# Cardine v. Commonwealth

> Kentucky Supreme Court · January 22, 2009 · 283 S.W.3d 641

URL: https://www.frixlaw.com/law-library/cases/9689531

## Case

- **Full name:** Eddie CARDINE; And Michael Curry, Appellants, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** January 22, 2009
- **Citations:** 283 S.W.3d 641; 2009 Ky. LEXIS 7; 2009 WL 160357
- **Precedential status:** Published
- **Opinion:** Dissent by Cunningham
- **Judges:** Noble, Minton, Schroder, Venters, Cunningham, Scott, Abramson
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689531

## How later opinions describe it (automated extraction)

- holding that a defendant is not required to object to a mistrial, but silence can be considered consent only if “the surrounding circumstances positively indicate[] this silence was tantamount to consent”
- holding KRS 505.030(4) unconstitutional and citing Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) for proposition that jeopardy attaches when the jury is em-panelled and sworn
- stating that “double jeopardy violations can be addressed as palpable error because the nature of such errors is to create manifest injustice”
- stating “double jeopardy violations can be addressed as palpable error because the nature of such errors is to create manifest injustice[]”
- finding no adequate remedy by appeal where defendant claimed second trial was barred by double jeopardy

## Opinion text

Dissenting Opinion by
Justice CUNNINGHAM.
I respectfully dissent from the well-written opinion of Justice Noble.
By the entering of the mistrial, Appellants received the continuance each requested. The trial court was faced with the option of not allowing the Commonwealth to call a last minute witness or the option of granting a continuance. The Commonwealth insisted that the newly discovered witness was critical because he was a disinterested third party and the only person, other than the victims of the shooting, who could put a gun in the hands of Curry. The Commonwealth argued that the witness was crucial and the ends of justice required that he be allowed to testify. According to the brief of Appellant, Cardine, even the trial court thought the witness was important to both the defense and the prosecution. Both defense counsels argued for exclusion, or in the alternative, a continuance. The trial court instructed the attorneys to talk to the witness to see if the matter could be resolved. The matter could not be resolved, and the court was faced with having to either exclude the critical evidence or continue the trial. The court was then advised by at least one defense counsel that a twenty-four hour continuance would not be sufficient.
In addition to jeopardizing other cases that were on the docket, as well as having a sworn jury out on recess for several days, the court decided that a mistrial was the best solution. Other judges may have handled the situation differently. But under the difficult circumstances, this trial judge did what she thought protected the interests of both parties. Her actions were reasonable, and the trial court did not abuse its discretion in finding manifest necessity and declaring a mistrial. The ancient protection against twice being *654 placed in jeopardy of a criminal prosecution is intended to protect the abuse of individuals from arbitrary power of the state. It was never intended to be a gratuity to criminal defendants when the judiciary, in good faith, blunders.
SCOTT, J., joins this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689531. Public record. Not legal advice.