author: CLAYTON, Justice. JONES, Justice, STEPHENSON, Justice, STERNBERG, Justice,

text:
    Charles Ervin WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 13, 1978.

      Richard Louis Receveur, Asst. Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   CLAYTON, Justice.

On April 5, 1977, Charles Ervin Williams was convicted for the armed robbery of a Louisville restaurant and the murder of one of its patrons, receiving the maximum life sentence for each crime. He now appeals, presenting four questions for our consideration. Of these, the only one which requires extensive discussion is whether the Commonwealth’s Attorney’s failure to provide the defense with information supportive of its claim that the prosecution obtained vacation of a conviction against its key witness in exchange for his testimony, deprived Charles of a fair trial. We believe that it did.

I

During the early morning hours of December 20, 1974, around 12:45, a dark-skinned man wearing a brightly colored ski mask and brandishing a 9mm automatic pistol entered Cooksey’s Grill in Louisville and commanded the manager and seven customers therein to lie face down on the floor. As Mike Morris rose from his chair to do so, the masked man shot him through the heart, killing him instantly. He then ordered Wanda Puckett, the manager, to open the cash register; after removing most of the money inside, he searched the pockets of both Morris and his tablemate, Barry Dorsey, and fled out the door. Two piles of loose change were later discovered in an alley behind Cooksey’s, one pile only 50 feet from the restaurant, the other behind a house at 1840 West Hill Street, just a few blocks from Charles’ residence at 2127 West Hill. The gun used in the robbery and murder was never found.

Because of the disguise which he had worn, none of the eyewitnesses were able to give a detailed description of the assailant when interviewed following the incident. All agreed that he was a brown-skinned male and that he was attired in a dark jacket and trousers. Delores Carter, who had obtained perhaps the best view of the masked man, said she was positive that he had blue eyes and estimated him to be 5 feet 5 inches in height. Other witnesses reported that he had gray or green eyes and guessed him to be from 5 feet 8 inches to 6 feet 2 inches tall. Charles has brown eyes and is exactly 6 feet in height.

Although he too had been unable on the morning of the 20th to identify the assailant, it later dawned on Barry Dorsey that the individual who had committed the crimes at Cooksey’s was one and the same person as a black male who had purchased cigarettes the evening of the 19th at the nearby gas station where Dorsey was employed. Approximately one week after this revelation struck him, Dorsey identified Charles from a group of police photographs as being that man. On December 29 Charles was asked, and he consented, to participate in a lineup before all of the witnesses to the robbery and murder. After viewing Charles and five other black males, first with and then without ski masks on, none of the other eyewitnesses recognized the assailant among the men. Dorsey again identified Charles; as a result, Charles was arrested later that afternoon.

While Dorsey’s identification of Charles was certainly important to the Commonwealth’s case, the key prosecution witness at trial, and the one around whose testimony the controversy in this case centers, was Myer Pettyjohn. Charles was originally tried on September 28,1976. At that trial, Pettyjohn initially testified that he knew absolutely nothing about the incident at Cooksey’s and that he had never seen Charles before in his life. After a brief recess during which time Pettyjohn conferred with an official from the state Department of Corrections, however, Petty-john recanted his previous statements and gave testimony incriminating Charles as the perpetrator of the robbery and murder at Cooksey’s.

According to this new testimony, on the morning of December 20, 1974, Pettyjohn had, despite the fact that he was on parole from a robbery conviction and was not supposed to be in Jefferson County, driven to Cooksey’s in search of his friend Mike Morris. While sitting in his car across from the restaurant, Pettyjohn heard a gunshot, then saw a black male run out of the building with a gun in one hand and a ski mask in the other. Although he had no idea at that time who the man was, on January 28,1975, Pettyjohn was placed in the Jefferson County jail after violating the conditions of his parole — he had been arrested in connection with yet another robbery — where he not only recognized Charles as the man he had seen at Cooksey’s, but was actually told by Charles that he had committed the crimes. When asked on cross-examination why he had changed his testimony after the recess, Pettyjohn responded that he had been afraid to testify against Charles until promised by the Corrections official that the two would be placed in different prisons if Charles should be convicted. Charles presented an alibi defense which was corroborated by several members of his family. Apparently unsure of whom or what to believe, the jury was unable to reach a verdict.

Charles was retried on April 5, 1977. Following a reiteration by Pettyjohn on direct examination of his “post-recess” testimony from the former trial, a Cotton hearing was held to determine whether Pettyjohn had ever been convicted of any felonies which might reflect adversely on his credibility as a witness. There, Petty-john admitted that he had been convicted of robbery on three occasions, but stated that the most recent conviction had been vacated after Charles’ first trial and that the charge was again pending. Upon learning this, defense counsel asked the trial court if he could question Pettyjohn about the vacation and the circumstances surrounding it when they returned to the courtroom; reasoning that a conviction which has been vacated is no longer admissible for Cotton purposes, the trial court ruled that he could not. When the trial resumed, defense counsel did his best on cross-examination to discredit Pettyjohn’s testimony, pointing out the two earlier robbery convictions, exposing his “pre-recess” testimony from the prior trial, and, without mentioning the vacation, implying the existence of a deal with the prosecution:

Q. And you know about people trying to make deals, don’t you?
A. What kind of deals 'are you talking about?
Q. I’m talking about giving testimony against somebody for a little slack on these charges that you may have against you.
A. Ño, I don’t know—
Q. You haven’t heard anything about that?
A. What are you talking about, on TV, real life, or what?
Q. Real life.
A. I guess it happens.
Q. You came in that door didn’t you? You’re on the outside now.

On redirect examination by the Commonwealth’s Attorney, however, Pettyjohn categorically denied having ever received any promises of leniency in exchange for his testimony.

Some five weeks after Charles’ conviction, defense counsel filed a motion for new trial alleging (1) that he had since trial discovered evidence supportive of the defense’s contention that Pettyjohn had been promised favorable treatment in exchange for his testimony against Charles and therefore possessed a motive to lie; and (2) that the Commonwealth’s Attorney had failed to disclose this evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. At a hearing on the motion, it was revealed that while incarcerated following his arrest in January of 1975 for robbery, Pettyjohn had written several letters to his fiancee in which he referred to using his knowledge of the incident at Cooksey’s and other crimes as a “trick” for obtaining release from prison, and stated he would only divulge this information to the authorities if they would “help get the hold off.” When questioned about these remarks, Pettyjohn admitted he had hoped to gain his freedom by testifying against Charles, but again denied that any promises had actually been made or that his testimony had been fabricated. It was further revealed that when Pettyjohn’s robbery conviction was in fact vacated after Charles’ first trial, the order authorizing the vacation had been sent to the prosecutor in Charles’ case, Commonwealth’s Attorney Zollinger, for his approval, despite the fact that he was in no way involved in the prosecution of Pettyjohn. Zollinger admitted during the hearing he had recommended that the conviction be vacated, but like Pettyjohn denied the existence of a deal. On June 24,1977, the motion for new trial was denied. This appeal followed.

II

In determining whether the court below acted properly in denying Charles’ motion for new trial, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) requires that we distinguish between two types of cases, each involving the discovery after trial of exculpatory evidence known to the prosecution but unknown to, and for that reason not specifically requested by, the defense: those which might be called “perjury” cases, and those which might be called “discovery” cases. See United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976).

The hallmark of a “perjury” case, perhaps the most obvious example of which is Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1975), is an allegation by the defense that the undisclosed evidence reveals the presence of perjured testimony in the government’s case. In Giglio, the key prosecution witness, himself a potential indictee, testified at trial that he had received no promises of non-prosecution in exchange for his testimony implicating the defendant; after trial, the government admitted that such a promise had been made. Noting that the testimony of that witness was so vital to the success of the government’s case that the issue of his reliability may well have been determinative of the defendant’s guilt or innocence, the court awarded the defendant a new trial.

A “discovery” case, on the other hand, involves the suppression of evidence which is favorable in some other way to the defense: it is characterized not by a conviction based on false evidence, but rather by a conviction based merely on less than all the available exculpatory evidence. This evidence can be either directly exculpatory, as in Agurs itself, where the government withheld evidence supportive of the defendant’s claim of self-defense, or indirectly exculpatory, again in the sense that it impeaches the credibility of a witness whose testimony may be determinative of guilt or innocence. See Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976) (Wisdom, J., dissenting); United States ex rel. Annunziato v. Manson, 425 F.Supp. 1272 (D.Conn. 1977). A case of the second type would, we suppose, have been created if defense counsel in Giglio had not elicited a denial from the witness that a promise had been made; for even in the absence of perjured testimony, evidence of a promise would still have been valuable to the accused to show that the witness possessed a motive to fabricate.

Because the harm to the defendant resulting from nondisclosure in a “perjury” case is potentially twofold — not only does he not enjoy the advantage of being able to impugn the witness’ credibility, he actually suffers the disadvantage that the witness’ credibility is enhanced by the perjured testimony — in order to have his conviction set aside the defendant in such a case need only show that “the false testimony could in any reasonable likelihood have affected the judgment of the jury.” See Giglio, 405 U.S. at 154, 92 S.Ct. at 766, quoting from Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The defendant in a “discovery” case, however, who is harmed only in the former manner, must demonstrate that the newly discovered evidence, if it had been known to the jury, would have created á reasonable doubt as to guilt which would not otherwise have existed without the evidence. Agurs, 427 U.S. at 112, 96 S.Ct. 2392. This standard is both difficult for the defendant to meet, since it requires a greater showing of prejudice than does the “perjury” standard, and difficult for a reviewing court to apply, in that it requires a subjective appraisal of the evidence and its possible effect on the jury.

