Featured Case - Lowe - Notice of Appeal & Lesser Included for Assault 2nd

Lowe v. Commonwealth, 10-CA-619-MR (unpublished):

  • The Court noted that the notice of appeal which indicated the appeal was taken from a date prior to even the date of the crime was patently erroneous.  “The failure to properly state the order being appealed from could prove fatal to an appeal.”  Thus, trial attorneys need to be careful that notices of appeal and supporting documents are correct.  “[C]ounsel is cautioned to take appropriate measures to ensure such errors do not occur in the future because sanctions may be imposed under different or more egregious circumstances.”
  • The trial court should have instructed on assault 4th degree as a lesser included offense to assault 2nd where there was a factual question as to whether there was serious physical injury.  The trial court should not have determined as a matter of law that the victim’s injuries constituted a “serious physical injury.”  The extent of injury is a question of fact for the jury to decide. 

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately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 Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

Contributed by Emily Rhorer

Unlocking America: Why and How to Reduce America's Prison Population

This report published by The JFA Institute shows "that incarcerating large numbers of people has little impact on crime" and that the "improper use of probation and parole increases incarceration rates while doing little to control crime" (p. 2). This publication is divided into seven parts: crime rates and incarceration; three key myths about crime and incarceration; the limits of prison-based rehabilitation and treatment programs in reducing the prison population; decarceration, cost savings, and public safety; six recommendations; and concluding remarks.

Unlocking America: Why and How to Reduce America's Prison Population (November 2007)

 

Featured Case - Brewer - DUI 2nd enhancement

Commonwealth v. Brewer, 09-CA-873-DG (unpublished):  While unpublished, this is still an important case.  In this Commonwealth appeal, the Court of Appeals affirmed the circuit court’s vacating of a district court conditional plea to DUI 2d because under Commonwealth v. Beard, 275 S.W.3d 205 (Ky.App. 2008), a person cannot be convicted of DUI 2nd if he was not convicted of the first DUI before committing the second DUI.

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published 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.

Contributed by Emily Rhorer

Featured Case - Barker - Self-defense instruction

Barker v. Commonwealth, 2009-SC-794 (June 16, 2011) (published)-

The Supreme Court found palpable error due to the erroneous wording of the provocation qualifier of a self-defense instruction. A defendant forfeits his right to the defense of self-protection when (1) the defendant had the intention of causing serious physical injury to the victim; and (2) the defendant must actually provoke the victim to use physical force. In this case, the provocation qualifier failed to include the element requiring the defendant to provoke the victim with the intent to cause death or serious physical injury to him. 

The instruction given -

Provided, however, that if you believe from the evidence beyond a reasonable doubt that Adam Anthony Barker provoked Zachary Scarpellini and/or Shawn Reilly to use or attempt to use physical force upon the defendant, Adam Anthony Barker, and that they did so with the intention of causing death or serious physical injury to Adam Anthony Barker, then the defense of self-protection is not available to him.

The Kentucky Supreme Court  -

The instruction given in this case is fatally flawed because it fails to properly set out the elements of the statute. It lacks the statutory element requiring Appellant to provoke the victim with the intent to cause death or serious physical injury to him . Instead, the instruction requires that Zachary Scarpellini and/or Shawn Reilly have the intent to cause death or serious physical injury to Appellant. The provocation exception, under KRS 503.060(2), is concerned with the defendant's state of mind, not the victim's.

Contributed by Shannon Smith

Fundamentals of Evidence-Based Policy-Making

Evidence-based policy-making is an attempt to identify and adopt policies scientifically proven to achieve desired results.  In the area of criminal justice, the ultimate goal is to reduce crime while at the same time reducing spending.  Believe it or not, this has been accomplished in many states.

