Monday, March 31, 2014

KYCOA - Mickey - Search incident to Arrest and Automobile Exception

Mickey v.Commonwealth, 2012-CA-000723-MR

Holds that the arrest of the driver of a car for driving on a suspended license was illegal because a new statute already in effect required a citation only. The arrest led to the smell of marijuana after the officer removed the defendant from the car, and a subsequent search finding additional contraband was held to be improper. An interesting wrinkle was that after the defendant was placed in the police cruiser it was determined that there were warrants out for his arrest. The court held that the search would still have been invalid under Gant since the defendant was already in the police cruiser when they found out about the warrants.  

This was a conditional guilty plea based on a motion to suppress filed by Herb West of the Lexington office. Gene Lewter handled the direct appeal. 

Contributed by Shannon Smith

Friday, March 28, 2014

KYSC - Galloway - Insufficient Evidence Assault 4th Third Offense

Darryl Galloway v. Commonwealth, KSC, 12-SC-701, 3/20/14, to be published- The Kentucky Supreme Court held there was insufficient evidence to prove fourth degree assault third offense. The Court held the statutory requirement that the two prior assault convictions be against family members or members of an unmarried couple makes them essential elements of that offense. Thus the testimony of the detective that Mr. Galloway had two prior convictions for domestic violence was insufficient, and to sustain a conviction the Commonwealth would have had to present “proof of the identity of the victim and the nature of the relationship between the perpetrator and the victim.”  

James Rhorer represented Mr. Galloway at trial and Kathleen Schmidt won the appeal.

Contributed by Susan Balliet

Thursday, March 27, 2014

KYSC - Southworth - 404(b)

Donald Southworth v. Commonwealth, 2012-SC-000179, 3/20/14,  To be Published.

     The Kentucky Supreme Court reversed and remanded Southworth’s conviction and life sentence for the alleged murder of his wife Umi. DNA of an unknown individual was located inside the victim, and the Commonwealth introduced evidence--over defense objection— permitting testimony regarding Southworth’s prior act of placing of another man’s semen into someone—on the ground it was a signature act or modus operandi "because it was so bizarre.” The majority of the Court found the  evidence was irrelevant because the act of semen insertion did not involve a “unique capacity, skill, or knowledge of the defendant.” Also, there was no proof this was the method used to put the semen in Umi’s body. The admission of this other-acts evidence violated KRE 404(b) and prejudiced Southworth.  

Mr. Southworth was represented by Tucker Richardson and Russel J. Baldani at trial court and by Shannon Renee Dupree and Jason Apollo Hart on appeal. 

Contributed by Susan Balliet

Tuesday, March 25, 2014

KYSC - Hacker- opening-the-door, hearsay, and confrontation

Ray Hacker v. Commonwealth, KSC 2012-SC-000269-MR, 3/20/14, Not to be Published. Reversed and remanded 

On trial for murdering his girlfriend, Hacker testified he was on probation for being a felon in possession of a handgun. On cross the Commonwealth asked about details of his arrest and read the report which described Hacker as belligerent and screaming profanities and provided evidence he owned guns and had threatened his girlfriend’s life.

The Court rejected the argument that Hacker "opened the door" to impeachment, noting it was the Commonwealth, not the defense, who "opened the door" by asking Hacker to relay his version of events on cross-examination and then using the report to impeach him. The report conveyed impermissible hearsay and violated the Confrontation Clause of the Sixth Amendment. 

Brian Barker preserved the issue at trial. Erin Yang won the appeal.

Contributed by Susan Balliet

Monday, March 17, 2014

Kentucky Open Records Act: What You Need to Know

One of the most powerful tools available to criminal defense attorneys and investigators is the Kentucky Open Records Act (KRS 61.870 through KRS 61.884, hereinafter “KORA”). KORA was signed into law in 1976 and it establishes a right of public access to public records kept by government entities. KORA provides clever defense attorneys with access to evidence that the prosecutor most likely has not seen. Evidence obtained from KORA can be invaluable at trial as substantive evidence (subject to evidentiary and discovery rules), impeachment evidence, or prior to trial for the purposes of negotiation. Examples of evidence that I have obtained through KORA requests are police agency policy and procedure manuals, police training records, and prior police suspensions for misconduct. This article is by no means meant to be an exhaustive treatise on KORA (there are over 908 reported decisions on the statute discussing KORA exemptions alone); rather, it is written as a starting point for an attorney or investigator looking to begin improving their practice through use of KORA. For a more detailed introduction, a reader should consult Kentucky Open Meetings and Open Records Laws: Statutes and Q&A, a document put out by the Legislative Research Commission and available online at

The first step in making a KORA request is to identify the appropriate entity that keeps the record you wish to obtain. In most cases, that will be with the law enforcement agency that keeps the records you wish to acquire. After determining which agency has custody of the record, it is worth the effort of calling the office and asking who is in charge of open records requests at that office. The particular agency may have a form that they prefer you use when making a request. While KORA authorizes two forms of records inspection (in person and over mail), in practice most agencies prefer sending records over mail, even if the person does not meet the out of county requirement for KORA by mail. See KRS 61.823(3) which tells us that if a person’s primary residence is outside of the county where the record is stored, she can request that a written copy of the record be mailed to her residence or place of business. KRS 61.872(3).

Once you have identified the proper agency and have spoken to the person in charge of answering KORA requests you have to draft the request itself. It is worth the time to look at the list of materials that are exempted from KORA production in KRS 61.878. Be specific and general in your production requests; ask for any and all records that you want that you can make a good faith argument are not excluded in KRS 61.878. Sign and send the request to the person in charge of answering them. Depending on the volume of the record and the type of record, you may want to discuss with the records custodian the medium (digital or physical) you would like to receive the records in. Generally digital will be less expensive than physical (both paper and shipping costs), but if the records are kept in a physical format, KORA does not require the records custodian to convert them to digital for your convenience. KRS 61.874(2)(a).

Once an agency receives a KORA request, it has three days, excluding weekends and legal holidays to respond to the request under KRS 61.880.  If an agency denies a request, KRS 61.880 requires the agency to state in writing the specific exception preventing release of the materials.  Once a person is denied access to records under KRS 61.880(1) she can proceed to appeal or enforce KORA in one of two ways. She can either choose to proceed against the agency in an administrative process by petitioning the Attorney General to review the decision and issue an advisory opinion, KRS 61.880(2), or she can choose to appeal the denial of the disclosure in the Circuit Court for the county that the agency sits in. See KRS 61.882. It is important to note that the first method gives the attorney multiple “bites at the apple” on appeal. After having a decision to deny disclosure affirmed by the Attorney General, an attorney can still choose to appeal that decision to the local Circuit Court within thirty days of the opinion being issued. However, an attorney may feel that a local Circuit Court is more likely to be sympathetic to her cause. If this is the case, she can bypass the KRS 61.880(2) process and proceed directly to Circuit Court under KRS 61.882.

Contributed by Brad Clark