Obviously the threshold question in the instant situation is whether the undisclosed information, when considered in conjunction with other evidence in the case, adequately supports Charles’ allegation that the Commonwealth’s case contains perjured testimony so as to fit the case at hand into the “perjury” category. We believe that it does. For although the evidence of a deal in the present case is not as unequivocal as that in Giglio, so long as the evidence “even arguably give[s] rise to an inference of perjury,” Agurs, 427 U.S. at 114, 96 S.Ct. at 2402, it is sufficient to create a jury question on the matter, and the failure to disclose the information constitutes error. See Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); of. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In the case at bar, the evidence supportive of Charles’ allegation that Pettyjohn expected prosecutorial aid in exchange for his testimony does appear, at least superficially, to contain the basic ingredients of a deal. Pri- or to Charles’ first trial, Pettyjohn stated in no uncertain terms that he would not testify against Charles unless guaranteed his release from prison. Pettyjohn then testified, and shortly thereafter was in fact released from jail. When embellished by the fact that Pettyjohn initially refused to incriminate Charles and did so only after conferring with a government official, and that the order vacating his conviction was sent to the prosecutor in Charles’ case for approval, despite his lack of connection with Pettyjohn’s case, we cannot discount altogether Charles’ allegation that the undisclosed evidence as it might have been developed by skilled counsel at trial would indeed have convinced the jurors that there was a deal.

This does not end our inquiry, however, since even if we assume for purposes of argument that the jury would have believed a promise was made and that Pettyjohn’s denial of such a promise was therefore false, it must still be determined whether there exists any reasonable likelihood that the false testimony could have affected the judgment of the jury under the evidence as a whole. Resolution of this question depends on at least two factors, including (1) the extent to which Pettyjohn was otherwise impeached, and (2) the importance of Pettyjohn’s testimony to the prosecution’s ease.

With respect to the first, we cannot say that any impeachment which might have resulted from disclosure of the suppressed information to the jury would have been merely cumulative. While it is true that defense counsel was able to cast some doubt on Pettyjohn’s believability anyway by exposing the fact that he was a convicted felon and that he had perjured himself at Charles’ prior trial, there is a vast difference between being able to show that a witness’ credibility is generally bad and that he has lied in the past, and being able to show that he has a specific motive to lie in the case at hand. See Davis and Annun-ziato, both supra. Had defense counsel known of the undisclosed evidence and presented it to the jury in such a manner as to convince them that Pettyjohn did in fact possess a motive to fabricate, therefore, this impeachment evidence might well have been the telling blow in discrediting his credibility.

Nor are we able to say that even if the jurors had heard the evidence, agreed there was a deal, and rejected Pettyjohn’s testimony entirely, they would nevertheless have convicted Charles anyway. Of all the evidence presented by the Commonwealth, Pettyjohn’s identification of Charles as the perpetrator of the robbery and murder at Cooksey’s was by far the most damaging. Pettyjohn was the only witness who claimed to have seen the assailant without his mask on. He was also the witness who alleged that Charles had confessed to the crimes. Had the jurors rejected his testimony, it is highly possible, perhaps even probable, that they, like their fellow jurors from the former trial, would have been unable to base a conviction on the remaining prosecution evidence. Because there is a reasonable likelihood that Pettyjohn’s testimony, and hence his reliability, may have been determinative of Charles’ guilt at trial, the failure by the prosecution to disclose evidence affecting his reliability requires that Charles be given a new trial.

Ill

It should be noted that the same result can be reached on the ground that Charles was denied the right “to be confronted with the witnesses against him” as. guaranteed by the Sixth and Fourteenth Amendments. As mentioned previously, it was discovered during the Cotton hearing at Charles’ second trial that the most recent of Petty-john’s robbery convictions had been vacated and that charges were again pending against him. Upon learning this fact, defense counsel asked the court if he might cross-examine Pettyjohn about the vacation and the circumstances surrounding it. The trial court, however, obviously thinking only of whether testimony relating to a vacated conviction was admissible for purposes of Cotton, ruled that counsel could not mention that conviction or anything relating to it.

It is well established in this day and time that the right to cross-examine a witness to impeach his credibility or show motive or prejudice is fundamental to a fair trial. Davis, supra; Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Thus, a defendant has a right to expose the fact that a witness has criminal charges pending against him and thereby possesses a motive to lie in order to curry favorable treatment from the prosecution. See Annunziato, supra. In the instant case, Charles was denied that right because of the trial court’s ruling that the vacated conviction and the charges stemming from it were not proper subjects of cross-examination. Just as in Davis, counsel was prevented from making a record as to why Pettyjohn “might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” Davis, 415 U.S. at 318, 94 S.Ct. at 1111. As a result, the jury was left to consider Pettyjohn’s testimony without any nonspeculative evidence as to what power the state could still exert over his freedom. Annunziato. Whether in every instance such a denial would amount to a “constitutional error of the first magnitude” requiring a new trial without any special showing of prejudice, cf. Davis, 415 U.S. at 318, 94 S.Ct. at 1111; and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), we need not decide. Suffice it to say that under the totality of circumstances existing in this case the court’s refusal to allow defense counsel to pursue the question of a possible “deal” through the process of a searching cross-examination was not consistent with our conception of fair trial, of which the right of confrontation and cross-examination is a vital part.

IV

Charles’ other three assignments of error require but brief comment:

First, we cannot say as a matter of law that Pettyjohn’s testimony incriminating Charles was perjured merely because it contradicted the testimony given by him prior to the recess at the first trial. The fact of the matter is that just as in most eases involving the recantation, after trial, of testimony given during trial, we simply do not know and have no way of knowing which story is correct and which story is false.

Secondly, while it is clear, in light of the trial court’s pretrial order that all prosecution witnesses be instructed not to mention it, that the testimony about Charles’ having been seen smoking marijuana should not have occurred, we do not believe that it could have significantly affected the judgment of the jury.

Finally, we similarly do not believe that Charles was unduly prejudiced by anything which occurred during closing argument. Although the comments by the prosecutor implying that witnesses in the case had been threatened by members of Charles’ family were improper, see Campbell v. Commonwealth, Ky., 564 S.W.2d 528 (decided February 21, 1978), they were not sufficient to deprive Charles of a fair trial.

The judgment is reversed and the case is remanded for a new trial.

PALMORE, C. J., and LUKOWSKY and REED, JJ., concur.

JONES, STEPHENSON and STERN-BERG, JJ., dissent.

JONES, Justice,

dissenting.

In my view, the opinion of the majority is based neither on the law nor the facts. It is bottomed on pure speculation and whimsey. There is not a shred of evidence to show that a “deal” was made. In fact the evidence is to the contrary. The majority of the members of this court quite candidly admit there is no evidence to support their view. The following statement in the opinion indicates as much:

“Had the jurors rejected his testimony, it is highly possible, perhaps even probable, that they, like their fellow jurors from the former trial, would have been unable to base a conviction on the remaining prosecution evidence. Because there is a reasonable likelihood that Pettyjohn’s testimony, and hence his reliability, may have been determinative of Charles’ guilt at trial, the failure by the prosecution to disclose evidence affecting his reliability requires that Charles be given a new trial.”

The majority view is a radical departure from the law that has existed in this jurisdiction since the genesis of this Commonwealth. Other jurisdictions, as well as the United States Supreme Court, have not chased a will-o’-the-wisp to “discover” an error where none exists. The facts in Gig-lio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1975), cited by the majority as a “hallmark of a perjury case,” is as different from the facts in this case as night is from day. In that case, the government admitted it had promised Giglio it would not prosecute him in exchange for testimony implicating the defendant. That is not the case here. Then, the majority like a “gallant knight ... in search of Eldorado,” proceeds on the elusive theory of “discovery,” and in my view, discovered nothing. Then the majority turns full circle back to “perjury,” when there is no evidence of Pettyjohn’s perjury — merely an assumption that he lied when he said there were no deals.

Williams committed the heinous crimes of armed robbery of a restaurant, and murder of one of its patrons. In my view, he had a fair trial. The judgment ought to be affirmed.

STEPHENSON, Justice,

dissenting.

My first objection to the majority opinion is that the case is reversed on the suspicion that Pettyjohn perjured himself when he denied a “deal” with the Commonwealth.

A further objection is that the majority opinion fashions a new evidentiary rule of law to find the trial court in error in denying to defense counsel the right to explore the circumstances of the judgment of conviction being vacated.

The majority opinion holds that a defendant has a right to expose the fact that a witness has criminal charges pending against him and thereby possesses a motive to lie in order to curry favorable treatment from the prosecution. This holding overrules, without saying so, a consistent line of cases in this Commonwealth that say pending criminal charges are not a proper subject of cross-examination for the purposes of impeachment. 19A Ky. Digest, Witnesses 345(1).

Discovery of this new right is based on Annunziato, an opinion of the United States District Court for the District of Connecticut. The holding in that opinion is apparently based on state law in Connecticut which recognizes the right to cross-examine a witness as to pending criminal charges. I object strongly to “discovering” this new “right” in this jurisdiction. Our present rule seems adequate and fair to me. Anyway, Annunziato turned primarily on Giglio grounds as stated in the opinion.

In my view, the trial court did not commit error during the Cotton hearing. The majority opinion recognized that the trial court was obviously thinking only of whether testimony relating to a vacated conviction was admissible for purposes of Cotton. Of course it was not; nor did defense counsel even pretend that he wished to cross-examine on the pending charge. The query, “Can I inquire of him if he knows why it was set aside or what grounds?” does not present such a question. It occurs to me that there was no objection to the ruling of the trial court, no attempt by defense counsel to explain that he wished to cross-examine Pettyjohn if a “deal” had been made, and no request to introduce the testimony into the record by avowal. It is apparent to me that defense counsel did not have a “deal” in mind at the time.

Defense counsel was not precluded from asking Pettyjohn if he had made a “deal” with the Commonwealth and did not do so. Davis and Greene can be distinguished on the factual situation. Davis involved a witness on probation and subject to being connected with the crime, and Greene involved allegations in an administrative hearing by individuals who did not testify or appear. I would disregard Annunziato. So much for the trial of the case.

