Friday, August 26, 2016

KYSC - Jenkins - Unanimity and other issues

David Alan Jenkins v. Comm., affirming in part, reversing in part, and remanding, Kentucky Supreme Court, To Be Published
71 page Opinion. Convictions for rape first and sodomy first, forty-year sentence.     

·        Reversal of sodomy conviction b/c of unanimity issue in jury instruction.

·        Very, very slight evidence of physical force was sufficient to raise a jury question on rape and sodomy. 

·        No error in refusal to provide a sexual misconduct jury instruction; sexual misconduct is not a lesser included of rape. Sexual misconduct available only where non-consent is based on age.  But see dissents, below.

·        Complaining witness’s testimony that Jenkins committed the same acts against her as a child was relevant to motive and lack of consent.  No 404(b) violation. 

·        No abuse of discretion in trial court’s allowing portions of Jenkins’s post-polygraph interview into evidence, rejecting Jenkins’ arguments on rule of completeness and being forced to  give up his right to defend himself in order to exercise his right not to be convicted based on unreliable polygraph evidence.

·        Dissents: Cunningham, joined by Venters, and Venters, joined by Cunningham, would have overruled Cooper and held sexual misconduct to be a lesser included offense of forcible rape. 

Susan Balliet represented Jenkins on appeal.

Tuesday, August 2, 2016

KYCOA - Muchrison - Withdrawal of Counsel for Conflict

Brian Muchrison v. Commonwealth  Kentucky Court of Appeals, to be published (7/8/16).  

Muchrison appealed from a jury conviction where he was sentenced to ten years for the offense of first degree trafficking in a controlled substance and being a first-degree persistent felony offender.  The day (hours really) before trial the Commonwealth provided discovery to Muchrison’s trial attorney that the confidential informant (Suister) with whom Muchrison allegedly conducted the drug transaction with had originally acted with the intention of “helping Christopher Trent with his current charges,” which were the same charges for which Muchrison’s trial counsel was also representing Trent. Trial counsel for Muchrison contacted the Kentucky Bar Association’s Ethics Hotline, and his contact advised him that he had a conflict, but it would be several days before a formal letter memorializing that opinion could be issued. Trial counsel for Mr. Muchrison moved to withdraw because of the conflict and the trial court denied the motion finding that no conflict existed, but nonetheless ordered Muchrison’s trial counsel to no longer represent Trent.

Each judge on the Court of Appeals panel wrote a separate opinion (Judges Combs, Lambert, and Vanmeter). The majority, Judges D. Lambert and Combs found the following when the Court concluded that reversible error occurred when the trial court failed to permit Muchrison’s trial counsel to withdraw:

“The trial court’s ruling diminishes the fact that trial counsel’s original source of information, which he would later need in order to effectively represent
another client, was a confidential communication with his client. Further, the identity of the confidential informant was exactly that—confidential—until such
time as the Commonwealth made it a matter of public record mere hours before trial. The trial court also clearly recognized the potential presence of a conflict of
interest; otherwise the order for trial counsel to discontinue representation of Trent served as a completely moot gesture.

That Muchrison’s trial counsel was able to find a different line of questioning to establish Suister’s motive to fabricate a narcotics transaction is
immaterial. The conflict manifested itself the instant trial counsel was forced by his obligations to Trent to search for such alternative line of questioning. The
ethical dilemma placed on trial counsel by the trial court’s ruling limited his ability to cross-examine a critical witness, and thus deprived him of the right to effective

Judge Combs concurred but wrote a separate opinion which stated: “In addition to its error in failing to allow counsel to withdraw, I would hold that the trial court also committed reversible error in failing to sanction the Commonwealth for its highly dilatory conduct in disclosing (“mere hours” before trial) Suister’s involvement with Trent. Its conduct directly affected the issue of conflict of interest, which caused the reversal of a criminal conviction. Sanctions should have been imposed.”

Judge Vanmeter dissented in a separate opinion arguing that there was no conflict and that a continuance would have been a sufficient remedy to the Commonwealth’s late notice.  

Joshua Hitch represented Mr. Muchrison in Mason Circuit Court.  
Jason Apollo Hart represented Mr. Muchrison on appeal.

*This case is not yet final, the Attorney General’s Office filed an motion for discretionary review in the Kentucky Supreme Court. Linda Horsman is representing Mr. Muchrison on further appellate proceedings.

Trial Tip: Consider filing Giglio motions that cite this case, when and if it becomes final to argue for a reasonable if not immediate disclosure of who the confidential informant is and what they got for working with the Commonwealth.

Monday, August 1, 2016

KYCOA - Bentley - Insurance company is not a victim for restitution purposes

Kentucky Court of Appeals, to be published (7/29/16).  

Bentley entered a conditional guilty plea to receiving stolen property.  He was ordered to pay restitution of $1,000 to the victims of the theft and $11,000 to the victims’ insurance provider.  The insurance company had paid the victims $12,000 under a homeowner’s policy, with $1,000 amounting to the victims’ deductible under the policy.  The Court of Appeals reversed the portion of the final judgment ordering restitution to the insurance provider because the insurance company was not a victim in this case as defined by KRS 533.030(3).  

The Court distinguished Bentley’s case from Commonwealth v. Morseman because, while the Morseman Court found it was proper for that defendant to pay restitution to an insurance company, it was only because that insurance company was the victim of the crime for which Morseman was convicted, insurance fraud.  The Court affirmed the portion of the judgment ordering Bentley to pay restitution of $1,000 to the victims because the victims had paid that amount out-of-pocket to cover their deductible.  

Matt Michalovic represented Mr. Bentley in Letcher Circuit Court.  
Steven Buck represented Mr. Bentley on appeal.