Kentucky Case Review
By Roy A. Durham, Appeals Branch
Commonwealth v. Anthony Wayne Swift
Rendered 11/01/07
237 S.W.3d 193
Affirming
Opinion by J. Minton
The Supreme Court granted discretionary review and affirmed the Court of Appeals’ decision that Anthony Swift’s cultivation of marijuana conviction must be reversed because the trial court failed to give an instruction on the lesser-included offense of possession of marijuana.
A juror could have found that Swift possessed the marijuana plants and potted seeds under a theory of constructive possession. Swift testified that he knew about the marijuana plants and potted seeds growing on his property. However, Swift further testified that the plants and seeds were not his and that he was indifferent to their existence. So under the constructive possession theory, there was evidence from which a juror could have had a reasonable doubt that Swift “knowingly and unlawfully plant[ed], cultivate[ed], or harvest[ed] marijuana with the intent to sell or transfer it, as required to commit the offense of marijuana cultivation, while simultaneously believing beyond a reasonable doubt that Swift “knowingly and unlawfully possesse[d] marijuana” because it was growing on his property with his knowledge, as required to commit the offense of possession of marijuana.
Since Swift openly admitted knowing about the marijuana plants and potted seeds, under the evidence, a juror could have reasonably concluded that Swift did not cultivate the marijuana plants and potted seeds but did possess those items under the constructive possession doctrine. Even though Swift’s stepson testified that he had no knowledge of the marijuana, this other evidence submitted to the jury did not eliminate the need for a jury instruction on possession as a lesser-included offense of cultivation because it is the jury’s sole province and duty as the finder of fact to sift through the conflicting evidence and to determine what evidence to believe and what evidence to disbelieve.
Commonwealth v. Thomas Berryman
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237 S.W.3d 175
Affirming
Opinion by J. Minton; Dissent by J. Schroder
Berryman and a friend, Michael Dunn, retrieved a package from a UPS hub in Stanton, Kentucky which contained Lortab pills, which his friend admitted purchasing on the internet without a prescription. Berryman struck a vehicle, seriously injuring one occupant and killing the other. The evidence presented was that Berryman was driving his vehicle at approximately ninety-eight miles per hour and was preoccupied with something in the center or passenger area of the car. Dunn was counting the pills in the front seat while simultaneously conversing with Berryman about a future package just prior to the accident. The trial court severed the possession of a controlled substance in the third degree charge and Berryman was tried and found guilty for wanton murder and assault in the first degree and sentenced to forty-five years.
The Court held that it was not error for the trial court to permit the Commonwealth to introduce evidence regarding the Lortab pills. The drug-related charges against Berryman had been severed, however the evidence about the drugs was still relevant to prove that Berryman’s conduct rose to the level of wantonness necessary for murder and assault in the first-degree convictions. The Court held that although testimony that Berryman, apparently, was engrossed by Dunn’s counting of illicit pills surely was prejudicial, the jury was entitled to be aware of the full spectrum of Berryman’s misconduct so that it could make the difficult determination of whether Berryman’s misconduct constituted wanton murder and/or first-degree assault or whether that misconduct constituted a lesser-included offense, such as reckless homicide or fourth-degree assault. Only a juror possessed with full knowledge of the circumstances surrounding the tragic collision could have made the requisite determinations as to the proper degree of culpability for Berryman’s misconduct.
Floyd Mike Jones III v. Commonwealth
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237 S.W.3d 153
Affirming in Part and Reversing and Remanding in Part
Opinion by J. Minton; Dissent in Part by J. Lambert
Jones was convicted of incest, thirteen counts of sodomy third degree, eight counts of rape third degree, and bribing a witness. The alleged victim was his teenage stepdaughter, M.G. The Supreme Court granted discretionary review to consider the propriety of the trial court’s decisions to (1) limit the testimony of Jones’ DNA expert; and (2) permit the Commonwealth to introduce pornographic images into evidence, despite the lack of a nexus between those images and the testimony of M.G.