Next, on motion for a new trial on the ground of discovery of evidence that Petty-john had been promised favorable treatment in exchange for his testimony against Charles and, therefore, possessed a motive to lie, I cannot see how the facts developed bn the hearing can justify the majority in applying Gigiio, a “perjury” case. There the prosecution admitted a deal; here Pet-tyjohn denied a deal. Commonwealth’s Attorney Zollinger denied a deal, and Petty-john explained the basis for the RCr 11.42 motion which resulted in the judgment being vacated. He stated he was suffering from emotional disturbance at the time of his guilty plea and asked that it be withdrawn and he be permitted to plead not guilty.

I am baffled as to how any of the evidence at the hearing can justify fitting this case within the “perjury” rule. As to the “discovery” of exculpatory evidence cases, an Agurs situation, it appears to me that the evidence developed at the hearing was not exculpatory. The letters written by Pettyjohn to his fiancee, about using his knowledge of the incident at Cooksy’s, buttress the truthfulness of Pettyjohn’s testimony and demonstrate that he did not fabricate his testimony as the result of a deal. If all this evidence were presented to a jury, as I presume the majority opinion intends, I believe it would strengthen the case of the Commonwealth. In my view, if any case applies it is Agurs, and application of the Agurs rule would affirm the case. It occurs to me that on the hearing defense counsel had every opportunity to call other witnesses from the Commonwealth’s attorney’s office to clarify the situation. He chose to leave the question to speculation on the assertion of a “deal,” and I would not speculate in his favor. Even applying the Giglio rule, I would say that there is no reasonable likelihood that all of the “discovered evidence” could have affected the judgment of the jury under the evidence as a whole. The conclusion in the majority opinion that the Commonwealth failed to disclose a “deal” is unwarranted.

I respectfully dissent and would affirm the case.

STERNBERG, Justice,

dissenting.

On this appeal four questions are argued. First, it is contended that the Commonwealth made a deal with the witness Myer Pettyjohn to set aside his recent felony conviction in exchange for his testimony identifying the appellant as the person who committed the armed robbery with which appellant was charged. The Commonwealth’s Attorney denied making such a deal, and Pettyjohn denied that such a deal existed. The relationship of the Commonwealth’s Attorney with Pettyjohn can best be demonstrated by the following questions asked the witness by the Commonwealth’s Attorney in the in-chambers Cotton -type hearing (Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970)):

“By Mr. Zollinger:
Q. Mr. Pettyjohn, prior to your testimony did you ever talk to me?
A. No, sir.
Q. Has anybody promised you anything in return for your testimony?
.A. No, sir.
Q. This Mr. Meany that you talked to, did he make any promises to you?
A. The only thing that Mr. Meany assured me of was my safety. If Mr. Williams should go to the penitentiary that I would be in one penitentiary and that he would be in another one.
Q. And that was what made you testify?
A. Yes, sir.
Mr. Zollinger: That’s all.”

The evidence offered by the appellant that such a deal did exist is purely speculative and conjectural. It does not attain such status as to compel a conclusion that such a deal did exist. It deserves no more than this passing comment.

There is one matter, however, that is cause for concern. In the Cotton -type hearing the learned trial judge heard testimony and arguments relative to Pettyjohn’s parole revocation and arrest. The following dialogue took place:

“Mr. Receveur:
He was on parole — as you testified, you were on parole when you claimed to have seen Charles Williams and then you were arrested for the robbery.
Court:
Was it a parole revocation or something?
Mr. Zollinger:
Yes. Your parole was revoked, wasn’t it?
Court:
Well, that was the same conviction you’ve already ask about. You can’t hardly ask him about it twice, can you?
Mr. Receveur:
No, he had a PV and then he was arrested for robbery while he was on parole.
Mr. Zollinger:
That was set aside wasn’t it?
A. Yes, sir.
Mr. Receveur:
Is it pending?
A. Yeah, Um-hum.
Court:
Now wait a minute. You have been convicted previous to that of robbery also, which was not set aside, is that right?
A. Yes, sir.
Court:
So I think the limiting feature of this thing is quite applicable now and you should not ask him how many times or anything like that because after all you’ve got a judgment set aside, I can’t presume that he’s .
Mr. Receveur:
Can I inquire of him if he knows why it was set aside or what grounds?
Court:
No, sir. You can certainly ask him if he’s been convicted of a felony and if that felony was robbery. I think that’s all, in fairness, and I’ll have to admonish the jury.”

During the course of the second trial counsel for appellant, in his cross-examination of Pettyjohn, asked the following questions, to which the following answers were given:

“Court:
Well let’s find out who may have spoken to him, if anybody, about it.
Q. Did anybody talk to you about your testimony?
A. No.
Q. You’re saying that your testimony at the Charles Williams murder trial didn’t have anything to do with setting aside that robbery conviction; is that right?
A. That’s what I’m saying to you.
Q. Nothing to do with it at all?
A. Right.
Q. You’re absolutely certain about that?
A. Right.
Q. Did you have a conversation with your attorney about Mr. Zollinger not opposing it — your sentence being set aside?
A. Did I have a conversation with who?
Q. With your attorney concerning Mr. Zollinger not opposing setting aside your plea of guilty?
A. I never have talked to him about it?
Q. Never?
A. No.
Q. Never?
A. Not Mr. Zollinger.”

Appellant argues that the effect of the ruling of the trial judge was to deny him the right to interrogate Pettyjohn relative to the alleged deal. Consequently, appellant contends he was denied his right of cross-examination. Had that been the ultimate effect of the court’s ruling, then, and in that event, the appellant’s argument may have been tenable. In Parsley v. Commonwealth, Ky., 306 S.W.2d 284 (1957), we said:

“The interest of a witness, either friendly or unfriendly, in the prosecution or in a party is not collateral and may always be proved to enable the jury to estimate credibility. It may be proved by the witness’ own testimony upon cross-examination or by independent evidence. ‡ * * >>

Furthermore, in Clark v. Commonwealth, Ky., 386 S.W.2d 458 (1965), we held:

“Appellant proffered evidence, which is in the record by avowal testimony of the deputy circuit clerk, which showed that Sharp had been indicted in April, 1963, on twenty separate counts for stealing merchandise from Murphy-Miller; that in July, 1963, he had entered a guilty plea to six of the counts, and that in August of that year the other fourteen counts had been dismissed on motion of the Commonwealth. Under the circumstances of this case, we believe it was error to refuse this evidence. Although Sharp specifically denied that he had been promised leniency in exchange for his testimony, the circumstances of the dismissal of the fourteen counts, coupled with Sharp’s appearance before the grand jury after the dismissal — and his appearance as the prime prosecuting witness after the dismissal — tend to support the inference that Sharp’s testimony was the result of a biased personal interest.”

In the first place the ruling of the trial judge pertained to interrogation relating to Pettyjohn’s prior felony convictions and did not pertain to any deal. As a matter of fact, the trial judge, during the second trial and while the witness Pettyjohn was under cross-examination by counsel for appellant and while considering the propriety of the testimony pertaining to a deal, made the following statement:

“Well, I understand what you’re trying to get to. I would like for you to go ahead and get there. I don’t know what this part of it you’re asking now has to do it. If he was influenced by anything I think you may directly ask him that. If anything influenced his testimony and if he changed it then why and so forth, particularly; well I don’t want to presume anything.”

Secondly, and assuming for the sake of argument only that the trial judge did mean for the ruling to apply to interrogation relating to an alleged deal, there is no objection made to the court’s ruling, thereby waiving any error. Gavins v. Commonwealth, Ky., 272 S.W.2d 656 (1954).

I concur with the majority opinion in the manner in which it disposes of the allegations of perjured testimony, the testimony relating to the smoking of marijuana, and the argument of the Commonwealth’s Attorney.

I respectfully dissent. I would affirm.

      . Although both the provisions under which Charles was indicted, 1966 Ky. Acts, Ch. 48, § 1 (KRS 433.140) and Ky.Stats. § 1149 (KRS 435.-010), originally permitted imposition of the death penalty, those sections of the statutes authorizing such punishment were subsequently declared unconstitutional. See, e. g., Caine v. Commonwealth, Ky., 491 S.W.2d 824, cert, denied 414 U.S. 876, 94 S.Ct. 80, 38 L.Ed.2d 121 (1973). Just twelve days after the commission of the offenses herein, both statutes were repealed. See 1974 Ky. Acts, Ch. 406, § 336 at p. 889; for current versions, see KRS 515.020 and KRS 507.020.

      . In the confusion of the moment, Miss Carter had apparently stood up rather than lying down as ordered. This prompted the assailant, after he had shot Morris, to move to within one foot of Miss Carter, where he stared directly at her for several seconds and then told her she had better lie down on the floor or he would shoot her too.

      . See Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970).

      . Pettyjohn was convicted and sentenced to 9 years’ imprisonment following the entry of a guilty plea on September 29, 1975, nearly four months after he had disclosed his information to the authorities. On January 31, 1977, he filed a motion pursuant to RCr 11.42 to set aside the guilty plea on the ground that he had been emotionally upset at the time the plea was entered. On February 21, 1977, the motion was granted.

      . Where a specific request is made for information prior to trial, as in Brady, so long as there is a “substantial basis” for claiming materiality exists, “the failure to make any response is seldom, if ever, excusable.” Agurs, 427 U.S. at 106, 96 S.Ct. at 2399.

      . But see Mr. Justice Marshall’s dissenting opinion in Agurs to the effect that the result in Giglio, and the standard for awarding a new trial which was utilized therein, would have been no different if perjury had not been involved. Id., 427 U.S. at 121, 96 S.Ct. 2392.

      . Although it might be argued that the order vacating Pettyjohn’s conviction contained nothing which would indicate an expectation of favorable treatment — indeed, Commonwealth’s Attorney Zollinger was careful to note on the document that he had “never talked to this man but he testified on behalf of the Commonwealth without promise or agreement” — the mere fact that the order was sent to Zollinger for his approval is somewhat suspicious in and of itself. Cf. United States v. McCrane, 547 F.2d 204 (3rd Cir. 1976).

