Commonwealth v. Hampton

CARL R. CLONTZ, Special Justice,

concurring in part and dissenting in part.

I concur in holding that the Madison Circuit Court exceeded its authority in reviewing the transfer order of the Knox Circuit Court and in remanding the cases. This ruling should have been dispositive of the discretionary review and it was unnecessary to address the propriety of the original transfer order.

Both Section 11 of the Kentucky Constitution and KRS 452.210 mandate that upon a finding that either party to a criminal case cannot receive a fair trial in the county of original venue, the case should be transferred to the “most convenient county in which a fair trial can be obtained.” There was no finding that Madison County was the most convenient county in which a fair trial could be had and it is unlikely that such a factual conclusion could be reached. I believe the Knox Circuit Court erred when it did not comply with Section 11 of the Constitution and KRS 452.210. In Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948), it was held that the constitutional and statutory provisions were mandatory. I believe that case was decided correctly and that the majority erred in concluding the transfer to Madison County was proper. As a matter of policy, it seems that alternate venue in criminal cases should be determined by some means other than the agreement of counsel and the trial judge. The established policy seems reasonable and should be followed.

The fact that the parties agreed to the transfer does not make it proper — it only constitutes a waiver of their right to object or appeal. For these reasons, I concur in reversing the Court of Appeals and the order of the Madison Circuit Court, and I respectfully dissent from the remainder of the opinion.