Kentucky Criminal Law Update : Kentucky Criminal Law Update 2010
Recent Kentucky Supreme Court cases : Recent Kentucky Supreme Court cases
Sex Offender Registration : Sex Offender Registration Buck v. CW, ____ SW.3d ____, 2010 WL 1636794 (Ky. 2010) (finality 5/13/10):
Defendant argued application of the amended Ky. Sexual Offender Registration Act (SORA) violated the ex post facto clauses of the federal and state constitutions
SC affirmed, reiterating its position from Hyatt that SORA is a remedial measure with a rational connection to the non-punitive goal of protection of public safety
Slide 4 : -Case dealt with 2000 amendments changing registration penalties from Class A misdemeanor to Class D felony and 2006 amendments increasing 10 year registration to 20 years, making it Class C felony for subsequent offense.
-2000 amendments apply to persons who become registrants after the amendments were enacted
-distinguishes Baker where compliance was punitive
Com. v. Baker, 295 S.W.3d 437(Ky. 2009) : Com. v. Baker, 295 S.W.3d 437(Ky. 2009) SC held that the residency restrictions enacted in the 2006 amendments to SORA cannot be applied retroactively to persons who committed offenses prior to July 12, 2006.
The restrictions of where sex offenders can live are so punitive as to negate the Legislature’s intent to make them civil. Compliance itself is punitive.
Juvenile Law : Juvenile Law Petitioner F v. Brown, 306 S.W.3d 80 (Ky. 2010):
Juveniles previously adjudicated as public offenders for sex offenses claimed they should not be required to submit DNA for inclusion in state and national databases
SC held that the privacy interests of public offenders, while greater than adults, do not outweigh state’s legitimate interest in maintaining a DNA database
Evidence : Evidence Woodlee v. CW, 306 S.W.3d 461 (Ky. 2010);
Defendant was charged and convicted of two counts of first degree sexual abuse of his infant daughter after his daughter from a previous relationship testified about her sexual abuse at the hands of Woodlee when she was four or five
SC concluded that the prior bad act and the current charge were not simultaneously similar and so peculiar or distinct as to be admissible under the modus operandi exception to KRE 404(b)
Slide 8 : SC noted the difference in the age of the victims and differences in the nature of the abuse alleged to have occurred meant the acts did not constitute a “strikingly similar” modus operandi
Two dissenting Justices contended that sexual abuse of one’s own young children is so aberrant as to constitute a “signature crime,” warranting an exception to KRE 404(b)
Montgomery v. Com., ____S.W.3d____,2010 WL 997398 (Ky. 2010) (not final) : Montgomery v. Com., ____S.W.3d____,2010 WL 997398 (Ky. 2010) (not final) Evidence of prior abuse did establish modus operandi exception to 404(b)
SC rejected, as violative of rape shield rule of KRE 412, defense attempt to present defense by showing other sexual behavior by minor victim under 412(b)(1)(C). KRE 412 applies to minors as well as adults.
Jenkins v. Com., 308 S.W.3d 704(Ky. 2010) : Jenkins v. Com., 308 S.W.3d 704(Ky. 2010) SC recognizes admissibility under KRE 702 of expert testimony on improper and suggestive interviewing techniques in child sex abuse case
Slide 11 : Colvard v. CW, ____ SW.3d ____, 2010 WL 997405 (Ky. 2010) (not final):
SC overruled Edwards, which had previously held that statements by the victim to medical professionals identifying family or household members as sexual abusers fell within the medical diagnosis or treatment exception to the hearsay rule (KRE 803(4))
SC concluded that Edwards was “ill-advised and unsound,” and that there is no inherent trustworthiness in hearsay statements identifying the perpetrator when the statement does not arise from the patient’s desire for effective medical treatment
Two dissenting Justices found that it was a valid exception under KRE 803(4)
Com. v. Stone, 291 S.W.3d 696 (Ky. 2009) : Com. v. Stone, 291 S.W.3d 696 (Ky. 2009) SC upheld reversal of manslaughter conviction by the COA where admission of non-testifying co-defendant’s out-of-court statement was testimonial, and violated Confrontation Clause.
