Wednesday, March 28, 2012

KY SC March 22 - Callahan - Object to ???corpus delicti??? prior bad acts evidence

GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.


Object to “corpus delicti” prior bad acts evidence.           

Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred.  Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:

VENTERS, J., CONCURRING: The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b).


We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v. Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior objectbad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened. Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing. This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations.


We have never offered a sound rationale for question that I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts. We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.

Schroder and Scott, JJ., join.


Contributed by Susan Balliet


Sunday, March 25, 2012

Important New Court Costs Case - Maynes v. Commonwealth


2010-SC-68-DG  - March 22, 2012, Affirming.

“Needy" persons under KRS 31.110 who qualify for DPA representation are no longer automatically immune from the court costs imposed by KRS 23A.205.  “A person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney and yet may not qualify as ‘poor’ under KRS 23A.205 unless he is also unable to pay court costs without ‘depriving himself or his dependents of the necessities of life, including food, shelter or clothing.’”  Under KRS 23A.205 the defendant must be able to pay court costs at the time of sentencing or "in the foreseeable future."  Since Maynes' plea agreement released him from prison, he would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205.

KRS 23A.205 requires imposition of court costs unless the defendant qualifies as a "poor person" defined as a person unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life. The restoration of Maynes' freedom was also the restoration of his ability to work, and so justified the trial court's order that he pay the statutorily mandated court costs pursuant to KRS 23A.205.

SENTENCING ALERT:  Trial counsel must now address court cost issues at sentencing and should put on evidence either that the sentence imposed is so long that the defendant should be exempt because he won’t be able to pay in the “foreseeable future,” or --if he will be released in the “foreseeable future”-- he should be exempt because he either has too many dependents, or is disabled or otherwise incapable of obtaining or holding a job.

Contributed by Susan Balliet

Tuesday, March 20, 2012

Juvenile LWOP - SCOTUSblog recap of Tuesday's SC oral arguments


Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise.  If the indications from a one-hour hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers.  And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger.  In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer.

Continue reading »

Transcripts of Tuesday’s oral arguments in Miller v. Alabama and Jackson v. Hobbs

Thursday, March 15, 2012

ABA Resource - Think Before You Plea: Juvenile Collateral Consequences in the United States

The Juvenile Collateral Consequences Project is an endeavor undertaken by the American Bar Association to document and analyze the significant hardships experienced by youth who have come in contact with the juvenile justice system. These hardships, known as collateral consequences affect youth who have successfully completed a sentence imposed by the court. The hardships include barriers to education, employment, and public benefits.

Juvenile Collateral Consequences in Kentucky

Sunday, March 11, 2012

KY COA March 7th - Cornelius - Bootstrapping tampering charge

Cornelius v. Commonwealth  2009-CA-1624  To be published

Cornelius was convicted of possession of marijuana and tampering with physical evidence after an officer found a bag of marijuana in his front pocket during a pat down search.  The Court of Appeals relied on Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011), to reverse his tampering conviction.  In Mullins, the Supreme Court stressed that the Commonwealth cannot bootstrap a tampering charge onto another charge when there is no evidence of an active intent by the defendant to impair the availability of evidence.

The Court of Appeals found that Cornelius did not take an additional step or active attempt to impair the availability of evidence.  Placing the marijuana in his pocket was tangential to the continuation of the possession offense.  The Court found that placing marijuana in an outer clothing pocket is analogous to a shoplifter who hides property on his person to avoid detection.  The concealment must be to prevent the evidence from being used in an official proceeding, a fact that is lacking in the typical shoplifting situation.  Concealing illegal drugs in a conventional location such as a pocket is directly incident to a possessory offense.  Were it not, a defendant would be required to have had the illegal drugs in plain view to avoid a tampering charge.

Contributed by Steven Buck

Wednesday, March 7, 2012

Op-ed - Prosecutors: Ky. capital punishment unfair

Prosecutors: Ky. capital punishment unfair

Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death sentence overturned on appeal by Kentucky or federal courts because of significant legal errors. That is an unacceptable error rate of more than 60 percent.

Kentucky's justice system is at an historic moment. As a matter of basic fairness, we must pause to understand and reform the way capital punishment is administered in our state.

Each of us is a current or former prosecutor, some of whom have prosecuted capital cases in our commonwealth.

As prosecutors, we continue to believe that heinous criminal conduct must be punished severely in a way that advances public safety.

However, punishment must be a result of a fair process that produces valid results in which we have full confidence. It is time to suspend executions in Kentucky until the reforms recommended by a groundbreaking professional study are implemented.

