By Erin Hoffman Yang, Appeals Branch
B.B. v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 47 (Ky. 2007)
Reversing
Opinion by J. Schroeder
B.B. was adjudicated guilty of first degree sodomy based on
the testimony and hearsay statements of C.Y., the four year
old complaining witness.
The trial court abused it discretion by finding C.Y. competent
to testify. Based on C.Y.’s performance at the competency
hearing, the trial court should have found her incompetent
under KRE 601(b)(4). C.Y. failed to demonstrate any
understanding whatsoever of the obligation of a witness to
tell the truth, or the consequences of lying. C.Y. gave
nonsensical and conflicting testimony at the adjudication
hearing and generally agreed with anything that was
suggested. The Court warned judges against the temptation
“to let pity for small children who may have been victimized ...
overcome their duty to enforce the rules of evidence.....”
C.Y.’s incompetence extended to hearsay. Souder v.
Commonwealth, 719 S.W.2d 730 (Ky.1986) and Edwards v.
Commonwealth, 833 S.W.2d 842 (Ky.1992) are overruled to
the extent they hold testimonial incompetence is not a
consideration in determining the admissibility of out-of-court
statements. Over Appellant’s objection, the trial court admitted
C.Y.’s statements to an emergency room nurse under KRE
803(4), the hearsay exception for statements made for the
purpose of medical treatment or diagnosis.
The Court held that C.Y.’s incompetence would extend to the
hearsay. Courts should be particularly cautious about
admitting into evidence the out-of-court statements to a
physician of any child who is not competent to testify in
person A child whose understanding is not sufficient to allow
him to testify at trial may also fail to understand that the
recovery of his health is dependent upon the truth of his
statements to a doctor.
Brown v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 74 (Ky. 2007)
Reversing
Opinion by J. Noble, J. Scott and McAnulty Dissenting
Brown’s trial progressed normally until defense counsel
informed the court that after several discussions with his
client, he had concluded that a conflict had arisen which he
wanted to address to the court outside the presence of the
prosecution. The court allowed the ex parte discussion, during
which defense counsel informed the court that the Appellant
wanted to present through his testimony a theory that was
not consistent with counsel’s investigation of the case.
Counsel told the court that his client wanted to testify, and
had the right to do so, but that counsel felt his ethical
limitations created a conflict with the client. He stated that he
did not believe he could deliver his planned opening statement
or elicit the testimony Appellant now wanted to give. The trial
court and defense counsel then took a break to consult the
Rules of Professional Conduct, specifically Rule 3.3 and its
commentary.
Brown was brought to the bench, and the trial court conducted
a lengthy and thorough colloquy with him, setting forth the
situation and presenting options, and directing him to consult
further with his attorney before making a final decision on
how he was going to proceed. The trial court told Brown that
he could give a narrative statement and closing argument.
Defense counsel offered to cross-examine the final two
prosecution witnesses and informed the court that he would
then be stepping out of the courtroom. Defense counsel
indicated that he had told Brown that it might make things
worse if he remained seated at counsel table while Brown
proceeded. Specific statements as to the nature of the alleged
perjury were never put on the record.
The trial court erred by allowing trial counsel to completely
abandon defendant during his narrative statement, crossexamination
and closing argument in the guilt phase of the
trial. Allowing counsel to reappear for the penalty phase
compounded the appearance of irregularity. Under Rule 3.3, a
lawyer is prohibited from offering evidence known to be false,
may refuse to offer evidence that she reasonably believes to
be false, and shall inform the tribunal of all material facts known
to her so that the tribunal can make an informed decision
whether the facts are adverse. The plain language of this rule
contemplates that a lawyer will not advance false testimony of
any witness, and that she will inform the court if such testimony
is imminent and what facts support that belief. However, Rule
1.6 creates a duty of confidentiality that prohibits a lawyer
from revealing information related to the representation of a
client. Moreover, the client has a right to testify in his own
defense and a right to counsel. This creates an apparent conflict
when an attorney knows that a client intends to offer false
testimony.
In this case, given that no one other than counsel and Appellant
knew the contested area of testimony allowing Brown to testify
wholly on his own and without benefit of counsel’s objections
on cross examination (which would have been directed at
evidentiary rules rather than content) unconstitutionally
deprived of him of his right to assistance of counsel. This
was compounded by requiring him to make his own closing
argument and allowing counsel to return to conduct the
sentencing phase.
