MELVIN HENRY IGNATOW v. STEPHEN P. RYAN, JUDGE, JEFFERSON CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY
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April 30, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000077-OA
MELVIN HENRY IGNATOW
PETITIONER
ORIGINAL ACTION
REGARDING JEFFERSON CIRCUIT COURT
INDICTMENT NO. 97-CR-2596
v.
STEPHEN P. RYAN, JUDGE,
JEFFERSON CIRCUIT COURT
RESPONDENT
AND
COMMONWEALTH OF KENTUCKY
REAL PARTY IN INTEREST
OPINION
DENYING PROHIBITION
***
***
***
BEFORE: GARDNER, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge.
Petitioner Melvin Henry Ignatow filed an
original action pursuant to Kentucky Rules of Civil Procedure (CR)
76.36 and 81, asking this Court to prohibit enforcement of the
order entered by Respondent Stephen P. Ryan, Judge, Jefferson
Circuit Court, on December 9, 1998, denying Ignatow’s motion to
dismiss Indictment No. 97-CR-002596 charging him with first-degree
perjury and with being a second-degree persistent felony offender.
On September 25, 1988, Brenda Sue Schaefer disappeared.
Ignatow, the last person known to be with Schaefer, was the primary
suspect
in
her
disappearance
from
the
beginning
of
the
investigation.
On March 22, 1989, Schaefer’s former employer, Dr.
William Spaulding sent an anonymous letter to Ignatow directing him
to place any information regarding Schaefer’s disappearance in a
post office box or Spaulding would have Ignatow killed.
Ignatow
filed a criminal complaint against Spaulding, which resulted in
Spaulding being convicted under Kentucky Revised Statute (KRS)
508.080 for terroristic threatening. At Spaulding’s trial, Ignatow
testified about his relationship with Schaefer and the night she
disappeared:
TM: HAD YOU BEEN ON A BOAT WITH HER THAT DAY OR DOWN TO
THE RIVER WITH HER?
MI: UM, NO, I WAS NOT ON A BOAT WITH HER.
UM, UM, LATE
THAT EVENING WE WENT DOWN TO THE RIVER ___________
CAPTAIN’S QUARTERS.
TM: HAD YOU GONE TO A BOAT SHOW THAT DAY?
MI: UH, WE ATTEMPTED TO YES, BUT IT WAS A VERY RAINY
DISMAL DAY AND DECIDED TO, NOT TO, WE WENT OUT THERE BUT
WE NEVER GOT OUT OF THE CAR.
********
TM: ON SEPTEMBER 24, 1988, WHAT WAS YOUR RELATIONSHIP
WITH BRENDA SCHAEFER, WAS IT GOOD OR HOW WOULD YOU
CHARACTERIZE IT?
-2-
MI: IT WAS GOOD AND I LOVED HER VERY MUCH AND SHE LOVED
ME AND UH WE WERE ENGAGED TO BE MARRIED.
TM: YOU HAD NO KNOWLEDGE THAT THERE WAS ANYTHING WRONG
WITH YOUR RELATIONSHIP, IT WAS AN ABSOLUTE GOOD LOVING
RELATIONSHIP?
MI: THAT’S CORRECT.
TM: AND YOU ALL PARTED ON GOOD TERMS WHEN YOU LAST SAW
HER I TAKE IT?
MI: WHAT DO YOU MEAN BY PARTED?
TM: WHEN YOU LAST SAW HER, UH, EVERYTHING WAS FINE I TAKE
IT?
MI: YES, WE HAD INTENDED TO GET TOGETHER THE NEXT DAY AS
A MATTER OF FACT, WE MADE PLANS TO DO SO BECAUSE WE
WEREN’T ABLE TO GO TO THE BOAT SHOW OR THE ART FAIR OR GO
TAKE THE BOAT OUT OR ANYTHING CAUSE IT WAS A RAINY DISMAL
DAY AND WE TRIED BUT IT WAS JUST HOPELESS SO WE HAD
PLANNED TO GO THE NEXT DAY.1
1
Ignatow’s alleged perjurious statements are limited to
the above testimony as stated in a Bill of Particulars filed by the
Commonwealth’s Attorney in 97-CR-002596.
