COMMONWEALTH OF KENTUCKY v. EARNESTINE BAKER
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January 14, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000935-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
INDICTMENT NO. 97-CR-00170
v.
EARNESTINE BAKER
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, GARDNER1 and HUDDLESTON, Judges.
HUDDLESTON, Judge:
The Commonwealth of Kentucky appeals from a
Pulaski Circuit Court order dismissing with prejudice an indictment
charging Earnestine Baker with six counts of assault in the second
degree.
In early May 1997, Baker’s two daughters, ages 14 and 16,
were arguing and fighting with each other.
According to Baker,
after they failed to heed her verbal command to stop, she struck
1
Judge Gardner concurred in this decision prior to leaving
the Court on January 2, 2000.
each of the two girls with a wooden stick.
The Division of Social
Services of the Cabinet for Families and Children was notified of
the incident and the children were removed temporarily from the
home on the basis of child abuse.
On May 13, 1997, Detective Randy Goff of the Somerset
Police and Cynthia Maggard of Social Services interviewed the two
children, who told them that Baker had hit them with a wooden
stick.
One of the girls also showed them bruises on her thigh and
arm, but the other had no visible signs of injury.
Both girls
stated that they had been struck with various wooden objects in the
past.
The next day, Detective Goff conducted a taped interview of
Baker, who admitted having hit the girls with a wooden stick in an
effort to discipline them.
Upon searching the family’s apartment,
Detective Goff recovered several wooden sticks of various sizes,
one of which was described as a billy club.
Baker was charged in Indictment No. 97-CR-00103 with six
felony counts of criminal abuse involving two beating incidents in
May 1997. While that indictment was pending, Detective Gary Jones,
who was Detective Goff’s supervisor, appeared before the Pulaski
County grand jury and testified that Baker had struck her children
with an aluminum baseball bat.
On December 3, 1997, the grand jury
returned Indictment No. 97-CR-00170 charging Baker with six felony
counts of assault in the second degree (Ky. Rev. Stat. (KRS)
508.100)
concerning
the
same
indictment for criminal abuse.
conduct
involved
in
the
prior
The second indictment alleged that
between May 1 and 31, 1997, Baker had committed the offense of
“Assault in the Second Degree by wantonly causing serious physical
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injury to [her two daughters] by means of a deadly weapon or
dangerous instrument.” Following Baker’s arraignment on Indictment
No. 97-CR-00170, the trial court granted the Commonwealth’s motion
to amend the indictment to substitute the word “intentionally” for
the word “wantonly,” and to dismiss Indictment No. 97-CR-00103.
On March 9, 1998, Baker filed a motion to dismiss the
indictment or, in the alternative, to amend the charges to fourthdegree assault.
In her motion, Baker argued that she had a
constitutional right to use reasonable corporal punishment to
discipline her children and that the Commonwealth had failed to
show that Baker’s conduct satisfied the statutory requirements for
second-degree
assault.
In
the
motion,
Baker
noted
that
the
instrument used in the incidents was described by the prosecution
at various times as a “wooden club,” “billy club,” “wooden stick”
and “aluminum baseball bat.” However, Baker did not seek dismissal
at
that
time
proceedings.
based
on
any
irregularities
in
the
grand
jury
On March 16, 1998, the Commonwealth filed a response
to the motion arguing that dismissal of the indictment would be
premature.
Baker filed a reply and asserted, for the first time,
that the indictment should be dismissed or the case should be represented to the grand jury because the indictment was based on
false testimony.
The trial court conducted an evidentiary hearing on the
motion on March 23, 1998.
At the hearing, Baker’s attorney asked
the court to dismiss the indictment with prejudice because of
alleged false testimony before the grand jury. Counsel argued that
the prosecution’s actions were so egregious that the Commonwealth
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should not be allowed to present the case to a new grand jury.
Detective Jones was the only witness present at the hearing.
He
testified that he presented the case to the grand jury because
Detective
Goff,
unavailable.
the
investigating
officer,
was
temporarily
He admitted that he had little knowledge about the
case and merely relied on the prosecutor to provide the relevant
information by answering his questions.
He acknowledged that he
had testified that Baker struck her children with an aluminum
baseball bat, but conceded that there was no evidence that a
baseball bat was used.2
2
Gary Jones testified before the grand jury (in Indictment
No. 97-CR-00170) as follows:
EXAMINATION BY PROSECUTOR
Q.
Would you state your name, please?
A.
Gary Jones.
Q.
During the course of, uh, your duties at the
Somerset Police Department, did you learn of an
investigation, uh, involving Earnestine Baker?
