*1 Bobby WORKMAN, Appellant,
COMMONWEALTH
Supreme Court of Kentucky.
Jan. Defender, Emory Farley,
Jаck Public Ed- Defender, Monahan, ward C. Asst. Public Frankfort, appellant. Gen., Atty. Stephens,
Robert F. John W. Stewart, Gеn., Frankfort, Atty. Asst. appellee.
LUKOWSKY, Justice.
On January Workman was in- dicted for the murder of Chaffins which occurred on 1969. His Mаy extradition completed from Michigan August on 26,1976. 9,1976, he September On entered plea tried, He was guilty. сonvict- imprisonment, ed and life sentenced to charitably what described as far evidence, оverwhelming less than on De- appeals cember 1977. He and we re- verse.
On Workman filed a motion to dismiss the indictment by an alleged: affidavit which by the offer was made “[A]n that if the de- voluntarily fendant would submit to polygraph examination Police, the event that that test indicated the defendant had no shooting of James involvement in the Chaffins, charge would be dismissed. submit to the exami- The defendant did the aforementiоned test, separate test conducted well as a by Marcy Consulting Agency, Incorporat- ed, Dеarborn, Michigan, and another *2 207 Common attorney for the by The polygraph Sgt. conducted examinаtion court, wealth, of the Kentucky permission Godby of Police.” the State to the sub prior an indictment dismiss Confirmatory copies reports the of of these The motion the 9.64. mission of case. RCr apрear examinations and their results to attorney of the Commonwealth the record. The Police State granted or may be an indictment dismiss Polygraph report discloses that their tests Rad by judge in his discretion. denied the 28, 1977, given were on March at the re- 284, 282, 152 Commonwealth, Ky. er v. 287 quest Attorney. of the Commonwealth’s 937, that (1941). It is axiomatic 938 S.W.2d response The Commonwealth filed no to rea of discretion must the exercise challenge the motion and did not the affida- Kidd v. by record. the soned and vit reports. or the The trial сourt denied 505-06, 74 Commonwealth, 498, Ky. 255 the gave no motion in an order which rea- v. 944, (1934); States 947 United S.W.2d son for its actiоn. 504, Cowan, 5th, 513-515 F.2d 524 C.A. Commonwealth, plain acting It is that the (1975). through agents apparent its if who had not be can taken distinction “[N]o authority, actual entered into an prosecutor and government as tween thе prosecu- with to Workman abandon their v. government judge.” Olmstead the passed tion polygraph of him if he a exami- 470, States, 575 supra at 48 S.Ct. at United given by the Kentucky State Police. here, (Holmes, J., our dissenting). When as is equally apparent though It that even he play substantial ideals of fair and historical took and examination on the justice attorneys for permit do not 28, 1977, steps the Commonwealth took nо and disregard promises to Commonwealth bargain 21, to fulfill its as late as November permit not perform bargains, it does fail to 1977, when Workman asked the circuit iniquities suc judge to allow the bargain. court to еnforce the State, 228 Fla.App., So.2d ceed. Butler v. is question The not whether the Common- 1274, 424-25, (1969). 421, 36 1279 A.L.R.3d bargain weаlth’s was wise The or foolish. The record as it constituted question is the whether 21, 1977, no rational disclosed рermitted should be to break its word. attorney for the basis which would relieve place standards of market the The the performance from the Commonwealth govern do not and should not the relation the justify the refusal of bargain of his or ship government between the and a citizen. grant to dismiss. the motion judge People 306, Reagan, v. 395 Mich. 235 choice, the a but in are with hard We faced 581, (1975). government N.W.2d 585 “Our evil that wе find it less analysis last potent, omnipresent, is the teacher. escape punishment than criminal should ill, For or good people it teaches the whole allowed should be government that by exаmple.” its Olmstead v. United v. United bargain. its Olmstead welsh on States, 277 U.S. 48 S.Ct. States, at 575 48 supra at S.Ct. J., (1928) (Brandeis, 72 L.Ed. 960 dis (Holmes, J., dissenting). senting). gоvernment If the its breaks is the cause is reversed and judgment The word, contempt integrity it breeds in- with directions dismiss remanded good destroys It of faith. the confidence prejudice. with dictment operation govern citizens in their of disregard ment and invites them to their J., STEPHENSON, except All concur obligations. way anarchy. That lies We AKER, J., who did who dissents “pledge public deal here faith—a with case. of this participate in the decision promise state officials—and one Justice, STEPHENSON, dissenting. disregarded.” that lightly should not be majority Davis, my holding view the Fla.App., v. 188 So.2d 27 provisions clear (1966). effectively nullifies the purpose For whatevеr RCr 9.64 was adopted, it is requires there and HAMILTON, Larry Wayne Appellant, approval of the trial cоurt before dismissal of an I am indictment. not aware of COMMONWEALTH of authority jurisdiction requires in this give trial court to rеasons for the exer- *3 cise of refusing discretion in to dismiss an Supreme Kentucky. Court of indictment, opinion nor does the majority supply any authority. Rader and Kidd, cited in the majority opinion, do not
support Butler, a proposition.
Florida Appeals’ Court of opinion, is so dif-
ferent in its factual situation it not be could
applicable There, here. ap- the trial court
proved agreement the written to dismiss
the indictment if the poly- results of the
graph test showed the defendant was tell-
ing agreement the truth. The pro- further
vided that if the results inculpat- of the test
ed the defendant could evidence Further,
admitted at appar- trial. Florida
ently does not have a comparable rule
Here, appellant does not make a
showing prejudice to him in the trial
of the case a result taking poly-
graph test, I can find no rational basis forcing accept the trial court apparently such as was
here. agree
I can about statements play”
“fair keeping and the Commonwealth promise. partici- If trial court had
pated agreement, in the I would be the first say However, kept. it I should would
hold appellant to the knowledge
permission of necessary court was
before the indictment could be dismissed. keeping RCr 9.64 as a viable rule
in the showing absence of a prejudice appellant, I would judgment. affirm the I
Accordingly, dissent.