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

KYSC - Meskimen - Statements & Hair Comparison

In Meskimen v. Commonwealth, 2011-SC-000709-MR (rendered 4/25/13) (to be published)

The Court considered Meskimen’s motion to suppress a series of pre-trial statements, and held that the defendant’s request to be taken to the hospital during the initial questioning did not clearly and unequivocally invoke his right to remain silent.  Nor was the defendant “so intoxicated as to reach the point of mania or give an unreliable statement,” such that the Court would consider his statement involuntary.  Nor did the Court consider the actions of the police in refusing to take the defendant to the hospital, even though his skull was fractured so badly as to require four days of hospitalization, two of which were in the ICU, to be coercive.

In addition, the Court did not consider the failure of the trial judge to hold a Daubert hearing on the reliability of hair comparison evidence to be an error in this case, relying on its earlier holding in Johnson v. Commonwealth, 12 S.W.3d 258, 261 (Ky. 1999).  The Court cautioned, however, “[E]ven though case law may be in acceptance of a certain method of analysis, it is the trial court's duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings, before taking judicial notice of its acceptability.”

The issues were preserved by Shannon Brooks-English, of the Fayette County Trial Office.  Tom Ransdell was the appellate attorney.

Contributed by Kathleen Schmidt 

KYSC - Johnson - Unanimous Verdict

Johnson v. Commonwealth, 2011-SC-000365-MR (rendered 4/25/13) (to be published), 

The evidence suggested the child victim had sustained numerous injuries over time, yet the jury instructions failed to specify what injury or abusive act the jury should use as a basis for finding guilt. When the evidence could support guilt based on more than one criminal act, the instructions must require the jury to specify which criminal act is relied on in finding guilt.  Otherwise the verdict is non-unanimous in violation of both Section 7 of the Kentucky Constitution and federal due process. 

Susan Balliet was the appellate attorney.

Contributed by Kathleen Schmidt 

KYSC - Kingrey - Unanimous Verdict

Kingrey v. Commonwealth, 2010-SC-000784-MR (rendered 4/25/13)(to be published), 

The Court held Kingrey was denied a unanimous verdict when the jury instruction allowed him to be convicted of one crime based on two separate and distinct criminal acts that violated the same criminal statute. Palpable error occurred since Kingrey cannot challenge the sufficiency of the evidence on appeal without knowing which alleged act formed the basis of his conviction.   

Erin Yang was the appellate attorney.

Contributed by Kathleen Schmidt

KY COA July 27 - Douglas - KASPER records

Veronica Douglas v. Com., 2011-CA-000066-MR, 2012 WL 3054118 (Ky. App. July 27, 2012) (to be published)-

The Court of Appeals reversed Ms. Douglas’ second degree manslaughter conviction after a doctor called by the prosecutor as an expert was improperly allowed to testify to prejudicial information from KASPER records about multiple prescriptions Douglas had for painkillers when those drugs were not found in her system at the time of the accident.

Douglas questioned on appeal that KRS 218A.202 was violated by the disclosure of Douglas’ KASPER records to not only the prosecutor’s expert witness but also to the prosecutor himself without a court order. The Court of Appeals held that indeed the prosecutor and the doctor hired by the Commonwealth should not have been given Douglas’ KASPER report. The Court noted that this constituted a felony under KRS 218A.202 (12) by the persons transmitting the report to those people. (This statute has since been amended to make the first offense a Class B misdemeanor and each subsequent offense a Class A misdemeanor.)

The Court held:

In the present case, neither the prosecutor nor Dr. Davis qualified under KRS 218A.202 as a person authorized to receive the KASPER report. We pause to note that this is disconcerting because this appears to be a recurring problem in the Commonwealth, i.e., that prosecutors and other unauthorized people are being provided copies of KASPER reports without court orders directing those people to be given such reports, see Bartlett, 311 S.W.3d at 228 n. 2, without fear of prosecution.

Id. at 9.

Defense attorneys should be familiar with the provisions of KRS 218A. 202 and the cases interpreting KASPER and object if it appears that the prosecutor, police or any other persons have been illegally supplied with a KASPER record for their client

Contributed by Kathleen Schmidt