CRIMINAL – Duty to disclose: Thorpe v. Commonwealth (COA 10/2/2009)

Thorpe v. Commonwealth
2008-CA-000823 10/02/09 2009 WL 3151027 Released for publication
Opinion by Chief Judge Combs; Judge Thompson and Senior Judge Harris concurred.

The Court reversed and remanded for a new trial, appellant’s conviction of fraudulently obtaining a prescription for a controlled substance and of being a persistent felony offender.

The Court first held that the trial court improperly admitted witness testimony concerning a telephone conversation between appellant and her mother. RCr 7.24(1) required the Commonwealth to furnish the defendant with the substance of the statement when they used the statement to incriminate appellant and the statement went directly to the issue of mens rea, having the ability to either inculpate or to exculpate appellant, and there was a reasonable probability that if appellant’s counsel had been prepared to confront the evidence, the jury might have reached a different verdict. The Court next held that the trial court abused its discretion by allowing testimony consisting of accusations and innuendoes of appellant’s faulty caretending of her mother. An admonition would not have cured the evidentiary error in that the inadmissible evidence had an inflammatory impact on the jury evidenced by the maximum sentence given with little actual evidence of the charged crime. The Court concluded that the discovery error combined with the inadmissible testimony denied appellant her right to a fair trial. The Court finally held that, under KRS 15.733(2)(c) & (d), the prosecutor was not required to recuse because she was the first cousin of appellant’s half-brothers who testified for the Commonwealth.

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