IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2019 NOT TO BE PUBLISHED
2018-SC-000401-MR
CLAYTON JACKSON APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-000499-OA CLAY CIRCUIT COURT NO. 1 l-CR-00003
HON. OSCAR GAYLE HOUSE, JUDGE, APPELLEE CLAY CIRCUIT COURT
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Clayton Jackson, appeals from the Court of Appeals’ order
denying his petition for a writ of prohibition and mandamus. For the following
reasons, we affirm the Court of Appeals’ order.
I. BACKGROUND
In his original trial, a Clay Circuit Court jury found Jackson guilty of
three counts of murder and one count of first-degree arson. This Court
overturned that conviction on direct appeal in Jackson v. Commonwealth, 392
S.W.3d 907, 908 (Ky. 2013), due to a trial court error dealing with the impartiality of a juror. The current writ concerns Jackson’s retrial based on
those charges.
On retrial, the Commonwealth filed a motion to introduce and use the
video record of the testimony of certain witnesses. The trial court entered an
order that the Commonwealth could use the prior testimony of two informants
and that the court would rule on the admissibility of the prior testimony of any
witness who had died in the intervening time between trial, assuming the
offering party provided proof of the witness’s death. After this ruling, Jackson
filed a writ with the Court of Appeals to prohibit the circuit court from moving
forward with a trial that allowed the Commonwealth to play the taped
testimony from Jackson’s first trial without first holding a hearing to determine
if each witness whose testimony the Commonwealth wished to present in this
manner was “unavailable” as set out in KRE 804. The Court of Appeals denied
the writ, finding that Jackson had not shown that he lacked an adequate
remedy by appeal. We agree and affirm the Court of Appeals.
II. ANALYSIS
The issuance of a writ is an extraordinary remedy, and we have always
been cautious and conservative in granting such relief. Grange Mut. Ins. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for
writs of prohibition and mandamus is the same. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin u. Admin. Office of
Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set that standard forth in
Hoskins v. Maricle:
2 A writ . . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
150 S.W.3d 1, 10 (Ky. 2004). Here, there is no argument that the lower court
lacked jurisdiction. Therefore, this case falls under the second class of writ,
which requires that there be (1) no adequate remedy by appeal and (2) great
injustice and irreparable injury.
As we have noted, “[i]n order for a writ to issue, the lack of an adequate
remedy by appeal or otherwise is an absolute prerequisite.” Ridgeway Nursing
& Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 640 (Ky. 2013). Therefore, we
turn to the threshold issue of whether Jackson has an adequate remedy by
appeal. For the following reasons, we hold that Jackson has such a remedy.
Here, Jackson seeks a writ based on alleged evidentiary errors in
allowing the admittance of recorded witness testimony without a hearing.
However,
[w]e have consistently found the right of appeal to be an adequate remedy when the petition of a criminal defendant seeks only to correct procedural or trial errors. E.g., Cavender v. Miller, Ky., 984 S.W.2d 848, 849 (1998) (ruling with respect to defendant's right to discovery); Futrell v. Shadoan, Ky., 828 S.W.2d 649, 651 (1992) (evidentiary ruling); Barnes v. Ashcraft, Ky., 490 S.W.2d 484, 486 (1973) (order overruling motion to void prior conviction used for penalty enhancement); Bentley v. Moore, Ky., 239 S.W.2d 237, 237-38 (1951) (order denying change of venue); Brewer v. Vallandingham, 231 Ky. 510, 21 S.W.2d 831, 832 (1929) (consideration of Commonwealth's motion to change venue); Fish v. Benton, 138 Ky. 644, 128 S.W. 1067 (1910) (order changing
3 venue).
Hoskins, 150 S.W.3d at 19.
