Matthew Derry v.  Com. of Kentucky
(258)
Criminal:  Double Jeopardy 
Questions Presented:  Criminal Law. Double Jeopardy. Issues include whether, after the Commonwealth had completed questioning of three witnesses at a jury trial but the case then was dismissed because the alleged offenses occurred in another county, reprosecution for the same occur in the second county. 
2006-SC-000181-DG.pdf
PUBLISHED:  AFFIRMING
OPINION BY Noble;  Minton, Scott concur in result only
Metcalf – Judge Phillip Patton
Date Rendered: 12/18/2008

Derry was indicted on charges of rape, sodomy, and sexual abuse in Barren County. After the jury was sworn and testimony had begun, it was determined that the house where the crimes were alleged to have occurred was actually located in Metcalfe County. The trial court granted the defense’s motion for a mistrial and told the jury that the mistake
about the location required that the case be dismissed without prejudice. Derry was re-indicted in Metcalfe County and subsequently entered a conditional guilty plea. On appeal, Derry argued that since the prosecution at his first trial could not prove the crime's jurisdictional element of venue, the dismissal was the functional equivalent of a directed verdict, and double jeopardy barred retrial. Derry further argued that there was no manifest necessity for a mistrial since the trial could have continued in Barren County. The Supreme Court affirmed the conviction, holding that under Scott, double jeopardy is not violated when a mistrial is the result of the defendant’s motion and does not turn on issues of guilt. 

The Court noted that venue is not a necessary element of a criminal offense and included a discussion of the concepts of “vicinage,” “venue,” and “jurisdiction.” Section 11 of the Kentucky constitution provides that criminal defendants shall receive a “speedy trial by an impartial jury of the vicinage.” Vicinage refers to the “area surrounding the crime scene” and is geared more towards allowing jurors to have familiarity with the location of a crime and is not intended to dictate the place of trial. Venue, as the law currently exists, is the statutory prescription where a case must be tried. Under KRS 452.650, venue is deemed to be waived by the defendant’s failure to make a motion to transfer to the proper county prior to trial. Venue is not jurisdictional, and circuit courts of the Commonwealth are “never without jurisdiction to preside over the prosecution of offenses committed in Kentucky.” The Supreme Court concluded that Derry, at most, enjoyed a statutory right to be tried in the county where the crime occurred—a right he waived by failing to raise the issue prior to trial. 

Digest from SC Case Monthly Summary Report
for December
2008