author:
Justice VENTERS.
      SCOTT, J.,

text:
    Ray’mon Ja’kee ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000915-MR.
    Supreme Court of Kentucky.
    June 17, 2010.

      Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Todd Dryden Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Ray’mon Rogers, appeals as a matter of right from a judgment entered upon a jury verdict convicting him of complicity to commit murder, complicity to criminal attempt to commit murder, and two counts of complicity to commit first-degree robbery. In accordance with the jury’s recommendation, he was sentenced to a total of forty years’ imprisonment.

On appeal, Appellant presents the following arguments: (1) that the trial court erred by refusing to allow him to question the venire panel during voir dire regarding the difference between the burden of proof at a civil trial versus a criminal trial; (2) that he was entitled to a directed verdict on both counts of complicity to first-degree robbery; and (3) that he was entitled to a directed verdict on the charge of complicity to criminal attempt to commit murder. For the reasons explained below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented and viewed in the light most favorable to the Commonwealth established the following facts. In April 2007, Appellant had just turned eighteen. He frequently ran around with James Bryant in a Ford Crown Victoria owned by Bryant’s wife. Appellant was well acquainted with murder victim Marcus Pratt, whom he had known since elementary school.

On the evening of April 20, 2007, Appellant borrowed the Crown Victoria and drove to New Albany, Indiana, to pick up Pratt and attempted-murder victim James Hollister. Hollister testified he saw Pratt had about $800.00 to $1,000.00 in cash that night. The group left New Albany, crossed the bridge into Louisville, picked up two girls, and then went to a liquor store. Pratt paid for the liquor.

From there, they went to a residence where they found Bryant. Bryant joined Appellant, Pratt, Hollister, and the girls in the Crown Victoria. They stopped at another drive-thru liquor store. Pratt again paid for the liquor. Hollister noticed that Bryant watched Pratt getting out the cash, and thus knew that Bryant was aware that Pratt carried a large amount of money on his person. Then, they went to the girls’ apartment where they drank alcohol and smoked marijuana. Hollister noticed Pratt had two cell phones with him.

After a while, Pratt told Appellant and Bryant that he and Hollister wanted to go back to Indiana. Bryant responded there was one more stop to make, and they left the girls’ apartment. After getting back into the vehicle, Pratt and Hollister fell asleep. Appellant initially drove, but because he was so intoxicated, Bryant took over the driving, and drove the car to Elizabethtown, with Hollister and Pratt asleep in the backseat.

Hollister testified he was awakened by the sounds of Appellant and Bryant outside the vehicle yelling at Pratt to give them “everything” he had. Bryant, seeing that Hollister had awakened, pulled him from the vehicle, and all four began to fight. Pratt tried to run and as he did, Appellant drew a gun and shot Pratt, killing him. In the meantime, Bryant severely beat Hollister into unconsciousness.

In the morning, Hollister woke up and tried to get help at nearby residences. His cell phone and money were missing. He eventually passed out. The next thing he remembered was awakening in the hospital, having suffered a broken nose and other injuries.

Neither of Pratt’s two cell phones, and none of the cash that he had on his person the previous night was found on his body. In the days following the murder, Appellant was observed with a large amount of cash and a black cell phone he had not previously been known to have.

Police suspicion soon turned toward Appellant and Bryant. In an April 23, 2007, interview with Elizabethtown Police, Appellant admitted to being with Bryant the evening of April 20, 2007, but claimed that Bryant alone committed all of the crimes. Appellant claimed to have been asleep when they arrived at Elizabethtown, and that he was awakened by shots outside the vehicle as Bryant murdered Pratt. Appellant claimed he then pretended to sleep while Bryant pulled Hollister from the vehicle and proceeded to beat him. He repeated this version of events at trial.

Appellant was indicted for complicity to murder, complicity to attempted murder, and two counts of complicity to first-degree robbery. The Commonwealth filed a notice that it would seek the death penalty, but later withdrew the notice. Bryant was similarly indicted, but was tried separately. Appellant was convicted of all charges. The jury recommended a total sentence of forty years’ imprisonment. On November 10, 2008, the trial court issued a judgment and sentence consistent with the jury’s recommendation. This appeal followed.

II. THE TRIAL COURT - PROPERLY LIMITED VOIR DIRE QUESTIONING REGARDING REASONABLE DOUBT

Appellant contends that the trial court erred by refusing to allow him to question the venire panel during voir dire regarding the difference between the burden of proof at a civil trial versus a criminal trial.

During voir dire, Appellant’s counsel began to ask the venire panel if they knew the difference between a civil trial and a criminal trial with respect to the requirement of proof beyond a reasonable doubt. When the Commonwealth objected, trial counsel explained to the judge that he was trying to “let the jury know” that a different standard of proof applied in criminal cases. Later in the same bench conference, counsel stated that he was trying to “educate the jury” to the fact that a different standard applied in a criminal case. The trial court sustained the Commonwealth’s objection on the grounds that trial counsel was improperly attempting to define reasonable doubt. Although counsel was allowed to tell the panel that the burden in a criminal case is “beyond a reasonable doubt,” he was not allowed to contrast that with a civil trial’s “preponderance of the evidence” standard. The trial court concluded that explaining to the jury that belief beyond a reasonable doubt differed from belief by a preponderance of the evidence was tantamount to defining reasonable doubt, and would violate RCr 9.56. We affirm the trial court’s exercise of discretion in limiting Appellant’s counsel’s statements to the jury, although we do so for slightly different reasons.

Trial courts are granted broad discretion and wide latitude in their control of the voir dire examination under RCr 9.38. “While it is within the discretion of the trial court to limit the scope of voir dire, that discretion is not boundless. Appellate review of such limitation is for abuse of discretion.” Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky.2005) (citing Webb v. Commonwealth, 314 S.W.2d 543, 545 (Ky.1958)).

We observe at the outset that under RCr 9.38, voir dire is an “examination of the prospective jurors” by which the court and counsel seek information from the prospective jurors. It is not an occasion for counsel to educate the juror panel regarding legal concepts, although competent trial lawyers might properly structure their questions to the panel in a way that achieves that end. “The principal purpose of voir dire is to probe each prospective juror’s state of mind and to ... allow counsel to assess suspected bias or prejudice.” Lawson v. Commonwealth, 53 S.W.3d 534, 539 (Ky.2001) (quoting Thomas v. Commonwealth, 864 S.W.2d 252, 259 (Ky.1993)). Educating the jury on legal concepts is the function of the trial court. On that basis alone, we conclude the trial judge was well within the bounds of her discretion to limit counsel’s attempt to use voir dire for the edification of the jury-

We also recognize, however, that in order to fairly exercise the right of peremptory challenges and challenges for cause, it is sometimes necessary to introduce legal concepts to the jury panel to ascertain if any prospective juror is unable or unwilling to adhere to the concept. For example, we have allowed trial counsel during voir dire to present limited information on the applicable sentencing options so that inquiry can be made into the ability of each prospective juror to consider the full range of punishment involved in the case. Laivson, 53 S.W.3d at 544. We recognize that concern for a juror’s inclination to apply the reasonable doubt standard of proof may, in some cases, be a concern as serious as the juror’s inclination to consider the full range of punishment.

RCr 9.56 states that the jury should not be instructed as to the definition of “reasonable doubt.” In Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky.1984), we extended the well-settled prohibition of defining reasonable doubt to all points in a trial’s proceedings, stating “trial courts shall prohibit counsel from any definition of reasonable doubt at any point in the trial[.]” We have held that, subject to appropriate limits, the rule is not offended by stating what reasonable doubt is not. Id. at 392. In Johnson v. Commonwealth, 184 S.W.3d 544, 549 (Ky.2005), we concluded that the prosecutor’s statement to the jury panel that “beyond a reasonable doubt” was not the same thing as “beyond a shadow of a doubt” did not constitute defining of reasonable doubt. Most recently, in Cuzick v. Commonwealth, 276 S.W.3d 260, 268 (Ky.2009) we declined to overrule Johnson on that very point and expressly reaffirmed Johnson’s point that “in the very case that announced the prohibition against defining reasonable doubt [Callahan ], we held that the prosecutor’s allegedly improper statement, which, at most, attempted to show what reasonable doubt was not, did not amount to a violation of the rule against defining ‘reasonable doubt.’ ” Cuzick, 276 S.W.3d at 269 (citing Johnson, 184 S.W.3d at 549).

As we noted above, the voir dire examination is to inform the court and trial counsel about the prospective jurors and not to educate the jury. But just as a juror’s ability to consider the full range of penalties is frequently cause for legitimate concern, trial judges or trial counsel on both sides of a criminal case occasionally have reasonable concerns that prospective jurors may be confused or misinformed by the various standards of proof to which they have been exposed by prior jury service, news reports, television shows, or elsewhere, resulting in the inability or unwillingness of jurors to apply the reasonable doubt standard. The history of our cases on the subject plainly demonstrates such concern from the prosecutor’s perspective, and we have consistently held their efforts to point out that reasonable doubt is not “all doubt” or a “shadow of a doubt” were either proper or were, at most, harmless error. Appellant argues that defense counsel with a similar concern should have the same opportunity to point out that the “beyond a reasonable doubt” standard required in a criminal case is not the same as the “preponderance of the evidence” standard applicable in most civil trials. We find no fault in that logic.

