http://theadvocate.posterous.com The online presence of the Kentucky Department of Public Advocacy journal posterous.com Thu, 24 May 2012 05:22:00 -0700 KY COA May 11th - Grider - Commonwealth shifting theory from indictment to trial and discovery violations http://theadvocate.posterous.com/ky-coa-may-11th-grider-commonwealth-shifting http://theadvocate.posterous.com/ky-coa-may-11th-grider-commonwealth-shifting

Commonwealth v. Grider, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

The Circuit Court dismissed the indictment against Grinder with prejudice.  This was proper because the Commonwealth shifted its theories of criminal liability at the trail from those listed in the indictment.  The indictment alleged Grinder had billed Medicaid for one drug while dispensing another less expensive drug.  In opening statement, the Commonwealth said the crime was that Grinder violated Medicaid’s administrative regulations requiring pre-authorization to be reimbursed for specific drugs.  Because the jury had already been seated, the trial court could dismiss the indictment under RCr 6.12 because Grinder’s substantial rights were prejudiced; on top of shifting its theory of criminal liability, the Commonwealth had also failed to provide a bill of particulars detailing the circumstances of the crime despite being ordered to multiple times and had failed to disclose exculpatory evidence until a few days before trial which contained too much information to fully analyze in a few days.

Contributed by Brandon Jewell

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Thu, 27 Oct 2011 06:07:00 -0700 Featured Case - Hall - Confession expert, evidence issues and discovery of witness statements http://theadvocate.posterous.com/featured-case-hall-confession-expert-evidence http://theadvocate.posterous.com/featured-case-hall-confession-expert-evidence

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

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