It was error for the trial court to refuse to permit an expert to testify as to anything outside the parameters of his report, as RCr 7.24(3)(A)(i) does not require parties to provide in discovery the theories underlying their expert’s opinions. The trial court allowed the expert to testify about the contents of his report but barred him from testifying about any perceived shortcomings in the Commonwealth’s DNA expert’s report or methodology because Jones had not informed the Commonwealth during discovery that he intended for the expert to criticize the Commonwealth’s expert’s methodologies. In other word’s the trial court essentially confined Jones’ expert to the four corners of his report.
RCr 7.24(3)(A)(i), which requires a defendant to “permit the Commonwealth to inspect, copy, or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case”, applies only to results or reports of scientific tests or experiments. The Commonwealth’s argument that Jones committed a discovery violation when he did not provide the Commonwealth with the entire underlying bases for his expert’s testimony is premised upon an impermissibly broad interpretation of RCr 7.24 therefore Jones provided the Commonwealth all that was required in discovery concerning the expert’s report.
It should not have come as a surprise to the Commonwealth that the expert would disagree with the conclusion and/or analytical process used by the Commonwealth’s DNA expert in light of the conclusions contained in Jones’ expert’s report. Therefore permitting that expert to explain why he found fault with the Commonwealth’s DNA expert’s conclusion and/or methodology can not be perceived as impermissible sandbagging. However, the Court rejected Jones’s contention that the Commonwealth’s burden in a reciprocal discovery case is somewhat greater than that borne by the defendant.
Pornographic images may not be introduced and shown to the jury unless a nexus is shown between the images and the witness’s testimony. The witness testified that Jones frequently showed her pornographic images of young women engaged in sexual activity before his sexual encounters with her. The witness did not testify that the pornographic images introduced by the Commonwealth, which were copied form computers in Jones’s home, were the actual images shown her by Jones. Rather, the images were shown via the testimony of a state police computer forensics expert who had copied the hard drives from Jones’s home computers onto a compact disc.
The Commonwealth made no effort to link these sexually explicit images to any sexual contact Jones allegedly had with M.G. therefore the introduction of the contents of his home computer was highly improper.
Commonwealth v. Edward T. Bowles
Rendered 11/01/07
237 S.W.3d 137
Reversing
Opinion by J. Cunningham
The Supreme Court reversed the opinion of the Court of Appeals which reversed and remanded the trial court’s denial of a motion under RCr 11.42 filed by Bowles. The Supreme Court found that the Court of Appeals misapplied the standard set in Strickland v. Washington in addressing Bowles’ ineffective assistance of counsel claim.
It is not unreasonable for a defense counsel to fail to object to the introduction of evidence which had already been objected to by motion in limine and denied in the first trial of this matter, which ended in a mistrial. The court found that it was reasonable to assume that defense counsel thought the question was reserved due to the ruling on his motion in limine which was denied before the first trial began. This Court was not prepared to say that the trial court erred, nor counsel’s failure to object to its admission established proof of deficient counsel. Additionally, counsel’s performance did not affect the outcome of the trial.
Terry Rankins v. Commonwealth
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237 S.W.3d 128
Reversing
Opinion by J. Schroder; concurring Opinion by J. Cunningham
Statements to an officer from an alleged assault victim who is not able to testify at trial are not “excited utterances” and not admissible if the statements are testimonial. Crawford v. Washington requires exclusion of the statements regardless of whether they fall under the “excited utterance”, or any other, hearsay exception. Where statements recount potentially criminal past events, the declarant is, for Confrontation Clause purposes, acting as a witness against the accused. Statements that tell “what is happening’ are non-testimonial, while statements that tell “what happened” are testimonial.
In the case at bar, the officer responded to a call, and discovered the alleged victim. She proceeded to tell the officer “what happened,” recounting the assault by Rankin. Under Davis and Crawford, the witness’s statements are testimonial. The Sixth Amendment prescribes that the only method for testing their reliability is through cross-examination. To consider whether they fit into the “excited utterance”, or any other hearsay exception could perpetuate what the Sixth Amendment condemns.
Thomas Wright v. Commonwealth
Rendered 11/21/07
239 S.W.3d 63
Affirming
Opinion by J. Scott
Wright was convicted of first-degree robbery and criminal attempt to commit murder when he walked into a gas station and fired three shots, one hitting the victim, and left with the money out of the register. Wright was sentenced to two consecutive twenty-year terms.
