Commonwealth of Kentucky v. Lashawn Montez Hickman ( 2021 )

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1337-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 20-CR-000455
LASHAWN MONTEZ HICKMAN APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.
MAZE, JUDGE: The Commonwealth appeals from an order of the Jefferson
Circuit Court dismissing an indictment against LaShawn Montez Hickman based
upon the Commonwealth’s failure to produce discovery as ordered. We conclude
that the trial court abused its discretion by dismissing the indictment without a
finding that Hickman suffered severe prejudice as a result of the Commonwealth’s
non-compliance. Hence, we reverse and remand for further proceedings on the
indictment.
The relevant facts of this action are not in dispute. On February 18,
2020, a Jefferson County grand jury returned an indictment charging Hickman
with receiving stolen property over $10,000; obscuring the identity of a machine
over $10,000; possession of a handgun by a convicted felon; first-degree fleeing or
evading police; and receiving a stolen firearm. At his arraignment on February 24,
the trial court continued Hickman on $25,000 full-cash bond, with allowances for
work release and job search. The court set a pre-trial date for June 2 and a trial
date of September 22. Pursuant to JRP1 803, the court directed the Commonwealth
to produce discovery no later than 10 days before the pre-trial conference. On
March 19, the trial court entered an order releasing Hickman on his own
recognizance based on the COVID-19 emergency.
When the case was called via phone conference on June 2, Hickman
and his counsel appeared. The Assistant Commonwealth Attorney did not appear.
The trial court asked counsel if the Commonwealth had produced discovery.
Defense counsel replied no. The trial court then asked if counsel wanted to keep
the trial date on September 22 or convert it to a pre-trial. Counsel agreed to the
1
Rules of Practice and Procedure of the 30th Judicial Circuit, Jefferson Circuit Court. Adopted
July 11, 2006, as amended Feb. 8, 2018.
-2-
pre-trial date. The court further directed the Commonwealth to produce discovery
“as soon as possible.” The court followed up this oral order with a written order
entered on June 15.
When the case was called on September 22, Hickman and his counsel
were present by phone, but the Assistant Commonwealth Attorney did not initially
appear. The Commonwealth came into the phone conference about five minutes
later after being called. The trial court asked if the Commonwealth had produced
discovery, to which Commonwealth replied, “It has not, Your Honor.” No further
explanation was forthcoming from the Commonwealth. The trial court then
summarily stated, “The indictment is dismissed.” The Commonwealth
acknowledged the dismissal but did not object. The trial court’s written order,
entered on September 29, 2020, set out the procedural history and concluded,
“Based upon the Commonwealth’s failure to produce discovery as required by our
local rules and orders of this Court, the indictment against the Defendant is
DISMISSED.” The Commonwealth now appeals from this order.
On appeal, the Commonwealth makes no effort to justify its failure to
produce discovery as ordered. Rather, the Commonwealth argues that dismissal
was not an appropriate remedy. The Commonwealth concedes that it failed to
object to the dismissal. However, the Commonwealth maintains that this Court
-3-
may still review the issue because it did not have an opportunity to object at the
time the trial court made the order.
As the Commonwealth notes, RCr2 9.22 generally requires a party to
raise an objection at the time the court takes an action. However, “if a party has no
opportunity to object to a ruling or order at the time it is made, the absence of an
objection does not thereafter prejudice that party.” Id. The Commonwealth
contends that this rule applies when the trial court grants a motion to dismiss
without a motion by the opposing party. Radford v. Lovelace, 212 S.W.3d 72, 77
(Ky. 2006), overruled on other grounds by Cardine v. Commonwealth, 283 S.W.3d
641 (Ky. 2009).
Radford involved a situation where the trial court granted a mistrial
after highlighting certain improper evidence to the jury. The Supreme Court held
that defense counsel had no appropriate opportunity to object, noting that “one
would not seriously argue for the right to have his client tried in front of the same
jury that had listened to the trial court’s comments on this matter.” Id. By
contrast, the trial court dismissed the indictment after the Commonwealth admitted
to not complying with the court’s discovery orders.
We believe that the Commonwealth had some duty to either object to
the dismissal or at least offer some explanation for its delay in producing
2
Kentucky Rules of Criminal Procedure.
-4-
discovery. Nevertheless, we recognize dismissal of an indictment is an extreme
sanction that should be used infrequently. See Commonwealth v. Baker, 11 S.W.3d
585, 590 (Ky. App. 2000). Thus, despite the lack of a timely objection, we elect to
review the trial court’s dismissal on the merits.
RCr 7.24(11) authorizes a trial court to impose sanctions on a party in
a criminal matter who has not complied with discovery orders. If the
Commonwealth has refused to comply with a discovery order, and the refusal
resulted in severe prejudice, a circuit court may dismiss the criminal indictment.
Commonwealth v. Grider, 390 S.W.3d 803, 818 (Ky. App. 2012). We review the
trial court’s decision to dismiss an indictment for abuse of discretion. Id. at 817.
However, a trial court has limited authority to dismiss an indictment
prior to trial and without the consent of the Commonwealth. Id. at 818. Here, the
trial court dismissed the indictment sua sponte, and without a motion by
Hickman’s counsel. Moreover, the trial court made no findings that Hickman was
prejudiced by the Commonwealth’s failure to produce discovery as ordered. In the
absence of such findings, we must conclude that the trial court abused its discretion
by dismissing the indictment.
By our ruling in this matter, we in no way condone or approve of the
actions of the Commonwealth. The Commonwealth made no effort to explain its
failure to produce discovery as required by the local rules and by direct orders of
-5-
the court. Furthermore, the matter had been pending for seven months, and more
than three months had passed since the trial court entered its written order directing
the Commonwealth to produce discovery. We strongly disagree with the
Commonwealth’s suggestion that the Supreme Court’s orders in response to the
COVID-19 emergency justifies such a blatant disregard of court orders. As with
any other party, the Commonwealth must comply with the trial court’s orders or
make a timely motion to seek additional time to comply. And of course, a trial
court has inherent authority to enforce its own orders. Boland-Maloney Lumber
Co., Inc. v. Burnett, 302 S.W.3d 680, 688 (Ky. App. 2009) (citing Akers v.
Stephenson, 469 S.W.2d 704, 706 (Ky. 1970)).
On remand, the trial court should set a prompt date for the
Commonwealth to produce discovery. The trial court is not obligated to allow
additional delays without a sound explanation. The trial court has the discretion to
grant a continuance or to exclude any evidence not produced timely. RCr
7.24(11). Dismissal may also be warranted if Hickman invokes his right to a
speedy trial (see Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky. 2001)) or
severe prejudice is shown. Grider, 390 S.W.3d at 818. But in the absence of any
such circumstances, we must conclude that the trial court abused its discretion by
dismissing the indictment at this point.
-6-
Accordingly, we reverse the order of the Jefferson Circuit Court
dismissing the above-styled indictment and we remand for additional proceedings
in accord with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Rob Eggert
Attorney General of Kentucky Louisville, Kentucky
Jeanne Anderson
Special Assistant Attorney General
Louisville, Kentucky
-7-