Request By:
Mr. R. Lee Steers, Jr.
Commonwealth's Attorney
49th Judicial Circuit
301 West Kentucky Avenue
P.O. Box 454
Franklin, Kentucky 42134
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have sought our opinion on certain aspects of the powers of a grand jury in Kentucky.
First, you say that let us assume that a complaining witness signed a complaint for a warrant of arrest out of district court, that defendant was arrested thereon, that a preliminary hearing was held by the district court, who dismissed the charge, refusing to bind the accused over to the grand jury. Assume then that the complaining witness requested of the commonwealth's attorney permission to appear before the grand jury to seek a possible indictment.
The question is:
"Does the fact of the dismissal of the case at the District Court level give the Commonwealth's Attorney the authority to refuse to permit that case to be brought before the Grand Jury, or, does the complaining witness have an unqualified right to go before the Grand Jury with any matter, regardless of whether the matter has been adversely disposed of at the District Court level?"
It is provided in RCr 3.02 that a person arrested under a warrant issued upon a complaint shall be taken before a magistrate without unnecessary delay. In RCr 3.04 it is provided that a magistrate shall hold a preliminary hearing under certain circumstances.
The purpose of an examining trial [preliminary hearing] was stated in Jenkins v. Commonwealth, Ky., 477 S.W.2d 795 (1972) 797:
"The purpose of an examining trial is to ascertain whether probable cause exists to hold an accused for an investigation by a grand jury and to protect the accused from detention upon groundless charges pending an investigation by a grand jury. "
The preliminary hearing involves the initiation of adversary judicial criminal proceedings, as relates to the person's Sixth and Fourteenth Amendments [U.S. Const.] right to counsel. Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). Also see Shanks v. Com., Ky., App., 575 S.W.2d 163 (1979) 165. In addition, the preliminary hearing, as a device for determining probable cause, must be afforded promptly, as required by the Fourth and Fifth Amendments [U.S. Const.]. See Cox v. Turley (U.S.C.A. -6, 1974) 506 F.2d 1347, 1353; Sec. 10, Kentucky Constitution; and RCr 3.02, 3.04.
But significantly, the preliminary hearing does not involve double jeopardy. The Sixth Circuit Court of Appeals, in United States v. Wilson (U.S.C.A. -6, 1976) 534 F.2d 76, 78, wrote that "As previously noted, jeopardy had attached when the first jury was selected and sworn. " Under KRS 505.030, jeopardy attaches after the first witness is sworn. See Sections 13, 168, Kentucky Constitution; and Commonwealth v. Lewis, Ky., 548 S.W.2d 509 (1977) 510. Justice Reed for the court, in Graham v. Com., Ky., 562 S.W.2d 625 (1978) 627, ruled that "Jeopardy attaches when a defendant is placed on trial before the trier of the facts."
The law in Kentucky is that until an accused is put in jeopardy under an indictment or warrant of arrest, there is nothing to prevent the Commonwealth from indicting him and trying him on a charge of crime. Commonwealth v. Smith, Ky., 244 S.W.2d 724 (1951) 726. Thus the dismissal of charges or even an indictment does not bar a subsequent indictment where jeopardy has not attached. Locke v. Commonwealth, Ky., 503 S.W.2d 729 (1974) 731. In Shanks v. Com., Ky., App., 575 S.W.2d 163 (1979) 165, the court noted that "At this preliminary hearing, the charges against the appellant were dismissed, but he was subsequently indicted." (Emphasis added). But of course no issue was made of that.
It is our opinion that the fact of dismissal of the charge by the district court, standing alone, is not a sufficient reason for the commonwealth's attorney to refuse to permit the complaining witness to come before the grand jury.
At this point, we must examine the separate duties of the commonwealth's attorney and the grand jury and their interrelated functions.
Concerning the Grand Jury's function, RCr 5.02 reads:
"The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge. The court shall further instruct the grand jurors concerning inspections and reports which are required of them by law."
In Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972) 518, the court wrote that "It is not the function of the grand jury to determine guilt or innocence but only to determine whether the evidence offered by the state is sufficient to warrant putting the accused to trial." The grand jury has the dual role of determining if there is probable cause to believe that a crime has been committed, and that a particular person committed it, and of protecting citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972).
Concerning the duties of the commonwealth's attorney, RCr 5.14 reads:
"(1) The attorney for the commonwealth, or his assistant, designated by him, shall attend the grand jurors when requested by them, and he may do so on his own motion, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. He shall also, when requested by them, draft indictments.
"(2) The grand jurors may at any time question witnesses in a closed session."
The commonwealth's attorney has the duty to prosecute all violations of the criminal and penal laws which are to be tried in the circuit court in his judicial district. In addition, he shall have the primary responsibility within his judicial circuit to present evidence to the grand jury concerning such violations. KRS 15.725.
When considering the interconnected roles of the prosecutor and grand jury, it is our view that in the situation you mention you may give the grand jury all the information you have on the subject warrant, arrest, dismissal, and then give them your advice as to whether there is probable cause. That leaves it up to the grand jury as to whether they will want to investigate the case and issue subpoenas for witnesses. RCr 5.06 and 5.12. In addition, there is nothing to prevent the complaining witness from requesting to be heard by the grand jury. As the court said in Matthews v. Pound, Ky., 403 S.W.2d 7 (1966) 9, "the duties of the grand jurors and the prosecuting attorney are closely related to the end that the proper presentation of criminal charges shall be made." As you suggest, the complaining witness may go before the grand jury if the grand jury so desires. Upon the advice of the commonwealth's attorney, it must exercise its sound discretion in determining whether or not it will investigate a particular matter such as this. The power of the grand jury to investigate the possible commission of crime and return indictments is rather broad within that narrow range. 38 Am.Jur.2d, Grand Jury, Sec. 26. It may even return an indictment while an offense is being investigated by an examining court. Hobson v. Curtis, Ky., 329 S.W.2d 565 (1959) 566.
Your last question concerns the basis upon which grand juries investigate the condition of county properties and comment thereupon in their written reports.
The last sentence of RCr 5.02 reads: "The court shall further instruct the grand jurors concerning inspections and reports which are required of them by law." (Emphasis added).
Section 102 of the Old Criminal Code expressly provided that it is the duty of the grand jury to inquire, inter alia, into the conditions and management of the public prisons in the county." That code is no longer in effect. By custom in many counties the inspection role was extended to county buildings other than the county jail and to various public offices from time to time.
We are unaware of any statutory or other legal provisions for inspections of government facilities and public offices not relating to the role of investigating the possible commission of crime. Thus, even though RCr 5.02 provides for such inspections and reports "as required by law", the term is meaningless except in terms of its role in examining into the possible commission of crime.
One should be mindful of the following language in Matthews v. Pound, Ky., 403 S.W.2d 7, 10 (1966):
"Again referring to the serious duties and responsibilities of such an inquisitorial and accusing body, it has been held that in the absence of a statute a grand jury has no right to file a report reflecting on the character or conduct of public officers or citizens unless it is followed by an indictment. * * * When the report does not amount to an indictment or presentment, it has been held that such report is not privileged and may be the basis for a libel action."
We also refer you to OAG 72-88, copy of which is enclosed.