Opinion
NO. 2011-CA-000890-MR
08-03-2012
COMMONWEALTH OF KENTUCKY APPELLANT v. SAMUEL TERRELL APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General Heather M. Fryman Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Thomas M. Ransdell Assistant Public Advocate Frankfort, Kentucky
TO BE PUBLISHED
OPINION
AFFIRMING
BEFORE: COMBS AND THOMPSON, JUDGES; LAMBERT, SENIOR JUDGE. COMBS, JUDGE: The Nicholas Circuit Court entered an order halting police questioning of the appellee, Samuel Terrell, until he could consult with counsel. The Commonwealth has appealed the order. After our review, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
A very sparse record is before us, but it shows that on May 13, 2011, the Carlisle Police Department obtained a search warrant for the apartment shared by Samuel Terrell and his mother. Terrell's mother was found dead from a gunshot wound, and he was taken into custody. On the same day, the Nicholas Circuit Court entered an order which directed police offers to cease questioning of Terrell until he was granted access to an attorney. The record then indicates that Terrell was arraigned on May 16, 2011, represented by the late Gatewood Galbraith.
The Commonwealth claims that the order to cease questioning was obtained in an ex parte meeting between the court and Terrell's father. The Commonwealth contends that it was not given an opportunity to argue against entry of the order. However, nothing in the record supports these claims. On appeal, the Commonwealth urges us to hold that it was improper for the court to enter the order.
The order of the circuit court relied on Kentucky Rule[s] of Criminal Procedure (RCr) 2.14(2), which provides that "[a]ny attorney at law entitled to practice in the courts of this Commonwealth shall be permitted, at the request of the person in custody or of some one acting in that person's behalf, to visit the person in custody."
The rule uses some one, not someone.
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Our Supreme Court has already addressed a highly similar factual scenario in West v. Commonwealth, 887 S.W.2d 338 (Ky. 1994). The facts of West are virtually congruent. West was taken into custody, and he signed a waiver of his right to an attorney. However, West's family contacted the office of the public defender. When the police did not allow him to visit West, the public defender tendered an order to the court that all questioning cease and that West be given access to counsel. The trial court granted the order. On appeal, the Supreme Court held that the order was appropriate. The language of the trial court's order in West is identical to the order that is at issue in this case.
The Commonwealth suggests either that we overrule West or that we distinguish it from the case before us. West is a Supreme Court case; therefore, we are not permitted to overrule it. Kentucky Supreme Court Rule[s] (SCR) 1.030(8)(a); Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986). The Commonwealth seeks to distinguish the cases by pointing out that West was adjudicated to be indigent while Terrell was represented by private counsel.
We cannot agree that this distinction is relevant. In its opinion, the Supreme Court pointed out that RCr 2.14 pertains to any lawyer. West v. Commonwealth, 887 S.W.2d at 341. It further elaborated that if a public defender were erroneously provided for a defendant who was not indigent, there is a statutory mechanism for the state agency to recoup funds that were spent. Id. (citing Kentucky Revised Statute[s] (KRS) 31.150). We also note that while Terrell was represented by private counsel at his arraignment, he is currently being represented by the Department of Public Advocacy. The record does not reflect whether his private representation continued at the trial level. However, we believe that it is immaterial whether private counsel or a public defender is involved.
Therefore, in light of precedent set by our Supreme Court, we affirm the order of the Nicholas Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE: Thomas M. Ransdell
Assistant Public Advocate
Frankfort, Kentucky