Featured Cases - Hallum & Jones - Prison Mailbox Rule

Michael Allen Hallum v. Commonwealth, 2009-SC-000762-DG—rendered April 21, 2011.
AND
Joe B. Jones v. Commonwealth, 2010-SC-000049-DG.
Opinion of the Court by Justice Scott- Reversing.
All concur

Consolidated appeal.  Both Appellant’s placed their pro se notices of appeal from the denial of a post-conviction motion and their motions to proceed in forma pauperis in the prison mail system before the due date but they were not marked tendered or filed in the Circuit Court Clerk’s office until after the due date.  The Court of Appeals dismissed the appeals as untimely filed.  The appellants filed for discretionary review in Supreme Court asking the Court to adopt a prison mailbox rule.  While the case was pending on appeal the Supreme Court adopted RCr 12.04(5): “If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution’s internal mail system on or before the last day for filing with sufficient First Class postage prepaid.”  This rule was adopted because inmates cannot take the steps other individuals can take to ensure their notice of appeal is actually filed by the Circuit Court Clerk.  As they requested this relief, and this rule was adopted, prior to finality of the post-conviction action they were attempting to appeal, the Court applied the rule retroactively for them and reversed the Court of Appeal’s decision to dismiss their appeals.

Contributed by Brandon Jewell

Featured Case - Tunstull - Robbery

Troy Anthony Tunstull v. Commonwealth, 2009-SC-000170—rendered April 21, 2011.
Opinion of the Court Affirming by Justice Schroder.
Venters, J., dissents by separate opinion in which Minton, C.J., joins.

The Appellant was convicted of four counts of second degree robbery.  He contended there was insufficient evidence to convict him because there was no evidence he used or threatened the use of physical force as required by KRS 515.030(1), and thus he should have been granted a directed verdict.  The Supreme Court concluded there was sufficient evidence because an individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself. 

Moreover, the Supreme Court concluded that a theft by unlawful taking instruction was not required as a lesser-included instruction because there was evidence of the aforementioned implied threat and because theft does not require a threat.  Moreover, a facilitation instruction was not warranted because the evidence was that the Appellant was either an active participant or that he was not involved whatsoever (according to his testimony) as opposed to being “wholly indifferent” as a facilitator. 

The Court also concluded the trial court did not err by denying funds for a false confession expert because the Appellant did not claim his will had been overcome by police or that his confession was unreliable due to a mental condition but rather that he confessed to try to protect his cousin and that he was able to articulate his reasons for making what he claimed was a false confession at trial. 

Contributed by Brandon Jewell

Featured Case - Birdsong - Robbery and "force" not aimed at victim

Birdsong v. Commonwealth, 2009-SC-000084— rendered April 21, 2011.

Opinion of the Court Affirming (no justice named).

Venters, J., dissents by separate opinion in which Minton, C.J., joins.

In this case, the Kentucky Supreme Court held that a person can be found guilty of second-degree Robbery as long as “force” is used, even if that force is not aimed at a victim, but is instead aimed at inanimate objects.  Mr. Birdsong, after ordering bank tellers in a loud voice to give him the money, slammed through the teller door and pushed computer equipment on the ground.  Two tellers testified that they felt threatened.  In determining the definition of the word “threaten,” the Court used a definition from the American Heritage Dictionary, which defined the word as “1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992).  Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id.  There were two dissenters, who noted that the General Assembly intended that the word “threaten” be considered an active word, describing the actions of the accused, rather than a passive word which includes the impressions of the victims. 

Contributed by Brandon Jewell