Accordingly, we agree that stating to the jury that “beyond a reasonable doubt” is not the same thing as the civil trial standard of “beyond a preponderance of the evidence” does not constitute defining reasonable doubt. In so holding, we remain consistent with our decisions in Callahan, Johnson, and Cuzick. Subject always to the trial court’s sound discretion, such statements to the jury, if limited to the bare comment illustrated in the preceding sentence, are permissible during voir dire when used as the factual predicate for a question seeking to ascertain if any prospective juror would be unable to apply the reasonable doubt standard. Doing so does not violate RCr 9.56’s prohibition against defining reasonable doubt, nor does it offend the principles set forth in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) or Whorion v. Commonwealth, 570 S.W.2d 627, 631 (Ky.1978) (overruled on other grounds by Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979)), which led this Court to amend RCr 9.56 to its present form. Moreover, it accommodates the legitimate interest of all parties in a criminal case for assurance that jurors who cannot apply the reasonable doubt standard will be subject to challenge.

Appellant’s counsel, however, never suggested to the trial court that he wanted to inquire if any juror would be unable to follow the criminal standard of proof beyond a reasonable doubt or would instead be inclined to apply the standard used in civil trials. Had he done so, the trial court’s refusal to allow the inquiry would be subject to harmless error analysis. Cuzick, 276 S.W.3d at 267. Because our review of the record discloses that Appellant’s sole purpose in raising the matter during voir dire was to educate the jury, rather than to elicit potentially disqualifying information about the jury, we conclude that the trial court did not err when it terminated counsel’s discussion of the issue.

III. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON THE COMPLICITY TO ATTEMPTED MURDER CHARGE

Appellant next contends that he was entitled to a directed verdict on the complicity to attempted murder charge. He argues that the Commonwealth, at best, merely proved that he was present at the scene, and that his mere presence is insufficient to establish complicity in the attempted murder of Hollister. He also alleges that the Commonwealth did not prove there was any intent to kill Hollis-ter, or that Appellant aided and assisted Bryant in Hollister’s beating. To properly assess his claim, we must consider both the meaning of complicity, KRS 502.020, and the meaning of criminal attempt, KRS 506.010.

In considering a motion for a directed verdict, the trial court is required to draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky.1991).

[I]f the evidence is sufficient to induce reasonable juror to believe beyond reasonable doubt that defendant is guilty, directed verdict should not be given; for purpose of ruling on motion, trial court must assume that evidence for Commonwealth is true, but reserving to jury questions as to credibility and weight to be given to such testimony.
On appellate review, test of directed verdict is, if under evidence as whole, it would be clearly unreasonable for jury to find guilt, only then defendant is entitled to directed verdict of acquittal ... there must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.

Id. (internal citations omitted).

The criminal complicity statute, KRS 502.020, “describes two separate and distinct theories under which a person can be found guilty by complicity, i.e., ‘complicity to the act’ under subsection (1) of the statute, which applies when the principal actor’s conduct constitutes the criminal offense, and ‘complicity to the result’ under subsection (2) of the statute, which applies when the result of the principal’s conduct constitutes the criminal offense[.]”

Tharp v. Commonwealth, 40 S.W.3d 356, 360 (Ky.2000).

The primary distinction between these two statutory theories of accomplice liability is that a person can be guilty of “complicity to the act” under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of “complicity to the result” under KRS 502.020(2) without the intent that the principal’s act cause the criminal result, but with a state of mind which equates with “the kind of culpability with respect to the result that is sufficient for the commission of the offense,” whether intent, recklessness, wantonness, or aggravated wantonness. KRS 502.020 (1974 Official Commentary); R. Lawson and W. Fortune, Kentucky Criminal Law § 3-3(b)(3), at 106, § 3-3(c)(2), at 114 (LEXIS 1998).

Conspiracy, as envisioned by the statute governing complicity, does not necessarily require detailed planning and a concomitant lengthy passage of time. All that is required is that defendants agree to act in concert to achieve a particular objective and that at least one of them commit that objective. Commonwealth v. Wolford, 4 S.W.3d 534, 540 (Ky.1999). “The existence of a conspiracy can be proven ... by circumstantial evidence.” Id. However, absent a showing of other facts and dr-cumstances connecting a defendant with the crime, mere presence at the scene of the crime is not sufficient to attach guilt to defendant. McIntosh v. Commonwealth, 582 S.W.2d 54, 57 (Ky.App.1979) (abrogated on other grounds by Commonwealth v. Clemons, 734 S.W.2d 459 (Ky.1987)).

Appellant’s claim that he was “merely present” at the scene of the crime bears no resemblance to the evidence, when viewed most favorably to the Commonwealth. Hollister testified that when he awoke at the crime scene, Appellant and Bryant were together outside the vehicle accosting Pratt and demanding that he give them “everything he had,” which would include Pratt’s large sum of money. This strongly suggests that Appellant and Bryant were acting in concert to steal Pratt’s money. When they realized that Hollister was awake, Bryant immediately attacked him, and the scuffle ensued — Appellant and Bryant against Pratt and Hollister. Again, this suggests that Appellant and Bryant were allied in their conduct. Then, while Bryant kept Hollister occupied, Appellant shot Pratt, further indicating that Appellant and Bryant were complicit in each other’s crimes.

In summary, there was sufficient evidence that Appellant aided or conspired with Bryant so as to present a jury issue regarding accomplice liability under the complicity statute.

Appellant argues, however, that even if he was found to be complicit in Bryant’s crime against Hollister, there was insufficient evidence to show that Bryant’s beating of Hollister constituted an attempt to kill him.

KRS 506.010, the criminal attempt statute, provides as follows:

(1) A person is guilty of criminal attempt to commit a crime when, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) Intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
(2) Conduct shall not be held to constitute a substantial step under subsection (l)(b) unless it is an act or omission which leaves no reasonable doubt as to the defendant’s intention to commit the crime which he is charged with attempting.
(3) A person is guilty of criminal attempt to commit a crime when he engages in conduct intended to aid another person to commit that crime, although the crime is not committed or attempted by the other person, provided that his conduct would establish complicity under KRS 502.020 if the crime were committed by the other person.

Thus, in addition to the evidence of complicit acts described above in this section, the Commonwealth was obligated to present sufficient evidence that in beating Hollister, Bryant intended to cause Hollister’s death. The Commonwealth may prove intent by circumstantial evidence. Marble, v. Commonwealth, 125 S.W.3d 246, 254-55 (Ky.2004); Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997). Circumstantial evidence is evidence that makes the existence of a relevant fact “more likely than not.” Timmons v. Commonwealth, 555 S.W.2d 234, 237-38 (Ky.1977). Although circumstantial evidence “must do more than point the finger of suspicion,” Davis v. Commonwealth, 795 S.W.2d 942, 945 (Ky.1990), the Commonwealth need not “rule out every hypothesis except guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ratliff v. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006). A “[c]onviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt.” Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000).

While Appellant naturally tries to minimize the severity of the beating, the evidence demonstrates Hollister was beaten into unconsciousness and left at the scene unattended. Thus, a reasonable inference from the evidence is that Appellant and Bryant, in addition to robbing Hollister, also sought to eliminate him as a witness by killing him, and when Hollister became unconscious, Appellant and Bryant thought they had accomplished their purpose and left him for dead. Even after regaining consciousness and seeking help the next morning, Hollister again lapsed into unconsciousness. While it appears that his most serious injury was a broken nose, Hollister testified that as a result of the beating he had scars on his forehead, the top of his head, and his arm, shoulder, and chest. The emergency room physician who examined Hollister testified that it required numerous CAT scans to evaluate his head injuries, the purpose of which was to look for possible intracranial bleeding and broken bones in Hollister’s face and neck — injuries which could have been life-threatening.

We conclude that sufficient evidence was presented to support the conclusion that Bryant, with Appellant’s aid and assistance, attempted to murder Hollister. Appellant was not entitled to a directed verdict on the charge of complicity to the attempted murder of Hollister.

IV APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON THE COMPLICITY TO ROBBERY CHARGES

Finally, Appellant argues that he was entitled to a directed verdict on the two charges of complicity to first-degree robbery. With respect to the charged robbery of Pratt, Appellant argues there was no proof concerning what Pratt may have done with the money he had shortly before the shooting; that no one saw anyone take or remove anything from Pratt; that Pratt still had crack cocaine in his pocket following his death; and that Appellant had only $35.00 on him when he was arrested.

With respect to the robbery charge against Hollister, Appellant argues that there was no evidence that he was complicit in taking anything from Hollister. While acknowledging that Hollister testified that his cell phone and money were missing following the beating, Appellant argues that his mere presence at the scene cannot support a conviction for the robbery.

To be convicted of robbery, the accused need not have taken any money or other property from the victim with his own hands, or actually participated in any other act of force or violence; it is sufficient that he came and went with the robbers, was present when the robbery was committed, and acquiesced. Commonwealth v. Smith, 5 S.W.3d 126 (Ky. 1999) (quoting 67 Am.Jur.2d, Robbery § 9, p. 62).

