Case summaries 9/22/11 Kentucky Supreme Court Opinions

1)    Scott Richard Stanton v. Com., 2010-SC-102
    Todd County, Judge Tyler L. Gill,
Opinion Affirming by J. Abramson, To-Be-Published

    Stanton was convicted of rape 1 and sodomy 1 and sentenced to 20 years  Stanton confessed after a social worker told Stanton that she would seek a court order removing his wife’s children unless he cooperated with her and the police.  Held:  this wasn’t coercion and neither KRS 422.110 nor Lynum v. Illinois, 372 U.S. 528 (1903) were violated because there was probable cause to carry out the threat and the threat was conveyed in a professional manner without threatening words or tone of voice:

“This is so notwithstanding Stanton's bipolar disorder and
his low intelligence, for, as the trial court noted, there was no evidence that the investigators sought to exploit Stanton's limitations or that those limitations prevented Stanton from understanding the situation. Because there was neither wrongdoing by the investigators nor pressure to "cooperate" or to confess so great as to overbear Stanton's will, the trial court did not err by denying Stanton's motion to suppress his statements.”


2)    Thomas York, Sr., v. Commonwealth, 2010-SC-240,
    Kenton County, Judge Martin J. Sheehan
Opinion Affirming by J. Cunningham, To-Be-Published

York was convicted of first degree burglary, first degree robbery and second degree PFO and sentenced to 30 years.
      Defendant’s 5th Amendment rights were not violated by being required to recite a neutral phrase –not the threat made by the burglar--before the jury so that the victim could make an in-court identification of his voice. Proper admonitions cured other errors, thus the defendant was not entitled to a mistrial because of a reference to DNA testing or misstatements about his prior criminal record.

3)    Ronnie D. Walker v. Commonwealth, 2010-SC-409
    Jefferson County, Judge Frederic J. Cowan
Opinion Affirming by J. Abramson, To-Be-Published


  The trial court did not commit palpable error in admitting an interrogation tape containing detective’s accusations that Walker was lying and inconsistent, and other irrelevant comments.   Such remarks would have to be extremely prejudicial to merit exclusion. The trial court’s opening remarks informing the jury how to assess witness credibility were not palpably erroneous.    The burglary instruction did not allow for a non-unanimous verdict.

PRACTICE TIP:  On request a defendant is entitled to an admonishment that comments made by interrogators heard during recorded defendant interviews are solely to provide context to the defendant’s responses.
    Note that the issues regarding detective interrogation remarks and the issue regarding the court’s comments informing the jury how to assess credibility appear to have been close issues, and were unpreserved.  Trial attorneys should raise and preserve these issues for a better chance on appeal.

4)    Linvil Curtis Turpin v. Commonwealth, 2010-SC-550
Casey County, Judge Julia Hylton Adams
Opinion Affirming, by J. Abramson, To-Be-Published

Stating that a twenty year sentence cannot be characterized as grossly disproportionate, the Court upheld a 20-year sentence for possession of a firearm by a convicted felon and first degree PFO.  This did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

5)    Larry Ordway v. Commonwealth,  2009-SC-000479
Christian County, Judge Andrew C. Self
Opinion of the Court (split) Affirming in Part, Reversing in Part
To-Be-Published

The Court reversed nine counts of burglary because the instructions given for the burglary of each of nine individual storage units in one storage building were the same and did not differentiate one incident from another, causing a potential non-unanimous verdict situation. The Court also reversed one theft conviction, holding that the theft of two ATVs at the same time from the same place was a single theft.

Despite the fact that Ordway had been found not guilty of possession of a firearm by a convicted felon in a separate proceeding, collateral estoppel did not bar introduction of evidence that Ordway used a gun during the robbery, because it might have been a different gun.

