Tuesday, August 25, 2015

KYCOA - Brann - Probation Revocation

Michael Brann v. Commonwealth, COA, 8/21/15, to be published.
The Court of Appeals vacated and remanded the Grave’s Circuit Court’s Order revoking Brann’s probation for further consideration of KRS 439.3106. The Kentucky Supreme Court granted discretionary review and remanded the case back to the Court of Appeals for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). 
Brann was charged with violating the conditions of probation as follows: 1) failure to attend treatment for substance abuse; 2) falsifying a police report; and 3) failure to report to probation officer. Brann did not dispute his violations but argued that they were insufficient grounds to revoke his probation under statute. The Court of Appeals found that, “In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.”
Jason Apollo Hart of the Appeals Branch represented Mr. Brann on Appeal and Nathan W. Goodrich preserved this issue for appeal in the circuit court.

Friday, August 21, 2015

KYSC - Hall - Gruesome Photographs

Berry Hall v.Commonwealth, 12-SC-423-MR (rendered 8/20/15)(to be published).  Reversed.
Mr. Hall’s two convictions for murder (guilty but mentally ill) and four convictions for first degree wanton endangerment, and his corresponding LWOP sentence, are reversed, and a new trial ordered.  The Court reversed because of the admission of 28 gruesome photographs.  They “substantially influenced the jury's decision to reject the defendant's affirmative defenses and, instead, convict him of intentional murder. The fact that Hall was found guilty but mentally ill drives home this point since the jury clearly put some stock in Hall's claims of insanity and EED; and the emotional responses flowing from the error here certainly would have influenced the final balance tilting in favor of a verdict of guilty but mentally ill rather than not guilty by reason of insanity or, more likely, a finding of guilt as to first-degree manslaughter under EED.”

            Practice tip:  One trying a case involving photos should read this opinion. The trial court must engage in three-prong KRE 403 analysis when confronted with a motion to exclude photographs.  The trial court should (1) assess probative worth of proffered evidence; (2) assess the risk of undue prejudice; and (3) evaluate whether probative value is substantially outweighed by the undue prejudice. While the Commonwealth can choose to put on its case as it sees fit, “the Commonwealth's prerogative in dictating the specific evidence used to prove its case is not without limit, and Rule 403 is perhaps the most important check on the Commonwealth in this respect.”

The analysis of probative value is not to be done in a vacuum—the trial court must consider other evidence that has or will be admitted, and evidentiary alternatives.   When considering undue prejudice, the court should consider “emotionalism”—does the evidence arouse passions and sympathies, obstructing careful thought and judgment?  The court should make findings documenting its ultimate decision.  The Court wants this done picture by picture, and for each picture the court must consider any other pictures that have already been admitted, as well as all the other evidence. 

Will Collins, Steve Goble, and Jim Gibson represented Mr. Hall before the Floyd Circuit Court, and Emily Rhorer represented him on direct appeal to the Kentucky Supreme Court.