Monday, October 31, 2011

Featured Case - Buchanan - Costs

Gloria Buchanan v. Commonwealth


Opinion dated October 28, 2011

Not to be published. 

The Court of Appeals, among other things, affirmed the trial court’s decision to impose “court costs, fines, and/or fees in the amount of $295.00” following Ms. Buchanan’s conviction of Wanton Exploitation of a Vulnerable Adult.  The Court of Appeals held that it was not palpable error in this case.  Trial Practice Tip: Object and argue that the client is a poor person and cannot pay court costs, fines, or fees.

Contributed by Robert Yang

Featured Case - Smith - Dismissal with Prejudice

Commonwealth v. John Smith


Opinion dated October 28, 2011, to be published. 

The issue in this case was whether a circuit court may convert a “dismissal of a criminal indictment without prejudice” to a “dismissal with prejudice” nine years after entry of the original dismissal. 

The COA held that, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), a trial court loses jurisdiction after 10 days, so it cannot convert the dismissal.  Mr. Smith was indicted in October 2000 for Trafficking 1st, Tampering with Physical Evidence, and Possession of Drug Paraphernalia.  Evidence against Mr. Smith was suppressed after a suppression hearing.  Accordingly, the Commonwealth filed a motion to dismiss the indictment without prejudice. 

After more than nine years without any further prosecution on this case, Mr. Smith filed a motion in circuit court to expunge the indictment or dismiss the indictment with prejudice.  The trial court granted the motion to dismiss with prejudice.  The Commonwealth on appeal argued, and the Court of Appeals agreed, that the trial court lost jurisdiction to alter the order of dismissal ten days after its entry. 

The Court of Appeals does offer some possible solutions for trial counsel. First, a defendant can apply to segregate his records held by any public agency and removed from the public record.  Second, and probably the better solution, would be for trial counsel to ask the trial court to exercise its narrow but inherent power of expungement for the purpose of correcting constitutional infractions.  See Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007) (court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”).   

Contributed by Robert Yang

Friday, October 28, 2011

NCJA/BJA Webinar: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes

NCJA and the Bureau of Justice Assistance for the next webinar in our monthly series: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes on November 30, 3-4 p.m. Eastern.

Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes will focus on two public defender offices who are using innovative programs to improve public safety and client outcomes. These two programs have incorporated a multi-disciplinary approach to public defense which enhances the types of services offered, helps judges make more informed decisions and prevents increased justice system expenditures.

Presenters for this webinar are Robin Steinberg, executive director of the Bronx Defenders and Edward Monahan, commissioner of the KY Department of Public Advocacy.

Also, the PowerPoint slides and the webcast from our most recent webinar, Using Evidence Informed Principles in Juvenile Justice: Lowering Recidivism, Reducing Secure Detention and Promoting Positive Youth Development are available on the NCJA website at

This webinar series is supported by Grant No. 2010-DB-BX-K086 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions are those of the speakers.

KBA Kentucky Law Update Materials Available Online

Materials available at the above link include
  • Kentucky Supreme Court Update
  • Legislative Update
  • Social Media: Ethical, Practice and Forensic Issues
  • Skit Happens: Scenarios that Lead to Ethical and Malpractice Disaster
  • Kentucky Court of Appeals Update
  • Federal Court Update


Thursday, October 27, 2011

Spark of Truth: Can Science Bring Justice to Arson Trials? - Discover Magazine

Gregory Gorbett/Eastern Kentucky University

Also see the related article, "Seven Myths About Arson."

On a rainy spring morning in eastern Kentucky, Greg Gorbett prepares to commit arson. His target is a tidy but cheerless one-bedroom apartment with the kind of mauve-colored carpet, couches, tables, and lamps you would find in a cheap motel. Gorbett is not the only one eager to see the place burn. A handful of other fire scientists and grad students from Eastern Kentucky University (EKU) are checking equipment in the test room as well. They have gathered at the EKU fire lab, a concrete structure in an open meadow as close to nowhere as possible, to document in exacting detail the life cycle of a blaze.