It is harmless error for a trial court to determine as a matter of law that a pistol is a deadly weapon. Wright argued that the jury instruction given on first-degree robbery determined as a matter of law that Wright was armed with a deadly error by carrying a pistol. The jury instructions did provide a definition for “deadly weapon” but did not tie it into the instruction for first-degree robbery. Hence, since the jury instruction indicated that Wright carried a pistol, the deadly weapon requirement would be satisfied. Based on the structure of the jury instruction in this case, it appears that the jury was only allowed to make a determination on whether Appellant was carrying the object in question and that the judge presupposed that the object was a deadly weapon. The court has previously found this to be error.
The instructions should have included “a deadly weapon is defined as including any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged.” However, an error regarding an erroneous jury instruction that omits an essential element of the offense is subject to harmless-error analysis. As long as it is “clear beyond a reasonable dout that a rational jury would have found the defendant guilty” an actual jury finding on that element is not mandated and an appellate court can find the error harmless. In this matter, it is beyond question that the jury would have found the pistol to be a deadly weapon as the pistol was fired, seriously injuring the victim.
Commonwealth v. Amanda R. Gaddie
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239 S.W.3d 59
Affirming
Opinion by J. Minton
Gaddie entered a guilty plea in the district court to the charges of prescription drugs not in original container and possession of marijuana, for which she received 180 days in jail, probated for two years. Two months later, she tested positive for marijuana and the Commonwealth moved to revoke her probation. In lieu of revocation, Gaddie agreed to an increase in her term of imprisonment from 180 days to twelve months in jail, probated for two years on condition of successful completion of drug court. After Gaddie failed to appear for drug court, a bench warrant was issued for her arrest. Gaddie was not arrested until over one year after it was issued. In the interim, the court issued an order terminating Gaddie from the drug court program and requiring her to serve the twelve-month term of imprisonment upon her arrest.
After serving six months, Gaddie filed a petition for writ of habeas corpus under KRS 419.020 in circuit court. The circuit court concluded that being allowed to participate in the drug court program was an extraordinary circumstance justifying relief under CR 60.02(f), especially when Gaddie requested and agreed to the relief. The circuit court reasoned that although constitutional rights were at issue, such rights could be waived, as Gaddie had done when she agreed to an amendment of the original judgment to provide for a longer jail term is she did not complete the drug court program.
More than ten days after the imposition of sentence, the district court may not, even with the defendant’s consent, increase the defendant’s underlying term of imprisonment in conjunction with a referral to drug court. The attempt was beyond its power because a trial court loses jurisdiction to amend a judgment in a criminal case ten days after its entry. The district court entered its amended judgment in this case eight months after entry of the original judgment. When one is tried for an offense, upon a finding of guilt, he is entitled to have his sentence fixed with certainty and finality and constitutional restraints prevent subsequent enhancement.
Participation in a drug court program is not a reason of extraordinary nature justifying relief under CR 60.02(f). The extraordinary nature clause must be invoked only with extreme caution, and only under most unusual circumstances. A term of imprisonment shall be fixed and a term of imprisonment is not a term or condition of a sentence of probation subject to modification and therefore can not be waived. At the point Gaddie agreed to referral to the drug court program, the district court no longer had the power to amend her final judgment to increase the term of imprisonment. Gaddie could not, by consent, give the court the power to revisit the original sentence.
W.D.B. v. Commonwealth
Rendered 11/21/07
2007 WL 4139484
Affirming
Opinion by J. Minton; Dissenting in part by J. Schroder
The juvenile session of the district court determined after an adjudication hearing that W.D.B. had committed the offense of first-degree sexual abuse, an act that if committed by an adult would be a felony. At the time W.D.B. committed the act against the then three-year-old victim, W.D.B. was twelve years old. The district court held as a matter of law that the common law presumption that a child is without criminal capacity was not applicable in proceedings under the juvenile code.
The enactment of the Kentucky Unified Juvenile Code, KRS Chapters 600 to 645, extinguished the infancy defense in proceedings under the juvenile code. Nowhere in comprehensive legislation is a presumption that a child lacks criminal capacity. Since the enactment of the Kentucky Unified Juvenile Code, the common law presumption that a child lacks criminal capacity is no longer necessary because delinquency adjudication in juvenile court is not a criminal conviction and allowing the presumption would frustrate the clinical and rehabilitative purposes of the juvenile code.
