Leibson v. Taylor

LEIBSON, Judge Honorable Joe G. Court, Movant,

Jefferson Circuit TAYLOR, III, Respondent.

Daniel T. LEIBSON, Judge,

Honorable Joe G. Court, Appellant,

Jefferson Circuit TAYLOR, III, Eugene

Daniel T.

Oliver and Victor J.

Appellees.

Supreme 25,

Sept. 1986.

As Corrected Jan. 1987.

Rehearing Denied Jan. Gen., Armstrong, Átty.

David L. David Smith, Gen., Frankfort, Atty. A. Asst. appellant. movant III, Carl, Taylor, Daniel T. Samuel B. Hollenbach, Louisville, respon- Louis J. appellees. dent and Haddad, Louisville, E. for amicus Frank curiae. the THE could authenticate confession did not

OPINION OF COURT appear suppression hearing. Judge for the procedural nightmare presented by The sup- ordered Victor’s confession Leibson aggravated by is the absence these cases trial, day joint pressed. On the proceedings complete transcript of the of a Taylor, attorney Daniel who had thereto- parties made sever- in the Trial Court. The defendants, represented fore both an- transcript. An attempts al to obtain a or- Eight represented only nounced he Earl. Ap- der was obtained from the Court trial, attorney months another was before requiring reporter pro- to peals the court appointed represent to Victor. A discus- transcript; duce the it later ordered the sion was held in chambers wherein the stenotype reporter’s seizure of the court prosecutor to the offered dismiss indict- notes, tapes transcription but the against exchange in for his ment Victor impossible. A motion was thereof was testimony against Taylor objected Earl. on (but Judge made to hold the Trial not the client; of his Victor’s counsel did behalf reporter) failing in contempt court for to object, and there is no evidence that he require reporter pro- the the to transcribe gave purport- an affirmative assent to the ceedings. It to the Court became obvious Leibson, Judge an ed “deal.” who believed Appeals trying that a tran- to obtain reached, agreement had dismissed been script by putting pressure on the court prejudice.” indictment The Victor’s “with reporter was an exercise as futile as at- proceeded case Earl then to the tempting progress to make with a forward jury stage. Judge selection Leibson or- by pushing necessity, the chain it. Of prosecutor dered the and the defense both Appeals required sidestep was to to submit to him the names and addresses the rule to the effect otherwise-inflexible prospective so he of all witnesses that ap- that a who seeks relief from an party pro- participate jury could in the selection pellate responsibility court must assume Judge Taylor comply cess. refused to with presenting said record of court with a order; nearly as can be deter- Leibson’s proceedings the The the Trial Court. us, Tay- mined from the “record” before evidentiary hear- held an (there respectful is evi- lor’s refusal ing Judge at which the Trial and counsel on his dence of other contumelious conduct immediately apparent testified. It became trial, during the part on other occasions extraordinary step that even would not some and his in this court contains brief problem; disputes the solve factual were Judge, intemperate remarks about and, not resolved affidavits were filed to or not these other incidents but whether supplement “testimony” the at eviden- us). constitute before tiary hearing conducted the Court of contempt for Judge held Leibson Appeals. comply to the order to his failure with “record,” foregoing On the basis of the it witnesses; identify any penalty his appears following occurred: Judge suspended pending appeal. Leibson and Victor were indicted for Earl Oliver opportunity Taylor’s request for an refused the murder of Claude Fletcher Jefferson Ap- present the issue to the Court of to County, The Commonwealth’s otherwise, prohibition, or peals a writ of eyewitness included an statement and case proceed. The and ordered that the trial transcript of a statement made Vic- up prosecution’s eyewitness did not hold police his tor to the that he and brother very well on the stand. Victor was then pistols their several times at the vic- testify, fired but he refused on called joint might incrimi- grounds testimony tim. The trial Victor that his Thereupon, Judge Trial Leibson de- May scheduled for 1984. The him. nate Leibson, mistrial, set aside the orders dis- Honorable Joe G. clared a suppress- missing indictment and hearing the defend- Victor’s Judge, scheduled a on confession, and set a new date ing his suppress Victor’s confes- ants’ motion 2, 1984, joint trial of Earl and Victor. who the May sion for but officers sought proceedings Writs of Prohibition were from it is clear that on writs of Appeals. Ap- The prohibition the Court of seeking relief from citations for peals reversed the conviction of contempt of court should not be used as Judge against Taylor on the testing vehicles for or not Tri- whether authority ordering Leibson exceeded his legal al Court committed a error when it production of