M. J., A JUVENILE v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 8, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000508-DG
M. J., A JUVENILE
APPELLANT
ON REVIEW FROM MARION CIRCUIT COURT
HONORABLE ALLAN BERTRAM, JUDGE
ACTION NOS. 00-XX-00003 AND 00-XX-00019
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
M. J., a juvenile, has appealed from an order
of the Marion Circuit Court entered on February 19, 2001, which
affirmed an order of the Marion District Court entered on
February 23, 2000.
Following an adjudication hearing, the
district court found that M. J. committed the offense of criminal
mischief in the third degree1 and adjudicated him a public
offender.2
Having concluded that the district court did not
1
Kentucky Revised Statutes (KRS) 512.040.
2
KRS 610.010.
abuse its discretion by recessing the adjudication hearing and by
calling an additional witness, we affirm.
The Commonwealth alleged in a juvenile complaint that
on or about October 1, 1999, M. J., who was 11 years old at the
time, fired a BB gun at J. W. Carey’s pickup truck, causing
damages of $207.70.3
M. J. was charged with criminal mischief in
the third degree; and an adjudication hearing was set for January
26, 2000, in Marion District Court.
At this hearing, Carey testified that he saw M. J.
firing the air rifle out of the window of an abandoned building.
Carey also stated that he knew of another witness who saw what
happened, but he could not at that time remember her name.
After
Carey finished testifying, the Commonwealth stated that it had no
other witnesses.
directed verdict.
M. J. then moved the district court for a
The district court judge denied M. J.’s motion
for a directed verdict and stated that he was going to recess the
hearing to allow time to locate the other witness.
The adjudication hearing resumed two weeks later on
February 9, 2000; and 14-year-old Tabitha Russell testified that
she saw M. J. shoot an air rifle at Carey’s truck.
Russell
stated that one of the BB’s almost hit her in the arm after it
ricocheted off the truck.
Both of M. J.’s parents testified, but
they were unable to account for M. J.’s whereabouts for part of
3
Testimony at M. J.’s adjudication hearing indicated that
there was a history of conflict between Carey and M. J.’s family.
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the time frame when the offense allegedly occurred.
M. J. also
testified and denied shooting a BB gun at Carey’s truck.4
The district court specifically found Russell’s
testimony to be “credible and believable,” and found M. J. to be
a public offender.
At the disposition hearing on February 23,
2000, the district court followed the recommendations from the
Department of Juvenile Justice and ordered M. J. to write a
letter of apology to Carey, to pay for the damages caused to
Carey’s truck, and to stay away from Carey and his property.
The
Marion Circuit Court affirmed the district court’s order in an
order entered on February 19, 2001.
This Court granted
discretionary review on May 10, 2001.
The crux of M. J.’s argument on appeal is that the
district court erred when it denied his motion for a directed
verdict and instead ordered a recess of the adjudication hearing
to allow for the testimony from Russell.
M. J. claims that the
rulings by the district court subjected him to double jeopardy
and denied him due process of law.
He argues in his brief as
follows:
4
M. J. and his parents testified that M. J. never owned a BB
gun.
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According to KRS 505.030(4)5 the ONLY
time that a court may interrupt the trial
proceedings and terminate them without the
consent of the defendant is when “manifest
necessity” requires this action. This section
is meant ONLY to be used when interruptions
occur that are “beyond the control of the
court.” The interruption of M. J.’s case was
not due to circumstances outside of the trial
court. Rather, it was due because the
Commonwealth had not properly prepared this
case [emphases original] [citation omitted].
We begin our legal analysis by noting that M. J.’s
claim that the case against him was terminated on January 26,
2000, is not supported by the record.
A correct description of
what occurred is that the district court recessed the
adjudication hearing on January 26, 2000, and the hearing resumed
two weeks later.
Accordingly, M. J.’s reliance on KRS 505.030(4)
is misplaced; and his argument that he was twice placed in
jeopardy is without merit.
M. J. also argues that the district court’s procedural
rulings at the adjudication hearing denied him due process of
5
KRS 505.030 reads in pertinent part as follows:
When a prosecution is for a violation of
the same statutory provision and is based
upon the same facts as a former prosecution,
it is barred by the former prosecution under
the following circumstances:
. . .
(4) The former prosecution was
improperly terminated after the first
witness was sworn but before findings
were rendered by a trier of fact
[emphasis added].
-4-
law.
We hold that the district court did not abuse its
discretion by sua sponte recessing the hearing and then resuming
the hearing two weeks later to hear testimony from Russell.
In Davis v. Commonwealth,6 our Supreme Court discussed
the discretion afforded trial courts in determining whether to
admit further evidence after the prosecution has announced
closed:
While a party should not normally be
permitted to offer additional testimony after
announcing the conclusion of its evidence,
and certainly should be precluded from
introduction of evidence-in-chief after
announcing that no rebuttal evidence will be
presented, we cannot overlook the probative
nature of the evidence so offered and its
prior unavailability. If the record
demonstrated any bad faith on the part of the
Commonwealth, we would not hesitate to hold
that the admission of such evidence amounted
to an abuse of the trial court's discretion.
