The Advocate, Vol. 19, No. 6 (November 1997)
 
Prosecutors Demonstrate Serious Lack of Condor and Good Faith

A unanimous opinion of the Kentucky Court of Appeals found that prosecutors knew that the county was liable for expert witness and investigator fees, knew previous caselaw required these payments and were disingenuous in failing to cite controlling precedent. The full unpublished opinion follows:

RENDERED: SEPTEMBER 12, 1997; 10:00 a.m.
NOT TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY
COURT OF APPEALS
NO. 93-CA-2314, 2978-MR

POWELL COUNTY FISCAL COURT, APPELLANT
COMMONWEALTH OF KENTUCKY

VS. APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
INDICTMENT NO. 93-CR-001

RALPH STEPHEN BAZE, JR.; APPELLEES
DEPARTMENT OF PUBLIC ADVOCACY
 

OPINION AND ORDER DISMISSING APPEAL

BEFORE: JOHNSON, KNOPF, and MILLER, Judges.

KNOPF, JUDGE: The underlying facts of this action are not in dispute. On March 13, 1992, the Powell County grand jury returned an indictment against Ralph Stephen Baze for two (2) counts of murder, and for being a persistent felony offender in the first degree (PFO I). Baze was represented by two (2) attorneys employed by the Department of Public Advocacy (DPA). The Powell Circuit Court granted Baze's motion for a change of venue due to pre-trial publicity, and the action was transferred to Rowan Circuit Court. Baze's counsel made several motions requesting funding for investigative experts. Following an ex parte hearing, the trial court ordered the Powell County Fiscal Court to deposit the sum of ten thousand, five hundred dollars ($10,500.00) into a DPA account. The trial court further ordered the Powell Fiscal Court to deposit two thousand, eight hundred and forty dollars and twenty-eight cents ($2,840.28) into the DPA account to pay for another expert witness. The Powell Fiscal Court has appealed those orders. During the pendency of the appeal, this court granted leave for the Attorney General of Kentucky to intervene.

The DPA has moved to strike the appellants' brief and dismiss the appeal. In their joint brief filed with this court on January 16, 1996, the appellants fail to cite to McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307 (1994). The DPA argues that the appellants failure to cite controlling authority merits sanction pursuant to CR 11, 76.12(8)(a). and 73.02(2) and (4). We agree.

The Supreme Court of Kentucky conclusively rejected the appellants' argument in Graves. The Supreme Court held that "whether indigent defendants are represented by local public advocates (under a KRS 31.160 plan) or by state public advocates is irrelevant to a county's liability to pay for those expenses which a trial court considers to be reasonable and necessary. Id. at 312. The Supreme Court specifically reaffirmed the holding of Perry County Fiscal Court v. Commonwealth, Ky., 674 S.W.2d 954, (1984), providing:

[T]he trial court may authorize the payment of fees for necessary expert witnesses by the county, not the Department of Public Advocacy, in all counties unless the circumstances are such that K.R.S. 31.200(3) would require otherwise. (Emphasis in original). Id. at 957. We can find no justification for the appellants' failure to cite Graves in their joint brief. Our review of the record clearly shows that the appellants were aware of Graves, and its companion case, Pillersdorf v. Department of Public Advocacy, Ky., 890 S.W.2d 616, 618 (1994). The appellants cannot simply ignore a controlling precedent merely because it is disfavorable to them.

Therefore, we conclude that the failure of the appellants to cite Graves and Pillersdorf in their joint brief filed on January 19, 1996, demonstrates a serious lack of candor and good faith by the Powell County Attorney and by the Attorney General's office. This court must be able to expect the highest degree of candor and good faith from these public officers. Consequently, we find that the appellants' failure to cite to Graves in their joint brief merits dismissal of their appeal. Furthermore, having considered Graves and Pillersdorf, as well as the applicable statutes, we find that the issues raised by the appellants are wholly without merit.1

Accordingly, this appeal is dismissed.

ALL CONCUR. ENTERED: September 12, 1997

William L. Knopf, JUDGE, COURT OF APPEALS

Footnotes

1The Kentucky Supreme Court affirmed Baze's conviction and sentence of death in Ralph Stevens Baze, Jr. v. Commonwealth of Kentucky, Nos. 94-SC-127 and 94-SC-627 (Rendered March 27, 1997). The Supreme Court's opinion was designated "To Be Published", but is not yet final. The Supreme Court specifically found that the trial court did not commit reversible error in allowing defense counsel to proceed ex parte in requesting funds for experts.

BRIEF FOR APPELLANT: A.B. Chandler III, Attorney General of Kentucky; Sharon Kay Hilborn, Assistant Attorney General, Frankfort, Ky.; Jeffrey Stiles, Powell County Attorney, Stanton, Ky.

BRIEF AND ORAL ARGUMENT FOR APPELLEES:

J. Vincent Aprile II, Assistant Public Advocate,

Department of Public Advocacy, Frankfort, Ky.

ORAL ARGUMENT FOR APPELLANT: Kent T. Young, Assistant Attorney General, Frankfort, Ky.

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