Opinion
NO. 2017-CA-000338-MR
01-19-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. JOHN ANTHONY ROBINSON APPELLEE
BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE: Rob Eggert Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 15-CR-001677 OPINION
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND JONES, JUDGES. KRAMER, CHIEF JUDGE: The Commonwealth of Kentucky has filed an interlocutory appeal from the Jefferson Circuit Court's order excluding documentary evidence about the amount of damages from being used during trial. After a careful review of the record, we reverse because a continuance is the historically-appropriate remedy, rather than exclusion of the evidence. We remand the case for further proceedings.
According to the indictment, the drop box at a bank in Jefferson County, Kentucky, was "defaced, destroyed, or damaged." John Anthony Robinson was indicted on one count of first-degree criminal mischief, one count of possession of burglar's tools, and one count of being a first-degree persistent felony offender (PFO-1st). The circuit court entered a discovery order, in which it directed counsel to "comply with the Rules of Criminal Procedure regarding discovery within the time frames outlined in the Rules of Practice of the Jefferson Circuit Court." The court's order stated, inter alia, that "[f]ailure to comply with this Order may result in the imposition of appropriate sanctions set forth in RCr 7.24(9)."
Kentucky Rule of Criminal Procedure.
The sanctions set forth previously in RCr 7.24(9) are now set forth in RCr 7.24(11), effective January 1, 2017.
On the day trial was scheduled to begin, Robinson moved, pursuant to RCr 7.24, RCr 7.26, the court's pre-trial order, and Robinson's constitutional rights to continue the trial date or, in the alternative, to prohibit the Commonwealth from introducing any evidence or testimony regarding the amount of monetary damages in the case. As a basis for his motion, Robinson claimed that for the Commonwealth to prove he committed first-degree criminal mischief, it was required to show that there were monetary damages of $1,000.00 or more. He alleged that he was arraigned in June 2015, yet the Commonwealth waited until January 23, 2017, less than twenty-four hours before trial was scheduled to begin, to email "spreadsheets and various documents purporting to show the damage to the night deposit box in the amount of $8,276.40." Robinson contended that production of those documents was "about 18 months late." He argued that the "documents and the information contained in the documents form the basis of the only felony charge in this indictment." If he is convicted of first-degree criminal mischief and then also convicted of PFO-1st stemming from that criminal mischief conviction, he would then be subject to imprisonment for ten to twenty years. Robinson asserted that by failing to provide this evidence earlier, the Commonwealth was denying him the right to contest the amount of damages; therefore, denying him a defense.
The circuit court entered an order stating that the
new discovery consisted of documentation sought to be used by the Commonwealth to establish that the amount of damage exceeded $1,000.00, a necessary element to make the criminal mischief charge a felony. The Court inquired of the prosecutor as to what he had to do in order to obtain this documentation; he responded that he made a [tele]phone call the day before trial and the documentation was provided to him. He stated that he then sent a copy to defense counsel.The circuit court then ordered that the documentation of the amount of damages "that was provided to defense counsel on January 23, 2017, and filed with the Court on January 24, 2017, is excluded from being used at the trial of this case. RCr 7.24(9), JRP Rule 803."
This Court, at defense counsel's request, excluded this eleventh hour evidence from being used at trial as violating the Defendant's rights to a fair trial, to effective assistance of counsel, to cross-examination of his accusers, and for violating this Court's Arraignment and Discovery Order which references the local rules of Jefferson Circuit Court.
The circuit court cited RCr 7.24(9) which, at the time the court entered its order excluding the evidence, provided: "One (1) motion shall exhaust the relief available to the movant under this rule, except that a subsequent motion may be sustained on a showing of just cause." We assume the court intended to cite the section of the rule pertaining to sanctions, which was RCr 7.24(9) until January 1, 2017, when the new version of the rule became effective, and the section regarding sanctions became RCr 7.24(11).
Jefferson County Local Rule. --------
The Commonwealth now appeals, contending that the circuit court erred in finding that the Commonwealth violated the rules of discovery; that Robinson's rights to a fair trial, the effective assistance of counsel, and cross-examination were not violated; and that the exclusion of the evidence is not warranted.
