Featured Case - West - Traffic Stops and Consent to Search

 Kevin West v. Commonwealth

Court of Appeals, 2010-CA-001477-MR

Fred A. Stine, Judge, Campbell County

Before: Clayton, Stumbo, and Thompson

To-be-Published, Vacating and Remanding

Opinion by Judge Clayton

            After a routine traffic stop based on expired tags, Officer Dunn ascertained that there were no warrants or other problems relating to West and his passengers.  But the passengers’ attire was unusual, a female passenger did most of the talking, and she lied about where they were coming from.  After the warrant check was complete, because he was curious, Officer Dunn asked West to step from the vehicle.  West then admitted he had nine-and-a-half Percocets.  

Held:  The above facts did not give rise to a reasonable and articulable suspicion of criminal activity.  It would have been legal for the officer to ask West to step out as a safety precaution while checking on warrants. Pennsylvania v. Mimms, 434 U.S. 106, 111, n. 6 (1977).  But the warrant check was complete when the officer asked West to step out.  The officer had observed no new behavior and learned no new facts in addition to what he had noted during the course of the stop.  The subsequent detention was not “reasonably related in scope to the circumstances that justified the interference in the first place.” Epps v. Commonwealth, 295 S.W.3d 807, 812 (Ky. 2009).

Practice tip:  West argued below that the Commonwealth didn’t prove voluntary consent to leave the vehicle because any reasonable person under the circumstances would not feel free to refuse the officer’s request.  But the COA more properly decided the issue as a question whether there was reasonable suspicion to continue or expand the detention.  Involuntariness of consent is tough to establish.  Watch for moments in traffic stops where one detention ends and a new detention begins.  There must be new grounds for a new detention.  

Contributed by Susan Balliet

Featured Case - Johnson - Project Unite Jurisdiction

Floyd Grover Johnson v. Commonwealth

Court of Appeals, 2010-CA-000607-MR

Frank Allen Fletcher, Judge, Powell County

Before: Taylor, Chief Judge, Caperton, and Clayton

To-be-Published, Reversing and Remanding

Opinion by Judge Caperton

Johnson pled guilty to drug charges conditional on the appeal of the denial of his motion to dismiss his indictments.  Johnson moved to suppress the evidence and dismiss the indictments because neither the Attorney General’s Office nor Operation UNITE detectives had jurisdiction to conduct the investigation in Powell County.  No local law enforcement officer from Powell County was involved. 

Held:  The COA reversed Johnson’s conviction and ordered that on remand the trial court must assess whether the indictments --obtained based on testimony presented to the grand jury by the Attorney General and Operation UNITE-- should be dismissed due to lack of jurisdiction.

The COA held that the Attorney General’s Office lacked jurisdiction because it was not invited to participate in this investigation as required by Kentucky Revised Statutes (KRS) 15.200.  Also, the UNITE officers could not lawfully engage in the arrest because Powell County is outside their jurisdiction, the congressional district of Hal Rogers.

KRS 218A.240(1) provides the Attorney General’s Office with the authority to investigate crimes within its jurisdiction.  But those powers can be modified by statute, and KRS 15.200 requires that a request must be made of the Attorney General’s Office in writing for it to intervene, participate or direct any investigation or criminal action.  In other words, “it takes the governor, courts, grand juries, sheriff, mayor, or majority of a city legislative body to invite the Attorney General to participate in an investigation or to bring a prosecution.”

Practice tip:  Jurisdiction, jurisdiction, jurisdiction.  If it’s not there, your client wins.  Congratulations to Lisa Whisman, the trial attorney who preserved this issue for appeal.

Contributed by Susan Balliet

Featured Case - Artis - Automobile Searches

Antonio Artis v. Commonwealth

Court of Appeals, 2010-CA-00437-MR

Andrew Self, Judge, Christian County

To be Published Opinion, Affirming

Before: Moore, Stumbo, and Wine, Judges.

Opinion by Judge Wine

If the search in this case been conducted after Arizona v. Gant, 556 U.S. 332 (2009), it would have been unlawful.  Under Gant, an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest. 

But under the more recent Davis v. United States, __U.S.__, 131 S.Ct. 2419, 2428 (2011) for any search –like this one-- conducted prior to Gant, the exclusionary rule does not apply if the police officers have conducted a search in “objectively reasonable reliance” on appellate precedent that was binding at the time of the search. Id. at 2434. 

Acknowledging Davis, Artis asked the Court to find the search was unconstitutional on state law grounds.  But the COA held that while the Kentucky Constitution has been held to offer greater protection of the right of privacy than provided by the federal constitution, Kentucky courts have never extended this greater privacy protection to searches and seizures.  The Kentucky Supreme Court has stated that “Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996).

Contributed by Susan Balliet

Featured Case - Partee

Court of Appeals, 2011-CA-001054-MR

Marquisa Lavana Partee v. Commonwealth

Olu A. Stevens, Judge, Jefferson County

Not To be Published Opinion, Dismissing [Bond Conditions] Appeal

** ** ** ** **

Before: Moore, Nickell and Thompson, Judges.

Opinion by Judge Moore

** ** ** ** **

Partee was released pre-trial on her own recognizance.  Thereafter, the circuit court ordered her to submit to an inpatient evaluation at KCPC to determine criminal responsibility.  Upon completion of the evaluation, Partee was to be released once again on her own recognizance.

