Bryan N. McCue v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: September 1, 2022
• Docket: 2021 CA 000948
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 2, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0948-MR

BRYAN N. MCCUE APPELLANT

APPEAL FROM HART CIRCUIT COURT v. HONORABLE PHILLIP PATTON, JUDGE ACTION NO. 20-CR-00162

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

ACREE, JUDGE: Bryan N. McCue, Appellant, appeals the Hart Circuit Court’s

April 13, 2021 findings of fact, conclusions of law, and order denying his motion

to dismiss. We affirm.

On July 28, 2020, police were called to a truck stop in Horse Cave,

Kentucky. The caller reported a possible shoplifter concealing stolen items in a black duffel bag. The caller also described the potential thief’s truck – a maroon

Ford F-150 – and relayed the truck’s license plate number.

Sergeant Murphy arrived and found a truck matching the description.

A black duffel bag was in the truck bed. Appellant sat in the driver’s seat and a

woman sat in the passenger’s seat. The truck was parked but the engine was

running. Appellant’s eyes were glassy, his pupils were constricted, and he avoided

eye contact. Appellant repeatedly reached toward the floorboard, alarming

Sergeant Murphy and prompting him to ask Appellant to step out of the truck.

Appellant refused to exit the truck, and Sergeant Murphy and a second

police officer attempted to remove him. As they did, Appellant tried to strike

Sergeant Murphy with his elbow, but missed. The officers placed him under arrest

and searched him. They found marijuana and gabapentin pills in his pockets.

A grand jury indicted Appellant on the following charges: driving

under the influence, second offense; resisting arrest; possession of marijuana; first-

degree possession of a controlled substance, first offense; second-degree disorderly

conduct; third-degree assault; and failure to produce insurance card.

Following his indictment but before trial, Appellant filed a motion to

dismiss his charges for lack of probable cause pursuant to Wells v. Commonwealth,

709 S.W.2d 847 (Ky. App. 1986). Appellant requested a hearing on the motion.

The Commonwealth repeatedly asserted the motion was improper, but Appellant’s

-2- counsel claimed this was a standard motion for a “Wells hearing” and that she

frequently filed such motions in cases in district court.

The trial court entertained the motion and conducted a hearing on

March 16, 2021. After applying what has become known as the “Wells factors,”

the trial court denied the motion, concluding the Commonwealth presented

sufficient evidence to establish probable cause as to Appellant’s operation of the

truck. Nowhere in its order does the trial court question whether Appellant’s

motion or the hearing to decide it were proper.

Appellant entered a conditional guilty plea to driving under the

influence, resisting arrest, and being in possession of marijuana. He reserved his

right to appeal the denial of his motion to dismiss, and now does so, arguing Wells

supports dismissal of the indictment for lack of probable cause. Appellant’s brief

implicitly presumes but does not address the procedural propriety of his motion.

We agree with the trial court that Appellant was not entitled to

dismissal of his indictments, but this is where our agreement ends. For purposes of

appellate review, that is enough to affirm the conviction.

However, the motion the trial court entertained and the proceeding to

decide it are plainly at odds with both the Kentucky Rules of Criminal Procedure

and Kentucky jurisprudence. For this reason, we do not reach the substantive

arguments in Appellant’s brief. We affirm on a different ground, procedural in

-3- nature, making Appellant’s other arguments moot. Wells v. Commonwealth, 512

S.W.3d 720, 721-22 (Ky. 2017) (“Even if a lower court reaches its judgment for

the wrong reason, we may affirm a correct result upon any ground supported by

the record.”).

The Commonwealth argues the trial court lacks authority to dismiss

an indictment prior to trial without the prosecutor’s consent. As far as it goes, that

is a correct statement of the law.

Our criminal rules provide that “[t]he attorney for the Commonwealth,

with the permission of the court, may dismiss the indictment, information,

complaint or uniform citation prior to the swearing of the jury or, in a non-jury

case, prior to the swearing of the first witness.” RCr1 9.64. Our Supreme Court

interprets that rule this way: “[T]he authority to dismiss a criminal complaint

before trial may only be exercised by the Commonwealth, and the trial court may

only dismiss via a directed verdict following a trial.” Commonwealth v. Isham, 98

S.W.3d 59, 62 (Ky. 2003). Thus, in Isham, the Supreme Court held that “[o]nly

the Commonwealth had the ability, with the permission of the trial court, to

dismiss the complaint against Isham.” Id.

