Kentucky Court Report - SCOKY & COAKY

Jail time credit waived by defendant in guilty plea agreement: PROPES V. COM. (COA 6/6/2008)

PROPES V. COM
CRIMINAL:  Jail Time Credit
2007-CA-001440
PUBLISHED: THOMPSON PRESIDING; CAPERTON, LAMBERT CONCUR
MONROE COUNTY
DATE RENDERED: 6/6/2008

CA affirmed TC's order denying Propes' motion for additional jail time credit for the 352 days he served prior to pleading guilty to Assault 2nd. Propes accepted and signed a plea agreement which specifically provided that he was waiving any jail time credit accumulated prior to accepting the Commonwealth’s plea offer. While Propes contends he was illegally sentenced, the Commonwealth agreed to amend his first-degree assault charge, a Class B felony with a maximum term of twenty years, to second-degree assault, and to dismiss his first-degree wanton endangerment charge. Therefore, we conclude that Propes’ guilty plea waived the operation of KRS 532.120(3). Furthermore, because the waiver of the statute does not constitute a constitutional waiver, there is no constitutional prohibition against presuming that Probes’ waiver was valid.

Digested by Scott C. Byrd
www.OlginandByrd.com

Judge's direction to defendant to answer prosecutor's question did not violate Fifth Amendment and opening door by defendant did not require notice per KRE 404(c): DILLMAN V. COM (COA 6/6/2008)

DILLMAN V. COM
CRIMINAL:  Fifth Amendment; KRE 404(b)
2007-CA-000455
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; KELLER, GRAVES CONCUR
PULASKI COUNTY
DATE RENDERED: 6/6/2008

Defendant's Fifth Amendment privilege against self-incrimination was not violated when the TC ordered him to respond to the prosecutor's question while testifying. In this drug trafficking prosecution, Dilman testified that he was merely an uncompensated middleman for a friend. When asked who was the supplier, Dilman invoked the Fifth Amendment. Given that Dillman’s own testimony placed the prosecutor’s question within the scope of relevancy, TC properly ordered him to respond.

Dillman’s assertion of an entrapment defense was not sufficient to support the introduction of his prior unsworn out-of-court statement. Dillman’s prior statement was made several years prior to the dates he committed the charged offenses. The introduction of the prejudicial prior statement substantially outweighed its probative value. However, CA concluded that Dillman “opened the door” for the introduction of his prior statement, and therefore, affirmed the trial court. Under the circumstances, the Commonwealth did not violate the notice requirement of KRE 404(c). As demonstrated to the trial court, the Commonwealth acted in as prudent a manner as possible under the circumstances. The Commonwealth disclosed the prior statement at the earliest feasible time in which it believed the evidence was relevant. Finally, Defendant was not entitled to a facilitation instruction.

Digested by Scott C. Byrd
www.OlginandByrd.com

Polling jury requires audible response on the record; four seconds did not make it: MILES V. COM. (COA 6/6/2008)

MILES V. COM.
CRIMINAL:  Jury Polling
2006-CA-002150
PUBLISHED: REVERSING
PANEL:  ACREE PRESIDING; DIXON, TAYLOR CONCUR
GALLATIN COUNTY
DATE RENDERED: 6/6/2008

Miles' conviction for DUI reversed because the manner in which the trial court polled the jury did not comply with Kentucky Rule of Criminal Procedure (RCr) 9.88. Polling is “done by the clerk's or court's asking each juror if it is his or her verdict.” It is clear from the videotape that the trial court did not “ask[] each juror” if this was his or her verdict. The court’s method of polling the six jurors took exactly four seconds. None of the jurors responded audibly. It is possible that all six jurors individually responded in a non-verbal way to the court’s four queries. While a non-verbal response to the court’s queries can be sufficient, the response must be to a question specifically posed to that responding juror and to him alone.