The circuit court found that the Commonwealth violated the rules of discovery. "[I]t is imperative that the Commonwealth provide full and timely discovery pursuant to RCr 7.24 and 7.26. Failure to do so will result in severe sanctions." Dixon v. Commonwealth, 519 S.W.3d 396, 400 (Ky. App. 2017) (internal quotation marks, citation, and footnote omitted). In Dixon, the defendant alleged that the court erred in allowing the Commonwealth to use evidence that it had not provided to the defense until the day before trial. The Commonwealth "informed the court that it had provided the list of materials the day before as a professional courtesy, because the defense had never made a discovery request. The trial court denied the motion to exclude evidence." Dixon, 519 S.W.3d at 400. On appeal, this Court found no error, reasoning as follows:
[F]ollowing Dixon's arraignment, the trial court issued an order in the case which, inter alia, instructed the Commonwealth to "furnish . . . all discovery required by law." However, Dixon does not argue that the discovery in question was exculpatory, and our law indicates that non-exculpatory discovery is a vehicle driven by the defense. RCr 7.24(1) requires the Commonwealth to provide discovery to the defense "upon written request." RCr 7.24(2) provides that, "[o]n motion of a defendant," the court may order the Commonwealth to allow the defense to copy documents in the Commonwealth's possession. RCr 7.24(3)(a) and (b) both begin by stating: "If the defendant requests disclosure. . . ." Taken as a whole, the language of the rule clearly indicates that discovery procedures are triggered by the defendant. [Because] the present appellant made no request for any discovery permitted by the rules, there are no grounds for reversal on the purported discovery violation.Dixon, 519 S.W.3d at 400 (internal quotation marks, footnote, and citations omitted).
Furthermore, the historically-appropriate remedy when faced with surprise evidence is for the defense to ask for a continuance. . . . Our Supreme Court has termed [the exclusion of evidence] "an extreme remedy" compared to a continuance. We agree with the trial court that exclusion was not justified under these circumstances.
In the present case, the circuit court's discovery order directed counsel to comply with the Rules of Criminal Procedure. Robinson did not contend in the circuit court that the discovery at issue is exculpatory. Additionally, there are no motions for discovery filed by Robinson in the record before us. After the Commonwealth produced the discovery at issue, Robinson moved the circuit court for a continuance or, in the alternative, to exclude the evidence. The circuit court chose the "extreme remedy" of excluding the evidence, rather than the "historically-appropriate" remedy of ordering a continuance. Id.
Further, to the extent that the circuit court relied upon JRP 803 in its decision to exclude the evidence, the court erred. The circuit court did not cite which section of JRP 803 applied to the discovery at issue. However, it does not appear that JRP 803(A), (C), (D), (E), or (F) are applicable. JRP 803(B) provides:
The Commonwealth shall permit the Defendant(s) to inspect and copy or photograph books, papers, documents or tangible objects or portions thereof that are in the possession, custody or control of the Commonwealth, or its agents, and which may be material to the preparation of her defense. If there is a dispute as to the materiality of such items, this matter shall be brought to the attention of the Court by the Commonwealth at the first pretrial or as soon thereafter as the dispute arises [RCr 7.24(2), 7.24(5)].The Commonwealth contends that it provided the discovery at issue as soon as it received the discovery from the victim (i.e., the bank). Moreover, JRP 803(G) provides in pertinent part that:
Any items not divulged according to the discovery deadlines may result in the court granting a request for a continuance, mistrial or dismissal of the action. The evidence may be suppressed unless good cause is shown or, in the alternative, the Court may enter such other Order as may be just under the circumstances [RCr 7.24(9)].
As we discussed supra, Robinson moved for a continuance or, in the alternative, to exclude the evidence; a continuance has been recognized historically by the courts as an appropriate remedy; and exclusion of evidence is considered an extreme remedy. Consequently, the circuit court erred in denying the motion for a continuance and in excluding the evidence at issue.
The Commonwealth also asserts that Robinson's rights to a fair trial, the effective assistance of counsel, and cross-examination were not violated and do not warrant exclusion of the evidence. As we have already discussed, a continuance is the more appropriate remedy, and a continuance would help ensure a fair trial and the protection of Robinson's constitutional rights to the effective assistance of counsel and cross-examination.
Accordingly, the order of the Jefferson Circuit Court is reversed and the case is remanded for further proceedings.
ALL CONCUR. BRIEF FOR APPELLANT: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Dorislee Gilbert
Special Assistant Attorney General
Louisville, Kentucky BRIEF FOR APPELLEE: Rob Eggert
Louisville, Kentucky