KY SC March 22 - Mash- Race-Neutral Strike

BILLY MASH V. COMMONWEALTH, 2010-SC-000584-MR, To-be-published, March 22, 2012, Affirming - 

Evidence presented was insufficient to support a fair cross-section challenge to the jury panel. A juror’s negative demeanor was a sufficient race-neutral reason for the prosecutor’s use of a peremptory challenge to strike the juror from the venire. Although not an element of first-degree sodomy, the Commonwealth produced sufficient evidence of penetration to meet the unnecessary specific element of the jury instruction. No evidentiary foundation was presented for an instruction on sexual abuse. 

TRIAL TIP:  Unfortunately, an attorney cannot just show up the morning of trial, decide there are not enough minority jurors, and move to strike the panel.  Information must be collected ahead of time concerning the relevant underrepresentation for a number of jury panels, and statistical evidence should be presented.  If there is a statistically proven underrepresentation over a period of time, only then would the state have to change the way it selects people for jury service.  Because this is a systemic issue, and because of the size of such an undertaking and the number of cases it would affect, trial attorneys are advised to work closely with their Directing Attorney, Regional Manager, and Trial Division Director in order to challenge county practices that result in underrepresentation of an identifiable minority on jury panels. 

Contributed by Susan Balliet

KY SC March 22 - Smith - Instructions and Court Costs

ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part. 

First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim.  But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim.  While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.

Contributed by Susan Balliet

KY SC March 22 - Copley- Affidavit In Support of Search Warrant

RONALD COPLEY V. COMMONWEALTH, 2011-SC-63-MR – March 22, 2012, Affirming.

Murder-20 years. Even though the affidavit in support of the search warrant was not properly sworn before an individual authorized by a judge of the county to administer oaths pursuant to RCr 2.02, suppression was not warranted because the error was not of constitutional magnitude, the error did not prejudice the defendant and there was no deliberate disregard of the Rules. Deputy Cain swore the affidavit before a notary public, an employee of the Commonwealth Attorney's office. There being no available circuit or district court judge or trial commissioner, the circuit clerk reviewed the affidavit, found probable cause and issued the search warrant. Under KRS 15.725(5) the circuit clerk was statutorily authorized to issue the warrant.

Contributed by Susan Balliet

KY SC March 22 - Smith- Speedy Trial

JOHNNY SMITH V. COMMONWEALTH,

2011-SC-144-MR, March 22, 2012, Affirming in Part, Reversing and Remanding in part. 

First-degree robbery, unauthorized use of a motor vehicle and PFO II - 30 years.  Opinion contains an extensive speedy trial analysis.  Even though the Commonwealth had all the evidence in hand, and waited eight months for no good reason prior to requesting DNA testing, the trial court properly granted Commonwealth’s motion for a continuance in order to perform DNA testing.  Smith’s speedy trial rights were not violated –long story short--due to his own actions in failing to show up for multiple court appearances.  Although he failed to show because he was incarcerated elsewhere, he should have informed his attorney, who could have attempted to secure his presence.  Eyewitness testimony was sufficient to defeat a motion for directed verdict. Trial court’s imposition of court costs remanded for findings, as set out in Maynes v. Commonwealth, Case No. 2010-SC-000681-DG. Language of the restitution order was specific and was enforceable.

PRACTICE TIP:  If you have a client detained elsewhere, make efforts to obtain his presence at court appearances, or prepare to forfeit any speedy trial claim.

Contributed by Susan Balliet

KY SC March 22 - Callahan- Corpus Delicti

GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.

TRIAL TIP: 
Object to “corpus delicti” prior bad acts evidence.

   
Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred.  Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:

VENTERS, J., CONCURRING:

The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b). We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v.Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior object bad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened.

Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing.

This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations. We have never offered a sound rationale for what I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts.

We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.


Schroder and Scott, JJ., join.

Contrbuted by Susan Balliet

KY SC March 22 - Knox- Hammer Clause

MICHAEL KNOX V. COMMONWEALTH, 2010-SC-816-MR, March 22, 2012, Reversing and Remanding for a new sentencing.  Hammer Clause.

While the Court did not bar hammer clauses from plea agreements, it held that a judge’s commitment to impose a hammer clause without proper consideration of the other relevant factors --including the contents of the presentence report required by RCr 11.02 and KRS 532.050, as well as the nature and circumstances of the specific crimes to which the defendant pled guilty, and the history, character, and condition of the defendant as required by KRS 533.110, is an abuse of discretion.