Gorbett scans the setup one last time. A foil-covered wire studded with metal probes—a thermocouple array—crosses the ceiling and hangs down the center of the space; it will measure the temperature at one-foot intervals every two seconds. A radiometer shaped like a soup can will detect changes in radiant energy. Bundles of yellow wires will carry the data to a computer-equipped truck sitting out back. There is also a man lying on the floor: James Pharr, a former fire investigator from Charlotte, North Carolina, wearing a fire-resistant suit and oxygen mask, who will record the event with a thermal-???imaging camera.

read the rest of the article

Featured Case - Hall - Confession expert, evidence issues and discovery of witness statements

Steven Hall v. Commonwealth
No. 2010-Ca-001878-MR

Appeal From Boyle Circuit Court
Hon. Darren W. Peckler, Judge
Action No. 09-Cr-00101

Opinion Affirming, (Caperton, Combs and Thompson)
Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel.  He was convicted of second-degree manslaughter and sentenced to five-years’ imprisonment.  Four issues were decided:

(1) Expert testimony regasrding coerced confessions was inadmissible for the purpose of attacking the credibility of a police officer’s in-court testimony, distinguishing Terry v. Commonwealth, 332 S.W.3d 56 (Ky. 2010) on the facts because Hall didn’t testify and presented no evidence that his statements to the officers were coerced.  Thus the expert’s opinion wasn’t relevant.

(2) Evidence that Hall had a romantic interest in a woman other than Isabel was harmless error given the number of people who saw Hall run over his wife, but error because there was absolutely no evidence that Hall and the other woman had a sexual relationship or that the two planned a future. 
(3) It was not error to permit testimony that Hall intentionally accelerated the boat toward Isabel because the witnesses did not testify that Hall intended to kill Isabel but testified only to the facts as they were observed.  Also he was   convicted of recklessness, not intent.

(4) The Commonwealth didn’t fail to give defense counsel witness statements in violation of RCr 7.26.  The witness was interviewed twice and conveyed verbally to the officer that Hall waived Isabel’s dead hand. A witness is not required to confine testimony to “the four corners of his or her written statement.”  The remedy is cross-examination.ditions through the art of cross-examination.

Contributed by Susan Balliet

Wednesday, October 26, 2011

Featured Case - Taylor - Status as a Victim of DV

Michael Taylor  v. Commonwealth
No. 2010-CA-000674-MR

Appeal From Hardin Circuit Court
Hon. Kelly Mark Easton, Judge
Action No. 01-Cr-00429

Opinion Affirming, (Caperton, Moore, and Stumbo)

The circuit court determined that the KRS 439.3402 motion for relief  from the 85% rule based on status as a victim of domestic violence should have been brought, if at all, either at sentencing, on direct appeal, or by way of Taylor’s motions for RCr 11.42 and CR 60.02 relief.  The Court of Appeals here agrees in a published opinion.

Contributed by Susan Balliet

Monday, October 24, 2011

???Juror Pledge??? [???I will not do research on the internet???] - Jury Room Blog

read complete Jury Room post here

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .


Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 



(Sign and Print)


Dated: New York, New York

October 11, 2011

Wednesday, October 12, 2011

Case summaries 9/22/11 Kentucky Supreme Court Opinions

1)    Scott Richard Stanton v. Com., 2010-SC-102
    Todd County, Judge Tyler L. Gill,
Opinion Affirming by J. Abramson, To-Be-Published

    Stanton was convicted of rape 1 and sodomy 1 and sentenced to 20 years  Stanton confessed after a social worker told Stanton that she would seek a court order removing his wife’s children unless he cooperated with her and the police.  Held:  this wasn’t coercion and neither KRS 422.110 nor Lynum v. Illinois, 372 U.S. 528 (1903) were violated because there was probable cause to carry out the threat and the threat was conveyed in a professional manner without threatening words or tone of voice:

“This is so notwithstanding Stanton's bipolar disorder and
his low intelligence, for, as the trial court noted, there was no evidence that the investigators sought to exploit Stanton's limitations or that those limitations prevented Stanton from understanding the situation. Because there was neither wrongdoing by the investigators nor pressure to "cooperate" or to confess so great as to overbear Stanton's will, the trial court did not err by denying Stanton's motion to suppress his statements.”

2)    Thomas York, Sr., v. Commonwealth, 2010-SC-240,
    Kenton County, Judge Martin J. Sheehan
Opinion Affirming by J. Cunningham, To-Be-Published

York was convicted of first degree burglary, first degree robbery and second degree PFO and sentenced to 30 years.
      Defendant’s 5th Amendment rights were not violated by being required to recite a neutral phrase –not the threat made by the burglar--before the jury so that the victim could make an in-court identification of his voice. Proper admonitions cured other errors, thus the defendant was not entitled to a mistrial because of a reference to DNA testing or misstatements about his prior criminal record.

