TTF1CAT1Vol.6 No.6 A Bi-Monthly Publicationof theDPA October1984

THE ADVOCATE FEATURES

Lauded as the "Nice Person of theWeek of June 20th" by the localLondon newspaper, Bill Spicer of ourDepartment received a fraction of theattention he deserves.

Bill joined our staff in October of1980. He had some reservations aboutbeginning his career with the office,even though defender work wassomething he’d "always wanted to do."To begin with, Bill sized it up as ahigh pressure job, given the felonycaseload and his lack of trialexperience, and to make mattersworse, he had a residual badimpression of criminal defenseattorneys. He expressed his reliefafter working with the of fioe that"one doesn’t have to suborn perjuryor break the law to defend a client."Speaking of the tremendous caseload,

Future SeminarsThe Department of Public Advocacywill conduct its Third Trial PracticeInstitute at Eastern Kentucky University in Richmond on November 14-17, 1984. The National facultyinclude Steve Rench of Denver,Colorado; Tony Natale of West PalmBeach, Florida; and, Deryl Dantzlerof Macon, Georgia.

There will be lectures and demonstrations on voir dire, openingstatements, direct examination,cross-examination, cross-examinationof experts, and closing arguments.Every participant will perform each

of these aspects of the trial in asmall group with critiques from twofaculty members. Each participantwill be video taped for their review.

Continued, P. 3

0BILL SPICER

INSIDE

PAGE

Protection & Advocacy........... 4West’s Review. . . . . . . . . . . . . . . . . . . 5Urinalysis Testing . 12The Death Penalty................ 15Sixth Circuit Survey...... ...... 21

TRIAL TIPS:- DUI Enhanced Punishment. . 24- Serious Physical Injury... ... 29-Rules- Parole Board Chairman Speaks.. 39- No Comment. . . . . . . . . . . . . . . . . . . . 45

- Book Review. . . . . . . . . . * . . . . . . . . 46

Continued, P. 2

EDITORS.

- Edward C. Monahan- Cris Purdom

CONTRIBUTINGEDITORS

- Linda K. WestWest’s Review

- Randy WheelerPost-Conviction

- Kevin M. McNallyThe Death Penalty

- Gayla PeachProtection & Advocacy

- J. Vincent Aprile, IIEthics

- Michael A. WrightJuvenile Law

- Neal WalkerSixth Circuit Survey

The Advocate is a publication of the

Department of Public Advocacy and ispublished bi-monthly. Opinions ex

pressed in articles are those of the

authors and do not necessarily re

present the views of the Department.

Changes or incorrect address? Re

ceiving two copies? Let us know:

NAME

ADDRESS

The Advocate welcomes correspcndence

on subjects treated in its pages.

Printedwith StateFundsKRS 57.375

Bill told me of an experience he’lhad as a new public defender by wa7of illustration. He’d been in courtawaiting his client before the judgewas to hear the plea. The "client,"who Bill hadn’t seen for awhilewalked in and Bill began to advisehim of the procedure, the deal andthat he’d have to return to jail as areslt of the plea. He’d spoken forseveral minutes, when the clientstopped Bill in mid-sentence. "Waita minute, do you know who I am? I’ma juror." Bill paused a momentnonplussed, then came back with,"Okay, if my client doesn’t show,

will you plead guilty to this

robbery?" Bill ended by saying thecaseload although large is bearablebecause of the support provided by

Frankfort.

Since beginning with the Department

Bill has decided he doesn’t want to

do anything else because of the "good

Kentucky [Public Defender] System and

his contact with defense lawyers."

"It’s the best job in the world; .

can’t think of anything else I’d

rather do - even being a rock star."

He smiles. Exploring that further,

Bill synthesized: "It’s a Renaissance

field because there are so many

things to learn, not only criminal

law, but human psychology, theater

and science. I never stop trying to

improve and since every case is

different it never becomesboring."

Bill has an undergraduate degree in

Political Science from Western

Virginia University. He graduated in

1980 from the University of Kentucky

School of Law. While there he was on

TheKentucky LawJournal staff. Bill

loves to cook - his specialty is

chicken breasts stuffed with

mushrooms arid shallots smothered in

vermouth. Other pursuits are tennis,

basketball and "trying to be funny."

Bill has served as Directing Attorney

of the London Office since October.

CRIS PURDOM

flT1rDQç

-2-

There willpreparation,preservationcation.

also be lectures onthe theory of defense,and courtroom communi

This is a working seminar withpreparation and active participationessential.

DISTRICTCOURTSEMINAR

After the first of the year, DPA willbe conducting a one-day seminar ondistrict court practice.

DEATHPENALTY SEMINAR

On March 15 & 16, 1985 a 1-1/2 dayseminar on the death penalty will bepresented by DPA. It will be held atNatural Bridge State Park.

ANNUALMAY SEMINAR

DPA’s 13th Annual Mayscheduled for May 12,1985. It will againRadisson in Lexington.

FURTHERINFO

Seminar13 andbe at

is14,the

Further information on DPA seminarswill appear in separate mailings, oryou can contact Ed Monahan at 502564-5258.

* * * * * *

Patricia Van Houten is the newDirecting Attorney of our MoreheadOffice.

PATRICIA VAN HOUTEN

-3-

SYMPOSIUM ONCAPITAL PUNISHMENT

"Christians for Peace and Justice"are conducting a symposium on capitalpunishment on Saturday, November 10,1984.

The featured speaker is Rev. JosephB. Ingle, Director of the SouthernCoalition on Jails and Prisons. For

the last 10 years he has ministeredto men and women on death row.

There will be workshops on:

1 Retribution, Deterrence and Justice by Violence;

2 The Religious Community andCapital Punishment;

3 Bias in Death Sentencing: Theeffect of race and ecomonic orsocial status; and,

4 The devaluation of life: a cross

cultural approach.

Workshops Nos. 1 & 3 carry 3 CLEcredits from the KBA.

The sumposium is at Thomas More

College in Edgewood, Kentucky. It ismodestly priced at $9.00.

For more information call:

Kate Cunningham - 606/291-1616 orEd Stieritz - 606/781-1093.

Seminars, Continued from P. 1

REV. INGLE

Protection and Advocacyfor the DevelopmentallyDisabled

The following editorial and picturesappeared in the Kentucky Post on June27, 1984. They are reprinted herewith permission.

FEELLAZY?

Most of you don’t need to read this.

Most of you are considerate people,

not in the habit of making it tough

on others. Most of you wouldn’t dream

of pulling into one of those parking

spaces set aside for the handicapped

at supermarkets and shopping centers.

These remarks are addressed to those

among you who slide right into

handicapped parking spaces because

you figure they’re more convenient.

Those spaces are there for a reason.

Handicapped people find enough bar

riers in their lives. It’s hard

enough for them to get around without

you getting in their way.

But you probably wouldn’t know any

thing about that because you’ve never

been in a wheelchair or suttered a

debilitating heart condition.

But you do know something about being

insensitive and inconsiderate. Don’t

tell the rest of us what it’s like,

though. We’d rather not know.

* * * * * *

-4-

West’s ReviewA Review of the Published Opinionsof the Kentucky Supreme Court andCourt of Appeals and United StatesSupreme Court.

UNITEDSTATES SUPREME COURT

The U.S. Supreme Court continued torechart the course of criminal law.

In landmark decisions, the Court inUnited States v. Leon, 35 CrL 3272July 5, 1984 and Massachusetts v.Sheppard, 35 CrL 3296 July 5, 1984has created a "good faith exception"to the exclusionary rule. In Leon,the Court was confronted with asearch conducted pursuant to a facially valid warrant which, however,was issued on less than probablecause. The Court reviewed the case todecide whether the Fourth Amendmentexclusionary rule should be modifiedso as not to bar the admission ofevidence seized in reasonable, goodfaith reliance on a search warrantwhich is later held to be defective.

