KY SC March 22 - Callahan - Object to ???corpus delicti??? prior bad acts evidence

GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.

TRIAL TIP: 

Object to “corpus delicti” prior bad acts evidence.           

Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred.  Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:

VENTERS, J., CONCURRING: The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b).

 

We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v. Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior objectbad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened. Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing. This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations.

 

We have never offered a sound rationale for question that I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts. We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.

Schroder and Scott, JJ., join.

 

Contributed by Susan Balliet

 

Important New Court Costs Case - Maynes v. Commonwealth

DESEAN MAYNES V. COMMONWEALTH,

2010-SC-68-DG  - March 22, 2012, Affirming.

“Needy" persons under KRS 31.110 who qualify for DPA representation are no longer automatically immune from the court costs imposed by KRS 23A.205.  “A person may qualify as "needy" under KRS 31.110 because he cannot afford the services of an attorney and yet may not qualify as ‘poor’ under KRS 23A.205 unless he is also unable to pay court costs without ‘depriving himself or his dependents of the necessities of life, including food, shelter or clothing.’”  Under KRS 23A.205 the defendant must be able to pay court costs at the time of sentencing or "in the foreseeable future."  Since Maynes' plea agreement released him from prison, he would be able to earn enough within the six months following his sentencing to afford the costs required by KRS 23A.205.

KRS 23A.205 requires imposition of court costs unless the defendant qualifies as a "poor person" defined as a person unable to pay the costs presently or within the foreseeable future without depriving himself and his dependents of the basic necessities of life. The restoration of Maynes' freedom was also the restoration of his ability to work, and so justified the trial court's order that he pay the statutorily mandated court costs pursuant to KRS 23A.205.

SENTENCING ALERT:  Trial counsel must now address court cost issues at sentencing and should put on evidence either that the sentence imposed is so long that the defendant should be exempt because he won’t be able to pay in the “foreseeable future,” or --if he will be released in the “foreseeable future”-- he should be exempt because he either has too many dependents, or is disabled or otherwise incapable of obtaining or holding a job.

Contributed by Susan Balliet

Juvenile LWOP - SCOTUSblog recap of Tuesday's SC oral arguments

Argument recap: Compromise on youth sentences?

By



Lyle Denniston on Mar 20, 2012 at 2:43 pm

 

Analysis

Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise.  If the indications from a one-hour hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers.  And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger.  In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer.

Continue reading »

Transcripts of Tuesday’s oral arguments in Miller v. Alabama and Jackson v. Hobbs

ABA Resource - Think Before You Plea: Juvenile Collateral Consequences in the United States

The Juvenile Collateral Consequences Project is an endeavor undertaken by the American Bar Association to document and analyze the significant hardships experienced by youth who have come in contact with the juvenile justice system. These hardships, known as collateral consequences affect youth who have successfully completed a sentence imposed by the court. The hardships include barriers to education, employment, and public benefits.

Juvenile Collateral Consequences in Kentucky

KY COA March 7th - Cornelius - Bootstrapping tampering charge

Cornelius v. Commonwealth  2009-CA-1624  To be published

Cornelius was convicted of possession of marijuana and tampering with physical evidence after an officer found a bag of marijuana in his front pocket during a pat down search.  The Court of Appeals relied on Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011), to reverse his tampering conviction.  In Mullins, the Supreme Court stressed that the Commonwealth cannot bootstrap a tampering charge onto another charge when there is no evidence of an active intent by the defendant to impair the availability of evidence.

The Court of Appeals found that Cornelius did not take an additional step or active attempt to impair the availability of evidence.  Placing the marijuana in his pocket was tangential to the continuation of the possession offense.  The Court found that placing marijuana in an outer clothing pocket is analogous to a shoplifter who hides property on his person to avoid detection.  The concealment must be to prevent the evidence from being used in an official proceeding, a fact that is lacking in the typical shoplifting situation.  Concealing illegal drugs in a conventional location such as a pocket is directly incident to a possessory offense.  Were it not, a defendant would be required to have had the illegal drugs in plain view to avoid a tampering charge.

Contributed by Steven Buck

Op-ed - Prosecutors: Ky. capital punishment unfair

Prosecutors: Ky. capital punishment unfair

Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death sentence overturned on appeal by Kentucky or federal courts because of significant legal errors. That is an unacceptable error rate of more than 60 percent.

Kentucky's justice system is at an historic moment. As a matter of basic fairness, we must pause to understand and reform the way capital punishment is administered in our state.

Each of us is a current or former prosecutor, some of whom have prosecuted capital cases in our commonwealth.

As prosecutors, we continue to believe that heinous criminal conduct must be punished severely in a way that advances public safety.

However, punishment must be a result of a fair process that produces valid results in which we have full confidence. It is time to suspend executions in Kentucky until the reforms recommended by a groundbreaking professional study are implemented.

Read more here: http://www.kentucky.com/2012/03/07/2098691/prosecutors-ky-capital-punishment....

This column is signed by John L. "Jack" Smith, former U.S. Attorney for the Western District of Kentucky; Alexander T. "Sandy" Taft, former U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, former U.S. Attorney for the Western District of Kentucky and former Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, former Jefferson County Commonwealth's Attorney; Michael J. "Mike" O'Connell, Jefferson County Attorney; Joe Gutmann, former Jefferson County Assistant Commonwealth's Attorney; Scott C. Cox, former Assistant U.S. Attorney; Larry D. Simon, former Jefferson County Assistant Commonwealth's Attorney; Will Collins, former Letcher County Commonwealth's Attorney; Jeffrey A. Darling, former Fayette County Assistant Commonwealth's Attorney; J. Stewart Schneider, former Boyd County Commonwealth's Attorney.

Read more here: http://www.kentucky.com/2012/03/07/2098691/prosecutors-ky-capital-punishment....

KY SC Feb 23 - James

Joseph Thomas James v. Commonwealth 2010-SC-275  To be published

James was not entitled to a directed verdict for rape. He beat his on again off again girlfriend for hours, and had intercourse with her. She testified that she had sex in an attempt to “calm him down.” James argued that there was no forcible compulsion because the victim consented to sex in order to placate James.  The Court disagreed, holding that James’ act of beating her for hours allowed the jury to conclude she was compelled to engage in intercourse by force or threat of force.

                Further, there was no error in admitting the unredacted report of the SANE nurse characterizing the complaining witness as a rape victim. Though the report was inadmissible “triple hearsay,” there was not a specific objection and the error was deemed harmless.  Likewise, the Court found that medical report of the SANE nurse were not formal or made for the purpose of prosecution, thus there was no Confrontation Clause violation.

Contributed by Erin Yang