Even though statements had been redacted to remove references to other defendants, it did contain a description of a behavior of the victim (he backed up after the beer bottle he held broke) that implicated the defendant who claimed the victim came toward him holding the broken bottle.
Slide 13 : SC reiterated that Crawford v. Washington did not eclipse Bruton, Richardson and Gray but the cases apply in different circumstances.
SC found statement violated Crawford because it was introduced against the defendant other than the declarant.
Bruton/Richardson analysis does not apply when the only purpose in introducing the statement was to incriminate the non-declarant.
Burton v. Com., 300 S.W.3d 126(Ky. 2009) : Burton v. Com., 300 S.W.3d 126(Ky. 2009) Urinalysis of driver in fatal accident done at hospital was positive for cocaine and marijuana but no quantities or time/date of ingestion were established.
Admission in this case violated KRE 403 (404(b) also discussed)- drug use have been remote, accident not necessarily caused by impaired driving, evidence allowed jury to speculate on defendant being a drug user in general
SC surveyed past cases on admission of urinalysis/blood results
SC also held CW’s drug recognition expert should not have testified
Smith v. Com., ___ S.W.3d___, 2010 WL 997394 (Ky. 2010) (not final) : Smith v. Com., ___ S.W.3d___, 2010 WL 997394 (Ky. 2010) (not final) Trial court should have suppressed statement made to police by defendant after police made “dynamic entry” entry into home, based on warrant, and she was immediately handcuffed and asked if she had and drugs or weapons without Miranda warning given. Taylor distinguished.
Public safety exception to Miranda could not save statement. Quarles spoke to “identifiable and specific danger requiring immediate and unfettered questioning of the defendant to alleviate the risk.”
SC held “vague belief weapon could be present not same as certain knowledge” gun had been discarded in public area. Look at danger to public.
Com., Cabinet for Health and Family Services v. Hon. Gregory M. Bartlett, ___S.W.3d___, 2010 WL 997374 (Ky.2010) (not final) : Com., Cabinet for Health and Family Services v. Hon. Gregory M. Bartlett, ___S.W.3d___, 2010 WL 997374 (Ky.2010) (not final) SC held COA properly denied Cabinet’s writ of prohibition.
Trial judge correctly ordered in camera review of KASPER records upon defense motion. Despite fact that KRS 218A.202 prohibits disclosure to defense or trial court, defendant’s constitutional right to discover exculpatory evidence trumps statute.
2 step procedure of Barroso followed
Star v. Com., ___S.W.3d___, 2010 WL 2016521 (Ky. 2010) (not final) : Star v. Com., ___S.W.3d___, 2010 WL 2016521 (Ky. 2010) (not final) Courtroom was laid out so defendant could not confront his accuser face to face- SC found it harmless here
“We note, however, that trial judges are courting with danger by tolerating any kind of courtroom arrangement which impedes eye-to-eye contact between the defendant and witnesses. In this case, as in Sparkman, it did not loom critical, but in the next case it might.”
Offenses Defined : Offenses Defined Hobson v. Com., 306 S.W.3d 478 (Ky. 2010)
Force used by defendant for the first time in parking lot, after attempted theft had been foiled and abandoned, was not in course of committing theft, so robbery charge could not be sustained, overruling Williams and Bumphis
Finn v. Com., ___S.W.3d ___, 2010 WL 2016535 (Ky. 2010) (not final) : Finn v. Com., ___S.W.3d ___, 2010 WL 2016535 (Ky. 2010) (not final) SC considered whether residue on a pen casing and glass pipe that was not visible to the naked eye or measurable was sufficient to support possession of cocaine charge
SC rejected argument that possession of microscopic amounts could never justify conviction in light of other evidence that defendant knowingly possessed cocaine- he told police he used the pen casing to use cocaine and thought he used it all up. He had cocaine metabolites in his urine.
Slide 20 : SC says mere possession of microscopic amounts of a controlled substance by itself without evidence that defendant knew he possessed such a substance would not satisfy statutory elements of first degree possession of a controlled substance.
Jury Selection : Jury Selection Crossland v. Com., 291 S.W.3d 223 (Ky. 2009)
SC held it was prejudicial error to replace a juror with an alternate after deliberations began when the alternate was not questioned to insure juror had not discussed case or could not remain impartial.
