West's Review
 

Two issues are presented in this case. The first is whether a district judge (who is not a successor judge) may employ contempt power to punish violation of another judge's order entered in a different division of the court and in a different case. The Kentucky Supreme Court answered this question in the negative. In the case at bar, under SCR 1.040(4)(c), the contempt action, arising from non-payment of the public defender's fee, should have been heard by the same district judge who presided over the initial charge which resulted in the imposition of the fee, or if that judge were not available a proper successor judge.

The second issue is whether a district judge is bound to obey an administrative order of the Chief District Judge which requires a grant of continuances in "instant appointment cases. "The Kentucky Supreme Court answered this question in the negative. The Court held the Chief District Judge exceeded his authority when he entered an order providing that, in cases of instant appointments, judges are to grant continuances upon request of counsel for "more time to prepare the case." The Court stated that "any local rules placed into effect by the Chief Judge must be in accordance with SCR 1.040 and consistent with the Rules of Civil Procedure, Rules of Criminal Procedure, and Rules of the Supreme Court. RCr 9.04 clearly states that the authority to grant a continuance is within the discretion and power of each judge. Therefore any 'rule' interfering with that discretion exceeds its scope."

When Johnson was fourteen years old he entered a guilty plea to facilitation to murder and other offenses related to said murder. He was sentenced to a total of twenty years for all of the offenses and was committed to the Cabinet for Human Resources. After reaching age eighteen, Johnson was returned to the circuit court for a sentencing hearing pursuant to KRS 640.030(2). At this hearing, the trial judge refused to grant Johnson probation because to do so would "unduly depreciate the seriousness of the offenses." The trial court ordered Johnson to serve the remainder of his twenty year sentence in a correctional facility. Johnson appealed the trial court's order denying his request for probation.

On appeal Johnson argued the trial court erred when it applied the requirements of KRS 533.010 to determine whether he qualified for probation under KRS 640.030(2)(a). Johnson suggested that in light of the purpose of the Unified Juvenile Code, youthful offender hearings under KRS 640.030(2) call for a different, more lenient standard for determining whether to grant probation than that found in KRS 533.010.

The Kentucky Supreme Court disagreed. The Court noted there is more than one purpose behind the provisions of KRS 640.030. Although the Juvenile Code is designed to ensure youthful offenders receive counseling and treatment in an effort to rehabilitate them, the statute is also designed to protect juveniles from incarcerated adults, at least until they reach the age of majority. Once a youthful offender attains the age of eighteen, there is no guarantee of probation or parole, regardless of the progress he may have made along the road to rehabilitation. Instead, the decision to probate or parole a youthful offender may only be made after careful consideration of the factors set out in KRS 533.010.

The Court pointed out that in the case at bar "the trial court thoughtfully evaluated both [Johnson's] character and condition and the nature and circumstances of the crime he committed. Based on this evaluation, the court clearly felt that despite the apparently successful rehabilitation of [Johnson], granting him probation would clearly endanger the public. This danger presents itself not in the form of [Johnson], personally, but rather in the message his probation would send to the world. [Johnson's] crime was indeed serious in nature, but the circumstances surrounding the crime indicate that it was also particularly cruel, committed in a callous way, and was apparently motivated not by passion or desperation, but rather merely by boredom and a desire to be entertained. To probate [Johnson] after only four years of detention, merely because he ha[d] cleaned up his act and apologized, would send a message to other children that they can get away with such reprehensible behavior and suffer only minor consequences. The trial court, in its discretion, obviously felt that to send such a message would endanger the public."

The Kentucky Supreme Court agreed with the trial court and finding no abuse of discretion affirmed the trial court's decision not to probate Johnson.
 

This case reached the Kentucky Supreme Court by way of Adcock's motion for discretionary review from the opinion of the Court of Appeals. The case concerns the constitutional implications of police officers using a ruse to gain entry into Adcock's residence for the purpose of executing a search warrant.

The issues before the Court were whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in the case at bar, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule.

In the case at bar the police officer was disguised as a pizza delivery man. This ruse was successful because it enticed Adcock to voluntarily open the door. At that point, the necessity for the ruse evaporated. The officers gained peaceful entry through the open door without having to use any force. Thus, no breaking or forceful entry occurred. The ruse accomplished its intended purpose, to prevent Adcock from disposing of the drugs prior to the police gaining entry into her residence.

The Kentucky Supreme Court held the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant does not violate the knock and announce rule so long as it is accomplished without the use of force.
 

