COA Juvenile - D.B. - Incompetent Witness

D.B. v. Commonwealth, 2013-CA-000818 (unpublished): 

The Court of Appeals reversed a juvenile sex offense adjudication finding that the juvenile court improperly admitted the child-complainant’s statements to the Children’s Advocacy Center therapist.  The Court held that under B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007) the statements of an incompetent witness are inadmissible. It was uncontested in this case that the complainant (a toddler) was incompetent to testify. The juvenile court had admitted the statements under the hearsay exception for statements made for purposes of medical treatment.

Contributed by Renee VandenWallBake

COA Juvenile - A.G. - Valid Court Order

A.G. v. Commonwealth, 2014-CA-000935 (motion to publish pending): 

The Court of Appeals reversed an order committing juvenile to the Cabinet for contempt of court finding that the court order was not a “valid court order” under MAM and KRS 610.010(11) because it was issued pre-adjudication.  The underlying charge was habitual truancy.

Contributed by Renee VandenWallBake

COA - AKM - Right against self-incrimination during school questioning

A.K.M. v. Commonwealth, 212-CA-1190 (not yet final)(not to be published): 

AKM was interrogated twice while at school regarding an alleged theft of $20-$40 from the teacher’s lounge.  The first interrogation was conducted by the school principal while an officer, who was at the school initially on an unrelated matter, was in the next room. After AKM admitted to taking the money to the Principal, he was brought to the police officer who informed him of his Miranda rights and questioned him again, yielding a second confession. During the second interrogation AKM repeatedly stated that he did not want to tell on himself.  

The Appellant raised several issues on appeal, including that the first interrogation violated Miranda under N.C. and Welch because the purpose of the questioning was to gather evidence for a criminal prosecution, that the second confession was tainted and coerced, and that the Appellant asserted his right to remain silent during the second interrogation.  The Court of Appeals found that Miranda warnings were not necessary for the first interrogation because, distinguishing from N.C., the principal was “acting only as a principal investigating a school disciplinary matter” and there was no evidence that the principal was acting in concert with the police officers.  As to the second interrogation, the Court found that AKM was in custody at the time of the police interrogation and had invoked his right to remain silent by stating, “I don’t want to tell on myself” and that continued questioning violated the 5^th amendment.  The Court found this statement to be a clear articulation of the desire to remain silent and reversed.  Judge Thompson wrote the opinion with Dixon concurring and Caperton dissented (no written dissenting opinion).

Contributed by Renee VandenWallBake

KY SC - Edwards - Youthful Offenders and Violent Offender Statute

Edwards v. Harrod, 361 S.W.3d 755 (Ky. 2013)

The Kentucky Supreme Court decided a question that has created much confusion in youthful offender cases: does the violent offender statute apply to youthful offenders in the area of parole?  The court answered with a clear YES.  “(U)nder our holding today, the parole board cannot grant parole to youthful offenders who are ineligible under the Violent Offender Statute.” The Court’s rationale was that “. . . contrary to the probation-eligibility restriction of the Violent Offender Statute, the parole-eligibility limitation on violent offenders does not conflict with the youthful offender statutory scheme.”  The Court held that the differences between probation and parole justified the prohibitions in KRS 439.3401 as there was no statute within the juvenile code that specifically exempted juveniles. All youthful offenders convicted of a violent offense must serve 85% of their sentence before they can be considered for parole.  DOC is also applying the good time and meritorious credit restrictions of KRS 439.3401 to youthful offenders.  

Contributed by Renee VandenWallBake and La Mer Kyle-Griffiths

KY COA - S.B. - Truancy

S.B. v. Commonwealth, ___ S.W.3d___, 2012-CA-000868-ME (Ky. App. 2013) (to be published) (not yet final)

The family court did not have subject matter jurisdiction over habitual truancy case where Affidavit and Truancy Evaluation form (required by FCRPP 40) was “virtually blank.”  This form was created to assist schools in documenting compliance KRS 159.140(1), which requires the school to conduct a home visit and ascertain the causes of truancy before filing a petition.  At a hearing on trial counsel’s motion to dismiss, the DPP testified that his assistant did a home visit but there was no testimony as to what he found and the assistant did not testify. The Court reversed and reaffirmed T.D. v. Comm; the intent of the legislature was to make it “rigorous” to bring a juvenile to court on a status offense case.

Jessica Schulte from the LaGrange trial office did an excellent job litigating and preserving this issue!

Practice Tip: scrutinize the forms required by the FCRPP in all status offenses to make sure there has been substantial compliance.  The Commonwealth can call witnesses to testify as to what steps the school has made to try and prove SMJ, but be sure to hone in on whether those steps were made before or after the petition was filed.  The statute and case law makes clear that the school must make efforts before filing a petition.  See T.D. v. Comm., 165 S.W.3d 480 (Ky.App.2005); B.H. v. Comm.,  329 S.W.3d 360 (Ky. App. 2010); N.K. v. Comm.,  324 S.W.3d 438 (Ky. App. 2010).

Contributed by Renee VandenWallBake