This column is signed by John L. "Jack" Smith, former U.S. Attorney for the Western District of Kentucky; Alexander T. "Sandy" Taft, former U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, former U.S. Attorney for the Western District of Kentucky and former Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, former Jefferson County Commonwealth's Attorney; Michael J. "Mike" O'Connell, Jefferson County Attorney; Joe Gutmann, former Jefferson County Assistant Commonwealth's Attorney; Scott C. Cox, former Assistant U.S. Attorney; Larry D. Simon, former Jefferson County Assistant Commonwealth's Attorney; Will Collins, former Letcher County Commonwealth's Attorney; Jeffrey A. Darling, former Fayette County Assistant Commonwealth's Attorney; J. Stewart Schneider, former Boyd County Commonwealth's Attorney.

Tuesday, March 6, 2012

KY SC Feb 23 - James

Joseph Thomas James v. Commonwealth 2010-SC-275  To be published

James was not entitled to a directed verdict for rape. He beat his on again off again girlfriend for hours, and had intercourse with her. She testified that she had sex in an attempt to “calm him down.” James argued that there was no forcible compulsion because the victim consented to sex in order to placate James.  The Court disagreed, holding that James’ act of beating her for hours allowed the jury to conclude she was compelled to engage in intercourse by force or threat of force.

                Further, there was no error in admitting the unredacted report of the SANE nurse characterizing the complaining witness as a rape victim. Though the report was inadmissible “triple hearsay,” there was not a specific objection and the error was deemed harmless.  Likewise, the Court found that medical report of the SANE nurse were not formal or made for the purpose of prosecution, thus there was no Confrontation Clause violation.

Contributed by Erin Yang

KY SC Feb 23 - McPherson

McPherson v. Commonwealth  2010-SC-379  To be published

Britton McPherson and his former girlfriend, Tamala Parker, were charged with murdering, Lora Milligan, a police informant.  Parker pled guilty to second degree manslaughter and PFO in exchange for testimony against McPherson.

Reverse 404(b) evidence properly excluded and did not deny McPherson his Right to Present a Defense

Three years, prior to the murder, Parker was arrested for trafficking. She made a recorded call from the jail, telling the person she believed had informed on her that they “were dead.” McPherson argued her prior threat would serve to impeach her testimony and show she was violently inclined towards anyone who informed against her, thus more likely she committed the murder of Milligan.

The Court held the evidence was properly excluded as impeachment under KRE 609, since Parker did not deny the prior conviction. Further, the Court held that it was not inadmissible as reverse 404(b) evidence. Though both acts involved violence, or a threat of violence, against an informant, a threat made from jail three years prior was too remote in time and not sufficiently similar to the act of killing an informant and disposing of her body.

The Court held that exclusion of the evidence did not abridge McPherson’s right to present a defense, since it was “marginally relevant” and he was able to argue his aaltperp evidence against Parker through other means.

McPherson was not Entitled to a Missing Evidence Instruction

The Court found that McPherson was properly denied a missing evidence instruction after a detective destroyed his notes from an interview of Tamala Parker after drafting a report. The Court dismissed the act as “ a matter of routine housekeeping rather than suppression of evidence.” Continuing to place an undue burden on defendants, the Court found because McPherson could not prove ill intent, or that exculpatory information was contained in the notes there was no error.

McPherson was not entitled to be sentenced by the Trial Court

McPherson argued he was entitled to be sentenced by the trial court after the jury failed to agree on a sentence, and objected to the empaneling of a second jury for sentencing.  The Court found no error under KRS 532.055, because a jury was required to make findings regarding aggravating factors.

Contributed by Erin Yang

Monday, March 5, 2012

Bryan Stevenson: We need to talk about an injustice - TED Talk

In an engaging and personal talk -- with cameo appearances from his grandmother and Rosa Parks -- human rights lawyer Bryan Stevenson shares some hard truths about America's justice system, starting with a massive imbalance along racial lines: a third of the country's black male population has been incarcerated at some point in their lives. These issues, which are wrapped up in America's unexamined history, are rarely talked about with this level of candor, insight and persuasiveness.

Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, fighting poverty and challenging racial discrimination in the criminal justice system.

Click here to see video or play in the embedded video below.

KY COA Feb 24th - Phillips

George Phillips v. Commonwealth 2010-CA-000969-MR

Rendered February 24, 2010.  To be published. 

Phillips began his sentence in 1983.  He was sentenced to three separate ten years sentences on rape, sodomy, and burglary.  The final judgment and DOC had the convictions listed in that order. 

Phillips argued he had to serve the sentences in that order and that with time credits he had served out on his qualifying sex crimes prior to the 1998 and 2000 amendments to SORA (requiring sex offenders to register) and thus was not required to register.  Those amendments only applied to people sentenced or incarcerated after their effective date. 

