*1 protect they while officers themselves investigating possible
are still
crime. See
COMMONWEALTH
Daniels,
Pa.Super.
Kentucky, Appellant,
Commonwealth v.
(1980);
May
The United States Court has
recognized suspects injure police
and others virtue of their access to
weapons though they may even not be arm- Michigan Long,
ed.
interpretation Terry, supra, need not preventative per-
restrict the search to the subject. suspect
son of the If detained
dangerous, dangerous simply he is no less
because he is not arrested.
The United States Court has approach a common sense to this
dangerous and delicate area constitution- interpretation. proper interpretation
al A
of Section 10 of the
and the Fourth Amendment to the Federal provide pro-
Constitution both reasonable police protective exercising
tection for police entry
search. The into Johnson’s perfectly
Ramada Inn room was reasonable emerge gun he
to assure that did not
in hand.
I would reverse the decision of the Court judgment and reinstate the
the circuit court.
STEPHENS, C.J., GANT, J., join
in this dissent.
*2
a
Attorney
prosecuting
in
crimi
Cowan,
Gen.,
W. monwealth
Atty.
Frederic J.
Robert
Commonwealth,
Gen.,
Goehring v.
case.
Hensley,
Sonego,
Attys.
Ian
Asst.
(1963);
v.
822
Earl
Com
Frankfort,
Ky., 370 S.W.2d
appellant.
for
monwealth,
686
Ky.App., 569 S.W.2d
II, Lexington,
appel-
Griggs,
Kirk
for
J.
Appeals
of
(1978).
Circuit
The
Court
Sixth
lee.
(6th
Seabold,
F.2d 910
704
in Stumbo v.
Cir.1983)
pri
the
of
employment
that
held
WINTERSHEIMER, Justice.
an elected
counsel to assist
vate
appeal
judgment
is from a
based on
also,
per
unconstitutional. See
is not
se
convicting
reck-
a
verdict
Hubbard of
(4th
Richards,
1244
776 F.2d
Cir.
v.
Jones
He was sentenced
the
less homicide.
1985),
Prosecuting
in
Am.Jur.2d
cited
63A
judge
years
prison
circuit
to three
48).
(1988
pt.
pocket
p.
Attorneys
13§
agree
a
failed
on
sentence.
C.J.S.,
27
and Prosecut
see
District
Also
precise questions presented
are
28(2a),
710-712,
Attorneys
pp.
1988
§
employment
of
counsel
pocket
p.
pt.
Attorney
assist the
Commonwealth
Appeals
Second
Court of
prosecution of a criminal case
violates
Circuit
determined
Sassower
process
the due
clauses of the Fifth
824
County,
F.2d
Westchester
of
Sheriff
to the
Fourteenth Amendments
United
(2nd Cir.1987),
191
States Constitution and whether K.R.S.
S.A.,
States, ex rel Vuitton et Fils
United
532.055(4)
process
violates
due
clause
787, 107
S.Ct.
Hicks v. 447 S.Ct. U.S. LAMBERT (1980) misplaced 65 L.Ed.2d VANCE, JJ., 175 concur. required because the Oklahoma statute LEIBSON, J., separate dissents punishment in jury to fix the in the first C.J., STEPHENS, opinion in which Hicks, supra, judge stance. The trial joins. fixing statutory authority acted with no similarly the initial sentence. We have LEIBSON, Justice, dissenting. Commonwealth, Ky., held in 765 Wilson I Respectfully, dissent. (1989), 22 criminal defen Opinion is that Majority in the The flaw statutory right dant has a to have his sen narrowly. the issues us too it states Wilson, set we did jury. tence problems It restricts need to address 4 of K.R.S. subsection judge sentencing tor and However, 532.055. this Court Common pro- “due utilized procedures violate Reneer, princi supra, wealth v. cess” clause the Federal comity, has limited ples approved of the is, question, It the broader omits 532.055(4) en circumstances K.R.S. under duty is our what croaches defendant’s to us “Rule-Making entrusted Power” sentencing under RCr 9.84. Kentucky Consti- 116 of our under Section Here, judge in the action of the trial tution? sentencing determining sentence without only If concern is to narrow our arbitrary from the verdict was a crimi- issues to is essential to affirm what it was statute. authorized conviction, I there is would the trial the result of action of deci- majority United States felony applicable the state statute to all prohibiting process” grounds, cases, sion “due except penalty cases. This death permits, use Hicks, state law so either the irration- where unlike was not judge sentenc- irrationally or dif- of a or ally singled out treated Opinion, any ing. Majority As stated ferently felony than other case. States, et inter- rel. Vuitton legitimate state v. United ex S.A., 95 avoiding defen- 481 of criminal Fils 107 est retrial