A subsequent Supreme Court opinion fleshes out this rule a little

more. In Commonwealth v. Bishop, the Court “note[d] the strictures imposed by

1 Kentucky Rules of Criminal Procedure.

-4- Kentucky law on trial judges who are asked to summarily dismiss criminal

indictments.” 245 S.W.3d 733, 735 (Ky. 2008). “This Court has consistently held

that a trial judge has no authority to weigh the sufficiency of the evidence prior to

trial or to summarily dismiss indictments in criminal cases.” Id. (citing

Commonwealth v. Hayden, 489 S.W.2d 513, 516 (Ky. 1972); Flynt v.

Commonwealth, 105 S.W.3d 415, 425 (Ky. 2003); Barth v. Commonwealth, 80

S.W.3d 390, 404 (Ky. 2001)). The weighing of evidence is what Bishop says the

trial court lacks authority to do.

But Bishop also says there are justifications for dismissing a case at

the pre-trial stage that do not require the trial court to weigh evidence. These

justifications are based in the supervisory powers of every court. “[T]here are

certain implied powers . . . vested in the court to manage its own affairs so as to

achieve the orderly and expeditious, accurate and truthful disposition of causes and

cases. . . . All such authority must be exercised with great caution even though it is

necessarily incidental to the function of all courts.” Potter v. Eli Lilly & Co., 926

S.W.2d 449, 453-54 (Ky. 1996), abrogated on other grounds by Hoskins v.

Maricle, 150 S.W.3d 1 (Ky. 2004) (citations omitted). Bishop’s non-exclusive list

of circumstances that demand the exercise of supervisory powers include the

unconstitutionality of the criminal statute, prosecutorial misconduct that prejudices

the defendant, a defect in the grand jury proceeding, an insufficiency on the face of

-5- the indictment, or a lack of jurisdiction by the court itself. Bishop, 245 S.W.3d at

735 (citations omitted). None of these circumstances is present in this case.

The line of demarcation between judicial authority to dismiss some

cases and not others is drawn by the separation of powers doctrine. “No person or

collection of persons, being of one of those departments [legislative, executive, and

judicial], shall exercise any power properly belonging to either of the others,

except in the instances hereinafter expressly directed or permitted.” KY. CONST. §

28. Legislation grants to prosecutors the power to prosecute criminal cases in their

capacity as officers of the executive branch. KRS2 15.725(1), (2). Our

jurisprudence recognizes that “the prosecution of crime is an executive function[.]”

Flynt, 105 S.W.3d at 424. See also Gipson v. Commonwealth, 133 Ky. 398, 404,

118 S.W. 334, 336 (1909) (prosecutors have the “right to ask . . . a verdict of guilty

. . . [for the] citizens of the [C]ommonwealth . . . interested in having the law

enforced by the punishment of the guilty”). And, “because prosecutors have the

sole discretion whether to engage in plea bargaining with a defendant, th[e

Kentucky Supreme C]ourt and its predecessor have held that, unless the

Commonwealth consents, courts cannot: (1) accept pleas of guilty and unilaterally

limit the sentences which may be imposed; (2) amend a charge prior to the

presentation of evidence; or (3) dismiss a valid indictment . . . .” Flynt, 105

2 Kentucky Revised Statutes.

-6- S.W.3d at 425 (citing Commonwealth v. Corey, 826 S.W.2d 319, 321 (Ky. 1992);

Allen v. Walter, 534 S.W.2d 453, 455 (Ky. 1976); Commonwealth v. Cundiff, 149

Ky. 37, 147 S.W. 767, 768 (1912) (some citations omitted)).

In effect, Appellant’s motion to dismiss was a motion for summary

judgment, “and the rule in Kentucky has long been that summary judgment does

not exist in criminal cases.” Barth, 80 S.W.3d at 404 (citing Hayden, 489 S.W.2d

at 516; Commonwealth v. Hamilton, 905 S.W.2d 83, 84 (Ky. App. 1995)). “The

Commonwealth is entitled to present its evidence to a jury before a trial court can

dismiss a charge by directed verdict of acquittal.” Id.

The record unequivocally shows the Commonwealth never consented

to dismissal of Appellant’s indictment. It repeatedly objected to Appellant’s

motion and questioned whether it was even proper. The trial court, too, was

skeptical, correctly believing it lacked authority to dismiss criminal charges prior

to a directed verdict motion. Despite this doubt, the court heard Appellant’s

motion to dismiss and denied it.

Such a pre-trial motion as Appellant brought improperly asks the trial

court to weigh evidence. Whether entertaining the motion is just a waste of

judicial resources or, as Bishop suggests, if weighing the evidence is error in and of

itself, does not matter. If it be error, it is harmless error. However, there was no

error in denying the motion, contrary to Appellant’s argument.

