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Commonwealth v. Roth

Supreme Court of Kentucky

February 14, 2019




         "It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules 'do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated.[1] "Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules '[s]ubstantive rights, even of constitutional magnitude . . . would smother in chaos and could not survive.” [2]

         An Appellant's brief must have a "Statement of the Case" section reciting the facts of the case "with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary."[3] An Appellant's brief must also have an "Argument" section "with ample supportive references to the record [.]"[4]

         The Commonwealth's brief in this case plainly failed to comply with these requirements. Under CR 76.12(8)(a), we exercise our discretion to strike the Commonwealth's brief, [5] which necessarily requires that we also dismiss the Commonwealth's appeal.

         I. BACKGROUND.

         The Commonwealth charged John Roth Jr. with second-degree cruelty to animals, a Class A misdemeanor.[6] A district court jury found him guilty of that crime and recommended a sentence of six months in the county jail and a $500 fine. The trial court entered judgment accordingly. Roth then appealed the judgment to the circuit court as a matter of right.[7] The circuit court affirmed the judgment on all issues raised.

         Roth then sought discretionary review in the Court of Appeals. As Roth points out, the Commonwealth received a deficiency notice from the Court of Appeals for identifying the wrong court in its title. After the Commonwealth fixed that error, the Court of Appeals considered Roth's case, concluding that the trial court erred when it failed to grant Roth's motion for directed verdict on his second-degree animal cruelty charge. The Court of Appeals found that the evidence adduced at trial did not support the jury's verdict as to the satisfaction of the mens rea component of the crime.

         The Commonwealth's subsequent Petition for Rehearing to the Court of Appeals contained two deficiencies. First, the Commonwealth styled its Petition for Rehearing as a Motion to Reconsider. Second, the Commonwealth failed to cover its Petition with the requisite cover and failed to attach the Court of Appeals' opinion to the Petition. After the Commonwealth corrected the deficiencies, the Court of Appeals denied the Commonwealth's Petition.

         The Commonwealth then requested discretionary review from this Court. The Commonwealth's motion was deficient because it failed to provide the Court with the correct number of copies of the judgment and opinions of the appellate courts below. After correction, we granted discretionary review, and the parties filed briefs.

         II. ANALYSIS.

         The Commonwealth's brief before this Court contains no citations to the record. In support of some of its factual assertions, the Commonwealth cites only to the two lower-court opinions. This lack of citation to the record prompted Roth to move this Court to strike the Commonwealth's brief and dismiss its appeal. Roth's request is well-taken, and for the reasons stated below we order the Commonwealth's brief stricken from the record and dismiss its appeal.

         CR 76.12(4)(c)(iv) and (v) require "ample" citations "to the record" to support a party's factual assertions. Here, the Commonwealth did not make a single citation to the record in support of its factual assertions. The Commonwealth's brief only cites to the Court of Appeals' and circuit court's decisions in support of some of its factual assertions. While it is true that the decisions of the appellate courts below are a part of this record, citation to them alone cannot suffice as "ample" reference to the trial record. This is especially true where, as here, the central issue calls into question the adequacy of the evidence introduced by the Commonwealth at trial to support submission of the case to the jury.

         "It is fundamental that it is an Appellant's duty and obligation to provide citations to the record regarding the location of the evidence and testimony upon which he relies to support his position," and if an appellant fails to do so, "we will accordingly not address it on the merits."[8]

         A lower-court's discussion of the facts cannot satisfy our obligation to read or view the trial proceeding, especially where, as here, the sole issue to be resolved on appeal is the sufficiency of the evidence presented to the jury at trial. It would be an abdication of our constitutional duty as a reviewing court were we to accept on faith the factual assertions as summarized in the decisions of the reviewing courts below. Our rules requiring pinpoint citation to the record ensure that we base our decisions upon our own review of the record to establish the basis for factual assertions.

         "A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12."[9] Supporting factual assertions with pinpoint citations may, in fact, be the most substantial requirement of CR 76.12.[10]Without pinpoint citations to the record, a court "must sift through a record to [find] the basis for a claim for relief."[11] Expeditious relief would cease to exist without this requirement. "It is well-settled that an appellate court will not sift through a voluminous record to try to ascertain facts when a party has ...

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