Summary
In Johnson v. Commonwealth, Ky.App., 709 S.W.2d 838, 839 (1986), cert. denied, 479 U.S. 865 (1986), a mistrial was declared because a witness referred to the defendant as an "ex-convict.
Summary of this case from Commonwealth of Kentucky v. DeloneyOpinion
February 28, 1986. Rehearing Denied April 11, 1986. Discretionary Review Denied by Supreme Court June 6, 1986.
Appeal from the Shelby Circuit Court, Harold Saunders, J.
Edward C. Airhart, Louisville, for appellant.
David L. Armstrong, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
Before DUNN, HOWERTON and REYNOLDS, JJ.
Johnson entered a plea of guilty to a charge of criminal possession of a forged instrument in the second degree for which he was given a two-year sentence. The sentence was probated for five years. Two other charges were dismissed. As part of the plea arrangement, Johnson reserved the right to appeal from an order denying his motion to dismiss the indictment against him. In his motion to dismiss, he argued that the indictment failed to state a public offense, that he was placed in double jeopardy, and that he was denied a speedy trial. Although Johnson's plea waived all defenses except that the indictment fails to state an offense, Quarles v. Commonwealth, Ky., 456 S.W.2d 693 (1970), we will nevertheless consider all three issues as preserved for our review, because of the plea arrangement. However, we find no merit in any of these arguments, and we affirm the judgment of the Shelby Circuit Court.
On July 6, 1983, Johnson was indicted for (1) criminal possession of a forged instrument in the second degree in violation of KRS 516.060, (2) theft by failure to make a required disposition in violation of KRS 514.070, and (3) being a persistent felony offender in the second degree pursuant to KRS 532.080. Johnson was an attorney representing one Steven R. Robinson in a workers' compensation claim. Johnson received a check in the amount of $36,500, payable to both parties, representing a lump-sum settlement, and Johnson endorsed the check on behalf of Robinson.
Johnson was incarcerated from July 22, 1983, to December 2, 1983, for an earlier conviction. He demanded a speedy trial pursuant to KRS 500.110, a jury was empaneled, and testimony was taken on January 19, 1984. A mistrial was declared, however, because a witness referred to Johnson as an "ex-convict." Johnson was again incarcerated from July 9, 1984, to October 2, 1984, but he made no new motion for a speedy trial.
The next hearing on this case was held on November 6, 1984, at which time Johnson moved to dismiss the indictment on the ground that it was multiplicitous and/or duplicitous in regard to Count II, that he was improperly classified as a PFO in the second degree, that he had been denied a speedy trial, and that he was being placed in double jeopardy by the new trial for the same offense. The court denied the motion and set the case for trial on January 31, 1985. Johnson agreed to enter a plea of guilty to Count I on the condition that he could appeal the denial of his motion to dismiss the indictment. The plea of guilty was accepted, and this appeal has followed.
Johnson argues that the indictment under which he was charged with possession of a forged instrument fails to state an offense under the provisions of KRS 516.060. He alleges that an endorsement is not required in order to constitute a complete instrument, that the indictment failed to charge him with knowledge that Robinson's endorsement was a forgery or that he lacked the authority to make the endorsement, and that the indictment failed to consider that since he was Robinson's attorney, he had the right to collect the $36,500 settlement and pay it to Robinson in any form of legal tender. Johnson further argues that since KRS 376.040 gave him a lien upon the proceeds of the check for his fee, and since his name appeared on the check with Robinson's name, he was entitled to a portion of the total sum. He then alleges that no criminal action may be maintained until a civil suit has first ascertained the amount in question.
The indictment specifically charged Johnson with the "offense of criminal possession of a forged instrument in the second degree, when he possessed a forged check in the amount of $36,500 drawn on the Manufacturers Hanover Trust Company; said instrument was made payable to one Steven R. Robinson and the defendant was Mr. Robinson's attorney, representing a lump-sum workers' compensation settlement based upon a claim made by Mr. Robinson and paid by the Continental Insurance Company. The name of 'Steve R. Robinson' was forged on the check." Clearly, Johnson possessed the check, and he wrote Robinson's name on it as an endorsement. In Frazier v. Commonwealth, Ky., 613 S.W.2d 423 (1981), the court specifically held that "an endorsement falls within the categories of instruments specified in KRS 516.030." Frazier, at 426. Under KRS 516.060, one must possess a forged instrument of a kind specified in KRS 516.030. We agree with the Commonwealth that the indictment states a public offense.