There is substantial circumstantial evidence that Appellant and Bryant robbed Pratt and Hollister. Moments before the shooting of Pratt, Hollister heard Appellant and Bryant demanding that Pratt give them everything he had. When Pratt failed to comply, the fight ensued. When Pratt attempted to get away with his money and his life, he was killed. Hollister’s money and cell phone were taken while he was unconscious from the serious physical injury inflicted by Bryant and Appellant. The evidence that Appellant shot Pratt and that Bryant beat Hollister allows for a reasonable inference that the purpose of the use of such force was to accomplish the theft. As discussed in the previous section, the evidence supports the reasonable inference that Appellant was acting in complicity with Bryant so as to attribute to him conduct committed exclusively by Bryant. Appellant was not entitled to a directed verdict on the two robbery charges.

V. CONCLUSION

For the foregoing reasons the judgment and sentence of the Hardin Circuit Court is affirmed.

MINTON, C.J., ABRAMSON, NOBLE and SCHRODER, JJ., concur.

SCOTT, J., concurs by separate opinion in which CUNNINGHAM, J„ joins.

SCOTT, J.,

concurring:

Although I concur in the result in this instance for reasons that the error here was harmless, I feel strongly that both Appellant and the Commonwealth do have a right to educate a jury on legal issues critical to a fair trial. That a “preponderance” is lower than “beyond a reasonable doubt” is such an issue, and pointing out simply which is lower does not define either one. If we are to retain our “bare bones” approach to instructions, rather than follow the federal practice, we must allow counsel this right.

CUNNINGHAM, J., joins.

      . Ky. Const § 110(2)(b).

      . Marsch v. Commonwealth, 743 S.W.2d 830 (Ky.1987) provides an example of such a limit. There, during voir dire the prosecutor engaged a prospective juror in a lengthy discussion of reasonable doubt that included the prosecutor's statement comparing reasonable doubt to a shadow of a doubt and to all doubt, and illustrating his comments with hypothetical examples of evidence that may represent the varying standards of proof. We found that RCr 9.56 had been violated.

      . For example, in Callahan, 675 S.W.2d at 392, the prosecutor’s remarks included:
      "When I went to college I had some teachers that could practically prove to you that we weren’t even here today. But that's not what reasonable doubt is.” We decided that the comments of the prosecutor did not constitute any attempt to define reasonable doubt, but rather what reasonable doubt was not. Id. at 393.

      . In Cuzick, 276 S.W.3d 260, the decision was divided on other issues into three separate opinions, however the full court concurred on the point cited herein.

      . The fluid nature of this Court's view on this issue is revealed by comparison of Johnson and Cuzick with our decision in Brooks v. Commonwealth, 217 S.W.3d 219 (Ky.2007), holding that the prosecutor's closing argument that beyond a reasonable doubt did not mean beyond all doubt was improper, but harmless.

      .Theoretically, of course, it would be possible to completely define a thing by describing all that it is not. The limited comments described in Callahan, Johnson and Cuzick did not attempt define reasonable doubt by the process of eliminating all that it is not. We trust the sound discretion of our trial judges, guided by the limiting rule set forth herein, to be sufficient to restrain an improper attempt to define reasonable doubt.

      . KRS 502.020 provides as follows:
      (1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
      (a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
      (b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
      (c)Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
      (2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:
      (a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or

        ib) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
      (c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.

      . The first-degree robbery statute, KRS 515.020, provides as follows:
      (1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
      (a) Causes physical injury to any person who is not a participant in the crime; or
      (b) Is armed with a deadly weapon; or
      (c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.


source: Caselaw Access Project

author: Justice NOBLE.

license: Public Domain

text:
    Hon. Karen CONRAD, Judge, Oldham Circuit Court, Division I and Berry D. Baxter, Assistant Commonwealth Attorney, 12th Judicial Circuit (Real Party in Interest), Appellants, v. Keith Thomas EVRIDGE, Appellee.
    No. 2009-SC-000687-MR.
    Supreme Court of Kentucky.
    June 17, 2010.

      Honorable Karen Conrad, Judge, Old-ham Circuit Court, Oldham County Courthouse, LaGrange, KY, Appellant.
    Jack Conway, Attorney General, Micah Brandon Roberts, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Real Party in Interest, Berry D. Baxter, Assistant Commonwealth Attorney, 12th Judicial Circuit.
    Joseph R. Eggert, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

Appellant and real party in interest, the Commonwealth of Kentucky, appeals to this Court from an order of the Court of Appeals granting a writ of prohibition to the Appellee, Keith Evridge. For the reasons set forth below, the order of the Court of Appeals is affirmed.

I. Background

On October 16, 2003, Appellee pleaded guilty to first-degree wanton endangerment and fourth-degree assault in Oldham Circuit Court. On June 17, 2004, the court sentenced him to “2 years, split sentence 180 days to serve, balance probated 5 years.” Thus, Appellant’s probation was set to expire on June 17, 2009.

On February 10, 2009, the Commonwealth filed a motion to revoke Appellee’s probation. Appellee stipulated that he had violated the terms of his probation, due to his use of marijuana and alcohol. It appears from the record that at the time, he was incarcerated in Carroll County on charges related to the same marijuana and alcohol use that led to the revocation motion. Consequently, on May 14, 2009, the court entered the following order:

The Defendant stipulated to violation of the terms of his probation and the Court revokes the balance of his probation following his release from incarceration in Carroll County, which probation expires June 17, 2009. The Court orders that he be confined to the Oldham County Jail from May 26, 2009, the expected date of his release from the Carroll County Jail, to June 16, 2009. The
Court does allow work release while at Oldham County Jail....

On May 29, 2009, upon return to the Oldham County Jail from work release, Appellee tested positive for methamphetamine, a controlled substance. In response, on June 8, 2009, the Commonwealth filed a motion “to fully revoke the defendant’s probation and remand the defendant to the Department of Corrections to serve the remainder of his two year sentence.”

On June 18, one day after Appellee’s probation expired, the court scheduled the revocation hearing for July 23, 2009. Upon Appellee’s petition for a writ of prohibition, the Court of Appeals granted emergency intermediate relief pursuant to CR 76.36(4) to restrain the circuit court from holding the hearing.

The Court of Appeals subsequently granted the writ. The Commonwealth appeals to this Court as a matter of right. Ky. Const. § 115.

A. Availability of the Writ

“[W]rits of prohibition ... are extraordinary in nature, and the courts of this Commonwealth ‘have always been cautious and conservative both in entertaining petitions for and in granting such relief.’ ” Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky.2007) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)). A writ of prohibition may be issued if the lower court is (1) acting outside its jurisdiction and there is no remedy through an application to an intermediate court, or (2) acting erroneously within its jurisdiction, great and irreparable harm would result, and there would be no adequate remedy by appeal. Hoskins v. Mar-ide, 150 S.W.3d 1,10 (Ky.2004).

Appellee claims that the circuit court acted outside its jurisdiction. Therefore, this Court will review the grant of the writ of prohibition de novo. Grange Mut. Ins. Co. v. Trade, 151 S.W.3d 803, 810 (Ky.2004).

B. Revocation Must Occur Before the Expiration of Probation

Appellee’s argument that the circuit court lacked jurisdiction to hold the revocation hearing is based on KRS 533.020(1). That statute provides that “if the defendant commits an additional offense or violates a condition, [the court may] revoke the sentence at any time prior to the expiration or termination of the period of probation.” If probation is not revoked before it expires, “the defendant shall be deemed finally discharged.” KRS 533.020(4).

This Court finds Appellee’s argument persuasive. The statute states in clear and unambiguous terms that revocation must occur “prior to the expiration ... of probation.” There is no plausible interpretation other than that probation must be revoked, if at all, before the probationary period expires. The circuit court has no jurisdiction to revoke Appellee’s probation, or to hold a revocation hearing, after that time. Curtsinger v. Commonwealth, 549 S.W.2d 515, 516 (Ky.1977).

In this case, Appellee’s probation expired on June 17, 2009. After that date, Appellee was “deemed finally discharged” under KRS 533.020(4), and the court no longer had jurisdiction to revoke his probation. The revocation hearing was initially scheduled after this date, on July 23, 2009. It follows, therefore, that the court had no jurisdiction to conduct this hearing.

The Commonwealth argues that this literal interpretation of the statute would have the undesirable effect of “ereatpng] a window at the end of each probationary period in which the probationer would be free to violate his probation.” It therefore urges this Court to hold that the initiation of revocation proceedings, such as by the Commonwealth’s motion, tolls the period of probation. This Court is not persuaded.

First and foremost, granting and revoking probation is not an inherent power in the courts, but is a power vested in the courts by statute. E.g., Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029, 1033-34 (1941). Thus, this Court cannot create some common-law tolling exception to the probation statutes, as the Commonwealth urges. The statute is plain on its face, and it allows revocation only “prior to the expiration ... of probation.” That did not occur in this case.