6)    Reginald Lamont Whittle v. Commonwealth,  2009-SC-787
 Jefferson County, Judge Judith McDonald-Burkman
Opinion by J. Noble, Affirming in Part, Reversing in Part
To-Be-Published

Whittle was convicted of possession of marijuana, trafficking in cocaine, tampering with physical evidence and PFO I, and sentenced to 30 years. Finding a Confrontation Clause violation, citing Crawford, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the Kentucky Supreme Court reversed the trafficking and tampering convictions, but affirmed his conviction for possession of marijuana. 

The Commonwealth failed to call the lab technician who had tested the cocaine.  Another lab tech did testify, but he had not performed the test and the actual report was introduced. The Court rejected an argument by the state that Melendez-Diaz (and presumably also Bullcoming) did not apply retroactively. The Court also indicated the report would not have qualified as a business record for hearsay purposes. The Court urged that the prosecutor should make sure to introduce sufficient proof to prove the PFO count on retrial.


7)    James Demetrius Mullins v. Commonwealth, 2010-SC-000263
 Fayette County, Judge James D. Ishmael
Opinion by J. Noble, Affirming in Part, Reversing in Part

Murder (30 years), tampering with physical evidence (5 years) and PFOI-35 years.

The Court reversed the tampering conviction.  The client allegedly had a gun during the crime, fled, and the gun was never found. The police never looked in the logical places the gun could have been, and waited five months to search the crime scene for the gun. The Court said it was reasonable to infer when the defendant fled, he was trying to get away, not to conceal the weapon.

Defendant waived his right to argue entitlement to an EED instruction on appeal.  Instead of simply failing to ask for the instruction, counsel stated affirmatively that he didn’t want the instruction, and said there was “no EED.”   

8)    Commonwealth Of Kentucky v. Angela Peters, 2010-SC-74
Shelby County, To Be Published
Opinion by J. Schroeder, reversing Court of Appeals (writ case)

  Overruling the Court of Appeals and upholding a circuit court order prohibiting the district court from ordering the arresting officer to attend an informal pre-trial conference to be interviewed by the defense.  A witness, even a police officer, has the right to refuse to answer questions by the defense or the prosecution before trial, citing United States v. Medina, 992 F.2d 573, 579 (6th Cir. 1993).

9)    Kenneth Jones v. Commonwealth Of Kentucky, 2009-SC-000221
Carlisle County, Hon. Timothy A. Langford
Opinion by J. Schroeder, Reversing and Remanding, To Be Published

The “no duty to retreat” language of KRS 503.055 applies only to the defendant asserting a self- defense claim, not to the victim.  The trial court erred in giving a “no duty to retreat” instruction regarding the victim’s conduct
Jones was asked to characterize the testimony of a jailer and a detective, and  the Court cautioned the trial court not to allow the prosecutor commit these Moss violations on retrial.

Contributed by Susan Balliet

The “Right-to-Counsel Term” - ACS Issue Brief

"The 'Right-to-Counsel Term',” an Issue Brief by Mary Schmid Mergler, Senior Counsel for the Criminal Justice Program at The Constitution Project, and Christopher Durocher, Government Affairs Counsel at The Constitution Project. In an increasingly complex criminal justice system, often defined by a disproportionate number of plea deals and the procedural hurdles of the appeals process, respecting the right to counsel afforded by the Sixth Amendment is essential for a fair and just system.

In “The Right-to-Counsel Term,” Mergler and Durocher preview the five cases before the Supreme Court in the 2011-2012 Term where the reach of the Sixth Amendment’s right to counsel will be considered. These cases present an opportunity for the court to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” assert Mergler and Durocher. Such recognition is necessary, Mergler and Durocher argue, to take “steps in the direction of true justice.”

No Place for Kids: The Case for Reducing Juvenile Incarceration - Casey Foundation Report

The Annie E. Casey Foundation released No Place for Kids: The Case for Reducing Juvenile Incarceration, which examines the detrimental impact of America’s over-reliance on incarceration of youth in an in-depth analysis of its effect on youth and public safety. Combining research, data and testimony, the analysis shows that America’s reliance on incarcerating young offenders has not only failed to combat youth crime but also that reducing these rates and closing facilities does not increase juvenile crime rates. Juvenile incarceration facilities:

 •                    Do not reduce future offending of confined youth: Within three years of release, roughly three-quarters of youth are rearrested; up to 72 percent, depending on individual state measures, are convicted of a new offense.

