COMMONWEALTH OF KENTUCKY v. MICHAEL L. JAMES
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RENDERED: JULY 2, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001432-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 01-CR-001791 AND NO. 02-CR-001647
MICHAEL L. JAMES
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
The Commonwealth of Kentucky has appealed from
the Jefferson Circuit Court’s June 25, 2003, Opinion and Order
dismissing, without prejudice, two indictments for Flagrant
Nonsupport returned against Michael L. James (hereinafter
“James”) due to prosecutorial misconduct.
Having considered the
parties’ arguments made in their respective briefs and at oral
argument, as well as the certified record and the applicable
case law, we must reverse and remand this matter for further
proceedings.
On July 25, 2001, the Jefferson County Grand Jury, on
a direct submission, returned an indictment against James,
charging him with two counts of Flagrant Nonsupport pursuant to
KRS 530.050, a Class D felony, for failing to pay amounts
exceeding $1000 owed from March 1, 2000, and May 1, 2001.1
Although the case was originally assigned to Division 13, the
matter was eventually reassigned to Division 5 on James’s motion
due to other pending matters involving the same parties and
transactions.2
Attorney F. Todd Lewis (hereinafter “Lewis”) was
the Assistant Commonwealth’s Attorney assigned to prosecute the
indictment.
On May 16, 2002, James moved the circuit court to
dismiss the Commonwealth’s case, arguing that a support order
was never entered, that the indictment was obtained based upon
false testimony before the Grand Jury, and that the Commonwealth
failed to prosecute him in a timely manner.
The circuit court
held a hearing on the motion to dismiss on June 17, 2002, and
spent a portion of that hearing off the record in chambers where
they discussed whether there was a valid support order.
The
circuit court denied the motion on June 27, 2002, but indicated
in the order that the case might result in a directed verdict
1
2
Indictment No. 01-CR-001791.
It is unclear from the record what these other pending matters were.
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for the defendant, so that the parties should try to resolve the
matter.
A trial date was then set for September 16, 2002.
Between June 17 and July 29, 2002, the Commonwealth
and James engaged in some type of plea negotiations.
The
Commonwealth ultimately extended the following offer:
In
exchange for James’s guilty pleas to two misdemeanor counts of
Nonsupport and the payment of all currently owed medical
expenses, the Commonwealth would recommend six-month concurrent
sentences, conditionally discharged for two years, and would
agree not to seek an indictment on the additional counts of
Flagrant Nonsupport that had accrued.
This offer was apparently
made around the time the Grand Jury was hearing testimony
regarding a second indictment on July 29, 2002.
James, through
his attorney, apparently made an oral counter-offer in response,
to the effect that he would agree not to sue Lewis and the
Commonwealth Attorney’s office in exchange for a dismissal of
the criminal action.
Lewis then completed a letter to James’s
attorney, mailed on July 29, 2002, in which he renewed the
previously offered plea agreement, including the promise not to
indict,3 and confirmed James’s counter-offer not to sue.
He
indicated in the letter that the offer would remain open until
August 20, 2002.
By letter dated August 2, 2002, counsel for
3
At a June 24, 2003, hearing, Lewis testified that he meant to remove the
part of the offer regarding his promise not to seek an indictment on the
additional charges.
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James responded to Lewis’s July 29, 2002, letter and offer, and
rejected the offer “to settle the case for a misdemeanor since
there is no support order which would give rise to either a nonsupport felony or misdemeanor plea of guilty.”
In the same
letter, counsel for James also withdrew the offer for a covenant
not to sue in exchange for a dismissal.
Once James’s attorney had orally rejected Lewis’s
offer, Lewis asked the Grand Jury to indict James on the new
charges, which the Grand Jury did by a true bill entered July
30, 2002.4
Lewis also sought and received a bench warrant from
the Grand Jury Judge Stephen P. Ryan, citing James’s threats
toward his ex-wife, Trisha Zeller.
This warrant was later
recalled, and Judge Ryan removed both Lewis and the Commonwealth
Attorney’s office from their prosecutorial duties in that
matter, finding, in part, that “Mr. Lewis’s statements rise to
such a level as to show actual prejudice.”5
The circuit court
eventually consolidated the two indictments and recused Lewis
from prosecuting either case.