      . MR. RECEVEUR: . . . he had a PV and then he was arrested for robbery while he was on parole.
      MR. ZOLLINGER: That was set aside, wasn’t it?
      A. Yes, sir.
      MR. RECEVEUR: Is it pending?
      A. Yeah.
      COURT: Now wait a minute. You have been convicted previous to that of robbery also, which was not set aside, is that right?
      A. Yes, sir.
      COURT: So I think the limiting feature of the thing is quite applicable now and you should not ask him how many times or anything like that because after all, you’ve got a judgment set aside, I can’t presume that he’s
      MR. RECEVEUR: Can I inquire of him if he knows why it was set aside or what ground?
      COURT: No, sir. . . .

      . Edgar Allen Poe, Eldorado.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Keith A. MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Walter McNARY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.
    Rehearing Denied Sept. 12, 1978.

      Jack Emory Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant Moore.
    Jack Emory Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant McNary.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, James L. Dickinson, Asst. Attys. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

On March 29, 1977, Indianapolis, Indiana, residents Keith Moore and Walter McNary were tried and convicted for the armed robbery of a service station in Simpson County, Kentucky. See 1966 Ky.Acts, Ch. 48, § 1 (repealed 1975). Both now appeal, asserting between them a total of six different grounds for reversal of their convictions. After considering the arguments of counsel on both sides of the controversy, and after reviewing the record on appeal, we are convinced that the convictions should stand.

Well into the late night hours of November 22,1974, a bluish-green Dodge or Plymouth station wagon bearing two black men and a woman pulled into Carter’s Sunoco just off 1-65 in Simpson County. Except for attendants Howard Haddock and Jerry Britt, the station was deserted. Following the use by one of the men of the restroom, all three newcomers entered the station office, where one of the men trained a gun on Haddock and Britt and demanded that they hand over the station’s money. When the cash register yielded only $75, the man with the gun told Haddock he knew there was more money and unless Haddock turned it over he would “blow the top of [Haddock’s] head off.” Haddock quickly admitted that the proceeds from the afternoon shift’s sales, totaling over $300, were hidden in the coffee machine and unlocked it for the men. After taking Haddock’s .22-caliber pistol and a 12-gauge shotgun, the men forced Haddock and Britt into a back room, ran out to their car, and sped away into the darkness.

The evidence connecting appellants with the robbery was basically as follows. First, three weeks after the robbery, Haddock’s pistol was located in Lawrence, Indiana, in the possession of Moore, who moments before the gun was recovered had been riding in a bluish-green Plymouth station wagon. Secondly, both Haddock and Britt identified Moore and McNary in court as the culprits. When asked on direct examination if the persons who robbed the station were present in the courtroom, Haddock responded, “Well, yes, to my belief it is the defendants,” and later identified Moore as the man who had wielded the gun and who had taken his pistol from him. Britt similarly stated he was “pretty sure” that Moore and McNary were the robbers and also identified Moore as the gunman, noting on cross-examination that although it had been some three years since the robbery, “it is pretty obvious that a man gets a gun drawed on him can pretty well identify who done it if it was ten years from now.” Both Moore and McNary concede that this evidence is sufficient to support their convictions, but argue that the trial court committed a number of errors which require that the convictions be reversed.

Both Moore’s and McNary’s first contention concerns the failure by the court below to conduct an evidentiary hearing to determine whether Haddock’s in-court identifications were tainted by an unnecessarily suggestive pretrial identification procedure. A few days after Moore and McNary were taken into custody by Indiana authorities, a “mug shot” of each man, each clearly marked with a police identification number on the front, was received by the Kentucky State Police and shown to Haddock. At first, Haddock told police he was not entirely sure that Moore and McNary were the robbers, that he could not really tell just by looking at photographs; after viewing the pictures for some 20 minutes, however, Haddock concluded, “Well, it looks like them.” Prior to trial, defense counsel moved to suppress all identification evidence on the ground that the procedure of showing Haddock a single mug shot of each appellant unaccompanied by any other photographs was so impermissibly suggestive as to deprive both the pretrial identifications and any in-court identifications which might be made at trial of all reliability, and asked the trial court to conduct a hearing on the matter. Although agreeing that any testimony relating to the pretrial identifications should be prohibited, the court refused to hold a hearing with respect to possible in-court identifications, stating that any taint which existed could be adequately exposed during cross-examination.

Moore and McNary assert that the trial court’s refusal to hold a suppression hearing constitutes error, and we agree. Wherever there is a substantial basis for the claim that a forthcoming in-court identification is tainted by an improper pretrial identification procedure, a suppression hearing, if affirmatively requested, should be conducted. Cf. Francis v. Commonwealth, Ky., 468 S.W.2d 287 (1971). This does not mean, however, that the judgments of conviction entered against Moore and McNary must automatically be vacated and their cases remanded for a hearing. Harris v. Commonwealth, Ky., 556 S.W.2d 669 (1977); Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977). For if it is clear from the record on appeal either that (1) the complained of pretrial identification procedure was not at all suggestive, cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); (2) the pretrial procedure, while suggestive, was necessarily so, see Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); (3) under the “ ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive,” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); or (4) the admission of the identification testimony, even if it be assumed to be unreliable, was harmless error, see Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), remanding for a hearing would serve no purpose.

In the case at hand, there is no question that the display to Haddock, while Moore and McNary were in custody of Indiana authorities, of a single mug shot of each man unaccompanied by any other pictures, was unnecessarily suggestive. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Washington, 292 F.Supp. 284 (D.D.C. 1968). The crucial question, therefore, is whether Haddock’s in-court identification of appellants was reliable despite this suggestiveness, i. e., whether he likely would have been able to identify Moore and McNary even if a proper photographic identification procedhre had been utilized. As mentioned previously, resolution of this question must be made in light of the “totality of the circumstances” surrounding Haddock’s identification, and depends upon a number of factors including his opportunity to view the robbers at the time of the crime, his degree of attention, the accuracy of his prior description of the robbers, the length of time between the robbery and the pretrial photographic showup, and the level of certainty he demonstrated at the show-up. Neil, 409 U.S. at 199-200, 93 S.Ct. 375. Against these factors must be weighed the corrupting effect of the suggestive identification procedure itself. Manson, 432 U.S. at 114, 97 S.Ct. 2243.

Applying this analysis to the facts of this case, we are satisfied that Haddock’s identification of Moore and McNary was not induced by the suggestive photo display. As described by both Britt and Haddock, the robbery must have taken at least several seconds, and perhaps minutes, to transpire: the robbers entered the office, returned to their car, reentered the office, emptied the cash register, emptied the coffee machine and kicked in a door to a back room before leaving. During this time, the robbers wore no masks and stood within feet of Haddock. Haddock was no casual or passing observer, but paid close attention to his assailants, as witnessed by his ability to distinguish between the two in identifying Moore as the gunman. Although Haddock’s description of the robbers, which included their race, heights and weights, was not as detailed as it might ideally have been, it was reasonably accurate so far as it went. And while the level of certainty displayed by Haddock at the photographic showup leaves something to be desired, unlike the situation in Foster, supra, the only case to date in which the United States Supreme Court has found identification procedures to be violative of due process, that level of certainty did not dramatically improve at the subsequent in-court identification. Under these circumstances we are convinced that Haddock’s identification of Moore and McNary was reliable and see no need to remand for a hearing.

The second argument, urged by Moore alone, concerns the testimony of Lawrence, Indiana, police officer Samuel Beckenbaugh, who testified on direct examination that at the time Haddock’s pistol was recovered, he was in foot pursuit of Moore: “Mr. Moore ran from me and jumped the fence and across the ditch and threw the gun down into a ditch; after the canine searched the area for Mr. Moore I retrieved it.” Moore does not argue that this testimony should have been excluded from evidence; indeed, he concedes that since it linked him with the gun it was admissible to establish his identity as a participant in the robbery of Carter’s Sunoco. See Jones v. Commonwealth, Ky., 554 S.W.2d 363 (1977). Rather, he asserts that because the testimony also contained an implication that he was involved in criminal activity in Indiana as well as in Kentucky (Beckenbaugh was evidently chasing Moore in connection with the robbery of an Indianapolis grocery), once the testimony was admitted he should have been allowed to counter this implication during cross-examination by exposing the fact that he was later acquitted of the charges against him. The quick answer to this argument is simply that we do not agree Beckenbaugh’s testimony contained evidence of other crimes. To the contrary, it appears to us that after hearing this testimony, the jurors more likely than not thought Beckenbaugh was attempting to apprehend Moore for the gas station robbery in Kentucky. The information referred to above relating to the Indiana robbery was only disclosed during a conference at the bench, outside the hearing of the jury. If it was injected into the case at all, it was done so via the insinuations of defense counsel during cross-examination and not by Beckenbaugh’s testimony on direct examination.

As is sometimes the difficulty with “quick” answers, however, in solving one problem we have created another. For despite the fact that Beckenbaugh’s testimony did not contain evidence of another crime, it did contain evidence of flight from law enforcement officials—evidence which, if the jurors viewed Beckenbaugh’s testimony as we have said they did, may have been incorrectly interpreted as an admission by Moore that he was guilty of the robbery of Carter’s Sunoco. Cf. Hamblin v. Commonwealth, Ky., 500 S.W.2d 73 (1973). In light of this possibility, it probably would have been better for the trial court to allow Moore to correct this misconception; though this could only have been accomplished by Moore himself raising the spectre of the Indiana crime, it should have been up to Moore to decide whether to risk this course of action, not the trial court. Since such a tactic might have created as much prejudice as it would have dispelled, however, any error which may have resulted from the court’s prohibition on evidence relating to the Indiana robbery was harmless.