Partee filed an appeal to the COA pursuant to RCr 4.43, which permits an expedited appeal from a circuit court decision that changes “the conditions of bail.”  The COA held that since Partee was not released on bail, but on her own recognizance, the COA lacked jurisdiction to consider her appeal under RCr 4.43, and her only recourse is to file an original action under

CR 76.36.

            In a long footnote, the COA complained that RCr 4.43 was not followed in this appeal and was “not expedited in any manner.”   The COA scolded counsel for Partee as well as the Commonwealth for not moving the Court to comply with RCr 4.43(1)(d), once it became aware that the COA was not acting to decide the case in a timely manner.

Practice tip:   As the dissent points out, bail jumping charges have always applied if you fail to appear, whether it’s from OR or a regular bond.  This case suggests a defense an OR person has never had before.

Contributed by Susan Balliet

Featured Case - Lukjan

Court of Appeals, 2010-CA-001509-MR

Susan Lukjan v. Commonwealth

Audra J. Eckerle, Judge, Jefferson County

To be Published Opinion, Reversing and Remanding

** ** ** ** **

Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.

Opinion by Judge Acree

Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years.  The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator).  On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.

 The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”

Practice note:    Consider carefully what is contained in the “certified business record” you are trying to get admitted.  The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]”  The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).”  If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian. 

Contributed by Susan Balliet

Featured Case - Hall - Confession expert, evidence issues and discovery of witness statements

Steven Hall v. Commonwealth
No. 2010-Ca-001878-MR

Appeal From Boyle Circuit Court
Hon. Darren W. Peckler, Judge
Action No. 09-Cr-00101

Opinion Affirming, (Caperton, Combs and Thompson)
Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel.  He was convicted of second-degree manslaughter and sentenced to five-years’ imprisonment.  Four issues were decided:

(1) Expert testimony regasrding coerced confessions was inadmissible for the purpose of attacking the credibility of a police officer’s in-court testimony, distinguishing Terry v. Commonwealth, 332 S.W.3d 56 (Ky. 2010) on the facts because Hall didn’t testify and presented no evidence that his statements to the officers were coerced.  Thus the expert’s opinion wasn’t relevant.

(2) Evidence that Hall had a romantic interest in a woman other than Isabel was harmless error given the number of people who saw Hall run over his wife, but error because there was absolutely no evidence that Hall and the other woman had a sexual relationship or that the two planned a future. 
 
(3) It was not error to permit testimony that Hall intentionally accelerated the boat toward Isabel because the witnesses did not testify that Hall intended to kill Isabel but testified only to the facts as they were observed.  Also he was   convicted of recklessness, not intent.

(4) The Commonwealth didn’t fail to give defense counsel witness statements in violation of RCr 7.26.  The witness was interviewed twice and conveyed verbally to the officer that Hall waived Isabel’s dead hand. A witness is not required to confine testimony to “the four corners of his or her written statement.”  The remedy is cross-examination.ditions through the art of cross-examination.

Contributed by Susan Balliet

Featured Case - Taylor - Status as a Victim of DV

Michael Taylor  v. Commonwealth
No. 2010-CA-000674-MR

Appeal From Hardin Circuit Court
Hon. Kelly Mark Easton, Judge
Action No. 01-Cr-00429

Opinion Affirming, (Caperton, Moore, and Stumbo)


The circuit court determined that the KRS 439.3402 motion for relief  from the 85% rule based on status as a victim of domestic violence should have been brought, if at all, either at sentencing, on direct appeal, or by way of Taylor’s motions for RCr 11.42 and CR 60.02 relief.  The Court of Appeals here agrees in a published opinion.

Contributed by Susan Balliet

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

Featured Case - Equivocal Jurors

In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence.  More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal."  And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.


Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair."  It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved.  Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.

Contributed by Susan Balliett

Featured case - COA March opinion on Double Jeopardy

Timothy Quinn Beeler v. Commonwealth
Rendered 03/04/2011, To Be Published
2009-CA-001133-MR
Vacating.
Opinion by J. Combs, Concurring Opinion by Clayton in which J. Wine concurs. 
Roy A. Durham II, DPA counsel for Appellant
Perry T. Ryan counsel, Assistant Attorney General for Appellee

Prosecutions for violations of the same statutory provisions in separate jurisdictions violated Double Jeopardy.  Both Hardin and Hart Counties indicted Beeler under the same statutes, KRS 218A.1432 and 502.020.  Although Beeler pled to a lesser offense in Hart County (attempt to manufacture methamphetamine), that plea did not bar him from asserting a double jeopardy violation.  The two prosecutions arose from the identical bundle of facts.  Although the Commonwealth’s Attorney in Hardin County claimed that the traffic stop in Elizabethtown and the search of the residence in Hart County were different occurrences, both cases relied on evidence seized in both locations and neither case could be prosecuted adequately without evidence from the other case.   Because both convictions arose from the same transaction and were not two distinct statutory provisions, Jeopardy had attached to the second conviction in Hardin County and therefore, that conviction must be vacated. 

Full opinion is available here

Contributed by Susan Balliet