Friday, August 26, 2016

KYSC - Jenkins - Unanimity and other issues



David Alan Jenkins v. Comm., affirming in part, reversing in part, and remanding, Kentucky Supreme Court, To Be Published
71 page Opinion. Convictions for rape first and sodomy first, forty-year sentence.     

·        Reversal of sodomy conviction b/c of unanimity issue in jury instruction.

·        Very, very slight evidence of physical force was sufficient to raise a jury question on rape and sodomy. 

·        No error in refusal to provide a sexual misconduct jury instruction; sexual misconduct is not a lesser included of rape. Sexual misconduct available only where non-consent is based on age.  But see dissents, below.

·        Complaining witness’s testimony that Jenkins committed the same acts against her as a child was relevant to motive and lack of consent.  No 404(b) violation. 

·        No abuse of discretion in trial court’s allowing portions of Jenkins’s post-polygraph interview into evidence, rejecting Jenkins’ arguments on rule of completeness and being forced to  give up his right to defend himself in order to exercise his right not to be convicted based on unreliable polygraph evidence.

·        Dissents: Cunningham, joined by Venters, and Venters, joined by Cunningham, would have overruled Cooper and held sexual misconduct to be a lesser included offense of forcible rape. 

Susan Balliet represented Jenkins on appeal.

Tuesday, August 2, 2016

KYCOA - Muchrison - Withdrawal of Counsel for Conflict



Brian Muchrison v. Commonwealth  Kentucky Court of Appeals, to be published (7/8/16).  

Muchrison appealed from a jury conviction where he was sentenced to ten years for the offense of first degree trafficking in a controlled substance and being a first-degree persistent felony offender.  The day (hours really) before trial the Commonwealth provided discovery to Muchrison’s trial attorney that the confidential informant (Suister) with whom Muchrison allegedly conducted the drug transaction with had originally acted with the intention of “helping Christopher Trent with his current charges,” which were the same charges for which Muchrison’s trial counsel was also representing Trent. Trial counsel for Muchrison contacted the Kentucky Bar Association’s Ethics Hotline, and his contact advised him that he had a conflict, but it would be several days before a formal letter memorializing that opinion could be issued. Trial counsel for Mr. Muchrison moved to withdraw because of the conflict and the trial court denied the motion finding that no conflict existed, but nonetheless ordered Muchrison’s trial counsel to no longer represent Trent.

Each judge on the Court of Appeals panel wrote a separate opinion (Judges Combs, Lambert, and Vanmeter). The majority, Judges D. Lambert and Combs found the following when the Court concluded that reversible error occurred when the trial court failed to permit Muchrison’s trial counsel to withdraw:

“The trial court’s ruling diminishes the fact that trial counsel’s original source of information, which he would later need in order to effectively represent
another client, was a confidential communication with his client. Further, the identity of the confidential informant was exactly that—confidential—until such
time as the Commonwealth made it a matter of public record mere hours before trial. The trial court also clearly recognized the potential presence of a conflict of
interest; otherwise the order for trial counsel to discontinue representation of Trent served as a completely moot gesture.

That Muchrison’s trial counsel was able to find a different line of questioning to establish Suister’s motive to fabricate a narcotics transaction is
immaterial. The conflict manifested itself the instant trial counsel was forced by his obligations to Trent to search for such alternative line of questioning. The
ethical dilemma placed on trial counsel by the trial court’s ruling limited his ability to cross-examine a critical witness, and thus deprived him of the right to effective
counsel.”

Judge Combs concurred but wrote a separate opinion which stated: “In addition to its error in failing to allow counsel to withdraw, I would hold that the trial court also committed reversible error in failing to sanction the Commonwealth for its highly dilatory conduct in disclosing (“mere hours” before trial) Suister’s involvement with Trent. Its conduct directly affected the issue of conflict of interest, which caused the reversal of a criminal conviction. Sanctions should have been imposed.”

Judge Vanmeter dissented in a separate opinion arguing that there was no conflict and that a continuance would have been a sufficient remedy to the Commonwealth’s late notice.  

Joshua Hitch represented Mr. Muchrison in Mason Circuit Court.  
Jason Apollo Hart represented Mr. Muchrison on appeal.

*This case is not yet final, the Attorney General’s Office filed an motion for discretionary review in the Kentucky Supreme Court. Linda Horsman is representing Mr. Muchrison on further appellate proceedings.

Trial Tip: Consider filing Giglio motions that cite this case, when and if it becomes final to argue for a reasonable if not immediate disclosure of who the confidential informant is and what they got for working with the Commonwealth.

Monday, August 1, 2016

KYCOA - Bentley - Insurance company is not a victim for restitution purposes



Kentucky Court of Appeals, to be published (7/29/16).  

Bentley entered a conditional guilty plea to receiving stolen property.  He was ordered to pay restitution of $1,000 to the victims of the theft and $11,000 to the victims’ insurance provider.  The insurance company had paid the victims $12,000 under a homeowner’s policy, with $1,000 amounting to the victims’ deductible under the policy.  The Court of Appeals reversed the portion of the final judgment ordering restitution to the insurance provider because the insurance company was not a victim in this case as defined by KRS 533.030(3).  

