Opinion
NO. 2012-CA-001375-MR
2013-10-18
COMMONWEALTH OF KENTUCKY APPELLANT v. CHRISTOPHER W. BROWN APPELLEE
BRIEFS FOR APPELLANT: Jack Conway Attorney General of Kentucky Dorislee Gilbert Louisville, Kentucky BRIEF FOR APPELLEE: Elizabeth B. McMahon Assistant Public Defender Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NOS. 10-CR-002551 AND 12-CR-001682
OPINION
REVERSING AND VACATING
BEFORE: COMBS, NICKELL AND STUMBO, JUDGES. STUMBO, JUDGE: The Commonwealth appeals from the Jefferson Circuit Court's dismissal of two indictments against Christopher Brown. The trial court found that Brown's right to a speedy trial pursuant to Kentucky Revised Statute (KRS) 500.110 had been violated. KRS 500.110 states:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of thisIn addition, Brown asks that should we find there was no violation of KRS 500.110 that we still affirm the judgment of the trial court based on his constitutional right to a speedy trial. We find the dismissal of the indictments was in error and reverse and vacate.
state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Brown was indicted by a grand jury in August of 2010 on two counts of first-degree robbery and two counts of possession of a handgun by a convicted felon. An arrest warrant was issued and Brown was arrested on August 19, 2010. Brown was later charged as a second-degree persistent felony offender. Brown was arraigned on August 20, 2010. Brown was already on probation when these robberies occurred. Once he was arrested, his probation was revoked and he began serving a 17 year sentence.
On August 2, 2011, the circuit court received a pro se motion from Brown even though he was represented by counsel at the time. The motion stated: "All parties shall take notice that I Christopher W. Brown (Defendant) am envoking my right to a fast and speedy Trial. Thats guaranteed as my Right by the United States Constitution and hereby move the Court to set a Trial date within the allowed statued time period." This motion was never formally addressed by the trial court.
Spelling and grammar as in original.
On October 18, 2011, the parties agreed to a trial date of March 6, 2012. The trial court first offered a trial date of February 21, 2012, but both the prosecutor and defense counsel had previous trials scheduled. Brown was present with his trial counsel when this date was agreed upon.
The initial delay of over a year between Brown's arraignment and his first pretrial conference was at the request of both parties. The Commonwealth and Brown wanted to ensure that all charges had been brought and for the Commonwealth to extend an offer to resolve all pending indictments.
Brown corresponded directly with the court prior to the March trial date. Both times he complained about his appointed defense counsel and requested new counsel. The letters mentioned the March trial date, but did not discuss Brown's speedy trial request.
On March 6, 2012, the case was called for trial. The Commonwealth requested a continuance because a material witness was absent and there were allegations that Brown had been attempting to improperly influence at least one witness. At this time, the Commonwealth recognized that Brown had filed a speedy trial request. This was the first time the speedy trial issue had been discussed before the trial court. The Commonwealth argued that any delay would be inconsequential because Brown was already in prison serving a 17 year sentence and on bond under two other indictments. Defense counsel announced ready for trial, but noted that if the court granted the continuance, she would request a reduction in Brown's bond and a quick trial date so that Brown could "exercise his right to a speedy trial." The trial court granted the continuance and reduced Brown's bond as requested. The new trial date was May 29, 2012. A week later, Brown was appointed new trial counsel due to previous counsel leaving the Public Defender's Office.
On March 22, 2012, Brown filed a pro se motion to dismiss for failure to prosecute. Brown cited KRS 500.110 as the reason for the dismissal. This was the first time this specific statute was referenced in this case. The motion identified the pro se speedy trial request filed in August of 2011 as being a request pursuant to KRS 500.110.
On April 23, 2012, a pretrial conference was held. Brown was present with his attorney. The trial court advised the Commonwealth and defense counsel that Brown had filed the motion to dismiss. Defense counsel indicated Brown informed him about the motion, but that he was not served with a copy. The Commonwealth also indicated it had not been served with a copy of the motion. Neither Brown nor his defense counsel sought any relief on the motion at that time. Defense counsel indicated he would be ready for the May trial date.