Because no criminal rule to the contrary, CR 47.02 applied.
Concurring opinion discusses how to analyze harmless error for non-constitutional errors.
Gabbard v. Com.,297 S.W.3d 844 (Ky. 2009) : Gabbard v. Com.,297 S.W.3d 844 (Ky. 2009) SC again refines how to properly preserve denial of motion to excuse juror for cause
Defense counsel moved to strike 2 jurors for cause, struck jurors with peremptories, used up all peremptories and put in strike sheet which other jurors would have been struck with those peremptories; one of those two jurors sat on trial
Juror who had already formed an opinion about guilt could not be rehabilitated and should have been stricken
Slide 23 : Extending Shane, SC holds attorney must put on strike sheet who peremptory would have been used on if had not been forced to use on challenged juror
SC does not mention King- how to reconcile?
Hannah v. Com.,306 S.W.3d 509(Ky. 2010) : Hannah v. Com.,306 S.W.3d 509(Ky. 2010) Trial court should have allowed defense to voir dire and to argue to jury that defendant had no duty to retreat where his defense was self-defense.
Conflict of Interest : Conflict of Interest Beard v. CW, 302 S.W.3d 643 (Ky. 2010):
SC reversed defendant’s conviction, holding that his trial counsel’s representation of a criminal informant who testified against defendant was an improper conflict of interest
COA affirmed the conviction on the grounds that defendant could point to no actual prejudice suffered as a result of the conflict
Slide 26 : SC held that under Holloway v. Arkansas, the correct inquiry is whether defendant raised an actual conflict at trial
SC ruled that counsel representing both a criminal defendant and a witness against that defendant who had an interest in the defendant being convicted constituted a conflict of interest warranting reversal
Warrantless Search : Warrantless Search King v. CW, 302 S.W.3d 649 (Ky. 2010):
Police followed a suspected drug trafficker after a controlled buy
Police lost sight of the suspect and mistakenly assumed he entered an apartment from which they could detect the odor of marijuana
After police knocked on the door and identified themselves, they heard movements which they believed indicated evidence was about to be destroyed
Police forcibly entered the apartment and found defendant and others smoking marijuana (they also found cash, drugs, and paraphernalia)
Slide 28 : Defendant appealed denial of his motion to suppress evidence obtained from what he argued was an illegal search, and COA affirmed the conviction, holding that exigent circumstances supporting the warrantless search were not of the police’s making and that police did not engage in deliberate and intentional conduct to evade the warrant requirement
SC reversed COA, concluding the entry was improper
SC held that the police were not in pursuit of a fleeing suspect when they entered the apartment, since there was no evidence that the original suspect even knew he was being followed by police
SC also held that while the mere odor of marijuana can justify a warrantless search of an automobile, the same is not true of a residence
Slide 29 : SC adopted the following two-part test for reviewing cases similar to this one: 1) the reviewing court must determine if police have created exigent circumstances in a bad faith attempt to avoid the warrant requirement; and 2) if not, then the court must next determine “whether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry”
Slide 30 : Owens v. CW., 291 S.W.3d 704 (Ky. 2009):
SCOTUS remanded this case for reconsideration in light of Gant
In this case, defendant was a passenger in a vehicle whose driver was arrested for a traffic offense
Driver was searched and found to be carrying drugs
Officer ordered defendant out of the car, conducted a Terry search, and discovered drugs
Slide 31 : On remand, SC held that Gant did not affect the conviction
SC adopted the “automatic companion rule,” which states that all companions of the arrested driver within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to a cursory “pat-down” reasonably necessary to give assurance that they are unarmed
Slide 32 : Watkins v. CW., 307 S.W.3d 628 (Ky. 2010):
Defendant challenged the warrantless search of his vehicle
SC held that once defendant abandoned his vehicle after a high-speed chase, he no longer had a reasonable expectation of privacy
Epps v. Com., 295 S.W.3d 807(Ky. 2009) : Epps v. Com., 295 S.W.3d 807(Ky. 2009) Stop of passenger defendant for a minor traffic offense to allow for drug dog to be brought to scene was unreasonably prolonged. Dog did not arrive for 15 minutes, it took 30-40 minutes for the dog to search, and the driver was not given a citation for an hour. Defendant was not arrested for 90 minutes.