An indictment is sufficient if it fairly informs the defendant of the nature of the charges against him. Wills v. Commonwealth, Ky., 489 S.W.2d 823 (1973). As to Johnson's allegations that the indictment fails because it did not charge him with knowledge that the endorsement was a forgery and that it failed to rebut the issue of Johnson being Robinson's agent, we determine that while the allegations possibly present a question of defects in the indictment, they do not indicate that the indictment fails to state an offense. Furthermore, in order for alleged defects in the indictment to be considered on appeal, they must be preserved for appellate review. RCr 6.12 and Strunk v. Commonwealth, 302 Ky. 464, 194 S.W.2d 1002 (1946). According to Strong v. Commonwealth, Ky., 507 S.W.2d 691 (1974), a defect in an indictment is waived unless raised by a timely objection. Under Quarles v. Commonwealth, supra, when Johnson pled guilty, he waived all defenses to the indictment, other than that the indictment fails to state an offense.
Johnson next argues that since his first trial was aborted because of alleged prosecutorial misconduct, the second trial placed him in double jeopardy. He contends that since his motion for a mistrial was necessitated by the Commonwealth, a retrial is barred under United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1968). He further argues that a retrial is barred because the order declaring a mistrial failed to state any basis for the declaration.
While it is true that bad-faith conduct by a judge or prosecutor will bar a retrial following a mistrial, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), the rule is intended to discourage prosecutorial and judicial misconduct. Commonwealth v. Lewis, Ky., 548 S.W.2d 509 (1977). In this case, however, we are only concerned with the testimony of a witness who inadvertently brought up the subject of Johnson's status as an "ex-convict." The error in the first trial was not anything willfully or intentionally injected by the prosecutor. Furthermore, we find no error by the court in failing to make written findings of its reasons for declaring a mistrial in the absence of Johnson's request for the findings. Lynch v. Commonwealth, Ky.App., 610 S.W.2d 902 (1981). We might add that it was Johnson who requested the mistrial, and it seems a bit absurd that he now needs to know the reasons which entitled him to his request.
Johnson's final argument is that the one-year lapse between the mistrial and the retrial denied him the right to a speedy trial. He cites Mann v. Commonwealth, Ky.App., 561 S.W.2d 335 (1978), for the proposition that a lapse of seven-and-one-half months between a demand for trial and the trial itself denied the accused of a speedy trial. We find Mann to be distinguishable from this case, because in Mann, the defendant made a demand for a speedy trial. Although Johnson requested and received a speedy first trial, he made no demand for a speedy retrial following the mistrial. In Walker v. Commonwealth, Ky., 561 S.W.2d 656 (1977) (15-month delay), Byrd v. Commonwealth, Ky., 509 S.W.2d 261 (1974) (21-month delay), and McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979) (3-year delay), the defendants made no attempt to secure speedy trials and the court found the delays to be nonprejudicial. In Byrd, supra, the defendant's conviction in his first trial was reversed on March 14, 1971. On July 13, 1972, the defendant filed a motion to dismiss his case for failure to prosecute within a reasonable time. The motion was denied, and Byrd was retried and convicted 21 months after the appellate court reversed his first conviction. The issue of the long delay was considered on appeal, but the subsequent conviction was upheld. Byrd, supra.
Johnson got his first trial within 180 days after his motion. KRS 500.110 provides for one who is imprisoned to receive a trial within 180 days after a request is made in order to eliminate the effect of a detainer in the event the person is found to be innocent. Johnson was free at the time of his trial and remained so until July 1984. He was imprisoned until October and could have moved for a speedy trial, but he did not. We find no reversible prejudice in the delay in Johnson's retrial.
For the foregoing reasons, the judgment of the Shelby Circuit Court is affirmed.
All concur.