Request By:
Everett Kidd, Jr.
Chief of Police
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the following questions:
"Does a County Judge have the authority to order a City Police Department to turn over to the County Attorney all evidence which the City Police Department's investigative officers have collected in its investigation of a murder; the said City Police Department having jurisdiction to investigate said murder, from the commencement of its investigation and continuing thereon to be held by the County Attorney Office? Does the City Police Department have to abide by this order or should all evidence collected by the City's investigative officers be held by them and the Police Department until the trial of said murder realizing that the said investigative officers are to keep the County Attorney informed as to all evidence collected and any other information relating to the officers' investigation. Further, does a County Judge have the authority after ordering delivery of this evidence from the Police Department to the County Attorney Office have the authority to order the Police Department to cease its investigation and drop the case completely?"
A county judge does not have the authority to require a police department to turn over evidence in a murder investigation to the county attorney or to cease its investigation of a crime. The responsibility for prosecuting criminal cases is placed by law upon the Commonwealth's Attorney by KRS 69.010. In Subsection (2)(b) of said statute it is stated as follows:
"He shall have the duty to prosecute all violations of the criminal and penal laws which are to be tried in the circuit court in his district. In addition, he shall have the duty to prosecute any preliminary proceedings of such violations including, but not necessarily limited to the duty to prosecute preliminary hearings wherever held and the duty to present evidence to the grand jury concerning such violations. . . ."
A county attorney was no power in connection with the prosecution of criminal cases except in a police or quarterly court or with the consent of the Commonwealth's Attorney. KRS 69.210.
A county judge who attempts to interfere in the prosecution of the criminal case shall be subject to indictment or prosecution for misfeasance or malfeasance in office under Section 227 of the Kentucky Constitution. He may also be in violation of the statute of abuse of public office as condemned by KRS Chapter 522, a part of the new Penal Code. KRS 522.020 reads as follows:
"(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:
"(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions: or
"(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
"(c) Violates any statute or lawfully adopted rule or regulation relating to his office.
"(2) Official misconduct in the first degree is a Class A misdemeanor."
There is also a statute forbidding any person from tampering with physical evidence in a pending official proceeding under the Penal Code. KRS 524.100. Tampering with physical evidence is a Class D felony. Conviction of malfeasance in office vacates the office. Kentucky Constitution, § 227.
A police department which is interfered with in the investigation of a crime should report the matter to the Commonwealth's Attorney, the grand jury or the Attorney General. (House Bill 17, Extraordinary Session 1976, effective January 1, 1978.)