885 (1987), and admin- enforcement of the utilized the L.Ed.2d throughout the istration of criminal authority of the United States pro- KRS It 15.700. Commonwealth.” Court to strike down the use of the victim’s vides, alia, replacement inter privately employed attorney as a in the event prosecutor” of a “local Concurring Opinion prosecutor. Only the to act “refusal” or “failure” “incapacity,” failing speaks Blackmun to “a Justice suffi- or cases any certain case “without upon by more fundamental than that relied grounds,” “inability,” or “conflict of cient i.e., Court,” process” lack of “due It 15.715. eliminates interest.” KRS 814-815, procedure. U.S. at justice system need within the And, at 763. S.Ct. at L.Ed.2d aggrieved act private persons by a criminal Opinion states, Majority Hicks v. Okla employ lawyers prosecute homa, 100 S.Ct. duly appoint- name state. If L.Ed.2d 175 does not establish a re- County Attorney ed Commonwealth se, process” right, per “due sen unable, sponsible is incapable, for the case “held where tence. Hicks *4 unwilling prosecute, aggrieved the liberty law creates for the defendant a apply “prose- for relief citizen should to the having particular make interest the advisory by KRS cutors council” created findings, implies the Due Process Clause 15.705, responsibility to see which has the appellate findings do not suffice to prosecution goes for- legitimate protect that entitlement.” Cabana Bull public prosecutor of a ward the hands ock, n. 387-388 ready, willing represent and able to the 697 n. L.Ed.2d 717 n. 4 appropriately. forget We that it is the Com- must not Thus, if our concern is whether victim, monwealth, alleged is not the who squeeze by Hubbard’s conviction can the party in a interested imposed by standards the Due Process vengeance part of the tion. Personal is not interpreted by Clause as thus far the Unit- system; prosecution prop- nor is Court, go ed States we need recovery er tool to of dam- advance approach further. But this abdicates the ages. employed privately The need for under entrusted to us eliminated, prosecutors but the has been Kentucky provide and ad- pros- potential permitting from such abuses appropriate practice minister “rules of and ecutors remain. Justice,” procedure for the Court of and Concurring Opinion Justice Blackmun’s supervise practice of law this Com- U.S., etc., makes this Ky. Const., monwealth. 116. Section “requires point: system a disinterested long Kentucky It is true that ahas histo- unique responsibility prosecutor with ry permitting private partic- of serve the rather than a public, ipate in criminal ais client, unfet- and to seek is history founded the circumstances of tered.” 107 S.Ct. at age. Appeals’ different The Court limit- question us should not be reversed, Opinion,which we takes the have so ed to the Due Process Clause whether “[pjrivate prosecutors are unten- view that requires; decide we should past,” agree. They of the I able relics and performance of the au- proper an anachronism with the re- by Kentucky become thority to us entrusted prosecutorial form the function embod- requires. The Constitution so Integrated ied “Unified Prose- by having supervi- Appeals, such 15.700-.765, System,” KRS power, cutor effective to rest its decision sory elected 1,1978. provide Its “to ‘due January “concepts of the land’ and of ‘law supervision from T.S. general jus- process of criminal law’.” To borrow Elliott, attorney chief the Court of general tice it be that Commonwealth, “temptation to do the yielded officer of the enforcement This is wrong right reason.” maintain and efficient deed for order to uniform (c) doing right duty prosecutor no obstacle to our deed for of the is to right justice, reason. merely seek to convict.” — Ap- The result reached the Court of Lovelace, Recently, in KBA Ky., peals is: S.W.2d -(rendered 29, 1989), June “Permitting the assistance of a public prosecutor guilty that a held was prosecutor, majestic cloak of, unethical conduct he “abused his authority, can result a multitude position Attorney by as Commonwealth us- of harm to a committed to disin- advantage the criminal prosecution.” terested of his civil clients.” misconduct in- volved, pertinent part, opposite was the right result, This is a and it should be affirmed, side of the same coin handed to us in though even our affirmance engaged public grounds. would rest on different case: prosecution persons criminally accused misleading It is reckless and for the Ma- private representation alleged jority Opinion to assume that the “ethical regarding subject victim same matter. lawyer privately employed by conduct” of a stated, “there is a clear conflict be- comply the victim will to “the same stan- responsibilities tween criminal and civil ac- dard as to the Commonwealth At- given every tivities.” It is almost a torney.” contrary, On the there is a con- that the victim of crime is same flict of duty interest between the owed to token the victim of a tort lawyer his client privately employed private damages against perpetrator. duty public prosecu- and the owed tor. Neither the former The “clear conflict” between Code of Profes- *5 Responsibility, newly private representation sional nor inherent is whenever adopted Kentucky attorney public Rules Professional the same serves as both 3.130, impose Conduct now codified in prosecutor SCR private counsel. obligations lawyer on privately employed a Majority Opinion recognizes The the ob- by alleged ap- victim other than those vious contradiction between the Lovelace plicable any private representa- other Opinion present and the cen- between duty, loyalty respon- tion. His and ethical public soring prosecutor for pursue sibilities are to his client’s interest subject