COMBS, Judge.
The Commonwealth appeals from an order of the Jefferson Circuit Court which dismissed the indictment of Jesse Waldon. After our review, we vacate and remand.
Waldon was charged with theft by unlawful taking over five hundred dollars. He was arraigned in Jefferson Circuit Court on February 25, 2013, and a trial date was set for July 23, 2013. In its order, the court informed the parties that "[t]he Court has intentionally not scheduled a pretrial conference in this case. The Commonwealth shall produce discovery no later than thirty (30) days after arraignment."
On March 13, 2013, the Commonwealth submitted its response to the order of discovery, disclosing that it had a 911 recording and then listing several items of discovery which it
On July 23, the parties appeared in the courtroom for trial. The court opened by stating: "[w]e are on for trial today. What's our status?" The Commonwealth's attorney responded by advising the court that she had not obtained all of her discovery and that she had not been able to summon the police detective who had investigated Waldon's case. She said that she would like to have an opportunity to obtain the missing discovery and to call the detective one more time. Without taking comments from either party, the court dismissed the indictment. Our review of the video transcript reveals that the Commonwealth's attorney rolled her eyes, gathered her belongings, and walked out of the courtroom.
The court's order of dismissal recited, "Based upon the failure of [detective] to appear in Court on July 23, 2013, the indictment against defendant Jesse L. Waldon is dismissed
Preliminarily, we note that the Commonwealth failed to preserve its allegation of error. The Commonwealth claims that it preserved the error when the Commonwealth's attorney told the court that she would like to have the opportunity to collect evidence and to call the police officer one more time. It argues that the statement comported with the requirements of Kentucky Rule of Criminal Procedure[s] (RCr) 9.22. That rule provides that formal objections are not necessary for preservation as long as a party "makes known to the court the action which that party desires the court to take or any objection to the action of the court[.]"
The Commonwealth relies on Commonwealth v. Gonzalez, 237 S.W.3d 575 (Ky. App. 2007), in support of its contention. In Gonzalez, this court held that error had been preserved despite the prosecutor's failure to make a specific objection to an order of dismissal. A motion to dismiss was pending, and although he did not make a formal exception, the prosecutor provided the trial court with its reasons for opposition. This Court held that the statements were sufficient to notify the court that the Commonwealth did not want it to dismiss the action.
However, in the case before us, the Commonwealth made its statement about the opportunity to obtain its discovery
The Constitution empowers the executive branch alone to charge and to prosecute crimes. See Kentucky Revised Statute[s] (KRS) 15.725. The judicial branch has the power to "conduct criminal trials, to adjudicate guilt and to impose sentences within the penalty range prescribed by the legislature. . . ." Gibson v. Commonwealth, 291 S.W.3d 686, 690 (Ky. 2009). A court's dismissal with prejudice must be supported by substantive law or must be the result of serious government misconduct related to the prosecution. Otherwise, "it is not within the province of the judicial branch of our government[.]" Id. at 691.
In this case, "serious government misconduct related to the prosecution" occurred. The Commonwealth showed disrespect to both the court and the defense. It was provided a list of discovery four months prior to the trial date; yet, it did not obtain the discovery or subpoena witnesses. It did not give the defense notice that its discovery had not been completed. The defense was prepared for a
Nonetheless, the Constitution and case law compel us to reverse the dismissal of the indictment. "Dismissal of an indictment with prejudice is the most severe sanction possible and necessarily implicates separation-of-powers principles." Commonwealth v. Baker, 11 S.W.3d 585, 590 (Ky. App. 2000). Misconduct occurred in this case, but it was not extreme enough to justify dismissal. Baker discusses the
That level of egregiousness was not met in this case to warrant a dismissal with prejudice. Id. at 588.
However, the trial court clearly retains the power to "consider alternative sanctions before imposing the ultimate sanction of dismissal with prejudice which precludes any further prosecution." Id. at 591. Sanctions remain available to the trial court to address the misconduct of the Commonwealth in this case.
We vacate and remand for additional proceedings consistent with this opinion.
ALL CONCUR.