Second, even if this Court were compelled to ignore the plain meaning of the statute, the problem is not nearly as dire as the Commonwealth suggests. A probationer who commits crimes while on probation can of course still be charged with and convicted of those crimes. In fact, any felony committed while on probation could qualify the probationer as a persistent felony offender, see KRS 532.080(2)(c)(2), which, needless to say, is a strong disincentive. It is simply not the case that probationers will go on crime sprees in the waning hours of their probation; they are still subject to criminal prosecution, just like anyone else. In addition, probationers would benefit from this window only if the court decides the violation warrants revocation. This will often not be the case for minor violations near the end of the probationary period that do not amount to criminal offenses.

The Commonwealth also argues that this literal interpretation could result in probationers abusing the judicial process, such as by delaying or avoiding the hearing until their probation expires. This was the issue presented to this Court in Huf-fines v. Commonwealth, 2006-SC-000460-DG (Ky.2008), but it is not presented by this case.

Huffines’ probation expired on February 15, 2005. Before it expired, on December 6, 2004, the Commonwealth filed a motion to revoke her probation. However, her probation was not actually revoked until after her probation had expired, on May 9, 2005. The Court of Appeals reversed in a split decision, holding that

KRS 533.020(1) states in clear and unambiguous terms that the court may revoke probation “at any time prior to the expiration or termination of the period of probation.” This language is subject to but one interpretation, that being probation must be revoked, if at all, before the probationary period expires.

Huffines v. Commonwealth, 2006 WL 1652868, at *1 (Ky.App.2006) (unpublished opinion). This Court granted discretionary review, but never issued an opinion resolving the issue because the justices were evenly divided; thus this Court affirmed the opinion of the Court of Appeals by way of a bare order pursuant to SCR 1.020(l)(a).

But Huffines is different from this case in one important respect. “When [Huf-fines] repeatedly appeared without a lawyer even though she was represented by counsel in other simultaneous revocation proceedings, the trial court graciously permitted her to delay her hearing until she could appear with counsel.” Id. at *2 (Henry, J., dissenting). In other words, Huffines herself was partly responsible for the hearing being held after her probation expired. Thus, that case presented the issue of whether a probationer’s own delaying tactics could estop her from assert-mg that the revocation hearing occurred after probation expired. The dissent at the Court of Appeals complained that the majority was “permitting] her to ‘beat the system.’ ” Id. This no doubt concerned the members of this Court, too.

This case presents no such estoppel issue. Appellee was not in any way responsible for delaying the hearing until his probation had expired. The Commonwealth complains that a strict interpretation of KRS 533.020(1) would allow probationers to avoid revocation by “intentionally avoiding] the authority of the trial court ... by absconding until after the probationary period expires.” Such a complaint might be persuasive in a case where the probationer actually does anything remotely like that. But here, Ap-pellee never tried to delay the hearing, abscond, or otherwise manipulate the process. The circuit court scheduled the revocation hearing on a date after his probation expired. The court could not do this.

In short, given that probation is a statutory creature, this Court is bound by the plain meaning of the probation statutes. The statutes are clear that probation must be revoked, if at all, before the probationary period expires. This Court rejects the Commonwealth’s invitation to ignore this plain language.

C. Tolling Under KRS 533.040(2)

The Commonwealth also argues that Appellee’s probationary period was tolled and extended beyond its initial date of expiration on June 17, 2009, placing the scheduled July 23, 2009 hearing within the period of probation. The basis of this argument is that the court’s May 8, 2009 order reinstated Appellee’s probation, thus triggering tolling under KRS 533.040(2). However, because the court’s order specifically states that “probation expires June 17, 2009,” this Court disagrees that probation extended beyond that date.

KRS 533.040(2) provides:

If a court, as authorized by law, determines that a defendant violated the conditions of his probation or conditional discharge but reinstates probation or conditional discharge, the period between the date of the violation and the date of restoration of probation or conditional discharge shall not be computed as a part of the period of probation or conditional discharge.

KRS 533.040(2) is triggered — and thus the probationary term is tolled from the time of the “violation” until the court orders that probation be “reinstated”— only if two requirements are met. First, the court must find that a violation occurred. And second, the court must, in its sound discretion, decide to “reinstate” probation rather than revoking it.

In this case, there is no question that the first requirement is met. The court’s May 8, 2009 order found that Ap-pellee “stipulated to violation of the terms of his probation,” and this fact is not disputed. With respect to whether the court’s order “reinstated” probation, the order states in relevant part:

the Court revokes the balance of [Appel-lee’s] probation following his release from incarceration in Carroll County, which probation expires June 17, 2009. The Court orders that he be confined to the Oldham County Jail from May 29, 2009, the expected date of his release from the Carroll County Jail, to June 16, 2009.

Both parties’ briefs are confused as to the meaning of this order, no doubt because of its inartful use of the word “revokes.” This order does not actually revoke Appel-lee’s probation, as the order requires incarceration only until the end of the probationary term. Revocation does not result in imprisonment for the balance of the probationary term, but results in imprisonment for the entire balance of the underlying sentence, The order did not do this.

The order is properly understood as a modification of Appellee’s probation, adding incarceration as a new condition. KRS 533.010(6) provides that when a court modifies the terms of probation, it “may order probation with the defendant to serve [an] alternative sentence,” such as “jail for a period not to exceed twelve (12) months with or without work release.” This is the clear effect of the court’s order. As a punishment for Appellee’s violation, the court modified the terms of his probation to require him to serve the rest of his probation in jail.

Thus, the Commonwealth is correct that the court’s order “reinstated” Appellee’s probation within the meaning of KRS 533.040(2). The result of the court’s order was that the exact same probation that applied to Appellee before the order still applied to him afterwards, with the sole exception being that incarceration was added as a new condition. The order punished Appellee for his violation by adding jail time as a new condition, and kept all the other terms of probation the same as before, including specifically its expiration.

Consequently, although KRS 533.040(2) applies, this Court cannot accept the Commonwealth’s argument that Appellee’s probation tolled beyond its initial expiration on June 17, 2009. The order specifically states that probation “expires on June 17, 2009,” the same date it was set to expire initially. The order maintained all initial conditions of probation, specifically including the initial expiration date, except for the new condition of incarceration. Thus, to the extent that the running of the probationary term was tolled by KRS 533.040(2), the court’s order effectively shortened the period of probation, as allowed by KRS 533.020(4), to maintain the initial date of expiration. Simply put, Ap-pellee’s probation “expire[d] on June 17, 2009,” just as the court ordered.

III. Conclusion

The circuit court has jurisdiction to hold a revocation hearing only before the probationary period expires. KRS 533.020(1). In this case, Appellee’s probation expired on June 17, 2009. Therefore, the court had no jurisdiction to hold a revocation hearing on July 23, 2009, or anytime thereafter. If Appellee’s probation were to be revoked at such a hearing, he would have no remedy through an application to an intermediate court. For that reason, the Court of Appeals was correct to grant the writ of prohibition, and its order is therefore affirmed.

All sitting.

All concur.

      . Chief Justice Lambert, and Justices Minton and Noble voted to affirm. Justices Cunningham, Schroder, and Scott, voted to reverse. Justice Abramson was not sitting.

      . Here, the balance of the probationary term is about one-and-one-half months, the period between the court's May 8 order and the expiration of probation on June 17. In contrast, an actual revocation would result in Appellee serving the balance of the underlying sentence, which is his two-year sentence, less the 180 days he has thus far served in jail, for a remainder of about one-and-one-half years.


author: Justice SCHRODER.

text:
    Alvin KNUCKLES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000206-MR.
    Supreme Court of Kentucky.
    June 17, 2010.

      Linda Roberts Horsman, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Appellant Alvin Knuckles appeals from his conviction of two counts of Trafficking in a Controlled Substance, First Degree, Second or Subsequent Offense; one count of Trafficking in a Controlled Substance, Second Degree, Second or Subsequent Offense; and three counts of Persistent Felony Offender, First Degree (PFO I). The final judgment of the trial court ordered that the sentences run concurrently in part and consecutively in part for a total of 25 years’ imprisonment. Therefore, Appellant appeals to this Court as a matter of right.

On April 27, 2007, Juanita Renner, after eluding police, was pulled over on suspicion of driving under the influence by a Kentucky State Police trooper and by Rockcastle County Sheriffs Deputy Joe Rush. Deputy Rush asked to see Ren-ner’s cell phone, where he found Appellant’s phone number. Deputy Rush testified that Appellant’s name was of interest to him because Appellant was known to sell drugs.

In order to avoid felony DUI charges, Renner agreed to work as a confidential informant for Deputy Rush, and to purchase drugs from Appellant. Renner met Deputy Rush on May 1, 2007, and made a phone call to Appellant, which was recorded. Appellant made arrangements for Renner to purchase three pills containing hydrocodone and one pill containing oxyco-done. Renner gave Appellant $60 in buy money. Appellant then purchased the pills from his supplier, and Renner returned to receive them. Renner’s transaction with Appellant was recorded.

On May 14, 2007, Appellant again contacted Renner. Through a series of recorded phone calls, Renner agreed to purchase 22 oxycodone pills for $1,000. Renner completed the transaction, which was recorded, and delivered the pills to Deputy Rush.

Appellant was indicted separately for each of the two drug transactions, for a total of three trafficking counts and three PFO counts. The trafficking counts were subsequently amended to reflect that they were second or subsequent offenses. The two indictments were also consolidated for trial.