Carlos Thurman and two others were jointly indicted for the murder, kidnapping and robbery of Peggy King. At a separate trial Thurman was convicted of murder, first degree unlawful imprisonment and felony theft by unlawful taking. He was sentenced to 109 years imprisonment.

The Kentucky Supreme Court addressed the following issues in its opinion.

1. Hearsay. The Commonwealth called Loretta Smith who testified Thurman came to her apartment at about 10:30 p.m. on February 4, 1992, which was the last night Peggy King was seen alive. Loretta testified Carlos left a black backpack at her house, but she denied seeing Carlos with a gun and denied that Carlos asked her if he could leave a gun at her house. Loretta also denied giving Carlos any clothes to wear that night, denied telling anyone that Carlos had a gun, that his clothes were bloody when he arrived, that he said he had killed someone and disposed of the body, or that he returned to her apartment later and told her he had thrown the gun in the river. Loretta also testified that Carlos stayed at her apartment one or two hours and when he left he said he needed a place to stay for the night and asked Loretta's boyfriend to go with him to Monika Clay's apartment.

Loretta was specifically asked about and denied making any statements to Patricia King or April Clark regarding the above-mentioned facts.

The Commonwealth then called Patricia King and April Clark as witnesses. Both testified they had been in the Woodford County Jail with Loretta Smith when a news story came on the television about the unsolved murder of Peggy King and that Loretta had said she knew who killed Peggy King.

The Commonwealth elicited from Patricia King that Loretta Smith said the man who killed Peggy King was dating a girl who was living with a woman who did not like him and who had sent the girl away; that the man told her about putting the body in a van, then taking Peggy King's car downtown and leaving it; that he came to Loretta's house wearing bloody clothes and asked her to get rid of his gun or hide it for him, but that Loretta's boyfriend did not want her to get involved.

The Commonwealth elicited from April Clark that she had asked Loretta if the man was named "Carlos" and Loretta said that he was; that Loretta said "Carlos" had come to her apartment with blood on his shirt; that he had a gun and said he had just killed somebody; and that he asked her to dispose of the gun and his bloody clothing. Clark also testified that Loretta said she had given the man some of her boyfriend's clothes, and that when he left her apartment, he took the gun with him. Lastly, Clark testified Loretta said Carlos told her on another occasion he had disposed of the body and had walked down some railroad tracks and thrown the gun in the river.

Carlos Thurman argued on appeal the Commonwealth's real purpose in calling Loretta Smith was to get before the jury her prior unsworn, out-of-court statements, that were inconsistent with her trial testimony, and that Patricia King's and April Clark's testimony was inadmissible double hearsay.

The Kentucky Supreme Court held that only King's and Clark's statements as to what Carlos said to Loretta were double hearsay. Their testimony as to what Loretta told them she observed (the gun and the bloody shirt) and what she did (gave him clean clothes) was not double hearsay, but was evidence of prior inconsistent statements of Loretta that were admissible under KRE 801A(a)(1).

As to the double hearsay, the Court stated such evidence is admissible if each hearsay statement is admissible under an exception to the hearsay rule. KRE 805. The Court held that Carlos' statements to Loretta were admissible as admissions of a party. KRE 801A(b)(1). Loretta could have testified to those statements since she was the person to whom the admissions were made. Loretta's statements to King and Clark were admissible as prior inconsistent statements of a witness. KRE 801A(a)(1); Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969). The proper foundation was laid by asking Loretta if she had made the statements. KRE 613(a).

2. Jailhouse Informant. Prior to trial Thurman moved to suppress the testimony of jailhouse informant Charles Cavins. Thurman argued Cavins was an agent of the Commonwealth who questioned him after he asserted his Sixth Amendment right to counsel. The trial court found Cavins was not an agent of the Commonwealth at the time of his first conversation with Thurman, during which Carlos admitted he and two others had killed Peggy King, when the two men were housed together at the Franklin County Correctional Complex. The trial court further found that Cavins did not elicit any information from Carlos, but merely listened while Carlos talked to him and then reported what Carlos said to the director of classification at FCCC.

The Kentucky Supreme Court found there was no evidence in the record that Carlos ever invoked his right to counsel. Even if Carlos had invoked his right to counsel, at the time of Carlos' statements to Cavins, Carlos was being held on another charge; he had not yet been charged with Peggy King's murder. Since the Sixth Amendment is offense specific, it would not apply. The Supreme Court also found that the trial court's finding, that Cavins did not interrogate Carlos but merely listened to what he said, was conclusive of the issue, relying on Kuhlman v. Wilson, 106 S.Ct. 2616 (1986). Thus, there was no error in allowing Cavins to testify at trial.

