KY COA March 30th -Bell- Statement by Juvenile in School

Commonwealth v. Bell; and T.C.
11-CA-562, Rendered March 30, 2012; To be published

The Commonwealth appealed a denial of a writ of prohibition seeking to overturn the suppression of a thirteen-year old boy’s statement in a first degree sodomy case in Fayette County District Court. The Court of Appeals affirmed the suppression, finding that even though the detectives did not deprive T.C. of sleep, food, had Mirandized T.C., and had used a calm conversational tone, these factors do not provide the same assurance of voluntariness in a thirteen year old as it does for an adult. 

The Court of Appeals focused on the fact that T.C. was interrogated at school, stating, “The fact is a school is where compliance with adult authority is required and where such compliance is compelled almost exclusively by the force of authority. Like it or not, that is the definition of coercion.”  The Court found that the Detective’s questioning in the school setting made it reasonable to believe that T.C. felt he had to say “something, whether true or not.” Further, it was unreasonable that T.C. would believe he had the right to say nothing and get up and leave the interrogation.

The Court noted, “T.C., alone, was ordered by school officials into a room, facing adult authority figures with considerable power, who also feigned superior knowledge (“I know what happened [and your cousin] has not lied to me about anything”), and who repeatedly demanded answers that he, if he was to be an obedient child, would have to provide.  How could T.C. not perceive such a situation as subjectively coercive?”

Note that the Court of Appeals did not cite the recent U.S. Supreme Court case J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), in making its decision.  The J.D.B. decision provides additional support for suppressing a juvenile’s statement when it is made in a school setting since it discusses the viewpoint of a child interrogated at school and requires consideration of a defendant’s age when determining if the child was in custody under Miranda.

Contributed by Robert Yang

KY COA April 6th - Land- Failure to Appear/Escape

Land v. Commonwealth,
2010-CA-1840, Rendered on March 30, 2012, To Be Published 

Land pleaded guilty to a class D felony and was given an alternative sentence, part of which was ordered to be served on weekends.  Mr. Land failed to appear one weekend, and was subsequently charged with escape in the second degree.  He entered a conditional guilty plea to the escape charge, reserving the right to appeal whether the failure to appear for service of a weekend sentence constituted an escape in the second degree.

The Court of Appeals held that it did.  The Court found the failure to report for weekends as required by the alternative sentence fit within the statutory definition of escape because it was a failure to return to custody or detention following a temporary leave granted for a specific purpose or a limited period.  The Court found that the escape met the requirements for escape in the second degree because Land had been convicted of a class D felony prior to his escape.

Contributed by Robert Yang

KY COA March 30th - Ayers- Faretta

Ayers v. Commonwealth – 2010-CA-590, Rendered March 30, 2012; To Be Published

Ayers was convicted on five counts of failure to file a tax return.  The Court of Appeals held that the trial court’s failure to conduct a Faretta inquiry rendered the conviction invalid, warranting a new trial.

Ayers was an attorney licensed to practice in Kentucky.  He was indicted on five counts of failing to file a Kentucky tax return from 2002 to 2006.  From the nearly two-year period between indictment and trial, Ayers represented himself.  Filing motions that were ruled upon by the trial court, but without a formal Faretta hearing.  A trial followed, and Ayers was convicted.

Ayers argued that it was improper for the trial court to let him proceed to trial pro se without a Faretta hearing.   Even though he was an attorney, the Court of Appeals noted that attorneys are protected under Faretta as well.  Further, even though Ayers did practice criminal law, harmless error analysis did not apply - Faretta violations result in “structural error and will merit appellate correction.”

Contributed by Robert Yang

KY COA March 30th - Robbins- Possible Ineffective assistance of counsel for failing to investigate and giving misadvice leading to a guilty plea

Robbins v. Commonwealth – 2009-CA-2178 & 2010-CA-1969, Ordered Published March 30, 2012

Robbins pleaded guilty of wanton abuse or neglect of an adult; wanton exploitation of an adult over $300; theft by unlawful taking over $300; and persistent felony offender, second degree.  He filed two RCr 11.42 motions to set aside his plea, conviction, and sentence.  The trial court denied both motions without an evidentiary hearing.  The Court of Appeals held that the trial court abused its discretion by denying the first RCr 11.42 motion without an evidentiary hearing.  The second motion was properly dismissed as being successive.

