KYCOA - Lydon - Knock and Talk/Exigent Circumstances

Ian Lydon v. Commonwealth, Opinion Reversing and Remanding, To be Published

On a grant of discretionary review, Lydon argued that the circuit court erred in affirming the district court’s decision overruling his motion to suppress evidence observed and photographed when police entered his home without a warrant. The subject incident occurred when officers were looking for a juvenile who was involved in an incident earlier that day, and they received information that the juvenile was at appellant’s apartment. The officers conducted a knock and announce at the front door of appellant’s apartment. Lydon was confronted about the missing juvenile and the smell of marijuana. Before Lydon could answer, the officers entered the home. 

The Court of Appeals noted that the only indicia of criminal activity at the time of entry was the odor of burning marijuana, which can create probable cause but is insufficient, by itself, to create exigent circumstances justifying a warrantless entry. By the time the officers saw the juvenile for whom they were searching, they had exceeded the bounds of their knock and talk and were in a place they had no legal right or justification to be. 

Bill Maddox represented Mr. Lydon in district court and circuit court

Erin Yang represented Mr. Lydon on the Court of Appeals

KYSC - Law Enforcement Cannot Question a Defendant Represented by Counsel

Kentucky Rejects Montejo v. Louisiana under Section 11 of the State Constitution, retains Michigan v. Jackson rule. 

Keysor v. Commonwealth, 2013-SC-531

In Michigan v. Jackson, 475 U.S. 625 (1986), the United States Supreme Court said that after a defendant asserts his right to counsel “at an arraignment or similar proceeding,” any waiver of that right at any subsequent police-initiated interrogation is invalid.  This was an important protection of the right to counsel.  Jackson was adopted by the Kentucky Supreme Court in Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).  

In 2009,  Jackson was overturned by Montejo v. Louisiana, 556 U.S. 778 (2009). In Montejo, the Supreme Court decided that a defendant, charged with murder and represented by counsel, may nevertheless be approached by police for interrogation without the knowledge or presence of his attorney as long as the police obtain a Miranda waiver.  

In this case, the defendant entered a conditional guilty plea, urging the Kentucky Supreme Court to retain the Jackson rule on state constitutional grounds. The court reversed, stating “[a]lthough our embrace of Jackson in Linehan did not explicitly reference Section 11 of the Kentucky Constitution, we implicitly found Jackson to be in accord with the right to counsel under Section 11 and we expressly do so now.” “Moreover, maintaining and protecting the integrity of the attorney-client relationship is an important public policy of this Commonwealth.” As such, the court rejects the Montejo rule allowing law enforcement to question a defendant represented by counsel.

The trial attorney was David Perlow.  Represented on appeal by  Erin Hoffman Yang

KYCOA - Hunt - Restitution and Fees

Kendrick Hunt v. Commonwealth, COA, 4/29/16, To Be Published, 

 The COA held that Hunt is not required to pay $500 in restitution to the Pennyrile Narcotics Task Force, because that agency was not a victim of his drug-dealing. However he must pay court costs of $155 and jail fees of $2,668 within 8 months of his release, 

At sentencing Hunt was nineteen with no money and no job, facing eight years in prison and with no job prospects. The only money ever in his commissary account consisted of gifts from his parents, which he informed the court had been spent prior to sentencing. 

The COA held there was no error in assessing court costs because despite his claim he had no money in his commissary account, the trial court “did not find him to be a poor person” and did find that Hunt would be able to earn money …after his release from prison,” and the trial court said it would “work with” Hunt and grant extensions. As for the $2,668 in jail fees, the trial court determined that Hunt would be able to work while incarcerated and upon release to reimburse the jail fees.

Susan Balliet handled the appeal.

KYSC - Davis - Dog Sniff Traffic Stop

Thomas Davis v. Commonwealth – SCt, 3/17/2016, to be published. 

In 2015, the United States Supreme Court held that a police officer may not extend a traffic stop—even for a de minimus amount of time--beyond its original purpose for the sole purpose of conducting a dog sniff. Rodriguez v. United States, 135 S.Ct. 1609 (2015.