Digested by Scott C. Byrd
www.OlginandByrd.com

Devore v. Commonwealth overruled to extent it requires all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other: PEYTON V. COM (SC 5/22/2008)

PEYTON v. COM
CRIMINAL:  Criminal - KRS 533.060(2)
2006-SC-000343-MR.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART
OPINION BY SCOTT
FROM HOPKINS COUNTY
DATE RENDERED: 5/22/2008

SC affirmed Defendant's convictions of three counts of first-degree trafficking in a controlled substance and of being a persistent felony offender in the first degree; however, SC reversed 34 year sentence and remanded for a new hearing. In the context of KRS 533.060(2), the language, "the period of confinement for that felony shall not run concurrently with any other sentence," should be construed as meaning that subsequent felony offense(s) committed while on probation or parole may not be run concurrently with the sentence for which the individual is on probation or parole. In the instance of multiple-count subsequent felony offenses committed while on probation or parole, however, these subsequent offenses may be run either consecutively or concurrently, at the court's discretion. Accordingly, SC held that to the extent Devore v. Commonwealth , 662 S.W.2d 829, 831 (Ky. 1984) requires all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other, it is overruled.

Digested by Scott C. Byrd
Olgin and Byrd

In overruling Sherley v. Commonwealth, SC held double jeopardy not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim): DIXON V. COM (SC 5/22/2008)

DIXON v. COM
CRIMINAL:  Criminal - Double Jeopardy
2006-SC-000682-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON
COUNTY: GREENUP
DATE RENDERED: 5/22/2008

Separate convictions for first-degree rape premised on serious physical injury and first-degree assault arising from same physical injury did not violate prohibition against double jeopardy, overruling Sherley v. Commonwealth, 558 S.W.2d 615.

SC affirmed Dixon's convictions and 47 year sentence for first-degree assault, first-degree rape, and first-degree robbery. TC properly denied Defendant's proposed instruction on facilitation to commit first-degree robbery and facilitation to commit first-degree rape. The assault and rape convictions did not violate the prohibition against double jeopardy. In cases like this one, in which the Commonwealth prosecutes a defendant on a charge of first-degree rape under a theory that the victim suffered a serious physical injury, the elements of first-degree rape are as follows: (1) engaging in sexual intercourse with another person (2) by forcible compulsion, (3) which results in the victim receiving a serious physical injury. SC overruled Sherley v. Commonwealth, 558 S.W.2d 615 (Ky. 1977) and held that the prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim), even if the same serious physical injury to the victim is used to support each conviction.

Digested by Scott C. Byrd
Olgin and Byrd

 

"Other acts" evidence that defendant struck/shook child were admissible as well as autopsy photos: DANT V. COM (SC 5/22/2008)

DANT V. COM
CRIMINAL:  Hearsay; Prior Bad Acts
2006-SC-000505-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON
COUNTY: HANCOCK
DATE RENDERED: 5/22/2008

SC affirmed Dant's conviction and life sentence for wanton murder. TC did not violated the hearsay rules nor KRE 404(b) when it admitted incriminating testimony. Because the evidence of Dant previously smacking Addryana on the head when she did not mind him could support a "reasonable probability" that Dant also struck Addryana on the head and/or used violence to stop her from crying on the night of her death, SC found that the trial court did not abuse its discretion when it determined that this evidence was relevant under KRE 404(b). Since the probative value of this evidence is not outweighed by its prejudicial effect, SC affirmed the trial court's ruling on the admissibility of Dant's prior abuse of Addryana. The evidence strongly reveals a common element that precedes each act of physical abuse-a crying baby. Despite the fact that each physical act was not identical, because each action was prompted by a crying child, Hall's testimony regarding Dant's prior abuse of Katilyn and Isaac fits within the pattern of conduct exception and was properly admitted at trial. Since Dant was given actual notice of the Commonwealth's intent to introduce KRE 404(b) evidence in time to adequately challenge its admissibility, SC concluded that he did not suffer any prejudice and the trial court did not err in finding that the notice requirement of KRE 404(c) was satisfied.

Digested by Scott C. Byrd
Olgin and Byrd

SC lacked jurisdiction to consider and rule on merits of defendant's unpreserved challenge to constitutionality of violent offender statute: BENET V. COM (SC 5/22/2008)

BENET V. COM
CRIMINAL:  Criminal - Statutory Challenge
2006-SC-000422-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON
COUNTY: JEFFERSON
DATE RENDERED: 5/22/2008

SC affirmed the judgment sentencing him to twenty years' imprisonment for first-degree sodomy and five years' imprisonment for first-degree sexual abuse, to be served consecutively, for a total of twenty-five years imprisonment. Benet did not properly preserve his argument that KRS 439.3401 ("violent offender statute") is unconstitutional. The Court of Appeals' statement in Sherfey v. Sherfey, 74 S.W.3d 777, 781 n.7 (Ky.App. 2002) that a reviewing court has the power to review improperly preserved "as applied" constitutional challenges must be overruled as being inconsistent with the plain, unambiguous language of KRS 418.075. A defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation. TC has the discretion to decline to follow a jury's recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant, overruling Smith v. Commonwealth, 806 S.W.2d 647 (Ky. 1991).

