KYCOA - Dudley- Speedy Trial

Robert Dudley v. Commonwealth, Kentucky Court of Appeals, not to be published (12/15/2017):

Mr. Dudley was arrested on September 9, 2004, and indicted in December 2004. However, he was not tried until 2014. In 2016, the Court of Appeals remanded for the trial court to hold a hearing and make findings as to whether Mr. Dudley’s right to a speedy trial had been violated. The trial court found Mr. Dudley’s right to a speedy trial had not been violated. Specifically, the court found that although a nearly 10-year delay between arrest and trial was presumptively prejudicial, Mr. Dudley was responsible for the delay because he had not returned to Kentucky to answer to his charges.

A panel of the Court of Appeals disagreed. The panel cited the following facts showing that the delay was caused not by Mr. Dudley, but by government negligence: 1) Circuit Court personnel were aware that Dudley was not present at his arraignment in December 2004 because he was in custody in Ohio; 2) neither Dudley or his then-attorney was made aware that he had been indicted; 3) while a bench warrant was issued on December 20, 2004, that warrant was not served on Dudley until 2014; and 4) even though the government was aware that Dudley was in custody in Ohio, neither a detainer nor a holder was filed until 2012. When Dudley was informed about the holder in 2012 or early 2013, he immediately filed an IAD request to be returned to Kentucky.

Mr. Dudley testified at the 2016 hearing that a Covington police officer involved in his arrest testified at his 2005 Ohio parole revocation hearing. However, the officer did not inform the Ohio court or Dudley that Dudley had a pending Kenton County indictment or pending warrant for his arrest. The court did not cite this in its reasoning.

Thus, the panel found, Mr. Dudley’s Sixth Amendment right to a speedy trial was violated. The panel remanded with an order for his indictment to be dismissed.

Matt Ryan, formerly of the Covington Office, was counsel for Mr. Dudley. Julia K. Pearson of Appeals represented Mr. Dudley on appeal.

KYCOA - Forte - Proof of Serious Injury

Forte,James. 15-CA-00410. Reversing/remanding. 11/4/2016. To be published.

James Forte was found guilty of Robbery First-degree, Burglary First-degree and Assault Second-degree. He was found guilty of all crimes and sentenced to 10 years for both Robbery and Burglary and three years on the Assault, for a total of 13 years. Mr. Forte’s convictions for Robbery and Burglary were affirmed.

The Court of Appeals found palpable error because the prosecution presented insufficient evidence of the “serious physical injury” prong of the assault charge. The only persons who testified regarding the victim’s gunshot wound to the head were the victim and his companion. The victim said after he was shot, he suffered headaches “off and on” and had a small scar. The jury heard no evidence “establishing the nature and severity of the gunshot wound, how much blood was lost, the nature of the medical treatment, the severity of Bailey’s headaches, the time it took to recover, how much, if any, additional treatment Bailey received, or how much time, if any, Bailey took off from work in order to recover.” Thus, because it did not present any medical evidence was presented, the prosecution did not meet the “exacting level of proof” required by McDaniel v. Commonwealth, 415 S.W.3d 643, 660 (Ky. 2013).

Conflict trial counsel was Craig Newbern, DPA-Paducah. Julia K. Pearson of the Appeals Branch represented Mr. Forte on appeal.

KYSC - Davis - Dog Sniff Traffic Stop

Thomas Davis v. Commonwealth – SCt, 3/17/2016, to be published. 

In 2015, the United States Supreme Court held that a police officer may not extend a traffic stop—even for a de minimus amount of time--beyond its original purpose for the sole purpose of conducting a dog sniff. Rodriguez v. United States, 135 S.Ct. 1609 (2015.

In Davis, the Kentucky Supreme Court followed Rodriguez, supra, and held that a routine traffic stop for a possible intoxicated driver, extended for a dog sniff, violated the Fourth Amendment.

The Court also held:

To the extent that Epps [v. Commonwealth, 295 S.W.3d 807 (Ky. 2009)] and Johnson [v. Commonwealth, 179 S.W.3d 882 (Ky. App. 2005)] suggest otherwise, they are necessarily overruled by our acknowledgement of Rodriguez.

The “key question” is not whether the duration of Appellant’s roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped; that is, a DUI traffic stop to ascertain a driver’s sobriety.

  

Contributed by Julia K. Pearson

KY COA - Jackson - MH Eval before charges

Jackson v.Commonwealth, 2013-CA-0582, TO BE PUBLISHED, Affirmed

The Court of Appeals reaffirmed that a Defendant who suffers from mental illness and is arrested during a time where police officers believe that he presents a danger, or threat of danger to himself, family or others, must be taken for a mental health evaluation prior to the placing of any charges against him. 

The Court also found that the psychiatric intake nurse who conducted an initial psychiatric evaluation was not a state actor because the nurse was not present in order to assist the prosecution and not acting in concert with law enforcement. He was simply acting in response to a potential defendant who had immediate psychiatric needs.

John Landon of the Appeals Branch represented Mr. Jackson on appeal. He was represented by David Farley of the Owensboro office at trial.

 
Contributed by Julia Pearson