This not being the case, however, we find no
abuse of the trial court's discretion in its
application of RCr 9.42(e).7
Moreover, under KRE8 614(a) and (b), a trial court is
expressly permitted to call and interrogate witnesses sua sponte:
(a) Calling by court. The court
own motion or at the suggestion
call witnesses, and all parties
to cross-examine witnesses thus
6
may, on its
of a party,
are entitled
called.
Ky., 795 S.W.2d 942, 947 (1990).
7
Kentucky Rules of Criminal Procedure (RCr) 9.42(e)
provides: “The parties respectively may offer rebutting evidence,
unless the court, for good reason in furtherance of justice,
permits them to offer evidence-in-chief.”
8
Kentucky Rules of Evidence.
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(b) Interrogation by court. The court may
interrogate witnesses, whether called by
itself or by a party.
In Michigan v. Betts,9 the Court of Appeals of Michigan
discussed the broad discretion afforded trial courts in calling
witnesses to testify, even after the parties have rested:
The issue in this case arises as a
result of the trial court's indicating, after
the testimony had been presented by both
parties, that it wanted to question a
witness, Anita Turner, who had earlier been
waived by the parties but who had been listed
as a res gestae witness. The court allowed
the prosecutor to reopen the case because
there were two conflicting versions of the
testimony and the court did not know what to
believe. The case was continued for a few
days to allow the witness to be brought
in. . . .
. . .
The people argue that, under MRE 614, a
trial judge is permitted to call and
interrogate witnesses. Plaintiff also notes
that a trial judge may examine witnesses and
call witnesses not called by either party.
We have been unable to find any
discussion under MRE 614 relative to the
issue in this case, and most of the
discussion seems to be dealt with under FRE
614, which is identical to MRE 614. See 3
Orfield, Criminal Procedure Under the Federal
Rules, § 26:167, p 462, which states:
Some American cases have suggested
that in some cases the judge in the
interest of justice, may have a
duty as well as the power to call
witnesses, and may be reversed if
he fails to do so. But the federal
appellate courts have been
9
155 Mich.App. 478, 400 N.W.2d 650, 651-53 (1986). Kentucky
and Michigan have identical provisions governing the ability of
trial courts to call and interrogate witnesses.
-6-
unwilling to reverse on this
ground. They hold that the exercise
of the right to call a court's
witness is a discretionary matter
and that only for an abuse of that
discretion resulting in prejudice
to the defendant will a trial court
be adjudged to be in error and a
conviction reversed.
In the case at bar, we cannot conclude that the
district court abused its discretion by ordering a recess of the
adjudication hearing for the purpose of calling Russell as a
witness.
Since the evidence showed that Russell was the only
witness to the incident who was neither a party nor the alleged
victim, understandably, the trial court was interested in hearing
whether Russell’s testimony supported Carey’s version of the
events.
Finally, M. J. argues that he was denied the ability to
obtain the separation of witnesses as provided for in RCr 9.48.
Specifically, he argues:
Since the Commonwealth had named only
one witness at the time of the adjudication
hearing, the defense lost the opportunity to
ask for separation of the witnesses. Pursuant
to RCr 9.48, either party may request
separation of witnesses prior to adjudication
hearing or trial. If at the time of the
adjudication hearing, the defense would have
known that another witness would be
testifying, [counsel] would have asked for
separation of witnesses. As this trial was
continued for a period of two weeks there was
no practical way to separate witnesses. This
continuance thus greatly prejudiced the
defendant.
The fatal flaw in this argument is that counsel for M.
J. failed to request separation of the witnesses when it became
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known that the adjudication hearing would be recessed for two
weeks so that Russell could be brought forward to testify.
The
text of RCr 9.48 reads in pertinent part:
If either a defendant or the Commonwealth
requests it, the judge may exclude from the
hearing or trial any witness of the adverse
party not at the time under examination, so
that the witness may not hear the testimony
of the other witnesses [emphasis added].
Further, in Robinson v. Commonwealth,10 the former Court of
Appeals stated:
The next ground of error advanced by
appellant is that a witness for the
Commonwealth was permitted to testify after
having sat in the courtroom and having heard
the testimony of other witnesses. A
separation of witnesses had been requested
pursuant to RCr 9.48. The simple answer to
this contention is that no objection was made
to the testimony of this witness and alleged
errors will not be reviewed by this court
when the party claiming error has not made
known to the court the action which he
desired the court to take or his objection to
the action of the court. RCr 9.22.
In the case at bar, not only was no objection made to
Russell’s testimony, there had been no request for separation of
the witnesses.
Counsel for M. J. could have requested the
district court to admonish Carey to not discuss the case with
Russell until after she testified.
M. J. cannot now claim error
when his position was not made known to the trial court.11
10
Ky., 474 S.W.2d 107, 110 (1971).
11
RCr 9.22; Johnson v. Commonwealth, Ky., 505 S.W.2d 470,
471 (1974).
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Accordingly, this alleged error has not been properly preserved
for appellate review.
For the foregoing reasons, the order of the Marion
District Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General
Suzanne A. Hopf
Frankfort, Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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