Deputy Rush, Renner, and a drug analysis technician with the Kentucky State Police testified at trial, along with several other witnesses. The tapes of Renner’s phone calls and transactions were played for the jury. The jury found Appellant guilty of all three trafficking counts and all three PFO counts, but returned a confusing recommendation regarding whether the respective sentences should run concurrently or consecutively. The parties agreed to accept the lowest possible interpretation, and the court ordered that the sentences run concurrently in part and consecutively in part for a total of 25 years’ imprisonment.

Appellant raises three arguments on appeal: that a 14-day continuance violated his due process rights, that the trial court erred in denying his motion to strike a juror who was involved with a substance abuse awareness group, and that he was erroneously subjected to double enhancement of his sentence. For the reasons that follow, we reject Appellant’s arguments and affirm the judgment of the trial court.

14-DAY CONTINUANCE AFTER FIRST DAY OF TRIAL

The jury was sworn and the trial began on Monday, February 9, 2009. Most of the testimony on the first day came from Deputy Rush. Defense counsel extensively cross-examined Deputy Rush about allowing Renner to drive with a suspended license, failing to check Ren-ner’s background or perform a drug test on her, and failing to determine who was supplying pills to Appellant. The day ended with brief testimony from a drug analysis technician with the Kentucky State Police.

Before recessing for the day, the trial court admonished the jury not to discuss the case with anyone, and not to form or express an opinion about the case. The trial court further admonished the jury to have no contact with persons involved in the case, and to report any attempted communications.

The trial was scheduled to resume on Wednesday, February 11. In the interim, however, the trial judge’s wife, a Stage IV cancer patient, had a medical emergency requiring treatment at the National Institute of Health in Bethesda, Maryland. The trial judge entered an order continuing the trial generally pending further orders from the court. In the order, the court wrote:

It is hereby DIRECTED that the Clerk of the Court shall notify each of the jurors in this case of the decision and provide them with a written copy of this order. During this continuance, each juror is, again, hereby admonished not to have any discussion with any person regarding this trial, nor to form or express an opinion thereon. The jurors are further admonished to conduct no independent investigation regarding this matter.

(Emphasis original). The clerk noted on the record that all jurors had been served with a copy of the order.

The judge accompanied his wife to Maryland for what was expected to be a short stay. However, additional complications arose, and the trial judge did not return to Kentucky until Saturday, February 21. The trial resumed on Monday, February 23. At that time, the court conducted voir dire, and asked the jurors if they had received and followed the court’s admonition. All jurors responded that they had read and followed the admonition.

When the trial resumed, Appellant, through counsel, filed a motion for a mistrial citing the delay. In support of his motion, Appellant noted that Rockcastle County was a small community, and it was likely that jurors had been approached about the case. Appellant also noted that there had been no in-person admonition before the general continuance. In addition, Appellant argued that part of his trial strategy had been to shock jurors with the poor quality of the police investigation. Appellant was concerned that this shock value had been dulled in the minds of the jurors as a result of the delay. The trial court overruled the motion, which was renewed and again overruled as part of a motion for a judgment notwithstanding the verdict.

Appellant argues that the 14-day delay violated his due process rights and his right to a speedy trial. “The standard for reviewing the denial of a mistrial is abuse of discretion. A mistrial is appropriate only where the record reveals a manifest necessity for such an action or an urgent or real necessity.”

As the parties at trial noted, this appears to be an issue of first impression in Kentucky. We therefore draw on cases from other jurisdictions that have addressed the issue. Ordinarily, to constitute reversible error, a defendant must show actual prejudice resulting from a continuance or other separation of the jury. However, even absent a showing of actual prejudice, a delay may still “involve[ ] such a probability that prejudice will result that it must be deemed inherently lacking in due process.”

Where there is no showing of actual prejudice, courts have considered a number of factors to determine whether a due process violation has occurred, including the length of the delay, whether there was a good reason for the delay, whether the trial court propeiiy admonished the jurors against communicating about the case with others prior to the separation, whether the case was so complex that a prolonged interruption would have a significant effect on the jurors’ ability to remember complicated facts, whether alternatives to delaying the trial existed, and the extent of publicity surrounding the case. In addition, prejudice is much more likely to be presumed where the delay occurs after jury deliberations have begun.

In this case, Appellant has not shown any actual prejudice resulting from the delay. Appellant’s cross-examination of Deputy Rush was not as fresh in the jurors’ minds as if the trial had concluded promptly. However, defense counsel provided a summary during closing argument of problems with the Commonwealth’s case. In addition, much of the incriminating evidence in this case came from Ren-ner, who testified after the trial resumed.

Nor can we say Appellant’s due process rights were violated as a matter of law. In this particular case, we do not believe that a 14-day delay resulted in a due process violation absent a showing of actual prejudice. The trial judge’s absence was unavoidable. The court admonished the jurors not to discuss the case with anyone, both in person after the first day of trial and by a written order after the trial was continued generally. This was a drug trafficking case, and the evidence was not so complex that a 14-day delay would have a significant effect on the jurors’ ability to remember the facts of the case. In addition, the most complex evidence — the tapes of the drug buys — -was introduced after the continuance. No particularly good alternatives to delaying the trial existed in this case. The trial court stated that it had considered the possibility of having a special judge appointed. However, the judge expected his absence to be shorter than it ultimately was. Nor was this a case that was expected to stretch on for any significant length of time. In addition, the record does not reflect any publicity surrounding this case. Also, significantly, the continuance occurred prior to the beginning of jury deliberations.

In some circumstances, a 14-day delay can violate a defendant’s due process rights absent a showing of actual prejudice. In this case, however, the circumstances weigh against concluding that Appellant was prejudiced as a matter of law.

There was no manifest necessity requiring a mistrial.

JUROR INVOLVED WITH OPERATION UNITE

During voir dire, the trial court asked if any juror was involved in a substance abuse awareness group. One juror stated that she was vice-chair of the local chapter of Operation UNITE. Defense counsel moved to excuse the juror for cause, at which point the juror was questioned further at the bench. She stated that she was employed by the Board of Education as a teacher. She worked with the education branch of UNITE, but she also occasionally called in tips. She had no prior knowledge of Appellant’s case, and had never seen Deputy Rush.

She stated that UNITE was an important part of her life, and serving as a juror would “weigh on me.” She stated, “I think I can be fair. I think I’ll think about my kids at school.” When asked to explain what she meant, the juror explained, “My students are faced with drugs every day. And I obviously, that’s why I’m working for them not to be on [drugs].” She stated that she would think about her students in the jury room “just like any normal person would ... hope that they don’t ever have to deal with this, or what can I do to help prevent it.” When asked if she could return a verdict of not guilty if the Commonwealth did not meet its burden of proof, she stated, “I think I can.”

The trial court overruled Appellant’s challenge for cause, and made detailed oral findings. The court noted that it found the juror credible and that she “plainly indicated” that she was capable of disregarding any personal feelings and rendering a verdict based on the evidence. The court also noted that it would be impossible to seat a jury if jurors were expected to have no opinions on the issue of drugs. In addition, the court found that Operation UNITE has three distinct components: treatment, enforcement, and education, and that the juror was primarily involved with the education component. Ultimately, Appellant used a peremptory challenge to remove the juror.

A juror shall be excused for cause “[w]hen there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence....” However, the trial court is granted broad discretion, and its decision will not be reversed unless the failure to excuse is an abuse of discretion (for questions of law) or clearly erroneous (for questions of fact). In addition, whether a juror possesses a “ ‘mental attitude of appropriate indifference’ must be reviewed in the totality of the circumstances.”

We cannot say that the trial court abused its discretion in denying Appellant’s motion to excuse the juror for cause. The trial court is in the best position to judge the credibility of a juror. The court made detailed findings that the juror could put aside any potential bias and render a verdict on the evidence. We agree that it would be impossible to seat a jury with no opinions on the issue of drugs. The trial court effectively discussed the issue with the juror, and found no reason to question her ability to render a fair and impartial verdict. There was no error in denying Appellant’s challenge for cause.

ALLEGED DOUBLE ENHANCEMENT

Finally, Appellant argues that he was subject to double enhancement of his sentence during the penalty phase of the trial. After Appellant’s conviction, the trial proceeded to a second or subsequent offense phase. The jury was informed that Appellant had previously been convicted of trafficking in a controlled substance in a 1998 judgment. After the jury found Appellant guilty of being a second or subsequent offender, the trial progressed to the persistent felony offender (PFO) phase. At this point, the jury was informed that Appellant was also convicted of escape and possession of a controlled substance in the same 1998 judgment. The jury also learned that Appellant was convicted of trafficking in a controlled substance in a 2004 judgment.

The Commonwealth “carved out” the 1998 trafficking offense to prove subsequent offender status, and then used the remaining felonies from the same judgment as part of its PFO proof. This is permitted by Morroiv v. Commomvealth. Appellant asks this Court to overrule Morrow, but we decline to do so. Therefore, there was no erroneous double enhancement in the penalty phase of the trial.

For the forgoing reasons, the judgment of the Rockcastle Circuit Court is hereby affirmed.

