Keeling v. Commonwealth, No. 2010–SC–000351–MR.

• Decision Date: 25 October 2012
• Docket Number: No. 2010–SC–000351–MR.
• Citation: 381 S.W.3d 248
• Parties: Derek KEELING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

381 S.W.3d 248

Derek KEELING, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2010–SC–000351–MR.

Supreme Court of Kentucky.

Oct. 25, 2012.

Recognized as Unconstitutional

KRS 505.030(4).

Linda Roberts Horsman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

A Graves Circuit Court jury found Appellant, Derek Keeling, guilty but mentally ill of murder and first-degree assault. Appellant received sentences of life in prison for the murder conviction and twenty years in prison for the assault conviction. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that the trial court erred by: (1) failing to grant his motion to dismiss; (2) failing to give jury instructions consistent with this Court's precedent; (3) finding him competent to stand trial; (4) failing to instruct the jury on assault under extreme emotional disturbance; (5) failing to suppress statements made to law enforcement officers; and (6) failing to sever the murder charge from the assault charge.

I. BACKGROUND

Appellant suffers from schizophrenia, paranoid type. He was also involved in an altercation as a young man in which he was struck in the head with a baseball bat. Shortly after this incident, Appellant's behavioral decline began to accelerate. For example, he believed that people on television were speaking directly to him; he heard voices with Jamaican accents telling him to kill himself and that by doing so he would be a superhero; he believed he could communicate with animals; he claimed that his father was Michael Jordan and that his mother was Princess Diana; he claimed that he had several daughters, when he in fact had none; and he displayed “inappropriate affect”—a condition which manifested itself in Appellant with him laughing in very serious situations.¹

On May 27, 2004, William “Dick” Morefield was performing yard work for an acquaintance when Appellant approached him and asked him for a lighter. When Morefield reached for his lighter, Appellant grabbed his shoulder and stabbed him in the chest. It was the first time that Morefield had ever seen Appellant.²

The following evening, Appellant's father, Sam—also a schizophrenic—told Appellant's mother that the police were looking for Appellant for stabbing Morefield. Appellant and his father fought three or four times that night and into the early morning of May 29. Around 5:00 that morning, Appellant began making breakfast. Sam came into the kitchen and an argument ensued, ending with Appellant stabbing Sam in the chest. Appellant fled the scene while Sam staggered next door to Appellant's mother's home. Sam later died from the stab wounds. Police quickly apprehended Appellant, who gave a statement in which he admitted to stabbing both Sam and Morefield.

So began the pretrial litigation in this case that would last six years. Appellant was first indicted in 2004, but that indictment was dismissed based on a finding that Appellant was incompetent to stand trial. The indictment on which the trial in this case commenced was brought in 2008, and on September 15, 2009, the Graves Circuit Court held another competency hearing. ³ At the hearing, the trial court heard testimony from two doctors—Dr. Amy Trivette who concluded that Appellant was competent to stand trial, and Dr. Richard Sively, who concluded that Appellant was not competent to stand trial. After considering the testimony of both doctors, the trial court determined Appellant to be competent.

Ultimately, a jury found Appellant guilty but mentally ill of murder and first-degree assault. It recommended a sentence of life in prison for the murder conviction and twenty years in prison for the assault conviction; the trial court adopted these recommendations. We now affirm.

Additional facts will be developed throughout the opinion where helpful to our analysis.

II. ANALYSIS

Appellant sets forth six separate arguments as grounds for reversal. Each issue has been properly preserved for appellate review.

A. Denial of Appellant's Motion to Dismiss

Appellant first contends that the trial court committed reversible error by failing to grant his motion to dismiss the 2008 indictment. He argues that when the trial court dismissed the original 2004 indictment after finding Appellant incompetent to stand trial, its failure to specify whether the dismissal was “with prejudice” or “without prejudice” defaulted to a dismissal “ with prejudice” by virtue of Kentucky Rule of Civil Procedure (CR) 41.02(3) and our case law interpreting it. As such, he argues, the dismissal of the original indictment acted as an adjudication upon the merits, and re-indicting him on the same charges was barred by res judicata and double jeopardy prohibitions in violation of the United States and Kentucky Constitutions. U.S. Const. amend. V; ⁴Ky. Const. § 13.

