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Darcy v. Commonwealth

Supreme Court of Kentucky

September 18, 2014


Page 78


FOR APPELLANT: Molly Mattingly, Assistant Public Advocate, Department of Public Advocacy.

FOR APPELLEE: Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General.


Page 79



We have a long-recognized preference in our criminal law for jointly trying defendants who are, or could have been, jointly indicted. Joint trials promote judicial economy and consistent verdicts; but they present unique difficulties, as well. This case presents an opportunity for us to confront one of those joint-trial difficulties and to provide trial courts with guidance in the future. We are asked here to reconcile one defendant's interest in a continuance of the joint trial with his codefendant's asserted statutory right to a speedy trial under Kentucky Revised Statutes (KRS) 500.110.

In doing so, we conclude that a continuance of the joint trial requested by a defendant, so long as it is reasonable, is included within the scope of the " elastic" clause of KRS 500.110, allowing extension of the statutory speedy-trial time period. In other words, we hold a trial court is not to deny a defendant's motion for a continuance solely on the basis of protecting his codefendant's statutory right to a speedy trial.

Because we find the trial court has made this error, we reverse and remand for further proceedings consistent with this opinion.


No one was home at her son's residence when Tina Ball saw a strange vehicle backed up to the back porch of the residence. She stopped and confronted two men who fled the scene in their vehicle by speeding across the yard. Tina pursued them and called the police.

The Breckinridge County Sheriff's Department responded and located the vehicle. When Deputy Jimmy Gilpin activated his lights to initiate a traffic stop, the driver--later identified as Patrick Darcy--did not stop the vehicle. Instead, he led Gilpin on a chase over wet roads in and out of residential areas.

After driving a mile or two, the vehicle stopped in a residential neighborhood where the passenger jumped out and ran. Darcy sped away with Gilpin in pursuit. Darcy soon stopped the vehicle and fled on foot. He was caught within minutes and positively identified as the vehicle's driver.

Darcy consented to a search of the vehicle. This search revealed a necklace and a paint can containing money, both identified as stolen from Ball's residence, along with guns and other items not identified as missing from Ball's residence.

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Meanwhile, the passenger was apprehended and identified as Randy McCleery, Jr. Tina identified McCleery from her confrontation at the residence, but she could not identify Darcy because she never had a clear view of him at the residence. But Darcy admitted he was involved in the burglary of the Ball residence.

Darcy and McCleery were separately indicted, but their cases were consolidated for trial. After a joint trial, the circuit court jury found Darcy guilty of first-degree burglary, first-degree fleeing or evading the police, and theft by unlawful taking of property under $500.[1] In accordance with the jury's recommendation, the trial court sentenced Darcy to twenty years for the burglary conviction and five years for the fleeing or evading conviction. The sentences were ordered to be served consecutively for a total of twenty-five years' imprisonment. The misdemeanor unlawful-taking conviction also carried a twelve-month sentence, which was to run concurrently. This appeal follows as a matter of right.[2]


Darcy raises six issues on appeal. Because we find the first issue he presents merits reversal, we only reach the remaining assignments of error insofar as they are likely to recur on retrial.

A. The Trial Court Abused its Discretion by Denying Darcy's Motion for a Continuance Without Contemplating KRS 500.110's Elastic Clause.

Darcy and McCleery were scheduled to be jointly tried May 7, 2012, approximately four months after they were indicted.[3] Darcy was represented by the Department of Public Advocacy at all pre-trial proceedings, and his assigned counsel prepared to represent him at trial. But twelve days before the scheduled trial date, private counsel, Bryan Coomer, filed a motion seeking a continuance of the trial on Darcy's behalf. In his motion, Coomer explained that Darcy's brother contacted him offering to pay his fee to represent Darcy. Because the trial date was near, Coomer requested a continuance to enable him to substitute his services for those of the DPA and to allow him sufficient time for trial preparation. The motion was heard by the trial court at the pre-trial conference, which was five days before the scheduled trial date.

At the hearing, the trial court expressed a favorable inclination toward granting Darcy a continuance but did not spend much time on the record contemplating the motion's merits. Instead, the trial court was preoccupied with McCleery's statutory " speedy trial clock." The trial court explained that McCleery had demanded a speedy trial in December and must be tried within 180 days of his demand. The Commonwealth confirmed that " as far as the statute goes," 128 days had already elapsed since McCleery's demand. After failing to find a suitable alternate trial date that would satisfy Darcy's motion and fall within the 52 days remaining on McCleery's " speedy trial clock," the trial court announced it would not " continue the case because [Mr. Coomer] just got into the case. . . . Mr. McCleery's the one who's

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throwing a kink in the works by asking for a speedy trial, so I'm trying to make sure he gets it." Having expressed its appreciation for McCleery's speedy-trial motion, the trial court later opined, " I have no problem continuing if they both agree. If Mr. McCleery wants to play hardball and maintain, which is his right under the Constitution, then we're going to have a trial on Monday." McCleery, of course, did not consent to the continuance and Darcy's motion was ...

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