Jackson spends the majority of his brief to this Court arguing that the
trial court will be proceeding erroneously if we do not grant his writ. However,
as discussed above, he must also show he lacks an adequate remedy by
appeal. He fails to do so. His only argument in this regard is that “under the
current circumstances, a second trial is a needless waste of resources for the
parties, the witnesses, the courts, and the Commonwealth of Kentucky.” He
argues that if the trial goes forward, it will “promote disrespect for the judicial
system that allows a jury to reach a verdict, only to say that it didn’t count and
must be done again.”
However, these are just the type of issues for which an adequate remedy
is available—through the proper appellate channels. As we have held, “‘[n]o
adequate remedy by appeal’ means that any injury to Appellants “could not
thereafter be rectified in subsequent proceedings in the case.” Indep. Order of
Foresters v. Chauvin, 175 S.W.3d 610, 614-15 (Ky. 2005) (quoting Bender v.
Eaton, 343 S.W.2d 799, 802 (Ky. 1961)).
The impact of “litigation absent our ordering the Court of Appeals to
grant the writ simply is not enough to show inadequate remedy by appeal.”
Chauvin, 175 S.W.3d at 615.
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 13, 2019 NOT TO BE PUBLISHED
2018-SC-000401-MR
CLAYTON JACKSON APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-000499-OA CLAY CIRCUIT COURT NO. 1 l-CR-00003
HON. OSCAR GAYLE HOUSE, JUDGE, APPELLEE CLAY CIRCUIT COURT
AND
COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Clayton Jackson, appeals from the Court of Appeals’ order
denying his petition for a writ of prohibition and mandamus. For the following
reasons, we affirm the Court of Appeals’ order.
I. BACKGROUND
In his original trial, a Clay Circuit Court jury found Jackson guilty of
three counts of murder and one count of first-degree arson. This Court
overturned that conviction on direct appeal in Jackson v. Commonwealth, 392
S.W.3d 907, 908 (Ky. 2013), due to a trial court error dealing with the impartiality of a juror. The current writ concerns Jackson’s retrial based on
those charges.
On retrial, the Commonwealth filed a motion to introduce and use the
video record of the testimony of certain witnesses. The trial court entered an
order that the Commonwealth could use the prior testimony of two informants
and that the court would rule on the admissibility of the prior testimony of any
witness who had died in the intervening time between trial, assuming the
offering party provided proof of the witness’s death. After this ruling, Jackson
filed a writ with the Court of Appeals to prohibit the circuit court from moving
forward with a trial that allowed the Commonwealth to play the taped
testimony from Jackson’s first trial without first holding a hearing to determine
if each witness whose testimony the Commonwealth wished to present in this
manner was “unavailable” as set out in KRE 804. The Court of Appeals denied
the writ, finding that Jackson had not shown that he lacked an adequate
remedy by appeal. We agree and affirm the Court of Appeals.
II. ANALYSIS
The issuance of a writ is an extraordinary remedy, and we have always
been cautious and conservative in granting such relief. Grange Mut. Ins. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for
writs of prohibition and mandamus is the same. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin u. Admin. Office of
Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set that standard forth in
Hoskins v. Maricle:
2 A writ . . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
150 S.W.3d 1, 10 (Ky. 2004). Here, there is no argument that the lower court
lacked jurisdiction. Therefore, this case falls under the second class of writ,
which requires that there be (1) no adequate remedy by appeal and (2) great
injustice and irreparable injury.
As we have noted, “[i]n order for a writ to issue, the lack of an adequate
remedy by appeal or otherwise is an absolute prerequisite.” Ridgeway Nursing
& Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 640 (Ky. 2013). Therefore, we
turn to the threshold issue of whether Jackson has an adequate remedy by
appeal. For the following reasons, we hold that Jackson has such a remedy.
Here, Jackson seeks a writ based on alleged evidentiary errors in
allowing the admittance of recorded witness testimony without a hearing.