So what are the fundamentals of evidence-based policy making in the criminal justice system?  What principles result in less crime at lower cost? Here they are:

  • Sort offenders scientifically by risk – Save the expensive jail and prison space for people who are statistically high risk.  In bond decisions, sentencing decisions, and parole board decisions, seek to avoid incarceration of low and moderate risk individuals and adopt community-based alternatives instead.
  •  Base intervention programs on science – Literally thousands of programs all over the country have been studied and evaluated for their success in reducing things such as failure to appear, committing new crimes while out on bail, and recidivism after re-entry into the community.  The research is ample and best practices are being identified.  Just as an example, the research is clear that most programs need to invest more in supervision of people identified as high risk and less in supervision of low and moderate risk individuals.  Implementation of evidence-based practices results in average decrease in crime of 10 to 20 percent.
  • Harness technology – Technological innovations have made supervision of people before trial, on probation, or on parole, much easier and effective.
  • Make sanctions for violations certain and proportionate – Probation officers with high caseloads, a lack of a range of appropriate sanctions, and who have to go through administrative hurdles to get a sanction imposed,  often delay seeking sanctions until a really serious offense has been committed.  HB 463 introduces a mandate for graduated sanctions to be imposed on those who violate probation or parole and gives courts the ability to grant probation officers the authority to impose those sanctions without prior approval of the court for each violation.  This reduces delay, reduces time probation officers have to spend in court, and reduces time violators spend in jail.
  • Measure progress – Ways must be identified and adopted to measure progress throughout the entire criminal justice system.  Which jails, prisons are saving money?  What is happening to the recidivism rate?  Which circuits or districts are reducing failure to appear among those released prior to trial?  How many more people are paying restitution?  How many more people are completing treatment in community-based services rather than being incarcerated? 
  • Create incentives for success -  HB 463 contains provisions for creating incentives for success at many levels – that of the individual probationer or parolee, of a circuit or district court, of statewide programs.

For  a more extensive discussion of these principles and their use see the Kentucky Task Force on the Penal Code and Controlled Substances Act Report

Contributed by Glenn McClister

Featured Case - Mullikan - Evidence regarding priors in penalty phase

Mullikan v. Commonwealth, 09-SC-519 (June 16, 2011) (published)-

The Supreme Court found reversible error in the penalty phase when a police officer, without personal knowledge of the incidents, told the jury numerous facts about the client’s prior felony offenses, in excess of that allowed for showing the “the nature of the offenses” in KRS 532.055.

The Court noted it had previously failed to provide a workable definition for that phase. It held that “evidence of a prior conviction is limited to conveying to the jury the elements of the crimes previously committed.” The Court also said the trial court should avoid identifiers that might trigger the memory of jurors who may have knowledge of the prior crimes.

It seems to us that the nature of a prior conviction is closely akin, if not identical to, the definition of a prior conviction . In Robinson, this Court went to great lengths in attempting to define the "nature of prior offenses ." The Court seemed to settle upon "description of a general character" as being as far as is allowed in dealing with these prior crimes . Therefore, we hold today that the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed . We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge . The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i .e ., the burglary was of a building as opposed to a dwelling . The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may--especially in rural areas-have prior knowledge about the crimes .


Contributed by Shannon Smith 

Featured Case - McDaniel - Jury Strikes and Investigative Hearsay

McDaniel v. Commonwealth, 09-SC-443 (June 16, 2011) (published)

The Supreme Court held it was reversible error for the trial court to fail to strike two jurors  for cause, depriving the client of two peremptory challenges. The Court noted the issue was properly preserved under Gabbard. One juror worked with the murder victim’s wife, who was also charged, and the other who worked with the victim previously and liked him. Neither juror could say unequivocally they could be fair and impartial. Very nice language in this case about the importance of an impartial jury and that “equivocal” is not good enough.  

The failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an unbiased jury, is the denial of a substantial right, and we hold that a trial court abuses its discretion when it seats a juror who is truly equivocal with regard to his or her ability to render an impartial judgment. Under Shane and Paulley equivocation is simply not good enough. Shane, 243 S .W.3d at 339; Paulley, 323 S.W.3d 715 . The substantial right recognized in those case provides no room for a trial court to seat a juror who is not sure whether he can provide both sides with a level playing field . A juror's statements and demeanor must support the trial court's decision to seat him, given the totality of the circumstances . To do less would give defendant's a substantial right "with one hand and take [it] away with the other." Shane, 243 at 339 . Therefore, because these two jurors could not state that they possessed the ability to be fair and impartial we hold that the selection process was not fair in this case. We reiterate that "a trial is not fair if only parts of it can be called fair." Id.

The Court also ruled that the police chief offered investigative hearsay when he repeated what other charged defendants had told him about McDaniel’s involvement.