All sitting.

All concur.

      . Ky. Const. § 110(2)(b).

      . Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky.2002) (internal quotation marks and footnotes omitted).

      . United Stales v. Diggs, 649 F.2d 731, 738 (9th Cir. 1981), overruled on other grounds by United States v. McConney, 728 F.2d 1195 (9th Cir. 1984) (finding no reversible error in 11-day delay due to juror illness, stating that "the circuits are virtually unanimous that in order for a jury separation to constitute reversible error, the defendant must show that he suffered actual prejudice because of the separation.”) (collecting cases); People v. Behm, 45 Mich.App. 614, 207 N.W.2d 200, 204 (1973) ("We cannot condone the act of the trial judge in adjourning the trial for two weeks after the jury was sworn, but we can find no prejudice to defendants arising from the adjournment.”).

      . United States v. Hay, 122 F.3d 1233, 1236 (9th Cir. 1997) (quoting Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)) (internal quotation marks omitted) (48-day continuance inherently lacking in due process even absent showing of actual prejudice). See also State v. White, 129 Vt. 220, 274 A.2d 690, 693-94 (1971) (62-day separation of the jury prejudiced defendant as a matter of law).

      . State v. Kanae, 89 Hawai'i 198, 970 P.2d 506, 510 (Haw.Ct.App.1998) (setting out six factors used in cases involving a separation of the jury after deliberations had begun). See also State v. Vega, 206 Or.App. 668, 139 P.3d 260 (2006), vacated on other grounds, 345 Or. 316, 195 P.3d 64 (2008) (discussing the Kanae factors in the context of a delay that occurred midtrial, prior to the beginning of deliberations).

      . See People v. Santamaría, 229 Cal.App.3d 269, 280 Cal.Rptr. 43 (1991) (11-day recess violated defendant's due process rights where recess occurred after deliberations had begun and there was no good reason for the delay).

      . Operation UNITE is “a federally-funded drug task force program designed to assist counties in joining their limited funds and resources to fight drug trafficking and abuse in Eastern Kentucky.” Jarvis v. Commonwealth, NO.2005-CA-001710-MR, 2006 WL 3690980 (Ky.App. Dec. 15, 2006). See Operation UNITE: Unlawful Narcotics Investigations, Treatment and Education, http://www. operationunite.org (last visited May 20, 2010).

      . RCr 9.36(1).

      . Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007); Commonwealth v. Lewis, 903 S.W.2d 524, 527 (Ky.1995).

      . Montgomery v. Commonwealth, 819 S.W.2d 713, 718 (Ky.1991) (quoting United States v. Wood, 299 U.S. 123, 146, 57 S.Ct. 177, 81 L.Ed. 78 (1936)). See also Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky. 1958) ("It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause.”).

      . See Wood v. Commonwealth, 178 S.W.3d 500, 515-16 (Ky.2005).

      . 77 S.W.3d 558 (Ky.2002).


author: VENTERS, Justice,

text:
    Ina COCHRAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000095-DG.
    Supreme Court of Kentucky.
    June 17, 2010.

      Kathleen Kallaher Schmidt, Jamesa J. Drake, Department of Public Advocacy, Frankfort, ICY, Counsel for Appellant.
    Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
    Allison G. Harris, Shearman & Sterling LLP, Tiloma Jayasinghe, Lynn M. Pal-trow, Kathrine D. Jack, National Advocates for Pregnant Women, New York, NY, Michael L. Goodwin, Louisville, ICY, Counsel for Amicus Curiae American College of Obstetricians and Gynecologists; American Psychiatric Association; American Society of Addiction Medicine; Baron Edmond De Rothschild Chemical Dependency Institute of Beth Israel Medical Center; Carol Stange, MSSW; Child Welfare Organizing Project; Fran Belvin, CPAT; Kentucky Coalition for Women’s Substance Abuse Services; Kentucky Psychiatric Medical Association; Law Students for Reproductive Justice; Lynn Posze, MA, LPCC; Nancy Day, Phd; National Asian Pacific American Women’s Forum; National Association of Social Workers; National Coalition for Child Protection Reform; National Perinatal Association; Northwest Women’s Law Center; Our Bodies Ourselves; Pathways, Inc.; People Advocating Recovery; Sister-song Women of Color Reproductive Health Collective; Stephanie S. Covington, Phd, LCSW; Susan Barron, Phd; Susan Boyd, Phd; The Drug Policy Alliance; The Healing Place Women’s and Children’s Community.
    Sheryl G. Snyder, Amy D. Cubbage, Frost Brown & Todd LLC, Louisville, KY, Jill C. Morrison, Washington, DC, Counsel for Amicus Curiae Legal Momentum and National Women’s Law Center.
    Caroline Bettinger-Lopez, Columbia Law School, New York, NY, Michael Jay O’Hara, O’Hara, Ruberg, Taylor, Sloan & Sergent, Covington, KY, Counsel for Ami-cus Curiae Anti-Sexism Committee of the National Lawyers Guild; Center for Reproductive Rights; Columbia Law School Human Rights Clinic; Columbia Law School Sexuality and Gender Law Clinic; Constitutional Litigation Clinic at Rutgers School of Law — Newark; Criminal Justice Clinic at Hofstra Law School; International Mental Disability Law Reform Project in the Justice Action Center at New York Law School; International Reproductive and Sexual Health Law Programme at the University of Toronto; Jamie O’Connell (University of California, Berkeley School of Law, International Human Rights Law Clinic); Justice Now; Leitner Center for International Law & Justice at Fordham Law School; Mindy Jane Roseman (Harvard Law School, Human Rights Program); Southwest Women’s Law Center.

      David Alan Friedman, William Ellis Sharp, ACLU of Kentucky, Louisville, KY, Counsel for Amicus Curiae American Civil Liberties Union Foundation Reproductive Freedom Project; American Civil Liberties Union of Kentucky.
    Forrest Roberts, Owensboro, KY, Lawrence J. Nelson, Law Offices of Lawrence J. Nelson, San Francisco, CA, Counsel for Amicus Curiae American Academy of Addiction Psychiatry; Anna C. Mastroianni, JD, MPH; Bryan Hilliard, Phd; C. Ronald Koons, MD, FACP; Cavin P. Leeman, Phd; David Magnus, Phd; Donald Brunnquell, Phd, LP; Elaiane Morgan, MD; Glenn McGee, Phd; Global Lawyers and Physicians; Gregory Loeben, Phd; Hilde Lindemann, Phd; Howard Brody, MD, Phd; Howard Minkoff, MD; Inmacu-lada De Melo-Martin, Phd, MS; Jeffrey Kahn, Phd, MPH; Judith Bernstein, RNC, Phd; Katherine A. Taylor, JD, Phd; Lauren G. McAliley, MSN, MA, CNP; Lois Shepard, JD; Mary Faith Marshall, Phd; Peter J. Cohen, MD, JD; Rebecca Bigo-ney, MD; Rev. Timonthy A. Thorstenson; Robert A. Deweese, MD, MA; Rosamond Rhodes, Phd; Stephen S. Hanson, Phd; Susan K. Palmer, MD; Timothy F. Murphy, Phd.
   OPINION OF THE COURT

This appeal considers whether a woman may be charged with wanton endangerment of her child based on having ingested illegal drugs while pregnant. As this Court previously recognized in Commonwealth v. Welch, 864 S.W.2d 280 (Ky.1993), the General Assembly has expressly precluded such a prosecution by the Maternal Health Act of 1992. Therefore, we hold that the trial court properly dismissed the indictment in this case.

On December 29, 2005, Appellant, Ina Cochran, gave birth to a child who tested positive (as did Cochran) for cocaine. As a result, Cochran was indicted for first-degree wanton endangerment, and for being a second-degree persistent felony offender (PFO II). The indictment alleged that Cochran,

under circumstances manifesting extreme indifference to the value of human life ... wantonly engaged in conduct which created a substantial danger of death or serious physical injury to [C.C.] (DOB: 12/29/2005) when she ingested cocaine while [C.C.] was in útero and thereafter gave birth to [C.C.] at such time as both the Defendant and [C.C.] were positive for cocaine....

Cochran moved to dismiss the indictment pursuant to Commonwealth v. Welch, 864 S.W.2d 280. The trial court granted the motion and dismissed the indictment. The Commonwealth appealed. The Court of Appeals reversed the trial court’s order dismissing the indictment, erroneously concluding that Commonwealth v. Moms, 142 S.W.3d 654 (Ky. 2004), had, sub silentio, overruled Welch. This Court granted discretionary review and we reverse the Court of Appeals. As we previously recognized in Welch, which was not overruled by Morris, the prosecution of Cochran on the grounds stated in the indictment has been prohibited by the General Assembly.

The prosecution in this case is basically identical to that which we held invalid in Welch. The appellant therein, Connie Welch, was arrested in a drug raid when she was eight months pregnant, and was discovered by police to have just injected herself with oxycodone. Three weeks later she gave birth. The child did not test positive for illegal substances, but did suffer symptoms of drug withdrawal, resulting from having become passively addicted due to Welch’s drug abuse during her pregnancy. Welch was charged with, and convicted of, second-degree criminal abuse of the child for having used oxycodone while pregnant. We held that two grounds required reversal of the conviction — that application of the criminal abuse statutes to prenatal conduct would render the statutes void for vagueness, and that the General Assembly, in the Maternal Health Act of 1992, expressly prohibited the prosecution.

