The Year in Review:

Cases from

July 2013 – May 2014

You be the judge!

Fourth Amendment Cases

Frazier v. CW, 406 S.W.3d 448(Ky. 2013)

The facts available to the deputies at the time of the Terry pat-down were: 1) Frazier had failed to use a turn signal;

2) Frazier's hands shook as he spoke;

3) Frazier would not make eye contact as he sat in his vehicle;

4) Frazier initially refused to answer Deputy Moore's question about his passengers and destination;

5) Frazier appeared “verbally belligerent” as he exited the vehicle; and

6) Frazier refused to consent to a search.

Were police permitted to conduct Terry frisk under these circumstances?

Frazier v. CW, 406 S.W.3d 448(Ky. 2013)

NO!

“Here, Frazier's nervous and marginally insolent demeanor was the sole basis for the frisk. While Frazier's refusal to consent to a search may have aggravated the officers, that refusal cannot be considered as a basis for reasonable suspicion of criminal activity, as such a determination would violate the Fourth Amendment.”

Randy Brumley, 413 S.W.3d 280 (Ky. 2013) Police came to serve felony arrest warrant on Brumley at

his trailer in the middle of the night. 4-5 officers were present. He came outside immediately.

While Brumley was being led away, some of the officers heard what they described as a “rustling” or “shuffling” noise coming from inside the residence.

In response, several officers entered the residence to perform a “protective sweep.”

Once inside, they discovered that a dog was the source of the noise.

They also observed several components used in the manufacture of methamphetamine.

Was this a valid search of Brumley’s residence?

Brown v. CW, 423 S.W.3d 765 (Ky. App. 2014) Police received information that Appellant and two other

men had assaulted a woman with a handgun and retreated to Appellant’s home. 

Police also knew that Appellant had an AK-47 assault rifle inside the house.  Police went to the residence and ordered the men out. 

The three men emerged with two women and informed the officers no one remained inside. 

Officers conducted a protective sweep of the house and found guns, marijuana, and drug paraphernalia. 

Were officers permitted to conduct a protective sweep of the home?

Fifth Amendment

Is a person questioned while in prison “in custody” for purposes of Miranda?

Buster v. CW, 406 S.W.3d 437 (Ky. 2013)

Bell, a social worker with the Cabinet for Health and Family Services, went to the KSR (where Buster was serving time on unrelated charge) and interviewed him about allegations of sexual abuse.

Bell did not give Miranda warnings to Appellant before questioning him. During the interview, Appellant admitted to numerous acts of sexual abuse involving multiple victims.

Buster was not shackled; a guard was present but did not say anything; Buster appears relaxed, drinks water from a cup during short, 30 minute interview.

The Court held that the social worker was a state actor; but was Buster “in custody?” such that his statements should have been suppressed under Miranda v. Arizona?

Buster v. CW, 406 S.W.3d 437 (Ky. 2013)

UNDER THESE FACTS- NO!The Court reasoned: The fact that someone is incarcerated on an unrelated charge does not mean

that the prisoner is “in custody” for Miranda purposes. ... [T]his Court finds that it must consider the totality of the circumstances

when it determines whether Buster was in custody for Miranda purposes. As a result, this Court has considered the following:

(1) that Bell is a social worker without any power to arrest, and

(2) that there is no evidence to suggest that Bell was working in conjunction with the Munfordville City Police Department or any other police agency when he visited with Buster.

In addition, this Court has watched the videotaped interview and ascertained the following: (1) that Buster was not shackled, (2) that Buster appears to be comfortable as he drinks from a white cup, (3) that a guard identifies himself as being present, (4) that this guard never makes any further statements throughout this interview, (5) that this interview only takes approximately thirty minutes, (6) that Buster confirms that he was not coerced or forced to make any statement, and (7) that Buster admits that [his] statements were provided of his own free will.

Dye v. CW, 411 S.W.3d 227(Ky. 2013)

In obtaining a confession for the murder of Appellant’s nine-year-old sister, police lied to the Appellant, a 17 year old,

about the possibility of the death penalty; implied that he would be assaulted and

raped in prison; told him that if he confessed then he

would avoid the death penalty.

Was this a coerced confession?

Dye v. CW, 411 S.W.3d 227(Ky. 2013)

YES! “We hold that repeatedly threatening a

seventeen-year-old with the death penalty is ‘objectively coercive.’”

“We hold that attempting to persuade a seventeen-year-old that a confession is the only way he will avoid daily prison assault—sexual or otherwise – is ‘objectively coercive.’”