Addressing the issue thus framed, theCourt initially held that theexclusionary rule is not a necessarycorollary of the Fourth Amendment.The Court then engagedin a weighingof "costs and benefits" to determinewhether a good faith exception to theexclusionary rule should be allowed.The Court opined that the exclusionary rule lacks deterrent effectas to judges and magistrates issuingwarrants. Thus, where a warrant isdefective as a consequence of theseindividuals’ actions, application ofthe exclusionary rule would, in theCourt’s view, serve no purpose. TheCourt further reasoned that the exclusionary rule could serve no deterrent purpose against policeactions taken "in the objectivelyreasonable belief that their conduct

did not violate the Fourth Amendment." The Court concluded that "themarginal or nonexistent benefitsproduced by suppressing evidence obtained in objectively reasonablereliance on a subsequently invalidated search warrant cannot justifythe substantial costs of exclusion."The Court emphasized, however, that"[w]e do not suggest.., that exclusion is always inappropriate incases where an officer has obtained awarrant and abided by its terms." TheCourt gave as examples of situationsin which the exclusionary rule wouldstill apply those instances in whichthe officer gave false information insupport of a warrant, or where theissuing magistrate "wholly abandonedhis judicial role." See Lo-Ji Sales,Inc. V. New York, 442 U.S. 3191979.

Justices Brennan, Marshall aridStevens., in a powerful dissent, notedthat "[Ut is difficult to give anymeaning at all to the limitationsimposed by the Amendment if they areread to proscribe only certain conduct by the police but to allow otheragents of the same government to takeadvantage of evidence secured by thepolice in violation of its requirements." The dissenters would alsohave held that "the exclusion ofillegally obtained evidence wascompelled not by judicially fashionedremedial purposes, but rather bydirect constitutional command."

Similar facts were presented to theCourt in Sheppard, supra. The Court

Continued, P. 6

-5-

in Sheppard stated that, in view ofits holding in Leon, supra, "the soleissue before us in this case iswhether the officers reasonably believed that the search they conductedwas authorized by a valid warrant."The Court found that the officerswere reasonable in their belief. TheCourt placed great reliance on thefact that the officers were assuredby the judge issuing the warrant thatit was proper in form.

In another decision designed to erodethe exclusionary rule, the Court heldin Segura v. United States, 35 CrL3298 July 5, 1984, that the ruleneed not apply if the connection between illegal police conduct and thediscovery and seizure of evidence isso attenuated as to dissipate anytaint. In Segura, federal drugenforcement agents received information establishing probable causefor the search of the defendant’sapartment for drugs. Hàwever, because of the late hour, the agentswere unable to obtain a warrant, Inorder to secure any evidence theagents proceeded to the apartment,entered the apartment without theoccupants’ permission, and arrestedthem. The agents then brieflysearched the apartment for otheroccupants and, having "secured" theapartment waited for 19 hours until awarrant was obtained beforeconducting a full search.

The Court, in an opinion by ChiefJustice Burger, found no constitutional violation in these facts.The Court rejected defense argumentthat the seizure of evidence wascomplete when the agents seized theapartment and its contents, thusreducing the warrant to an after-the-fact irrelevancy. In so doing,the Court drew a narrow distinctionbetween "seizures" and "searches." "Aseizure affects only the person’spossessary interests; a search

In the Court’s analysis thewarrantless seizure of the apartmentwas lawful as limited to the purposeof securing the apartment until awarrant could be obtained. The Courtcited Chambers v. Maroney, 399 U.S.42 1970 permitting the warraritlessseizure of an automobile until awarrant could be obtained and UnitedStates v. Chadwick, 433 U.S. 1 1977permitting the similar seizure of afootlocker as authority. However,the holding in ura goes considerably beyond Chambers and Chadwickin permitting a warrantless entryinto the home and its "seizure" for19 hours pending the obtaining of asearch warrant. In the Court’s viewSegura’s privacy interests were unaffected by this police conduct. "Wehold, therefore, that securing a

*‘.*.

-S.---,,

"By George! I’ve got a feeling this is going to be one ofthose terrific days where eve,ywhere you look you can

see probable cause!"

Reprinted with Permission

affects a person’s privacy interests."

Continued, P. 7

J-6-

, dwelling, on the basis of probablecause, to prevent the destruction or

removal of evidence while a searchwarrant is being sought is not itselfan unreasonable seizure of either thedwelling or its contents." The Court

also considered that, even if theinitial entry into the apartment wasillegal, the police already had anindependent source of probable causefor obtaining a search warrant.Consequently, the evidence seizedduring the search pursuant to thewarrant was not obtained by exploiting any police illegality.

Justices Stevens, Marshall, Brennan,and Blackniuri dissented. The dissentwould have found the warrantlessentry of the home unlawful, characterizing the 18-20 hour occupation ofthe defendant’s home as "blatantlyunconstitutional." The dissentersalso noted that the Court’s decisionis at variance with the spirit of itslongstanding recognition of the homeas an especially protected zone ofprivacy.

drug agents’ installation of an

electronic tracking devise "beeper"in a can of ether with the originalowner’s consent did not become a

Fourth Amendment search or seizurewhen the can was transferred to anunwitting purchaser. The defendantpurchased the can of ether apparentlyfor use in chemical processing ofcocaine. Using the beeper, drugagents were then able to track theether through a series of moves

between various houses and storagefacilities. Ultimately, the agents

obtained a search warrant for thedefendant’s home based in part oninformation obtained with the beeper.The District Court held that awarrant was required for the use ofthe beeper in private dwellings andthat the seized evidence, as fruit ofthe beeper’s illegal use, must besuppressed. The Tenth Circuit agreed.

The Supreme Court, reversing theTenth Circuit, held that the transferof the "bugged" can of ether to thedefendant did not constitute a searchor seizure. However, the monitoring

Continued, P. 8

Reprinted with Permission of United Feature Syndicate

In United States V. Karo, 35 CrL 3246July 3, 1984, the Court held that

Wt’O K&IF 1tI. IKGJ?, ThEY

Or r.umG-.5

-7-

of the beeper after it was conveyedto a private residence did violatethe Fourth Amendment. "Searches andseizures inside a home without awarrant are presumptively unreasonable absent exigent circumstances."The Court distinguished United Statesv. Knotts, 460 U.S. 276 1983 inwhich the Court upheld the use of anelectronic monitor to track themovements of a vehicle on publicroads. The monitoring of the beeperin a private home, unlike the tracking of a vehicle, conveyed to theagents information not otherwiseavailable to them. Despite theillegal use of the beeper, the Courtconcluded that there was sufficientuntainted information in the agents’possession to provide probable causefor issuing the search warrant.Justices Stevens, Brennan, andMarshall dissented from this portionof the Court’s holding.

A unanimous Court has made clear thatMiranda v. Arizona, 384 U.S. 4361966 governs the admissibility ofstatements made during custodialinterrogation by an individual accused of a misdemeanor trafficoffense. Berkemer v. McCarty, 35 CrL3192 July 2, 1984. The defendantwas convicted of driving while intoxicated based in part on his admission under police station houseinterrogation that he had usedintoxicants. No Miranda warnings weregiven the defendant. The sixthCircuit ultimately held that thedefendant was entitled to Mirandawarnings and the Supreme Courtagreed. The Court expressed its reluctance to "impair the simplicityand clarity of the holding ofMiranda." However, the Court declinedto extend the requirement of Mirandawarnings to the roadside questioningof a motorist. The Court..held thatin view of the brief, public character of the typical traffic stopsuch a stop is not "custodial."Thus, statements made by the def

endant prior to his interrogation atthe station house were admissible.