3)    Ronnie D. Walker v. Commonwealth, 2010-SC-409
    Jefferson County, Judge Frederic J. Cowan
Opinion Affirming by J. Abramson, To-Be-Published

  The trial court did not commit palpable error in admitting an interrogation tape containing detective’s accusations that Walker was lying and inconsistent, and other irrelevant comments.   Such remarks would have to be extremely prejudicial to merit exclusion. The trial court’s opening remarks informing the jury how to assess witness credibility were not palpably erroneous.    The burglary instruction did not allow for a non-unanimous verdict.

PRACTICE TIP:  On request a defendant is entitled to an admonishment that comments made by interrogators heard during recorded defendant interviews are solely to provide context to the defendant’s responses.
    Note that the issues regarding detective interrogation remarks and the issue regarding the court’s comments informing the jury how to assess credibility appear to have been close issues, and were unpreserved.  Trial attorneys should raise and preserve these issues for a better chance on appeal.

4)    Linvil Curtis Turpin v. Commonwealth, 2010-SC-550
Casey County, Judge Julia Hylton Adams
Opinion Affirming, by J. Abramson, To-Be-Published

Stating that a twenty year sentence cannot be characterized as grossly disproportionate, the Court upheld a 20-year sentence for possession of a firearm by a convicted felon and first degree PFO.  This did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

5)    Larry Ordway v. Commonwealth,  2009-SC-000479
Christian County, Judge Andrew C. Self
Opinion of the Court (split) Affirming in Part, Reversing in Part

The Court reversed nine counts of burglary because the instructions given for the burglary of each of nine individual storage units in one storage building were the same and did not differentiate one incident from another, causing a potential non-unanimous verdict situation. The Court also reversed one theft conviction, holding that the theft of two ATVs at the same time from the same place was a single theft.

Despite the fact that Ordway had been found not guilty of possession of a firearm by a convicted felon in a separate proceeding, collateral estoppel did not bar introduction of evidence that Ordway used a gun during the robbery, because it might have been a different gun.

6)    Reginald Lamont Whittle v. Commonwealth,  2009-SC-787
 Jefferson County, Judge Judith McDonald-Burkman
Opinion by J. Noble, Affirming in Part, Reversing in Part

Whittle was convicted of possession of marijuana, trafficking in cocaine, tampering with physical evidence and PFO I, and sentenced to 30 years. Finding a Confrontation Clause violation, citing Crawford, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the Kentucky Supreme Court reversed the trafficking and tampering convictions, but affirmed his conviction for possession of marijuana. 

The Commonwealth failed to call the lab technician who had tested the cocaine.  Another lab tech did testify, but he had not performed the test and the actual report was introduced. The Court rejected an argument by the state that Melendez-Diaz (and presumably also Bullcoming) did not apply retroactively. The Court also indicated the report would not have qualified as a business record for hearsay purposes. The Court urged that the prosecutor should make sure to introduce sufficient proof to prove the PFO count on retrial.

7)    James Demetrius Mullins v. Commonwealth, 2010-SC-000263
 Fayette County, Judge James D. Ishmael
Opinion by J. Noble, Affirming in Part, Reversing in Part

urder (30 years), tampering with physical evidence (5 years) and PFOI-35 years.

The Court reversed the tampering conviction.  The client allegedly had a gun during the crime, fled, and the gun was never found. The police never looked in the logical places the gun could have been, and waited five months to search the crime scene for the gun. The Court said it was reasonable to infer when the defendant fled, he was trying to get away, not to conceal the weapon.

Defendant waived his right to argue entitlement to an EED instruction on appeal.  Instead of simply failing to ask for the instruction, counsel stated affirmatively that he didn’t want the instruction, and said there was “no EED.”   

8)    Commonwealth Of Kentucky v. Angela Peters, 2010-SC-74
Shelby County, To Be Published
Opinion by J. Schroeder, reversing Court of Appeals (writ case)

  Overruling the Court of Appeals and upholding a circuit court order prohibiting the district court from ordering the arresting officer to attend an informal pre-trial conference to be interviewed by the defense.  A witness, even a police officer, has the right to refuse to answer questions by the defense or the prosecution before trial, citing United States v. Medina, 992 F.2d 573, 579 (6th Cir. 1993).

