Opinion
NO. 2014-CA-000101-DG
03-27-2015
COMMONWEALTH OF KENTUCKY APPELLANT v. ROBERT N. BAKER APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General of Kentucky Christopher S. Nordloh Special Assistant Attorney General Covington, Kentucky BRIEF FOR APPELLEE: David R. Steele Michael B. Baker Ft. Mitchell, Kentucky
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 13-XX-00019
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: The Commonwealth of Kentucky appeals from an order dismissing its appeal. The Commonwealth had appealed the Kenton District Court's acquittal of Robert Baker of the charge of driving under the influence (DUI). We find no error and affirm.
On May 2, 2013, Baker was charged with DUI and reckless driving. A breath test and blood test were conducted; however, no drugs or alcohol were found in his system. A jury trial was eventually set for September 17, 2013. Prior to trial, counsel for the Commonwealth had an e-mail exchange with the trial judge, Judge Ann Ruttle. In that exchange, Judge Ruttle expressed skepticism that the Commonwealth could support a DUI charge considering the results of the blood and breath tests.
The day of trial, the Commonwealth and defense counsel met in Judge Ruttle's chambers. There, Judge Ruttle again expressed that she did not believe the evidence was sufficient to support a DUI conviction. The Commonwealth refused to amend the charges. Also, during this in chambers discussion, defense counsel informed Judge Ruttle that Baker was going to waive his jury trial and requested a bench trial. Once back on the record in the courtroom, the Commonwealth orally moved for Judge Ruttle to recuse herself. The Commonwealth argued that Judge Ruttle had expressed opinions regarding the merits of the DUI. Judge Ruttle denied the motion. The Commonwealth then moved to have the denial of the motion reviewed, but that too was denied.
The court proceeded with the trial. Judge Ruttle asked the Commonwealth to begin its opening statements or present its first witness. The Commonwealth refused to call any witnesses and stated that it would appeal the recusal request. Judge Ruttle informed the Commonwealth that if it did not call any witnesses to testify, she would acquit Baker of the charges. The Commonwealth again refused to call any witnesses. Judge Ruttle then found Baker not guilty for lack of evidence.
The Commonwealth appealed to the circuit court. The court held that the Commonwealth could not appeal an acquittal based on §115 of the Kentucky Constitution which states in pertinent part that "[i]n all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law[.]" The Commonwealth was not seeking a certification of law; therefore, the circuit court dismissed the appeal. This appeal follows.
We agree with the circuit court that §115 of the Kentucky Constitution is controlling. Section 115 of the Kentucky Constitution is similar to the Double Jeopardy Clause found in the Fifth Amendment to the United States Constitution which states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" Baker was acquitted of the charges brought against him because the Commonwealth presented no evidence. The Commonwealth argues that the district court did not acquit Baker, merely dismissed the case; therefore, it should be able to try Baker again. We disagree.
[C]ases have defined an acquittal to encompass any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense. Thus an "acquittal" includes "a ruling by the court that the evidence is insufficient to convict," a "factual finding [that] necessarily establish[es] the criminal defendant's lack of criminal culpability," and any other "rulin[g] which relate[s] to the ultimate question of guilt or innocence." These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals
or mistrials. Procedural dismissals include rulings on questions that "are unrelated to factual guilt or innocence," but "which serve other purposes," including "a legal judgment that a defendant, although criminally culpable, may not be punished" because of some problem like an error with the indictment.Evans v. Michigan, --- U.S. ---, 133 S.Ct. 1069, 1074-75, 185 L.Ed.2d 124 (2013) (citations omitted). Here, the trial court acquitted Baker of the charges against him based on the Commonwealth's lack of proof. This was an acquittal, not a dismissal.