Defendant was seized when car was stopped and thus had standing to challenge search.
Helton v. Com., 299 S.W.3d 555(Ky. 2009) : Helton v. Com., 299 S.W.3d 555(Ky. 2009) Police need “reasonable grounds” to believe a DUI had been committed to take blood, after fatal traffic accident, from unconscious person at hospital without a warrant.
“reasonable grounds” means probable cause
Case remanded for new suppression hearing to determine if police had probable cause to believe defendant violated DUI laws because no facts had been elicited on that issue at the trial court when suppression issue decided.
Search Pursuant to a Warrant : Search Pursuant to a Warrant CW v. Pride, 302 S.W.3d 43 (Ky. 2010):
Defendant challenged a search warrant, arguing that it was not supported by probable cause
COA reversed conviction based on Ornelas, determining probable cause did not exist to justify issuing a search warrant
SC reversed COA and held that Ornelas test only applies to warrantless searches and that the “totality of the circumstances” test from Gates is the correct standard for reviewing issuance of a search warrant in Kentucky
Self-Representation : Self-Representation Hummel v. CW, 306 S.W.3d 48 (Ky. 2010):
Trial court denied defendant’s request to represent himself or proceed with hybrid counsel
After a Faretta hearing, the trial court denied the request on the grounds that 1) self-representation was not in defendant’s best interests; 2) defendant was not skilled enough to represent himself; and 3) defendant could not control himself
Slide 37 : SC acknowledged that the first two reasons were improper but held that a request for self-representation may be denied if the defendant is unable or unwilling to abide by courtroom protocol as he conducts his defense or if the request is made purely as a tactic to disrupt or delay proceedings
Here, defendant’s behavior was “substantially and repeatedly disruptive” and the timing of his requests “strongly suggests he was using them as a tactic to delay proceedings”
Com. v. Terry, 295 S.W.3d 819(Ky. 2009) : Com. v. Terry, 295 S.W.3d 819(Ky. 2009) Trial court failed to comply with Faretta, instead telling defendant to “shine” and “put his game face on”
While SC said there is no script trial court must follow during Faretta inquiry, it noted with approval the model Faretta questions used in federal court and set out those questions in the opinion.
Probation Revocation : Probation Revocation CW v. Alleman, 306 SW.3d 484, (Ky. 2010):
Defendant appealed probation revocation arguing the trial court’s oral findings of fact and reasons for revocation violated due process requirements of Morrissey which mandates written findings
COA reversed the conviction, but SC reversed COA and reinstated the revocation, holding that where oral findings are preserved by a reliable means and sufficiently complete to allow the parties and reviewing courts to determine the facts relied on and reasons for revocation, due process is met
Slide 40 : SC noted that its decision was consistent with the trend among federal circuits
Two dissenting Justices contended that Morrissey explicitly requires a “written” statement
Conditional Discharge Revocation : Conditional Discharge Revocation Jones/Henley v. CW, ____ SW.3d ____, 2010 WL 1636852 (Ky. 2010) (not final):
SC held that KRS 532.043(5) which gives judges the power to revoke a conditional discharge imposed after a period of incarceration, violates the separation of powers doctrine (§ 27 and § 28 of Ky. Constitution)
SC held once a sentence becomes final, the power over incarceration passes to the executive branch
Slide 42 : The majority drew a distinction between conditional discharge and shock probation, categorizing the latter as a “short, limited extension of the trial court’s jurisdiction”
Two dissenting Justices argued that nothing in the separation of powers doctrine either expressly or inherently bars the General Assembly from granting such authority to the courts
Sentencing : Sentencing McClanahan v. CW, ____ SW.3d ____, 2010 WL 1636851 (Ky. 2010) (not final):
Defendant, charged with robbery and burglary, entered into a plea agreement containing a “hammer clause”
A “hammer clause” is an agreement whereby a defendant is allowed to remain free on his own recognizance until sentencing, under penalty of a significantly enhanced sentence if he fails to appear
Slide 44 : Defendant failed to appear and the trial court invoked the “hammer clause,” sentencing defendant to 35 years, noting that defendant “created” his own sentence and had “made his choice”
SC reversed for two reasons: 1) sentence imposed exceeded maximum legal punishment for the offense and defendants cannot consent to illegal punishment (overruling Myers and Johnson); and 2) the trial court violated its obligations when it imposed the “hammer clause” without giving due consideration to the pre-sentence report and all relevant factors
SC: these requirements “are not mere procedural formalities, but are substantive and may not be ignored”
Slide 45 : Winstead v. CW, ____ SW.3d ____, 2010 WL 1636863 (Ky. 2010) (not final):
Defendant was convicted of murder and robbery and sentenced to life without the possibility of parole for 25 years and 20 years
Sentences were ordered to run consecutively
SC held that defendant was entitled to new sentencing hearing since the consecutive terms violated KRS 532.110(1)(c), which provides that a term for a sentence of years cannot run consecutive to a life sentence
Stewart v. Com., 306 S.W.3d 502(Ky. 2010) : Stewart v. Com., 306 S.W.3d 502(Ky. 2010) SC discusses when palpable error results where elements omitted from jury instructions
Palpable error found where instructions on subsequent offense possession of drug paraphernalia omitted prior misdemeanor PDP conviction.