-3-
On January 9, 1990, Mary Ann Shore, a former girlfriend
of
Ignatow’s,
made
a
statement
to
the
Federal
Bureau
of
Investigation regarding the disappearance and death of Schaefer.
Shore stated that Ignatow contacted her in August 1988 to help him
give Schaefer a sex therapy class.
Two weeks prior to Schaefer’s
disappearance, Ignatow and Shore dug a grave several yards behind
Shore’s house for Schaefer. Shore stated that Ignatow indicated he
did not intend to kill Schaefer, but rather, to frighten her.
On
September 23, 1988, the night before Schaefer’s disappearance,
Ignatow left several items at Shore’s house, including chloroform
or ether, rope, gloves, tape, garbage bags and a paddle.
Shore
stated that when Ignatow arrived at her house the next evening with
Schaefer, Shore deadlocked the door so Schaefer could not leave.
Ignatow informed Schaefer she was there for a sex therapy class and
began hours of physical and sexual torture that concluded with
Schaefer’s death.
Shore stated she photographed the torture for
Ignatow and that Ignatow took the jewelry he had removed from
Schaefer and the photographs with him when he left Shore’s house.
Shore also led police to the location of Schaefer’s body.
The body
was disinterred, but due to advanced decomposition, the cause of
death could not be determined.
The F.B.I. then wired Shore and had her arrange a meeting
with Ignatow in an attempt to obtain a confession or admission of
guilt from Ignatow.
referred
to
The conversation between Ignatow and Shore
something
buried
behind
Shore’s
directly mentioned Schaefer or her body.
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home,
but
never
On January 10, 1990, Ignatow was charged in Indictment
No. 90-CR-0057 with first-degree murder, KRS 507.020; first-degree
kidnapping, KRS 509.040; first-degree sodomy, KRS 510.070; firstdegree
sexual
abuse,
KRS
510.110;
first-degree
robbery,
KRS
515.020; and tampering with physical evidence, KRS 524.100.
On December 21, 1991, a jury acquitted Ignatow of all
charges.
There was a mountain of circumstantial evidence pointing
to Ignatow’s guilt, but no direct evidence.
Coupled with Shore’s
questionable credibility and the lack of an admission on the tape
recording of the conversation between Shore and Ignatow, the jury
was unable to find Ignatow guilty beyond a reasonable doubt.
On January 7, 1992, Ignatow was charged in the United
States District Court for the Western District of Kentucky in
Indictment No. CR 92-00007L(J) with Making False Statements Before
A Federal Grand Jury, 18 United States Code (U.S.C.) § 1623 (1994);
Subornation of Perjury, 18 U.S.C. § 1622 (1994); and Making False
Statements to the F.B.I., 18 U.S.C. § 1001 (1979).
These charges
arose from the F.B.I.’s investigation of Ignatow for Schaefer’s
disappearance.
On
October
1,
1992,
Schaefer’s
jewelry
and
photographs of Ignatow sexually abusing, torturing and murdering
Schaefer were discovered by carpet installers in Ignatow’s former
home.
On October 2, 1992, Ignatow pled guilty to all charges,
confessed to killing Schaefer, and was subsequently sentenced to
eight years and one month in the federal penitentiary.
On October 6, 1992, Ignatow made a statement to federal
prosecutors and officers that his relationship with Schaefer had
deteriorated to the point he could no longer go on, and that he
-5-
called
Shore
and
informed
her
he
planned
to
kill
Schaefer.
Ignatow’s statement corroborated Shore’s testimony from his murder
trial and detailed the atrocities he committed against Schaefer.