In Davis, the Kentucky Supreme Court followed Rodriguez, supra, and held that a routine traffic stop for a possible intoxicated driver, extended for a dog sniff, violated the Fourth Amendment.

The Court also held:

To the extent that Epps [v. Commonwealth, 295 S.W.3d 807 (Ky. 2009)] and Johnson [v. Commonwealth, 179 S.W.3d 882 (Ky. App. 2005)] suggest otherwise, they are necessarily overruled by our acknowledgement of Rodriguez.

The “key question” is not whether the duration of Appellant’s roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped; that is, a DUI traffic stop to ascertain a driver’s sobriety.

  

Contributed by Julia K. Pearson

KYSC - Gray - Confession

James Anthony Gray v. Commonwealth
Reversing

Confessions - Use Manufactured Evidence Creates a Rebuttable Presumption that the Defendant’s Confession is Involuntary

The Supreme Court held that the trial court erred in failing to suppress a confession obtained through use of a falsified DNA report. During a five and a half hour unrecorded interview, the police told Anthony Gray that he was seen at the murder scene, and that gun shot residue and blood matching the victim’s DNA had been found inside his car. The police presented Anthony with a falsified DNA report on KSP letter head. In a unanimous decision, Justice Minton wrote that the court did not “view fabricated evidence in the same vein as any other factor in the totality of the circumstances analysis.”
While the Court declined a bright-line rule that the use of falsified documents is objectively coercive in all situations:

[W]e think the risk of constitutional infirmity is so severe that a petitioning defendant is entitled to a presumption in his favor. As is the case with other constitutional liberties, here we must place the burden on the Commonwealth to prove it did not abuse its power. When a criminal defendant, like Gray, can establish that the police use falsified documents to induce a confession, we will presume this tactic is unconstitutional until the Commonwealth can firmly establish that the document(s) did not overwhelm the defendant's will and was not a critical factor in the defendant's decision to confess.

Moreover, the  exclusion of aaltperp evidence was an abuse of discretion. The trial court found that Gray had demonstrated the aaltperp’s motive to kill but failed to show his opportunity to commit the murders. However, the motive-and-opportunity approach articulated in Beaty is not the only path to advance an aaltperp theory and it is certainly not an absolute prerequisite for admission into evidence. Rather aaltperp evidence that is more probative than prejudicial pursuant to the KRE 403 balancing test must be admitted at trial.

Erin Hoffman Yang represented Mr. Gray on Appeal
Rodney Barnes, Casey Holland, and Kristin  Gonzalez represented Mr. Gray at Trial

KYSC - Ragland reversal

Patrick Ragland v. Commonwealth, WL 9243531 (Ky. 2015) Published. Final

Self-defense instructions. This case was reversed for a new trial because the jury should have been instructed that Ragland was privileged to use physical force, including deadly force, if he believed it was necessary to protect himself from sexual intercourse compelled by force or threat. 

Stand Your Ground immunity from prosecution can be raised by writ, but this case now also holds that a defendant is entitled to appellate review of a trial court's denial of a motion to dismiss on grounds of immunity from prosecution due to legally justifiable use of force.

Adoptive admission by silence. witness's testimony that defendant said nothing when victim introduced her to defendant as “the guy I play house with,” did not come within exception to rule against hearsay for party's adoptive admission implied through silence.

Evidence that victim was HIV-positive was relevant to defendant's claim that he killed victim in self-defense, out of fear that he could contract disease, after victim attempted to engage in sexual intercourse with defendant.

Lucas Roberts and Daniel Whitley, trial counsel.
Susan Balliet, appellate counsel.

New Advocate on Costs, Fees, Fines and Restitution.

The December 2015 Advocate is available online at this link.

IN THIS MONTH’S ADVOCATE

 

COSTS, FEES, FINES AND RESTITUTION:

A PRACTITIONERS GUIDE

 

QUICK REFERENCE: FINES, FEES AND RESTITUTION

 

MORE REFORMS ARE NECESSARY

Including: 10 Commonsense Ways to Reduce Safely

The Quick Reference Guide only version is available here.