Cecil v. Com.,297 S.W.3d 12(Ky. 2009) : Cecil v. Com.,297 S.W.3d 12(Ky. 2009) Ex Post Facto violation to apply 2006 amendment to KRS 532.110 (1) (d) ordering consecutive service of certain sex crimes to offenses committed before July 12, 2006
Finnell v. Com., 295 S.W.3d 829(Ky. 2009) : Finnell v. Com., 295 S.W.3d 829(Ky. 2009) New sentencing hearing granted where CW used Courtnet printout to read to the jury about 14 misdemeanor convictions plus 1 felony already proved
Courtnet is not reliable and is not an official record sufficient to prove prior convictions under TIS statute- KRS 532.055.
Covington v. Com.,295 S.W.3d 814 (Ky. 2009) : Covington v. Com.,295 S.W.3d 814 (Ky. 2009) Trial court erred when it failed to allow defendant to withdraw his plea under RCr 8.10 when trial court refused to impose 20 year sentence recommended by the Commonwealth.
St. Clair v. Com., ___S.W.3d___, 2010 WL 1636883 (Ky. 2010) (not final) : St. Clair v. Com., ___S.W.3d___, 2010 WL 1636883 (Ky. 2010) (not final) SC reversed death sentence where instruction on aggravating factor included a prior conviction that was not final when defendant’s new offense was committed and thus defendant may have been denied a unanimous verdict
Directed Verdict : Directed Verdict Wilburn v. CW, ____ SW.3d ____, 2010 WL 997164 (Ky. 2010) (not final):
Defendant argued directed verdict for first-degree robbery and first-degree burglary after he pulled the trigger of a pistol which did not fire during a liquor store robbery
Robbery argument: prosecution failed to prove his pistol was operational at the time of the robbery
Slide 52 : SC affirmed robbery conviction, holding that the legislature intended for the statutory definition of a deadly weapon to refer to a “class” of weapons which encompasses individual, non-operational weapons like defendants (overruling Merritt, Kennedy, and Helpenstine)
One Justice concurred in result only, noting that the decision would preclude first-degree robbery convictions where the accused uses an exact toy replica of a handgun
Two dissenting Justices asserted that the majority overlooked the plain meaning of the statutory definition to reach its conclusion that “any weapon” means a “class” of weapons
Slide 53 : Burglary argument: prosecution failed to prove that defendant unlawfully entered or remained upon the store premises
SC reversed, holding that under KRS 511.090(2), defendant entered the premises lawfully
Furthermore, SC concluded that defendant left the property as soon as his license to be present was revoked i.e. when the store employee fired a weapon of his own
Sexton v. Com. __ S.W.3d ___, 2010 WL 2016534 (Ky. 2010) (not final) : Sexton v. Com. __ S.W.3d ___, 2010 WL 2016534 (Ky. 2010) (not final) SC found insufficient evidence for tampering with physical evidence where police officer looked at videotape defendant allegedly disposed of and nothing incriminating appeared in it
Fin : Fin