In October 1997, Jefferson County Commonwealth’s Attorney
David Stengel sought and obtained an indictment against Ignatow for
first-degree perjury, KRS 523.020, and second-degree persistent
felony offender, KRS 532.080.2
a motion to dismiss.
On October 12, 1998, Ignatow filed
On December 9, 1998, Judge Ryan entered an
order denying the motion.
This action followed.
Prohibition will only be granted if (1) a trial court is
proceeding outside its jurisdiction and there is no adequate remedy
by
appeal;
or
(2)
a
trial
court
is
proceeding
within
its
jurisdiction, but erroneously, there is no adequate remedy by
appeal, and irreparable harm or great injustice will result if no
relief is obtained.
Potter v. Eli Lilly and Co., Ky., 926 S.W.2d
449, 452 (1996).
Ignatow argues that prohibition is the proper remedy
because
Judge
improperly.
Ryan
is
acting
within
his
jurisdiction,
but
Ignatow contends the December 9, 1998, order, which
permits his prosecution for perjury to continue, violates the
Double Jeopardy Clause of the United States Constitution, Fifth
Amendment, Sections 2 and 13 of the Kentucky Constitution, and KRS
505.040, and as such he will suffer immediate and irreparable harm
2
Ignatow was convicted of two counts Filing a Fraudulent
Income Tax Return in the United States District Court for the
Western District of Kentucky, Indictment No. CR 84-00108-01-L on
November 21, 1984.
This conviction gave the Commonwealth the
underlying felony conviction necessary to enhance Ignatow’s perjury
conviction pursuant to KRS 532.080.
-6-
that cannot be remedied on appeal.
The real party in interest, the
Commonwealth, contends that prohibition is improper because Ignatow
has an adequate remedy by appeal.
We disagree.
The right to appeal is not an adequate remedy against
double jeopardy.
Abney v. United States, 431 U.S. 651, 659, 97 S.
Ct. 2034, 2040, 52 L. Ed. 2d 651 (1977).
The Double Jeopardy
Clause is intended to prevent trial and conviction, not to remedy
the violation of this right through appeal, as “[the defendant] has
reason for concern as to the consequences in terms of stigma as
well as penalty.
He must be prepared to meet not only the evidence
of the prosecution and the verdict of the jury but the verdict of
the community as well.”
Price v. Georgia, 398 U.S. 323, 331 n.10,
90 S. Ct. 1757, 1762 n.10, 26 L. Ed. 2d 300 (1970).
appellate
review
until
after
conviction
and
To postpone
sentence
would
undermine the purpose of the Double Jeopardy Clause, as it is a
guarantee that a defendant will not be twice tried for the same
offense.
The doctrine of collateral estoppel is derived from the
Double
Jeopardy
reconsidering
prevailed.
already
an
Clause
issue
and
on
precludes
which
the
a
second
defendant
jury
has
from
already
A second prosecution based in part on the very issue
decided
“implicates
concerns
about
the
injustice
of
exposing a defendant to repeated risks of conviction for the same
conduct, and to the ordeal of multiple trials, that lie at the
heart of the Double Jeopardy Clause.” United States v. Mespoulede,
597 F.2d 329, 336 (2d Cir. 1979).
Because the same public policy
concerns and principles lie in collateral estoppel as in double
-7-
jeopardy, relief in the form of prohibition is proper in an
original action based on collateral estoppel.
Because Ignatow is
properly before this Court, we shall consider the merits of his
appeal.
The
Double
Jeopardy
Clause
of
the
United
States
Constitution3 and Sections 2 and 13 of the Kentucky Constitution4
protect defendants in three ways: (1) against a second prosecution
for
the
same
offense
after
acquittal;
(2)
against
a
second
prosecution for the same offense after conviction; and (3) against
multiple punishments for the same offense.
Ohio v. Johnson, 467
U.S. 493, 498; 104 S. Ct. 2536, 2540; 81 L. Ed. 2d 425 (1984).
Collateral estoppel is derived from this guarantee.
