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Tabitha Coomer; Courtney v. Commonwealth of Kentucky Appellee

May 3, 2013

TABITHA COOMER; COURTNEY MILLER; AND TIMOTHY MILLER APPELLANTS
v.
COMMONWEALTH OF KENTUCKY APPELLEE



APPEAL FROM ADAIR CIRCUIT COURT HONORABLE JAMES G. WEDDLE, JUDGE ACTION NO. 08-CR-00001

The opinion of the court was delivered by: Thompson, Judge

RENDERED: MAY 3, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

BEFORE: CLAYTON, KELLER*fn1 AND THOMPSON, JUDGES.

Tabitha Coomer, Courtney Miller and Timothy Miller appeal from an order of the Adair Circuit Court revoking and forfeiting Timothy's bail bond in the amount of $50,000. The issues presented on appeal are: (1) whether a $25,000 bond posted by Tabitha was forfeited when Timothy was charged with committing additional offenses after his arraignment in the Adair District Court; (2) whether the revocation and forfeiture of the entire bond was excessive; (3) whether the circuit court erred when it refused to listen to an audio recording of a drug buy between Timothy and a confidential informant; and (4) whether the circuit court had authority to direct payment of the forfeited bond to the office of the Adair County Sheriff. We conclude that the forfeiture of the entire $50,000 was excessive and that the circuit court was without authority to direct payment of the forfeited bond to the Adair County Sheriff.

On October 8, 2007, Timothy was arrested and charged with trafficking in a controlled substance, first degree; trafficking in marijuana less than eight ounces; possession of a controlled substance, first degree; and possession of marijuana. On October 24, 2007, he appeared in the Adair District Court for a preliminary hearing and a $25,000 bond posted by Tabitha on October 15, 2007, was continued. The standard bond form stated that the bond would be forfeited if Timothy failed to appear in court as required. His release was also conditioned on his compliance with the laws of the Commonwealth. The bail bond document advised that a violation of the bond conditions could result in forfeiture of the bond.

Timothy was indicted by the Adair County grand jury on the same charges. After Timothy's arrest on that indictment, his bond was set at $50,000 by the Adair Circuit Court and Timothy's request to modify the bond to $25,000 was denied. On February 19, 2008, Courtney posted an additional $25,000 cash bond that was applied to the $25,000 bond posted by Tabitha. The bond form recited that it was conditioned on Timothy making court appearances and "[n]ot breaking any laws of the Commonwealth" and advised that violation of the bond conditions could result in forfeiture.*fn2

Following his release on bail, Timothy was again indicted by an Adair County Grand Jury for drug-related crimes allegedly committed on February 25, 2008. The Commonwealth moved to revoke and forfeit the bonds posted by Tabitha and Courtney on the basis that Timothy violated the conditions of his release.

At a bail bond revocation hearing, Kentucky State Police Detective Scott Hammond testified that he and other police officers worked with undercover agent Jennifer Farlee and, on February 25, 2008, conducted a controlled cocaine buy. Farlee was equipped with a recording device. Detective Hammond testified that he did not observe the drug transaction but observed Timothy in the area. Farlee testified that on February 25, 2008, she met with Timothy who sold her crack cocaine.

At the close of the Commonwealth's proof, Timothy requested the court to play the audio recording of the alleged drug buy, which he contended contradicted Farlee's testimony. The court refused, indicating that it had sufficient evidence to determine the matter and listening to the tape was unnecessary because Farlee testified in court.

The circuit court issued an order revoking and forfeiting the entire $50,000 bail bond to the Adair County Sherriff's Office. This appeal followed.

We first address Tabitha's contention that the district court bond cannot be forfeited because Timothy was rearrested after his indictment, and she did not agree or otherwise acquiesce to its ...


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