However,
[w]e have consistently found the right of appeal to be an adequate remedy when the petition of a criminal defendant seeks only to correct procedural or trial errors. E.g., Cavender v. Miller, Ky., 984 S.W.2d 848, 849 (1998) (ruling with respect to defendant's right to discovery); Futrell v. Shadoan, Ky., 828 S.W.2d 649, 651 (1992) (evidentiary ruling); Barnes v. Ashcraft, Ky., 490 S.W.2d 484, 486 (1973) (order overruling motion to void prior conviction used for penalty enhancement); Bentley v. Moore, Ky., 239 S.W.2d 237, 237-38 (1951) (order denying change of venue); Brewer v. Vallandingham, 231 Ky. 510, 21 S.W.2d 831, 832 (1929) (consideration of Commonwealth's motion to change venue); Fish v. Benton, 138 Ky. 644, 128 S.W. 1067 (1910) (order changing
3 venue).
Hoskins, 150 S.W.3d at 19.
Jackson spends the majority of his brief to this Court arguing that the
trial court will be proceeding erroneously if we do not grant his writ. However,
as discussed above, he must also show he lacks an adequate remedy by
appeal. He fails to do so. His only argument in this regard is that “under the
current circumstances, a second trial is a needless waste of resources for the
parties, the witnesses, the courts, and the Commonwealth of Kentucky.” He
argues that if the trial goes forward, it will “promote disrespect for the judicial
system that allows a jury to reach a verdict, only to say that it didn’t count and
must be done again.”
However, these are just the type of issues for which an adequate remedy
is available—through the proper appellate channels. As we have held, “‘[n]o
adequate remedy by appeal’ means that any injury to Appellants “could not
thereafter be rectified in subsequent proceedings in the case.” Indep. Order of
Foresters v. Chauvin, 175 S.W.3d 610, 614-15 (Ky. 2005) (quoting Bender v.
Eaton, 343 S.W.2d 799, 802 (Ky. 1961)).
The impact of “litigation absent our ordering the Court of Appeals to
grant the writ simply is not enough to show inadequate remedy by appeal.”
Chauvin, 175 S.W.3d at 615. As we pointed out in Chauvin:
“The alleged irreparable injury is the expense to be incurred in defending in the circuit court. Petitioners are in no different position from any other defendant who is put to the expense of contesting a claim. We do not find the aspect of injustice here which is necessary for prohibition. The remedy of appeal appears to
4 us to be adequate” Brown v. Knuckles, 413 S.W.2d 899, 901 (Ky. 1967) (citations omitted, emphasis added); see also Fritsch v. Caudill, 146 S.W.3d 926 (Ky. 2004) (holding that the possibility of trying case in the wrong venue did not present inadequate remedy by appeal because “[i]f appellants are correct that the Floyd Circuit Court is an improper venue for appellee's civil action, in due course, the trial court or an appellate court will so recognize and relief in the nature of dismissal for improper venue will be granted”); Garrard County Bd. ofEduc. v. Jackson, 12 S.W.3d 686, 689 (Ky. 2000) (holding “the appellants have not demonstrated that an erroneous class certification ... would prejudice them in a manner which the courts cannot address on appeal”).
Id.
The errors of which Jackson complains are well-suited for appeal.
Because Jackson failed to meet the threshold requirement of showing he has
no adequate remedy by appeal, our analysis need go no further.
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals’ denial of
Jackson’s petition for a writ.
Minton, C.J.; Buckingham, Hughes, Keller, VanMeter and Wright, JJ.
Sitting. All concur. Lambert, J., not sitting.
5 COUNSEL FOR APPELLANT:
Sandra E. Downs Lexington, KY
Kara Louise Ottis Dept of Public Advocacy
Julia Karol Pearson Assistant Public Advocate
COUNSEL FOR APPELLEE:
Oscar Gayle House
COUNSEL FOR REAL PARTY IN INTEREST:
Andy Beshear Attorney General of Kentucky
James Daryl Havey Assistant Attorney General
Gary H. Gregory Manchester, KY