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
Contributed by Robert Yang

Commonwealth v. Bell; and T.C.
11-CA-562, Rendered March 30, 2012; To be published
Contributed by Robert Yang
Land v. Commonwealth,
2010-CA-1840, Rendered on March 30, 2012, To Be Published
Contributed by Robert Yang
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.
Contributed by Robert Yang
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 guiltContributed by Robert Yang
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
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
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
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
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
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