Moore and McNary next contend that the court below erred by refusing to order the production under RCr 7.26 of a “case report” which Beckenbaugh had written following the recovery of Haddock’s pistol in Indiana, but which he inadvertently forgot to bring with him to trial. Had this report been shown to have been in the possession of either the prosecution or Kentucky police, which must be considered an arm of the prosecution for this purpose, it would, of course, have fallen within the proscriptions of RCr 7.26 and the refusal of the court to compel its production would have constituted error. Cf. Gaston v. Commonwealth, Ky., 533 S.W.2d 533 (1976); Maynard v. Commonwealth, Ky., 497 S.W.2d 567 (1973). Because the report was in the possession of Indiana authorities, however, the rule does not apply and we cannot say that the trial court acted improperly. If appellants desired to have the report for use in cross-examining Becken-baugh, they should have asked for a continuance and procured the document themselves.

Moore’s and McNary’s remaining assignments of error were not preserved for appellate review. RCr 9.54; 9.22.

The judgments are affirmed.

All concur, except REED, J., who concurs in the result.

      . Despite Moore’s additional contention that Britt’s in-court identifications were similarly influenced by a suggestive pretrial lineup, it does not appear from the record that a hearing was ever requested to determine the admissibility of Britt’s testimony, see Lewis v. Commonwealth, Ky., 463 S.W.2d 137 (1970), nor is there anything in the record which indicates that the lineup was in any way suggestive.

      . Although McNary makes much of the fact that Haddock described both robbers as being six feet tall, when McNary is actually only five feet eight inches in height, inasmuch as it appears that Haddock was only asked to give an approximate description, we think McNary places too much emphasis on this discrepancy. See Coleman, 399 U.S. at 4-5, 90 S.Ct. 1999.


author: STEPHENSON, Justice.

text:
    Robert F. STEPHENS, Attorney General, Commonwealth of Kentucky, Lexington-Fayette Urban County Government and Public Service Commission of Kentucky, Movants, v. KENTUCKY UTILITIES COMPANY, Respondent.
    Supreme Court of Kentucky.
    July 3, 1978.
    Rehearing Denied Sept. 19, 1978.

      James W. Blackburn, Jr., Sp. Asst. Atty. Gen., Frankfort, George F. Rabe, Commissioner of Law, Lexington-Fayette Urban County Government, Lexington, William M. Sawyer, Paul M. Cupp, Frankfort, C. Timothy Cone, Lexington, for movants.
    Richard F. Newell, Ernest W. Williams, Ogden, Robertson & Marshall, Louisville, for respondent.
   STEPHENSON, Justice.

The question presented on this appeal is whether the order of the Franklin Circuit Court remanding the case to the Public Service Commission is an appealable order. The Court of Appeals dismissed the appeal of the movants on the ground that the order of remand was not a final appealable order. We grant discretionary review and reverse.

On July 10,1974, the Public Service Commission entered an order fixing new electric rates for Kentucky Utilities. In May 1974, Kentucky Utilities had put new rates into effect subject to refund. The July 10,1974, order prescribed lower rates and directed refund of the difference.

On September 6,1974, Kentucky Utilities, the Attorney General, and Lexington-Fa-yette Urban County Government as inter-venors sought judicial review of the order of the Public Service Commission in Franklin Circuit Court, and the cases were subsequently consolidated.

On December 6, 1974, Kentucky Utilities sought and was, in March 1975, granted a temporary injunction allowing collection of the higher rates pending final disposition of the appeals.

After this there was apparently a protracted period of legal skirmishing culminating in the amended and substituted order of March 25, 1977, entered by the trial court, which in part reads:

“On the Court’s own motion, and after hearing and argument, it appearing that the Court’s orders of February 17, 1977 and March 16, 1977, should be amended and restated by this substituted order, as follows:
“Kentucky Utilities Company has moved to remand these consolidated actions to the Public Service Commission to take new evidence, and after consideration thereof, entered a proper order thereon.
“These consolidated actions have been brought to review the Commission’s July 10, 1974 order which prescribed rates for the Company’s Kentucky Jurisdiction customers. The rates are lower than those the Company had put into effect on notice to the Commission May 15, 1974. The Commission’s order was superseded on June 23, 1975, by an emergency rate increase granted by the Commission in subsequent proceedings which are also pending on review in this Court (Civil Action Nos. 86539 and 86540). Therefore, the sole remaining issue here is the lawfulness of the Commission’s rates for the period from May 15, 1974 until the June 10,1974 order was superseded on June 23, 1975.
“In support of its motion the Company has submitted evidence of its actual operating experience under the rates prescribed by the Commissioner’s order. The evidence, consisting of reports required to be filed with the Commission, and affidavit and transcript of record in the subsequent proceedings also on review in .this Court, tends to show that during such period the Company’s credit and operations were materially impaired and the Commission’s rates failed to produce sufficient revenue to cover operating expenses and capital costs, including service on debt and dividends on stock at a rate of return commensurate with returns on investments in other enterprises having corresponding risks-; such as to insure confidence in the financial integrity of the Company and maintain its credit and attract capital. Commonwealth v. South Central Bell Telephone Company [Ky., 545 S.W.2d 927], Opinion of December 3, 1976, pp. 7-8.
“The evidence offered by the Company could not have been obtained for use at the hearing before the Commission, and will materially affect the merits of the case.
“On the issue of confiscation there should be independent determination as to the lawfulness of the rates prescribed by the Commission’s July 10, 1974 order based on evidence as to actual effect of the rates before the order was superseded by the emergency increase in subsequent proceedings. This Court cannot hear evidence and substitute its judgment for that of the Commission except where the issue of confiscation has been raised. Confiscation is a judicial issue which cannot be delegated to the Commission, but when the issue has been raised the Court can hear evidence in support of a motion to remand and if such evidence dictates, the case should be remanded to the Commission for an evaluation of such evidence and entry of a proper order, subject to further review by the Court. Remand is authorized either under KRS 278.440 or in the exercise of the Court’s duty to insure a proper determination of the confiscation issue.”

This presents us with the question whether this is an appealable order as contemplated by the statutory scheme of judicial review.

The General Assembly has provided for judicial review of orders of the Public Service Commission. KRS 278.410 through KRS 278.450 sets out the procedure and limitations of judicial review.

KRS 278.440 provides for the procedure to be followed by the Franklin Circuit Court after an action has been brought against the Commission under KRS 278.410 “to vacate or set aside the order or determination on the ground that it is unlawful or unreasonable.”

KRS 278.440 provides:

“Any action brought under KRS 278.-410 shall be heard and decided by the court upon the evidence submitted to the commission as shown by the transcript, and no other evidence shall be received. If any party satisfies the court that evidence has been discovered since the hearing before the commission that could not have been obtained for use at that hearing by the exercise of reasonable diligence and will materially affect the merits of the case, the court may remand the record and proceedings to the commission, with directions to take the newly-discovered evidence, and after consideration thereof, enter and file a proper order, which may be reviewed in the same manner as any other final order of the commission.”

In our view, KRS 278.440 is clear with no ambiguities. The trial court is to hear and decide the action only on the transcript of evidence heard by the Commission. The provision on remand for “newly-discovered evidence” is couched in traditional terms for the granting of a new trial such as provided for in CR 59.01(g) and relief from judgment such as provided for in CR 60.02(b). With this exception, judicial review of the rate fixed by the Public Service Commission is limited to the constitutional question of whether the fixed rate is so low as to constitute confiscation of the property of the utility. Commonwealth of Kentucky ex rel. Stephens v. South Central Bell Telephone Company, Ky., 545 S.W.2d 927 (1976).

The order recited that “remand is authorized either under KRS 278.440 or in the exercise of the Court’s duty to insure a proper determination of the confiscation issue.” Reduced to its essentials, the order entered by the trial court is a judicial amendment to KRS 278.440 holding that in addition to remand for “newly-discovered evidence,” remand is authorized for “new evidence” based on actual operating experience subsequent to the Public Service Commission’s order, or in the alternative some inherent power in the trial court to have this “new evidence” considered to insure a proper determination of the confiscation issue.

The recitation in the order that “the evidence offered by the Company could not have been obtained for use at the hearings before the Commission, and will materially affect the merits of the case” parrots the “newly-discovered evidence” clause of KRS 278.440; and our only comment on this is that, of course, the evidence could not have been obtained for the hearings, it did not exist at the time.

The principal arguments in this appeal are based on discussion of whether the remand order of the trial court is an interlocutory order, and not appealable, or a final order, and appealable. We do not propose to enter into an esoteric discussion on interlocutory and final orders of a trial court in the context of CR 54.01 and CR 54.02. We assume, for the purposes of this appeal, had Kentucky Utilities offered newly-discovered evidence that was in existence at the time of the hearings and satisfied the trial court that such evidence could not have been obtained for use at the hearings by the exercise of reasonable diligence and that the evidence would materially affect the merits of the case, then a remand by the trial court would not be an appealable order. This procedure is clearly authorized by KRS 278.440 and is akin to the concept of a new trial, CR 59.01(g), or relief from judgment, CR 60.02(b). Here the situation is different. The trial court does not order a new trial on newly-discovered evidence. The order here dictates a different trial on new evidence in complete disregard of the legislative mandate for judicial review. We hold that in this situation where the trial court clearly exceeds statutory authority and by order engrafts an enlargement on the statutory plan for judicial review, the order is appealable and is erroneous.

If we were to accept the rationale of the order entered by the trial court and the argument of Kentucky Utilities, there would not be much point in the Public Service Commission holding a hearing. In each case, the situation after the hearing would be the determining factor, and this would result in complete destruction of an orderly process in the legislative scheme for setting rates for utilities. Public policy dictates that these actions not be unnecessarily prolonged.

In Kentucky Utilities Co. v. Public Service Commission, Ky., 252 S.W.2d 885 (1952), the trial court sustained the order of the Commission and denied remand on offered “newly-discovered evidence.” The evidence offered to support the motion for remand was that there had been a general price increase since the time of the hearing before the Commission. The opinion referred to alleged newly-discovered evidence but did not discuss it in terms of the provisions of KRS 278.440. We then observed:

“. . .if changes in the general economic situation should be permitted to be classed as newly-discovered evidence, there would never be an end to a public utility case. The Public Service Commission necessarily must base its decision and actions on the economic conditions existing at the time a case is before it, and it is not in the public interest that a case be prolonged indefinitely by allowing a reconsideration whenever there is a fluctuation in price levels.”