the defendants’ witness disobeyed. issued the order that was Ex- list; prohibited Judge it from rein- Leibson cept in extraordinary rare and circumstanc- indictment, stating prohibit- Victor’s and it es, by orders issued a Trial Court must be prosecution ed further of Earl on the basis obeyed, they whether are erroneous or not. Jeopardy of the Double Clause of the Fifth Respectable authority teaches: Taylor in Amendment. We find that was impressive authority ... find [W]e court, contempt of that he cannot be but proposition that an order a issued therefor; prosecuted majority a of this jurisdiction subject court with over the agrees with the Court of person obeyed by matter and must be Jeopardy the Double Clause of the parties by orderly until it is reversed and prohibits prose- Fifth Amendment further proper proceedings. This is true without Earl, cution of and we find that it is not regard constitutionality even for the of necessary respect any for us to rule with Act the sued_ under which the order is is- prosecution further of Victor. pun- Violations of an order are contempt though as ishable criminal even Taylor’s Contempt of appeal order on or is set aside ... We sustained the motion of attor though the action has become basic Haddad, ney Frank E. to file Jr. leave v. Mine United States United moot. an amicus curiae brief. The amicus curi America, 330 U.S. 258, Workers of 293- ae urges Taylor us to hold that should not 294, 677, 695, 696, 67 S.Ct. 91 L.Ed. 884 because, contempt held in of be court (1947). case, counsel for a defendant in a criminal very ques- There remains the formidable compelled he should not be to disclose the person may impu- tion of whether a with identity prospective defense witnesses. nity knowingly an order which violate Appellees Taylor and make similar Oliver in turns out to invalid. We hold that be arguments. recently We have ruled on a may the circumstances of this case he not_ in Lowe v. Common Jr. J. subject related “transpar- showing a Absent wealth, (1986), 712 S.W.2d 944 but we de invalidity” patent frivolity sur- ent or ruling in any cline to make further obeyed order, it must be rounding case; compulsion there is no constitutional orderly reversed review.... until so, v. Dono Commonwealth for us to do Dickinson, 465 F.2d v. United States van, (1980); United Ky., 610 601 S.W.2d 496, (C.A. 6th, 1972) (emphasis the 509 Nobles, 225, 422 States U.S. 95 S.Ct. court’s). (1975). 2160, 141 45 L.Ed.2d The issue Accord, City Covington v. Sanitation in before us these cases whether Campbell 1 Kenton District No. right Judge Leibson had the to order attor Counties, 459 S.W.2d 85 (1970). witnesses, identify his but ney Taylor to Taylor complied with a di rather whether obey Taylor refused to Taylor order of the Court. did so rect order, in therefore he was con Court’s that he comply, and it therefore follows “criminal” tempt. Taylor’s was in of court. was “directed in that his conduct was authority of the court.” dignity Despite implications may be Commonwealth, 168, Ky. 204 v. Hum Ketcham drawn from such cases as Herr (1924).1 (1939), 170, At other 263 S.W. 726 phrey, Ky. 126 S.W.2d 809 contempt, said distinctions seem have Despite appear clear distinctions nal” what to be subsequent cases. A worka- “crimi- become blurred in in between "civil” and made Ketcham times, derogatory opinion respect he also remarks with to the made use of Victor’s any subsequent he presence but was not “confession” trial. them, cannot cited for and therefore we Jeopardy Double For Earl rule on or not the remarks consti- whether contempt. tuted However we can and day On the second of the trial the despite finding that must hold that our Trial Court declared a mistrial. The mis Taylor guilty contempt, he cannot pursuant trial was not declared to a motion punished requested, and be therefor. He granting the defendant. The order appellate was denied leave to seek relief granting mistrial recites no for the him in ruling holding from the Trial Court’s later, days of the mistrial. Six contempt. He instructed that he must entered in the a document proceed the trial. He denied the with Fact,” “Findings entitled it was right contempt ruling to contest the in an- stated: court, other and therefore he cannot be It is the court’s that Earl Eu- belief punished therefor. It is indeed ironic that trial, gene the defendant on has the conduct of another trial brother, improperly influenced his Victor should led to the have the decision Su- Oliver, in this matter. The circumstanc- preme Court of the United States on the surrounding give es Victor’s refusal to subject right hearing of to in a con- the a evidence, including his refusal to even be situation, tempt Taylor Hayes, 418 U.S. witness, suggests type sworn as a the of (1974). 