KY SC Feb 23 - James

Joseph Thomas James v. Commonwealth 2010-SC-275  To be published

James was not entitled to a directed verdict for rape. He beat his on again off again girlfriend for hours, and had intercourse with her. She testified that she had sex in an attempt to “calm him down.” James argued that there was no forcible compulsion because the victim consented to sex in order to placate James.  The Court disagreed, holding that James’ act of beating her for hours allowed the jury to conclude she was compelled to engage in intercourse by force or threat of force.

                Further, there was no error in admitting the unredacted report of the SANE nurse characterizing the complaining witness as a rape victim. Though the report was inadmissible “triple hearsay,” there was not a specific objection and the error was deemed harmless.  Likewise, the Court found that medical report of the SANE nurse were not formal or made for the purpose of prosecution, thus there was no Confrontation Clause violation.

Contributed by Erin Yang

KY SC Feb 23 - McPherson

McPherson v. Commonwealth  2010-SC-379  To be published

Britton McPherson and his former girlfriend, Tamala Parker, were charged with murdering, Lora Milligan, a police informant.  Parker pled guilty to second degree manslaughter and PFO in exchange for testimony against McPherson.

Reverse 404(b) evidence properly excluded and did not deny McPherson his Right to Present a Defense

Three years, prior to the murder, Parker was arrested for trafficking. She made a recorded call from the jail, telling the person she believed had informed on her that they “were dead.” McPherson argued her prior threat would serve to impeach her testimony and show she was violently inclined towards anyone who informed against her, thus more likely she committed the murder of Milligan.

The Court held the evidence was properly excluded as impeachment under KRE 609, since Parker did not deny the prior conviction. Further, the Court held that it was not inadmissible as reverse 404(b) evidence. Though both acts involved violence, or a threat of violence, against an informant, a threat made from jail three years prior was too remote in time and not sufficiently similar to the act of killing an informant and disposing of her body.

The Court held that exclusion of the evidence did not abridge McPherson’s right to present a defense, since it was “marginally relevant” and he was able to argue his aaltperp evidence against Parker through other means.

McPherson was not Entitled to a Missing Evidence Instruction

The Court found that McPherson was properly denied a missing evidence instruction after a detective destroyed his notes from an interview of Tamala Parker after drafting a report. The Court dismissed the act as “ a matter of routine housekeeping rather than suppression of evidence.” Continuing to place an undue burden on defendants, the Court found because McPherson could not prove ill intent, or that exculpatory information was contained in the notes there was no error.

McPherson was not entitled to be sentenced by the Trial Court

McPherson argued he was entitled to be sentenced by the trial court after the jury failed to agree on a sentence, and objected to the empaneling of a second jury for sentencing.  The Court found no error under KRS 532.055, because a jury was required to make findings regarding aggravating factors.

Contributed by Erin Yang

KY SC Feb 23 - Barnhill

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

KY SC Feb 23 - Dunn

Michael Dunn v. Commonwealth, No. 2010-SC-000234-MR To Be Published

Affirming

Dunn was sentenced to 10 years for each of 5 counts of forcible sodomy consecutive for 50 years.

Practice Tips regarding bills of particulars and motions for change of venue:  Make sure you get a ruling on your motion for bill of particulars, especially in a case with multiple identical counts.  If you are fighting a serious venue challenge, renew the motion for change of venue at the close of voir dire.  Also be sure to object to any jurors who are seated who are arguably biased because of pretrial publicity, and if you are forced to use a peremptory strikes to remove such a juror, state the venue grounds on the record.
   
Search and Seizure.  The area searched was a wooded area estimated at 300 to 400 feet from Dunn’s house near a deer blind on Dunn’s property. The property was partially fenced at the boundaries.  Dunn had posted no trespassing signs and put a stay-away notice in the paper. The police had to climb a fence to get to the area.  Still, this wasn’t protected curtilage because it was not an enclosure immediately adjacent to the house readily identifiable as part and parcel with the house.  A condom found in this area was admitted into evidence.

Bill of Particulars   The indictment listed seven identical counts of sodomy.  Dunn moved for a bill of particulars, but failed to press the court for a ruling.  So Dunn lost on this issue.

