GUY (JERRY LEWIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000456-MR
JERRY LEWIS GUY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JUDGE
ACTION NO. 07-CR-01653
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR
JUDGE.
LAMBERT, SENIOR JUDGE: Jerry Lewis Guy entered a conditional plea of
guilty to an amended charge of rape in the third degree. He appeals from the pretrial denial of his motion to dismiss the indictment.
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
In September of 1998, a 15-year-old female reported she had been
forcibly raped. She was unable to tell the police where the sexual assault occurred
but as she had been picked up on Versailles Road in Lexington, the detective
“assumed” the rape occurred in Fayette County. The victim told the investigating
detective three conflicting versions of the alleged incident and ultimately, the
detective found it “impossible to further investigate this case.” Years later, in
March of 2007, police received information that led them to believe Guy had
committed the rape. Thereafter, police obtained a DNA sample from Guy and it
compared favorably to DNA found on the female victim’s undergarments. An
indictment was returned in the Fayette Circuit Court in December of 2007 charging
Guy with one count of rape in the first degree.
There were a number of difficulties encountered by the lapse of time
from the date of the crime to indictment. The original detective had by then retired
and was unable to recall many of the details surrounding her investigation.
Although the detective’s original report indicated that the victim told three
conflicting versions of what occurred, police were not able to produce any of those
statements. The undergarment containing the DNA sample matching Guy’s
sample was not included in the original property and evidence record. As it turned
out, the undergarment was collected almost a week after the alleged rape at the
residence of one of the victim’s friends.
Guy filed a motion to dismiss the indictment alleging that the
Commonwealth was unable to prove jurisdiction because of a failure to establish in
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what county the rape occurred and that the Commonwealth had failed to produce
the potentially exculpatory inconsistent statements from the victim. That motion
was denied and Guy entered a conditional plea to an amended charge of rape in the
third degree, and he was sentenced to serve three years in prison.
Guy argues that because the Commonwealth failed to preserve
potentially materially exculpatory evidence in the form of the inconsistent
statements of the victim and because the Commonwealth was unable to prove an
element of the charge, the location of the crime, the indictment should have been
dismissed.
“[A] trial judge has no authority to weigh the sufficiency of the
evidence prior to trial or to summarily dismiss indictments in criminal cases.”
Commonwealth v. Bishop, 245 S.W.3d 733, 735 (Ky. 2008). The Supreme Court
of Kentucky has recognized a distinction between failure to preserve evidence and
failure to create evidence. In Metcalf v. Commonwealth, 158 S.W.3d 740 (Ky.
2005), the Court categorized an equipment malfunction as a failure to create
evidence rather than as a failure to preserve exculpatory evidence. The Court
recognized that ideally, perfect evidence in the form of recordings would be
available, but it concluded that the failure to create such evidence did not
undermine fundamental fairness because factual disputes could be resolved on the
basis of testimony from the persons involved. Moreover, even assuming that the
Commonwealth had an affirmative duty to preserve the various statements from
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the victim, dismissal of the indictment was not an appropriate remedy when the
statements were found to be unavailable.
When an indictment is properly returned to the trial court, “it must be
taken and considered as having been found and returned in due form of law, and
the court has no authority to inquire into evidence heard by the grand jury[.]”
Holland v. Commonwealth, 114 S.W.3d 792, 808 (Ky. 2003) (quoting Sebree v.
Commonwealth, 260 Ky. 526, 86 S.W.2d 282, 284 (1935)). Guy argues and the
record reflects that no evidence was presented to the grand jury regarding the
location of the offense. The indictment does, however, charge that the offense
occurred in Fayette County. It was the Commonwealth’s burden to prove venue at
trial. Guy removed that burden from the Commonwealth when he accepted the
offered plea bargain and entered a plea of guilty.
We will not speculate concerning evidence that may or may not have
been produced at trial nor upon a fact-finder’s view of that evidence. Our review
is limited to the sole question of whether the trial court improperly refused to
dismiss the indictment prior to trial. Upon the facts presented in this case, the trial
court lacked authority to dismiss the indictment.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kate D. Dunn
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky
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