COMMONWEALTH OF KENTUCKY v. SIDNEY TERRANCE FORD
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RENDERED:
October 3, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002259-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 01-CR-002571
SIDNEY TERRANCE FORD
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND PAISLEY, JUDGES.
JOHNSON, JUDGE:
The Commonwealth of Kentucky has appealed from
an order entered by the Jefferson Circuit Court on October 8,
2002, which dismissed the indictment against Sidney Terrance
Ford with prejudice.
Having concluded that the trial court
erred in dismissing the indictment, we reverse and remand for
further proceedings.
On November 7, 2001, Sidney Ford was indicted by a
Jefferson County grand jury on one count of robbery in the first
degree1 and on one count as being a persistent felony offender in
the first degree (PFO I).2
The indictment charged that on or
about September 9, 2001, Ford robbed Matthew Casey, who was
homeless.
The charges against Ford arose in a somewhat unusual
manner.
Officers from the Louisville Police Department were
investigating Ford as a suspect in the homicide of John
Daugherty, another homeless man.
As part of the Daugherty
homicide investigation, Detective Gary Huffman and another
officer visited a location in Louisville known to be frequented
by homeless persons.
Det. Huffman was in the process of showing
a police mug shot of Ford to a group of men, when Casey
approached Det. Huffman and identified Ford as the man who had
robbed him earlier that month.3
Prior to Ford’s indictment by the grand jury, a
probable cause hearing was held in Jefferson District Court on
October 12, 2001.
hearing.
him.
Both Det. Huffman and Casey testified at this
Casey identified Ford as the individual who had robbed
Approximately one year later, on August 23, 2002, a
1
Kentucky Revised Statutes (KRS) 515.020.
Class B felony.
2
Robbery in the first degree is a
KRS 532.080(3).
3
Up until the time Casey identified Ford from the photograph as the man who
had robbed him, the detectives were not aware that any such robbery had
allegedly taken place. According to the record, the detectives’ sole purpose
in showing the photograph to the homeless men was to gather information
related to the Daugherty homicide investigation.
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suppression hearing was held to determine the admissibility of
Casey’s identification of Ford as the alleged robber.4
Casey did
not attend the suppression hearing held on August 23, 2002.
Testimony from Det. Huffman, as well as statements made by
Ford’s attorneys, indicated that substantial efforts had been
made to procure Casey’s attendance, but that those efforts had
failed.
Hence, the trial court continued the suppression
hearing to October 3, 2002, to allow the Commonwealth additional
time to locate Casey.
On the October hearing date, the Commonwealth produced
a document indicating that Casey had been served with a subpoena
compelling his attendance, but Casey nonetheless failed to
appear.
The trial court did not address the issue regarding the
admissibility of Casey’s identification of Ford.
Instead, after
expressing doubts as to whether Casey would ever be found, the
trial court dismissed the indictment against Ford with
prejudice.
This appeal followed.
As a preliminary matter, we deal first with Ford’s
assertions that the alleged error5 presented by the Commonwealth
was not preserved for appellate review, and that the brief filed
4
Defense counsel for Ford argued that the manner in which Casey identified
Ford as the perpetrator was “unnecessarily suggestive” and in violation of
Ford’s state and federal constitutional rights.
5
The Commonwealth’s sole argument on this appeal is that the trial court
erred in dismissing the indictment against Ford.
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on behalf of the Commonwealth failed to show where in the record
and in what manner this alleged error was preserved for review.6
First, Ford’s claim that the alleged error was not
properly preserved for review is without merit.
the record shows the following.
Our review of
After it was discovered that
Casey was not present at the August 23, 2002, suppression
hearing,7 defense counsel moved the trial court to dismiss the
indictment against Ford.
The Commonwealth clearly objected to
this motion by urging the trial court to go forward with the
testimony of Det. Huffman.
Indeed, the trial court agreed with
the Commonwealth and allowed Det. Huffman to testify.
However,
when the hearing was rescheduled for October 3, 2002, once
again, Casey was not present.
At the second hearing, the
Commonwealth again argued against dismissal, and urged the trial
court to let the case “proceed to trial.”
Pursuant to RCr8 9.22,
an alleged error will be preserved for appellate review if a
party “makes known to the court the action which that party
desires the court to take. . . .”9
In the case at bar, the
6
See Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). This rule
requires that briefs shall contain “at the beginning of the argument a
statement with reference to the record showing whether the issue was properly
preserved for review and, if so, in what manner.”
