CRIMINAL: JOHNSON V. COMMONWEALTH (COA 1/12/2007)

JOHNSON V. COMMONWEALTH
CRIMINAL:  Prosecutorial misconduct; grand jury testimony
2005-CA-002361
PUBLISHED: REVERSING AND REMANDING; WINE
DATE RENDERED: 1/12/2007

Appellant’s counsel moved to recuse the local prosecutor for prosecutorial misconduct alleging the commonwealth attorney had improperly tried to influence the local population and potential venirepersons.   The commonwealth attorney moved for a change of venue alleging that the local sheriff would sway the jurors against the commonwealth attorney and that pre-trial publicity would make it difficult for the Commonwealth to receive a fair trial. After a hearing, to which opposing counsel objected to the respective motions, the trial court denied both motions.

The action of the commonwealth attorney in providing the press release was motivated by his dissatisfaction with the local sheriff.  Unfortunately, such action had the potential of depriving the appellant of his right to a fair and impartial jury. However, the appellant can point to no actual prejudice, no juror on the final panel had advised they were aware of or influenced by the story, and finally the story was not part of the evidence presented at trial. 

Furthermore, COA held it was error to admit defendant’s grand jury testimony at his trial.  Grand jury’s authority to investigate does not include compelling a person to testify against himself.

Digested by Michael Stevens

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