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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED: APRIL 26, 2012 NOT TO BE PUBLISHED

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2011-SC-000386-MR JOHN CARLOS COMBS APPELLANT

V.

ON APPEAL FROM COURT OF APPEALS CASE NO. 2011-CA-000600-MR PERRY CIRCUIT COURT NO. 10-CR-00001

HON. JOHN DAVID CAUDILL (ESPECIAL] JUDGE - PERRY CIRCUIT COURT) AND COMMONWEALTH OF KENTUCKY

APPELLEES

MEMORANDUM OPINION OF THE COURT AFFIRMING John Carlos Combs filed a petition for writ of mandamus with the Court of Appeals, seeking an order to compel the Perry Circuit Court to grant his motion for payment of expert witness fees. The Court of Appeals denied Combs's petition; and he now appeals, arguing that (1) a writ of mandamus is appropriate because the trial court acted erroneously, he has no alternative adequate remedy, and great injustice and irreparable harm will result if his petition is denied; and (2) either the trial court must award him expert witness funds under Kentucky Revised Statutes (KRS) Chapter 31, or KRS Chapter 31 violates his due process and equal protection rights under the state and federal constitutions. On review, this Court affirms.

I. FACTUAL AND PROCEDURAL HISTORY. The grand jury indicted Combs for murder, first-degree burglary, tampering with physical evidence, and third-degree terroristic threatening. The Commonwealth filed a notice of intent to seek the death penalty against Combs in connection with these charges. Before Combs's indictment, the district court determined that Combs was needy and indigent; and he was originally represented by the Department of Public Advocacy (DPA). 1 But Combs's family later hired a private defense attorney to represent him and partially paid the fees for a venue expert and an expert psychologist. The family is unable to discharge the remaining balance of the expert witness fees. Nor can they pay the fees necessary for a mitigation expert, investigator, or a ballistics expert, all of whom Combs claims are necessary to prepare an effective and meaningful defense in his capital trial. Combs filed a motion asking the trial court to declare him indigent for purposes of the costs associated with retaining expert witnesses. The trial court denied Combs's motion based on precedent from this Court in Morton v. Commonwealth. 2 And Combs filed a petition for a writ of mandamus, asking the Court of Appeals to require the trial judge to award him expert witness

1 Because this is a petition for writ, the Court does not possess the portion of the record necessary to verify that the district court found Combs indigent or that he was originally represented by the DPA. But the Commonwealth does not take issue with these facts. And in its order denying Combs's motion for expert witness fees, the circuit court agreed that Combs is indigent.
2

817 S.W.2d 218 (Ky. 1991). 2

fees. 3 The Court of Appeals denied the petition, finding that Combs has an adequate remedy on appeal for the trial court's alleged error. II. ANALYSIS. When deciding a petition for writ, the Court must first determine whether this extraordinary remedy is appropriate. 4 If the remedy is not available, the petition must be dismissed. 5 And we review the Court of Appeals's denial of a writ of mandamus for abuse of discretion. 6 Only if a writ is appropriate will the Court look to the merits of the petitioner's claim and decide whether the trial court erred.? The Writ of Mandamus is Not an Available Remedy. Combs argues that a writ of mandamus is available here because the trial court is acting - erroneously, there is no adequate alternative remedy, and great injustice and irreparable injury will result if his petition is not granted. We disagree and find that a writ is inappropriate because Combs has an adequate remedy on appeal for the trial court's alleged error.

3 Combs also filed a motion for immediate relief under Kentucky Rules of Civil Procedure (CR) 76.36(4), asking the Court of Appeals to either require the trial court to award him expert witness fees or enjoin the Commonwealth and the trial court from proceeding with his trial until full adjudication of his petition for writ of mandamus. Before the court ruled on the emergency motion, the trial court continued Combs's trial. So the Court of Appeals dismissed the motion as moot. 4 5 6 7

Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). Id. Estate of Cline v. Weddle, 250 S.W.3d 330, 335 (Ky. 2008) (citation omitted).

Bender, 343 S.W.2d at 801; See also Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky. 2004) ("[Olnly after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue.").

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The writ of mandamus is an extraordinary measure that Kentucky courts "have always been cautious and conservative both in entertaining petitions for and in granting . . . . This careful approach is necessary to prevent shortcircuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other courts." 8 9 and there Whetroisuare awlyenthCour'sdic, limited circumstances in which the Court will do so. A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside ()fits jurisdiction and there is no remedy through an application to an intermediate court;.or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. 1

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