The dissent argued Brown’s “limited forfeiture of counsel”
was appropriate under the circumstances The right to
counsel does not include a “right to have a lawyer who will
cooperate with planned perjury.” When a defendant wishes
to resort to perjury or to produce false evidence, one
consequence is the risk of withdrawal of counsel. A lawyer
who cooperates with a defendant’s perjurious testimony would
be at risk of prosecution for suborning perjury, and disciplinary
proceedings, including suspension or disbarment.
Emerson v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403391
Affirming in part, Reversing in part
Opinion by J. Noble
Emerson and his mother were convicted of murder, robbery
and tampering with physical evidence in the death of his
stepfather. Both Emerson and the Commonwealth presented
evidence at trial that he agreed to the murder because he
believed his stepfather was abusing his mother.
It is error for the Commonwealth to refer or comment on
parole in the penalty phase of a death penalty trial. During
the penalty phase closing arguments, the prosecutor stated:
“[n]ow let’s talk about if you set the penalty at life without the
possibility of parole for 25 years or any penalty less than that,
he has the opportunity to be released from prison when he
would be younger or right about the same age as Gerald
Monroe.” Defense counsel objected and moved for a mistrial,
arguing that the prosecutor in effect told the jury that parole
eligibility was 20 years because she revealed the opportunity
for Emerson to be released while he was still younger than
Monroe. In effect, the prosecutor told jurors that if Emerson
received life without the possibility of parole he could be
released in 20 years.
The Court stated that although parole eligibility information
is fully admissible in a truth-in-sentencing hearing, it has no
place in a death penalty hearing. It is well-established that
“under no circumstances should parole eligibility enter into
death penalty deliberations.” Id.
Emerson was entitled to jury instructions on moral
justification and extenuation as mitigating factors. Failure
to instruct on these factors was error under KRS 532.025 (2)
(b) (4). Under the statute, as long as there is “some evidence”
to support a mitigating factor, it must be included. There was
sufficient evidence presented by the defense and the
Commonwealth that Emerson believed his mother was being
abused by his stepfather. The trial court abused its discretion
on omitting the instructions, although Emerson was spared
the death penalty, he might have received a lesser sentence if
the jury considered extenuation.
Coulthard v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403396
Affirming
Opinion by J. Scott
Coulthard was convicted of first degree manslaughter and
tampering with physical evidence after shooting his 18 year
old victim in the neck during a confrontation.
The was no error based on the behavior of the victim’s family
during the trial. The Court rejected Coulthard’s claim that he
was prejudiced when family members wore t-shirts and
displayed license plates supporting the victim outside the
courtroom. Coulthard had to prove that this propaganda was
viewed by the jury inside the courtroom to show prejudice.
Also, the trial court properly denied a mistrial based on the
family’s emotional outbursts at the trial. An admonition to
jurors to disregard an emotional display would have been
adequate to cure any possible prejudice that may have
resulted. Although an admonition was warranted in this case,
the defense did not ask for one.
The Commonwealth did not violate Coulthard’s constitutional
right to be free of warrantless searches by introducing
evidence he refused to consent to fingerprint sampling.
Coulthard took the stand and exposed himself to crossexamination.
While it is generally unconstitutional to penalize
a defendant for exercising his right to be free of warrantless
searches, the Court held that his refusal to submit to fingerprint
sampling was relevant for the legitimate purpose of rebuttal
and impeachment of the self defense claim presented at trial.
Debruler v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403438
Affirming
Memorandum Opinion of the Court
Debruler was charged with kidnapping and robbery. He
allegedly grabbed a ten year old and carried her to the backyard
of a vacant house before she managed to escape. He was
also charged with a robbery less than one mile away from the
scene of the attempted abduction. Seven hours after the
incidents two K9 unit dogs were brought to the scene of the
alleged abduction. Both dogs were able to track Debruler’s
scent to the back of the vacant house.
Canine scent tracking is not scientific evidence subject to
Daubert. Testimony from a trained dog handler concerning
the use of canine scent concerned the results of an
investigative technique, not a scientific procedure. The officers
did not testify as to any technique, theory, or methodology.
Rather, the testimony was limited to personal observations of
the dog’s actions and their interpretations of the tracking
based on their experience and training. While Daubert may
apply to technical or specialized knowledge as well, canine
scent tracking is not amenable to peer review and testing.
Vaughn v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403353
Reversing
Opinion by J. Scott, Dissent by Cunningham and Minton, JJ.
David Vaughn appealed from a Court of Appeals decision
upholding his conviction for first degree attempted sodomy.