At trial, Carlos tendered an instruction on the weight the jury should give Cavins' testimony. The trial court refused to give this instruction.

The Kentucky Supreme Court held this failure was not error because it "adhere[s] to the view that jury instructions should not comment upon the weight and probative value to be given to the testimony of a particular witness.

3. Spousal privilege. The alleged incident occurred on the evening of February 4, 1992 or the early morning hours of February 5, 1992. On May 15, 1992, Carlos married Vicki McDonald. McDonald was not called as a witness by either the Commonwealth or the defense. During trial, Thurman objected to the introduction of the following evidence based on the spousal privilege.

First, Det. Givens' testified he interviewed McDonald in March 1992. The Kentucky Supreme Court found no error in the admission of this testimony because it occurred before Carlos married McDonald. KRE 504 does not prevent a spouse from testifying to events occurring or information obtained prior to the marriage.

Second, telephone records were introduced showing a telephone call was made to McDonald's home from West Virginia. The content of the conversation was not introduced. The purpose of these records was to corroborate the testimony of the jailhouse informant Cavins, who testified that Carlos told him he went to West Virginia to look for his girlfriend Katherine Stosberg and called McDonald while he was there. The Kentucky Supreme Court held the introduction of these records did not violate the spousal privilege regardless of whether the phone call was made before or after the marriage.

Third, Officer Thomas testified Carlos told him he married McDonald to keep her from testifying against him. The Kentucky Supreme Court held this testimony did not violate the spousal privilege and was relevant as evidence inconsistent with Carlos' innocence or evidence tending to show his guilt.

Fourth, Cavins' testified Carlos told him McDonald possessed evidence which would incriminate him in the murder. The Kentucky Supreme Court held this testimony was not an improper comment upon a claim of spousal privilege, but was admissible as an admission by Carlos tending to prove his guilt of the crime charged. KRE 801A(b)(1).

4. Weapons Evidence. Prior to trial the defense moved to suppress the introduction of evidence of weapons not related to this case. The trial court granted the motion. The evidence at trial showed that the bullet retrieved from Peggy King's body was a .22 long rifle caliber bullet capable of being fired from numerous makes and models of firearms, both revolvers and rifles. During trial Thurman withdrew his objection to the weapons evidence. Thus, the Kentucky Supreme Court held Thurman had waived the issue and was precluded from raising it on appeal.

Notwithstanding this waiver, the Court held the introduction of evidence, through numerous witnesses, that Thurman was in possession of a medium-sized revolver before, during and after the evening of February 4-5, 1992 was relevant evidence and its introduction was not more prejudicial than probative.

5. Inmate Correspondence. While he was incarcerated Thurman wrote a letter to co-indictee Demond Bush who was incarcerated in a different correctional facility than Thurman. The letter was intercepted by personnel at the Franklin County Correctional Complex and subsequently delivered to prosecuting authorities. A portion of the letter was read to the jury.

The Kentucky Supreme Court held that Thurman's constitutional rights were not violated by the interception, seizure and subsequent use at trial of the letter to his co-indictee since inmates have no absolute right to send letters to other prisoners.

6. Change of Venue. Thurman filed a motion for a change of venue supported by a venue survey. The trial court denied the motion because it had been almost two years since the majority of the publicity about the case had appeared.

The Kentucky Supreme Court framed the issue as being "whether the jurors were prejudiced by their exposure to [the publicity] to the extent that it was unlikely that [Carlos] could receive a fair trial. KRS 452.210."

The Court held "[t]he ease with which an impartial jury was selected in this case is convincing that the trial judge's perception that [Carlos] could receive a fair trial in Franklin County was correct." Thus there was no error in denying the change of venue motion.

The Court affirmed Carlos' convictions.
 

Collins was tried and found guilty of intentional murder and first-degree criminal abuse. The trial court then offered Collins sentences in the minimum range for both offenses if Collins would agree to waive her right to jury sentencing. The Commonwealth objected, but the trial court overruled its' objection. Collins accepted the trial court's offer and was sentenced to twenty-one years and seven years, respectively, to run concurrently.

The Commonwealth appealed the trial court's ruling and the Kentucky Supreme Court held that under Commonwealth v. Johnson, 910 S.W.2d 229, 231 (Ky. 1995), the Commonwealth was entitled to have a jury determine Collins’ punishment and remanded for resentencing.

