KY SC Sept 20 - Sluss- Jury issues and Facebook.

Ross Brandon Sluss v. Commonwealth, 2011-SC-000318-MR, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Noble.  To be published. 

Jury issues and Facebook.

Sluss was convicted of murder, first degree assault, DUI, and tampering with physical evidence.  The case received much publicity in Martin County and was discussed often on Facebook and Topix.   After trial, Sluss discovered two of the jurors may have been Facebook friends with the victim’s mother.  “As a general rule, anything which is good cause for challenge for disqualification of a prosepective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.”  The Supreme Court remanded the case for the trial court to determine if the two jurors were facebook friends with the victim’s mother and the extent and nature of the jurors’ relationship with her if they were.

Contributed by Brandon Jewell  

KY SC Sept 20 - Morseman - Restitution

Commonwealth v. Shawn Morseman, 2011-SC-000167, ___ S.W.3d ___ (Ky. 2012).

Opinion by Justice Scott.  To be published. 

Restitution.

Morseman was indicted on second degree arson by complicity and fraudulent insurance acts by complicity over #300.  He pled guilty to fraudulent insurance acts by complicity over $300.  He was ordered to pay restitution, $48,598.02, as part of the plea agreement.  The Supreme Court analyzed whether the trial court abused its discretion when, as part of a plea agreement, it ordered Morseman to reimburse Amica for insurance proceeds distributed for property damage, alternative housing, and living expenses, which were damages not incurred as a result of the fraudulent insurance acts- the only crime for which he pled guilty.  By statute, KRS 533.030(3), 532.350(1)(1), 304.47-020(2)(d), Morseman would not be required to pay restitution because the loses were due to the fire and he did not pled guilty to arson.  However, the Supreme Court upheld the order of restitution as part of the plea agreement. 

Contributed by Brandon Jewell

KY SC Sept 20 - RCr 11.42: Time for post conviction counsel to file supplement to defendant’s pro se pleading.

Terry W. Roach v. Commonwealth, 2011-SC-000141-DG, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Abramson.  To be published. 

RCr 11.42: Time for post conviction counsel to file supplement to defendant’s pro se pleading. 

Roach pled guilty in June 2002.  Supreme Court opinion affirming the conviction became final in January 2004.  In March 2004, Roach filed a pro se RCr 11.42 motion.  DPA was appointed in March.  The Case was dormant until September 2008 when appointed counsel filed an amendment to Roach’s motion.  The Supreme Court found the pro se pleading was timely but counsel amendments were outside the three year statute of limitations because they were not claims that arose from the same “conduct, transaction, or occurrence” that was set forth in the original pleading per CR 15.01.  That is, a new ground for relief supported by facts different from than those in the original pleading cannot be asserted after the statute of limitations expires.

Contributed by Brandon Jewell

KY SC Sept 20 - Probationer’s testimony at revocation hearings related to new charges.

Gerald Barker v. Commonwealth, 2010-SC-000116-DG, ___ S.W.3d ___ (Ky. 2012)

And

Commonwealth v. Ryan Jones, 2010-SC-000123-DG,  ___ S.W.3d ___ (Ky. 2012)

Opinion by Chief Justice Minton.  To be published.

Probationer’s testimony at revocation hearings related to new charges.

Court considered whether a trial court may proceed to hold evidentiary hearings to revoke or modify probation when the grounds for revocation or modification are new, unresolved criminal charges against the probationer.  The Court held: 1) The trial court is not required to delay probation revocation or modification hearings awaiting resolution of the criminal charges that arise during the probationary period, 2)  when the probationer is faced with probation revocation or modification and a criminal trial based upon the same conduct that forms the basis of new criminal charges, the probationer’s testimony at the probation revocation hearing is protected from use at any later criminal trial in Kentucky, 3) the trial court must advise the probationer that any testimony the probationer gives in probation revocation hearings that relates to the facts underlying the new charges cannot be used as substantive evidence in the trial of the new charges, and 4)  the probationer’s testimony at the revocation hearing can be used for impeachment purposes or rebuttal evidence in the trial of the new charges, and the trial court shall so advise the probationer before the probationer testifies at the revocation hearings.  These rules are designed to protect probationers’ due process rights at revocation hearings and their rights against self-incrimination in future criminal proceedings.

Contributed by Brandon Jewell

KY SC Sept 20 - Wilson - Ex parte communications.

Commonwealth v. Michael L. Wilson, 2011-SC-000157-CL, ___ S.W.3d ___ (Ky. 2012).

Opinion CERTIFYING THE LAW by Justice Cunningham.  To be Published.

Ex parte communications.

Question presented was: Does Kentucky law authorize an ex parte motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard?  The answer is no. 

A warrant was issued for Wilson on charges of assault.  Wilson’s attorney made an ex parte request to a judge to set the warrant aside and issue a summons instead because the victim recanted.  The request was granted.  Eventually Wilson pled guilty.  Because such ex parte communication by defense attorneys with judges is common practice in district court, the Supreme Court accepted the request for certification of the law.  The Court stated that Rule 4.300, Canon 3B(7) prohibits ex parte contact in these circumstances:  “[w]ith regard to a pending or impending proceeding, a judge shall not initiate, permit, or consider ex parte communications with attorneys and shall not initiate, encourage or consider ex parte communications with parties…”

Contributed by Brandon Jewell

 

KY COA May 11th - Hamm - Client's inability to pay child support

Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published

Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.

The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.

Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.

Contributed by Brandon Jewell

KY COA May 11th - Thornton - Right to be heard in contempt sentencing

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

Thornton was found guilty of direct criminal contempt for his courtroom behavior but delayed sentencing until after his jury trial was over.  After the trial, the court sentenced him to 6 months for contempt without a hearing.  Under Schroering v. Hickman, 229 S.W.3d 591, 594-595, if a court delays imposing a sentence for contempt, the contemnor is entitled to exercise his due process right to be heard at a sentencing hearing.  The judgment was reversed and remanded for a new sentencing hearing. 

Contributed by Brandon Jewell

KY COA May 11th - Grider - Commonwealth shifting theory from indictment to trial and discovery violations

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

KY COA Feb 24th - Phillips

George Phillips v. Commonwealth 2010-CA-000969-MR

Rendered February 24, 2010.  To be published. 

Phillips began his sentence in 1983.  He was sentenced to three separate ten years sentences on rape, sodomy, and burglary.  The final judgment and DOC had the convictions listed in that order. 

Phillips argued he had to serve the sentences in that order and that with time credits he had served out on his qualifying sex crimes prior to the 1998 and 2000 amendments to SORA (requiring sex offenders to register) and thus was not required to register.  Those amendments only applied to people sentenced or incarcerated after their effective date. 

Although he was still incarcerated, Phillips argued that he was no longer serving on the sex offenses but, rather, on the burglary offense.  The Court of Appeals found that under KRS 532.120(1)(b), the maximum terms of consecutive sentences are added to arrive at an aggregate maximum term.  Since he was still incarcerated when the amendments took effect, the Court of Appeals found he was still serving on the rape and sodomy convictions because they are part of one aggregate term.

Contributed by Brandon Jewell 

Featured Case - Hall - Instructions on Lesser-Included Offense

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