he would be subsequently convicted of kidnapping a victim whom he had previously been convicted of murdering. Although we recognized that the kidnapping conviction would not violate double jeopardy, we once again noted that double jeopardy and capital conviction was an appropriate subject for a writ of prohibition petitioned directly to the Supreme Court. Id. In so holding, we reiterated,
although double jeopardy is an appropriate subject for a writ of prohibition, it is not mandatory that it be addressed in that context. The court in which the petition is filed may, in its discretion, address the merits of the issue within the context of the petition for the writ, or may decline to do so on grounds that there is an adequate remedy by appeal. Neither approach is mandatory and the exercise of discretion may well depend on the significance of the issue as framed by the facts of the particular case.
Likewise, in Salinas v. Payne, 169 S.W.3d 536, 537 (Ky. 2005), petitioner filed a writ of prohibition in this Court seeking to prohibit the trial court from allowing the death penalty to be sought as a potential punishment at his retrial. Therein, we once again noted that a double jeopardy situation concerning capital issues was an appropriate subject for a writ of prohibition filed in this Court. Id.
Thus, taking the aforementioned into consideration, we are left with the conclusion that a petition for a writ of prohibition may — but not must— be filed in the Supreme Court,...
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