PRACTICE TIP:  Knox's counsel specifically preserved this issue for appeal by requesting that alternatives to the hammer clause sentence be considered, and the trial court declined.  The Court noted, however, that a trial court's failure to comply with the sentencing prerequisites of KRS 533.010(1) and (2) is reviewable on appeal without preservation because even defendants who have pled guilty "have the right to be sentenced after due consideration of all applicable law." See Hughes v. Commonwealth, 875 S.W.2d 99, 100 (Ky. 1994).

 Contributed by Susan Balliet

KY SC March 22 - Goldsmith - Probation Revocation

William Dustin Goldsmith v. Com.,

2012 WL 975717 (Ky. 2012) March 22, 2012.  Probation revocation. 

Goldsmith pled guilty to three Class D felonies in both Carlisle and Hickman Counties accepting a 15-year sentence in each county and was sentenced to probation. After he violated probation, the trial court ran the two counties' sentences consecutive for a total of 30 years. Since the final judgments were silent as to whether the two counties' sentences were to run consecutively, and the trial court lost jurisdiction 10 days after entry of final judgment under CR 59, the trial court committed plain error because it “exercise[ed] discretion it did not have.”  

The trial court decided to run the sentences consecutively when Goldsmith criticized a religious drug treatment program he had been sent to as a requirement of probation, was “exceedingly disrespectful to the court” when he cursed several times, and the court could not perceive another remedy for Goldsmith’s behavior.  But while “the trial judge has broad discretion and alternative means in handling outbursts in the courtroom…imposing an illegal sentence is not one of them.” Because Goldsmith’s sentence had been fixed and his probation revoked, contempt proceedings were the option.  Case remanded with instructions to run the two 15-year sentences concurrent for a total of 15 years.

Contributed by Susan Balliet

KY SC March 22 - Driver- Prior Convictions. Prosecutorial Misconduct

Steven Driver v. Commonwealth, 2012 WL 975711 (Ky. 2012) decided March 22, 2012 (2009-SC-000639-DG).  Reversing and Remanding
 
Mr. Driver was convicted of First Degree Assault following a fight with his second wife. There are three important points to take from this case.

First, the Kentucky Supreme Court reversed his conviction holding that reversible error occurred when the prosecutor introduced his prior convictions involving his first wife.

Second, the Court ruled that the prior convictions against his first wife could become relevant if he raised an Extreme Emotional Disturbance defense that the fight began because he learned his second wife was having an affair.

Third, the Court ruled that the prosecutor should not have argued in closing that the jury should convict him to protect his children.

Note - the issues was preserved through the excellent work of Murray Directing Attorney Robin Irwin.

Contributed by Susan Balliet

KY SC March 22 - Callahan - Object to “corpus delicti” prior bad acts evidence

GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.

TRIAL TIP: 

Object to “corpus delicti” prior bad acts evidence.           

Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred.  Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:

VENTERS, J., CONCURRING: The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b).

 

We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v. Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior objectbad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened. Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing. This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations.

 

We have never offered a sound rationale for question that I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts. We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.

Schroder and Scott, JJ., join.

 

Contributed by Susan Balliet

 

Important New Court Costs Case - Maynes v. Commonwealth

DESEAN MAYNES V. COMMONWEALTH,

2010-SC-68-DG  - March 22, 2012, Affirming.

“Needy" persons under KRS 31.110 who qualify for DPA representation are no longer automatically immune from the court costs imposed by KRS 23A.205.  “A person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney and yet may not qualify as ‘poor’ under KRS 23A.205 unless he is also unable to pay court costs without ‘depriving himself or his dependents of the necessities of life, including food, shelter or clothing.’”  Under KRS 23A.205 the defendant must be able to pay court costs at the time of sentencing or "in the foreseeable future."  Since Maynes' plea agreement released him from prison, he would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205.


KRS 23A.205 requires imposition of court costs unless the defendant qualifies as a "poor person" defined as a person unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life. The restoration of Maynes' freedom was also the restoration of his ability to work, and so justified the trial court's order that he pay the statutorily mandated court costs pursuant to KRS 23A.205.


SENTENCING ALERT:  Trial counsel must now address court cost issues at sentencing and should put on evidence either that the sentence imposed is so long that the defendant should be exempt because he won’t be able to pay in the “foreseeable future,” or --if he will be released in the “foreseeable future”-- he should be exempt because he either has too many dependents, or is disabled or otherwise incapable of obtaining or holding a job.

Contributed by Susan Balliet