A. Danny Montgomery v. Commonwealth of Kentucky
2007-SC-000852-MR March 18, 2010 Opinion by Justice Abramson; all sitting.

The Court affirmed conviction for first-degree sexual abuse and PFO-1st. The Court held: 1) the trial court did not err by admitting evidence that the accused had sexually abused three other young girls under the modus operandi exception to KRS 404(b); 2) any misjoinder of charges was harmless error; 3) trial court’s exclusion of medical evidence showing victim was a virgin three years before offense occurred was harmless error; 4) the trial court properly balanced the interests of the victim and accused when deciding to exclude evidence of victim’s collateral sexual conduct pursuant to KRE 412; 5) no abuse of discretion by trial court in granting Commonwealth a continuance to perfect its proof for PFO phase; 6) certified copies of Indiana convictions as evidence of PFO status are admissible without further authentication; 7) trial court’s failure to instruct jury to impose sentence for underlying offense before imposing enhanced PFO sentence did not rise to the level of palpable error. Justice Noble concurred in result only.

B. Petitioners F, G, H, J & K v. Bridget Skaggs Brown. Commissioner, Department of Juvenile Justice
2008-SC-000213-DG March 18, 2010 Opinion by Justice Schroder. All sitting; all concur.

Juveniles previously adjudicated as public offenders for sex offenses sued the Department of Juvenile Justice claiming they should not be required to submit DNA for inclusion in state and national databases. In rejecting the juveniles’ Fourth Amendment claim, the Court held that the privacy interests of public offenders, while greater than adults, still do not outweigh the state’s legitimate interest in maintaining a DNA database.

C. Cabinet for Health and Family Services v. Hon. Gregory M. Bartlett, Judge; & Larry Cole Jonathan Cox; & Sandra D. Young (Real Parties in Interest)
2008-SC-000508-MR March 18, 2010

On trial on drug trafficking charges, Cole sought discovery of the Ky. All Schedule Prescription Electronic Reporting (KASPER) reports concerning himself, his co-defendant, and a coresident. Finding that Cole made a sufficient showing that the reports might contain relevant or exculpatory information, the trial court entered a discovery order. The Court of Appeals denied the Cabinet’s petition for a writ prohibiting enforcement of the discovery order. The Supreme Court held that even though disclosure of such confidential records is barred by KRS 218A.202, the statute must give way to the accused’s constitutional rights under the Fifth, Sixth and Fourteenth Amendments, as well as Section 11 of the Kentucky Constitution. In affirming the Court of Appeals’ denial of a writ, the Court noted the process for obtaining confidential records set out by the U.S. Supreme Court in Borrosso. First, the accused must show evidence 2 sufficient to establish a reasonable belief that the records contain exculpatory evidence. If so, the trial court must conduct an in camera review to determine if the records sought actually contain such evidence.

D. Brandon Leon Watkins v. Commonwealth of Kentucky
2008-SC-000567-DG March 18, 2010 Opinion by Justice Cunningham. All sitting; all concur.

Watkins appealed from a conditional guilty plea to drug and fleeing charges, challenging the warrantless search of his vehicle. The Court affirmed the conviction, holding that once Watkins abandoned the vehicle after a highspeed chase, he no longer had a reasonable expectation of privacy.

E. Mark Padgett v. Commonwealth of Kentucky
2008-SC-000632-MR March 18, 2010 Opinion by Justice Noble. All sitting; all concur.

Padgett appealed his convictions for attempted first-degree manslaughter, second-degree assault and violation of an EPO. Padgett argued that the trial court impermissibly compelled his testimony by refusing to allow an expert to testify on extreme emotional disturbance based only on Padgett’s out-of-court statements. Padgett subsequently took the stand and testified about the triggering event that gave rise to his purported extreme emotional disturbance. The Supreme Court affirmed the conviction, holding that the trial court did not force Padgett to testify; rather it followed the prohibition in Talbott against bootstrapping an extreme emotional disturbance defense into evidence through expert opinion premised primarily on out-of-court information provided by the accused. The Court also held that the trial court was not required to hold a hearing after Padgett announced he wanted to fire his counsel. Further, the Court held that the trial court was not required to advise Padgett of his right to “hybrid counsel.” Padgett also argued that the trial court erred by adopting findings he was competent to stand trial without first holding a competency hearing. The Supreme Court held there was no need to remand for a retrospective competency hearing since there was no substantial evidence of Padgett’s incompetency in the record—overruling its earlier decision in Gibbs.

