Hoskins v. Maricle, No. 2002-SC-0579-MR.

• Decision Date: 26 August 2004
• Docket Number: No. 2002-SC-0579-MR.
• Citation: 150 S.W.3d 1
• Parties: Wanda HOSKINS; and David Paul Smith, Appellants, v. R. Cletus MARICLE, Clay Circuit Court, Judge, Appellee. and Commonwealth of Kentucky (Real Party in Interest) Appellee.
• Court: United States State Supreme Court — District of Kentucky

150 S.W.3d 1

Wanda HOSKINS; and David Paul Smith, Appellants, v. R. Cletus MARICLE, Clay Circuit Court, Judge, Appellee. and Commonwealth of Kentucky (Real Party in Interest) Appellee.

No. 2002-SC-0579-MR.

Supreme Court of Kentucky.

August 26, 2004.

As Modified on Denial of Rehearing December 16, 2004.

Stephan Charles, Manchester, Counsel for Appellant Wanda Hoskins.

Marcus S. Carey, Erlanger, Counsel for Appellant David Paul Smith.

R. Cletus Maricle, Manchester, pro se, Counsel for Appellee R. Cletus Maricle, Clay Circuit Court Judge.

Gregory D. Stumbo, Attorney General, Karen M. Timmel, Assistant Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, Counsel for Real Party in Interest Appellee Commonwealth of Kentucky.

Opinion of the Court by Justice COOPER.

Appellants, Wanda Hoskins and David Paul Smith, petitioned the Court of Appeals for a writ prohibiting Appellee, R. Cletus Maricle, judge of the Clay Circuit Court, from ordering a retrial of their indictments for murder and abuse of a corpse and directing him to approve the plea agreements that they negotiated with a special prosecutor. The Court of Appeals denied the writ and they appeal to this Court as a matter of right. Ky. Const. § 115; CR 76.36(7)(a). We affirm.

The indictment charged each Appellant with two counts of murder, a capital offense, KRS 507.020(2), and two counts of abuse of a corpse, a Class A misdemeanor. KRS 525.120(2). The indictments stem from allegations that Appellants shot and killed Ora Curry and Joe Hicks, Jr., and placed their bodies in the trunk of an automobile that they then submerged in a body of water. The trial began in the Clay Circuit Court on March 27, 2000, with Judge Maricle presiding. On March 31, 2000, during the twelfth hour of jury deliberations, Judge Maricle learned that the jurors had been permitted to separate in violation of RCr 9.66 and declared a mistrial.

The Clay County Commonwealth's attorney thereafter disqualified himself from prosecuting the second trial, and a special prosecutor was appointed. Following plea negotiations, an agreement was reached to dismiss the abuse of a corpse charges, to dismiss one count of murder against each Appellant, and to amend the remaining counts of murder to charge each Appellant with one count of manslaughter in the second degree, a Class C felony. KRS 507.040(2). In exchange, Appellants agreed to plead guilty to the remaining amended count for which the special prosecutor would recommend that each serve ten years in prison, the maximum sentence for a Class C felony. KRS 532.020(1)(b). The special prosecutor then moved the trial court to amend the indictment in accordance with the plea agreement, and Appellants filed motions to enter guilty pleas to the amended charges. The motion to amend the indictment recited that there was a factual predicate for the amendment, i.e., evidence that the victims had previously threatened Appellants' lives and, thus, a likelihood that a jury would convict Appellants of second-degree manslaughter under a claim of imperfect self-defense. KRS 503.120(1); Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998). (The jury at the first trial was not instructed on any theory of self-defense.)

On August 6, 2001, Judge Maricle heard evidence on the motions, including testimony from the victims' families and friends. The Court of Appeals denied a motion to include the videotape of that hearing in the record of this original action, deeming it unnecessary to its decision. However, we assume that the victims' families and friends objected to the plea agreement and that Judge Maricle was persuaded to some extent by their testimony. Appellants and the Commonwealth agree that Judge Maricle commented extensively following the hearing, referred to his intimate knowledge of the case gleaned from presiding over the first trial, and rejected the agreement as too lenient. His succinct written order of April 4, 2002, simply denied Appellants' motions to enter guilty pleas to second-degree manslaughter, effectively overruling the Commonwealth's motion to amend the indictment.