While the opinion did not discuss the question of right to appeal remand orders, we view the policy considerations expressed there as sound and are of the opinion the public interest is better served by holding that the order here is appealable.

Kentucky Utilities argues that particularly where, as here, the utility has already collected increased rates subject to refund that the evidence of actual experience should be permitted. Our attention is directed to our opinions in Lexington Telephone Co. v. Public Service Commission, 811 Ky. 584, 224 S.W.2d 423 (1949), and City of Lexington v. Public Service Commission of Ky., Ky., 249 S.W.2d 760 (1952). In Lexing ton Telephone Co., the utility sought a rate increase based on the added costs of conversion to a dial system, and the Public Service Commission denied any increase in rates. This court determined that the Commission acted unreasonably in denying the utility the relief sought by it, then held the case should be remanded for the Commission to consider the matter in the light of the financial phases of the conversion program which had been completed after the hearing before the Commission. In City of Lexington, the second appeal, the opinion cites Lexington Telephone Co. for the proposition that the conversion period had ended and that the Public Service Commission in reconsidering the case would no longer be required to base its decision upon estimates and expectancies, but would have before it the records of actual operation. The opinion then approved the order of the Public Service Commission based on the actual operations of the utility. In our view, these cases support the argument of Kentucky Utilities. We have attempted to distinguish the cases, but find that we cannot. It may be for the reason that this was a non-recurring problem, that is, conversion to a dial system; there is a distinction, but at best it is a tenuous distinction. Ordering use of actual experience as in those cases is an appealing argument, but we are of the opinion that the larger question is whether this court is also bound by the statutory provisions governing judicial review. We conclude that we are equally bound and, so, overrule both Lexington Telephone Co. and City of Lexington.

Kentucky Utilities argues that we have recognized exceptions to the “newly-discovered evidence” rule even in ordinary civil actions, relying on Cawood v. Cawood, Ky., 329 S.W.2d 567 (1959), Woods v. Kentucky Traction & Terminal Co., 252 Ky. 78, 65 S.W.2d 961 (1933), and Anshutz v. Louisville Ry. Co., 152 Ky. 741, 154 S.W. 13 (1913). Cawood denied relief for the reason that there was no proof the evidence was in existence before judgment; Woods denied relief for the reason the evidence was not in existence before judgment; and Anshutz portrayed a classic situation of evidence in existence at the time of the trial which could not reasonably have been discovered before trial. None of these opinions supports the argument advanced by Kentucky Utilities aside from the fact that we are not dealing with an ordinary civil case but a rate-making case with judicial review limited by statute.

Finally, we have not considered the workmen’s compensation cases relied upon by the Attorney General and the Public Service Commission for the reason they represent a different body of law on appeala-bility of remanded cases, and we prefer to base this opinion on the statutes governing judicial review in KRS Chapter 278.

Accordingly, we reverse and direct that the trial court decide the case on the evidence submitted to the Commission.

All concur.


text:
    Mae W. TOLSON, Appellant, v. Hon. Caswell P. LANE, Judge, Menifee Circuit Court, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.

      Richard B. Olver, Northeast - Kentucky Legal Services, Inc., Morehead, for appellant.
    Caswell P. Lane, Judge, Menifee Circuit Court, Mount Sterling, for appellee.
   CLAYTON, Justice.

This case presents the issue of whether a prospective litigant in the courts of this Commonwealth must demonstrate that she is totally without relatives and friends willing to assist her financially before she will be allowed to maintain a suit in forma pauperis under KRS 453.190. Particularly implicated is the decision of this court in Braden v. Commonwealth, Ky., 277 S.W.2d 7 (1955).

On June 10, 1977, the appellant, Mae W. Tolson, filed a motion in the Menifee Circuit Court seeking leave to proceed in for-ma pauperis in an action for dissolution of marriage. Accompanying the motion was an affidavit in which Mrs. Tolson stated she would be unable to bear the costs of the proposed suit due to her impoverished financial condition, which she declared thusly:

1. I am not employed; and have no source of income.
2. My husband does not provide me with any maintenance.
3. I do not have any cash on hand or money in a savings, or checking account.
4. I do not own any real estate, stocks, bonds, notes, automobiles, or any other valuable property.
5. I live with my grandmother who supports me. My grandmother is receiving Social Security benefits in the amount of $101.80 per month.
6. I do not owe any debts.

Exactly one week later, the appellee, the Honorable Caswell P. Lane, Circuit Judge, denied the motion, stating without further elaboration that Mrs. Tolson had not satisfactorily demonstrated herself to be a “poor person” within the meaning of the statute.

On July 25, 1977, Mrs. Tolson filed a petition for writ of mandamus in the Court of Appeals, asking that Judge Lane be compelled to permit her to proceed in forma pauperis in the proposed dissolution action. Although ironically allowing her to proceed as a pauper in filing the petition, the Court of Appeals in an opinion and order dated February 3, 1978, denied the petition. Apparently relying on the proposition contained in Braden, supra, that before a party may proceed as a pauper “he must show he is without money or property and without relatives or friends who will assist him,” id. at 10, the court reasoned that because Mrs. Tolson had failed to show that her grandmother possessed no monetary assets or sources of income other than the meager Social Security benefits mentioned in her affidavit, Judge Lane’s ruling was not clearly erroneous. On March 3 of this year, Mrs. Tolson appealed to this court. Inasmuch as we do not agree Braden should be so broadly construed, we reverse.

In Braden, decided during the troubled years of the 1950’s, the petitioner had been charged with being a communist and convicted of the crime of sedition. Subsequent to his conviction, Braden moved the trial court to permit him to prosecute his appeal as a pauper, alleging a total net indebtedness after paying his legal fees of over $1500; following a hearing on the matter, the motion was denied. On petition for the equivalent of a writ of mandamus, this court, after setting forth the general proposition referred to above, proceeded to determine which, if any, of the possible sources of financial aid mentioned during the hearing Braden should be required to draw upon before being allowed to appeal in forma pauperis. In holding that the trial court had abused its discretion in refusing Bra-den’s request, the court found — without denying that she had a duty to assist him— that Braden’s wife, who had aided him at trial by depositing $2000 for his appearance bond, was no longer in a position to do so, since she had since been charged with sedition herself; implied that while her parents had a duty to help their daughter in her defense, no similar duty ran to Braden; and held that even though certain organizations might be willing to supply the costs of his appeal, Braden’s motion must be granted unless it could be shown that he possessed “the power to compel them to pay for the transcript.” 277 S.W.2d at 10. In addition, the court apparently found no duty of assistance in Braden’s own mother and a' friend, who together had pledged $8000 worth of property as security for his appearance bond.

When considered in light of these findings, it appears to us that despite the presence therein of the sweeping statement relied upon by the Court of Appeals, Bra-den actually stands for no more than the proposition that before a party may proceed in forma pauperis, he must show that there are not available any persons or organizations who might have a legal duty, and who are willing and able, to supply the costs of the action. Cf. Stinnett v. Commonwealth, Ky., 452 S.W.2d 613 (1970). This approach accords with what appears to be the far greater weight of authority on the question, see, e. g., State ex rel. Reis v. Lepping, 256 F.Supp. 881 (S.D.Fla.1966); State v. Owen, 97 Ariz. 250, 399 P.2d 660 (1965); March v. Municipal Court for San Francisco Judicial Dist., 7 Cal.3d 422, 102 Cal.Rptr. 597, 498 P.2d 437 (1972); State ex rel. Butler v. Allen Circuit Court, 241 Ind. 627, 174 N.E.2d 411 (1961); State ex rel. Siegler v. Rone, 42 Ohio St.2d 361, 328 N.E.2d 811 (1975), and is, we think, the better view.

In the case at bar, it is undisputed that Mrs. Tolson is unable to pay the costs of her proposed dissolution suit, see Salyers v. Cornett, Circuit Judge, Ky., 566 S.W.2d 418 (1978), and that her grandmother is under no legal obligation to do so. Under these circumstances, the refusal by Judge Lane to permit Mrs. Tolson to institute her suit in forma pauperis was error, and a writ of mandamus should have been issued compelling that result.

Appellant’s motion to appear as a pauper on this appeal is granted. The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.


author: REED, Justice.

text:
    BOHNERT EQUIPMENT COMPANY, INC., Movant, v. Ronald KENDALL and Cleveland Crane & Engineering Company, Respondents. CLEVELAND CRANE & ENGINEERING COMPANY, Movant, v. BOHNERT EQUIPMENT COMPANY, INC. and Ronald Kendall, Respondents.
    Supreme Court of Kentucky.
    July 3, 1978.

      C. Alex Rose, A. Courtney Guild, Jr., Louisville, for Cleveland Crane & Engineering Co.
    Ben T. Cooper, Louisville, for Bohnert Equipment Co., Inc.
    J. J. McCarthy, Louisville, for Ronald Kendall.
   REED, Justice.

I

The Procedural History

The plaintiff, Ronald Kendall, an employee of Reynolds Metal Company, was injured when a crane he was operating snapped free from the ceiling of Reynolds’ factory and struck him. He sued Cleveland Crane & Engineering Company, manufacturer of the crane, Bohnert Equipment Company, the seller of the crane to Reynolds, and Rapid Installation Company which installed the crane. Kendall sought recovery on the strict liability theory of Section 402A of the Restatement of Torts 2d against Cleveland and Bohnert and on a negligence theory against Rapid Installation. A jury trial resulted in a verdict in favor of all defendants. Kendall appealed to the Court of Appeals from the portion of the trial court judgment which exonerated Cleveland and Bohnert.