Two counts the prosecutor said were not included.
Dunn lost the bill of particulars issue despite the fact that he was assured by Trooper Hunt at a pre-trial bond hearing that none of the charged counts occurred at a certain unfurnished house near the Powell County line.  The bond hearing occurred a year and two months before trial.  Dunn didn’t act surprised or object at trial when the victim testified to two incidents at the unfurnished house, and appeared prepared to attack the allegations.  Nor did he raise the issue in a motion for new trial.  This was not a palpable error.

Rape Shield / KRE 412(c)(2) hearing regarding false allegation of sexual misconduct
    Dunn argued he was denied a hearing under KRE 412(c)(2) to show the victim had falsely accused a school janitor of trying to sexually assault him. Held: the purpose of such a hearing is to benefit the victim not the accused perpetrator.  To be entitled to such a hearing the defendant must make a preliminary showing that the prior accusation was demonstrably false.  Then the victim is entitled to a hearing before the evidence is introduced, presumably to show the prior accusation was not false.

Victim’s psychotherapy records, possible exculpatory evidence
 The trial judge reviewed the victim’s psychotherapy records and turned over documents it considered exculpatory, but didn’t turn over information that the victim had been physically abused by his father four to six years before.  Dunn argued it was exculpatory because it explained the victim’s motive to fabricate allegations against Dunn, to deflect his father’s anger to Dunn.  The Court ruled this was too speculative and attenuated.

Change of Venue
    A jury was seated, and so there was no error.  Also, the failure to renew the motion for change of venue at voir dire waived the issue.  In addition, Dunn didn’t argue that any jurors who were seated were biased because of pretrial publicity, nor did he say he was forced to use peremptory strikes to remove such jurors.

Jurors with family members who were victims of sexual abuse
   One juror whose daughter had been sexually abused, and another whose wife had been sexually abused both said they could be fair.  That was sufficient.

Contributed by Erin Yang

KY SC Feb 23 - Giving the jury additional facts during deliberations over defense objection reverses conviction

Bradley Allen Day v. Commonwealth 1009-SC-641-DG. To be Published.

After deliberating for over 4 hours as to Day’s guilt, the jury asked the trial court to tell them the penalty range for the lesser included offense of first-degree sexual abuse. The trial court, over Day’s objection, told the jury the penalty was one to five years’ imprisonment. Forthwith, the jury returned with a guilty verdict on the lesser included charge and eventually a three year sentence.


The trial Court erred by telling the jury the penalty range for the lesser included offense during the guilt phase of trial. In Norton v. Commonwealth, 37 S.W.3d 750 (Ky. 2001), the Kentucky Supreme Court propounded the general rule that penalty evidence, such as the sentencing range for the instructed upon offenses, is not admissible during the guilt phase. However, in the case at bar, The Court of Appeals found no indication the trial court gave the penalty range information to the jury in order to impermissibly influence the jury to convict based on a desired verdict.

The Kentucky Supreme Court held that the Court of Appeals expanded existing case law (Norton) to create an exception where one has not been previously existed. In addition, the trial court’s conclusion the jury would have heard the information anyway is belied by Lawson v. Commonwealth, 53 S.W.3d (Ky. 2001), which held that defense counsel’s voir dire on penalty range is limited to the range encompassed by the indicted offenses. In the case at bar, the sexual abuse instruction arose as a result of the evidence presented at trial, thus, the parties would have erred by informing potential jurors of the penalty range for sexual abuse during voir dire.

Contributed by Erin Yang

KY COA Feb 17th - Parker - Eyewitness Identification

Parker v. Commonwealth, 2010-CA-001371, To Be Published—

The Court of Appeals reversed the trial court’s denial of suppression.  The purse snatch victim was shown still photos pulled from store surveillance camera and then asked to identify the co-defendant, who named Mr. Parker.  Mr. Parker joined in suppression motion filed by co-defendant.  Commonwealth was prevented from asserting standing defense for first time on appeal and the Court held on the merits that the trial court had abused his discretion in not suppressing bad identification when Commonwealth produced no evidence to support a finding on 3 of the 5 Biggers factors.

Contributed by Erin Yang