On May 29, 2012, the parties appeared for trial and announced they were ready for trial. Defense counsel orally moved to exclude any DNA evidence because the final results of the testing were not yet available. The Commonwealth objected to the motion. The court found that admission of the DNA evidence without the final test results would be unduly prejudicial to Brown and informed the parties that it intended to exclude the evidence. The court gave the Commonwealth the option of continuing the case if it considered the DNA evidence vital to its case. Defense counsel objected to the continuance arguing that Brown had filed a pro se motion for a speedy trial in 2011 and that he had a constitutional right to a speedy trial. The trial court allowed the continuance and a new trial date of July 10, 2012, was scheduled.
On June 4, 2012, Brown filed another motion to dismiss for failure to prosecute. The motion cited KRS 500.110. His defense counsel received a copy of the motion, but the Commonwealth did not.
On July 10, 2012, the parties appeared for trial. The original circuit court division was in trial on another matter; therefore, Brown's case was temporarily assigned to senior status judge. At this time, defense counsel made an oral motion to dismiss the case for violation of KRS 500.110. Counsel argued that the first trial date, March 6, 2012, was outside the 180 day requirement found in the statute. The Commonwealth argued that Brown waived any objection to the trial date by accepting the March 6 trial date. A short recess was allowed for the Commonwealth to perform some research on the issue. When the court went back on the record, the Commonwealth asked if a detainer had been filed against Brown. The court responded that a detainer had been issued upon indictment. The trial court found that Brown's right to a speedy trial pursuant to KRS 500.110 had been violated. It also found that Brown did not waive his right by not personally objecting to the March 6, 2012 trial date. The trial court dismissed the charges against Brown. On July 16, 2012, the court entered an order to that effect.
The Commonwealth filed a motion to vacate or amend the judgment. On July 25, 2012, the court overruled the motion to vacate the judgment, but amended the judgment to correct a citation. That same day, the Commonwealth filed a motion to supplement its motion to vacate or amend. The supplement was to inform the court that the Commonwealth had discovered evidence that no detainer had been lodged against Brown. The next day defense counsel responded to the motion to supplement. On July 27, the trial court considered the Commonwealth's supplement to its motion as a renewed motion to vacate and denied the motion. The same day, defense counsel filed a motion to supplement the record with proof that a detainer had been filed against Brown. On August 3, the court granted Brown's motion to supplement the record. This appeal followed.
A detainer is required before KRS 500.110 can be utilized.
The Commonwealth's first argument on appeal is that Brown's right to a speedy trial pursuant to KRS 500.110 was not violated. In order for KRS 500.110 to be applicable, a defendant has to be in a correctional institution, a detainer has to be lodged against the defendant, and the defendant has to give the prosecution and court notice that he wants to invoke his rights pursuant to the statute. The Commonwealth argues that no detainer had been lodged against Brown and that he did not properly invoke the statute. We decline to base our judgment on these issues. What is determinative of this case is the fact that even if Brown properly invoked KRS 500.110 and a detainer had been lodged against him, we find that he waived this statutory speedy trial right.
A number of published and unpublished cases state that the right to a speedy trial granted by KRS 500.110 can be waived if defense counsel agrees to a trial date outside the time period required by the statute. See New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000); Parks v. Commonwealth, 89 S.W.3d 395 (Ky. 2002); Ward v. Commonwealth, 62 S.W.3d 399 (Ky. App. 2001); Kremer v. Commonwealth, 2006 WL 436125 (Ky. 2006); Carpenter v. Commonwealth, 2005 WL 1367210 (Ky. App. 2005); Burkhart v. Commonwealth, 2004 WL 1418355 (Ky. App. 2004).
