KY SC March 22 - Driver- Prior Convictions. Prosecutorial Misconduct

Steven Driver v. Commonwealth, 2012 WL 975711 (Ky. 2012) decided March 22, 2012 (2009-SC-000639-DG).  Reversing and Remanding
 
Mr. Driver was convicted of First Degree Assault following a fight with his second wife. There are three important points to take from this case.

First, the Kentucky Supreme Court reversed his conviction holding that reversible error occurred when the prosecutor introduced his prior convictions involving his first wife.

Second, the Court ruled that the prior convictions against his first wife could become relevant if he raised an Extreme Emotional Disturbance defense that the fight began because he learned his second wife was having an affair.

Third, the Court ruled that the prosecutor should not have argued in closing that the jury should convict him to protect his children.

Note - the issues was preserved through the excellent work of Murray Directing Attorney Robin Irwin.

Contributed by Susan Balliet

Featured Case - Mullikan - Evidence regarding priors in penalty phase

Mullikan v. Commonwealth, 09-SC-519 (June 16, 2011) (published)-

The Supreme Court found reversible error in the penalty phase when a police officer, without personal knowledge of the incidents, told the jury numerous facts about the client’s prior felony offenses, in excess of that allowed for showing the “the nature of the offenses” in KRS 532.055.

The Court noted it had previously failed to provide a workable definition for that phase. It held that “evidence of a prior conviction is limited to conveying to the jury the elements of the crimes previously committed.” The Court also said the trial court should avoid identifiers that might trigger the memory of jurors who may have knowledge of the prior crimes.

It seems to us that the nature of a prior conviction is closely akin, if not identical to, the definition of a prior conviction . In Robinson, this Court went to great lengths in attempting to define the "nature of prior offenses ." The Court seemed to settle upon "description of a general character" as being as far as is allowed in dealing with these prior crimes . Therefore, we hold today that the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed . We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge . The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i .e ., the burglary was of a building as opposed to a dwelling . The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may--especially in rural areas-have prior knowledge about the crimes .

Contributed by Shannon Smith 

Use of Out of State Convictions as Enhancer

If the Commonwealth is attempting to use an out-of-state conviction (either felony or misdemeanor) to enhance an offense in Kentucky, there must be statutory authority for such use.  This was the finding of the Court of Appeals in Suttle v. Com..  Suttle deals specifically with the DUI statute but holds that if the legislature is silent concerning the use of convictions in foreign jurisdictions, then they shall not be used.  The statute for Failure to Register is as silent about the use of foreign convictions to enhance as the DUI statute was on that subject (the statute was amended for DUIs after this case was decided).  Suttle also contains good language about how misdemeanor records from other jurisdictions are not as well maintained as ours so your argument is even stronger is the prior offense is a misdemeanor in the state from which it came. 

“We observe that our general recidivist statute (KRS 532.080) is all-inclusive with respect to prior felony convictions. It specifically includes foreign convictions. KRS 189A.010 is silent with respect to DUI convictions from a sister state and, as such, we believe our interpretation of the subject statute is a fair one. Moreover, we observe that the treatment differs as to DUI among the various states. In addition, we envision a practicable problem in proving foreign misdemeanor convictions where records may not be as carefully maintained as in felony offenses. All of this leads us to the conclusion that a policy of using foreign convictions as a basis for enhancement of punishment under KRS 189A.010 is a matter more appropriately directed to the legislature for debate.”  Suttle v. Com., 774 S.W.2d 454 (Ky.App.,1989).

Contributed by La Mer Kyle-Griffiths, Juvenile Post Disposition Branch Manager