COM. KY V. MCKENZIE
CRIMINAL: Indictment Amendment
PUBLISHED: REVERSING; SCOTT WITH MINTON NOT SITTING
DATE RENDERED: 2/22/2007
SC reversed CA and reinstated Defendant’s conviction for Third Degree Burglary by Complicity. SC found that Defendant suffered no unfair surprise and was not misled as a result of the original indictment being amended at the close of the Commonwealth’s case in chief to include a charge that the underlying offense was committed by complicity. RCr 6.16 permits the circuit court to amend an indictment, information, complaint, or citation "any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced ." See McPherson v. Commonwealth, 171 S.W.3d 1, 2 (Ky.2005). Amending the indictment to include an allegation that the defendant is guilty of the underlying charge by complicity does not constitute charging an additional or different offense. To the extent that Brown v. Commonwealth, 498 S.W.2d 119 (Ky. 1973) and its predecessors hold that it is per se prejudicial to the substantial rights of a defendant to amend an indictment during trial to add a charge that the underlying crime was committed by complicity, they are overruled.
Digested by Scott Byrd