Because the trial court's denial of Appellant's motion to dismiss was based upon a conclusion of law,⁵ we review de novo. See Lee v. Commonwealth, 313 S.W.3d 555, 556 (Ky.2010) (applying de novo review to question of law involving trial court's decision to deny motion to suppress).

CR 41.02(3) states:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule, and any dismissal not provided for in Rule 41, other than a dismissal for lack of jurisdiction, for improper venue, for want of prosecution under Rule 77.02(2), or for failure to join a party under Rule 19, operates as an adjudication upon the merits.Because Kentucky does not have a parallel rule of criminal procedure dealing with involuntary dismissals, we have previously applied CR 41.02(3) to criminal proceedings by virtue of RCr 13.04.⁶ Indeed, we have significant case law applying CR 41.02(3) that is procedurally on point with the case at bar. See Commonwealth v. Taber, 941 S.W.2d 463 (Ky.1997); Commonwealth v. Hicks, 869 S.W.2d 35 (Ky.1994). In fact, Taber and Hicks would require reversal in this case. However, these cases ignored a necessary inquiry: whether application of CR 41.02(3) is unconstitutional as a separation of powers violation when applied to criminal cases.

1. Commonwealth v. Hicks and Commonwealth v. Taber

In Commonwealth v. Hicks, the trial court, frustrated that a subpoenaed witness failed to appear in court, denied the Commonwealth's motion to continue and granted the defendant's motion to dismiss. 869 S.W.2d at 36. The court orally cited “lack of prosecution” for its decision,⁷ and informed the parties that the charges could be refiled. Id. However, the court's written notations with respect to the dismissal stated only: “The Commonwealth's motion to continue is overruled and the defense motion to dismiss is sustained.” Id.

The sole issue for the Court in Hicks was whether the trial court's written notation of its order dismissing the indictment must be construed as a dismissal with prejudice in light of CR 41.02(3). Id. at 37. First, it noted that despite the trial judge's oral pronouncement that the charges could be refiled, a “judgment,” as defined by RCr 13.04, is a “ written order....” Id. “Moreover,” it added, “ ‘[o]ral statements or pronouncements are not judgments until embodied in a writing.’ ” Id. at 38 ( quoting 7 Bertelsman and Philips, Kentucky Practice,CR 54.01, cmt. 2 (4th ed.1984)). When written and oral statements of the court are inconsistent, the written statements “shall prevail and the [oral statements] shall be disregarded.” Id. The trial court's oral comments concerning the refiling of the charges were therefore inconsequential. Id.

The Court then applied CR 41.02(3) to the written order of dismissal. Id. It noted that the rule requires that “a judgment or order of dismissal, except on the grounds noted in the Rule, must be construed as being with prejudice unless it says otherwise.” Id. Because the written order did not specify dismissal without prejudice (or “with leave to refile”), it determined that the dismissal was with prejudice. Id. And because the Commonwealth did not move to amend the order or take an appeal from the order, said order “became final and subsequent litigation was thereby barred.” Id.

In Commonwealth v. Taber, 941 S.W.2d 463 (Ky.1997), on a procedural posture nearly identical to Hicks, this Court came to the same conclusion as it had in Hicks.

The rule of strict construction announced in Hicks and reaffirmed in Taber would require reversal in this case because the trial court's written order of dismissal does not specify dismissal “without prejudice” or “with leave to refile.” However, as noted previously, neither Hicks nor Taber addressed the constitutionality of applying CR 41.02(3) to criminal cases.

2. Separation of Powers

The Kentucky Constitution establishes a government of three branches, among which powers are divided to achieve a system of checks and balances.

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

Ky. Const. § 27.

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Ky. Const. § 28.

In a series of recent cases, this Court explored the question of when action by the judicial branch impermissibly encroaches on powers reserved for the executive branch. First, in Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky.2003), this Court held that a trial court could not permit a defendant to participate in a pretrial diversion program over the...