Jermaine A. Chatman v. Commonwealth
Rendered 12/20/07
241 S.W.3d 799
Affirming
Opinion by J. Minton
The trial court did not err in failing to ask a so-called magic question with an eye toward rehabilitating an un-rehabilitable potential juror. Judges are not required to exhaust all possible questions to a potential juror in the vain hopes of keeping any particular juror on the panel. This Court strongly cautions the bench and bar of the Commonwealth to remove the term “magic question” from their lexicon. A trial court’s job is to ensure that a defendant is tried by a fair and impartial jury, not to ensure that any particular juror tries a defendant.
Jerry L. Fredline v. Commonwealth
Rendered 12/20/07
241 S.W.3d 793
Affirming
Memorandum Opinion of the Court
Appellant cannot identify an undue prejudice by the trial courts refusal to continue the trial thus it cannot be deemed unfair, unreasonable, or arbitrary and, therefore, no abuse of discretion occurred. The reason given for the continuance was based upon the pre-trial motion by the Commonwealth to suppress the statement of Appellant that was given to police at the time of his arrest. The trial court harshly criticized the Commonwealth for filing substantive motions so close to the start of trial and deferred ruling on any of the motions until the day of trial. The court eventually denied the Commonwealth’s motion. It is not error for a trial court to deny a motion for continuance as the defense counsel’s stated purpose never came to fruition and despite the request for a continuance, counsel did not press the issue, in fact, announced ready for trial.
Appellant cannot claim, on appeal, that their expert’s testimony was improperly limited. The Commonwealth filed a motion to exclude Appellant’s expert from testifying that Appellant was acting under an EED. The trial court granted the motion however the expert was permitted to testify about EED in general, and about what happens to an individual under such circumstances. After the Commonwealth closed its case, Appellant decided that the expert would not be called because the testimony would “open the door’ to cross-examination regarding Appellant’s prior bad acts.
Appellant cannot now claim, on appeal, that the expert’s testimony was improperly limited by the trial court’s ruling on the motion in limine, forcing him to exclude the expert all together. It is plainly evidence from the record that the decision not to call the expert was based on the fact that his testimony would open the door to very damaging cross-examination concerning bad acts. This conclusion is highlighted by the fact that no attempt was made to introduce the experts’ excluded testimony by way of avowal.
A competency hearing is required by KRS 504.100(3). Two physicians prepared competency reports for the court and found Appellant competent to stand trial. Defense counsel stipulated to the reports of both physicians. The trial court then determined that it would rely on the reports, and ultimately found Appellant competent to stand trial. Defense counsel expressly waived the opportunity to call either expert to the stand, noting that both physicians were “in total agreement.” Defense counsel then stipulated to the accuracy of both reports. The Commonwealth likewise declined the opportunity to call witnesses. Under the circumstances of this case, the requirements of KRS 504.100(3) have been satisfied.
Commonwealth v. B.J., A Child Under Eighteen
Rendered 12/20/07
241 S.W.3d 324
Reversing
Opinion by J. Cunningham; Dissent by J. Minton
It is not fundamentally unfair to conduct a juvenile’s adjudication and disposition hearing in the juvenile’s absence. In light of the other constitutional rights that a juvenile may waive, there is no reason that a juvenile should not be permitted to waive his right to be present at a critical stage of the proceedings. Where a juvenile makes such a waiver knowingly, voluntarily and intelligently, the “basis requirements of due process and fairness” required of juvenile proceedings are satisfied.
Although the Commonwealth has the burden of proving that a defendant’s absence from trial was intentional, knowing, and voluntary, it may be inferred that a defendant’s absence met this standard where it is shown that such defendant had knowledge of the trial date and failed to appear. In the case at bar, no evidence was presented that B.J.’s absence was involuntary. While the trial court could have been more specific in its findings – a practice the court encourages – it is clear from the record that the trial court considered counsels’ arguments concerning waiver, and concluded that Appellant had waived his right to be present at the hearings.