In the Court of Appeals, Kendall asserted that the trial court should have granted him a directed verdict on the issue of liability, but that, in any event, erroneous jury instructions entitled him to a new trial. The Court of Appeals rejected his contention that he was entitled to a directed verdict on the issue of liability. That court, however, agreed that the jury instructions were prej-udicially erroneous and that a new trial as to the liability of Cleveland and Bohnert was required. The opinion of the Court of Appeals set forth instructions which it directed be given to the jury at the new trial. Bohnert and Cleveland separately moved this court for discretionary review, which we granted. We will confine our consideration to the issues for which discretionary review was sought.

II

The Facts

In September 1967, Reynolds submitted a purchase order to Bohnert, Cleveland Crane’s distributor, for a traveling crane for Reynolds’ newly completed factory. Cleveland Crane and Bohnert designed the crane. Cleveland Crane furnished the parts; Bohnert secured the services of Rapid Installation which installed the equipment supplied by Cleveland Crane. Rapid completed installation in June 1968.

The crane travelled on runways and could be moved on these to the north part of the building or south to the loading dock. The operator operated the crane by pressing the appropriate button of the six on the hand-held control pendant which hung from a cable connected to the top of the crane. The design allowed for a five-degree motion in the runways. This entire system hung suspended from the ceiling by hanger rods. The roof of the building slanted so it was necessary that the suspension hanger rods vary in length; the longer hanger rods supported the east side of the crane, and the shorter hanger rods the west wide. The shorter hanger rods underwent greater stress because of excessive .sway.

About a year after the crane was installed, Reynolds first experienced breakage of some of the shorter hanger rods. Apparently Reynolds first purchased a replacement hanger rod in May 1969. Additional purchases of replacement rods were made in September 1969, September 1970, and in September 1971. On September 30, 1971, the plaintiff,-Kendall, who had been working about 10 days as a crane operator, while attempting to place a 2,070-pound load onto a truck, heard a loud pop and was immediately struck by the falling crane. Kendall’s testimony that no one had warned him of the danger caused by the breaking hanger rods was uncontradicted.

According to Cleveland and Bohnert, they became concerned when Reynolds started buying hanger rod replacements. Graeser, President of Bohnert, called Kittel, Reynolds’ plant engineer. After talking with Kittel, Graeser called Berge, the representative of Cleveland on this project, who flew to Louisville and with Graeser conferred with Kittel at the Reynolds plant. Graeser and Berge testified that when Kittel showed them the crane it was obvious that the runways in operation were moving in excess of the designed five degrees.

Graeser and Berge said that they discussed the problems with Kittel and explained to him that if hanger rods were breaking the motion in the runway must have been exceeding the designed five degrees. Kittel agreed with them. Graeser and Berge also stated that at this first visit they noticed the operator was “jogging” the crane. “Jogging” is the operation of hitting the forward control button of the crane and then the reverse button which causes the load to swing. We do not attach significance to this element because Cleveland’s evidence was that the normal practice to stop the crane entailed pushing the reverse button when the crane was going forward, and this was called “plugging.” It would therefore appear that this was a foreseeable use of the crane.

Again, according to Cleveland and Boh-nert, Kittel assured Graeser and Berge that ■he would correct the problem of excessive motion by proper bracing. Berge testified that he described to Kittel the manner in which the runway should be braced and Kittel indicated that he understood Berge’s suggestions. Bohnert and Cleveland also produced evidence that one of the broken hanger rods was furnished by Kittel to Graeser who mailed it to Cleveland for examination. Cleveland wrote Bohnert that its examination again indicated the need for lateral bracing to limit the runway swing.

After sending this letter to Bohnert, Cleveland’s man Berge again returned to Louisville, and with Graeser made another trip to Reynolds. On this occasion, Kittel stated to them that he had still not installed the bracing because he had been too busy but that he did intend to do so. Apparently, Graeser made a third visit to Reynolds and discussed the problems with Kittel because Graeser testified that on at least three occasions Kittel was informed of the necessity for sway bracing.

According to Reynolds’ evidence, it was given inadequate warning of the danger and its consequences. Reynolds’ safety engineer Brinley testified that Reynolds knew the short rods were breaking and replaced them when they broke. He stated that Reynolds made no attempt to find the cause of breakage. He thought the condition was something Reynolds would have to put up with. Kittel denied receiving any advice about lateral sway bracing. He also testified that no one told him the crane might fall. There was uncontradicted expert evidence that the crane, without lateral sway bracing for the short rods, was in a defective condition to ultimate users when it was delivered to Reynolds.

Ill

Bohnert’s Contention

Bohnert claims that it was not strictly liable under Section 402A of the Restatement of the Law. of Torts 2d which provides that a seller is subject to liability only if the product is expected to and does reach the user . or consumer without substantial change in the condition in which it is sold. Bohnert also calls our attention to the caveat to Section 402A which declares that the American Law Institute expresses no opinion concerning whether 402A applies to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer, or to the seller of a component part of a product to be assembled.

Bohnert would have us conclude that the component parts it sold were substantially changed by assembly into a whole in a manner over which they had no control. Bohnert and Cleveland actually stand in the posture of distributor and manufacturer. Comment p. of Section 402A provides: “It seems reasonably clear that the mere fact that the product is to undergo processing, or other substantial change, will not in all cases relieve the seller of liability under the rule stated in this Section. . . . The question is essentially one of whether the responsibility for discovery and prevention of the dangerous defect is shifted to the intermediate party who is to make the changes.” The factual situation here appears to us to make it evident that the responsibility could not have been shifted to take Bohnert and Cleveland out of the scope of the strict liability theory of Section 402A. The intermediate parties neither added to nor subtracted from the original product involved. The crane was installed and remained exactly as its manufacturer, designer and seller had envisioned.

As will be subsequently demonstrated, Bohnert was in no event entitled to a directed verdict. Bohnert’s liability depends upon a jury’s assessment of the adequacy of the warning Bohnert undertook to give after the defective character of the crane became known. We agree with the Court of Appeals that Bohnert was not entitled to a directed verdict and affirm the decision in this respect.

IV

The Warning Question

In Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197 (1976), we observed that under the strict liability theory of Section 402A of the Restatement of Torts 2d the issue is whether a product is unreasonably dangerous to a person who should be expected to use or be exposed to it. We stated that if the danger is unreasonable because it is not obvious and may not be apprehended by such person, then it may be obviated by an adequate warning so provided that in the ordinary course of events it will reach and be understood by that person. In Ulrich we said that a manufacturer was entitled to rely on the owner of a machine to assume the responsibility for keeping it in safe working order. “The owner’s failure to do so (and to warn the operator accordingly) might constitute superseding negligence if it could be found that the tool was unreasonably dangerous in the first place . . .” Ulrich, supra, at p. 201.

In this case it appears to us that this is another illustration of the overlap between negligence principles and so-called strict liability theory where defective design or inadequate instructions and warnings of the dangers attending the use of the product are present. Kendall, the injured worker, did not sue his employer Reynolds. This is probably explained by the presence of workmen’s compensation payments to him by his employer whom he cannot legally sue in a tort action. As observed in Ulrich, supra, when this case is “divorced from the glut of erudition erupting from the scholars,” the evidence of the parties makes the real issue simple and renders other issues irrelevant.

In this case, after use for a comparatively short interval of time, this crane was discovered to be defectively operating by the manufacturer, the seller, and the buyer. The manufacturer and seller initiated the inquiry into the fitness of the machine and discovered that it lacked bracing which would render it safe. According to the manufacturer and seller, these facts were brought home to a responsible supervisory employee of the buyer. This employee of the buyer agreed to cause the bracing to be applied which under the evidence would have made the machine safe for the buyer’s employee who operated the crane. The supervising employee of the buyer admits that he knew the crane was operating defectively because of the breaking of the short hanger rods. He denies that he agreed to effect lateral sway bracing and also represents that he did not realize the extent of the danger nor of the probability of the crane falling if it were not properly braced.

The manufacturer and seller admit that they did not discuss the extent of the danger with the buyer’s plant engineer because they claim the extent of the danger and the possibility of the crane falling was obvious, at least to a person occupying the role here played by the plant engineer. We are, therefore, of the opinion that this case presents a jury question as to the sufficiency of the warning under the circumstances, taking into account the question of the obviousness of the danger and the possible assumption of responsibility by the buyer.

In our view, this resolution makes Kendall’s claim that he was entitled to a directed verdict against Cleveland and Bohnert untenable. Hence, we agree with the decision of the Court of Appeals on this phase of the case. Kendall’s argument that the trial court committed error in instructing the jury that if the sole cause of the occurrence was the negligence of Reynolds it should find for Cleveland and Bohnert was rejected by the Court of Appeals. That court held Kendall did not preserve the alleged error for appellate consideration because the source of the instruction was traceable to an instruction tendered to the trial court by Kendall. Kendall asserts that the sole-cause instruction violated House v. Kellerman, Ky., 519 S.W.2d 380 (1974). The giving of such an instruction was disapproved in Kellerman.

Our resolution of this case so far as this issue is concerned will, in our view, present to the jury the only operative issue for determination. The problem will not arise on a retrial.

V

The Questions for the Jury

We substantially agree with the Court of Appeals that this case resolves itself into the adequacy of the warning given by Cleveland and Bohnert to Reynolds, under the circumstances present, and the possible assumption of responsibility by Reynolds. We disagree, however, with the instructions recommended by the Court of Appeals. In substance, the instructions recommended by the Court of Appeals required the jury to first determine whether Cleveland and Bohnert should have foreseen that Reynolds would not see to the installation of bracing sufficient to prevent the breakage of the hanger rods. These instructions then seemed to require that in the event the jury believed Cleveland and Bohnert should have foreseen that Reynolds would fail to make the needed installation, then it was the duty of Cleveland and Boh-nert either to give Reynolds adequate warning of the danger or in the absence of adequate warning “to apply such technology as the jury may believe from the evidence was then available to the defendants to so design the crane system as to prevent the breaking of the hanger rods.”

