Wednesday, November 18, 2015

KYCOA - Burdette - Misdemeanor Arrest

Jessica Burdette v. Commonwealth, COA, 11/6/2015, to be published.
This case is not final and a Motion for Discretionary Review will be filed in the Kentucky Supreme Court.
Following oral argument the Court found that KRS 433.236(3) is more specific and controls over the much more recently enacted KRS 431.015 which on its face does not permit peace officers to arrest shoplifters for misdemeanor shoplifting offenses not committed in their presence. “As the more specific statute, we interpret KRS 433.236 as controlling in cases of shoplifting.” Opinion at 6. “Conversely, we interpret KRS 431.015 as generally applying to other misdemeanor offenses committed in the officer’s presence.” Id.

The Opinion is troubling for several reasons. KRS 431.015 provides for exceptions for crimes committed outside of the officer’s presence such as for DUI arrests, but does not make an exception for misdemeanor shoplifting offenses. In Stogner v. Commonwealth, 35 S.W.3d 831 (Ky. App. 2000) the Court found that KRS 433.236 was more recent and more specific than the previous arrest statute KRS 431.005. However, here KRS 431.015 is unambiguous, more recent, and more specific. It is more specific in part because KRS 433.236 applies to felony and misdemeanor shoplifting offenses while KRS. 431.015 applies to misdemeanor offenses. If the General Assembly intended for shoplifting offenses to be an exception it could have easily been included in KRS 431.015, like the exception for DUI offenses. KRS 433.236(3) seems to apply well to felony shoplifting offenses but just not misdemeanor shoplifting offenses under KRS 431.015.
Jason Apollo Hart of the Appellate Branch represented Ms. Burdette on appeal and at oral argument. Cole Maier preserved this issue for appeal in the Circuit Court.

This case is not final and a Motion for Discretionary Review will be filed in the Kentucky Supreme Court.

Thursday, November 12, 2015

KYSC - Hill - Unanimous Verdicts

Howard Hill Anderson v. Commonwealth, 14-SC-153-MR (rendered 10/29/15) (not to be published).
The Court ordered a new trial in Mr. Anderson’s case due to a non-unanimous jury instruction on manufacturing methamphetamine. Mr. Anderson was indicted for manufacturing methamphetamine at his home due to the possession of two or more chemicals or two or more items of equipment. 
The trial court had allowed his alleged participation in an earlier manufacture [Drury incident] to be admitted as a prior bad act.  The court used a combination jury instruction that allowed Mr. Anderson to be convicted of manufacturing methamphetamine by the making of methamphetamine or by the possession of two or more chemicals or two or more items of equipment.  In closing argument, the prosecutor argued to the jury they could convict Mr. Anderson for manufacturing methamphetamine at his home or the Drury incident.
As the Court stated, “Up until this point in the trial, the combination jury instruction employed by the trial court in this case did not present a potential unanimous verdict problem. However, after the June 30 event was recast as a possible corpus delicti of the crime charged in the jury instructions, under the jury instruction and verdict form provided, some jurors could have believed Appellant was guilty of manufacturing methamphetamine by making meth at Drury's on June 30, while other jurors believed Appellant was guilty of manufacturing methamphetamine only because he possessed at his home on July 1 two or more of the chemicals or items of equipment needed for making meth. The creation of this possibility runs afoul of our well-delineated unanimous verdict rules.” 

          David Curlin of the Henderson office represented Mr. Anderson before the McLean Circuit Court, and Emily Rhorer represented him on direct appeal to the Kentucky Supreme Court.   

Tuesday, November 10, 2015

KYCOA- Wigginton - Use of Force

Stacey L. Wigginton- COA, 11/06/15, to be published.  Reversing.
Stacey L. Wigginton entered a conditional guilty plea to reckless homicide, a Class D felony, for killing her ex-husband and was sentenced to serve five years.  Pursuant to her plea, she appealed the Circuit Court’s denial of her assertion of immunity from prosecution under Kentucky Revised Statutes (KRS) 503.085.  Ms. Wigginton argued that the trial court applied the improper standard for determining whether she was justified in using physical force and that the Commonwealth failed to establish probable cause that her use of force was unlawful. 

The Commonwealth argued that the facts before the trial court as detailed in the discovery, medical records, and statements of Nancye Riley, Ms. Wigginton’s mother, all show that Stacey was not in imminent danger of “death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.”  See KRS 503.050(2). 

The Court of Appeals found, “According to Kentucky Supreme Court case law, the burden was not on Stacey to come forth with evidence to support her claim of immunity under the self-defense statute.  Rather, ‘[t]he burden [was] on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.’  Rodgers v. Commonwealth 285 S.W.3d 740, 755 (Ky. 2009).”  In addition to the evidence of record, there is a long line of cases allowing the admission of a victim’s other acts of violence, if known to the defendant, when self-defense is claimed.  Moreover, a justifiable fear leading to the use of deadly force can be based on prior assaults or threats.  Cases allowing such evidence have turned on threats made by the victim, or multiple instances of violence, or a substantial combination of the two. 

The Court of Appeals held, “Herein, the trial court was to assess the evidence in the record to determine whether the Commonwealth had met its burden that there was a substantial basis to make a probable cause conclusion that Staceey’s use of deadly force was not legally justifiable.  Absent this, Rodgers holds that the case should be dismissed.  The Court of Appeal, having reviewed the record, concluded that the Commonwealth did not meet its burden in this case because the statements of Stacey and Nancye certainly did not support the Commonwealth’s burden of probable cause that the use of deadly force was not justified. 

The Kentucky Court of Appeals reversed and remanded the case to the Graves Circuit Court.  Katie L. Benward, formally of the Appeals Branch and Roy A. Durham II of the Appeals Branch represented Ms. Wigginton on appeal.  Nathan Goodrich of the Murray office represented Ms. Wigginton in the trial court.    

Contributed by Kathleen Schmidt