Monday, July 11, 2011

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