Leger v. CW, 400 S.W.3d 745(Ky. 2013) Trooper Allen arrested Leger on suspicion of a theft

offense. The two had been acquainted with each other for many years.

At the sheriff's office, Allen gave Miranda warnings. When questioned, Leger made an admission.

However, when Allen continued with another question, Leger asked: "What I am telling you now is between us, right. It ain't goin'

[unintelligible]? Allen: "Right."

Did Trooper's Allen's agreement that Appellant's statement would be confidential vitiate the previously-given Miranda warning?

Leger v. CW, 400 S.W.3d 745(Ky. 2013)

YES!

“Requiring police to give the proper Miranda warning and then allowing it to be countermanded with a false assurance that the suspect's statements will not be used against him, requires suppression of any statements the suspect makes thereafter during the interrogation.”

Evidence

Little v. CW, 422 S.W.3d 238 (Ky. 2013)

Does admission of the hospital laboratory report where the declarant does not appear at trial violate the Confrontation Clause?

Little v. CW, 422 S.W.3d 238 (Ky. 2013)NO! In Little's case, the blood analysis report was clearly

intended for the primary purpose of providing medical treatment to Little, and was not intended to establish or prove a fact or serve as a ‘substitute for trial testimony.’ See Bullcoming, 131 S.Ct. at 2720.

As such, the admissibility of the hospital report is governed by the Kentucky Rules of Evidence (“KRE”), and not by the Confrontation Clause.”

“The hospital laboratory report was properly admitted as a business record pursuant to KRE 803(6). The testimony of the person who prepared the report was not required because the report was not testimonial and Little's confrontation rights were not violated by its admission.”

  Southworth v. CW, 2012-SC-000179(March, 2014)(not final)

In Southworth’s trial for the rape and murder of his wife, Umi. DNA of an unknown individual was located inside the victim.

The Commonwealth introduced evidence of Southworth’s prior act of placing another man’s semen into someone—on the ground it was a signature act or modus operandi “because it was so bizarre.”

Should this evidence have come in?

 Southworth v. CW, 2012-SC-000179)(March, 2014)(not final)

NO!

The majority of the Court found the evidence was irrelevant because the act of semen insertion did not involve a “unique capacity, skill, or knowledge of the defendant.”

Also, there was no proof this was the method used to put the semen in Umi’s body. The admission of this other-acts evidence violated KRE 404(b) and prejudiced Southworth.

Self Defense

CW v. Farmer, 423 S.W.3d 690 (Ky. 2014)

Stand Your Ground-KRS 503.085

Is an order denying immunity from prosecution under KRS 503.085 immediately appealable?

No!

The Court of Appeals is not authorized to consider an appeal from an interlocutory order denying immunity from prosecution under KRS 503.085.

But you can file a writ!

Directed Verdict

Galloway v. CW, 424 S.W.3d 921 (Ky. 2014) During the first phase of a trifurcated trial, the jury

convicted Galloway of fourth-degree assault. During the second phase, the Commonwealth

called the detective to testify about the contents of certified copies of two misdemeanor convictions Galloway received for fourth-degree assault.

The detective's testimony did not provide any information about the relationship between Galloway and the victims in those assaults, but did state that Galloway had two prior convictions for “assault fourth degree, domestic violence.”

Was this sufficient proof for the jury to convict Galloway of fourth-degree assault, third offense?

Galloway v. CW, 424 S.W.3d 921 (Ky. 2014)

NO! The testimony of the detective that Mr.

Galloway had two prior convictions for domestic violence was insufficient;

To sustain a conviction the Commonwealth would have had to present “proof of the identity of the victim and the nature of the relationship between the perpetrator and the victim.”

McCleery v. CW, 410 S.W.3d 597(Ky. 2013)

Reminder:

When trying a case with co-defendants, it is not enough to preserve the motion for a directed verdict by allowing the codefendant’s counsel to make it. The Court requires that you actually have to state that you join in the motion.

McDaniel v. CW, 415 S.W.3d 643 (Ky. 2013) Appellant fired a shot that hit Henderson in the wrist. The only evidence presented at trial of Henderson's

injury was her own testimony. At the hospital, her wound was sutured and she was sent home the same night.

A small scar remains on Henderson's right wrist where the bullet penetrated.

At trial, the Commonwealth focused on the “serious and prolonged disfigurement” and “prolonged impairment of health” prongs of “serious physical injury.”

