11/23 Relevant KY Supreme Court Opinion Summaries

Kenneth Williams v. Commonwealth, 10-SC-138-DG, rendered 11/23/11, and to be published: 

Williams was among a group of nine people standing in the street in front of a vacant house.  Some of the individuals, but not Williams, were smoking marijuana.  Police approached the group and began questioning them.  One man admitted the bulge in his pocket was marijuana.  Two individuals were searched, and guns were discovered on them.  At that point, the remainder of the group, including Williams, was ordered on the ground and asked if they had weapons on them.  When Williams lay down, an officer noticed a bulge in the middle of his back.  It was a handgun.

            Held:  There was a reasonable articulable suspicion of criminal activity on the part of the group that justified an investigatory stop of individual group members. Particularized suspicion as to Williams was not required; he was part of a group that included some people smoking marijuana and some who possessed handguns, and that was sufficient grounds to initiate a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).    

 Lawrence Robert Stinnett v. Commonwealth, 10-SC-347-MR, rendered 11/23/11, and to be published: 

Stinnett was convicted of murder and kidnapping.  He was alleged to have beaten  his girlfriend to death because he believed she was cheating on him.

            Held:  (1) Kidnapping exemption did not apply where the restraint of the victim exceeded that which was ordinarily incident to committing the crime of murder. “Appellant could have killed her without taking an extended time to terrorize her.” (2)  General dissatisfaction with appointed counsel is insufficient to support a motion for new counsel.  “A bar complaint or a lawsuit filed by an indigent defendant against his appointed counsel may give rise to good

cause for his replacement, [but] such filings do not warrant an automatic substitution of an assigned public defender.”

Jared Fields v.  Commonwealth, 10-SC-169-MR, rendered 11/23/11, and not to be published: 

First, the Court addressed an issue not raised at trial or by either party on appeal, holding that same sex non-consensual sexual acts can never be rape.  Fields had been charged with both rape and sodomy, as well as complicity to both and sexual abuse for having non-consensual sexual relations with a 16 year old boy.  The Court held it was not palpable error for Fields to be convicted of rape, rather than the proper sodomy, as both crimes are of the same degree.   The Court then addressed arguments raised on appeal and reversed Fields’ conviction for kidnapping as the interference with the victim’s liberty was no greater than needed to commit the sexual crimes.  Contrast the facts in Stinnett v. Commonwealth, 2010-SC-000347, rendered the same day, where the Court upheld a kidnapping conviction as not qualifying for the exemption. 

Contributed by Kathleen Schmidt

Turner - Gant analysis

Ray Lewis Turner v. CW

rendered on August 12, 2011 by the Court of Appeals - REVERSING AND REMANDING

To be published (CW petition for rehearing pending)

A 2-1 panel of the Court of Appeals ruled that the evidenced seized in a search of Mr. Turner’s car must be suppressed. Turner was stopped for turning without a proper signal while a block from his home. Turner had a license but it was not on his person. He refused to allow the police to consent because the vehicle was not his. The police told him they were calling a drug dog but none came. While Turner was in the truck, an officer saw him moving his arms between his legs and shrugging his shoulders. An open beer can was in the console covered by a hat police thought Turner had on while driving. Turner was given field sobriety tests but was not intoxicated. Turner was patted down, $232 was found, and Turner was arrested for not having his license on him, and was placed in a police cruiser. Police then searched the truck and found baggies with meth under the seat he was sitting in.

The Court of Appeals noted there was no reason the police could not have gotten a warrant to search the vehicle, presumably expressing that there was no exigent circumstances to justify a warrantless search. The Court accepted that Turner was acting nervously, “a fact of dubious importance,” and making movements with his hands.  The Court held, “[T]here are notable exceptions that authorize warrantless searches, but, as forcefully reiterated in Arizona v. Gant, those exceptions have not swallowed up the rule.” It was for the judiciary to decide if one applied.