In Wasman v. United States, 35 CrL3242 July 3, 1984, the Court dealtwith an issue of prosecutorial vindictiveness. The defendant in Wasmanwas given a greater sentence afterretrial following a successful appealthan ‘he had been given after hisoriginal conviction. The greatersentence resulted when the sentencingcourt considered an interveningcriminal conviction for acts committed prior to the original senten

cing. The Court unanimously held that"after retrial and conviction following a defendant’s successfulappeal, a sentencing authority mayjustify an increased sentence by

affirmatively identifying relevantconduct or events that occurred

subsequent to the original sentencingproceedings." The trial court’s express consideration of the inter

vening conviction when fixing a

greater penalty met this standard."Consideration of a criminal conviction obtained in the interimbetween an original sentencing and asentencing after retrial is manifestly legitimate." The Court distinguished North Carolina v. Pearce, 395

U.S. 711 1969, in which the trial

court imposed a greater sentencefollowing an appeal and retrialwithout any attempt to justify theincreased penalty.

Several significant decisions were

issued by the Kentucky Supreme Court

and Court of Appeals.

KENTUCKY SUPREMECOURT

In Mangrum V. Commonwealth, Ky., 31

K.L.S. 9 at 21 Jirly 5, 1984, the

Supreme Court held that the de

fendant’s convictions of both being

an accomplice to the "possession"with intent to sell and the "sale" of

Continued, P. 9

-8-

marijuana, based on a single mcij7 dent, violated double jeopardy. The

defendant argued that his convictionof the two offenses violated doublejeopardy and that, moreover, therewas no evidence that he assisted inthe "possession" of the marijuana."We do not find it necessary todiscuss whether or not he aided inthe possessionother than to say thatif Appellant did not aid in thepossession of marijuana, then theevidence could not have been sufficient to support his conviction.Conversely, if he did aid in thepossession of the marijuana, thenthis would clearly be a violation ofthe prohibition against doublejeopardy as defined in Blockburger v.United States, 284 U.S. 299 1932."Justice Wintersheimer dissented.

In Commonwealth v. Hinton, Ky., 31K.L.S. 9 at 22 July 5, 1984 theCourt reversed a decision of theCourt of Appeals which had reversed

f the defendant’s first degree per-F sistent felony offender conviction.

The Court of Appeals had relied onthe holding of Zachery v. Commonwealth, Ky., 580 S.W.2d 220 1979that, as regards prior felony convictions, a probated sentence mergesinto a later sentence of imprisonmentto form one conviction. The holdingof Zachery was based on the Commentary to KRS 532.0804 whichstates: "when an individual has beenconvicted two times before servingany time in prison, his convictionsshall be considered a single conviction for purposes of thissection." However, in 1976 thestatute was amended to include withinthe definition of a prior felonythose convictions which resulted inprobation, parole, or conditionalrelease. The Supreme Court foundthat this amendment of t1e statuteeffectively nullified the portion ofthe Commentary on which the decisionin Zachery was based. "While theCommentary is a source of interpretation for the original Act, once

there is an amendment the portion ofthe Commentary on that subject losesits validity." The Court went on toexpressly overrule Zachery.

The Court has again wrestled with therecurring question of when and how toprovide an accused charged aspersistent felon an opportunity tochallenge his prior felony convictions. In Commonwealth v. Stamps,31 K.L.S. 9 at 23 July 5, 1984, theCourt reviewed a decision of theCourt of Appeals which had held thatthe defendant, a convicted persistentfelon, was entitled to appointment ofIvey counsel on an RCr 11.42 motionattacking his prior felony convictionso that Ivey counsel could "presentfor adjudication any supplementarygrounds that might reasonableappear.. ."

The Supreme Court reversed the Courtof Appeals, citing its previousdecisions in Alvey v. Commonwealth,Ky., 648 S.W.2d 858 1983 andCommonwealthv. Gadd, Ky., 665 S.W.2d915 1984. The Court held in Alveythat any challenge to a prior felonyconviction must be raised at the

persistent felony offender proceedingor be waived. In Gadd, the Courtrefined its holding in Alvey tofurther require that such a challenge

must be raised by pre-trial motion.Under the holdings in Alvey and Gadd,

Stamps had waived any objection to

the use of his prior felonyconviction to obtain his enhanced

sentence. However, the prior felony

conviction which Stamps sought toattack, in addition to being thebasis of Stamps PFO conviction, was

itself a conviction for which Stampswas imprisoned at the time of filing

his RCr 11.42 motion. The Court notedthis fact and, without specificallyholding that it entitled Stamps to

challenge his prior conviction,addressed the question whetherappointment of Ivey counsel is

Continued, P. 10

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required in every case in which anindigent movant requests it. In whatcan only be deemed a retreat from theunequivocal directive of Ivey, theCourt then held that the trial courtsrefusal to appoint Ivey counsel was,at most, harmless error. The Courtbased its decision on its determination, after examining the record,that to appoint counsel would be an"exercise in futility."

-In Mackim v. Ryan, Ky., 31 K.L.S. 9at 24 July 5, 1984 the Courtreversed a decision of the Court ofAppeals denying the defendant’s etition for writ of mandamus. A mistrial was declared at the joint trialof the defendant and a codefendantafter a juror told the trial courtthat she knew the codefendant’smother. The jury had already deliberated for two hours at that time.The defendant’s request that thetrial court ask the jury whether ithad reached a verdict in his case wasdenied. The defendant subsequentlymoved to dismiss the charges againsthim and submitted the avowal testimony of the jury foreman that, atthe time of the mistrial, the juryhad voted unanimously to acquit thedefendant but had not signed theverdict form. This motion was likewise denied. The defendant then un

successfully sought mandamus from theCourt of Appeals to prevent his retrial.

The SupremeCourt held that the trialcourt i improperly declared the

mistriajl as to the defendant. "Theinability of the jury to reach averdictj as to one defendant does notcompromise the verdict as to theother defendant." "Under these circumstances it was not ‘manifestlynecessary’ for the trial court todeclare a mistrial, and it-’would be aviolation of the appellant’s rightagainst double jeopardy to be retriedin this case."

KENTUCKYCOURT OFAPPEALS

In Cabbil V. Commonwealth, Ky.App.,31 K.L.S. 10 at 2 July 6, 1984, theCourt of Appeals reversed thedefendant’s convictions of trafficking in a controlled substance and asa persistent felony offender. The

Court found that the prosecutionwithheld exculpatory evidence when itfailed to disclose to the defensethat an undercover police officer,who was a principal commonwealthwitness, was under investigation formisconduct in his undercover work."[A]s the credibility of DetectiveFletcher was the mainstay of thecommonwealth’s case, evidence of theinvestigation into his misconductwould have a significant impact onhis believability." "We are convincedthat the withholding of this infor

mation denied appellant a fair

trial ."

In Bowling v. Commonwealth, Ky.App.,31 K.L.S. 10 at 13 July 20, 1984,the Court held that no right of the

defendant was violated when the trialcourt imposed consecutive sentenceson the defendant’s guilty pleas

rather than concurrent sentences asrecommended by the commonwealthpursuant to its plea bargain with thedefendant. Due to a prior dispute

between the defense and the commonwealth as to the terms of the pleabargain, the trial court had entered

an order stating;

‘It appearing that there was a

disagreement between the Commonwealth’s Attorney and the

attorney for the defendant, as

to the recommended sentence for

the defendant, and the Court,

being advised, and under the

authority of Commonwealth vs.

Workman, orders that the record

reflect, in accordance with thebargaining of the parties, that

Continued, P. 11

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the sentences herein run concurrently.’

The defendant contended that thisorder constituted an acceptance ofthe commonwealth’s recommendation,which precluded the trial court fromlater imposing consecutive sentences.The Court of Appeals disagreed:"t]he court below was merelyplacing the plea bargain correctly onthe record...." The Court of Appealspointed out that at the time of entryof the Order the trial court couldnot have accepted a sentencing recommendation since it had not yetconsidered a presentence report.Moreover, the trial court offered topermit the defendant to withdraw herguilty plea but she declined to doso.

