Chаrles E. LOWE, Jr., Judge, Pike Circuit Court, Division No. II, 35th Judicial District, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
July 3, 1986.
712 S.W.2d 944
As stated by Justice Cardozo in Snyder, supra, 291 U.S. at 114, 54 S.Ct. at 335, 78 L.Ed. at page 682, “A fertile source of perversion in constitutional theory is the tyranny of labels.” The phrases “right to confrontation” and “right to be present at every stage of the trial,” must be applied in such а way as to produce a fair result. The right to be present and the right to confront does not confer a right to intimidate. It is the duty of the court to balance the rights of the accused with those of the victim. I believe that the sound discretion of the trial judge is the best barometer to determine fairness. A competency examination of a child witness is within the particular responsibility of the trial judge. In the absence of abuse of discretion or prejudice to the accused, I believe a reviewing court should not disturb the decision of the trial judge. Consequently, I would affirm the сonviction.
WHITE, J., joins in this dissent.
W. Sidney Trivette, Pikeville, for appellant.
Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
This is an appeal from a writ of prohibition issued by the Court of Appeals prohibiting Judge Charles E. Lowe, Jr., of the Pike Circuit Court from ordering the Commonwealth to disclose names of persons present at the time acts charged in the indictments against Clarence Wooten allegedly transpired. After careful review, we affirm the decision of the Court of Appeals.
Clarence Wooten was indicted in Pike Circuit Court on one count of theft of labor and ten counts of theft of services. Pursuant to motion the trial judge, Honorable Charles E. Lowe, Jr., orderеd the Commonwealth:
“[T]o disclose to the defendant all persons present within the knowledge of the Commonwealth at the time the acts charged in the indictments allegedly transpired.”
Appellant contends the order was entered pursuant to defendant‘s motion for a Bill of Particulars, pursuant to
In King v. Venters, Ky., 596 S.W.2d 721 (1980), this Court discussed
“The extent to which either party to a criminal proceeding may require information of the other is set forth in
RCr 7.24 . Paragraph (3) of that Rule specifies those things the trial judge may require a defendant to divulge as a condition to his being given a right of discovery аgainst the Commonwealth. A list of witnesses is not among the items of information so specified.” (emphasis added).
This Court clearly stated in King that a party to a criminal proceeding may not be compelled to provide a witness list tо an opposing party. In this case, the Commonwealth argues that the effect of the trial judge‘s order is to require the Commonwealth to produce a witness list in contravention of our holding in King. We agree. The circuit court‘s order forces the Commonwealth to disclose not only its list of potential witnesses, but also forces the Commonwealth to compile and providе the defendant with a listing of all persons present at the scene, not only exculpatory witnesses or persons who observed or participated in the transactions. Such is beyond the scope of the requirements of
“This provision does not authorize pretrial discovery or inspection of reports, memoranda, or other documents made by officers and agents of the commonwealth in connection with the investigation or prosecution of the case, or of statements made to them by witnesses, or by prospеctive witnesses (other than the defendant).” (emphasis added).
Under
Appellant contends that the order was not a request for a witness list, but
“(W)hen a police informant participates in or places himself in a position of observing a criminal transaction he ceases to be merely a source of information and becomes a witness.... there simply can be no valid principle under which the identity of a known witness may be concеaled from adversary parties ...” (emphasis added).
The discovery order entered in this case was not limited to known witnesses; exculpatory witnesses or persons observing or particiрating in the crime, but instead requested disclosure of “all persons present” at the scene when the eleven counts of theft allegedly occurred. The trial judge‘s order was overbroad and exceeded the bounds of a Bill of Particulars.
In Deskins v. Commonwealth, Ky., 512 S.W.2d 520, 524 (1974), cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822, this Court cited Harris v. Commonwealth, Ky., 285 S.W.2d 489, 492 (1956) stating:
“A corollary rule is that the particulars should not be required when the motion appears to be merely an exploratory maneuver or when the accused apparently has knowledge of the facts or where the means of obtaining the facts are just as accessible to him as to the prosecution.”
Undеr the facts of this case the information the defendant sought was more readily accessible to him, the employer at the job site, than to the Commonwealth.
In this case the trial court аbused its discretion in granting defendant‘s motion and entering an order directing the Commonwealth to disclose to the defendant all persons present within the knowledge of the Commonwealth at thе time the acts charged in the indictments allegedly transpired. The writ of prohibition granted by the Court of Appeals in the above-styled action is affirmed.
STEPHENS, C.J., GANT, STEPHENSON, WHITE, WINTERSHEIMER, and VANCE, JJ., concur.
LEIBSON, J., dissents in a separate opinion.
LEIBSON, Justice, dissenting.
Respectfully, I dissent.
Since this is an appeal from a writ of prohibition relating to an issue of discovery, the record here is brief. Clarence Wooten was indicted and charged with theft of labor and theft of services, intentional crimes. There were a total of eleven counts against him. It appears he was involved in an ongoing business and may very well be unable to recall each individual transaction and the аttendant circumstances, including who was present at the time. It is questionable whether he has better access to this information than the Commonwealth.
A bill of particulars is designed to allow а criminal defendant to prepare a defense against charges placed against him without “prejudicial surprise upon trial,” especially in light of the “shorter form of indictment.” Brown v. Commonwealth, Ky., 378 S.W.2d 608, 610 (1964), overruled on other grounds, Payne v. Commonwealth, Ky., 656 S.W.2d 719 (1983).
Material within the “possession, custody and control of the Commonwealth” is discoverable under
In Deskins v. Commonwealth, Ky., 512 S.W.2d 520, 524 (1974), the case of James v. Commonwealth, Ky., 482 S.W.2d 92, 93 (1972) is cited for the proposition that after indictment, it is within the discretion of the court whether to grant a motion for а bill of particulars and that decision will not be upset unless there has been an abuse of discretion. In James, supra, our Court upheld the appellant‘s contention that:
“[T]he [trial] court erred in failing to require the Commonwealth to submit a bill of particulars as tо what time of day the sales took place, where they took place, who was present, and factual statements of the essential elements of the transactions.” (Emphasis added).
The majority аgrees with the contention of the Commonwealth that the trial court order had the effect of requiring the production of a witness list in contravention of our holding in King v. Venters, Ky., 596 S.W.2d 721 (1980). Appellant views the order as encompassing a proper area of discovery to enable the defendant to prepare a defense to the numerous charges. It is a close case. However, on review we should respect the decision of the trial judge and should not overrule that decision unless there is an abuse of discretion. I do not see any abuse of discretion. Judge Lowe acted within his authority under