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Douglas Barnhill v. Commonwealth2010-SC-184 (not to be published)

The Court held it was error for the trial court to refuse to instruct on 2d-degree manslaughter.  The trial court instructed the jury on intentional murder, wanton murder and reckless homicide.  The Court also was troubled by the prosecutor’s histrionics during the trial, including making the defendant lay prone in front of the jury while answering the prosecutor’s questions.

While Barnhill was on the stand, the Commonwealth asked him to
demonstrate how he fell with Kiara. Barnhill demonstrated how he fell and ended up on his stomach, face-down before the jury. The prosecutor ordered Barnhill to remain in this prone position on the floor as he continued questioning him. And, over Barnhill's objection, the Commonwealth was allowed to continue questioning him from his position on the floor. After a second objection, Barnhill was allowed to arise from
the floor. In its closing statement, the Commonwealth stated, "And if defense counsel is upset because I showed his client little or no use for him, it's because I believe the evidence is overwhelming that he clearly beat a child to death. So in my eyes, I treated him the way he should have been treated."

Contributed by Erni Yang

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Tue, 19 Jul 2011 08:07:00 -0700 Featured Case - Lowe - Notice of Appeal & Lesser Included for Assault 2nd http://theadvocate.posterous.com/featured-case-lowe-notice-of-appeal-lesser-in http://theadvocate.posterous.com/featured-case-lowe-notice-of-appeal-lesser-in

Lowe v. Commonwealth, 10-CA-619-MR (unpublished):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

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Mon, 09 May 2011 09:47:00 -0700 Featured Case - Hall - Instructions on Lesser-Included Offense http://theadvocate.posterous.com/featured-case-hall-instructions-on-lesser-inc http://theadvocate.posterous.com/featured-case-hall-instructions-on-lesser-inc

Douglas Wayne Hall v. Commonwealth, 2009-SC-000244
Opinion of the Court by Chief Justice Minton- Affirming, in part, and reversing and remanding in part.
Schroder, J., concurs in part and dissents in part by separate opinion.

Hall was convicted of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery.  Hall argued that a strict same-elements test should be used for determining the appropriateness of instructing on a lesser-included offense, and that under such an approach, the jury should not have been instructed on assault as a lesser- included offense of murder. 

The Supreme Court rejected this approach and followed Perry v. Commonwealth.  A strict elements test calls for looking at the elements of a crime rather than looking at the facts set out in a particular case.  For example, if a person is charged with murder, under a strict elements test, assault could not be given as a lesser- included offense because the state of mind for assault is not included in the elements of murder.  However, under the facts of a particular case, a jury could find assault when someone is charged with murder.  The Court concluded that under the facts of this case, the jury could have found assault.  Hall objected to an assault instruction but asked that if one were given, that a facilitation- to- assault instruction also be given.  The Court found that despite Hall’s denials of knowing of his co-defendant’s intent and of providing a gun to his co-defendant, there was evidence to support an instruction on facilitation to assault.  That is, the jury was not obligated to accept Hall’s denial of knowledge of the co-defendant’s intent or his denial of giving the gun to him and could have inferred Hall did have such knowledge but did not intend to promote the assault.

Contributed by Brandon Jewell

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