representation involving the same within the bounds of the law. The Com- privately em- matter while a client, certainly, monwealth is not his ployed attorney participate directly in criminally neither is the accused. On the public prosecution. remedy It seeks to hand, public prosecutor respon- other is stating: the situation expect rapid sible to both. We can deterio- “Private counsel who undertake the public respect ration of confidence and for prosecution may duties of not become if, lawyers, Opinion, impose on any in related to the involved civil matter lawyers privately employed a 9-101(B).” DR loyalties. divided 9-101(B) This is a miscitation. DR states: The contrast between the duties of a lawyer accept “A shall not em- private lawyer public prosecutor and a are ployment in he had a matter which evident from “the function of the substantial while he was a tor” as set out the ABA Standards public employee.” Relating to the Administration Crimi- Justice, (1979). Standard 3-1.1 states plainly lawyers is limited rule1 pertinent part: moving private prac- from office to
“(b) apply present tice. It cannot situa- prosecutor is both an adminis- advocate; privately employed prosecutor tion. A trator of and an is “public not a employee” must exercise sound discre- sense of the performance privately employed prosecutor tion in the word. A his or her functions. charged cannot be ethical violation of newly adopted 1. Which is carried into our Code of Professional Conduct in Rule 1.11 and 1.12. present makes in the case his decision 9-101(B) represent Our continuing DR sentencing pro- change in the con- fundamental public prosecution is client after the honored the time It encroaches on is, haphaz- cess. cluded, not unless we have Kentucky. sentencing in jury system of ardly off- enlarged our ethical rules an Heretofore, defendant except where the judicial opinion. hand comment jury recognized right to pled guilty, we Appellee’s As in the Brief: stated on the retrial sentencing, and the present “In the counsel question appropriate sentence of an family being paid by the decedent’s during sentenc- a mistrial occurs respon- of procuring for the sole Crooks, ing phase. See Commonwealth dent’s conviction. conflicts are built (1983). The Rules of Ky., 655 S.W.2d suggest and it is untenable to Procedure, 9.84, provide in RCr Criminal privately retained can meet Here- fix” penalty. “shall imposed demands a Com- excep- tofore, present be case would Attorney. ‘private Having a monwealth exception 9.84 “where tion. The RCr prosecutor’ is ... a contradiction by law to fix authorized court is otherwise terms.” apply does not to an unconsti- penalty” Next, Majority Opinion invokes the force tutional statute that statute, new KRS Truth-In-Sentencing “comity.” give after we choose to it “law” 532.055, approve the judge’s deci- my Dissent Common- Huff impose sion to a sentence in excess of wealth, “change I state prescribed by minimum sentence statute take sentencing ... will failed to a sen- when the people to make a away power from the again, procedur- this is tence. Once ad hoc decision, important fundamental and rule-making subject al on a the rules where gov- power into the hands transfer changed should not be without first follow- officials, judi- ernmental elected safeguards the elaborate in the rule- [Sjuch not be ciary. change should ignore making process. important an casually undertaken.” 763 S.W.2d part of our own decision in Common- change, its limited present because of Reneer, Ky., wealth destroy jury does not sentenc- application, pronounces the Truth-In-Sen- Nevertheless, it an encroachment ing. tencing separation a violation *6 long-standing, premise on a fundamental powers doctrine enunciated Section underlying justice system the criminal Reneer, undertaking Kentucky. Before such we state that this unconstitutional carefully con- change should our we follow only as a will be matter of “comi- ceived, change. for rule policy established ty”: study includes a and recommendation This reserve to consider “We Supreme Court on Crimi- by the Committee injustices accept its abuses and we Rules, hearing at by public followed provisions being for the time Annual Con- Kentucky Bar Association comity.” principle of vention, I dis- changing the rules. that we have our implies not abdicated change, agree, not so much with the but rule-making judicial responsibility, that we precipitous nature with the aspect each instance where new against our accomplished protest it. I challenged, Truth-In-Sentencing blindly statute is adhering a rule created independent judgment re legislative we make an into will incursion unconstitutional garding procedural value of rule-making process. the new judicial Nevertheless, offering. as in Huff STEPHENS, C.J., joins this dissent. Commonwealth,Ky., 763 holding here, again disregard once pro change and embrace the Reneer blindly regard to con
cedure and without
sidering change. its value as a rule process” implications. only its “due
review