In Green v. Commonwealth, Ky.App., 31K.L.S. 11 at 2 August 10, 1984 theCourt of Appeals reversed thedefendant’s conviction of traffickingin a controlled substance dilaudidbecause the controlled substance inquestion was consumed by the commonwealth in testing, thereby depriving the defendant of any opportunity to conduct independent testing. The trial court had previouslysustained a defense motion to conductindependent testing of the substance.However, when it was learned that thesubstance had been destroyed by thecommonwealth in testing, the trialcourt nevertheless permitted introduction of the commonwealth’s testresults. The commonwealth’s expertacknowledged that the destruction ofthe substance was unnecessary. TheCourt of Appeals stated the issue asfollows: "The single question iswhether, after a defendant ischarged, the unnecessary consumptionof the entire incriminatory drugsample may render the test resultsinadmissible in a drug prcsecution."The Court concluded that it did. "Wehold the unnecessary though unintentional destruction of the total drugsample, after the defendant stands

charged, renders the test result inadmissible, unless the defendant isprovided a reasonable opportunity toparticipate in the testing, or isprovided with the notes and otherinformation incidental to the testing, sufficient to enable him toobtain his own expert evaluation."

Finlly, in Harris v. Commonwealth,Ky.App., 31 K.L.S. 11 at 7 August17, 1984, the Court restated thebasic rule that "[a] definite and anindeterminate term shall run concurrently and both sentences shall besatisfied by service of the indeterminate term...." KRS 532.1101a.A definite term is, of course, asentence for a misdemeanor while anindeterminate term is a sentence fora felony. The defendant in Harriswas convicted of a misdemeanor. Theresulting sentence was probated.While on probation Harris was convicted of a felony. The trial courtthen revoked Harris’ probation andordered that the sentences for themisdemeanor and the felony run consecutively. The Court of Appeals heldthat this was impermissible. TheCourt rejected argument by the commonwealth that KRS 533.0602 andJames v. Commonwealth, Ky., 647 S.W.2d794 1983 authorized the consecutive sentences. In James, the Kentucky Supreme Court held that adefinite term and indeterminate termmay run consecutively if KRS 533.0602 is applicable. That statute provides that when a person is convictedof a felony and released on probationand is subsequently convicted of asecond felony, committed while he. wasreleased on probation, the sentencefor the second felony shall not runconcurrently with any other sentence.The statute was inapplicable toHarris since he had been convicted ofa misdemeanor, not a felony, andreleased on probation.

LINDA WEST

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Post-ConvictionLaw and Comment

REALIBILITY OFURINALYSISIN PRISON QUESTIONED

test alone but did not state what

corroboration should be required.

In 1980 the Syva Company of PaloAlto, California developed a technology which tested urine for tracesof marijuana without the need forcomplicated, laboratory analysis. Thisenzyme multiplied immunoassay testEMIT is now used extensively in themilitary, employment, drug treatmentcenters and prisons, including thosein Kentucky. In 1982 alone the UnitedStates Navy estimated that it con-duc,ted 1 .5 million urine screens. Buteven though the use of this testingmethod has gained wide acceptance ithas definite limitations, mostnotably reliability. Even the SyvaCompany admits that positive resultsshould be confirmed by an alternative

method.

In a suit currently pending in theUnited States District Court for theWestern District of Kentucky at pad-ucah, Higgs V. Wilson, No. 83-0256-p,

the reliability of the Syva EMIT testutilized by the Corrections Cabinetto provide the sole proof of adisciplinary infraction for the useof marijuana has now been called intoquestion. Indeed, on July 30, 1984Magistrate W. David King recommendedthat a preliminary injunction beissued by the court to prohibit theCorrections Cabinet from Using theSyva EMIT test as the sole indicationof intoxication in disciplinary...proceedings until the merit of the issuecould be determined. Magistrate Kingalso recommended that no violationbe based on the results of the EMIT

Also due to concerns about the

integrity of the samples tested. and

the right to confrontation in dis

ciplinary proceedings absent justi

fication for security, Magistrate

King recommended that procedures to

assure the integrity and freshness of

specimens be implemented and that the

chain of custody from the time of

taking the sample until its return to

the particular institution be

recorded. Further, it was recommended

that the inmate be allowed to cross-

examine the testing laboratory tech

nician concerning the validity of the

results either in person or through

written interrogatories.

While it remains to be seen whether

the district court will adopt the

magistrate’s recommendations, the

magistrate’s findings and conclusions

are indicative of a developing body.

of law recognizing that the result of

the EMIT test alone is not reliable

enough to base a finding of a dis

ciplinary infraction for drug use

without violating due process. See

Isaacks v. State, 646 S.W. 2d 603

Tex.App.4 Dist. 1983. See generally

Aikens v..Lash, 514 F.2d 55 7th Cir.

1975; Chavis v. Rose, 643 F.2d 1281

7th Cir. 1981. Although incarcer-

ation itself necessarily abridges an

inmate’s rights, Bell v. Wolfish, 441

U.S. 520, 545-547 1979, those

rights are not abridged to the point

of allowing further restraints based

Continued, P. 13

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on unreliable evidence. An inmatefound guilty of such a disciplinaryinfraction may lose good time credits, be placed in segregation, bedenied furloughs and lose privilegedhousing. Transfers may also berestricted and parole may be deniedor deferred.

In 1923, the Federal Court of Appealsfor the District of Columbia enunciated the generally acceptedstandard for admissibility of scientific test results in Frye v. UnitedStates, 293 F.1013 D.C. App.1923.The court indicated that before suchevidence can’be admitted it must havebecome "sufficiently established tohave gained general acceptance in thefield in which it belongs." UnitedStates v. Stifel, 433 F.2d 431, 4386th Cir. 1970. The Sixth Circuithas concluded that general acceptanceis synonymous with reliability andtherefore "[i]f a scientific processis reliable, or sufficiently accur-ate, courts may also deem it‘generally accepted.’" United Statesv. Franks, 511 F.2d 25, 33 n.12 6thCir. 1975.

Although a disciplinary action isobviously not a criminal prosecutionand a less stringent standard ofadmissibility may be employed, theSyva EMIT test has not been shown tobe so reliable, and therefore generally accepted, that it can beutilized in disciplinary actionswithout corroboration from someother source. Kane v. Fair, 33 CrL2492 Mass. Super. 1983. Reports ofinaccuracies range from 1 percent to50 percent. Zeese, "Marijuana Urinalysis Tests", Drug LawReport May-June, 1983. While the Center forDisease Control in Atlanta has testedthe EMIT procedure to show a 97 to 99percent accuracy and the Syva Companycites a 95 percent accuracy, otherreports indicate only an 87 percentaccuracy or less. See O’Connor and.Rejent, "Emit Cannabinoid Assay:Confirmation by R/A and GC/MS",

Journal of AnalyticalToxicologyJuly-Aug. 1981. Indeed, the UnitedStates Defense Department after a sixmonth test, concluded that the EMITtest will render in 52 percent "falsepositives." Zeese, supra at 26.

A major reason for inaccuracy withthe EMIT, and for that matter anyother urinalysis test, is cross-reactivity. This means that othersubstances can show up as if theywere marijuana, thus creating falsepositives. These substances includeamphetamine, amitriptyline, benzocyclecgonine, diazepam, meperdine,methaqualone, morphine, phency-clidine, propoxyphene, secobarbitaland even asprin. Clarke et al., EMITCannabinoid Assay: Clinical Study No.74 Summary Report Palo Alto, TheSyva Company, 1980. Corroborationof the results of an EMIT test istherefore essential to support itsaccuracy in any particular case.

