Silverburg v. Commonwealth

• Decision Date: 11 September 1979
• Citation: 587 S.W.2d 241
• Parties: Joe SILVERBURG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 241

587 S.W.2d 241

Joe SILVERBURG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Sept. 11, 1979.

Rehearing Denied Oct. 3, 1979.

Jack E. Farley, Public Advocate, Linda K. West, Asst. Public Advocate, Commonwealth of Kentucky, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellee.

STERNBERG, Justice.

On November 21, 1977, the Grand Jury of Fayette County, Kentucky, returned an indictment against the appellant charging him with murder and with being a persistent felony offender in the second degree. Trial commenced on April 17, 1978, and the following day, on motion of the appellant, the court declared a mistrial and granted the appellant a continuance. Thereafter, commencing on May 30, 1978, a four-day trial resulted in a jury verdict finding the appellant guilty of being an accessory to first-degree manslaughter and fixing his punishment at confinement in the penitentiary for twelve years. In a bifurcated proceeding the appellant was found guilty of being a persistent felony offender in the second degree, and his punishment was fixed at twenty years in the penitentiary.

First Trial

(April 17, 1978-April 18, 1978)

On February 15, 1978, the appellant filed a discovery motion which, on March 16, was granted in part. The Commonwealth's Attorney failed to wholly comply with the discovery order and the appellant thereupon moved the court for a continuance. Thereafter, he moved the court to dismiss the indictment. The motion for a continuance was granted, and the motion to dismiss the indictment was denied.

When a trial is continued on motion of the accused, the general rule is that double jeopardy does not attach when the case is again brought on for trial. There is, however, a different rule where a mistrial has been caused by the bad faith of the Commonwealth's Attorney or the court.

In Commonwealth v. Lewis, Ky., 548 S.W.2d 509 (1977), we said:

". . . When a trial is aborted at the volition of the defendant himself, the considerations are different from those that prevail when the interruption is precipitated by the prosecution or by the trial court sua sponte. United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Broadly speaking, if there is no bad faith and the choice has not been forced upon the defendant, he is not in a position to cry double jeopardy when the trial is relaunched. . . ."

In United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the Supreme Court of the United States said:

"The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where 'bad-faith conduct by judge or prosecutor,' United States v. Jorn (400 U.S. (470), at 485, 91 S.Ct. (547), at 557 (27 L.Ed.2d 543), threatens the '(h) arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant. . . ."

The appellant argues that he was furnished with a fictitious list of witnesses; that the Commonwealth's Attorney failed to furnish him with the names of the persons used in the identification lineup; and that the Commonwealth's Attorney failed to furnish him with the results and the report of the lineup.

It is true that the Commonwealth's Attorney's list of proposed witnesses contained the names of persons who knew nothing of the incident as well as the names of persons who did know of the facts. It is likewise true that the list did not contain the names of all of the persons who were used in the identification lineup. The appellant argues that such conduct was for the purpose of reducing his investigative time. The record reveals that the time for investigation was not reduced as appellant's investigator stopped his work short of contacting all of the persons whose names were furnished by the Commonwealth's Attorney's office. The Commonwealth's Attorney attempted to explain his failure to furnish the names of all persons who had knowledge of the case by saying that he furnished the names of all eyewitnesses. He deemed this sufficient. The furnishing of the names of all eyewitnesses and not furnishing the names of other knowledgeable witnesses was not in compliance with the pretrial order, but was not substantial error.

The appellant directs our attention to the fact that he had not been furnished with a copy of the police identification lineup report. There is no obligation on the part of the Commonwealth to permit its records to be examined promiscuously by the accused. The Commonwealth is under no obligation to furnish a writing unless it contains exculpatory evidence, in which event the writing must be furnished to the accused in time for a due investigation to be made. RCr 7.24; Burks v. Commonwealth, Ky., 471 S.W.2d 298 (1971).

The lineup report was furnished to appellant's trial counsel on April 17, 1978, the day the trial first started. The Commonwealth's Attorney explained as follows:

"Your Honor, I received this report today. I talked to Jerry Wright and asked him if there was a line-up report. He told me no, there wasn't. He was the major investigating officer in the case. I did find out today, after asking Jerry Wright to please go through and look at everything in the file, if there is a memorandum, letters, anything, a report, in the case file, dealing with line-up; and he did produce this, which is a report of Mike Moynahan; and I gave it to the defendant, his attorney, right at lunch, at the break, after he left this hearing."

On the second day of the trial the court sustained the appellant's motion to set aside the swearing of the jury and to continue the trial. In doing so, the judge said:

"The Court sustains the defense motion to set aside the swearing of the jury and to grant a...