Contributed by Kathleen Schmidt

Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt

Featured Case - Ivy - Contempt for Failure to Child Support

CW, CHFS, and Larry Barnes v. Renee Ivy (now Knighten)

Rendered in the Supreme Court on October 27, 2011,

To be published

The Supreme Court issued a well-crafted, 5-2 opinion in a case revolving around a family court order holding a mentally ill woman in contempt for failing to pay $106 in child support when her sole source of income was $25-$50 per month given to her by her public administrator from the remainder of her SSI benefits after her room and board were paid. The trial court modified the base amount of support to $60 at the hearing but also found Ivy to be able-bodied capable of providing financial support to her child, held her in contempt, and ordered Ivy to pay $60 plus $5 towards the arrearage or face arrest and service of 30 days in jail. The Court of Appeals reversed the contempt order as well as the order modifying because they were not supported by the evidence.

    The Court recognized the legislative mandate for allowing support to be ordered and to accrue even against a parent with no present ability to pay because “present circumstances need not be permanent.” SSI benefits are also included in that calculation by statute. However, the Supreme Court affirmed that a trial court always has the “broad discretion” to reduce a parent’s support obligation to less than the minimum amount of $60 if it determines from the evidence that that amount is unjust or inappropriate under KRS 403.211(2). The Court criticized the paucity of findings in the family court’s order supporting the decision to enter a $60 obligation. The Court found that the family court was operating under the “unfair or inappropriate” section of the statute to deviate from the statute, which was in its discretion to do, but erred when it did not explain through facts or law why it set a new amount that was higher than what Ivy received each month from her administrator. That portion of the case was remanded for reconsideration and findings under the standard set by the Court, rather than have the Court “divine” what led the family court to rule that way.

    The Court then distinguished between the ability to set and accrue support and the ability to collect it. A parent’s “ability to pay, …, does determine the extent to which support can be collected. Where there is no ability to pay, it is not contumacious to fail to do so.” The Court agreed with the Court of Appeal that the family court erred in finding Ivy was in contempt for failing to pay her support based on the facts from the hearing. The Court held that while receipt of SSI benefits alone does not compel a finding of inability to pay support, the family court is not free to “simply … disregard the [SSA’s] determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”  The family court’s finding that Ivy was able-bodied and capable of providing support did not refer to the evidence and was unsupported by the evidence and was an abuse of discretion. The CHFS had relied on the family court’s observations of Ivy at other hearings. About this, the Court held, “While the family court’s courtroom observations are not meaningless, they cannot be the sole basis for the court’s assessment of Ivy’s mental condition, as assessment requiring specialized training.” The Court also noted that Ivy was paying support because the family court had found her unfit to have custody or even unsupervised visits with her baby.

   The Court went through the difference between civil and criminal contempt, finding this was still civil even though it flirted with criminal contempt. The Court found the family court’s coercive remedy for the contempt, i.e. the threat of future incarceration for future violations was not a true purge opportunity and was invalid.

    The Court also rejected CHFS’ attempt to use judicial notice as a method of getting into the record a purported current payment ledger showing Ivy was now paying the support. The Court held that assessing the proprietary of contempt must be based on the evidence before the trial court at the time of the hearing. It also wisely recognized that a payment ledger says nothing about whom or how the support is being paid.

    The Court encouraged courts, after a valid contempt finding, to fashion a meaningful remedy to fit the circumstances, as have been done by other courts.

    Lastly, the Court found that whether the attempt to collect support from Ivy by making her pay from her SSI benefits did not violate the Supremacy Clause, but held whether a constitutional violation occurred would be dealt with on a case-by-case basis.

    Trial tips- First, the result in this case was largely dictated by the excellent work of attorney David Bundrick who made a great record by calling Ivy’s public administrator to testify about her income and SSI benefits. The more great facts that are introduced about the inability of the SSI recipient to do anything other than scrape by, the better chance of defending a contempt violation. Second, the Court left open the possibility of a Supremacy Clause violation in the right circumstances (“does it do major damage to clear and substantial federal interests”). The two interests pitted against each other are the interest in the SSI benefits that are awarded solely for the benefit of the recipient to maintain a basic subsistence and the interest the state has in parents supporting their children. Depending on the evidence, that balance may well shift towards the parent. So attorneys should be making both due process and Supremacy Clause objections where the facts warrant them.

Submitted by Kathleen Schmidt