KY COA Nov 30 - Andrews - HB 463 and Probation

Andrews v. Commonwealth, 2011-CA-001360, Not to be published, -

The trial court revoked Andrews probation when it found a single positive drug test made him a significant risk to the community and that he could not be managed within the community.  After Andrews failed the drug test, he checked himself into a treatment center and was doing well.  The trial court revoked Andrews probation.

The Court of Appeals reversed, finding that HB 463 has a particular emphasis on using treatment to rehabilitate offenders and decrease overall costs, and that a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation. 

The Commonwealth must now prove by a preponderance of the evidence that the probationer poses a significant threat to prior victims or the community and cannot be managed in the community. Here, Andrews was doing well on probation (except for single drug test failure) and doing well in a community-based treatment program. The Court also took issue with the trial judge’s consideration of Andrew’s initial denial of his need for treatment: “Andrews should not be barred from accessing treatment now simply because he previously denied he had a substance abuse problem or needed treatment.  If we were to allow revocation of probation under these circumstances, it would negate the entire statutory change to the probation revocation process and the purposes underlying House Bill 463.”

Contributed by Shannon Smith

 

Featured Case - Barker - Self-defense instruction

Barker v. Commonwealth, 2009-SC-794 (June 16, 2011) (published)-

The Supreme Court found palpable error due to the erroneous wording of the provocation qualifier of a self-defense instruction. A defendant forfeits his right to the defense of self-protection when (1) the defendant had the intention of causing serious physical injury to the victim; and (2) the defendant must actually provoke the victim to use physical force. In this case, the provocation qualifier failed to include the element requiring the defendant to provoke the victim with the intent to cause death or serious physical injury to him. 

The instruction given -

Provided, however, that if you believe from the evidence beyond a reasonable doubt that Adam Anthony Barker provoked Zachary Scarpellini and/or Shawn Reilly to use or attempt to use physical force upon the defendant, Adam Anthony Barker, and that they did so with the intention of causing death or serious physical injury to Adam Anthony Barker, then the defense of self-protection is not available to him.

The Kentucky Supreme Court  -

The instruction given in this case is fatally flawed because it fails to properly set out the elements of the statute. It lacks the statutory element requiring Appellant to provoke the victim with the intent to cause death or serious physical injury to him . Instead, the instruction requires that Zachary Scarpellini and/or Shawn Reilly have the intent to cause death or serious physical injury to Appellant. The provocation exception, under KRS 503.060(2), is concerned with the defendant's state of mind, not the victim's.

Contributed by Shannon Smith

Featured Case - Mullikan - Evidence regarding priors in penalty phase

Mullikan v. Commonwealth, 09-SC-519 (June 16, 2011) (published)-

The Supreme Court found reversible error in the penalty phase when a police officer, without personal knowledge of the incidents, told the jury numerous facts about the client’s prior felony offenses, in excess of that allowed for showing the “the nature of the offenses” in KRS 532.055.

The Court noted it had previously failed to provide a workable definition for that phase. It held that “evidence of a prior conviction is limited to conveying to the jury the elements of the crimes previously committed.” The Court also said the trial court should avoid identifiers that might trigger the memory of jurors who may have knowledge of the prior crimes.

It seems to us that the nature of a prior conviction is closely akin, if not identical to, the definition of a prior conviction . In Robinson, this Court went to great lengths in attempting to define the "nature of prior offenses ." The Court seemed to settle upon "description of a general character" as being as far as is allowed in dealing with these prior crimes . Therefore, we hold today that the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed . We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge . The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i .e ., the burglary was of a building as opposed to a dwelling . The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may--especially in rural areas-have prior knowledge about the crimes .


Contributed by Shannon Smith 

Featured Case - McDaniel - Jury Strikes and Investigative Hearsay

McDaniel v. Commonwealth, 09-SC-443 (June 16, 2011) (published)

The Supreme Court held it was reversible error for the trial court to fail to strike two jurors  for cause, depriving the client of two peremptory challenges. The Court noted the issue was properly preserved under Gabbard. One juror worked with the murder victim’s wife, who was also charged, and the other who worked with the victim previously and liked him. Neither juror could say unequivocally they could be fair and impartial. Very nice language in this case about the importance of an impartial jury and that “equivocal” is not good enough.  

The failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an unbiased jury, is the denial of a substantial right, and we hold that a trial court abuses its discretion when it seats a juror who is truly equivocal with regard to his or her ability to render an impartial judgment. Under Shane and Paulley equivocation is simply not good enough. Shane, 243 S .W.3d at 339; Paulley, 323 S.W.3d 715 . The substantial right recognized in those case provides no room for a trial court to seat a juror who is not sure whether he can provide both sides with a level playing field . A juror's statements and demeanor must support the trial court's decision to seat him, given the totality of the circumstances . To do less would give defendant's a substantial right "with one hand and take [it] away with the other." Shane, 243 at 339 . Therefore, because these two jurors could not state that they possessed the ability to be fair and impartial we hold that the selection process was not fair in this case. We reiterate that "a trial is not fair if only parts of it can be called fair." Id.

The Court also ruled that the police chief offered investigative hearsay when he repeated what other charged defendants had told him about McDaniel’s involvement.

 Contributed by Shannon Smith

Featured Case - Meece - KRE 410’s exclusion of statements made during the course of plea discussions

William Meece v. Commonwealth, 2006-SC-881 (June 16, 2011) (published)

In a 177 page opinion that found 20 errors harmless, the Supreme Court affirms the defendant’s convictions and death sentences.  The Court holds, among other things, that KRE 410’s exclusion of statements made during the course of plea discussions applies only to statements before the signing of a written plea agreement, and then only if they fit within a standard the Court sets out in its opinion.  The Court professes not to have overruled Roberts v. Commonwealth, 896 S.W.2d 4 (Ky. 1995), which had included statements made as part of the “quid pro quo” of the agreement under KRE 410’s exclusion, in order to avoid violating the defendant’s right to due process of law.

Relying upon United States v. Robertson, 582 F .2d 1356, 1365 (5th Cir.1978), we defined plea discussions as "discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions ." Roberts, 896 S .W.2d at 5 . In addition, we adopted the two-prong test set out in Robertson to be applied by the trial court in determining whether a discussion is a plea discussion, to wit:

1 . Whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion
AND
2 . Whether the accused's expectation was reasonable given the totality of.the objective circumstances .

Roberts, 896 S.W .2d at 6 (citing Robertson, 582 F.2d at 1366) . "To determine whether a discussion should be characterized as a plea negotiation and as inadmissible, the trial court should carefully consider the totality of the
circumstances." Robertson, 582 F.2d at 1366 . "[U]nder a totality of the circumstances approach, an accused's subsequent account of his prior subjective mental impressions cannot be considered the sole determinative factor." Id. In this respect, we noted that "[t]he intent is to protect the accused's subjective expectations while protecting against subsequent, selfserving claims by the accused ." Roberts, 896 S .W.2d at 6 . Given that the appellant in Roberts accepted the Commonwealth's plea offer by the sole act of then giving the statement concerning his participation in eight of the robberies, we held his statement met the two-part test established in Robertson and was a statement "made in the course of plea discussions" and was therefore protected by KRE 410. Roberts 896 S.W.2d at 6 .

Contributed by Shannon Smith