KYCOA - Brewer- Exigent Circumstances for Search

Barney Brewer v.Commonwealth – 2012-CA-001312 – Rendered 6/21/13 - Not to be published

This case was affirmed in part, reversed in part and remanded to the Wolfe Circuit Court after the panel of the KY Court of Appeals determined that substantial evidence did not support the trial court’s finding that either hot pursuit, fear of destruction of evidence, or personal safety justified officers’ warrantless entry into a home. 

The KSP had received a tip that the manufacture of methamphetamine was occurring at Mr. Brewer’s home. Several hours later, after gathering units from surrounding counties, the officers decided to conduct a “knock and talk.” When the Troopers saw Appellant run out of the back of the house, officers entered the property and apprehended him. Once in the backyard, an odor was detected. Troopers entered the home without a warrant. At the suppression hearing, the officers had testified that they conducted a “person search” of the home “for officer safety.” The trial court initially found that “hot pursuit” and “destruction of evidence” exceptions to the warrant requirement applied, and then further the “emergency exigent circumstances doctrine” due to the “explosive” nature of meth manufacturing. The Court of Appeals held that Brewer’s decision to flee gave rise to circumstances which justified the officers’ entry into the backyard, but that all three theories of exigency were unsupported by the record. The Court remanded the suppression issue to the trial court for further proceedings to determine whether other exigent circumstances were present to justify the officers’ entry. 

Mr. Brewer was represented at trial by Hon. Miranda Stevens.  Molly Mattingly represented Mr. Brewer on appeal.

Contributed by Karen Maurer 

KYCOA - Lowe - Contempt

Leslie Michael Lowe v. Commonwealth – 12-CA-46 – Rendered 6/21/13, Not to be Published. 

The Court affirmed Mr. Lowe’s conviction and sentence, but reversed the trial court’s contempt finding and remanded for additional proceedings to comport with the due process of law. Mr. Lowe cussed twice on his way out of the courtroom as the jury left to deliberate the sentencing. After the jury returned with a verdict and was dismissed, the trial court found Mr. Lowe in contempt for cussing and sentenced him to six months. The trial court could have immediately found Mr. Lowe in contempt right after he cussed. But due process rights attach when the contempt ruling was delayed. So when there is a break in the proceedings between the cussing and the finding of contempt, it was palpable error for the trial court to not give Mr. Lowe due process rights (an opportunity to be heard). Robert Yang of the Appeals Branch represented Mr. Lowe on appeal.

Contributed by Karen Maurer 

July 2013 Advocate Newsletter on New Legislation is now available

click here to access

KYSC - Kerr - Anonymous Tip, HB 463

Barry Kerr v. Commonwealth, 2011-SC-000247-MR (6/20/13)

The Court reversed and remanded for a new trial after the jury was not told about an anonymous tip that Mr. Kerr was selling drugs out of a motel room.  This was pure hearsay, and admission of this was not harmless, particularly in light of the fact that the Commonwealth Attorney harped on the anonymous tip in closing arguments.  The Court noted that on remand Mr. Kerr can take advantage of HB 463 remedial penalty provisions upon his request which should be helpful to him as his current sentence is 50 years imprisonment for various drug crimes.  

Emily Rhorer represented Mr. Kerr on appeal, and Emily Reed did a great job preserving the winning issue as well as many other issues.  

Contributed by Jason Apollo Hart 

KYSC - Leger - Miranda

Delbert Leger v. Commonwealth, 2012-SC-000067-MR, (6/20/13)

Mr. Leger allegedly conned some acquaintances out of money.  KSP Trooper Allen arrested Mr. Leger.  Allen and Leger knew one another, and talked in the cruiser on the way to the sheriff’s office.  At one point, Leger volunteered an incriminating statement.  Trooper Allen told Mr. Leger his Miranda rights.  At the sheriff’s office, an interrogation began, and at one point, Mr. Leger interrupted the questioning, and asked if this was between the two of them, and Trooper Allen responded in the affirmative.  A full confession to the crimes then occurred, which the Court held must be suppressed.  Leger “effectively asked if his words would remain confidential and was expressly told that what he said would not be used against him. Artful deception is an invaluable and legitimate tool in the police officer's bag of clever investigative devices, but deception about the rights protected by Miranda and the legal effects of giving up those rights is not one of those tools.”  

Tim Hendrix preserved this issue at trial.  

Contributed by Jason Apollo Hart

KYSC - Smith - Diversion Revocation

Michelle Smith v. Commonwealth,  2012-SC-000034-DG, (6/20/13)

In September, 2009, Ms. Smith entered into a diversion agreement after pleading guilty to possession of drug paraphernalia, second or subsequent offense.  At the time, the crime was a Class D felony.  In April, 2010, the crime became a Class A misdemeanor.  In October, 2010, a diversion revocation hearing was held, and Ms. Smith requested that the new law be applied to her.  The trial court refused to do so, and sentenced Ms. Smith to felony time under the old law.  The Court of Appeals affirmed.  The Supreme Court reversed and remanded, holding that since no final judgment had been entered when Ms. Smith violated the terms of her diversion agreement, any law that had gone into effect that would mitigate her sentence should have been applied at her diversion revocation hearing.  Paul Sysol preserved the issue below.

Contributed by Jason Apollo Hart 

Documentary "Gideon's Army" Premieres Tonight on HBO

GIDEON’S ARMY follows the personal stories of Travis Williams, Brandy Alexander and June Hardwick, three young public defenders who are part of a small group of idealistic lawyers in the Deep South challenging the assumptions that drive a criminal justice system strained to the breaking point. Backed by mentor Jonathan “Rap” Rapping, who heads the Southern Public Defender Training Center (now known as Gideon’s Promise) they struggle against long hours, low pay and staggering caseloads so common that even the most committed often give up in their first year. Nearly 50 years since the landmark Supreme Court ruling Gideon vs. Wainwright that established the right to counsel, can these courageous lawyers revolutionize the way America thinks about indigent defense and make “justice for all” a reality?

An official selection in the prestigious U.S. Documentary Competition at the 2013 Sundance Film Festival, GIDEON’S ARMY was awarded the editing prize at the festival. The film will premiere on HBO summer 2013.

HBO DATES.
 · July 1 at 9:00 pm
· July 7 at 1:05 pm
· July 9 at 4 pm & 12:15 am
· July 13 at 9:45 am
· July 19 at 8:15 am

Representative Reviews Include:

Gideon's Army: HBO's Most Illuminating Crime Drama Since The Wire - The Village Voice

Porter's film is dramatic, unsettling, despairing, and in the end thrilling -- at some point, it grows from a portrait of this country's problems into a celebration of a possible solution. Somewhere, out there, the best of us are fighting.

Foot Soldiers in the Battle for a Fair Shake: Defending the Underclass, in ‘Gideon’s Army’ - NY Times Critic's Choice

“Gideon’s Army” is a bare film with no narrator and a minimal soundtrack. That’s all it needs to grab you by the throat.

 Gideon's Army: Sundance Review _ Hollywood Reporter

Overall, Gideon’s Army is an eye-opening insight into a judicial hellhole world that ordinary citizens can never imagine.  Throughout the unsung heroism of these three warriors in the legal trenches is fittingly stirred.

Note - Eight Kentucky public defenders are participants in "Gideon's Promise", the organization highlighted in the film.   Several other  Kentucky public defenders are part of the faculty.