In their petition for a writ of prohibition, Appellants claimed, inter alia, that Judge Maricle acted outside his jurisdiction in overruling the prosecutor's motion to amend the indictment because the prosecution of felony cases is vested exclusively in the executive department of government, i.e., the Commonwealth's attorney. KRS 15.725(1). In the alternative, they claimed that he acted erroneously within his jurisdiction by refusing to approve the plea agreement and by permitting the victims' families and friends to object to the terms of the agreement. The Court of Appeals denied the petition solely on the grounds that "[p]etitioners have failed to show that they do not have an adequate remedy upon appeal nor have they shown that they will be irreparably harmed."

I. WRIT OF PROHIBITION.

Section 110(2)(a) of our present Constitution vests this Court with jurisdiction to entertain an original action for a writ of prohibition, viz:

The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.

Similarly, Section 111(2) authorizes the Court of Appeals to "issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction." Thus, whether to grant or deny a petition for a writ is not a question of jurisdiction, but of discretion. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961) ("The exercise of this authority has no limits except our judicial discretion."). Because writs interfere with both the orderly, even if erroneous, proceedings of a trial court and the efficient dispatch of our appellate duties, the courts of this Commonwealth have periodically attempted to formulate a rule governing the discretionary choice between issuing a writ and relegating a petitioner to the right to appeal. Ky. Const. § 115. The present version of the "rule" was articulated in Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d 195 (1997), viz:

[A] writ of prohibition should be granted only upon a showing that: 1) the lower court is proceeding or is about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result.

Id. at 199 (emphasis added) (internal quotes omitted).

Because Appellants claim that Judge Maricle is acting either outside his jurisdiction or erroneously within his jurisdiction, both tests apply. Thus, the issues are (1) whether the right to appeal¹ precludes the issuance of a writ of prohibition when a trial court is proceeding outside its jurisdiction; (2) whether the right to appeal is an "adequate remedy;" and (3) whether "great injustice and irreparable harm" will result if the petition is denied.

Our case law, at least over the past twenty-three years, has been facially inconsistent with respect to the first issue. Compare, e.g., Peterson v. Shake, Ky., 120 S.W.3d 707, 710 (2003) (though observing that "Appellant has no other adequate remedy at his disposal"), Shamrock Coal Co., Inc. v. Maricle, Ky., 5 S.W.3d 130, 133 (1999), Petrey v. Cain, Ky., 987 S.W.2d 786, 788 (1999), Coms v. Transp. Cabinet, Ky., 814 S.W.2d 574, 578 (1991), and Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), none of which imposed or recited the "inadequate remedy" requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky.App., 770 S.W.2d 239, 241 (1989), all of which either imposed or recited the "inadequate remedy" requirement. An understanding of how this divergence of authority occurred requires historical context.

From 1799 until 1891, the constitutional jurisdiction of the "old" court of appeals² was limited to "appellate jurisdiction only, which shall be coextensive with the State, under such restrictions and regulations, not repugnant to this Constitution, as may, from time to time be prescribed by law." Ky. Const. of 1799, art. IV, § 2; Ky. Const. of 1850, art. IV, § 2. Under this regime, a circuit court, as the court of general jurisdiction, could issue a common law writ prohibiting an inferior court from acting outside its jurisdiction, Arnold v. Shields, 35 Ky. (5 Dana) 18, 23 (1837); Reese v. Lawless, 7 Ky. (4 Bibb) 394, 394-95 (1816), but the common law did not authorize a circuit court to prohibit an inferior court from acting erroneously within its jurisdiction, for which the only remedy was an appeal. Bank Lick Turnpike Co. v. Phelps, 5 Ky.L.Rptr. 713, 81 Ky. (4 J.Rodm.) 613, 617 (1884). However, because the court of appeals possessed only appellate jurisdiction, it deemed itself lacking authority to issue a writ of prohibition. Sasseen v. Hammond, 18 B.Mon. 672, 57 Ky. 672 (1858).

When Section 110 of the 1891 Constitution was adopted, it added language giving the court of appeals "power to issue such writs as may be necessary to give it a general control of inferior jurisdictions." Ky. Const. of 1891 § 110. At the 1890 Constitutional Convention, Delegate Thomas H. Hines of Franklin County, a former chief justice of the court of appeals, offered an amendment that would have deleted the new language. 3 Debates of Constitutional Convention of 1890 3127. Delegate C.J. Bronston of Lexington explained:

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