KYSC - Manery - Right to Cross Lab Tech

Ernest Manery v. Commonwealth, 14-SC-666-MR (rendered 6/16/16)(to be published).  Mr. Manery was convicted on multiple counts of first-degree rape, first-degree sexual abuse, and first-degree PFO, and was sentenced to LWOP-25.  The Court reversed and remanded for a new trial.

The alleged victim, a minor, tested positive for gonorrhea.  Police secured a search warrant for testing of Mr. Manery, and the jail doctor ordered the test, which was “presumptively positive” for gonorrhea.  At trial, the jail doctor testified about the test results.  The Court held that Mr. Manery’s right to confront the witnesses against him was violated when the trial court allowed the test results to be admitted at trial without the testimony of the lab technician.  This was clearly testimonial: “When the analyst at Quest conducted the test, any positive results for gonorrhea would doubtlessly inculpate Manery with the crimes alleged by Jane, and there was no broader purpose beyond identifying the perpetrator of these sex crimes. So we have no doubt that the report in this case is properly considered testimonial for purposes of the Confrontation Clause.” Slip Op. 10.  

Sheena Baylon represented Mr. Manery before the Boone Circuit Court.  Emily Rhorer represented him on direct appeal before the Kentucky Supreme Court.

KYSC - Hacker- opening-the-door, hearsay, and confrontation

Ray Hacker v. Commonwealth, KSC 2012-SC-000269-MR, 3/20/14, Not to be Published. Reversed and remanded 

On trial for murdering his girlfriend, Hacker testified he was on probation for being a felon in possession of a handgun. On cross the Commonwealth asked about details of his arrest and read the report which described Hacker as belligerent and screaming profanities and provided evidence he owned guns and had threatened his girlfriend’s life.

The Court rejected the argument that Hacker "opened the door" to impeachment, noting it was the Commonwealth, not the defense, who "opened the door" by asking Hacker to relay his version of events on cross-examination and then using the report to impeach him. The report conveyed impermissible hearsay and violated the Confrontation Clause of the Sixth Amendment. 

Brian Barker preserved the issue at trial. Erin Yang won the appeal.

Contributed by Susan Balliet