The collateral estoppel doctrine holds that “when an
issue of ultimate fact has once been determined by a valid and
final judgment [i.e., an acquittal], that issue cannot again be
litigated between the same parties in any future lawsuit [i.e., a
prosecution].”
Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189,
1195, 25 L. Ed. 2d 469 (1970).5
Collateral estoppel is applicable
3
Amendment Five of the United States Constitution
contains the Double Jeopardy Clause: "[N]or shall any person be
subject for the same offense to be twice put in jeopardy of life or
limb."
4
Section 2 of the Kentucky Constitution states:
"Absolute and arbitrary power over the lives, liberty and property
of freemen exists nowhere in a republic, not even in the largest
majority."
Section 13 of the Kentucky Constitution states:
"No
person shall, for the same offense, be twice put in jeopardy of his
life or limb . . . ."
5
Ignatow’s current indictment stems from his testimony in
a case in which he was the criminal complainant, but not a party.
(continued...)
-8-
in criminal cases only when double jeopardy is not.
United States
v. Bailin, 977 F.2d 270, 275 (7th Cir. 1992).
Collateral estoppel should be rationally, rather than
hypertechnically, applied.
1194, 25 L. Ed.2d at 475.
Ashe, 397 U.S. at 444, 90 S. Ct. at
If a previous judgment of acquittal is
based upon a general verdict, then a court must “examine the record
of a prior proceeding, taking into account the pleadings, evidence,
charge and other relevant matter, and conclude whether a rational
jury could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.”
Id.
(quoting Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct.
237, 240, 92 L. Ed. 180 (1948)).
However, the principle of
collateral estoppel "strongly militates against giving an acquittal
preclusive effect" because the absence of remedial measures for the
Commonwealth in criminal cases "permits juries to acquit out of
compassion or compromise or because of "’their assumption of a
power which they had no right to exercise, but to which they were
disposed through lenity.’”(Citations omitted.) Standefer v. United
States, 447 U.S. 10, 22, 100 S. Ct. 1999, 2007, 64 L. Ed. 2d 689
(1980).
The principle of collateral estoppel was refined in
Dowling v. United States, 493 U.S. 342, 110 S. Ct. 668, 107 L. Ed.
2d 708 (1990), holding that collateral estoppel was inapplicable
unless the issue in the present case was an ultimate issue in the
(...continued)
However, the mutuality requirement is present because Ignatow
alleges facts previously determined in his 1990 trial must be relitigated and decided in favor of the Commonwealth for it to
prevail under the present indictment.
-9-
previous prosecution.
Dowling, 493 U.S. at 350, 110 S. Ct. at 673,
107 L. Ed.2d at 718.
The burden is on Ignatow to demonstrate the
issues he seeks to foreclose were actually decided in the prior
proceeding.
Id.
Ignatow first argues that the Commonwealth is barred from
prosecuting him under KRS 505.040(1)(a) and (b), which codified
double jeopardy and collateral estoppel.
KRS 505.040 provides
that:
Although a prosecution is for a violation of a different
statutory provision from a former prosecution or for a
violation of the same provision but based on different
facts, it is barred by the former prosecution under the
following circumstances:
(1)
The former prosecution resulted in an acquittal, a
conviction which has not subsequently been set aside, or
a determination that there was insufficient evidence to
warrant a conviction, and the subsequent prosecution is
for:
(a) An offense of which the defendant could have been
convicted at the first prosecution; or
(b) An offense involving the same conduct as the first
prosecution, unless each prosecution requires proof of a
fact not required in the other prosecution or unless the
offense was not consummated when the former prosecution
began; or
(2)
The former prosecution was terminated by a final
order or judgment which has not subsequently been set
-10-
aside and which required a determination inconsistent
with any fact necessary to a conviction in the subsequent
prosecution[.]
The Legislative Commentary to this statute states:
[T]he subsequent prosecution is barred by subsection
(1)(a) if it is for an offense of which the defendant
could have been convicted at the first prosecution
. . . .