A.
Yes, sir.
Q.
On May 1, 1997 and again on May 31, 1997, did Ms.
Baker, was she, uh, reported to your department
for,
uh,
causing
physical
injury
to
her
daughter[s]?
A.
Yes, sir.
Q.
And had she struck her children with a baseball
bat?
A.
Yes, sir.
Q.
And as a result of that, did they, uh, did that
cause physical injury to both her children?
(continued...)
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On April 3, 1998, the trial court dismissed Indictment
No. 97-CR-00170 with prejudice.
The court noted the ethical
obligation of prosecutors to observe the independent status of the
grand jury and ensure that indictments are returned in a just
manner.
It found that Detective Jones’s testimony concerning the
use of an aluminum baseball bat was materially false and that it
affected the grand jury’s decision whether to indict on the assault
charge, which required the use of a deadly weapon.
The court also
found that the Commonwealth’s Attorney had knowingly or recklessly
elicited false testimony before the grand jury through leading and
suggestive questions, and Detective Jones voluntarily testified
even though he had no personal knowledge of the facts of the case.
The court held that dismissal of the indictment with prejudice was
necessary to ensure the integrity of the criminal justice system.
On appeal, the Commonwealth challenges the dismissal of
the indictment and, especially, its dismissal with prejudice.
2
The
(...continued)
A.
Yes, sir.
Q.
And, uh, during the course of your investigation,
Ms. Baker was interviewed? Is that correct?
A.
That’s correct.
Q.
During which time, she acknowledged that she did
strike her children about the body with an aluminum
baseball bat?
A.
Q.
Yes, sir.
Okay. Does the grand jury have any questions?
(SILENCE)
A.
Thank you.
END OF TESTIMONY
-5-
Commonwealth argues that the trial court lacked authority to
dismiss the indictment based on false testimony before the grand
jury and, even if it had such authority, that the court abused its
discretion in dismissing the indictment with prejudice.
Courts are extremely reluctant to scrutinize grand jury
proceedings as there is a strong presumption of regularity that
attaches to such proceedings.3
Ordinarily, courts should not
attempt to scrutinize the quality or sufficiency of the evidence
presented to the grand jury.4
“An indictment returned by a legally
constituted and unbiased grand jury . . . if valid on its face, is
enough to call for trial of the charge on the merits.”5
However, in Bank of Nova Scotia v. United States,6 the
United States Supreme Court recognized the federal court’s inherent
supervisory
authority
nonconstitutional
to
dismiss
irregularities,
an
including
misconduct occurring before a grand jury.
dismissal
of
the
indictment
is
indictment
based
on
prosecutorial
“Under this standard,
appropriate
only
‘if
it
is
established that the violation substantially influenced the grand
jury’s decision to indict,’ or if there is ‘grave doubt’ that the
3
Terrance v. Commonwealth, Ky., 265 S.W.2d 40 (1953); United
States v. Jones, 766 F.2d 994 (6th Cir. 1985).
4
See Ky. R. Crim. Proc. (RCr) 5.10 (indictment shall not be
quashed because of insufficiency of evidence); United States v.
Williams, 504 U.S. 50, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (1992);
King v. Venders, Ky., 595 S.W.2d 714 (1980).
5
Costello v. United States, 350 U.S. 359, 363, 76 S. Ct.
406, 409, 100 L. Ed. 397 (1956).
6
487 U.S. 251, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988).
-6-
decision to indict was free from the substantial influence of such
violations.”7
Generally, a defendant must demonstrate a flagrant abuse
of the grand jury process that resulted in both actual prejudice
and deprived the grand jury of autonomous and unbiased judgment.8
A court may utilize its supervisory power to dismiss an indictment
where a prosecutor knowingly or intentionally presents false,
misleading or perjured testimony to the grand jury that results in
actual prejudice to the defendant.9
The requirement that the
defendant show both a flagrant abuse of the process and actual
prejudice was explained in United States v. Roth:10
The first requirement, that the government know the
evidence
was
perjured,
is
intended
to
preserve
the
principle that an indictment cannot be challenged on the
basis of the insufficiency of the evidence on which the
grand jury acted . . . .
What makes the government’s
knowing use of perjured testimony different is that it
involves an element of deceit, which converts the issue
from the adequacy of the indictment’s evidentiary basis
to
fraudulent
manipulation
of
the
grand
jury
that
subverts its independence. The second requirement in the
7
Id. at 256, 108 S. Ct. at 2374, 101 L. Ed. 2d at 238
(quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S. Ct.
