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