Robbins was charged on June 25, 2007 of taking over $114,000 from his mother’s bank account and letting her medical condition worsen without seeking medical care for her.  He entered a Alford plea on September 11, 2007 and was sentenced on November 15, 2007.

Two years later, Robbins filed his RCr 11.42 motions alleging ineffective assistance of trial counsel.  The Court of Appeals faulted the trial court’s finding that no evidentiary hearing was necessary because the record was “apparent” that trial counsel conducted a proper investigation on behalf of Robbins.

First, Robbins complained that he pleaded on the advice of counsel, but was never given the opportunity to review the evidence against him.  In fact, the Commonwealth had not provided any of the required discovery (approximately 1,600 pages) when Robbins entered his guilty plea.  Without reviewing the information in the discovery, it was impossible for Robbins to evaluate the soundness of counsel’s advice.  The Court of Appeals held that without an evidentiary hearing, it is not possible to evaluate the effectiveness of trial counsel’s representation.

Second, the Court of Appeals was concerned that the Commonwealth’s theory of guilt
was based on a standard not authorized by the protection of adults statute (KRS 209.020) for “Abuse, ” “Neglect,” and “Exploitation.”  Apparently, the victim, Robbins’ mother, suffered a hereditary condition, that causes her legs to swell and blister.  And the police officer’s observation of the mother’s legs formed the basis of the abuse/neglect charges, despite the mother informing medical personnel that her condition was not caused by her son.  The Court of Appeals held there was no duty for a healthcare surrogate to force a person to seek medical treatment unless that person lacked the capacity to make health-care choices.  Since trial counsel never spoke with the mother, there is an issue of fact whether trial counsel reasonably advised Robbins to accept the guilty plea.

Third, the exploitation and theft charges were based on allegations that Robbins used his mother’s assets for his own benefit, even though the mother consented to Robbins’ withdrawals from her bank account.  The trial court should have considered the mother’s consent as being decisive in the presentation of a successful defense.

The trial court’s failure to order an evidentiary hearing is problematic for two reasons.  First, if counsel’s advice was based on a failure to fully investigate the evidence supporting the charges and the defenses to the charges, then counsel’s advice was deficient. Furthermore, given the questionable factual and legal support for the charges, there is a reasonable implication that Robbins would not have pleaded guilty but for counsel’s deficient advice.  Accordingly, an evidentiary hearing is warranted in this case.

Trial practice tip:  When defending Neglect/Exploitation cases, it is a proper and winning defense if the victim (if mentally competent) refuses medical treatment or consents to the defendant’s withdraw of victim’s money.

Contributed by Robert Yang

Rowe - RCr 10.02

Rowe v. Commonwealth 2008-CA-916 and 2008-CA-1824

Opinion dated November 18, 2011, Affirming  To be published. 

The issue in this case was whether the defendant’s two RCr 10.02 motions for a new trial based on newly discovered evidence were properly denied by a trial court without an evidentiary hearing.  In the first appeal, the trial court properly held that the RCr 10.02 motion was deficient because the defendant failed to file an affidavit that the evidence could not have been discovered before trial even with the exercise of due diligence.  In the second appeal, the trial court properly held the defendant made two errors. 

First, he failed to file an affidavit detailing the new evidence and explaining why the evidence was not discovered before trial.  Second, the second RCr 10.02 motion did not comply with the procedural requirements of RCr 10.06

Trial tip: courts are serious about making defendants follow deadlines and procedures.

Contributed by Robert Yang

Featured Case - Buchanan - Costs

Gloria Buchanan v. Commonwealth

2010-CA-1120

Opinion dated October 28, 2011

Not to be published. 

The Court of Appeals, among other things, affirmed the trial court’s decision to impose “court costs, fines, and/or fees in the amount of $295.00” following Ms. Buchanan’s conviction of Wanton Exploitation of a Vulnerable Adult.  The Court of Appeals held that it was not palpable error in this case.  Trial Practice Tip: Object and argue that the client is a poor person and cannot pay court costs, fines, or fees.