 •                    Do not enhance public safety: States which lowered youth confinement rates the most saw a greater decline in juvenile violent crime arrests than states which increased incarceration rates or reduced them more slowly.

 •                    Waste taxpayer dollars: Nationwide, states continue to spend the bulk of their juvenile justice budgets – $5 billion in 2008 – to confine and house young offenders in incarceration facilities despite evidence showing that alternative in-home or community-based programs can deliver equal or better results for a fraction of the cost.

 •                    Expose youth to violence and abuse: Nearly 50 percent of states have been sued in the last decade alone for persistent maltreatment in at least one of their institutions.  One in eight confined youth reported being sexually abused by staff or other youth and 45 percent feared physical attack according to reports released in 2010.

The report highlights best practices that some states have implemented as alternatives to incarceration. 

 For a copy of the full report, press release and issue brief, visit: http://www.aecf.org/noplaceforkids.

9/16 Court of Appeals - Martin - Faretta hearing & Court Costs

Martin v. Commonwealth

10-CA-322 and 10-CA-1905

9/16/11 Court of Appeals opinion - To be published.

The Court of Appeals held the trial court should have held a Faretta hearing when: the client filed pre- and post-trial pro se motions; the trial court ruled on many of those motions; and the client was also receiving benefit of appointed counsel. By ruling on the pro se motions, the court treated Martin as a pro se litigant.  Accordingly, the court should have conducted a hearing, given the warnings required pursuant to Faretta, and made a finding that his waiver was voluntary and intelligently made. The Court’s failure to do so is reversible error.

 In a 2-1 decision, this panel also distinguished Travis and held that court costs were properly imposed as a condition of probation.  This panel found that the defendant had asked to be released from custody so he could work to support his family and that he was released on probation.  Based on his stated ability to work, the imposition of court costs was not a manifest injustice.  This issue was not preserved at the trial level, so it was reviewed under the palpable error standard.  If this is an issue important to the client, raise an objection to improve the odds of winning on appeal.

Contributed by Robert Yang

WAVE TV story on Kentucky Innocence Project client Kerry Porter

LMPD detective looks into inmate's innocence claims

Porter will tell anyone who will listen that he's "actually innocent," which doesn't make him any different from most inmates at the Eastern Kentucky Correctional complex except that since 2006, Porter has the Kentucky Innocence Project working his case.

"They believed in me pretty much from the very beginning," Porter said. "You can kind of see when people believe in you and support what you're saying."

The Innocence Project and the Department of Public Advocacy have a pretty good working relationship with Louisville Metro Police Department detective, Sergeant Denny Butler.

"Their credibility is sort of on the line too," Butler said. "They're not going to call us every day saying, 'Hey we've got another person claiming they're innocent.'"

NY Times article on the power of prosecutors in the criminal justice system

Sentencing Shift Gives New Leverage to Prosecutors

excerpt -

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. It also limits cases that require considerable time and expense in court.

But many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.

Martin - KY Court of Appeals 9/16/11 - Probation Revocation & Court Costs

Martin v. Commonwealth, 2010-CA-000322-MR and  2010-CA-001905-MR

To Be Published - OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Mr. Martin was charged with Burglary in the Second-degree.  He was found guilty and was placed on probation, which was later revoked.  The appeal of the conviction and that of the revocation were consolidated on appeal. 

Martin attacked his conviction by alleging that the Fayette Circuit Court had erred by not conducting a Faretta hearing prior to accepting, and ruling upon, pro se pleadings.  The Court agreed, but, interestingly, held that the Faretta violation did not impact the later revocation of probation, holding the revocation was not error. 

