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Commonwealth v. Carman

Supreme Court of Kentucky

February 19, 2015


Released for Publication March 12, 2015.

Page 917


FOR MOVANT: Michael J. O'Connell, Jefferson County Attorney; David A. Sexton, Assistant Jefferson County Attorney.


FOR RESPONDENT KENNETH WESTBAY: Michael Romano Mazzoli, Scott James Barton.

OPINION OF THE COURT BY JUSTICE ABRAMSON. Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., sitting. All concur.


Page 918



Under Section 115 of the Kentucky Constitution and Kentucky Rule of Civil Procedure (CR) 76.37(10), the Commonwealth, by and through the Jefferson County Attorney, moved this Court to certify the law on the following question:

In light of this Court's decision in Commonwealth v. Wilson, 384 S.W.3d 113 (Ky. 2012), does Kentucky law authorize ex parte communications to change the conditions of release after the initial fixing of bail with no notice for the Commonwealth to be heard?

The certified question refers to Commonwealth v. Wilson, a case arising from a previous certification of law request by the Jefferson County Attorney. In that case, a Jefferson District Court judge issued a warrant for Wilson's arrest, and shortly thereafter Wilson's attorney made an ex parte request of another District Court judge to set aside the warrant and issue a summons instead. Without notice to the Commonwealth, the second judge granted Wilson's request. The County Attorney represented that such ex parte motions by defense counsel to vacate or to Set aside arrest warrants were business as usual in Jefferson District Court. We answered the certified question in Wilson as to the legality of that practice with an emphatic condemnation: " We need go no further to deplore this practice than Supreme Court Rule 4.300, Canon 3(B)(7), which prohibits ex parte contacts in these circumstances." In this case, the County Attorney alleges a similar, recurring violation of the Supreme Court Rules, this one involving the issue of ex parte contacts regarding bail. Upon careful consideration of the rule applicable to certification of questions of law by the Commonwealth, we conclude that we improvidently granted the certification request in this case. However, given the

Page 919

importance of the issue presented, we elect to employ our discretionary authority under Section 110 of the Kentucky Constitution to issue a general writ of prohibition " to exercise control of the Court of Justice." Simply put, judges are prohibited from engaging in ex parte communications to change the conditions of a defendant's release after the initial fixing of bail, such practice being another clear violation of SCR 4.300, Canon 3(B)(7).


At about 1:00 p.m. on July 24, 2013, Louisville Metro Police Department narcotics detectives executed a search warrant for a residence in the 2500 block of Bank Street in Louisville. The search revealed illegal drugs--methamphetamine and marijuana--and the paraphernalia of drug use and trafficking--pipes for smoking the drugs along with digital scales, torn baggies, a large sum of cash, and a 9 mm handgun. The officers arrested the three individuals present, brothers Kenneth Westbay and Shannandoah Carman, and their friend Robert Jecker, and charged the three men with trafficking in a controlled substance, possession of marijuana, and possession of drug paraphernalia. Westbay and Jecker were further charged with being convicted felons in possession of a hand gun.

Although the record is silent as to the details of what happened next, there is no dispute that the three suspects were booked routinely into the Jefferson County Jail and that at some point they were interviewed by Pretrial Services employees, who prepared reports on each of them including assessments of the risks each posed if released from custody. Nor is there any dispute that the suspects were not arraigned that day. Instead, their cases were referred to the " duty" judge, for that day,[1] Judge David Bowles. Judge Bowles ordered that the men were not to be released without the posting of a bail bond--$5,000 full-cash each for Westbay and Jecker, and $1,000 full-cash for Carman. Arraignments were scheduled for 9:00 a.m. the next day.

Early the next day, however, a different District Judge, Judge Donald Armstrong,[2] apparently phoned the Pretrial Services office and ordered that Westbay and Carman be released on their own recognizance.[3] The orders of release, on which Judge Armstrong's name is noted, also postponed the two suspects' arraignments for four days until July 29, 2013.

The record does not indicate what prompted Judge Armstrong's intervention,[4] but the Commonwealth asserts that phone conversations recorded at the jail between Carmen and his mother include comments by the mother to the effect that someone " pulled strings" on Carman's behalf so as to bring about his release. Armed with this information, at the July 29, 2013 joint arraignment of Westbay and Carman, the ...

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