The prosecution most likely to be barred by this
subsection is one for an "included offense" . . . .
Following an acquittal, a conviction, or a
determination by the court that there was insufficient
evidence
to
warrant
a
conviction,
a
subsequent
prosecution is barred by subsection (1)(b) if it is for
an
offense
involving
prosecution . . . .
exceptions
are
the
same
conduct
as
a
former
To this general principle, two
provided.
The
first
allows
for
a
subsequent prosecution for an offense arising out of the
same conduct if each of the two offenses requires proof
of a fact not required for conviction of the other
. . . .
The second exception allows for a subsequent
prosecution arising out of the same conduct if the
offense involved in the subsequent prosecution had not
been consummated at the time of trial of the former
prosecution.
Ignatow
argues
that
subsection
1(a)
of
the
statute
requires the Commonwealth to try all possible known charges at the
-11-
same time.
We disagree.
Commonwealth
to
try
KRS 505.040(1)(a) does not require the
all
offenses
in
a
single
trial.
The
prohibition is against retrial for offenses that naturally flow
from the indictment, such as included offenses, as the Commentary
suggests.
The reason for this rule is clear.
If under the
indictment the defendant could have been convicted for the included
offenses,
then
Commonwealth
v.
he
was
placed
Ladusaw,
in
Ky.,
10
jeopardy
for
those
crimes.
S.W.2d
1089,
1090
(1928).
Otherwise the prosecution is not barred from a later prosecution
for a separate offense.
See United States v. Dixon, 509 U.S. 688,
705, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556 (1993) ("The
collateral-estoppel effect attributed to the Double Jeopardy Clause
[citations omitted] may bar a later prosecution for a separate
offense where the Government has lost an earlier prosecution
involving the same facts.
But this does not establish that the
Government ‘must . . . bring its prosecutions . . . together.’
It
is entirely free to bring them separately, and can win convictions
in both").
Furthermore,
nowhere
in
the
Commonwealth mandated to join offenses.
Criminal
Rules
is
the
Although RCr 6.18 permits
the Commonwealth to charge multiple counts in an indictment, there
is no requirement that it do so.
"Two (2) or more offenses may be
charged in the same . . . indictment."
RCr 6.18 (emphasis
supplied). Therefore, Ignatow’s indictment for perjury is not
precluded by KRS 505.040(1)(a).
Ignatow also argues that the Commonwealth is barred from
prosecuting him under subsection (1)(b).
-12-
The Commonwealth is
barred from prosecuting Ignatow under KRS 505.040 1(b) if at least
one element of the crimes Ignatow is presently under indictment for
is exclusive from at least one element of the crimes Ignatow was
indicted for in 1990.
For this purpose, the Court shall adopt the
procedure outlined in Blockburger v. United States, 284 U.S. 299,
304, 525 S. Ct. 180, 182, 76 L. Ed. 306 (1932).
See Burge v.
Commonwealth, Ky., 947 S.W.2d 805 (1996) (holding that Kentucky
will apply Blockburger)6.
In 1990, Ignatow was indicted for murder, kidnapping,
sodomy, sexual abuse and tampering with physical evidence.
To
prove first-degree murder, KRS 507.020, the Commonwealth had to
show that Ignatow:
(1) with intent to cause death of another
person; (2) caused the death of such person; (3) not acting under
the influence of extreme emotional disturbance.
For first-degree
kidnapping, KRS 509.040, the Commonwealth was required to show that
Ignatow:
(1) unlawfully; (2) restrained another person; (3) with
intent to inflict bodily injury or terror or to accomplish or
advance the commission of a felony.
For first-degree sodomy, KRS
510.070, the Commonwealth had to prove that Ignatow: (1) engaged in
deviate sexual intercourse with another person; (2) by forcible
compulsion.