Recognizing the inaccuracy of theEMIT test, the military requiresconfirmation of its results byfurther testing *before disciplinary

Continued, P. 14

- 13 -

action is taken. However, even these"confirmation" tests are not withoutfault * The radioimmunoassay screenRIA, due to the procedures involvedand subjective interpretation required, is likely to produce morefalse results than the Syva system.Zeese, supra at 26. Also, the resultsof another commonly used test, gas-chromatography/mass-spectrophotometerGC/MS can be affected by variousfactors such as plastic tubing usedin the test itself. Houfs, Bassettand Cravey, Courtroom Toxicology1981; Ambrose, Gas Chromatography

1971. Unfortunately, at present

the GC/MS is the only acceptableconfirmation test available. Zeese,

supra at 27. Furthermore, The Journalof the American Medical Association

February 18, 1983 indicated that it

is "virtually impossible, in practice

to standardize immunoassays so that

results are comparable when urine is

analyzed by two different immuno

assays or even the same immunoassay

using different batches of antibody.

Thus a single urine specimen can be

positive by one ixnmunoassay and

negative by another."

Another problem with any of theaforementioned tests is that they

cannot differentiate between active

and passive inhalation. The American

journal of Psychiatry conducted a

study in 1977 that showed that a’

passive inhaler will test positive

and often at levels higher than would

be expected. Ce.rtainly an inmate

could riot be disciplined for having

been near someone smoking marijuana

but this study lends support for anassumption that such has been the

case on at least a few occasions.

Since Magistrate King’s recommen

dations ri Higgs v. Wilson relate to

a request for a prelii4nary in

junctiofl it is not clear whether the

plaintiff will prevail on the merits

or even obtain a concurrence from the

district judge on the issuance of apreliminary injunction. However, the

cases and studies cited abovestrongly suggest that the plaintiffshould ultimately prevail. Recordingthe chain of custody and allowingexamination of the tests wouldundoubtedly make the finding of aviolation more trustworthy. But, unfortunately, it appears inevitablethat some innocent parties will stillsuffe due to passive inhalation andthe inaccuracy of all testing methodsincluding confirmation testing. Thesefaults should cause the districtcourt to require more than confirmation testing to support the SyvaEMIT results. All positive testresults should be corroborated bysome evidence other than testing.Zeese, supra, at 31.

RANDY WHEELER

* * * * * *

ADMINISTRATIVENEWS

AllotmentCounties

Allotments are paid on a fiscal yearquarterly basis. Checks are mailed bythe 15th, of the first month followingthe close of the previous quarter.

ConflictClaims

Conflict claims are paid monthly.Claims received during the month willbe paid the following month.

AssignedCounselClaims

Assigned counsel claims are paid on afiscal year quarter and are prorated.All claims must be received withinone week after the end of the quarterto be paid in that quarter.

These schedules are subject to changedue to changes by the Department ofFinance.

DAVID E. NORAT* * * * * *

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TheDeath Penalty

LAWYERS,FUNDS ANDMONEY

The question of how good a defensei.e., how many, if any, experts...support services the public can orwill permit an indigent defendant tomount is a difficult one, especiallyin a capital prosecution. A caseinvolving a poor capital defendantand expert psychiatric services ispending before the U.S. SupremeCourt. Ake v.State, 663 P.2d 1, 6Oki. 1983, cert.granted, 104 S.Ct.1591- 1984.. Many Kentucky capitalcases involve controversy over thisissue. Witness this editorial fromthe Kentucky Post May 5, 1980:

EQUAL JUSTICE FORALL

When an accused nian’s life hangsin the balance, he deserves thebest defense possible.

It is not a time to cut corners.

Our system of justice is based onthe principle that everyone isequal in the eyes of the law.That principle is threatened ifthe accused does not have themeans to, defense himself.

Paul Kordenbrock cannot afford tohire the expert witnesse.s necessary to make the strongestpossible defense on the murdercharge facing him in BooneCounty.

"Do you think every indigent isentitled to resources the same asa millionaire?" Boone CircuitJudge Sam Neace asked Korden

brock’s court-appointed attorneyFriday.

The answer must be that anindigent like Kordenbrock whofaces the death penalty deservesjustice equal to that of amillionaire.

The question of who should payfor that defense - the county orthe state - is more difficult toanswer. The state pays forKordenbrock’s attorney, why notwitnesses, too?

But that question is secondary.The important thing is that Kor-denbrock receive a full and fairtrial. Anything less would be abetrayal of our principles. Andwe would all be the losers.

Requests for experts by indigentshave not fared well in either theKentucky trial or appellate courts oflate. Young v.Commonwealth, Ky., 585S W.2d 378, 379 1979 recognizes theindigents right to "reasonably necessary" experts...at least intheory. In Ford v.Commonwealth, Ky.,665 S.W.2d 304, 309 1983, forexample, a request for assistance tocomplete a jury composition challengewas mistakenly viewed as a motion fora "statistician and mathematician"Ford already had one and wasdenounced as a "witch hunt" * A similar claim, as well as one for ajury/conviction proneness expert wasrejected in a death penalty appeal.

McQueenv. Commonwealth, Ky., 669

Continued, P. 16

- 15 -

S W.2d 519, 521 1984. In Hicksv.Commonwealth, Ky., 670 S.W.2d 837,838 1984 a serologist was properlydenied. "The trial courts are notrequired to provide funds to defenseexperts for fishing expeditions."Compare Corenevsky v. SuperiorCourt,682 P.2d 360, 368 Cal. 1984, wherethe non-capital defendant requested"$8,740 for a jury selection expert."An order granting funds for thisexpert was "well within [the court’s]discretion. . . *" Additionally, theCalifornia Supreme Court held that arequest for two law clerks was notmerely a "staffing problem" for thepublic defender but a matter withinthe scope of the trial court’s reviewof what assistance is "reasonablynecessary." 682 P.2d at 369.

‘Another thorny question is who pays?The state or the county? In variousunpublished orders last year, theCourt of Appeals provided some answers. For example, a writ of prohibition filed by the Oldham CountyFiscal Court was denied. The Courtstated that "the use of privatefacilities [by an indigent criminaldefendant] is a charge against thecounty, pursuant to KRS 31.185."

Commonwealthv.Corey, No. 83-CA-2146-OA Nov. 28, 1983. The Courtrelied on a decision to the sameeffect in Commonwealth v.Douglass,No. 83-CA-1927-OA Nov. 4, 1983,

aff’dsubnom., Perry CountyFiscalCourtv.Commonwealth, et.al., Ky.,

S W.2d 1984. See also Department of Public Advocacy v.Cook,

No. 83-CA-1294-OA August 5, 1983,rev’don othergrounds, Cook v.

Departmentof PublicAdvocacy, 83-SC-801-MR March 8, 1984 [DPA has an"adequate remedy by means of directappeal" from order requiring it topay for fees of experts.]

COUNTYLIABLE FOREXPERTS

The Supreme Court has now answeredthe question of who is liable forexpert witness fees incurred

by inpigent criminal defendants except penitentiary cas’esin the samemanner as the Court of Appeals.Quoting Judge Wilhoit’s opinion,

Perry County at states:

Considering the legislative intent expressed in KRS 31.185, weview the furnishing of non-statefacilities for the evaluation ofevidence in appropriate circumstances to be a necessarygov

ernmentalexpense which mustbemetbycounties. See Mill v.

Quertermous, 304 Ky. 733, 202S.W.2d 389 1947; Landrum,v.Ingram, 274 Ky. 736, 120 S.W.2d393 1938.

See also Boyle County Fiscal Courtv.Shewmaker, Ky.App., 666 S.W.2d 7591984, holding that the county wasliable for attorney fees in publicdefender cases after the stateallotment had been depleted. "KRS31 .050 provides that counties shallbe obliged to pay all costs incurredin their program which are in excessof the maximum amount allotted to theprogram from state funds grantedunder KRS Chapter 31." 666 S.W.2d at762.