Was the defense entitled to a directed verdict on Assault 1 for the shot that hit Henderson’s hand?

McDaniel v. CW, 415 S.W.3d 643 (Ky. 2013)

YES!

The trial court erred when it refused to grant a directed verdict on the charge of Assault in the First Degree. No medical evidence, or evidence other than her testimony, was used to establish a serious physical injury. Although the scar on Henderson's hand is a disfigurement, it is not a “serious and prolonged” one.

Discovery Cases

Discovery Issues

McDaniel v. CW, 415 S.W.3d 643 (Ky. 2013): The Commonwealth

[cannot] skirt providing discovery under RCr 7.24(1)(c) by designating a medical doctor as “fact witness” and subsequently letting him render expert opinions on the stand.

Brown v. CW, 416 S.W.3d 302 (Ky. 2013): In Brown, the Kentucky

Supreme Court declined to grant relief when the Commonwealth used an undisclosed expert witness (police officer testifying about bullets penetrating a windshield). The Court held, “Since Appellant failed to submit a request for the Commonwealth to identify any expert witnesses it intended to call, we find no error.”

Jury Instructions

Martin v. CW, 409 S.W.3d 340, 345 (Ky. 2013)

NEW RULE: If you don’t ask for the instruction, then there is no palpable error review for the trial court failing to give that instruction. “…we now conclude RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or the failure to give a specific instruction.”

Preservation under Gabbard

Hurt exhausted all of his peremptory strikes and made a statement on the record immediately following the seating of the jury informing the trial court of which juror he would have used his peremptory strike to remove had his motion to strike been granted.

Hurt did not indicate this on his strike sheet

before the jury was seated.

Is this sufficient preservation under Gabbard?

Hurt v. Com., 409 S.W.3d 327 (Ky. 2013)

NO!

“Hurt's challenges, arising after the seating of the jury, were untimely and therefore insufficient to preserve the issue for appellate review under our Gabbard standard.”

Martin v. CW, 409 S.W.3d 340, 345 (Ky. 2013)

[A]ssignments of error in “the giving or the failure to give” an instruction are subject to RCr 9.54(2)'s bar on appellate review, but unpreserved allegations of defects in the instructions that were given may be accorded palpable error review under RCr 10.26.

Young v. CW, 2014 WL 1511386 (rendered 4/17/2014)(Became final 5/8/2014)

The Court found palpable error where a complicity instruction omitted the client’s mental state, an essential element of the offense.

Jury

Deliberations

McAtee v. CW, 413 S.W.3d 608, 622 (Ky. 2013)

Did the trial court err in permitting the jury to take a recorded testimonial witness statement to the jury room?

McAtee v. CW, 413 S.W.3d 608, 622 (Ky. 2013)

YES!

“Although RCr 9.72, by its terms, permits the trial court to exercise discretion over the evidence the jury may take with it to deliberations, see Johnson, 134 S.W.3d at 567, the court abuses that discretion when it permits the jury to take testimonial witness statements to the jury room,”

Self-Representation

Mitchell v. CW, 423 S.W.3d 152 (Ky. 2014) Counsel for Appellant refused to argue Mitchell’s

pro se motion because he did not believe it had merit. Mitchell asked to argue it pro se.

Appellant's counsel informed the judge that Appellant could represent himself for purposes of this motion only.

The judge responded that this was not an option, and advised Appellant to discuss the matter with counsel prior to the next pretrial hearing because Appellant's decision would mean that “you're going to be going all through this case without counsel.”

Mitchell v. CW, 423 S.W.3d 152 (Ky. 2014)

The trial court violated Mr. Mitchell’s right to hybrid representation by denying him the right to represent himself on a pre-trial motion while still retaining the services of counsel for the remainder of the proceedings.

Another Important Rule…

Once the court appoints standby counsel, the defendant cannot be excluded from bench conferences. Allen v. CW, 410 S.W.3d 125, 137 (Ky. 2013).

Sentencing and Probation Issues

Tolling Probationary Period

Commonwealth v. Dulin, 427 S.W.3d 170 (Ky. 2014)

Whitcomb v. Commonwealth, 424 S.W.3d 417 (Ky. 2014)

When does Probation Expire?

KRS 533.020(4)- Probation period plus extensions shall not exceed 5 years unless:Time necessary to complete

restitutionDefendant makes knowing and

voluntary request to extend. See Commonwealth v. Griffin, 942 S.W.2d 289 (Ky. 1997).