The Court distinguished Bentley’s case from Commonwealth v. Morseman because, while the Morseman Court found it was proper for that defendant to pay restitution to an insurance company, it was only because that insurance company was the victim of the crime for which Morseman was convicted, insurance fraud.  The Court affirmed the portion of the judgment ordering Bentley to pay restitution of $1,000 to the victims because the victims had paid that amount out-of-pocket to cover their deductible.  

Matt Michalovic represented Mr. Bentley in Letcher Circuit Court.  
Steven Buck represented Mr. Bentley on appeal.

Monday, June 27, 2016

Gov. Bevin Announces Kentucky-led Council on Criminal Justice Reform

Bipartisan council will undertake a comprehensive review of justice policy for reforms next year.

With prisons at capacity, overdose deaths on the rise, and families fractured by incarceration, Gov. Matt Bevin today announced plans to seek a smarter, compassionate, evidence-based approach to criminal justice in Kentucky.

Standing in the Capitol Rotunda with a broad coalition of lawmakers, advocates and policy leaders, Gov. Bevin introduced his newly-formed Criminal Justice Policy Assessment Council. The 23-member panel will seek expert advice & study data-driven evidence over the next six months and recommend reforms in the 2017 General Assembly for a smarter, stronger and fairer system of justice.

“From the very beginning, America has been a land of second chances. Even so, many in our criminal justice system are not given a path forward to become productive members of society after they have served their time,” said Gov. Bevin. “I believe in the importance of supporting basic human dignity. When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits. I am excited today to announce the formation of the Criminal Justice Policy Assessment Council. Their purpose is to carefully study and then suggest actionable policy solutions for improving our criminal justice system.”

Justice and Public Safety Secretary John Tilley will lead the council, and Lt. Gov. Jenean Hampton will serve as Special Advisor to the committee and Liaison to the Governor.

"While we have made great strides, Kentucky can get smarter on crime while remaining tough on criminals,” Secretary Tilley said. "By using data-driven policy and clear evidence, we can cut re-offense rates, improve reentry, increase drug treatment and treat mental illness – all while maintaining, and even bettering public safety.”

The U.S. Justice Action Network’s Jenna Moll presented at the first meeting of the council on the Lessons from the States: How a Country is Correcting their Corrections. Her presentation can be downloaded, HERE.

Thursday, June 23, 2016

KYSC - Manery - Right to Cross Lab Tech

Ernest Manery v. Commonwealth, 14-SC-666-MR (rendered 6/16/16)(to be published).  Mr. Manery was convicted on multiple counts of first-degree rape, first-degree sexual abuse, and first-degree PFO, and was sentenced to LWOP-25.  The Court reversed and remanded for a new trial.

The alleged victim, a minor, tested positive for gonorrhea.  Police secured a search warrant for testing of Mr. Manery, and the jail doctor ordered the test, which was “presumptively positive” for gonorrhea.  At trial, the jail doctor testified about the test results.  The Court held that Mr. Manery’s right to confront the witnesses against him was violated when the trial court allowed the test results to be admitted at trial without the testimony of the lab technician.  This was clearly testimonial: “When the analyst at Quest conducted the test, any positive results for gonorrhea would doubtlessly inculpate Manery with the crimes alleged by Jane, and there was no broader purpose beyond identifying the perpetrator of these sex crimes. So we have no doubt that the report in this case is properly considered testimonial for purposes of the Confrontation Clause.” Slip Op. 10.  

Sheena Baylon represented Mr. Manery before the Boone Circuit Court.  Emily Rhorer represented him on direct appeal before the Kentucky Supreme Court.

Wednesday, June 22, 2016

June 2016 Advocate now available online

FEATURED IN THIS MONTH'S ADVOCATE:
  • Felony Expungement Law Passes
  • 2016 New Legislation
  • It's Time for Criminal Justice Reform in Kentucky
  • Misdemeanor Jail Credits
  • Fayete Child Support Specialty Court
  • 2016 DPA Recognition Ceremony

Thursday, June 9, 2016

KYCOA - Lydon - Knock and Talk/Exigent Circumstances



Ian Lydon v. Commonwealth, Opinion Reversing and Remanding, To be Published

On a grant of discretionary review, Lydon argued that the circuit court erred in affirming the district court’s decision overruling his motion to suppress evidence observed and photographed when police entered his home without a warrant. The subject incident occurred when officers were looking for a juvenile who was involved in an incident earlier that day, and they received information that the juvenile was at appellant’s apartment. The officers conducted a knock and announce at the front door of appellant’s apartment. Lydon was confronted about the missing juvenile and the smell of marijuana. Before Lydon could answer, the officers entered the home. 

The Court of Appeals noted that the only indicia of criminal activity at the time of entry was the odor of burning marijuana, which can create probable cause but is insufficient, by itself, to create exigent circumstances justifying a warrantless entry. By the time the officers saw the juvenile for whom they were searching, they had exceeded the bounds of their knock and talk and were in a place they had no legal right or justification to be. 

Bill Maddox represented Mr. Lydon in district court and circuit court
Erin Yang represented Mr. Lydon on the Court of Appeals