To prove first-degree sexual abuse, KRS 510.110(1),
the Commonwealth had to show that Ignatow:
(1) subjected another
person to sexual contact; (2) by forcible compulsion.
for
first-degree
robbery,
KRS
required to prove that Ignatow:
515.020,
the
To convict
Commonwealth
was
(1) in the course of committing a
6
Burge was held to apply retroactively in Justice v.
Commonwealth, Ky., ___ S.W.2d ___ (Dec. 17, 1998).
-13-
theft; (2) used or threatened immediate use of physical force; (3)
with intent to accomplish the theft; (4) caused physical injury to
a person not a participant in the crime or used or threatened
immediate
use
participant
in
of
a
the
dangerous
crime.
instrument
Finally,
to
on
a
prove
person
not
tampering
a
with
physical evidence, the Commonwealth had to show that Ignatow: (1)
believed that an official proceeding was pending or might be
instituted; (2) destroyed, mutilated, concealed, removed or altered
physical evidence which he believed was about to be produced or
used in the official proceeding with intent to impair its verity or
avail-ability.
Ignatow is presently under indictment for perjury and for
being a persistent felony offender. To prove first-degree perjury,
KRS 523.020, the Commonwealth is required to show that Ignatow: (1)
made a material false statement; (2) which he did not believe; (3)
in an official proceeding; (4) under an oath required or authorized
by law.
To prove second-degree persistent felony offender, KRS
532.080, the Commonwealth is required to show that Ignatow: (1) is
more than twenty-one years of age; and (2) was convicted of a
felony after having been convicted of one previous felony.
Each element of perjury and persistent felony offender
(with the exception of venue) differ from each element of murder,
kidnapping,
evidence.
sodomy,
sexual
abuse
and
The reverse is also true.
tampering
with
physical
Therefore, the Commonwealth
is not barred from prosecuting Ignatow under the present indictment
by KRS 505.040(1)(b).
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Ignatow also contends that the Commonwealth is precluded
from
trying
him
for
first-degree
perjury
pursuant
to
KRS
505.040(2), because to prove perjury the Commonwealth must prove he
murdered Schaefer, a crime for which he was acquitted.
contention is erroneous.
This
Kentucky adopted the United States
Supreme Court’s analysis of collateral estoppel from Ashe, supra,
in Smith v. Lowe, Ky., 792 S.W.2d 371 (1990).
In Smith, the
defendant, tried and acquitted in federal court for willfully
disabling a motor vehicle employed in interstate commerce which
resulted in the death of the vehicle’s driver, was subsequently
indicted for murder in Kentucky.
Although the death of the driver
was not an element of the offense, the jury instructions required
a finding of death for enhancement of the sentence, and the
indictment charged that the defendant’s actions resulted in the
death of the driver.
Id. at 373.
The Smith Court adopted the reasoning of the United
States Supreme Court in Ashe, supra, and applied the collateral
estoppel doctrine to the case.
A general verdict of acquittal was
entered in federal court, and the court found that there was “no
way of determining from a purely technical standpoint why Mr. Smith
was
acquitted.”
The
Court
determined
Smith
could
have
been
acquitted for the failure of the government to prove the vehicle
was being operated in interstate commerce at the time of the
offense, but that argument was more theoretical than real.
The
Court said that the more realistic basis of Smith’s acquittal was
the jury did not believe the co-defendant’s testimony implicating
Smith.
By concluding that the federal jury acquitted Smith on the
-15-
substantive issue rather than the jurisdictional issue, the Supreme
Court departed from the holding in Ashe that the issue must be
necessarily determined and removed the burden of proof from the
defendant’s
shoulders.
Instead,
it
adopted
a
standard
for
collateral estoppel which precludes re-litigation of an issue if
the jury most realistically reached its verdict on that ground.7
Therefore, if Ignatow’s indictment for perjury is not precluded
under Kentucky law, it is not precluded under federal law.
Having considered the record, the pleadings, the charge,
and all other relevant material as required by Ashe and Smith, we
conclude that the jury could have reasonably acquitted Ignatow on
grounds which do not foreclose a prosecution for perjury.
