Kelly v. Commonwealth, 2017-SC-000265-MR

• Decision Date: 16 August 2018
• Docket Number: 2017-SC-000265-MR
• Citation: 554 S.W.3d 854
• Parties: Jeremy KELLY, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

554 S.W.3d 854

Jeremy KELLY, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000265-MR

Supreme Court of Kentucky.

AUGUST 16, 2018

COUNSEL FOR APPELLANT: Samuel N. Potter, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Emily Lucas, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE KELLER

A Knox County Grand Jury indicted Jeremy Kelly (Kelly) for first-degree rape, incest (victim under 18), first-degree sexual abuse, and unlawful imprisonment, for allegations made by Kelly’s sixteen-year-old daughter, J.K. Kelly was also indicted for second-degree fleeing or evading and being a persistent felony offender (PFO), second degree. The case ultimately went to trial in March 2017 and the jury convicted Kelly of first-degree rape, incest, first-degree sexual abuse, and second-degree fleeing or evading. At the penalty phase, the jury also found Kelly was a second-degree PFO. The jury recommended 50 years for rape, 50 years for incest, 10 years for sexual abuse, and 6 months for fleeing or evading. The jury recommended a consecutive sentence for a total of 110 years and 6 months. The court, however, capped the sentence at 70 years, pursuant to statute. Kelly now appeals as a matter of right.

I. BACKGROUND

In April 2013, J.K. was living with her great-uncle. On or about April 6, 2013, Kelly came to the bathroom window of the home and asked J.K. to shave her vaginal area and meet him elsewhere. J.K., knowing she was not supposed to leave the home, snuck out of the house and met Kelly. They spent several days at a campsite and a yellow house, where Kelly was staying. At a certain point at the yellow house, J.K. stated that Kelly started kissing her and touching her vagina over her clothes. Kelly then removed her clothing, held her down, and forcibly raped her. He completed the act by ejaculating on J.K.’s stomach. J.K. stated that she waited until Kelly fell asleep and then left the house. She went to her boyfriend’s home and hid under a truck because she knew her boyfriend’s parents did not like her. The parents did find her, however, and contacted authorities. J.K. was taken to the hospital and a rape kit was performed. The samples were sent to the Kentucky State Police Lab and it was ultimately determined that a sample of semen found on J.K.’s stomach matched Kelly’s DNA.

Kelly was indicted by a Knox County Grand Jury on July 25, 2014 and the court issued a bench warrant for Kelly’s arrest. The case remained on the court’s docket while this warrant was pending. On December 15, 2014, the Commonwealth requested that the case be placed on the "fugitive docket" as the case had been pending for several months and Kelly had yet to be arrested on the warrant. The court ordered it so and entered a written order, dismissing the case without prejudice and stating that "upon the arrest of the defendant, the indictment may be reinstated and redocketed on motion of the Commonwealth."

Kelly was found in Washington and extradited back to Kentucky in late 2015. He was arraigned before the trial court on October 2, 2015. At that time, the Commonwealth moved the court to reinstate the indictment. The court sustained the motion, without objection from Kelly or his counsel. It is undisputed that there was never a new indictment presented. Nor is it alleged, however, that the charges presented at trial were different from the charges in the dismissed and reinstated indictment.

As previously stated, the case proceeded to trial. The jury found Kelly guilty of rape first-degree, incest, sexual abuse first-degree, fleeing or evading second-degree, and being a PFO, second-degree. The court sentenced Kelly to 70 years imprisonment. On appeal, Kelly alleges five errors: (1) the indictment against Kelly was dismissed and prosecution absent a new indictment violated Kelly’s due process rights; (2) there was no evidence to sustain Kelly’s conviction for second-degree fleeing or evading; (3) the trial court should have granted a mistrial for the deliberate introduction of Kentucky Rule of Evidence (KRE) 404(b) testimony; (4) the rape, incest, and sexual abuse convictions were non-unanimous; and (5) the trial court improperly imposed a fine upon Kelly, who was indigent. We shall address each of these errors and discuss additional facts as necessary.

II. ANALYSIS

A. ALTHOUGH THE COMMONWEALTH ERRED IN FAILING TO RE-PRESENT THE CASE TO THE GRAND JURY, KELLY'S DUE PROCESS RIGHTS WERE NOT VIOLATED.