TRIALJUDGE’S POWER TOEXCLUDEDEATHPENALTY:

SANCTIONSFOR DENIAL OFEXPERTS

In Harlow Gwinn’s capital prosecution, Judge Douglass originally ruledthat the Commonwealth could not seekthe death penalty "because of theinability of the fiscal court to paythe fees of two expert witness."

PerryCounty at . The sanction of

- 16 -

Continued, P. 17

THEKENTUCK VS DEAThJIOWPOPULATOId _i9._

PENDING CAPITALINDICTMENTSKNOWN TO DPP.

contempt is available in a situationwhere the fiscal court refuses topay, BoyleCounty at 763, butcontempt is an ineffective remedywhen there is no money. However, theSupreme Court held that the circuitjudge should not exclude "beforetrial...death...as a possible penalty..." PerryCounty at * Atleast this is so in a case wherethere is no demonstrated connectionbetween the experts and the punishxnent of death. Denial’of funds forsentencing phase witnesses might beanother story.

In Corenevsky a similar situationarose. The California county becameobligated to pay for second counselin a capital case under the decision in Keenan v. SuperiorCourt,640 P.2d 108 Cal. 1982. When theauditor refused to do so because theattorney fees "would allegedly‘bankrupt’ the county", the trialcourt ordered that second counsel bedischarged and that death was nolonger a possible punishment. Noreview was sought of this order. 682

P.2d at 363. Later litigation, however, culminated in a decision thatthe county auditor could be held incontempt for refusing to disbursefunds for expert assistance. 682 P.2dat 369-373.

While PerryCounty at ‘limits atrial judge’s power to bar death as apossible punishment for local fiscalproblems, it restates the circuitjudge’s authority to do so for otherreasons. Clearly, disproportionality,at issue in Smith, is not the onlyreason a trial judge can decide notto waste time on a capital trial.Harlow Gwinn received a life sentence after a long trial.

Smithv.Commonwealth, Ky., 634S W.2d 411 1982, stands for theproposition that a trial courthas authority to relieve the juryof any consideration of the deathpenalty where it has determinedprior to the penalty stage of thetrial that such penalty would beunconstitutionally disproportionate or for an equally significant reason. emphasis added.

PerryCounty at also states thatdenial of necessary experts "mighthave a bearing upon whether thedefendant should be tried at all..."A motion to dismiss the indictmentmay be appropriate in some cases.

ARIZONA VS.RUMSEY:DOUBLEJEOPARDY AND CAPITALCASES

Mistakenly edited from the lastAdvocate was mention of Arizonav.Rumsey, 104 S.Ct. 2305 1984, decided before Spaziano v.Florida, 104S Ct. 1984 reviewed lasttime. Rumsey represents the onlyvictory.of late by a death row inmatein a case argued before the UnitedStates SupremeCourt.

Continued, P. 18

- 17 -

Rumsey reaffirmed Bullingtonv.Missouri, 451 U.S. 430 1980 in aslightly different context. Bull-ington held that the double jeopardyclause of the Fifth Amendment appliedto the capital sentencing phase of amurder trial in Missouri because the"capital sentencing procedure...resembles and is like a trial on theissue of guilt or innocence..." 451

a.t 438. This was true evenwhere, as in Kentucky, the jury has"broad discretion to decide whethercapital punishment [is] appropriate."Ruinsey, 104 S.Ct. at 2312 Rehnquist,J. dissenting.

Rumsey won his first appeal from alife sentence but the Arizona SupremeCourt disagreed with the trialcourt’s finding that the death penalty was automatically barred because"no aggravating circumstances" existed as a matter of law. 104 S.Ct. at2308. After reevaluation of the sameevidence on remand, the trial courtsentenced Rumsey to death--findingits previous statutory interpretationerroneous. The Arizona SupremeCourtreversed again, this time in light ofBullington. The United States SupremeCourt affirmed 7-2, JusticeO’Connor writing.

In Rumsey’ it was the judge, not thejury, who sentenced the defendant todeath. This distinction was not constitutionally significant. There issome question whether Kentucky is ajury or judge or both sentencingstate. Compareziano, 104 S Ct. at

n.9; Ex ParteFarley’, Ky., 520SW.2d 617, 619 n.1 1978; Gallv.Commonwealth, Ky., 607 S.W.2d 97, 1041980. Be that as it may, Rumseyteaches us that Bullington is clearlyapplicable to Kentucky law. InArizona, as here, "the sentencer isto make its decision gufded bysubstantive standards and based onevidence introduced in a separateproceeding that formally resembles atrial...the prosecution has to provecertain statutorily defined facts

beyond a reasonable doubt... [Regardless, the sentencer is free todetermine] the prosecution has failedto prove its case." RUmsey, 104 S.Ct.at 2310. Such a failure "barsany

retrialof the appropriateness ofthedeathpenalty." 104 S.Ct. at 2310

emphasis added. "Having received‘one fir opportunity to offer whatever proof it could assemble,’Burks... 437 U.s. at 16 ...the Stateis not entitled to another." Bull-ington, 451 U.S. at 446.

The Court specifically refused Arizona’s invitation "to overrule Bull-ington, decided only 3 years ago. Wedecline the invitation... [Arizona]has suggested no reason sufficient towarrant...any departure from thedoctrine of stare decisjs..." 104S.Ct. at 2311.

THENEXT STEP:AFEDERAL CONSTITUTIONAL

MINIMUMLEVEL OFAPPROPRIATENESS

It is unclear what standards aKentucky trial judge must apply inreviewing a death sentence--i forsufficient evidentiary support and/or2 as a final sentencer. Of course,the circuit judge’s role as asentencer permits greater leeway thanhis/her role in reviewing the evi-dentiary support for the deathsentence. The state judge is free toreject a death sentence as inappropriate even after an "aggravatingcircumstance. . . [is] found beyond areasonable doubt." KRS 532.0303."[T]he trial court is not bound" bythe jury’s recommendation. Gall, 607S.W.2d at 104. Importantly, thisclearly implies, as a matter of statelaw, a judicial -role in determiningwhether a death sentence is appropriate in a particular case. Ofcourse, the court can give "greatweight" to the jury’s decision inthis regard. White v.Commonwealth,Ky., 671 S W.2d 241, 247 1984.

Continued, P. 19

- 18 -

It follows that a minimum level of"appropriateness" must exist apartfrom proof beyond a reasonable doubtof one aggravating circumstance.Therefore, the trial judge’s roleshouldn’t be limited to reviewing theevidentiary support for the aggravating circumstances but also theevidentiary support for the bigquestion itself--life or death. Thisanalysis takes place by viewing thebig picture--aggravation "pittedagainst" mitigation. Smith v. Commonwealth, Ky., 599 S.W.2d 900, 9121980. Directed verdict motionsshould be made, and renewed, arguingthe absence of proof beyond areasonable doubt of the aggravatingcircumstances and of "appropriateness" of capital punishment for yourclient. Thus, if the judge is not

inclined toward a life sentence-rejecting the jury’s recommendation-then the issues are properly phasedfor direct appeal and beyond. A death

sentence can’t then be rationalizedaway on appeal as "discretionary"without any investigation of theunderlying evidentiary support. Ifworse comes to worst, the condemnedcan fall back on a strong argumentthat there is a federal constitutional minimum level of appropriateness aggravation weighed againstmitigation which can’t be ignored ifeveryone else wishes to pass thebuck. Too often the jury relies on

the judge the judge blames the jury

and the appellate court can wash itshands of the whole matter.