On August 8, 2002, James moved the circuit court to
dismiss indictment No. 01-CR-001791,6 citing prosecutorial
4
Indictment No. 02-CR-001647.
This Court granted in part the Commonwealth’s writ of prohibition sought in
regard to this removal, holding that the Commonwealth’s Attorney’s office
should not have been removed, but that there was sufficient evidence to
uphold the removal of Lewis. The Supreme Court of Kentucky affirmed this
decision in an opinion rendered October 23, 2003.
6
In a later memorandum of authorities in support of the motion to dismiss,
James also included indictment No. 02-CR-001647.
5
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misconduct on the part of Lewis.
This matter came before the
circuit court for a hearing on June 23 and 24, 2003.7
James
introduced expert testimony from Louisville attorney Frank
Mascagni, who testified regarding Lewis’s purported deviation
from professional responsibility and ethics.
Lewis also
testified at the hearing regarding the events that transpired in
July and August 2002 as to the plea offer and the circumstances
of the second indictment.
On June 25, 2003, the circuit court entered the
following order granting James’s motion to dismiss due to
prosecutorial misconduct:
This action comes before the Court on a
Motion to Dismiss for Prosecutorial
Misconduct. The Court held a hearing on the
Motion on Monday, June 23rd and Tuesday, June
24th, 2003. The Court also received expert
testimony presented on behalf of the
defendant. However, this testimony was not
relied upon by the Court in reaching its
decision.
After reviewing the record and
considering the case law of this
Commonwealth, this Court finds that there
has been a finding of actual prejudice to
the defendant due to the misconduct of the
prosecutor in Case No. 02 CR 1647 made by
Circuit Court Judge Stephen P. Ryan and that
there has also been a showing of
7
The circuit court also heard argument and testimony regarding James’s other
motions to dismiss based on his lack of a speedy trial and on the
Commonwealth’s withdrawal of a later plea offer after he had detrimentally
relied upon it, pursuant to Workman v. Commonwealth, Ky., 580 S.W.2d 206
(1979). We shall not review the merits of these motions as the circuit court
did not consider the issues raised in them, but rather determined that they
were moot in light of its ultimate ruling.
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prosecutorial misconduct and actual
prejudice in Case No. 01 CR 1791. As a
result, both indictments shall be dismissed
pursuant to the defense’s Motion so
requesting.
The defense has also brought Motions to
Dismiss based upon a Workman challenge and
due to lack of speedy trial. As a result of
the decision on this Motion, however, this
Court finds that those Motions are now moot.
OPINION
As these indictments have a long and
convoluted history, this Court will only
recite those facts necessary to explain its
decision. The defendant, Michael L. James,
was originally indicted for Flagrant NonSupport due to his allegedly failing to pay
his support obligation on July 25th, 2001.
Said indictment was assigned to Division
Five (5) of Jefferson Circuit Court. During
negotiations between the Commonwealth and
the defendant, the Assistant Commonwealth
Attorney who was handling this action, Todd
Lewis, extended an offer to the defendant’s
counsel, Timothy Denison. That offer was
made by letter dated July 29, 2002. Part of
the offer was as follows:
…In exchange for this agreement,
the Commonwealth will not indict
Mr. James for the two additional
counts (one for each child) of
flagrant non-support which have
accrued since the period set out
in the above indictment.
(Defendant’s Exhibit F.)
Mr. Lewis also set forth within the
above letter that the offer would expire on
August 20, 2002 at 8:30 a.m. On July 30th,
2002, the Commonwealth’s office indicted Mr.
James on the two additional counts which
culminated in Case No. 02 CR 1647. Mr.
James contends that such action was
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prosecutorial misconduct as the offer made
by the Commonwealth specifically set forth
that said indictments would not be taken.
He asserts that the offer was clearly open
and had not been rejected and that,
therefore, this Court should find that there
was prosecutorial misconduct in this action
and dismiss Cases No. 01 CR 1791 and 02 CR
1647. This Court agrees with Mr. James.
In order to dismiss an indictment based
upon prosecutorial misconduct, a court must
find not only that there was misconduct, but
that there was actual prejudice to the
defendant as well. See: Bank of Nova
Scotia v. U.S., 487 U.S. 250, 108 S.Ct.