94 41 S.Ct. L.Ed. 897 sustaining required misconduct which motion for a mis- Commonwealth’s The “Reinstatement” Of trial. Victor’s Indictment argues The that Earl can Commonwealth respect The “record” is unclear with retried the termination of the be because to whether Victor was and then re sworn “manifestly necessary” trial was within the testify fused to or whether he refused even 505.030(4)(b). meaning majori- of A K.R.S. to take an oath. What is clear is that he ty disagrees; this we do not feel of ground was on sound constitutional when sufficient that the Trial Court stated give he refused to evidence because it support finding “manifest to a of might tend to him. incriminate Whether or acting necessity.” within the Victor not his indictment had dismissed been rights scope of his constitutional when he (a prejudice” “with term that is more wide so, testify, to whether he was “im- refused ly practice), used in civil it dismissed properly influenced” to do so is irrelevant. began, before the trial and therefore he Amendment of the The Fifth Constitution subject being to re-indicted for the guarantees that no of the United States offense, Smith, same Commonwealth “person subject be for same offense (1951).2 Therefore, any 244 724 limb,” S.W.2d put jeopardy life or be twice of parties distinction that the hereto have at manifestly jury clear that after the and it is tempted right to draw between the of empaneled, evidence had had been after Trial received, Court to “reinstate” an indictment It jeopardy had “attached.” been prejudice” dismissed or the ask that was “with that the defendant did not is also clear mistrial, right of the Trial Court to “set aside” a nor did he concur therein. for a indictment, inescapable previous dismissing the is the conclusion is order Therefore moot, ruling retried. The Constitu- and we make no with refer that Earl cannot be Moreover, exceptions people for who express no tion makes no ence thereto. we "record,” (and Although not in the we are told poetic) description con- it is ble tempt," of “criminal was, opposed to civil is made in briefs that Victor counsel in their Miller, Wright fact, Proce- & Federal Practice and reindicted. yes- contempt "penalizes § dure 2960: Criminal terday’s seeking to coerce defiance rather than compliance.” tomorrow's obviously guilty. Indeed, are I respectful cases also take issue with an as- rights which sumption appears established and liberties opin- to underlie the enjoy usually persons case, namely, right which we involved ion in this to a fair whose less is exemplary. only lives are than trial afforded to the accused in a every stratagem criminal trial. Not trial Opinion So much of the and Order defense counsel rises to the level of a con- Appeals prohibits the re- right; stitutional system justice our re- spondent Judge proceeding from to a re- quires proper and ethical behavior coun- Oliver, ordering trial Earl and the dis- sel for the Commonwealth and for the missal of the indictment Earl Oliver defense. The Commonwealth is entitled to Fletcher, murder of Claude is af- also, a fair trial and it is entitled to a Opinion firmed. So much of the and Order termination the trial when it is “mani- of which reverses the justice being fest” that served. The holding order of the Trial attorney pre-trial this case contains state- reversed, is but so ments to the effect that the Oliver brothers Opinion much of said pro- and Order which away pistols blazed with their fleeing at a punishment hibits therefor is affirmed. telling people victim. This Court is the Commonwealth respect that with STEPHENS, C.J., GANT, jury will never be allowed to STEPHENSON, VANCE and determine whether he is a cold-blooded WINTERSHEIMER, JJ., and 0. GRANT view, my murderer. In it is “manifestly HOUSE, BRUTON OSCAR GAYLE necessary” that Earl Oliver be tried Special Justices, sitting. capital crime. STEPHENS, C.J., GANT, VANCE, JJ., STEPHENSON and concur. WINTERSHEIMER, J., and OSCAR HOUSE, Justice, Special GAYLE join in BRUTON, Justice, Special 0. GRANT this dissent. separate dissents and files a dissenting opinion WINTERSHEIMER, J., in which HOUSE, Special

and OSCAR GAYLE

Justice, join. BRUTON, Special Justice,

0. GRANT

dissenting. respectfully

I dissent from so much of majority opinion as holds that Earl McQUEEN, Appellant, Harold Oliver cannot be retried.

The Trial made finding that the termination of the trial was COMMONWEALTH “manifestly Kentucky, Appellee. necessary,” 505.030(4)(b). K.R.S. There is abundant evidence in the sharp “record” of Supreme practice improprieties and other finding by would sustain said Sept. the court. 1986. principles appellate practice Bedrock Rehearing Denied Jan. require uphold findings should tous unless the evidence in the compels us to A do otherwise. re- reporter “findings” calcitrant court and the pursuant

of the Court of made extraordinary evidentiary “hearing”

an require depart

should us to from said

principles.

Case Details

Case Name: Leibson v. Taylor

Court Name: Kentucky Supreme Court

Date Published: Jan 22, 1987

Citation: 721 S.W.2d 690

Court Abbreviation: Ky.