Commonwealth v. Grider, ___ S.W.3d ___ (Ky. App. 2012) To be published.
The Circuit Court dismissed the indictment against Grinder with prejudice. This was proper because the Commonwealth shifted its theories of criminal liability at the trail from those listed in the indictment. The indictment alleged Grinder had billed Medicaid for one drug while dispensing another less expensive drug. In opening statement, the Commonwealth said the crime was that Grinder violated Medicaid’s administrative regulations requiring pre-authorization to be reimbursed for specific drugs. Because the jury had already been seated, the trial court could dismiss the indictment under RCr 6.12 because Grinder’s substantial rights were prejudiced; on top of shifting its theory of criminal liability, the Commonwealth had also failed to provide a bill of particulars detailing the circumstances of the crime despite being ordered to multiple times and had failed to disclose exculpatory evidence until a few days before trial which contained too much information to fully analyze in a few days.
Contributed by Brandon Jewell