2369, 101 L.Ed.2d 228 (1988). In the
present action, Mr. Lewis’s actions in
extending the offer to Mr. James and then
continuing on with the other two indictments
was clearly prosecutorial misconduct. The
remaining issue to be addressed by this
Court is whether actual prejudice resulted
from the misconduct.
Mr. James has had additional criminal
charges brought against him and was unable
to act upon the Commonwealth’s offer. This
Court believes that is more than sufficient
to show that he was prejudiced by the
actions of Mr. Lewis. Thus, this Court
believes the indictments brought against Mr.
James should be dismissed. Said dismissal
shall include both those in Case No. 01 CR
1791 and 02 CR 1647.
For the foregoing reasons, this Court
will dismiss without prejudice the
indictments in Case Nos. 01 CR 1791 and 02
CR 1647 against Mr. James.
ORDER
WHEREFORE IT IS HEREBY ORDERED AND
ADJUDGED that the Motion to Dismiss due to
Prosecutorial Misconduct be and hereby is
GRANTED; and
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The indictments set forth in Case Nos.
01 CR 1791 and 02 CR 1647 be and hereby are
DISMISSED without prejudice. The
indictments are remanded from the trial
docket.
The Commonwealth filed its notice of appeal from this order on
July 1, 2003, while James filed a CR 59.05 motion to dismiss the
actions with prejudice, which the circuit court denied on July
18, 2003.
James did not file a cross-appeal.
On appeal, the Commonwealth challenges the circuit
court’s dismissal of the two indictments, asserting that the
rescinding of a plea offer does not constitute prosecutorial
misconduct; that there was no evidence to establish an abuse of
the grand jury process to support a dismissal; and that even if
there were evidence of prosecutorial misconduct, the appropriate
remedy would be to reinstate the original plea offer.
In his
brief,8 James relies upon Commonwealth v. Baker, Ky.App., 11
S.W.3d 585 (2000), and several federal cases to assert that
Lewis’s prosecutorial misconduct resulted in actual prejudice
sufficient to warrant a dismissal of the indictments.9
8
This Court has ignored those portions of the counterstatement outside of the
record on appeal.
9
The record does not support James’s claims in his brief that Judge Clayton
removed Lewis in indictment No. 01-CR-001791 due to his prosecutorial
misconduct (the November 25, 2002, order removing Lewis indicates that the
decision was made due to the ruling of the Court of Appeals upholding his
removal in indictment No. 02-CR-001647 and that it would not be proper for
him to remain on one case once the two indictments were consolidated) or that
Judge Ryan found that Lewis presented false, misleading or perjured testimony
to the grand jury resulting in actual prejudice (Judge Ryan made a finding
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As the Commonwealth points out, the circuit court
based its decision on two findings:
1) Judge Ryan’s finding of
actual prejudice in indictment No. 02-CR-1647, and 2) Lewis’s
misconduct in bringing the second indictment in contravention of
the open plea offer and the actual prejudice this caused.
The
circuit court relied upon the United States Supreme Court’s
decision in Bank of Nova Scotia v. U.S., 487 U.S. 250, 108 S.Ct.
2369, 101 L.Ed.2d 228 (1988), for the proposition that there
must be a finding of prosecutorial misconduct that caused actual
prejudice to a defendant in order to dismiss an indictment for
prosecutorial misconduct.
However, we note that Bank of Nova
Scotia actually deals with prosecutorial misconduct as it
relates to the grand jury process.
The United States Supreme
Court enunciated the standard courts should apply as follows:
“where a dismissal is sought for nonconstitutional error, . . .
dismissal of the indictment is 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 decision to indict was free from the substantial
influence of such violations.”
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)).
In Commonwealth v. Baker, Ky.App., 11 S.W.3d
that Lewis had misrepresented the truth in his affidavit for a bench
warrant.)
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585, 588 (2000), this Court adopted the same standard, and held
that, “[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.”
We must hold that the circuit court’s reliance on the
standard enunciated in Bank of Nova Scotia is somewhat misplaced
as there was no allegation concerning the propriety of the grand
jury process in this case.
Rather, the actions complained of
relate to other aspects of the prosecution of the two
indictments.