-7- Notwithstanding any prior success averred by Appellant’s counsel,

Wells does not provide the vehicle for doing what has been repeatedly prohibited.

Because Appellant’s counsel suggests the so-called “Wells hearings” are not

uncommon, we deem it necessary to put Wells v. Commonwealth, 709 S.W.2d 847,

in its proper jurisprudential context.3

Contrary to Appellant’s suggestion, there is no such thing as a “Wells

hearing” – there wasn’t even a “Wells hearing” in Wells. Appellant’s counsel may

have succeeded in convincing some trial courts such a thing exists, but only by

bastardizing the opinion’s holding. It is more than noteworthy that the defendant

in Wells “was tried before the Fayette District Court sitting without a jury.” Wells,

709 S.W.2d at 848. He was convicted of operating a motor vehicle while under the

influence of alcohol in violation of KRS 189A.010(1). On appeal, the Fayette

Circuit Court affirmed. Wells, 709 S.W.2d at 848. This Court granted

discretionary review to consider the appellant’s argument that the evidence

presented at trial was insufficient to carry the Commonwealth’s burden of proving

3 A trial court’s consideration of a pre-trial motion for summary disposition need not be prompted by a defendant’s motion for a so-called “Wells hearing.” In Commonwealth v. Fillhardt, No. 2020-CA-1563-DG, __ S.W.3d __ (Ky. App. Sep. 2, 2022) (rendered with the instant case), the Campbell District Court heard the appellee’s motion to dismiss and subsequently granted the motion when the defendant and Commonwealth agreed the district court could hear the evidence and advise the parties whether the evidence could survive a directed verdict motion. However, nothing indicates the Commonwealth agreed to dismissal before trial based on the hearing.

-8- the requisite conduct – Wells’ operation of a motor vehicle in violation of KRS

189A.010(1). Wells, 709 S.W.2d at 848.

The posture of the case – appeal of a judgment of conviction after trial

– tells us Wells was not a review of a summary disposition, but dismissal after trial.

Had Wells’ case been tried to a jury, the question would have been whether a

directed verdict should have been granted. Because it was tried before the court

without a jury, a directed verdict motion would have been improper. Morrison v.

Trailmobile Trailers, Inc., 526 S.W.2d 822, 823-24 (Ky. 1975) (holding that a

directed verdict is improper in a bench trial). See also Brown v. Shelton, 156

S.W.3d 319, 320 (Ky. App. 2004) (“[A] directed verdict is clearly improper in an

action tried by the court without a jury.”).

Therefore, appellate review addressed whether the evidence the

Commonwealth presented to the factfinder – the trial court – was sufficient to

sustain the conviction as a matter of law. The circuit court concluded it was. This

Court reversed, holding that “the Commonwealth presented insufficient evidence of

operation by the appellant to sustain a conviction under KRS 189A.010(1).” Wells,

709 S.W.2d at 850 (emphasis added).

Wells did not bring his appeal from the sort of pre-trial motion to

dismiss that has apparently become acceptable in some courts and known at least

to Appellant’s counsel as a “Wells hearing.” Wells cannot be shoehorned into a

-9- pre-trial summary disposition motion contrary to Isham and its progeny. But there

is more that must be noted about the attempt to do so.

Appellant’s reference to the “Wells factors” insinuates there is a finite

set of factors to consider. To the contrary:

This Court did not state that the Wells . . . factors were exclusive for determining probable cause when there is a question of whether the defendant was driving, but cited factors observed in prior cases involving this question. Probable cause is “a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. den. 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983).

White v. Commonwealth, 132 S.W.3d 877, 883 (Ky. App. 2003). Furthermore,

after the decision in Wells, the legislature amended KRS 189A.010(1), expanding

the circumstances under which a person will violate the statute. Ky. Laws 1st Ex.

Sess. ch. 15 § 2 (H.B. 11) (eff. Jul. 1, 1991). Since 1991, the offense is not limited

to operating a motor vehicle – which Wells addressed – but now includes “be[ing]

in physical control of a motor vehicle” while intoxicated. KRS 189A.010(1).

Summary dismissal before trial without the Commonwealth’s consent

based on a lack of probable cause was never an option. Because the trial court was

correct in denying the motion, we affirm the Hart Circuit Court’s April 13, 2021

findings of fact, conclusions of law, and order, and the conviction in this case.

-10- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Adam Meyer Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Mark D. Barry Assistant Attorney General Frankfort, Kentucky

-11-