7
The parties agree that Casey had not been served with a subpoena compelling
his attendance on this date.
8
Kentucky Rules of Criminal Procedure.
9
See also Price v. Commonwealth, Ky., 474 S.W.2d 348, 350 (1971)(holding that
“[i]n order to effectuate an objection ‘. . . it is sufficient that a party,
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arguments made by the Commonwealth in response to defense
counsel’s motion to dismiss were sufficient to make known to the
trial court the action the Commonwealth desired.
Accordingly,
Ford’s claim that the issue was not preserved for appellate
review is without merit.
Second, while it is true that the original brief filed
on behalf of the Commonwealth did not comply with CR
76.12(4)(c)(v), the Commonwealth’s reply brief to this Court
contains citations to the record showing where and in what
manner the alleged error was preserved for review.
This is a
proper method by which to correct such a procedural mistake.10
Accordingly, we now turn to the merits of this case.
We agree with the Commonwealth that under the facts of
this case, the trial court erred by dismissing the indictment
against Ford.
In Commonwealth v. Isham,11 our Supreme Court
recently discussed the power of a trial court to dismiss an
indictment against a criminal defendant:
at the time the ruling or order of the court is made or sought, make known to
the court the action which he desires the court to take. . .’”)(quoting RCr
9.22).
10
See Hollingsworth v. Hollingsworth, Ky.App., 798 S.W.2d 145, 147 (1990)
(holding that “[e]ven though the appellant omitted the reference in his
original brief, he did insert the necessary references in his reply brief to
correct the omission. This serves the very purpose for which CR
76.12(4)(c)[(v)] was enacted; therefore, a reply brief may be used to both
supplement an appellant's original brief and to correct a procedural defect
related to CR 76.12(4)(c)[(v)]”).
11
Ky., 98 S.W.3d 59, 62 (2003).
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The Commonwealth also contends that the
Court of Appeals erred by concluding that
the district court had the authority to
dismiss the criminal complaint against
Isham. It is argued that the authority to
dismiss a criminal complaint before trial
may only be exercised by the Commonwealth,
and the trial court may only dismiss via a
directed verdict following a trial. We
agree.
RCr 9.64 provides that "[t]he attorney
for the Commonwealth, with the permission of
the court, may dismiss the indictment,
information, complaint or uniform citation
prior to the swearing of the jury or, in a
non-jury case, prior to the swearing of the
first witness."
Hence, under the facts of the case sub judice, the trial court
lacked the authority to dismiss the indictment against Ford
prior to trial.
An analogous situation is found in the case of
Commonwealth v. Hicks,12 where the Supreme Court stated:
From the transcript of the hearing at
which the motion to dismiss was granted, it
is unmistakable that the trial judge
perceived an indifference by the Kentucky
State Police to its duty to provide
breathalyzer technicians to testify in
court. As a punitive gesture toward the
state police, the judge determined that the
case should be dismissed. In so doing, he
overlooked clear authority to the contrary.
It is an age-old principle that a party is
not required to produce all the evidence
which might be in existence, nor even the
most persuasive evidence which might be
obtainable. A party who announces ready for
trial is entitled to go forward and it is
12
Ky., 869 S.W.2d 35 (1994).
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not within the province of the trial judge
to evaluate the evidence in advance to
determine whether a trial should be held.
The time for such an evaluation is upon
motion for a directed verdict.13
Similarly, in the case at bar, the trial court
expressed doubt that the Commonwealth would be able to produce
its key witness at the trial scheduled for January 28, 2003.
Despite the Commonwealth’s contention that it would be ready for
trial on the scheduled date, the trial court dismissed the
indictment with prejudice, thereby precluding any future
prosecution of Ford on the charge of robbing Casey.
Under the
facts of this case, the trial court lacked the authority to
dismiss the indictment with prejudice.14
Based on the foregoing reasons, the order of the
Jefferson Circuit Court is reversed and this matter is remanded
for further proceedings consistent with this Opinion.
ALL CONCUR.
13
Id. at 37.
14
Commonwealth v. Hayden, Ky., 489 S.W.2d 513, 516 (1972).
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BRIEF FOR APPELLANT:
Albert B. Chandler III
Attorney General
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
J. David Niehaus
Louisville, Kentucky
Teresa Young
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Teresa Young
Assistant Attorney General
Frankfort, Kentucky
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