Although he was still incarcerated, Phillips argued that he was no longer serving on the sex offenses but, rather, on the burglary offense.  The Court of Appeals found that under KRS 532.120(1)(b), the maximum terms of consecutive sentences are added to arrive at an aggregate maximum term.  Since he was still incarcerated when the amendments took effect, the Court of Appeals found he was still serving on the rape and sodomy convictions because they are part of one aggregate term.

Contributed by Brandon Jewell 

Sunday, March 4, 2012

KY SC Feb 23 - Barnhill

Douglas Barnhill v. Commonwealth2010-SC-184 (not to be published)

The Court held it was error for the trial court to refuse to instruct on 2d-degree manslaughter.  The trial court instructed the jury on intentional murder, wanton murder and reckless homicide.  The Court also was troubled by the prosecutor’s histrionics during the trial, including making the defendant lay prone in front of the jury while answering the prosecutor’s questions.

While Barnhill was on the stand, the Commonwealth asked him to
demonstrate how he fell with Kiara. Barnhill demonstrated how he fell and ended up on his stomach, face-down before the jury. The prosecutor ordered Barnhill to remain in this prone position on the floor as he continued questioning him. And, over Barnhill's objection, the Commonwealth was allowed to continue questioning him from his position on the floor. After a second objection, Barnhill was allowed to arise from
the floor. In its closing statement, the Commonwealth stated, "And if defense counsel is upset because I showed his client little or no use for him, it's because I believe the evidence is overwhelming that he clearly beat a child to death. So in my eyes, I treated him the way he should have been treated."

Contributed by Erni Yang

Thursday, March 1, 2012

KY SC Feb 23 - Dunn

Michael Dunn v. Commonwealth, No. 2010-SC-000234-MR To Be Published


Dunn was sentenced to 10 years for each of 5 counts of forcible sodomy consecutive for 50 years.

Practice Tips regarding bills of particulars and motions for change of venue:  Make sure you get a ruling on your motion for bill of particulars, especially in a case with multiple identical counts.  If you are fighting a serious venue challenge, renew the motion for change of venue at the close of voir dire.  Also be sure to object to any jurors who are seated who are arguably biased because of pretrial publicity, and if you are forced to use a peremptory strikes to remove such a juror, state the venue grounds on the record.
Search and Seizure.  The area searched was a wooded area estimated at 300 to 400 feet from Dunn’s house near a deer blind on Dunn’s property. The property was partially fenced at the boundaries.  Dunn had posted no trespassing signs and put a stay-away notice in the paper. The police had to climb a fence to get to the area.  Still, this wasn’t protected curtilage because it was not an enclosure immediately adjacent to the house readily identifiable as part and parcel with the house.  A condom found in this area was admitted into evidence.

Bill of Particulars   The indictment listed seven identical counts of sodomy.  Dunn moved for a bill of particulars, but failed to press the court for a ruling.  So Dunn lost on this issue.

Two counts the prosecutor said were not included.
Dunn lost the bill of particulars issue despite the fact that he was assured by Trooper Hunt at a pre-trial bond hearing that none of the charged counts occurred at a certain unfurnished house near the Powell County line.  The bond hearing occurred a year and two months before trial.  Dunn didn’t act surprised or object at trial when the victim testified to two incidents at the unfurnished house, and appeared prepared to attack the allegations.  Nor did he raise the issue in a motion for new trial.  This was not a palpable error.

Rape Shield / KRE 412(c)(2) hearing regarding false allegation of sexual misconduct
    Dunn argued he was denied a hearing under KRE 412(c)(2) to show the victim had falsely accused a school janitor of trying to sexually assault him. Held: the purpose of such a hearing is to benefit the victim not the accused perpetrator.  To be entitled to such a hearing the defendant must make a preliminary showing that the prior accusation was demonstrably false.  Then the victim is entitled to a hearing before the evidence is introduced, presumably to show the prior accusation was not false.

Victim’s psychotherapy records, possible exculpatory evidence
 The trial judge reviewed the victim’s psychotherapy records and turned over documents it considered exculpatory, but didn’t turn over information that the victim had been physically abused by his father four to six years before.  Dunn argued it was exculpatory because it explained the victim’s motive to fabricate allegations against Dunn, to deflect his father’s anger to Dunn.  The Court ruled this was too speculative and attenuated.

Change of Venue
    A jury was seated, and so there was no error.  Also, the failure to renew the motion for change of venue at voir dire waived the issue.  In addition, Dunn didn’t argue that any jurors who were seated were biased because of pretrial publicity, nor did he say he was forced to use peremptory strikes to remove such jurors.

Jurors with family members who were victims of sexual abuse
   One juror whose daughter had been sexually abused, and another whose wife had been sexually abused both said they could be fair.  That was sufficient.

Contributed by Erin Yang