Contributed by Robert Yang

Featured Case - Smith - Dismissal with Prejudice

Commonwealth v. John Smith

2010-CA-1703

Opinion dated October 28, 2011, to be published. 

The issue in this case was whether a circuit court may convert a “dismissal of a criminal indictment without prejudice” to a “dismissal with prejudice” nine years after entry of the original dismissal. 

The COA held that, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), a trial court loses jurisdiction after 10 days, so it cannot convert the dismissal.  Mr. Smith was indicted in October 2000 for Trafficking 1st, Tampering with Physical Evidence, and Possession of Drug Paraphernalia.  Evidence against Mr. Smith was suppressed after a suppression hearing.  Accordingly, the Commonwealth filed a motion to dismiss the indictment without prejudice. 

After more than nine years without any further prosecution on this case, Mr. Smith filed a motion in circuit court to expunge the indictment or dismiss the indictment with prejudice.  The trial court granted the motion to dismiss with prejudice.  The Commonwealth on appeal argued, and the Court of Appeals agreed, that the trial court lost jurisdiction to alter the order of dismissal ten days after its entry. 

The Court of Appeals does offer some possible solutions for trial counsel. First, a defendant can apply to segregate his records held by any public agency and removed from the public record.  Second, and probably the better solution, would be for trial counsel to ask the trial court to exercise its narrow but inherent power of expungement for the purpose of correcting constitutional infractions.  See Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007) (court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”).   

Contributed by Robert Yang

9/16 Court of Appeals - Martin - Faretta hearing & Court Costs

Martin v. Commonwealth

10-CA-322 and 10-CA-1905

9/16/11 Court of Appeals opinion - To be published.

The Court of Appeals held the trial court should have held a Faretta hearing when: the client filed pre- and post-trial pro se motions; the trial court ruled on many of those motions; and the client was also receiving benefit of appointed counsel. By ruling on the pro se motions, the court treated Martin as a pro se litigant.  Accordingly, the court should have conducted a hearing, given the warnings required pursuant to Faretta, and made a finding that his waiver was voluntary and intelligently made. The Court’s failure to do so is reversible error.

 In a 2-1 decision, this panel also distinguished Travis and held that court costs were properly imposed as a condition of probation.  This panel found that the defendant had asked to be released from custody so he could work to support his family and that he was released on probation.  Based on his stated ability to work, the imposition of court costs was not a manifest injustice.  This issue was not preserved at the trial level, so it was reviewed under the palpable error standard.  If this is an issue important to the client, raise an objection to improve the odds of winning on appeal.

Contributed by Robert Yang

Grider - Prosecutorial Misconduct

     Commonwealth v. Grider, 09-CA-2080-MR, published.Court of Appeals, August 12, 2010

      The Commonwealth appealed a trial court’s order granting Grider’s motion to dismiss an indictment charging him with 15 counts of trafficking in a controlled substance and bribing a witness.  The Court of Appeals reversed and remanded.  Grider owned three pharmacies.  In the course of investigations against him, 124 boxes of documents were seized from his pharmacies.  Grider sought access to those documents and the trial court ordered the documents to return the originals or make copies to Grider.  Over two years later, Grider filed a motion to dismiss the indictment or to hold the case in abeyance for the Commonwealth’s failure to turn over the original documents or to provide meaningful access to the documents.  The trial court agreed and dismissed the indictment without prejudice.  The Court of Appeals reversed the trial court’s dismissal because the trial court did not try to compel compliance by a less severe penalty, e.g., using its contempt powers or refer any “recalcitrant attorney to the KBA for appropriate disciplinary proceedings.”  

     Practice Tip: before asking for a dismissal of an indictment due to a prosecutor’s misconduct, first ask the trial court to use its contempt powers or refer the prosecutor to the KBA for disciplinary proceedings.

     Contributed by Robert Yang

Featured Case - Hurt - Improper Expert Testimony

Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished. 

While unpublished, this is an important case for two reasons.  Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter.  Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman.  Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse.  However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.”  Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused.  According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.”  Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)." 

Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony.  The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice.  Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out. 

Practice Tips:  1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if  “wet noodle” evidence does come in.

Contributed by Robert Yang