Bullington and Rumsey were based upondouble jeopardy decisions where the

"evidence was insufficient to con-victE,] Burks v. UnitedStates, 437U.S. 1...1978...[i.e., where] the

government has failed to prove its

case..." Bullington, 451 U.S. at 443;quoting Burks, 437 U.S. ..at 15-16.Because of the nature of the penaltyphase trial, these "evidentiarysufficiency" cases were held equallyapplicable to the decision of whetherthe defendant "deserves the death

penalty..." Bullington, 451 U.S. at446.

As Bullington’s citation to Jacksonv. Virginia, 443 U.S. 307, 320 1979

suggests, there must be a "due process/cruel and unusual" minimum levelof "appropriateness", evenassuming

thepresence of an aggravatingfactor, before the State can carryout an execution. Cf. Enmund - v.Florida, 102 S.Ct. 3386 1982. "TheCourt already has held that many ofthe protections available to adefendant at a criminal trial alsoare available at a sentencinghearing...in a capital case..."Bullington, 451 U.S. at 446. Shouldnot that most fundamental safeguard -

that the death verdict be supportedby some minimal evidence ofappropriateness other than the mereexistence of an aggravatingcircumstance - also apply?

The Winship doctrine requiresmore than simply a trial ritual.A doctrine establishing sofundamental a substantive constitutional standard must also

require that the fact-finder willrationally apply that standard tothe facts in evidence. Jackson,443 U.S. at 317-18.

The life and death decision can "not

be] irretrievably committed to jurydiscretion... The power of the fact-.finder to err upon the side ofmercy...has never been thought toinclude a power to enter an unreasonable verdict..." 443 U.S. at 318n.10. The proper "minimum" standardis that announced in Jackson -

modified to meet the question posedby a capital sentencing verdict.

After Winship the critical inquiry on review of the sufficiency of the evidence to supporta death sentence] must be notsimply to determine whether the

Continued, P. 20

- 19 -

jury was properlY instructed, but

to determine whether the record

evidence could reasonably support

a finding [that death is the ap

propriate punishment]... but this

inquiry does not require a court

to "ask itself whether it be

lieves that the evidence at the

Irial established [that the death

penalty was the appropriate pun

ishment]... instead, the relevant

question is whether, after

viewing the evidence in the light

most favorable to the prosecu

tion, any rational trier of fact

could have found the [death

penalty appropriate.] Jackson,

443 U.S. at 319-320 emphasis in

original.

"In short, Wjnship presupposes as an

essential of the due process

guaranteed by the Fourteenth Amend

ment that no person shall be made to

suffer... [death] except upon

sufficientproof..." 443-U.S. at 317

emphasis added. In a capital pros

ecution, this presumes proof beyond

the simple presence of an aggravating

factor which is present in all true

"death eligible" cases and is merely

a threshold requirement before the

jury reaches the question of appro

priateness of capital punishment in

the case before them. Cf. Zant v.

Stephens, 103 S.Ct. 27331983.

The federal and hopefully the state

constitution will permit executions

of certain capital murderers but only

after a reliable determination that

"death is the appropriate punishment

in a specific case." Lockett v. Ohio,

438 U.S. at 601 plurality opinion,

quoting Woodson .North Carolina,

428Stewart, Powell and Stevens, J.J..

In an opinion espeCtiflg the denial

of certiorari, Mr. Justice SteveflS

quoted Utah’s requirement that the

State must prove "beyond a reasonable

doubt,] that the imposition of the

death penalty iS justified and

appropriate in the circumstances."

- 20 -

Smithv. NorthCarolina, 103 SCt.474 1982. Arguments, motions, instructions and findings in Kentuckycapital cases should reflect theseconcerns.

MORE DOUBLEJEOPARDY:PAYNEVS.VIRGINIA

In a per curiam order the Court reversed a robbery conviction on doublejeopardy grounds where the defendanthad already been convicted of capitalmurder during the same robbery. Payne

v.Virginia, 104 S.Ct. 3573 1984."In this case, as in Harrisv.Oklahoma, 433 U.S. 682...1977percuriam, where ‘conviction of agreater crime, murder, cannot be hadwithout conviction of the lessercrime,’ robbery..., the Double Jeopardy Clause bars prosecution for thelesser crime after conviction of thegreater one."

RECENTEXECUTIONS

Executed recently: 23 Ernest DobbertFLA. 9/7/84; 24 Timothy BaldwinLA. 9/11/84; and, 25 James HenryFLA. 9/20/84. Dobbert, of Dobbert

v.Florida, 432 U.S. 282 1980 fame,could not have been executed inKentucky. Hudson v.Commonwealth, 597S.W.2d 610 Ky. 1980.

KEVIN MCNALLY

* * * * * *

Norman Bennett, Assistant PublicAdvocate, has joined our PaducahOffice.

NORMAN BENNETT J,.

SIXTHCIRCUIT SURVEY

1

This column will present reviews ofselected new opinions issued by theUnited States Court of Appeals forthe Sixth Circuit thought to be ofbenefit to defense counsel practicingin state court. Opinions selected forreview will include direct appealsfrom convictions in federal districtcourt as well as appeals in habeascorpus actions presented to thefederal courts by state prisoners.

HUNG JURIES,MISTRIALS& DOUBLEJEOPARDY

In Jones v.Hogg, No. 83-5529 April12, 1984, a habeas corpus petitionerasked the court to decide whether theFifth Amendment’s double jeopardyclause precluded the Commonwealth ofKentucky from prosecuting him afourth time for murder after threeprevious trials had ended in hungjuries. After each previous trial -

all of which lasted only one day - amistrial had been declared. All threetrials were presided over by adifferent trial judge and prosecutedby a different CommonwealthAttorney."The record reveals little else,making an informed decision as towhat influenced the declaration ofeach mistrial very difficult." Slipopinion at 2.

The Sixth Circuit reversed thedecision of the district courtdenying Jones’ habeas petitionbecause "the record below was]wholly inadequate to render a properdisposition on the constitutionalclaims raised in Jones’ petition."Slip opinion at 2.

The court recognized that the doublejeopardy clause did not bar retrialsin cases where a "manifesdt necessity"exists to declare a mistrial in theinitial prosecution, and that adeadlocked jury is a classic exampleof manifest necessity However, "a]state is not free to engage in

oppressive practices which subject anaccused to repeated prosecutions inan attempt to gain a criminalconviction." Slip opinion at 3.

While the trial judge has discretionto declare a mistrial without thedefendant’s consent if a manifestnecessity exists, this discretion isnot without limits. "[D]iscretiondoes not equal license; the FifthAmendment’s guarantee against doublejeopardy would be a sham if trialjudges’ declarations of ‘necessary’mistrials were in fact to gounreviewed." Slip opinion at 5.

In determining whether sounddiscretion has been exercised, thefollowing factors must be considered:1 timely objection by thedefendant; 2 the jury’s collectiveopinion that it cannot agree on averdict; 3 the length of jurydeliberations; 4 the length of thetrial; 5 the complexity of theissues; 6 any proper communicationthe judge has with the jury; 7 theeffects of possible exhaustion andthe impact which coercion of furtherdeliberations might have on theverdict; and 8 the trial judge’sbelief that additional trials willresult in continued hung juries.

The Sixth Circuit concluded that thecase under review did not present anadequaterecord to determine which ofthese factors, if any, wereconsidered before a fourth trial wasscheduled for Jones.

A "major reason" the court reachedthis conclusion was that the KentuckySupreme Court misapplied the manifestnecessity standard in denying Jones’

Continued, P. 22

-.21

petition for a Writ of prohibition.The Kentucky Supreme Court had ruledthat Jones had flot demonstrated thatthere was a "manifest necessity forinvoking the defense of doublejeopardy." This Was a misapplicationof the rule announced in United

Statesv.Perez, 22tj.s. 579 .1824,wh.’ ch requires the trial court todecide that a manifest necessityexists before declaring a mistrial.Requiring a defendant to show amanifest necessity for invoking thedefense of double jeopardy "placesupon the accused a burden that shouldbe carried by the court." s’ipopinion at 7.