938, 945, 89 L. Ed. 2d 50, 61 (1986) (O’Connor, J., concurring)).
8
Id. at 257-60, 108 S. Ct. at 2374-76, 101 L. Ed. at 238-40;
United States v. Larrazolo, 869 F.2d 1354, 1360 (9th Cir. 1989).
9
See United States v. Adamo, 742 F.2d 927 (6th Cir. 1984);
United States v. Soberon, 929 F.2d 935 (3d Cir. 1991).
10
777 F.2d 1200 (7th Cir. 1985).
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cases, that the indictment would not have been issued
except for the perjured testimony, confines judicial
intervention to cases of prejudicial misconduct, that is,
to cases where the misconduct made a difference to the
defendant.11
Although there are no Kentucky cases directly on point,
in another context involving conduct before a court, the Kentucky
Supreme Court, in Potter v. Eli Lilly & Co.,12 affirmed that this
state’s courts have an inherent supervisory power to protect the
integrity of the judicial process from fraud and bad faith conduct.
In so doing, the Court said:
We are persuaded that there are certain implied
powers which are inherent in any Court of Justice in this
State
which
arise
from
the
very
nature
of
their
institution. Such authority is required because they are
necessary
authority.
to
proper
exercise
of
all
other
judicial
As such, these powers are governed not by
statute or rule, but by the control vested in the court
to manage its own affairs so as to achieve the orderly
and expeditious, accurate and truthful disposition of
causes and cases . . . .
In Kentucky, such authority is
vested in the sound discretion of the court in question
subject
to
appropriate
appellate
review.
All
such
authority must be exercised with great caution even
11
Id. at 1204.
12
Ky., 926 S.W.2d 449 (1996).
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though it is necessarily incidental to the function of
all courts.13
Despite the absence of Kentucky case law in this area, we
reject the Commonwealth’s contention that the circuit court did not
have authority to utilize its supervisory power to dismiss the
indictment based on prosecutorial misconduct in order to preserve
the integrity of the grand jury proceeding.
Here, the trial court
found that Detective Jones made a materially false statement before
the grand jury14 and that the prosecutor misled the grand jury by
indicating that Baker used an aluminum baseball bat to beat her
children when there was no evidence to support the belief that
anything other than a wooden stick was used.
The court found that
the prosecutor intentionally misrepresented the instrument used in
order to elevate the seriousness of the offense to second-degree
assault, and thereby violated the independence of the grand jury.
Although the prosecutor who presented the case to the
grand jury did not testify at the hearing on the motion to
dismiss,15 Detective Jones admitted that there was no evidence to
13
Id. at 453.
14
The trial court cited Commonwealth v. Stallard, Ky., 958
S.W.2d 21 (1997), in determining the legal effect of Detective
Jones’s testimony.
Stallard, however, involved the statutory
offenses of perjury and false swearing by a witness before a grand
jury.
Although the court’s criticism of Detective Jones’s
appearance before the grand jury without adequate knowledge of the
case is appropriate, the record does not support its finding that
Jones knowingly gave false testimony and committed perjury.
15
We have been informed that the prosecutor who presented the
case to the grand jury was suspended from the practice of law
following his conviction in the United States District Court for
the Eastern District of Kentucky of the crime of Interference with
(continued...)
-9-
support the claim that Baker used an aluminum baseball bat.
The
police seized several items from Baker’s apartment including a
wooden stick and a billy club, but no baseball bat.
A different
prosecuting
information
attorney
eventually
conceded
that
the
presented to the grand jury regarding the aluminum baseball bat was
false.
The trial court’s finding that the prosecutor knowingly or
intentionally presented false information to the grand jury is
amply supported by the record.
Furthermore, we agree with the trial court’s conclusion
that
the
false
testimony
prejudiced
Baker
by
substantially
influencing the grand jury’s decision to indict. Detective Jones’s
testimony consisting of affirmative responses to the prosecutor’s
questions was the only evidence presented to the grand jury.
The
prosecutor’s action deprived the grand jury of its ability to
exercise its independent judgment.
We cannot say the trial court
erred in exercising its supervisory power to dismiss the indictment
charging Baker with second-degree assault.
While we agree with the trial court that the prosecutor’s
actions in this case were both flagrant and prejudicial and justify
dismissal of the indictment, we believe that the court abused its
discretion in dismissing the indictment with prejudice.