F. Alan Hummel v. Commonwealth of Kentucky
2008-SC-000801-MR March 18, 2010 Opinion by Justice Noble; all sitting.

Hummel appealed his conviction on rape and PFO charges, claiming the trial court improperly denied his right to represent himself or proceed with “hybrid counsel.” After a Faretta hearing, the trial court denied Hummel’s request on the grounds 1) self-representation was not in the accused’s best interests; 2) Hummel was not skilled enough to represent himself; and 3) Hummel could not control himself. While acknowledging that the first two reasons were improper, the Supreme Court held, in a case of first impression, 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. The Court noted that the record showed Hummel’s behavior during trial was “substantially and repeatedly disruptive” and that the timing of Hummel’s requests “strongly suggests he was using them as a tactic to delay proceedings.” Conviction affirmed. Justice Scott concurred in result only.

G. Robert Carl Foley v. Commonwealth of Kentucky
2009-SC-000428-TG March 18, 2010 Opinion by Justice Venters. All sitting; all concur.

Death row inmate filed a petition for declaratory judgment in Franklin Circuit Court seeking to have Kentucky’s self-defense statutes as they existed at the time of his 1991 trial declared unconstitutional. Petitioner intended to use a favorable ruling as the basis for a federal habeas corpus challenge to the jury instructions used during his criminal trial. The Supreme Court affirmed dismissal of the petition, holding there was no actual controversy. The Court characterized the petition as an attempt to incorporate declaratory judgment actions into the existing framework of post-conviction remedies and noted the federal rule against same.

H. Kelly Marquette Stewart v. Commonwealth of Kentucky
2007-SC-000278-MR March 18, 2010 2007-SC-000853-MR March 18, 2010 Opinion by Justice Cunningham; all sitting.

Stewart was convicted of numerous drug and traffic offenses. On appeal he argued his conviction for possession of drug paraphernalia (second offense) should be vacated
because the jury was not instructed to make a finding of guilt regarding his previous conviction for possession of drug paraphernalia. The Court agreed, holding that the prior conviction was an essential element missing from the instructions, without which Stewart could only be found guilty of a first offense. The Court affirmed all other convictions. Justice Scott concurred in part and dissented in part, contending that the “uncontroverted and uncontrovertable” nature of Stewart’s prior offense rendered the instructional error harmless.

I. David Thomas Cohron v. Commonwealth of Kentucky
2007-SC-000483-M March 18, 2010 Opinion by Chief Justice Minton; all sitting.

After walking away from a work release detail, Cohron stole a car and led police on a high-speed chase that ended when Cohron was injured after a wreck. Three days later, Cohron attempted to escape from the hospital while in police custody. The trial court consolidated both escape cases against Cohron but agreed to bifurcate the guilt phase so the charges related to the latter escape would be heard separately than those related to first, but in front of the same jury. The Court rejected Cohron’s argument that he was prejudiced by the misjoinder, holding instead that the trial court’s improper bifurcation was harmless error. However, the Court reversed a conviction for second degree escape, holding that no evidence was presented at trial to show that, at the time of his second escape, Cohron was facing felony charges—an element of the offense. The majority affirmed all other convictions and remanded to the trial court with instructions that double jeopardy barred retrial on second-degree escape charges since Cohron should have received a directed verdict of acquittal at trial. However, Cohron could still be tried for third-degree escape. Justice Scott concurred in part and dissented in part, asserting any error was harmless since it was not unreasonable for the jury to find Cohron was facing felony charges at the time of the second escape.

J. Cassandra Smith v. Commonwealth of Kentucky
2008-SC-000060-DG March 18, 2010 Opinion by Justice Venters. All concur; Justice Cunningham not sitting.

Police, acting pursuant to a search warrant, raided the home of Smith. After she was handcuffed, but before being Mirandized, police asked Smith is she had drugs or weapons on her person. Smith told police 4 she had crack cocaine in her pocket. After her motion to suppress was denied, Smith was convicted of first-degree possession of a controlled substance and possession of drug paraphernalia. The Supreme Court reversed the possession conviction, holding that the motion to suppress should have been granted since the incriminating statement was the product of an un-Mirandized custodial interrogation that was not subject to the public safety exception. The Court affirmed the conviction for possession of drug paraphernalia, holding later statements by Smith were admissible and affirmed the trial court’s refusal under KRE 404(b) to allow evidence concerning Smith’s ex-husband’s prior felony drug conviction.

K. Essamond Wilburn v. Commonwealth of Kentucky
2008-SC-000787-MR March 18, 2010 Opinion by Justice Venters; all sitting.

Wilburn was convicted of first-degree burglary, two counts of first-degree robbery and PFO-2. While robbing a liquor store, Wilburn was alleged to have pulled the trigger of a pistol which did not fire. On appeal, Wilburn argued he was entitled to a directed verdict on the burglary charge since the prosecution failed to prove he did not unlawfully enter or remain upon store premises. The Supreme Court reversed the burglary conviction, holding that under KRS 511.090(2) Wilburn entered the premises lawfully. Furthermore, the Court concluded that Wilburn 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. Wilburn also contended he was entitled to a directed verdict on the first-degree robbery charge since the prosecution failed to prove his pistol was operational at the time of the robbery. The Court affirmed the 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 Wilburn’s– overruling Merritt, Kennedy and Helpenstine. The Court also rejected Wilburn’s Batson claims. Justice Schroder concurred in result only, noting that the decision would preclude first-degree robbery convictions where the accused uses am exact toy replica of a handgun—a result presumably not intended by the legislature. Justice Noble, joined by the Chief Justice, dissented, asserting that the majority overlooked the plain meaning of the statutory definition to reach its conclusion that the phrase “any weapon” means a “class” of weapons.

