Newkirk v. Commonwealth, 505 S.W.3d 770

Garry Newkirk was indicted for burglary based on surveillance video and other evidence; prosecution planned to call his brother Daniel as a witness.
On trial morning, the Commonwealth disclosed the apartment building video had been recorded over and produced no copy; it proposed a detective’s testimony describing the lost video.
Newkirk moved in limine to exclude testimony about the video; the trial court excluded testimony describing the missing video.
The Commonwealth could not serve Daniel and sought a continuance; the trial court denied the continuance.
The Commonwealth moved to dismiss the indictment without prejudice, the trial court granted the dismissal and, at the prosecutor’s request, included in the dismissal order the two adverse pretrial rulings.
The Commonwealth appealed the dismissal to obtain review of the interlocutory rulings; the Court of Appeals reversed the dismissal. The Kentucky Supreme Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Commonwealth could appeal pretrial interlocutory rulings after voluntarily obtaining dismissal	Commonwealth: KRS 22A.020(4)(a) permits the Commonwealth to appeal adverse circuit court rulings in criminal cases, so it may seek review of the pretrial rulings via appeal from the dismissal order	Newkirk: Commonwealth voluntarily obtained the dismissal; the dismissal is a final, non-adverse order and renders interlocutory rulings moot — no appeal lies from a judgment obtained at a party’s request	Court: Dismissal was voluntary and final; interlocutory issues became moot and Commonwealth had no right to appeal; Court of Appeals decision vacated and appeal dismissed

Commonwealth v. Farmer, 423 S.W.3d 690 (Ky. 2014) (discusses KRS 22A.020 limits on interlocutory appeals by the Commonwealth)
Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005) (dismissal without prejudice is a final order)
Taylor v. Slider, 215 S.W. 827 (Ky. 1919) (party cannot appeal an order rendered at its instance; voluntary judgments waive error)
Commonwealth v. Terrell, 464 S.W.3d 495 (Ky. 2015) (mootness doctrine: courts do not issue advisory opinions)
Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) (describes exceptions to mootness doctrine)