He was not allowed to present testimony the complaining
witness, his stepdaughter, had a reputation for untruthfulness
at her school, holding that her school was not a community.
The Court of Appeals upheld the trial court’s decision, holding
that “[appellant] failed to lay a sufficient foundation to establish
that the school from which the teacher drew her opinion of
his stepdaughter’s reputation was sufficiently large, with
adequate contact with the child, to provide a trustworthy
estimation of B.D.’s reputation in the community.” The only
issue on discretionary review was whether a grade school
can satisfy the community requirement in the version of KRE
608 in effect prior to July 2003.
The law of evidence includes a child’s school within the
definition of community. Vaughn should have been permitted
to offer evidence from two of his stepdaughter’s teachers
that the girl had a reputation for untruthfulness. A school is
a substantial group that children are a part, and creates
interpersonal relationships where people can develop opinions
about others. Other than a child’s family, it is likely that school
is the largest community that a child belongs to.
The dissenters agreed that school could be a community for
reputation purposes but believed excluding the testimony of
the alleged victim’s untruthfulness was harmless error.
Commonwealth v. Ronnie Lee Coker
Rendered 9/20/07, To Be Published
2007 WL 2736222
Reversing
Opinion by J. Minton
Ronnie Lee Coker was convicted of extortion and being a
persistent felony offender in the second degree. A divided
panel of the Court of Appeals reversed Coker’s conviction on
appeal, holding the trial court erred by denying Coker’s Batson
challenge to an African American veniremember against whom
the Commonwealth had exercised one of its peremptory
challenges.
The Court of Appeals did not show proper deference to the
wide latitude given trial courts in ruling on Batson
challenges. In response to questioning by defense counsel,
the veniremember in question identified “due process” as a
right protected under the Bill of Rights. When asked what
verdict should be returned if the Commonwealth failed to
prove the charges beyond a reasonable doubt, he answered,
“not guilty.” Defense counsel argued that the prosecution
expressed surprise that there were two African Americans on
the panel and had a history of Batson violations.
Nonetheless, the trial court accepted the Commonwealth’s
assertion that he had stricken the panel member because he
had “aligned himself” with the defense by speaking up when
questioned about constitutional issues. The Supreme Court
agreed, reversing the Court of Appeals and holding that the
trial court was entitled to accept the Commonwealth’s
reasoning as race-neutral. The majority noted that on review,
the Court’s role “is not to determine whether we find a proffered
reason to be a mere pretext for discrimination; our job is to
determine whether the trial court’s acceptance of the validity
of the race-neutral reason is clearly erroneous.”
Rocky Gray v. Commonwealth
Rendered 9/20/07, To Be Published
2007 WL 2736217
Affirming
Opinion by J. Scott
Rocky Gray was pulled over for driving erratically in 2005. He
consented to a search and the officer discovered marijuana,
various items of drug paraphernalia including scales,
individually wrapped bundles of methamphetamine, a pistol,
and $1,527 in cash. Rocky Gray was convicted of several
drug charges and being a persistent felony offender in the
second degree and sentenced to a total of 58 years. The trial
also forfeited the cash found during the search.
The forfeiture of the money did not violate Kentucky’s
forfeiture law or Gray’s due process rights. Gray argued that
the cash was improperly forfeited because the money was not
shown to have been exchanged in the sale of drugs.
Kentucky’s forfeiture statute, KRS 218A.410, permits the
forfeiture of “[e]verything of value furnished ... in exchange
for a controlled substance in violation of this chapter, all
proceeds ... traceable to the exchange, and all moneys ... used,
or intended to be used to facilitate any violation of this
chapter.” The statute further provides that it shall be a
rebuttable presumption “that all moneys, coin, and currency
found in close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia ... are presumed
to be forfeitable under this paragraph.”
The Court held that the large amount of cash found in Gray’s
van coupled with the large amount of drugs led to a reasonable
conclusion that Gray had used, or intended to use the cash in
an illegal transaction. Thus, Gray had the burden to rebut the
presumption that the money should be forfeited and he failed
to do so.
The trial court did not err in failing to order a competency
hearing prior to sentencing. Immediately before sentencing,
trial counsel discovered that Gray was being treated for
psychotic behavior and asked the court to grant a new trial or
hold sentencing in abeyance pending a competency hearing.
The Court held the request was properly denied. Gary had
been able to participate in his defense and the case had been
ongoing for one year with no sign of incompetency from Gray.
