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Commonwealth v. Cambron

Court of Appeals of Kentucky

February 2, 2018



          Andy Beshear Attorney General of Kentucky Dorislee Gilbert Special Assistant Attorney General Louisville, Kentucky BRIEFS AND ORAL ARGUMENT FOR APPELLANT

          Joshua M. Reho Louisville Metro Public Defender Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE



          NICKELL, JUDGE

          In October 2014, Joseph Cambron was indicted on one count of murder and one count of tampering with physical evidence. Both charges resulted from the stabbing death of a twelve-year-old boy in Jefferson County, Kentucky, and disposal of the murder weapon. Cambron confessed to both crimes, was declared indigent, and is represented by the Office of the Louisville Metro Public Defender (OLMPD). He is awaiting trial.


         Unbeknownst to the Commonwealth, in a span of thirteen months, the Jefferson Circuit Court entered more than thirty ex parte orders in the case.[1] Each is marked "sealed" and none is listed on the index to the thirty-eight-page appellate record. All but three of the orders direct entities to "produce, within ten days of this order, certified copies of the complete records relating to the above named [sic] defendant." The copied records were to be delivered to the OLMPD's Mitigation Coordinator and no one else. The Commonwealth was never notified by OLMPD or the trial court of any request for, nor entry of, an ex parte order.

         Entry of twenty-nine of the orders did not result from the filing of a written motion served upon the Commonwealth with an opportunity to respond. Instead, each resulted from "[a]n oral motion having been made and the court being sufficiently advised." Based on the dates on which the ex parte orders were entered, the defense team may have conversed with the trial court at least seven separate times without the Commonwealth's knowledge. Entry of these orders clearly resulted entirely from one-sided oral requests from the defense. We do not know what argument-if any-was made to the trial court to justify entry; nothing was recorded for subsequent review. Nor do we know how-or whether-the trial court analyzed the requests before entering the orders. The orders reflect no rationale.

         One of the sealed ex parte orders for production of records was directed to the Louisville Metro Police Department Crimes Against Children Unit (CACU).[2] Rather than complying with the sealed ex parte order-or challenging the order directly-CACU alerted the Commonwealth to its receipt. Shortly thereafter, the Commonwealth moved to quash the order for production and sought disclosure of the "nature" of the more than thirty other "sealed" ex parte documents it discovered while searching CourtNet. The Commonwealth requested disclosure so it could file "appropriate objections or other necessary motions." Cambron's attorneys filed and served a partial response on the Commonwealth and provided more detail in an ex parte supplemental response which was not served on the prosecution. According to the Commonwealth, the matter was orally argued in chambers but not recorded. Had CACU not alerted the Commonwealth to its receipt of the ex parte order, this custom-which Cambron's defense team characterizes as "common practice in Jefferson County and throughout the state"- would continue unchecked.

         The ex parte orders entered by the trial court-and the briefs filed in this Court-have been sealed. An Order entered simultaneously with this Opinion unseals the appellate briefs and the recording of the oral argument heard by this Court on December 5, 2017. Said Order further directs the trial court, pursuant to Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724, 728 (Ky. 2002), and its progeny, including Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky. 2009), to analyze each document it previously sealed and to unseal any document which does not comport with the procedure described therein.

         This appeal pertains specifically to an opinion and order entered by the Jefferson Circuit Court on August 3, 2016, denying in toto the Commonwealth's motion to quash an ex parte order for production of records directed to CACU and to disclose the nature of all other sealed documents. The trial court found Cambron's rights-to remain silent and to receive due process- as a defendant in a criminal case outweighed any argument made by the Commonwealth. Moreover, by granting Cambron's ex parte motion for production of records the trial court stated it was:

simply expediting the receipt of records to which [Cambron], in good faith, believes he is legally entitled, but that are being denied to him due to circumstances outside of his control.

         The trial court went on to say-in its experience-records custodians do not always timely respond to requests, but upon receipt of a court order, they comply swiftly. The trial court reasoned:

denial of records to which the defendant is legally entitled offends the defendant's due process rights. To be forced to give the Commonwealth notice that such records are being sought, however, would run afoul of a defendant's rights to remain silent and develop a confidential and privileged defense strategy. Were the Court not to expedite receipt by way of an ex parte order, it would feel constrained to repeatedly continue the case as the defendant attempted, often in vain, to secure the records on his own. This would practically grind the courthouse to a halt, and harm the Commonwealth and the community's interest in the swift resolution of criminal matters.