The cases of Kremer, Carpenter, and Burkhart deal specifically with the waiver of the rights conferred by KRS 500.110. The cases of Hill, Parks, and Ward concern the waiver of the speedy trial rights conferred by the Interstate Agreement on Detainers (IAD). In Kentucky, the IAD statute is KRS 440.450. KRS 500.110 and KRS 440.450 are almost identical in that they bestow the same rights. The only substantial difference is that KRS 500.110 deals with intrastate detainers and KRS 440.450 deals with interstate detainers. The Kentucky Supreme Court has specifically stated: "we find cases interpreting the IAD insightful for our decision in [cases] regarding KRS 500.110." Dunaway v. Commonwealth, 60 S.W.3d 563, 567 (Ky. 2001).
Unpublished cases are cited pursuant to Kentucky Rule of Civil Procedure (CR) 76.28(4).
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The United States Supreme Court, when discussing the waiver of the time limit found in the IAD stated:
No provision of the IAD prescribes the effect of a defendant's assent to delay on the applicable time limits. We have, however, "in the context of a broad array of constitutional and statutory provisions," articulated a general rule that presumes the availability of waiver, and we have recognized that "[t]he most basic rights of criminal defendants are ... subject to waiver[.]" In accordance with these principles, courts have agreed that a defendant may, at least under some circumstances,Hill, 528 U.S. at 114-115, 120 S.Ct. at 663 - 664.
waive his right to object to a given delay under the IAD, although they have disagreed on what is necessary to effect a waiver.
What suffices for waiver depends on the nature of the right at issue. "[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." For certain fundamental rights, the defendant must personally make an informed waiver. For other rights, however, waiver may be effected by action of counsel. "Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has-and must have-full authority to manage the conduct of the trial." As to many decisions pertaining to the conduct of the trial, the defendant is "deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' " Thus, decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence[.] Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.
Scheduling matters are plainly among those for which agreement by counsel generally controls. This case does not involve a purported prospective waiver of all protection of the IAD's time limits or of the IAD generally, but merely agreement to a specified delay in trial. When that subject is under consideration, only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case. Likewise, only counsel is in a position to assess whether the defense would even be prepared to proceed any earlier. Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose. The text of the IAD, moreover, confirms what the reason of the matter suggests: In allowing the court to grant "good-cause continuances" when either
"prisoner or his counsel" is present, it contemplates that scheduling questions may be left to counsel. (emphasis added).
In the case at hand, Brown's request for a speedy trial was filed on August 2, 2011. At the first pretrial conference in October of 2011, Brown was present with his counsel. At this hearing defense counsel agreed to the March 6, 2012 trial date. According to the previously cited cases, this was sufficient to waive Brown's KRS 500.110 right to a trial within 180 days. On March 6, 2012, when the Commonwealth requested a continuance, defense counsel requested a quick trial date so that Brown could "exercise his right to a speedy trial." If we were to assume this was a new motion pursuant to KRS 500.110, the final date scheduled for trial, July 10, 2012, was within 180 days. We therefore find that the trial court erred when it dismissed the charges against Brown. Brown waived his right to a trial within 180 days by acquiescing to the March 6, 2012 trial date.
Brown argues on appeal that his constitutional right to a speedy trial was also violated and that even if we reverse on the KRS 500.110 issue, we should still affirm the judgment of the trial court. We disagree.
In order to determine if a defendant's constitutional right to a speedy trial was violated, we must examine four factors: "(1) the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant caused by the delay." Dunaway, 60 S.W.3d at 569. As for the first factor, the Commonwealth concedes that a delay of almost 23 months before the July 10, 2012 trial date is presumptively prejudicial; therefore, we will move forward.
When considering the reasons for the delay, we must consider three categories of delay: "(1) a 'deliberate attempt to delay the trial in order to hamper the defense'; (2) a 'more neutral reason such as negligence or overcrowded courts'; and (3) 'a valid reason, such as a missing witness.' " Id. at 570 (citation omitted).