Kelly first argues that the indictment against him was dismissed and he was never re-indicted, thus his due process rights were violated per se. This allegation requires several nuanced issues to be addressed by this Court. First, we must determine whether the procedural singularity here of reinstating an indictment is proper. Second, if it is not proper, we must determine whether that affects the jurisdiction of the trial court. Finally, we must determine whether Kelly’s due process rights were actually violated through a potentially flawed procedure.

1) The Commonwealth and the trial court erred in simply reinstating the indictment, rather than re-indicting Kelly.

In Commonwealth v. Sowell, this Court clearly held: "a dismissal without prejudice is a final and appealable order, and [ ] after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged." 157 S.W.3d 616, 617 (Ky. 2005). "Under [Kentucky Rule of Civil Procedure (CR) ] 59, a final judgment or order may be vacated only in accordance with the ten day provisions of the rule." Id. at 618. "Thereafter, the trial court loses jurisdiction to act." Id. (citing Commonwealth v. Gross, 936 S.W.2d 85 (Ky. 1997) ). The Commonwealth, after such an act, "could not merely redocket the old case as the trial court had lost jurisdiction to vacate its order of dismissal." Id.

Should the court or the prosecution desire to retain control of the case after the term, it may be done by an order filing the indictment away, to be redocketed on motion of the commonwealth. But, without such reservation, an unconditional dismissal is an end of that case. If, therefore, the commonwealth desires to reinstate the prosecution, it may do so by procuring another indictment, or by warrant of arrest sworn out before an examining magistrate, and then proceed as in other original prosecutions. The order dismissing the indictment, though a final order, does not bar another indictment or prosecution.

Id. at 618-19 (quoting Commonwealth v. Smith, 140 Ky. 580, 131 S.W. 391, 392 (1910) ). Our case law has clearly delineated the options for the Commonwealth. In Smith, the defendant was charged with murder. Smith, 131 S.W. at 391. His whereabouts were unknown so the court dismissed the case. Id. When the matter came back before the trial court, the prosecution asked the court to "redocket" the case. Id. at 391-92. The trial court overruled the motion. Id. at 392. The trial court’s decision was upheld by this Court’s predecessor, outlining the options for the prosecution as quoted above. Id. There is no procedural mechanism for a mere reinstatement of an indictment after a dismissal without prejudice. The prosecution must seek another indictment or warrant just as in any original prosecution. The order of dismissal, even though it is without prejudice, cannot simply be undone.

This Court understands that the intent of the parties was simply to unclog the court’s docket and put aside this particular case until Kelly was arrested on the outstanding warrant. It seems the trial court’s intention was to revert to the pre-procedural rules days when indictments could simply be "filed away" from the court’s docket. For example, in Jones v. Commonwealth, 71 S.W.643, 643 (Ky. 1903), the Commonwealth, being unprepared for trial, moved to have the indictment "filed away, with leave to redocket upon motion of the commonwealth’s attorney." The motion was granted. Id. "The practice of filing away indictments, though never authorized by legislative enactment, has long obtained in this state." Id. In that case, the order "filing away" was construed as not being a dismissal. Id. at 644. "But here the right to reinstate the case on the docket being expressly reserved, the order, we think, should not be construed as a dismissal or discontinuance, but as a mere removal or omission of the case upon the docket." Id. Given this construction, "[t]he legal effect of such an order was simply a continuance indefinitely[.]" Id. In Jones, however, the case was "filed away" against the objection of defendant and deemed an abuse of discretion. Id.¹

Despite this past practice, along with the development of our rules of civil and criminal procedure, our administrative court system has delineated a system for handling fugitive cases so as to prevent a court’s docket from being hampered by numerous cases without any progression. These cases can be closed administratively in our case management system and reopened administratively upon service of a warrant. Trial courts and the Commonwealth are bound by the rules of procedure. The rules are unequivocal that an indictment is required, although subject to waiver, for a felony prosecution. See Ky. Const. 12 and Malone v. Commonwealth, 30 S.W.3d 180 (Ky. 2000). It is questionable whether the trial court was in error in allowing the reinstatement of the indictment or in terming the ‘filing away’ of the indictment as a dismissal. Under these pre-rule cases, such a "filing away" with reservation for reinstatement, has been deemed a non-final and non-dismissive order. In either context, the procedure utilized by the trial court was error. Thus, this Court holds that reinstatement of an indictment is procedurally impermissible. Additionally, it is important to remember that there are administrative processes for handling fugitive cases and it is best practice to follow these procedures. We cannot say that such procedural infirmities would never create...