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
To-Be-Published

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
To-Be-Published

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

M
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