In [Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)], the United States Supreme Court indicated that "different weights should be assigned to different reasons." 407 U.S. at 531, 92 S.Ct. 2182. For example, deliberate attempts to delay trial should be weighted heavily against the prosecution. Id. More neutral reasons (e.g., negligence) "should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id. Finally, valid reasons (e.g., a missing witness) are justifiable. Id.Smith v. Commonwealth, 361 S.W.3d 908, 915 (Ky. 2012).
Here, Brown admits that the most substantial delay between indictment and the ultimate day of trial was at the request of both parties in order to ensure that all charges had been brought and for the Commonwealth to extend an offer to resolve all pending indictments. In addition, the first trial date offered in February of 2012 was rejected by both parties because the attorneys for both sides had scheduling conflicts. This delay would be considered a neutral reason. Also, the continuance granted on March 6, 2012, was due to a missing witness and the continuance on May 29, 2012, was due to unavailable DNA evidence. We consider these two continuances to be reasonably justified. We find that there was no deliberate attempt to delay Brown's trial. The delays that occurred were for neutral or justifiable reasons.
Next, we must examine Brown's assertion of his right to a speedy trial. Brown first asserted his motion for a speedy trial on August 2, 2011. While this weighs in Brown's favor, the issue of a speedy trial was not discussed before the trial court until March 6, 2012. At this time, when the Commonwealth requested a continuance, defense counsel objected citing to Brown's speedy trial request. When the continuance was granted, defense counsel did not ask for a dismissal of the charges or a sooner trial date, counsel only asked for a reduction in bond, which was granted. Brown also objected to the continuance in May of 2012. In addition, Brown filed two motions to dismiss the charges against him for failure to prosecute. He cited KRS 500.110 in these motions, but we consider them to be further assertions of his constitutional right to a speedy trial. These multiple assertions to his right for a speedy trial weigh in Brown's favor; however, Brown did not request a speedy trial for almost one year after his arrest and indictment. Furthermore, the continuances granted in 2012 only accounted for a delay of less than four months.
We now turn our attention to the fourth and final factor, the prejudice to Brown caused by the delay.
The United States Supreme Court identified three interests relevant to this inquiry as the interests the speedy trial right was designed to protect: (1) to preventSmith, 361 S.W.3d at 917 -918 (citations omitted).
oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Of these, the last is considered the most serious.
As to the preventing oppressive pretrial incarceration, Brown began serving a 17 year sentence after being arrested on the current charges and was also being held in custody on two other felony indictments. Regardless of how fast these charges were resolved, Brown was going to remain in prison. Additionally, "[a] defendant must show anxiety which extends beyond that which 'is inevitable in a criminal case.' Rather, the requisite showing is one of 'psychic injury.' " Preston v. Commonwealth, 898 S.W.2d 504, 507 (Ky. App. 1995)(citations omitted).
Brown did show some anxiety in this case beyond the kind inevitable in a criminal case. He wrote to the court on two occasions that he wanted new trial counsel because he felt his current counsel was not doing enough for his defense. This weighs in Brown's favor; however, the delay in trial also allowed new defense counsel to be appointed to Brown.
Finally, Brown cites to no evidence that his defense was impaired by the delay. The only impairment to his defense cited was his dissatisfaction with his first appointed counsel, but this was unrelated to the delay of trial. As noted previously, this alleged impairment was remedied when he received new counsel in March of 2012.
In balancing all the above factors, we find that Brown's constitutional right to a speedy trial was not violated.
For the foregoing reasons we reverse the Jefferson Circuit Court and vacate the judgment dismissing the indictments.
ALL CONCUR. BRIEFS FOR APPELLANT: Jack Conway
Attorney General of Kentucky
Dorislee Gilbert
Louisville, Kentucky
BRIEF FOR APPELLEE: Elizabeth B. McMahon
Assistant Public Defender
Louisville, Kentucky