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Commonwealth v. Greenwood6/17/2005
AFFIRMING
BEFORE: BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.
Appellant, the Commonwealth of Kentucky, appeals the grant of a writ of prohibition by the Breckinridge Circuit Court preventing a retrial in District Court of the Appellee, Hubert Greenwood's (Greenwood), charge of driving under the influence on the grounds of double jeopardy. We affirm the trial court's ruling.
Greenwood was tried before a jury in Breckinridge District Court on charges of driving under the influence . During the cross examination of one of the Commonwealth's witnesses, Kentucky State Police Trooper Jeremy Thompson, the following exchange occurred:
QUESTION: He was not confused about what was going on, in fact, he contacted an attorney before he took the test?
ANSWER: Yes, sir, he did.
QUESTION: Do you know who he called, do you know he called Steve Wheatley?
ANSWER: Yes, I do.
QUESTION: Steve Wheatley is a prosecutor over in Hardin County. The Commonwealth then moved for a mistrial, stating that defense counsel "is implying that a prosecutor is giving his client advice." The Commonwealth claims that this line of questioning was misleading, prejudicial, and confusing to the jury. The law permits an accused to contact an attorney prior to taking a breathalyzer test. See: KRS 189A.105(3). The record shows that Steve Wheatley is a prosecutor and a native of Breckinridge County. Steve Wheatley was admittedly contacted by Greenwood for advice prior to Greenwood's submitting to a test for intoxication. Wheatley was not involved in the prosecution of the action in any way and works in a different office, and in a different county, from counsel for the Commonwealth.
Defense counsel objected to the motion for mistrial and argued that a mistrial was unnecessary. After hearing the arguments of counsel, the court granted the mistrial finding manifest necessity therefore pursuant to KRS 505.030(4)(b). The Commonwealth then made evident its plan to retry Greenwood on the DUI charges. The District Court judge ruled that upon retrial Greenwood could not mention Wheatley's name or call him as a witness. Greenwood made a motion to dismiss the District Court retrial on grounds of double jeopardy. That motion was denied. Greenwood then filed a Petition for Writ of Mandamus or Prohibition with the Breckinridge Circuit Court, claiming that there was no manifest necessity for the mistrial granted, and that subjecting him to retrial would be a violation of the law prohibiting double jeopardy. The circuit court entered a judgment and order granting the writ.
As the Commonwealth admits, a writ of prohibition must be granted where failing to do so would subject the defendant to great injustice and irreparable injury for which there is no adequate remedy. Chamblee v. Rose, 249 S.W.2d 775 (Ky. 1952). When a mistrial is granted after a trial has begun and after introduction of the first witness, there can be no retrial unless the mistrial was with the defendant's consent, or there was a "manifest necessity" that a mistrial be granted. Nichols v. Commonwealth, 657 S.W.2d 932 (Ky. 1983). The circuit court found that the statement objected to did not rise to the level of "manifest necessity" for a mistrial. The court stated in its judgment and order that the jury could have been admonished, or other remedial steps could have been taken. For that reason, the circuit court found that double jeopardy would attach if Greenwood was tried again.
The Commonwealth claims that the granting of a writ was unnecessary, as Greenwood had a remedy by appeal. The Commonwealth cites Haight v. Williamson, 833 S.W.2d 82
Page 1 2 Kentucky DUI Attorneys
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