 Contributed by Shannon Smith

SCOTUSblog - Review of the US Supreme Court’s Fourth Amendment cases

The Supreme Court heard oral argument in five Fourth Amendment cases in the recently completed Term.   The Court dismissed one case as improvidently granted and didn’t reach the merits of the Fourth Amendment issue in a second case.  In the three cases that did reach the merits, however, the government’s side readily won: 8-0, 8-1, and 7-2.   Justice Alito wrote two of the three majority opinions, and Justice Scalia wrote the third.

Click here for complete SCOTUS blog post by Orin Kerr

Featured Case - Meece - KRE 410’s exclusion of statements made during the course of plea discussions

William Meece v. Commonwealth, 2006-SC-881 (June 16, 2011) (published)

In a 177 page opinion that found 20 errors harmless, the Supreme Court affirms the defendant’s convictions and death sentences.  The Court holds, among other things, that KRE 410’s exclusion of statements made during the course of plea discussions applies only to statements before the signing of a written plea agreement, and then only if they fit within a standard the Court sets out in its opinion.  The Court professes not to have overruled Roberts v. Commonwealth, 896 S.W.2d 4 (Ky. 1995), which had included statements made as part of the “quid pro quo” of the agreement under KRE 410’s exclusion, in order to avoid violating the defendant’s right to due process of law.

Relying upon United States v. Robertson, 582 F .2d 1356, 1365 (5th Cir.1978), we defined plea discussions as "discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions ." Roberts, 896 S .W.2d at 5 . In addition, we adopted the two-prong test set out in Robertson to be applied by the trial court in determining whether a discussion is a plea discussion, to wit:

1 . Whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion
AND
2 . Whether the accused's expectation was reasonable given the totality of.the objective circumstances .

Roberts, 896 S.W .2d at 6 (citing Robertson, 582 F.2d at 1366) . "To determine whether a discussion should be characterized as a plea negotiation and as inadmissible, the trial court should carefully consider the totality of the
circumstances." Robertson, 582 F.2d at 1366 . "[U]nder a totality of the circumstances approach, an accused's subsequent account of his prior subjective mental impressions cannot be considered the sole determinative factor." Id. In this respect, we noted that "[t]he intent is to protect the accused's subjective expectations while protecting against subsequent, selfserving claims by the accused ." Roberts, 896 S .W.2d at 6 . Given that the appellant in Roberts accepted the Commonwealth's plea offer by the sole act of then giving the statement concerning his participation in eight of the robberies, we held his statement met the two-part test established in Robertson and was a statement "made in the course of plea discussions" and was therefore protected by KRE 410. Roberts 896 S.W.2d at 6 .

Contributed by Shannon Smith

Kentucky News Roundup

Five myths about Americans in prison - Lexington Herald-Leader and others

No country on Earth imprisons more people per capita than the United States. But for America, mass incarceration has proved a losing proposition. The Supreme Court recently found California’s overcrowded prisons unconstitutional, and state legislators want to cut the vast amounts of public money spent on prison warehousing.

Why are so many Americans in prison, and which ones can be safely released? Let’s address some common misunderstandings about our incarceration problem.

State can't fight drug abuse without more treatment - Lexington Herald-Leader

I have had the privilege of working as an alcohol- and drug-addiction counselor for more than 11 years. I moved from Ohio to Kentucky three months ago and plan on attending the University of Kentucky to work on a master's degree.

I am shocked and appalled at Kentucky's response to the drug and alcohol epidemic that is sweeping parts of Kentucky away. I also have learned that Kentucky contributes $6.3 million a year to alcoholism and addiction treatment. A mid-level drug dealer averages a half million a year in profits

Time to end Kentucky's death penalty - Lexington Herald-Leader

The guilty plea and sentencing to life without parole of former state representative Steve Nunn for the murder of Amanda Ross came just one week after release of a report from the Death Penalty Information Center on the 35th anniversary of U. S. Supreme Court rulings allowing restoration of capital punishment.

Out and About: State penitentiary tour an eye-opening ordeal - Bowling Green Daily News

The address on the front of the building simply reads 266 Water St. There are lots of Water Streets in America and even a few others in Kentucky, but this one is not exactly a place you want to call home.

At 266 Water St. in Eddyville sits the Kentucky State Penitentiary, where about 900 men of all ages reside.

I had the opportunity recently to visit the 125-year-old facility only as a tourist, and was it ever an eye-opener.