Request By:
Honorable Hiram Brock, Jr.
Assistant County Attorney
Court and Second Streets
P.O. Box 591
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion based on the following factual situation:
"A defendant was issued with a warrant charging him with wanton endangerment and a second defendant, at the same time, was charged with harassment. Bond was executed on each warrant, but, before the case could be tried in the District Court, an involved officer submitted the facts to the Grand Jury for consideration. The Grand Jury returned a 'no true bill'.
When the case was called on the District Court docket, a copy of the 'no true order' was submitted and the Court ruled that the action of the Grand Jury eliminated any further action on the part of the District Court.
My position taken on the matter was that the Grand Jury had no jurisdiction to consider the misdemeanors, as they were within the exclusive jurisdiction of the District Court."
Enclosed please find copies of OAG'S 78-168, 78-627 in which we concluded that a grand jury, pursuant to its investigative authority, may return an indictment for a misdemeanor. The conclusion reached in these opinions is also supported by the 1980 amendment to RCr 5.20 which provides that an indictment for a misdemeanor not joined with a felony charged in the same indictment shall be docketed in the district court.
The procedure for when the grand jury does not return an indictment is set out in RCr 5.22. That rule provides that the court shall order a discharge of the defendant (from the complaint and from custody), exoneration of the bail or a refund of any money or bonds deposited as bail.
The return of a no bill of indictment does not foreclose the possibility of further criminal proceedings against the defendant. In subsection (3) of RCr 5.22 it is provided that the failure of a grand jury to return an indictment does not prevent the charge from being submitted to another grand jury. But, more importantly, an indictment is unnecessary to properly charge a misdemeanor offense. OAG 78-168. Thus, in the case of a misdemeanor it is unnecessary to represent the case to a grand jury. Instead the county attorney may proceed by way of an information against the defendant. RCr 3.02, 3.04, 6.02, 6.04.
In conclusion, if a grand jury returns a no bill of indictment on a misdemeanor charge, the defendant is entitled to be discharged from the complaint and released from the conditions of his appearance bond. If the county attorney then files an information, the defendant should be held to answer the charges and an appearance bond should be set.