The Commonwealth argues that Baker was not acquitted of the charges and compares this case to that of Hourigan v. Commonwealth, 883 S.W.2d 497 (Ky. App. 1994). In Hourigan, Pamela Hourigan was charged with DUI. The Commonwealth sought the enhanced penalty in the statute because it was Hourigan's second DUI offense. During the Commonwealth's opening statement, the Commonwealth did not mention the prior offense. Hourigan's counsel then moved for a directed verdict of acquittal on the second offense enhancement. The district court granted the motion as to the enhancement, but declared a mistrial on the first offense charge. The Commonwealth appealed to the circuit court, which ordered the district court to try Hourigan on the second offense charge.
It is unclear from the Hourigan opinion if the case was tried before a jury or was a bench trial.
Hourigan then appealed to this Court arguing that her acquittal precluded a retrial based on the double jeopardy provision in the Kentucky Constitution and the United States Constitution. This Court held:
If the trial court's action truly were "the functional equivalent ... of a verdict of acquittal," retrial is prohibited. We think not, however. No evidence was heard by the trial court; no testing of the sufficiency of the Commonwealth's case was possible. No acquittal on the merits was involved. Although deemed by the trial court a "directed verdict," the action was, as the Commonwealth contends, more akin to a mistrial at the behest of the defendant than a true directed verdict of acquittal. No double jeopardy implications are present herein.Id. at 498.
In the case sub judice, the Commonwealth argues that because the trial court heard no evidence, no acquittal was possible. We disagree and believe Hourigan is distinguishable from the case at hand. In Hourigan, the Commonwealth was unable to present any evidence because of the defense's motion for directed verdict. Opening and closing statements are not evidence. Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001). Here, the Commonwealth was given the opportunity to present evidence, but it chose not to.
We believe this case is analogous to Martinez v. Illinois, --- U.S. ---, 134 S.Ct. 2070, 188 L.Ed.2d 1112 (2014). In Martinez, the prosecution refused to participate in a jury trial because two of its witnesses were not present. Because of this, the trial court acquitted the defendant of the charges. The Illinois Court of Appeals and the Illinois Supreme Court both found that jeopardy had not attached and the defendant could be put on trial again. The Courts recognized that jeopardy usually attaches after a jury is empaneled and sworn in, Serfass v. U. S., 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), but because the state refused to participate, the defendant was never at risk of conviction; therefore, the "trial 'court's entry of directed verdicts of not guilty did not constitute true acquittals.'" Martinez at 2074 (citation omitted).
The United States Supreme Court disagreed with the lower courts' holdings. It held:
"'[T]he conclusion that jeopardy has attached,'" however, "'begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.'" The remaining question is whether the jeopardy ended in such a manner that the defendant may not be retried. Here, there is no doubt that Martinez's jeopardy ended in a manner that bars his retrial: The trial court acquitted him of the charged offenses. "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '[a] verdict of acquittal ... could not be reviewed ... without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.'"Id. at 2075-76 (citations omitted).
"[O]ur cases have defined an acquittal to encompass any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense." And the trial court clearly made such a ruling here. After the State declined to present evidence against Martinez, his counsel moved for "directed findings of not guilty to both counts," and the court "grant[ed] the motion for a directed finding." That is a textbook acquittal: a finding that the State's evidence cannot support a conviction.
Even though the Martinez decision was based on a jury trial, its holding applies equally to a bench trial. During a bench trial, jeopardy attaches when the court begins to hear evidence. Allen v. Walter, 534 S.W.2d 453, 454 (Ky. 1976). Here, the trial court requested the Commonwealth call a witness, but it refused. Even though the trial court heard no evidence, it was prepared to do so. Because the Commonwealth produced no evidence, the trial court had no choice but to acquit Baker of the charges. Jeopardy attached when the trial court asked the Commonwealth to present its evidence; therefore, the trial court's ruling was not a dismissal, it was an acquittal. The Commonwealth cannot appeal Baker's acquittal.
The Commonwealth makes other arguments on appeal concerning the trial judge's refusal to recuse herself from the proceedings. Those arguments are moot.
Based on the foregoing, the judgment of the circuit court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General of Kentucky
Christopher S. Nordloh
Special Assistant Attorney General
Covington, Kentucky
BRIEF FOR APPELLEE: David R. Steele
Michael B. Baker
Ft. Mitchell, Kentucky