First, we recognized that the application of the criminal abuse statutes to a woman’s conduct during pregnancy, “could have an unlimited scope and create an indefinite number of new ‘crimes’ ... a ‘slippery slope’ whereby the law could be construed as covering the full range of a pregnant woman’s behavior — a plainly unconstitutional result that would, among other things, render the statutes void for vagueness.” Welch, 864 S.W.2d at 283 (citation omitted). We explained:

The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have, been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn’t wear the prescription lenses she knows she needs to see the dangers of the road? The defense asks where do we draw the line on self-abuse by a pregnant woman that wantonly exposes to risk her unborn baby? The Commonwealth replies that the General Assembly probably intended to draw the line at conduct that qualifies as criminal, and then leave it to the prosecutor to decide when such conduct should be prosecuted as child abuse in addition to the crime actually committed.
However, it is inflicting intentional or wanton injury upon the child that makes the conduct criminal under the child abuse statutes, not the criminality of the conduct per se. The Commonwealth’s approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother’s alcoholism, not the act of driving that causes the fetal alcohol syndrome. The “case-by-case” approach suggested by the Commonwealth is so arbitrary that, if the criminal child abuse statutes are construed to support it, the statutes transgress reasonably identifiable limits; they lack fair notice and violate constitutional due process limits against statutory vagueness.

Id.

While the appellant in Welch was charged with second-degree criminal abuse, the identical analysis would apply to a construction of the wanton endangerment statutes to cover a pregnant woman’s conduct. Such a construction would similarly render the statutes void for vagueness. Id.

What Welch found most telling, however, in ascertaining that the legislature did not intend criminal sanctions for prenatal use of drugs and alcohol, is the language of the Maternal Health Act of 1992, 1992 Ky. Acts, ch. 442 (H.B.192). 864 S.W.2d at 283-84. The Preamble states the Act’s purpose as follows:

WHEREAS, The General Assembly finds that a woman’s ability to bear healthy children is threatened by the consequences of alcoholism and drug abuse; as many as ten percent (10%) of all births in the Commonwealth may be affected by alcohol or drug abuse; drug and alcohol use during pregnancy can result in low birthweight, physical deformities, mental retardation, learning disabilities, and other health problems in newborn infants; fetal alcohol syndrome is the leading identifiable cause of mental retardation in the nation and the only one that is totally preventable; drug and alcohol impaired individuals pose extraordinary societal costs in terms of the medical, educational, and support services needed throughout the individual’s lifetime; education and treatment are essential strategies in preventing prenatal exposure to alcohol and other drugs; pregnant substance abusing women face more barriers to substance abuse treatment than other persons seeking treatment; adequate prenatal care is an essential element in delivering a healthy, well-developed newborn; punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care and substance abuse treatment necessary to deliver a healthy newborn; and WHEREAS, the General Assembly finds it is necessary to treat the problem of alcohol and drug use during pregnancy solely as a public health problem by seeking expanded access to prenatal care and to alcohol and substance abuse education and treatment programs[.]

(Emphasis added.)

It is the duty of a reviewing court “to ascertain and give effect to the intent of the General Assembly.” Beck-ham, v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994). In Welch, we recognized that the Maternal Health Act of 1992 made clear that

the General Assembly intends no additional criminal punishment for the pregnant woman’s abuse of alcohol and drugs apart from the punishment imposed upon everyone caught committing a crime involving those substances. Welch’s possession of the drugs which she took is a punishable offense, but her punishment is not enhanced because she is pregnant, nor is she to be punished for injurious results to the baby. We would have to deliberately ignore the legislative purpose and the legislative approach specified in H.B. 192 to accept the Commonwealth’s present argument that the General Assembly intended to use the deterrent effect of the criminal child abuse statutes as an additional approach to the self-abuse problem.

864 S.W.2d at 284. Similarly, in the present case, we would have to ignore the legislative intent clearly expressed in the Maternal Health Act of 1992 to accept the Commonwealth’s position that the penal code permits the prosecution of Cochran for wanton endangerment of her child based on her use of cocaine while pregnant. It is the legislature, not the judiciary, that has the power to designate what is a crime. Wilfong v. Commonwealth, 175 S.W.3d 84, 92 (Ky.App.2004) (citing Arroyo v. United States, 359 U.S. 419, 424, 79 S.Ct. 864, 3 L.Ed.2d 915 (1959)); see also Comelison v. Commonwealth, 52 S.W.3d 570 (Ky.2001). The General Assembly has determined that the conduct alleged in the indictment in this case does not constitute a crime. Hence, the indictment was invalid on its face, and the trial court’s dismissal thereof was proper. RCr 8.18; Peterson v. Shake, 120 S.W.3d 707 (Ky.2003); Johnson v. Commonwealth, 709 S.W.2d 838 (Ky.App.1986).

Accordingly, we reverse the opinion of the Court of Appeals, and reinstate the dismissal of the indictment by the trial court.

All sitting. ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and SCOTT, JJ., concur. VENTERS, J., dissents by separate opinion, in which MINTON, C.J., joins.

VENTERS, Justice,

Dissenting Opinion.

I respectfully dissent. For two reasons I respectfully disagree with the majority’s conclusion that the indictment was properly dismissed.

First, the majority wrongly creates an immunity from prosecution never enacted by the General Assembly. The majority fashioned its notion that the legislature intended to immunize Appellant from criminal responsibility for endangering her child from the preamble of the Maternal Health Act of 1992 which states “punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care and substance abuse treatment necessary to deliver a healthy newborn.” That section of the preamble does not relate to the circumstances of this case. The majority ignores the fact that in this case, no punitive action was taken against Appellant while she was pregnant. Long before she was indicted, Appellant had completed all her prenatal care and delivered her baby. Because the indictment came after her baby was born, it in no way discouraged her from seeking prenatal care and it in no way deterred her from treatment she might need to deliver a healthy baby. Thus, the legislative purpose to be gleaned from the preamble of the bill is in no way furthered by dismissal of Appellant’s indictment.

Had it been the General Assembly’s intent and purpose to block prosecutions in cases such as Appellant’s, it surely would have effectuated that intent by enacting the necessary revisions of the penal code and the controlled substance statutes, rather than simply hoping that prosecutors and judges would decipher the supposed purpose from the vague and general language of a bill’s preamble, the part of the bill that never became part of the law. Jasper v. Commonwealth, 375 S.W.2d 709, 710 (Ky.1964) (“The preamble is not the law. It is not necessary for its enactment, nor are its provisions binding.”)

Secondly, Kentucky jurisprudence has long acknowledged the strong doctrine of separation of powers provided in our state Constitution. Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution....”) We have long recognized under that doctrine that the judicial branch of government has no authority to dismiss a valid indictment without the consent of the executive branch represented by the Commonwealth’s Attorney or the County Attorney.

The indictment does not charge that Appellant wantonly endangered her unborn child. The indictment very plainly charges her with endangei’ing her post-natal, born alive child, which by any definition is a “person.” Despite the fact that the Appellant consumed cocaine just hours or minutes before her baby’s birth, the alleged victim of her conduct was the child ex útero. Nothing in our penal code bars such a prosecution. By upholding the trial court’s dismissal of an indictment before trial, the majority invades the prosecutorial powers reserved to the executive branch, and usurps the authority of the legislature to define what behavior constitutes criminal conduct. I therefore dissent.

MINTON, C.J., joins.

      . KRS 508.060.

      . KRS 532.080.

      .KRS 508.110, which provides, in relevant part:
      (1) A person is guilty of criminal abuse in the second degree when he wantonly abuses another person or permits another person of whom he has actual custody to be abused and thereby:
      (a) Causes serious physical injury; or
      (b) Places him in a situation that may cause him serious physical injury....

      .KRS 508.100, .110, and .120, commonly referred to as the criminal child abuse statutes. The purpose of these statutes is to criminalize serious physical abuse of children, twelve years old or less, by a custodial person, although their scope includes others who are physically or mentally helpless. Welch, 864 S.W.2d at 282.

      . Cochran was charged with first-degree wanton endangerment, KRS 508.060, which provides, in pertinent part, that “[a] person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.” Second-degree wanton endangerment, KRS 508.070, requires that a person "wantonly engages in conduct which creates a substantial danger of physical injury to another person.”