Under the evidence in this case, we think the warning given to Kittel discharged the manufacturer’s and seller’s responsibility if it was adequate under the circumstances. The warning duty has been deemed satisfied where warning was given to supervising engineers or technicians though not to the one who was injured while simply following the directions of such skilled individuals. 72 C.J.S. Supp. Products Liability § 27, pp. 42, 43, 44. Cf. Ulrich v. Kasco Abrasives Co., supra.

There was no evidence that Cleveland and Bohnert knew or had reason to know that Reynolds was careless or would fail to install the bracing, if it, in fact, agreed to install it. The requirement in the recommended instructions that in the absence of adequate warning Cleveland was to design the crane system to prevent the harm does not conform to the evidence.

Upon a retrial of this case, if the evidence be the same, or substantially similar, the jury should be instructed that it was the duty of the defendants, Cleveland and Boh-nert, to communicate their warning to Kit-tel, the plant engineer of Reynolds, so as to afford to Kittel, as a plant engineer in charge of the maintenance of the crane, fair and adequate notice of the danger and possible consequences of using or even misusing of the equipment, except for those dangers and consequences which the jury believes were obvious to a reasonable plant engineer under the same or similar circumstances as those present in this case. If the jury believes from the evidence that Cleveland and Bohnert gave such fair and adequate warning to Reynolds, or that Kittel, the plant engineer, or Reynolds, agreed to assume the responsibility for the prompt installation of sway bracing the crane, then the law is for the defendants and they should so find; but, unless they so believe, the law is for the plaintiff and they should so find.

The decision of the Court of Appeals is affirmed in part and reversed in part and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

All concur.

      . Cf. Barker v. Lull Engineering Co., Inc., 20 Cal. 413, 143 Cal.Rptr. 275, 573 P.2d 443 (1978). Also see Duvall, “Products Liability,” 6 Tex.Tech.L.Rev. 1177 (1975).


author: STERNBERG, Justice.

text:
    George H. CLEAVER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 3, 1978.
    As Modified Aug. 22, 1978.

      Jack E. Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The present issue before this court is whether the judge of the circuit court in which the appellant was tried and convicted may enter an order reinstating his right to appeal to this court when an appeal had been dismissed by this court after considering and rejecting the same ground on which the right to reinstate it was sought.

In the instant case, the propriety of this appeal has been attacked by the Attorney General’s motion and supplemental motion to dismiss, which on February 15, 1978, we denied. We have, however, determined that jurisdictional questions are involved and have sua sponte reconsidered the motions to dismiss and our order denying dismissal dated February 15, 1978.

In January, 1976, the appellant, George H. Cleaver, was tried in the Johnson Circuit Court for capital murder (KRS 507.-020(2)(b)) and robbery in the first degree (KRS 515.020). The jury returned a verdict of guilty on both counts. On February 5, 1976, a judgment was entered sentencing the appellant to life imprisonment for murder and to 20 years for robbery. The records in this court reflect that the appellant has attempted two appeals, the first is No. SC-141-MR and the second is No. SC-585MR.

The nature and disposition of this case require a brief synopsis of the procedural steps taken by counsel for appellant in each case.

Appeal No. SC-141-MR

The appellant’s original appeal was docketed in this court on January 19, 1977. After one motion to hold this appeal in abeyance, four motions for extensions of time in which to file the record, and three motions for extensions within which to file the appellant’s brief in this court, we dismissed his appeal on September 13, 1977. Thereafter, on September 19, 1977, counsel for appellant filed a motion seeking to have this court reconsider its order of September 13, 1977, dismissing the appeal, giving as one of the grounds for relief ineffective assistance of counsel by his failure to comply with the rules of appellate procedure. After consideration, this court, on October 5, 1977, denied appellant’s motion, and the appeal stood dismissed.

The appellant’s appeal having been dismissed, counsel for the appellant apparently made a motion in the Johnson Circuit Court to reinstate appellant’s right to a direct appeal from his former conviction, wherein he cited his own ineffective assistance as a ground for reinstatement of appellant’s right to appeal. Simply put, counsel admitted that he had rendered ineffective appellate assistance to the appellant which resulted in the dismissal of the appeal by this court without any adjudication on the merits. On October 25, 1977, the Johnson Circuit Court ordered that the appellant’s right to appeal be reinstated.

Appeal No. SC-585-MR

Counsel for appellant undertook to satisfy, for the second time, the procedural steps necessary to perfect and prosecute an appeal (SC-585-MR) from the same judgment from which he had formerly appealed (SC-141-MR). On October 31, 1977, the appellant’s notice of appeal was filed, and on November 30,1977, his statement of appeal was filed in this court. The appeal was redocketed and the appellant made a timely filing of the identical brief that he had tendered late on the first appeal. By his own admission, counsel for appellant claims he was ineffective; however, no one may doubt his tenacity.

The motion made in the Johnson Circuit Court to have the appellant’s right of appeal reinstated is one made under RCr 11.-42. So that it will be perfectly clear that counsel for the appellant intended for the proceeding in the Johnson Circuit Court to be one authorized by RCr 11.42, we lift the following from his “Response to Motion to Dismiss the Appeal” filed herein on January 31, 1978:

“The issue of ineffective assistance of trial counsel has long been recognized in this Commonwealth as a valid ground for a motion under RCr 11.42. * * * This principle of ineffective assistance of counsel applies equally well to an attorney appointed to represent an individual on appeal. * * * Consequently, if a criminal appellant’s right to appeal is forfeited by the critical error of appellate counsel, then that appellant has been denied the effective assistance of appellate counsel in violation of the due process clause. * * *
These were the very principles applied in the Johnson Circuit Court by Judge Hazelrigg. In the Order entered on October 25, 1977, Judge Hazelrigg specifically found that appellant’s ‘right to appeal * * * has not been provided to him because of his appellate counsel’s ineffective assistance; that is, his appellate counsel failed to timely file his brief on appeal and thereby caused the Kentucky Supreme Court to dismiss his appeal.’
Since the Johnson Circuit Court had jurisdiction in this matter under RCr 11.-42 and because there was a specific finding that appellant’s counsel was ineffective, this appeal is properly before this Court. Consequently, appellee’s motion to dismiss must be overruled.”

Counsel for appellant argues, therefore, that the Johnson Circuit Court had jurisdiction to consider and dispose of the motion. As a matter of fact, a RCr 11.42 motion is a resumption or continuation of the criminal proceeding in which the relief is sought. Higbee v. Thomas, Ky., 376 S.W.2d 305 (1964). RCr 11.42 is a post-conviction procedural remedy that vests jurisdiction to grant relief from a prior criminal conviction. Wilson v. Commonwealth, Ky., 403 S.W.2d 710 (1966). This is not, however, of much consolation to the appellant.

First of all, the question of ineffective appellate assistance of counsel was first presented to this court and denied. In his proceeding before the trial judge, the appellant relied on ineffective assistance of counsel, which called for and received a ruling on the same issue that had been disposed of by this court. Amusing as it may seem, that proceeding was in effect an appeal to the Johnson Circuit Court to adjudicate an issue when that same issue already had been disposed of in this court. Appeals usually are in the reverse order. Ineffective assistance of counsel was argued to this court without avail. RCr 11.42 provides no avenue of escape from the order of this court dismissing the appeal. The ingenious argument of counsel for appellant to the contrary, if carried to its logical conclusion, would leave every order of dismissal from this court subject to judicial review by the trial court. Such cannot be the purpose, intent or result of RCr 11.42. A right to a belated appeal, or to reinstate a lapsed appeal, can be granted only by the appellate court that is to entertain it.

Secondly, RCr 11.42 does not confer jurisdiction on a circuit court to reinstate a right of appeal. A proceeding under RCr 11.42 is not primarily a motion to gain the right to appeal; it is primarily an attack on a sentence or judgment that has been entered by the trial court. In the event the grounds for a challenge of the sentence or judgment are proven and it then appears that the movant is entitled to relief, the trial court shall vacate the sentence and judgment and then discharge, resentence or grant movant a new trial, or correct the sentence or judgment, as may be appropriate. From such a proceeding either the movant or the Commonwealth may appeal. The appeal is taken from the final order or judgment entered on the RCr 11.42 motion, not from the judgment or order which is the subject of attack by the RCr 11.42 motion. Sipple v. Commonwealth, Ky., 384 S.W.2d 332 (1964). In the case at bar, the second appeal, as the first, was taken from the judgment of September 13, 1976.

The order of the Johnson Circuit Court dated October 25, 1977, granting the relief the appellant sought discloses that it was made pursuant to appellant’s motion. The record before us does not contain a copy of the subject motion. We have taken the initiative in an attempt to locate the motion and to secure a copy. The clerk of the Johnson Circuit Court advises this court that there is no such motion on file and, as a matter of fact, that no such motion appears on the court’s motion docket. In view of the court’s order stating that a motion had been made and in view of the fact that no motion is on file in the office of the clerk, we can come to only one conclusion, and that is that the motion was verbal.

The procedure for obtaining relief pursuant to the provisions of RCr 11.42 must be complied with. The motion for relief must be in writing, verified by the movant, and state specifically the grounds of challenge and the facts in support thereof. In the instant case, there being no written motion, there could be no compliance with the provisions of RCr 11.42, not even a substantial compliance. It is jurisdictional that the terms and provisions of RCr 11.42 must be complied with, even though a substantial, and not an absolute, compliance is adequate. Therefore, even had RCr 11.42 been an appropriate remedy in this instance, in the absence of an appropriate motion as required by RCr 11.42, the Johnson Circuit Court would not have had the authority to enter an order granting the appellant any relief.

In view of the disposition that is being made of this appeal, we do not reach any of the issues raised by the appellant.

The order of this court dated February 15, 1978, denying the appellee’s motion to dismiss the appeal is set aside and held for naught and the motion to dismiss is sua sponte granted. This appeal is hereby dismissed.

All concur.