9)    Kenneth Jones v. Commonwealth Of Kentucky, 2009-SC-000221
Carlisle County, Hon. Timothy A. Langford
Opinion by J. Schroeder, Reversing and Remanding, To Be Published

The “no duty to retreat” language of KRS 503.055 applies only to the defendant asserting a self- defense claim, not to the victim.  The trial court erred in giving a “no duty to retreat” instruction regarding the victim’s conduct
Jones was asked to characterize the testimony of a jailer and a detective, and  the Court cautioned the trial court not to allow the prosecutor commit these Moss violations on retrial.

Contributed by Susan Balliet

Tuesday, October 11, 2011

The ???Right-to-Counsel Term??? - ACS Issue Brief

"The 'Right-to-Counsel Term',” an Issue Brief by Mary Schmid Mergler, Senior Counsel for the Criminal Justice Program at The Constitution Project, and Christopher Durocher, Government Affairs Counsel at The Constitution Project. In an increasingly complex criminal justice system, often defined by a disproportionate number of plea deals and the procedural hurdles of the appeals process, respecting the right to counsel afforded by the Sixth Amendment is essential for a fair and just system.

In “The Right-to-Counsel Term,” Mergler and Durocher preview the five cases before the Supreme Court in the 2011-2012 Term where the reach of the Sixth Amendment’s right to counsel will be considered. These cases present an opportunity for the court to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” assert Mergler and Durocher. Such recognition is necessary, Mergler and Durocher argue, to take “steps in the direction of true justice.”

Monday, October 10, 2011

No Place for Kids: The Case for Reducing Juvenile Incarceration - Casey Foundation Report

The Annie E. Casey Foundation released No Place for Kids: The Case for Reducing Juvenile Incarceration, which examines the detrimental impact of America’s over-reliance on incarceration of youth in an in-depth analysis of its effect on youth and public safety. Combining research, data and testimony, the analysis shows that America’s reliance on incarcerating young offenders has not only failed to combat youth crime but also that reducing these rates and closing facilities does not increase juvenile crime rates. Juvenile incarceration facilities:

 •                    Do not reduce future offending of confined youth: Within three years of release, roughly three-quarters of youth are rearrested; up to 72 percent, depending on individual state measures, are convicted of a new offense.

 •                    Do not enhance public safety: States which lowered youth confinement rates the most saw a greater decline in juvenile violent crime arrests than states which increased incarceration rates or reduced them more slowly.

 •                    Waste taxpayer dollars: Nationwide, states continue to spend the bulk of their juvenile justice budgets – $5 billion in 2008 – to confine and house young offenders in incarceration facilities despite evidence showing that alternative in-home or community-based programs can deliver equal or better results for a fraction of the cost.

 •                    Expose youth to violence and abuse: Nearly 50 percent of states have been sued in the last decade alone for persistent maltreatment in at least one of their institutions.  One in eight confined youth reported being sexually abused by staff or other youth and 45 percent feared physical attack according to reports released in 2010.

The report highlights best practices that some states have implemented as alternatives to incarceration. 

 For a copy of the full report, press release and issue brief, visit:

Monday, October 3, 2011

9/16 Court of Appeals - Martin - Faretta hearing & Court Costs

Martin v. Commonwealth

10-CA-322 and 10-CA-1905

9/16/11 Court of Appeals opinion - To be published.

The Court of Appeals held the trial court should have held a Faretta hearing when: the client filed pre- and post-trial pro se motions; the trial court ruled on many of those motions; and the client was also receiving benefit of appointed counsel. By ruling on the pro se motions, the court treated Martin as a pro se litigant.  Accordingly, the court should have conducted a hearing, given the warnings required pursuant to Faretta, and made a finding that his waiver was voluntary and intelligently made. The Court’s failure to do so is reversible error.

 In a 2-1 decision, this panel also distinguished Travis and held that court costs were properly imposed as a condition of probation.  This panel found that the defendant had asked to be released from custody so he could work to support his family and that he was released on probation.  Based on his stated ability to work, the imposition of court costs was not a manifest injustice.  This issue was not preserved at the trial level, so it was reviewed under the palpable error standard.  If this is an issue important to the client, raise an objection to improve the odds of winning on appeal.

Contributed by Robert Yang