KYSC - Mitchell - Hybrid Representation/Jury Instruction/Misleading Photos

Dwayne Mitchell v. Commonwealth- KSC, 2/20/2014, to be published

The Kentucky Supreme Court reversed and remanded, finding that the trial court violated Mr. Mitchell’s right to hybrid representation by denying him the right to represent himself on a pre-trial motion while still retaining the services of counsel for the remainder of the proceedings. The trial court further erred in providing jury instructions that omitted an essential element of first-degree robbery and erroneously allowing the introduction of misleading photographs.  

Tom Ransdell and Kate Benward of DPA Appeals represented Mr. Mitchell on appeal.

Contributed by Karen Maurer

KYCOA - Jones - Restitution held open

Thomas Jones v. Commonwealth, 2012-CA-001827 [NOT TO BE PUBLISHED] 

Thomas Jones pled guilty to sexual contact with a then fifteen year old girl.  A result of this contact was that the girl contracted herpes.  The trial court, when ordering restitution, attempted to “hold open” the restitution order, and allow the girl to petition the court for additional restitution if her circumstances changed.  The Kentucky Court of Appeals held that this violated KRS 532.033 because it was not a “set and definite amount.”   

John Landon represented Mr. Jones on Appeal; Margot Merrill preserved this issue in the trial court.

Practice tip: Object and appeal when a trial court allows a victim to petition for more restitution in the future

Contributed by Karen Maurer

KYCOA - Brown - Protective Sweep

Brown v. Commonwealth – COA, 2/14/14, reversing and remanding, to be published

Police received information that Appellant and two other men had assaulted a woman with a handgun and retreated to Appellant’s home.  Police also knew that Appellant had an AK-47 assault rifle inside the house.  Police went to the residence and ordered the men out.  The three men emerged with two women and informed the officers no one remained inside.  Officers conducted a protective sweep of the house and found guns, marijuana, and drug paraphernalia.  The Court found that the officers did not  have articulable information to reasonably believe someone remained inside the home.  A general concern that someone might still be in there did not justify the search.

Steve Buck represented Mr. Brown on appeal.  Chris Tracy represented Appellant in Fayette Circuit Court.

Contributed by Karen Maurer

KYSC - Brumley - Protective Sweep Search

Commonwealth v. Randy Brumley 

SCT, 11/21/13, to be published

The Court held that a “protective sweep” of Mr. Brumley’s trailer was not permitted under the Fourth Amendment and Section 10 of the Ky. Constitution where Mr. Brumley was already in custody, outside the trailer, when the officers made the decision to enter the trailer.  The fact that Mr. Brumley might be a gun owner mattered not.  “Brumley's rights under the Fourth Amendment cannot be diminished simply by exercising his rights under the Second Amendment.”  Neither did it matter that officers heard a noise from the trailer.  What is required for a Constitutional protective sweep is “facts reasonably demonstrating that Brumley's home harbored not just an additional individual, but rather an ‘individual posing a danger to those on the arrest scene.’"  The Court observed, “[The officers’]  primary objective of arresting Brumley without mishap having been achieved, an attentive departure from the premises with their prisoner would surely have been safer than an invasion of the home.”   

Shanda West-Stiles and C. B. Bates of the Columbia trial office represented Mr. Brumley before the circuit court and preserved this issue, and Emily Rhorer represented Mr. Brumley on appeal.  

Contributed by Karen Maurer

KYSC - Melton - Court Costs and Public Defender Fees after incarceration

John Melton v. Commonwealth, 22-SC-488-MR (rendered 9/26/2013) (Not to be published)

The trial court erred in attempting to retain jurisdiction until Mr. Melton was released from incarceration in order to determine whether to impose court costs and partial public defender fees. The Kentucky Supreme Court held there is no statutory basis for a court to exercise jurisdiction beyond the end of proceedings (i.e., final sentencing) in order to determine the appropriateness of imposing court costs and a partial public defender fee. Robert Yang represented Mr. Melton on appeal.

Contributed by Karen Maurer 

KYSC - Allen - Self Representation and Standby Counsel

Ricky Allen v. Commonwealth, 2011-SC-000009-MR (rendered 9/26/2013)(to be published)

Mr. Allen ‘s Sixth Amendment rights were violated where Mr. Allen was permitted to represent himself at trial,  but was restricted from participating in bench conferences. The trial court allowed only standby counsel to participate in bench conferences based on the court’s determination that Mr. Allen was a threat to either disrupt the proceedings or flee, which left him unrepresented at critical stages of the trial proceedings.  Mr. Allen’s convictions of burglary in the third degree, criminal mischief in the first degree, theft by unlawful taking over $300.00, receiving stolen property, under $300.00, and being a persistent felony offender in the second degree, for which he received a sentence of twenty years, are reversed.  Tom Ransdell and Kate Benward represented Mr. Allen on appeal.  

Contributed by Karen Maurer

KYCOA - Brewer- Exigent Circumstances for Search

Barney Brewer v.Commonwealth – 2012-CA-001312 – Rendered 6/21/13 - Not to be published

This case was affirmed in part, reversed in part and remanded to the Wolfe Circuit Court after the panel of the KY Court of Appeals determined that substantial evidence did not support the trial court’s finding that either hot pursuit, fear of destruction of evidence, or personal safety justified officers’ warrantless entry into a home. 

The KSP had received a tip that the manufacture of methamphetamine was occurring at Mr. Brewer’s home. Several hours later, after gathering units from surrounding counties, the officers decided to conduct a “knock and talk.” When the Troopers saw Appellant run out of the back of the house, officers entered the property and apprehended him. Once in the backyard, an odor was detected. Troopers entered the home without a warrant. At the suppression hearing, the officers had testified that they conducted a “person search” of the home “for officer safety.” The trial court initially found that “hot pursuit” and “destruction of evidence” exceptions to the warrant requirement applied, and then further the “emergency exigent circumstances doctrine” due to the “explosive” nature of meth manufacturing. The Court of Appeals held that Brewer’s decision to flee gave rise to circumstances which justified the officers’ entry into the backyard, but that all three theories of exigency were unsupported by the record. The Court remanded the suppression issue to the trial court for further proceedings to determine whether other exigent circumstances were present to justify the officers’ entry. 

Mr. Brewer was represented at trial by Hon. Miranda Stevens.  Molly Mattingly represented Mr. Brewer on appeal.

Contributed by Karen Maurer