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PRE-TRIAL MOTIONS, GENERALLY THE ADVOCATE Volume 30, No. 1 January 2008 Motions Which Must Be Made Before Trial – The Rules of Criminal Procedure distinguish between motions which may be made before trial and those which must be made before trial. According to the commentary to the rules, this distinction is based on Federal Rule of Criminal Procedure 12(b)(2)&(3). RCr 8.16 is permissive, and was meant to include the kinds of motions which were formerly demurrers under the old Code of Practice in Criminal Cases (Cr.C.), which was abolished on January 1 st , 1963 when the current rules took effect. On the other hand RCr 8.18 is mandatory, and was meant to encompass what were formerly motions to set aside or quash the indictment. Therefore, RCr 8.18 requires that any motion which is “based on defects in the institution of the prosecution or in the indictment or information” must be made before trial. (See also RCr 9.34, which requires that, “A motion raising an irregularity in the selection or summons of the jurors or formation of the jury must precede the examination of the jurors.” This rule also applies to the formation of a grand jury. Commonwealth v. Nelson, 841 S.W.2d 628 (Ky.1992).) Motions Prior to Entering a Plea - RCr 8.20 says: “Time of Making Motion. The motion raising defenses or objections shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter without withdrawal of the plea.” Because of this rule, at arraignment some attorneys explicitly reserve the right to make further motions after entering the plea, as if the rule covered all motions a defendant might make and a defendant has to reserve the right to make the motions or the right is waived. Nevertheless, the practice of reserving all defense motions after arraignment is unnecessary. The rule refers only to motions to quash the indictment. “The motion raising defenses or objections” in RCr 8.20 is the motion “based on defects in the institution of the prosecution or in the indictment or information” in RCr 8.18. RCr 8.20 is a direct reflection of the old Criminal Code, and a vestige of the time when indictments were “fact pleadings.” If one reviews the original commentary to the rules, one finds that RCr 8.20 is based on Cr.C. 157 and 158. Under those sections, a defendant at arraignment would have to either enter a plea or move to quash the indictment. The motion to quash the indictment had to be made before entering a plea. Failing to do so would waive the issue. See, e.g., Sloan v. Commonwealth, 277 S.W. 488 (Ky.1925). So “the motion raising defenses or objections” in RCr 8.20 is a motion to quash the indictment, and the rule simply reflects the requirements of the old Criminal Code. Furthermore, note that the motion is not waived by failure to make it prior to entering a plea. It is only waived if not made prior to trial, RCr 8.18. Note that RCr 6.06 also requires a certain type of objection to be raised before entering a plea. It says, “All indictments shall be signed by the foreperson of the grand jury. All informations shall be signed by an attorney for the Commonwealth. No objection to an indictment or information on the ground that it was not signed as herein required may be made after a plea to the merits has been filed or entered.” (Based on the old Cr.C. 119.) In Stephenson v Commonwealth, 982 S.W.2d 200 (Ky.1998), the court imputed a waiver of the defendant’s objection to the fact that the indictment was unsigned, from the defendant’s failure to object to that fact prior to entering a plea. Bench Trials - The Commonwealth must agree to waiver of a jury trial under RCr 9.26(1). A defendant’s waiver must be in writing, and the written waiver is presumed to establish the voluntariness of the waiver for Boykin purposes, so that the trial court does not have to inquire further. Marshall v. Commonwealth, 60 S.W.3d 513 (Ky.2001). RCR 9.26(1) does not apply to petty offenses (generally those which carry less than 6 months in jail) unless the defendant has been granted a request for a jury trial. If so, he can then only waive the jury with the consent of the Commonwealth. Commonwealth v. Green, 194 S.W.3d 277 (Ky.2006). 18 NOTES
THE ADVOCATE Volume 30, No.1 January 2008 Competency – Competency hearings are mandatory once the defendant has raised the issue. It is a denial of the constitutional right to a fair trial for the trial court to refuse to hold a hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In Bishop v. Caudill, 118 S.W.3d 159 (Ky.2003), the Commonwealth requested an order requiring the defendant to submit to a competency evaluation by its own expert. The Kentucky Supreme Court ruled that the defendant was entitled to a writ of prohibition because the Commonwealth is not entitled to its own expert on the issue of competency. A court is not required to raise the issue of competency sua sponte. See, e.g., Gibbs v. Commonwealth, 208 S.W.3d 848 (Ky.2006). Challenges to Constitutionality – CR 24.03 states, “When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney-General.” See also KRS 418.075. Failure to follow this requirement may preclude appellate review of the constitutionality of the statute itself, but should not preclude review of whether the statute was unconstitutionally applied to a defendant. See Crowley v. Lilly, 2003 WL 21040256 (Ky.App.2003), unpublished, citing Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App.2002). Jurisdiction – Pursuant to RCr 8.18, the two motions which can be made anytime, even after a trial, are motions to dismiss based on lack of jurisdiction and on failure of the indictment to charge an offense. Recusal – Judge. “KRS 26A.015(2) requires recusal when a judge has ‘personal bias or prejudice concerning a party’ or ‘has knowledge of any other circumstances in which his impartiality might reasonably be questioned.’ KRS 26A.015(2)(a) and (e), see SCR 4.300, Canon 3C(1). The burden of proof required for recusal is an onerous one. There must be a showing of facts ‘of a character calculated seriously to impair the judge’s impartiality and sway his judgment.’ Foster v. Commonwealth, Ky., 348 S.W.2d 759, 760 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962), see also Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953). The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995).” Stopher v. Commonwealth, 57 S.W.3d 787, 794-95 (Ky.2001). A judge should disqualify himself in any proceeding where he has participated in previous proceedings concerning the same defendant to the extent that his impartiality may reasonably be questioned. Small v. Commonwealth 617 S.W.2d 61 (Ky.App.1981). When a trial judge overruled a motion challenging guilty pleas from 1973 and 1977, he erred in failing to disqualify himself because he had been the county attorney at the time of the pleas. Carter v. Commonwealth, 641 S.W.2d 758 (Ky.App.1982). When the judge maintained, contrary to the record, that he reviewed the defendant’s constitutional rights with the defendant at his guilty plea to a prior marijuana offense while serving as district judge, this is “personal knowledge” of the type abjured by KRS 26A.015(2)(a) and failure to either suppress the prior conviction or recuse was an abuse of discretion. Woods v. Commonwealth, 793 S.W.2d 809 (Ky.1990). Prosecutor. See KRS 15.733. Prosecuting attorneys are subject to public reprimand when they enter into contingency fee agreements to pursue civil actions against individuals they are simultaneously prosecuting on criminal charges. K.B.A. v. Marcum, 830 S.W.2d 389 (Ky.1992). Disqualification on retrial following remand was proper when the defendant’s attorney subsequently joined the Commonwealth Attorney’s office. Brown v. Commonwealth, 892 S.W.2d 289 (Ky.1995). 19 NOTES
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