Upon remand, Collins objected to the resentencing hearing on double jeopardy grounds, and the trial court overruled the objection. A jury fixed Collins punishment at life and ten years, respectively.

Collins appealed to the Kentucky Supreme Court. The Court held the Commonwealth had the authority to seek appellate review of her original sentence fixed by the trial court. Thus, Collins' resentencing was not barred by double jeopardy principles.
 

Baker was tried for kidnapping and sexual abuse and being a first degree persistent felony offender. The jury found him guilty of the lesser offense of first degree unlawful imprisonment and being a first degree persistent felony offender and fixed his enhanced punishment at twenty years.

On appeal, Baker argued the evidence was insufficient to sustain the conviction of first degree unlawful imprisonment. The Kentucky Supreme Court held the issue was not properly preserved for review because although Baker moved for a directed verdict of acquittal at the close of the Commonwealth's case, he did not renew his motion at the close of all the evidence and he did not object to any of the instructions.

The Court "expressly reject[ed] the proposition that a directed verdict motion not renewed at the close of all of the evidence is sufficient to preserve insufficiency of the evidence issues for appellate review." The Court "overrule[d] that portion of Dyer v. Commonwealth, 816 S.W.2d 647 (Ky. 1991)] which is in conflict with the ruling laid down in Kimbrough v. Commonwealth,  550 S.W.2d 525, 529 (Ky. 1977)]. A defendant must renew his motion for a directed verdict, thus allowing the trial court the opportunity to pass on the issue in light of all the evidence, in order to be preserved for our review."

Baker also argued that two statements by the prosecutor in his closing argument constituted reversible error. Baker objected to each of the alleged misstatements by the prosecutor. The first objection was sustained by the trial court and the prosecutor was required to rephrase his argument. The second objection was overruled as the wording was said to be a fair comment on the evidence. Baker requested no other relief. The Kentucky Supreme Court held "[i]n the absence of a request for further relief, it must be assumed that [Baker] was satisfied with the relief granted, and he cannot now be heard to complain."

Young was convicted of three counts of criminal attempt to commit unlawful transaction with a minor in the first degree. Each count had a different male victim and each was under twelve years old. Young was also convicted of being a first degree persistent felony offender. Young was sentenced to twenty years for each enhanced offense to be served consecutively for sixty years.

The facts of the case were that Young asked one child if he would "have sex with me," and asked the two other children if they would have sex with another child. Each child refused.

On appeal, Young challenged the sufficiency of the evidence to convict him of criminal attempt to commit unlawful transaction with a minor in the first degree. Young argued that mere words are insufficient to support a conviction for criminal attempt to commit an offense. KRS 506.010.

The Kentucky Supreme Court stated that since none of the offenses were completed, the issue was whether Young's solicitation of the children to engage in illegal sexual activity, either with him or with each other, constituted criminal attempts to commit the offense of first-degree unlawful transaction with a minor. The Court stated the only additional steps necessary to complete the offenses were acquiescence by the victims and performance of the solicited acts. The Court held the evidence was sufficient to support Young's convictions of all three counts of criminal attempt to commit unlawful transaction with a minor in the first degree.

During the penalty phase of Young's trial, the Commonwealth introduced judgments of the State of Colorado reflecting several prior convictions. Young did not challenge the authenticity of these judgments, but did argue it was error to permit the Commonwealth to introduce a record of the Colorado Department of Corrections containing Young's description, mug shot and fingerprint card. This record contained a notarized certificate of an employee of "Offender Records" that it is "a full, true and correct copy of the original in my custody." Young argued the certification was insufficient to permit self-authentication under KRE 902(2), (4) or (11). The Kentucky Supreme Court pointed out that a notarized document needs no further authentication, KRE 902(8); KRE 422.100, and because Young admitted being the subject of the Colorado convictions, there was no prejudice.

Because the longest possible sentence Young could receive was twenty years under KRS 532.110(1)(c), the Court remanded the case to the Jefferson Circuit Court for resentencing with the maximum sentence being twenty years.

This case involved a review of an opinion of the Judicial Ethics Committee pursuant to Supreme Court Rule 4.310(4). The issue to be decided was whether Canon 3B(4) of the Judicial Code of Conduct prohibits a judge from hiring a relative. The Kentucky Supreme Court held that employment of a relative by a circuit or district court judge is neither nepotism nor prohibited by Canon 3B(4) of the Judicial Code of Conduct.

Julie Namkin, Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006, #279; Fax: (502) 564-7890
E-mail: jnamkin@mail.pa.state.ky.us

 
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