Although
the courts exercise a supervisory role over grand juries, that role
is limited, and dismissal of an indictment is “an extreme sanction
15
(...continued)
Commerce by Threat involving
defendant he was prosecuting.
the
-10-
extortion
of
money
from
a
that should be infrequently utilized.”16 Dismissal of an indictment
with prejudice is the most severe sanction possible and necessarily
implicates separation-of-powers principles.17
Only a few cases discuss the sanction of dismissal of an
indictment with prejudice.
For instance, in United States v.
Lawson,18 the court declined to dismiss an indictment with prejudice
despite “particularly egregious” misconduct by the prosecutor:
Although defendants do have a constitutional right to an
informed
and
unbiased
grand
jury,
they
have
no
concomitant right to bar forever investigation into their
alleged criminal conduct.
While outrageous government
conduct could taint evidence irrevocably, or prejudice a
defendant’s case on the merits such that notions of due
process
and
fundamental
fairness
would
preclude
reindictment, questioning a grand jury witness in a
harrassing [sic] manner or prejudicing a grand jury with
inflamatory [sic] remarks is generally curable.
Thus,
most federal courts that have dismissed indictments due
to prosecutorial misconduct in the grand jury room have
done so without prejudice to subsequent reindictment.
Significantly, the remand in [United States v.]
Serubo [,604 F.2d 807 (3rd Cir. 1979),] indicates that
16
United States v. DiBernardo, 775 F.2d 1470, 1475 (11th Cir.
1985) (quoting United States v. Pabian, 704 F.2d 1533, 1536 (11th
Cir. 1983)).
17
United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir.
1992); United States v. Williams, 504 U.S. at 46, 112 S. Ct. at
1741, 118 L. Ed. 2d at 364.
18
502 F. Supp. 158 (D. Md. 1980).
-11-
the better view is to allow reindictment upon dismissal
if the new grand jury would not be affected by the prior
government
improprieties.
Here,
there
has
been
no
showing that the actual evidence against the defendants
is tainted irrevocably, or that there exists in this
District a pattern of prosecutorial misconduct that is
“widespread or continuous.”
The grand jury misconduct
about which defendants rightly complain was the product
of a single Assistant United States Attorney, who is no
longer associated with the case.
While the court in no
way condones his conduct, in balancing the deterrent
objectives of dismissal with prejudice against society’s
interest in the prosecution of those who violate its law,
the court concludes that it should not forever bar the
government from prosecuting the defendants.19
In United States v. Morrison,20 (finding dismissal of
indictment was improper relief for unsuccessful attempt by drug
agents to obtain incriminating information from accused without
presence of her attorney), the Supreme Court cautioned courts “to
identify
and
misconduct]
then
by
neutralize
tailoring
circumstances . . . .”
the
relief
taint
[of
prosecutorial
appropriate
in
the
A trial court should consider alternative
19
Id. at 172-73 (citations omitted).
See also Pinson v.
Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989).
20
449 U.S. 361, 365, 101 S. Ct. 665, 668, 66 L. Ed. 2d 564,
568 (1981).
-12-
sanctions before imposing the ultimate sanction of dismissal with
prejudice which precludes any further prosecution.21
The Court in
Bank of Nova Scotia noted several alternative remedies other than
dismissal of an indictment available for prosecutorial misconduct
including punishment for contempt of court, chastisement in a
published opinion, or bar or agency disciplinary action.22
In the present case, there is no indication that the
prosecuting attorney’s action irrevocably tainted the evidence or
would prejudice Baker’s case upon trial.
Furthermore, Baker has
not shown and does not contend that the Commonwealth’s Attorney’s
Office engaged in widespread and continuous similar misconduct
outside of this particular case.
The prosecuting attorney who
presented the case to the grand jury is no longer involved or even
employed by the state, and a new prosecuting attorney is now
handling the case.
While we agree, as earlier indicated, that dismissal of
the
indictment
is
appropriate,
upon
balancing
the
appellee’s
interests with the societal interests and any deterrent effect, we
conclude
that
prejudice.
the
indictment
should
not
be
dismissed
with
We certainly echo the trial court’s criticism of the
prosecutor’s conduct in this case, but conclude, based on the
authorities above cited, that the court abused its discretion in
dismissing the indictment with prejudice.
21
See United States v. Welborn, 849 F.2d 980, 985 (5th Cir.
1988).
22
350 U.S. at 263, 108 S. Ct. at 2378, 101 L. Ed. 2d 243.
-13-
Therefore, we affirm the order dismissing the indictment,
reverse that portion of the order dismissing the indictment with
prejudice, and remand for further proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. B. Chandler III
Attorney General
Mark J. Stanziano
Somerset, Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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