Tuesday, February 21, 2017

KYSC - Champion - 1st Amendment



2015-SC-000570 (February 16, 2017)
TO BE PUBLISHED – 

Dennis Champion was arrested for violating a Lexington-Fayette County Urban County Government ordinance that sought to restrict panhandling; “No person shall beg or solicit upon the public streets or at the intersection of said public streets within the urban county area.”  Despite cogent challenges to the statute in the lower courts, it was not until the Kentucky Supreme Court accepted discretionary review were Mr. Champion’s free speech rights vindicated.  

The Court held that the ordinance was unconstitutionally overbroad after applying strict scrutiny review as the ordinance sought to regulate the content of speech in public fora.  The Chief Justice, writing for the Court, eloquently held:  “The true beauty of the First Amendment is that it treats both Cicero and the vagabond as equals without prejudice to their message. Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.”  The Supreme Court remanded the matter back to the Fayette District Court with instructions to dismiss the charge.

Contributed by Linda Horsman


Friday, February 17, 2017

KYSC - Murphy - Threat of Physical Force and Improper Closing



2015-SC-000487 (February 16, 2017) 
TO BE PUBLISHED – 

Rex Murphy met a young man in church and later became his Sunday school teacher.  After the young man turned sixteen, Rex and he began a sexual relationship.  Rex told the sixteen year old that he had special powers and could sense that he was homosexual so he would help him resist the urges.  The sexual relationship started when Rex allegedly asked the young man to put his penis in Rex’s rectum and ended when Rex’s wife almost discovered the two engaged in a sexual act.  The young man said that he did these sexual things with Rex because he was afraid that if he did not do them, that Rex would use his magic powers to erase his mind.  The Kentucky Supreme Court held that threats to use “black magic” in order to erase someone’s mind were not threats of physical force.  And, that the threats of the use of “black magic” were not temporally related to the sexual encounters; i.e. the threats did not coerce the young man into the acts.  As a result, the Kentucky Supreme Court concluded that Rex was entitled to a directed verdict on the charges of First Degree Sodomy and First Degree Sexual Abuse. 

          The Court also had strong words against the Commonwealth’s closing arguments in the case and admonished the Commonwealth not to repeat the conduct. 

Contributed by John Landon

Tuesday, January 31, 2017

KYCOA - Duncan - Illegal double enhancement



Errick Duncan v. Com., Kentucky Court of Appeals, Not to be Published (1/13/17)

The trial court subjected Mr. Duncan to an illegal double enhancement when he was convicted of being a First Persistent Felony Offender First Degree Trafficking in a controlled substance, second offense. Accordingly, Mr. Duncan’s PFO conviction was vacated by the court. 

Notably, Morrow v, Commonwealth, 77 S.W.3d 558 (Ky. 2002) has been superseded by virtue of passage of HB 463. One of the changes is that under KRS 532.080(10)(a), PFO status is not applicable to “a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification,” i.e. one cannot be convicted for a second offense and subjected to a PFO enhancement. 

Mr. Duncan was represented by Erin Hoffman Yang on appeal and Adam Sanders at trial.