L. Frederick Rennel Hannah v. Commonwealth of Kentucky
2007-SC-000267-MR March 18, 2010 Opinion by Justice Scott; all sitting.

The Supreme Court reversed murder conviction that arose out of a shooting during a brawl at a nightclub. The Court held that the trial court erred by refusing to allow the defense to voir dire the jury pool regarding the “no duty to retreat” rule and by forbidding the defense from arguing during its closing that the defendant had no duty to retreat. The Court noted that whether or not the defendant should have retreated prior to his use of force was a question of fact for the jury. Therefore, the defendant must be permitted to argue that under the circumstances, he was privileged to defend himself and others. The Court held that failure to allow such arguments rendered the trial fundamentally unfair. Justice Scott concurred by separate opinion, contending that in such cases juries should be fully instructed on the law concerning the “no duty to retreat rule.” The Chief Justice and Justice Abramson concurred in result only.

M. Commonwealth of Kentucky v. Lawrence Everett Alleman
2007-SC-000570-DG March 18, 2010 Opinion by Justice Venters; all sitting.

Alleman appealed revocation of probation arguing the circuit court’s oral findings of fact and reasons for revocation violated the due process 5 requirements of Morrissey which mandates written findings. The Court of Appeals reversed the conviction. The Supreme Court reversed the Court of Appeals and reinstated the order of 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. The Court noted that its decision was consistent with the trend among federal circuits. Justice Schroder, joined by the Chief Justice, dissented, contending that Morrissey explicitly requires a “written” statement.

N. Fred Lee Colvard v. Commonwealth of Kentucky
2007-SC-000477-MR March 18, 2010 Opinion by Justice Venters; all sitting.

The Supreme Court reversed Colvard’s conviction for raping two girls, ages six and seven, because of multiple hearsay violations. In reaching its decision, the Court 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)). The Court concluded that the Edwards exception 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 effec
tive medical treatment. The Court also held that numerous non-medical witnesses had been permitted by the trial court to testify about the victims’ statements identifying the accused as their abuser. The Court also held that at retrial, evidence regarding the accused’s prior conviction for attempted rape would be admissible under the modus operandi exception to KRE 404(b) since there was a “striking similarity” between the crimes. In his dissent, Justice Scott, joined by Justice Abramson, contended that there was no evidence that the victims’ motives in making the statements were other than as a patient responding to a physician’s questioning for prospective treatment—and thus a valid exception under KRE 803(4). The Chief Justice concurred in part and dissented in part, arguing that the prior conviction was not sufficiently similar to satisfy the modus operandi exception to KRE 404(b).

O. Terry Glenn Hobson v. Commonwealth of Kentucky
2007-SC-000645-DG March 18, 2010 Opinion by Justice Venters. All sitting; all concur.

Hobson attempted to purchase merchandise with a stolen credit card. Store employees alerted a police officer in the store, who took Hobson to an office area to attempt to verify Hobson’s claim that he was acting with the cardholder’s consent. Hobson ran from the store, with the officer in pursuit. After a scuffle in which the police officer suffered a broken ankle, Hobson was apprehended. He was subsequently convicted of first-degree robbery, receiving stolen property and giving a police officer a false name. On appeal, the Supreme Court reversed the first-degree robbery conviction, holding Hobson’s actions did not satisfy the elements of the offense since he did not use force until after the theft attempt had been abandoned. KRS 515.120 requires that the use or threat of use of force be done with intent to accomplish the theft.

P. Robert Eugene Dennis v. Commonwealth of Kentucky
2008-SC-000049-MR March 18, 2010 Opinion by Justice Abramson. All sitting; all concur.

Dennis was convicted of sodomizing and sexually abusing his 11 year old stepdaughter and was sentenced to 65 years. On appeal, Dennis argued that the trial court erred when it excluded evidence regarding the victim’s prior accusations of sexual abuse against other family members. The Supreme Court held that based on the record, there was no evidence that the prior allegations were “demonstrably false”—a 6 prerequisite for admissibility. However, the Court also held that the trial court erred when it did not conduct an in camera review of Cabinet for Health & Family Services documents to determine if they contained information that could show the prior accusations were “demonstrably false.” The Court remanded with instructions to conduct an in camera review of the CHFS records and—depending on whether or not the review revealed a reasonable probability that the result would have been different—order a new trial or reinstate the judgment of conviction.

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