Nevertheless, we agree that a defendant must show
actual prejudice in order to support a motion to dismiss based
upon a finding of prosecutorial misconduct.
In this case, it is
apparent from the record that James cannot establish either
prosecutorial misconduct or actual prejudice, as the circuit
court found, due to the return of the second indictment.
If the
circumstances were as the circuit court found them, i.e., that
James was unable to act on the Commonwealth’s offer and
additional charges were brought, the result in this case might
be different.
However, James’s responses, through his attorney,
both in oral and in written form, belie his claim that he was
denied the opportunity to act upon the Commonwealth’s offer.
Based upon the August 2, 2002, letter from James’s attorney,
James never had any intention of entering a guilty plea to the
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first indictment because of his defense that there was no order
in place that would support either a felony or a misdemeanor
nonsupport charge.
Even if the Commonwealth had not asked for
the second indictment prior to the end date indicated in the
letter, it is clear that James never had any intention of
accepting the Commonwealth’s offer or entering a guilty plea.
Therefore, there is no support for the circuit court’s finding
that James was unable to act upon the Commonwealth’s offer.
In
fact, James did act upon the offer, and rejected it both orally
and in writing.
As such, James could not have been actually
prejudiced by the return of the second indictment.
Additionally, we must take issue with the circuit
court’s findings regarding Judge Ryan’s actions.
Judge Ryan’s
August 5, 2002, order addresses Lewis’s actions relating to an
affidavit attached to his motion for a bench warrant filed in
relation to the second indictment.
Due to the statements Lewis
made in the affidavit and in court, Judge Ryan found actual
prejudice on his part and removed him from prosecuting the case,
presumably pursuant to KRS 15.733(3).
The statute provides, in
relevant part, that, “[a]ny prosecuting attorney may be
disqualified by the court in which the proceeding is presently
pending, upon a showing of actual prejudice.”
As the
Commonwealth pointed out in its brief, James has already
received his remedy for Lewis’s actions as to the second
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indictment in that Lewis was removed and another prosecutor was
assigned to that particular case.
For these reasons, we must hold that the circuit court
erred in granting James’s original motion to dismiss for
prosecutorial misconduct.
However, we recognize that the
circuit court mooted the other pending motions to dismiss, which
were based upon a Workman challenge and upon the lack of a
speedy trial.
Due to our ruling, those motions are no longer
moot, and upon remand, the circuit court must review the issues
raised in those motions and enter rulings accordingly before a
trial on the merits may take place.
For the foregoing reasons, the Jefferson Circuit
Court’s Opinion and Order dismissing both indictments without
prejudice is reversed, and this matter is remanded for
reinstatement of both indictments.
MINTON, JUDGE CONCURS.
JOHNSON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
JOHNSON, JUDGE, CONCURRING:
I concur with the
Majority Opinion, but I choose to write separately to express my
concerns about this troublesome case that has consumed an
inordinate amount of judicial resources.
While I do not know
the personalities involved in this case, I cannot help but to
observe that an otherwise routine case has developed into a
quagmire.
The reasons for some of the unjudicious actions that
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have occurred in this case are no doubt many and varied, and
there appears to be plenty of blame to go around.
There is no
doubt that nonsupport of a child is a serious crime and zealous
prosecution of such offenses is commendable.
However, it is
perplexing to me as to why the underlying crux of this case,
i.e., the validity of an order of support, has not been resolved
in the civil action.
Since the validity of the obligation to
support is central to the criminal prosecution, it would appear
that confirmation of that obligation by the civil court would
not only further the successful prosecution of the criminal
offense, but further the important goal of obtaining the support
for the child.
The underlying civil action has expanded to
include this criminal action and a federal court action claiming
civil rights violations.
I would implore all the parties to
mediate all the issues in this matter with the goal of putting
the best interests of the children first and bringing this case
to a judicious and expeditious conclusion.
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BRIEF FOR APPELLANT:
A. B. Chandler
Attorney General
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Timothy Denison
Louisville, KY
Jeanne Anderson
Special Assistant Attorney
General
Louisville, KY
ORAL ARGUMENT FOR APPELLANT:
Jeanne Anderson
Special Assistant Attorney
General
Louisville, KY
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