         While finding no fault with CACU-"[t]his is not meant as an indictment of record custodians, generally, or of LMPD CACU, specifically"-it is curious the trial court found justification for entering an ex parte order directing CACU to respond to the defense team within ten days.

         Recognizing its order might appear to give defense attorneys "an unfair advantage, " the trial court equated its grant of Cambron's ex parte motion with the Commonwealth seeking a post-indictment search warrant from a non-presiding judge so as not to reveal the prosecution's strategy. In attempting to justify entry of the sealed ex parte order, the trial court wrote:

[b]oth sides occasionally need the imprimatur of the courts to accomplish the discovery they need to acquire in the interest of justice. To suggest that orders such as the one in question somehow but [sic] the Commonwealth at a disadvantage ignores the significant advantages it has in investigative resources, i.e., the police.

         The Commonwealth appealed. After thorough review, we reverse and remand for action consistent with this Opinion and a separate Order entered simultaneously.


         Generally, interpretation of constitutional provisions, statutes, court rules and procedures requires de novo review without deference to the trial court's view.[3] Commonwealth v. Nichols, 280 S.W.3d 39, 42 (Ky. 2009) (quoting Commonwealth v. Yelder, 88 S.W.3d 435, 437 (Ky. App. 2002)). More particularly, whether the Commonwealth's motion to quash was properly denied turns on whether the trial court abused its discretion. Commonwealth v. House, 295 S.W.3d 825, 828-29 (Ky. 2009). Under either standard, the trial court's opinion and order fails.

         We begin with an explanation of terms. An "ex parte communication" is defined as "[a] generally prohibited communication between counsel and the court when opposing counsel is not present." Black's Law Dictionary 597 (7th ed.). When used as an adjective, the phrase "ex parte" is defined as being "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested[.]" Id.

         The trial court saw its role in this case as simply helping a criminal defendant procure records he had been denied. We disagree.

         At its heart, this case is not about whether Cambron has been denied records he is constitutionally entitled to receive. It cannot be, for there has been no showing he has been denied anything, despite the trial court writing, "records . . . are being denied to [Cambron] due to circumstances outside of his control." Just as there has been no showing of a denial of records, there has been no showing of entitlement to such records, nor that Cambron may acquire them using an ex parte order secretly entered by the trial court. Moreover, there has been no showing of a denial of due process. The trial court has based its decision on an unsupported premise and abused its discretion.

         Quite simply, this case is about the proper way to seek records. Kentucky courts have adopted procedures governing acquisition of records. A few long-standing options are: requests under Kentucky's Open Records Act, KRS § 61.870 et seq.; motions seeking orders pursuant to CR[4] 7.02(1); issuance of a subpoena duces tecum pursuant to RCr 7.02(3); and, general discovery and inspection as outlined in RCr 7.24. Additionally, when a criminal defendant desires a trial court's help in accelerating the process of acquiring records, he may request a court order pursuant to RCr 8.14 which directs:

[a]n application to the court for an order shall be by motion which shall be in writing unless made during a hearing or trial, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.

         These five long-standing and well-established options have worked well in a myriad of cases-both civil and criminal. They ensure all parties are aware of movement in the case and create a level playing field. When these options are ignored, justice is skewed and fairness eliminated. Based on the record and defense counsel's responses during oral argument, Cambron has pursued none of these routine avenues. He suggests his only option for acquiring his own records without revealing his potential defense to the prosecution is seeking multiple ex parte orders. Again, we disagree.

         Rather than using any one of several recognized rules, Cambron's defense team attempted to create a new procedure over which it unilaterally exercised complete control to the exclusion of the Commonwealth and in which the trial court appears to have been manipulated. Of perhaps even greater concern to us is Cambron's description of this tactic as "common practice in Jefferson County and throughout the state." When pressed at oral argument, Cambron could not substantiate this claim.

         While this is a criminal case, "unless otherwise provided by law, rules of procedure applying to civil cases apply as well to criminal cases." Gholson v.Commonwealth, 308 Ky. 82, 86, 212 S.W.2d 537, 539 (1948). RCr 13.02 authorizes local courts to regulate local practice by adopting their own rules, but only "in any manner not inconsistent with these rules." No rule of criminal procedure applicable in Kentucky authorizes a party to use a trial court's power to procure discovery without serving notice of those discovery efforts on opposing counsel. In fact, just the opposite is true. CR 5.01 ...

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