When does Probation Expire? “Upon completion of the probationary period,

… the defendant shall be deemed discharged, provided no warrant issued by the court is pending against him, and probation… has not been revoked.”

Conrad v. Evridge, 315 S.W.3d 313 (Ky. 2010); CW. v. Wright, 415 S.W.3d 606 (Ky. 2013).

No warrant, no revocation hearing= go home. Even if motion to revoke filed timely, if

defendant has not delayed hearing, no revocation.

Whitcomb v. Commonwealth

Whitcomb was probated for 5 years and failed to report to probation and parole.

A warrant was issued one month later. 11 years later, Whitcomb was arrested

after routine traffic stop. The trial court stated it lacked jurisdiction

to revoke based on Conrad v. Evridge.

Did the trial court have jurisdiction to revoke Ms. Whitcomb?

Whitcomb v. CommonwealthYES! Holding: SCT says Whitcomb is different

than Conrad because 1. a warrant was pending, and

2. the delay was attributable to the client because she “absconded.”

Practice Tips CALCULATE EXPIRATION DATE!!!

Consider advising client to turn him/herself in if a warrant has issued and it is very close to the five year limit. That’s Conrad- the hearing has to be within 5 year period.

Point out if client did not really cause part or all of the delay, i.e. was right under their nose, literally in court and no one served warrant, stopped by police who chose not to serve warrant, etc.

Commonwealth v. Dulin

Commonwealth v. Dulin Dulin was sentenced to 20 years and probated for 5 yrs. Twice during probation, client admitted to violations and

court sentenced him to jail sentences in lieu of revocation; then he resumed probation.

CW moved to revoke a third time, 1 month before expiration. Hearing was scheduled for 19 days after expiration through no fault of client’s (No warrant ever issued).

After expiration, client agrees to waive post-expiration objections to more continuances and agrees to have probation extended. Court revoked and imposes 20 year sentence.

Did the trial court have jurisdiction to revoke Mr. Dulin?

Commonwealth v. Dulin

YES!

Holding- KRS 533.040 (2) says probationary period is tolled if a court determines a defendant violated conditions but “reinstates” probation, the period between the date of the violation and the date of restoration shall not be computed as part of the period of probation.

Commonwealth v. Dulin

The Kentucky Supreme Court reasoned: the two periods where the client was found

to have violated probation and served jail time as a sanction, and then returned to probation, had tolled the 5 year probationary period.

Court read the statute literally so tolling began on date alleged violation occurred.

Tolling ended when client restored to supervision of probation officer.

When Does “Restoration of Probation” Occur?This remains unclear: The Court held that it did not have to decide if

probation was restored (1) when the trial court entered its order finding violations and ordering incarceration,; (2) or when Dulin was released and resumed his life under supervision because under either theory expiration was extended past the actual revocation.

The trial court has discretion as to whether jail time imposed is counted towards time on probation. e.g. court orders home incarceration or service of weekends

in jail while person remains on supervision-here there is so there is no actual interruption of term of probation and thus no restoration of probation.

Practice Tips - Dulin

Don’t agree to extend the hearing if motion to revoke is close to expiration.

Advise client that if she violates probation but the court imposes sanction, while restoring probation, probation period may be tolled, which will extend time on probation.

Practice Tips - Dulin

Ask court to find probationary period not interrupted and not tolled, even if incarceration ordered. SCT says court should make it intentions clear and this will be case-by-case determination.

Trial court can say it is modifying the conditions of probations pursuant to KRS 533.020 (4) but must reiterate the original expiration date is still in effect.

CW v. Wright, 415 S.W.3d 606 (Ky. 2013)

Where the judgment placed the defendant on supervised probation for five years, the probationary period expired five years from the date of sentencing discharging the defendant's sentence unless the term of probation was otherwise extended by operation of law

Juvenile Law

R.S. v. CW, 423 S.W.3d 178(Ky. 2014)The Kentucky Supreme Court upheld the trial court’s verdict, but held that:

1) In juvenile adjudications, at the close of the Commonwealth’s evidence, defense counsel should move for dismissal under CR 41.02(2), and the juvenile court is then required to “’weigh and evaluate the evidence,’” rather than, with regard to directed verdict, “indulge every inference in the [Commonwealth’s] favor.’” (Internal citations omitted.);

2) In juvenile cases where the court seeks to order restitution, the court must hold a restitution hearing, and make findings on the record not only that restitution is in the “best interests” of the child, but also why restitution is in the “best interests” of the child.