Ignatow likely prevailed in the first trial for one of
two reasons: (1) there was insufficient evidence to convict him due
to the lack of forensic evidence and demonstrative evidence or, (2)
the jury did not believe that Ignatow was the individual that
murdered Schaefer. This Court is unable to extract a more definite
basis
for
the
jury
verdict.
To
establish
perjury
beyond
a
reasonable doubt, the Commonwealth is not required to show Ignatow
murdered, kidnapped, sodomized, sexually abused or robbed Schaefer,
or
destroyed
evidence
regarding
these
acts.
Rather,
the
Commonwealth must show that Ignatow lied about the status of his
7
The Supreme Court of Kentucky had the opportunity to
return to the federal interpretation of the doctrine of collateral
estoppel in Case No. 97-SC-01075-MR, Benton v. Crittenden, Ky.,
____ S.W.2d ____ (Dec. 17, 1998). In a 4-3 decision, the Supreme
Court reaffirmed its holding in Smith. As a petition for rehearing
has been filed, this opinion is not yet final, but it suggests that
Kentucky will continue to apply a more expansive interpretation of
the collateral estoppel doctrine.
-16-
relationship with Schaefer on the day he murdered her.
The
atrocities Ignatow later admitted to committing against Schaefer,
which are the very acts he was acquitted of, might be admissible
under the Kentucky Rules of Evidence.
See KRE 403; KRE 404(b).
However, the admissibility of such evidence is a matter that
addresses itself to the trial court’s discretion, and may be
adequately reviewed in a direct appeal.
In accord with Ashe and Smith, we conclude that Ignatow’s
prosecution for perjury and persistent felony offender is not
barred
by
the
collateral
estoppel
doctrine.
The
status
of
Ignatow’s relationship with Schaefer was never presented to the
jury, and thus never litigated.
Regardless of whether the jury
acquitted Ignatow because of insufficient evidence or a belief that
he did not kill Schaefer, the jury did not make any finding on the
status
of
Schaefer’s
and
Ignatow’s
relationship
at
the
time
Schaefer was killed.
At Ignatow’s trial for perjury, the Commonwealth intends
to admit evidence relating to Schaefer’s murder by Ignatow pursuant
to KRE 404(b):
(b) Other crimes, wrongs, or acts.
Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character
of
a
person
conformity therewith.
in
order
to
show
action
in
It may, however, be admissible:
(1) If offered for some other purpose, such as
proof
of
preparation,
motive,
plan,
opportunity,
knowledge,
identity,
absence of mistake or accident; or
-17-
intent,
or
(2) If so inextricably intertwined with other
evidence essential to the case that separation
of
the
two
(2)
could
not
be
accomplished
without serious adverse effect on the offering
party.
Ignatow asks this Court to determine whether evidence
concerning the charges Ignatow was acquitted of is inadmissible as
prior bad acts.
As earlier indicated, Ignatow has an adequate
remedy by appeal if evidentiary errors occur at trial.
For the foregoing reasons, Ignatow’s petition for a writ
of prohibition is denied.
ALL CONCUR.
COUNSEL AND ORAL ARGUMENT
FOR PETITIONER:
NO APPEARANCE FOR RESPONDENT
STEPHEN P. RYAN, JUDGE,
JEFFERSON CIRCUIT COURT
Brian Jay Lambert
Louisville, Kentucky
COUNSEL FOR REAL PARTY IN
INTEREST:
R. David Stengel
Special Assistant Attorney
General
Louisville, Kentucky
COUNSEL FOR REAL PARTY IN
INTEREST (cont’d):
Carol Cobb
Special Assistant Attorney
General
Louisville, Kentucky
Carol Cobb
John A. Dolan
Special Assistant Attorneys
General
Louisville, Kentucky
ORAL ARGUMENT FOR REAL PARTY
IN INTEREST:
-18-
-19-
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