The majority also found no error in the imposition of court costs on Mr. Martin, an indigent as he had argued for probation “in order to maintain employment and to support his family.”  Dissenting, Judge Taylor argued that no distinction should be made between imposition of court costs on probated vs. no-probated indigents.

Contributed by Linda Horsman

Bell - KY Court of Appeals 9/16/11 - KRE 412

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Bell v. Commonwealth, 2009-CA-002109 Not to be published

REVERSING IN PART, AFFIRMING IN PART, AND REMANDING

 After a Petition for Rehearing was filed by the Commonwealth in response to the first Bell Opinion issued in May 2011, the Court granted the Petition and modified their Opinion.  In Bell I, the COA held that the trial court erred in excluding under KRE 412 evidence that the complaining witness, who alleged having been raped, sodomized and assaulted by Bell, had a history of drug use, particularly since the defense forwarded by Bell at trial involved a consensual exchange of sex for drugs. The COA, in Bell II, held that the error only affected the charges of sodomy and rape, but did not impact the findings of guilt on assault or tampering with physical evidence.  There were two dissenting opinions: 

Judge Combs dissented, arguing that the drug history information was not admissible and its exclusion was not error. Reasoning that KRE 412 seeks to protect victims of sexual assault from allegations of immoral behavior which justify the assault, Judge Combs argued that a “quid pro quo” allegation of sex for drugs was the type of evidence contemplated by KRE 412. 

Judge Moore also dissented, holding that the majority correctly found that the evidence did not meet the bar of KRE 412 and further holding that the trial court’s error of excluding the evidence impacted not only the sodomy and rape convictions, but also the assault and tampering convictions.  “However, because the underlying allegations that lead to these charges are so entwined, I believe the United States Constitution requires granting a new trial on all of the charges, to allow Bell to present his full defense theory to the jury on all of the charges, rather than just on the sodomy charge.”  Dissent of Judge Moore at 18.

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Contributed by Linda Horsman

AJS - A Test of the Simultaneous vs. Sequential Lineup Methods

Cover Image of Report

The analysis of over 850 lineups collected across four sites: the Austin (TX) Police Department, the Charlotte-Mecklenburg (NC) Police Department, the Tucson (AZ) Police Department, and the San Diego (CA) Police Department has been completed. 

To view the report, click here. 

To see a list, prepared by the Innocence Project, of jurisdictions that conduct double-blind sequential lineups, click here.

The initial report follows a landmark decision by the New Jersey Supreme Court (State vs. Larry R.  Henderson) requiring changes in the way courts evaluate eyewitness identification evidence at trial and how juries should be instructed.  The decision takes into account over 30 years of eyewitness identification and memory research. 

Dr. Gary L. Wells, Director of Social Sciences for the AJS Center of Forensic Science and Public Policy and the principal investigator of the EWID Field Studies, was recently interviewed by the New York Times in response to the Supreme Court decisions and the implications it may have on police lineup investigative techniques.  A copy of the article, “Police Lineups Start to Face Fact: Eyes Can Lie,” is available here

Study aims to alter the way police conduct lineups  by Nedra Pickler

A new study says those lineups you see on television crime dramas and often used in real-life police departments are going about it all wrong.

The study released Monday by the American Judicature Society is part of a growing body of research during the past 35 years that questions the reliability of eyewitness identifications under certain circumstances. That research has been taken more seriously in recent years with the evolution of DNA evidence clearing innocents of crimes they were convicted of committing, often based on eyewitness testimony.

The new study finds witnesses should not look at a group of people at once to pick a perpetrator. Instead, they should look at individuals one-by-one with a detective who doesn't know which is the real suspect - known as a double-blind lineup to avoid giving witnesses unintentional cues - preferably on a computer to ensure appropriate random procedures are used and to record the data.

The study found witnesses using the sequential method were less likely to pick the innocents brought in to fill out the lineup. The theory is that witnesses using the sequential lineup will compare each person to the perpetrator in their memory, instead of comparing them to one another side-by-side to see which most resembles the criminal.