Digested by Scott C. Byrd
Olgin and Byrd

Defendant entitled to lesser included misdemeanor instructions: COM V. OLIVER (SC 5/22/2008)

COM V. OLIVER
CRIMINAL:  Criminal - Lesser Included Instruction
2006-SC-000385-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON; CUNNINGHAM CONCURS IN RESULT ONLY BY SEPARATE OP W/NOBLE JOINING
COUNTY: MCCRACKEN
DATE RENDERED: 5/22/2008

This Court has never expressly addressed whether a criminal defendant is entitled to have the jury instructed on a lesser-included misdemeanor offense which is supported by the evidence but which was time-barred by KRS 500.050(2) at the time of indictment. We now hold that a defendant is entitled to the lesser-included offense instruction and, that by requesting jury consideration of an "expired" misdemeanor, the defendant waives his statute of limitations defense to any resulting conviction. Recognizing that this rule was unavailable at the time of Appellee Stewart Oliver's trial and that the trial court and all parties misperceived the consequences of the defendant's request for expired misdemeanor instructions, we affirm the Court of Appeals' reversal of Stewart Oliver's convictions, albeit on different grounds, and remand this case for a new trial.

Digested by Scott C. Byrd
Olgin and Byrd

Juvenile's commitment and evidence affirmed: O.(S.D.) v. COM. (COA 5/2/2008)

O.(S.D.) V. COM.
CRIMINAL:  Affirmed juvenile court's find and order of commitment of minor
2006-CA-001647 503
PUBLISHED: AFFIRMING
PANEL: WINE PRESIDING; KELLER, THOMPSON CONCUR
ADAIR COUNTY
DATE RENDERED: 5/2/2008

On discretionary review, CA affirmed juvenile court's finding of guilt and order of commitment of minor defendant to Department of Juvenile Justice. (1) the evidence was sufficient to prove second-degree terroristic threatening; (2) the juvenile court did not err in admitting a note into evidence; and (3) the juvenile court did not err in allowing a police officer and the school principal to testify as to oral admissions.

Digested by Scott C. Byrd
www.olginandbyrd.com

Prosecutor's duty to disclose incriminating statement to defendant includes oral and written statements: CHESTNUT V. COM (SC 4/24/2008)

CHESTNUT V. COM
CRIMINAL:  Discovery Violation
2007-SC-000154-MR.pdf
PUBLISHED: REVERSING
OPINION BY SCOTT; ABRAMSON NOT SITTING
JEFFERSON COUNTY
DATE RENDERED: 4/24/2008

Having concluded that the Commonwealth's failure to disclose an incriminating oral statement of the defendant per RCr 7.24(1) impermissibly tainted Chestnut's defense in this case, SC reversed his convictions and 77 year sentence for four counts of burglary in the second degree, receiving stolen property over three hundred dollars, possession of a controlled substance, and illegal possession of drug paraphernalia. Looking at the plain language of RCr 7.24(1) stating that, "the Commonwealth shall disclose . . . any oral incriminating statement . . . made by a defendant," we find that it is apparent from a reading of the language of the rule, that RCr 7 .24(1) was intended to apply to both oral and written statements, which were incriminating at the time they were made. Consequently, to the extent that Berry, and its progeny Partin and Matthews hold that RCr 7.24(1) does not apply to a defendant's oral incriminating statements, they are overruled. Accordingly, we now conclude that nondisclosure of a defendant's incriminating oral statement by the Commonwealth during discovery constitutes a violation of the discovery rules under RCr 7.24(1), since it was plainly incriminating at the time it was made.
Presentation of undisclosed evidence in violation of RCr 7.42(1) under the guise of rebuttal evidence pursuant to RCr 9.42 constitutes reversible error. Because the trial court abused its discretion in allowing the admission of the statements in violation of RCr 7.24(1), and because it reasonably likely that had the evidence been disclosed, Chestnut's defense, and potentially the result, would have been different, the error was not harmless. The trial court committed error in allowing excluded evidence into the jury room during deliberations.

Digested by Scott Byrd, Olgin and Byrd Attorneys