      . Flynt v. Commonwealth, 105 S.W.3d 415, 425 (Ky.2003); Allen v. Walter, 534 S.W.2d 453, 455 (Ky.1976). See also Commonwealth v. Cundiff, 149 Ky. 37, 147 S.W. 767, 768 (1912) and Com. v. Hayden, 489 S.W.2d 513, 516 (Ky.1972) ("There is no authority for the use of summary judgment procedure in a criminal prosecution.”); Commonwealth v. Hughes, 153 Ky. 34, 154 S.W. 399, 400 (1913) ("[the trial court] is without power to dismiss a sufficient indictment without a trial of the defendant, when such dismissal is objected to by the commonwealth’s attorney”).


author: WINE, Judge.

text:
    LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Jim Gray; Linda Gorton; Chuck Ellinger; Andrea James; Tom Blues; Dick Decamp; Julian Beard; David Stevens; Kevin Stinett; K.C. Crosbie; George Myers; Jay McChord; Don Blevins; Richard Moloney; and Ed Lane, Appellants, v. LEXHL, LP, d/b/a the Lexington Herald-Leader; and Peter Baniak, Appellees.
    No. 2008-CA-002145-MR.
    Court of Appeals of Kentucky.
    Nov. 13, 2009.
    Rehearing Denied June 30, 2010.

      Rochelle E. Boland, Leslye M. Bowman, Lexington, KY, for appellants.
    Thomas W. Miller, Lexington, KY, for appellees.
    Before STUMBO, THOMPSON, and WINE, Judges.
   OPINION

WINE, Judge.

The Lexington-Fayette Urban County Government (“LFUCG”) appeals from a summary judgment entered by the Fay-ette Circuit Court which dismissed its declaratory judgment against Lexington HL Services, Inc., d/b/a Lexington Herald Leader (“Herald-Leader”). The LFUCG sought a declaration that the litigation exception to the Open Meetings Act allows it to close council meetings in order to answer requests for information propounded by administrative agencies. The trial court concluded that the matter was moot because the underlying action was no longer pending before the agency. We agree.

Furthermore, the LFUCG has not shown that this issue is capable of repetition which would allow review. Hence, we affirm the trial court’s dismissal of the action as moot.

The underlying facts of this action are not in dispute. On March 30, 2007, Kentucky American Water Company (“Kentucky American”) filed an application with the Public Service Commission (“PSC”) for a Certificate of Convenience and Necessity. Among other things, Kentucky American sought authorization for the construction of a new pumping station and water treatment facility on the Kentucky River. In April 2007, the LFUCG sought and received permission from the PSC to participate in the application process.

As part of that process, the PSC directed the LFUCG to provide it with answers to specific requests for information. The PSC issued the request on December 21, 2007, and directed that the LFUCG provide the responses no later than January 9, 2008. The LFUCG Council scheduled a closed “work session” for January 8, 2008, to discuss and prepare responses to the PSC’s request for information. Upon learning of the scheduled meeting, the Herald-Leader filed a complaint alleging a violation of the Open Meetings Act, and seeking injunctive relief to prevent the LFUCG Council from closing the meeting.

On January 8, 2008, the trial court entered a temporary injunction which prohibited the LFUCG Council from closing the scheduled meeting “or any other meeting concerning the LFUCG’s responses to the PSC’s requests for information and the Council’s position regarding the Kentucky American Application.” On February 27, 2008, the LFUCG filed an answer and counterclaim seeking dismissal of the injunction and declaratory relief. The LFUCG argued that the “litigation exception” to the Open Meetings Act applied to administrative proceedings such as the PSC action. Citing Kentucky Revised Statute (“KRS”) 61.810(l)(c). The LFUCG followed its answer and counterclaim with a motion for summary judgment. The Herald-Leader filed a cross motion for summary judgment. In addition to contesting the merits of LFUCG’s arguments, the Herald-Leader also argued that the matter was now moot because the PSC had ruled on Kentucky American’s application.

After considering the briefs and arguments of counsel, the trial court granted the Herald-Leader’s motion to dismiss. In an order entered on September 24, 2008, the court dissolved the temporary injunction and dismissed the action without addressing the merits of the LFUCG’s claim. The LFUCG now appeals.

As an initial matter, the LFUCG argues that this matter is not moot even though the underlying application before the PSC has been resolved. In order to obtain a declaration of rights, there must exist a real or justiciable controversy involving specific rights of particular parties. KRS 418.040; see also Veith v. City of Louisville, 355 S.W.2d 295 (Ky.1962). Proceedings for a declaratory judgment must not merely seek advisory answers to abstract questions. Mammoth Medical, Inc. v. Bunnell, 265 S.W.3d 205, 209 (Ky.2008).

The LFUCG concedes that its claim for declaratory relief is technically moot since the underlying claim before the PSC is no longer pending and it is no longer required to submit answers to the agency’s requests for information. Nevertheless, the LFUCG contends that its claim for relief under an exception which allows review when the moot claim is “capable of repetition, yet evading review.” Philpot v. Patton, 837 S.W.2d 491, 493 (Ky.1992). “The decision whether to apply the exception to the mootness doctrine basically involves two questions: whether (1) the ‘challenged action is too short in duration to be fully litigated prior to its cessation or expiration and [2] there is a reasonable expectation that same complaining party would be subject to the same action again.’ ” Id.

On the first element, the LFUCG correctly notes that the Herald-Leader filed its request for a temporary injunction on January 8, 2008 — one day before the LFUCG’s responses were due to the PSC and the same day LFUCG had scheduled the closed hearing. Consequently, the trial court was unable to fully litigate the merits of challenged action. But it does not appear clear that the issue is inherently evasive of review. While this particular controversy had passed after the response deadline had passed, we are not entirely convinced that the LFUCG made a timely pursuit of its claim for declaratory judgment on this matter.

Moreover, the LFUCG has not shown that the courts should address the issue because of the likelihood of repetition. In addressing this element, Kentucky courts have focused on the probability of the same controversy arising again. In Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky.1983), the matter involved a trial court’s closure of voir dire proceedings in a criminal prosecution involving the death penalty. The Kentucky Supreme Court recognized that individual criminal trials are typically of a short duration, but the trial courts are faced with death penalty actions on a regular basis. “The problem of when to hold individual voir dire in such cases, together with the important questions this raises related to public access, and more particularly news media access, to criminal trials, will likewise be with us.” Id. at 661. Thus, the Supreme Court addressed the merits of the claim even though the particular criminal prosecution had concluded. See e.g. Fletcher v. Commonwealth, 163 S.W.3d 852 (Ky.2005) (Supreme Court addressed constitutionality of public services continuation plan where same situation had recurred three times in past ten years); and Woods v. Commonwealth, 142 S.W.3d 24 (Ky.2004) (Supreme Court addressed authority of judicially-appointed guardian to make health care decisions on behalf of the patient even though patient had already died).

But in Philpot v. Patton, supra, the Kentucky Supreme Court declined to address the constitutionality of a Senate Rule after the legislature had adjourned. Since the rule expired at the end of the session, the Court noted that a similar rule would have to be re-enacted at the next session. In addition, the new rule would have to be invoked regarding particular legislation before a justiciable controversy could arise. Under such circumstances, the Supreme Court concluded that it could not address the constitutional question in the absence of a specific controversy regarding the application of the rule. Id. at 494. See also Commonwealth v. Hughes, 873 S.W.2d 828 (Ky.1994) (Supreme Court declined to address controversy regarding confidentiality of communications between parishioners and church would not be addressed where there was no reasonable expectation that Commonwealth would again be subject to denial of the discovery materials sought).

In this case, the LFUCG is seeking a blanket declaration that the litigation exception applies to all administrative proceedings. However, the Open Meetings Act envisions that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky.1997). Administrative proceedings, on the other hand, encompass a broad range of subjects and procedures. The LFUCG notes that the statutory framework for administrative proceedings in KRS Chapter 13B mirrors the same principles of adversarial due process as those practiced in trial courts. However, Chapter 13B expressly excludes many administrative proceedings, including utility hearings conducted under the authority of the PSC. KRS 13B .020(3) (d)5b. Given the wide range of administrative proceedings and procedures, we could not determine the broad application of the litigation exception without considerable speculation.

Likewise, the application of the litigation exception to proceedings before the PSC presents many variables. The Open Meetings Act requires that all meetings of a quorum of a public agency “at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times ...” KRS 61.810(1). The Act sets out specific exceptions to this rule, including “[djiseussions of proposed or pending litigation against or on behalf of the public agency”. KRS 61.810(l)(e). These exceptions must be strictly construed. Floyd County Board of Education v. Ratliff, supra at 924.

The current case involves a local government’s intervention into a utility’s petition for a certificate of need and necessity before the PSC. A regulated utility must obtain the certificate prior to commencing construction on a new facility. KRS 278.020(1). Any interested party may request to intervene in the petition and participate in the proceedings. KRS 278.020(8). However, an “interested” party need not be an adversarial party. Furthermore, the focus of the proceeding is limited to a determination of whether there is a need and demand for the public service in question. See Public Service Commission v. City of Paris, 299 S.W.2d 811, 816 (Ky.1957). Finally, the PSC may apply different procedures for different types of applications.

Given the unique and specific nature of this controversy, the LFUCG has not shown that a similarly-situated party will be subject to the same action again or even that this precise factual scenario could be duplicated. Consequently, the LFUCG’s declaratory judgment action must be dismissed until this situation is again presented. And if the same situation arises again, we would urge the parties and the trial court to expedite the proceedings on this issue.

Accordingly, the judgment of the Fay-ette Circuit Court is affirmed.

ALL CONCUR.

      . During die hearing on September 24, 2008, the Herald-Leader’s oral motion to amend the summary judgment motion to a motion to dismiss was granted.