The record before the court did notreflect why the trial judges in eachprosecution declared a mistrial. Nordid it reflect that Jones was givenan adequate °PPortunity to contestthe mistrial order or that the trialjudge . considered all possiblealternatives before declaring amistrial. Even Jones consented tothe mistrial order - a point thecourt was unwilling to assume absentcircumstances indicating Jones’acquiescence

- the record was stillinsufficiently developed to evaluatethe actions of the trial court.

"Although the act05 of trial judgein these matters are normallyaccorded great deference, in thiscase. [there is] rio record upon which[a] decision can rest." Slip opinionat 9. Since the record precluded afinding that Sound discretion wasexercised in accordance withconstitutional Principles when themistrials were declared in the threeearlier prosecut05, the districtcourt’s decision denying the petitionwas reversed and the case wasremanded.

POST-GATES REVIEW OFSEARCHWTAPFIDAVI

While recognizjg that the recentSupreme Court °ase of Illinoisv.

Gates, 103 S.Ct. 2331 1984,prohibits a reviewing court fromundertaking a de novo review of thesufficiency of affidavits for. searchwarrants, the Sixth Circuit hasnevertheless concluded that anaffidavit underlying a search warrantin a case under review failed to!stablish probable cause. United

states. v.Savoca, No. 83-3510 July17, 1984.

In the cited case, two suspectedbankrobbers were arrested, pursuant tovalid arrest warrants, as they walkedout of an Arizona motel room.Following the arrest, FBI agentssecured a search warrant to searchfor fruits and instrumentalities ofthe bank robberies. The supportingaffidavit recited, as probable causeto search the motel room, that thedefendants had been arrested onfederal bank robbery warrants andthat they were suspects in four otherbank robberies. All of the bankrobberies had occurred in Ohio andPennsylvania.

A search pursuant to the warrantnetted hand guns, false identification, and several masks. A motionto suppress was denied, and theevidence was introduced at trial.

On appeal, the Court’ ruled that thesupporting affidavit did notestablish probable cause to believethat evidence of a crime would befound in the motel room. Addressingthe scope of review of supportingaffidavits, the Court recognized thatGates held that the Fourth Amendmentis satisfied so long as themagistrate had a "substantial basis"for concluding that a search woulduncover evidence of wrongdoing.

And, while Gates , requires reviewingcourts to give great deference to amagistrate’s probable. cause finding,"[t]his does not mean that reviewing

Continued, P. 23

- 22 -

courts should rubber stamp aF magistrate’s finding of probable

cause." Slip opinion at 7.

Having determined the scope ofreview, the Court noted that searchwarrants are directed againstevidence of crime, not persons. "Thefact that there is probable cause toarrest a person for a crime does notautomatically give police probablecause to search his residence orother area in which he has beenobserved for evidence of- that crime."Slip opinion at 7.

The affidavit under review established only that two persons known tohave been involved in several Midwestern bank robberies at unspecified times were observed on thesame premises in Arizona. While onecould reasonably infer that thesuspects were staying in the motelroom, the robberies occurred 2,000miles away. More importantly, the

r affidavit did not specify the amountof time which had passed between therobberies and the issuance of thewarrant. "As such, the magistratecould not know from reading theaffidavit whether the bank robberiesoccurred several months ago orseveral years ago." Slip opinion at9.

Citing Brinegar v. UnitedStates, 338U.S. 160, 175 1949, the Courtconcluded that the affidavitestablished no more than a "baresuspicion" that incriminatingevidence would be found in the motelroom. Slip opinion at 9. Accordingly,the bank robbery convictions werereversed since the defendant’s motionto suppress should have been granted.

NEAL WALKER

Neal Walker graduated from Chase LawSchool in 1979. He worked as a trialattorney for DPA in Prestonsburg-, andthen as an appellate attorney for DPAin Frarzkfort. For the past year and a

half Neal has been a federal publicdefender doing trial, appellate andhabeas work. The Federal PublicDefender Office’s address is P.O. Box1489, Lexington, Kentucky 40501;606 233-2701.

We thank Neal for his willingness tosu4vey the sixth circuit cases forus.

* * * * * *

Peter Kunen resigned from the HazardOffice effective September 30, 1984.He returns to the family practice inMassachusetts after 5 years of dedicated public defender service.Thanks Peter for your tirelessefforts on behalf of our clients.

Assistant Public Advocate, TimRiddell, replaces Mark Posnansky asthe Chief of the Appellate Branch.

PETER KUNEN

TIM RIDDELL

- 23 -

Trial Tips

AVOIDING ENHANCED PUNISHMENTUNDER THE "SLAMMERBULL"

arrested since July 13th whose prior

convictions were before that date.

On July 13, 1984 Senate Bill 20,Kentucky’s "Slammer Bill," went intoeffect. This law provides forenhanced punishment with mandatory,non-suspendable minimum jailtime forDUI repeat offenders and alsoenhances punishment for the offenseof operating a motor vehicle whileunder suspension or revocation as aresult of a DUI conviction from aClass B misdemeanor to Class A misdemeanor on second offense, and toClass D felony on third andsubsequent offenses. See "LegislatIveUpdate," Vol. 6, No. 4 The AdvocateJune, 1984 43, 44. As SenatorMoloney observed, "substantial litigation will result from this piece oflegislation." Id. at 44.

The purpose of this article is tosuggest two procedural and twosubstantive challenges defensecounsel may raise to avoid enhancedpunishment for those charged withrepeat offenses.

I. RETROACTIVE APPLICATION

S.B. 20 amends KRS 189A.010bc toprovide enhanced punishment forsecond, third, and subsequent offenses "within a five 5 year period...", but fails to specify whetherthat period commenced on theeffective date of the statute orincludes the five 5 years immediately preceding arrests followingthe statute’s effective date. Thisambiguity is of critical importanceto those charged as repeat offenders

Constitutional challenges under the

ex post facto clauses have generally

been unsuccessful, see, e.j., State

v. Willis, 332 N.W.2d 180 Minn.

1981. A successful challenge may,

however, be found in the Kentucky

statute concerning principles of

statutory construction. KRS 446.0803 provides that "no statute shall

be construed to be retroactive, Un-

l&ss it expressly so declared." Since

no such declaration is found in

Section 1 DUl, Section 9 revoked

or suspended license, or any other

section of S.B. 20, the new law

should not be applied retrospectively

to include convictions before its

effective date as first or second

offenses.

II. NOTICE

S.B. 20 makes no provision’ for how a

person is to be put on notice that he

or she is charged as a repeat

offender. It is not clear whether

such notice must be in the charging

document warrant or citation, as

PFO charge must recite the prior

felony conviction, or may be subse

quently filed by the Commonwealth.

The Tennessee Supreme Court, in

reviewing that state’s first DUI

enhanced punishment law, held that

the provisions "purporting to auth

orize proof of conviction and in

creased punishment for subsequent

offenses without previous notice

thereof given to the defendant" vio

Continued, P. 25

- 24 -

lated the state and federal dueprocess clauses, Frost v.State, 330S.W.2d 303 1959.

Counsel should object to theintroduction of evidence of priorconvictions and jury instructionsincluding subsequent offender sentences at trial where the Commonwealthfailed to give any notice of itsintent to enhance punishment by useof prior convictions. In Commonwealthv. Gadd, 665 S.W.2d 915 Ky. 1984the Supreme Court held that documentswhich will be used to establish theprevious conviction in a PFO caseare, discoverable under RCr 7.242.This is one incentive for the defenseto file discovery motions in DUIcases, as failure to produce thedocuments relating to the priorconviction in response to such amotion may lead to their exclusionfrom evidence at trial under RCr7.249. Notice and disclosure of theprior will also enable defensecounsel to challenge the prior by

./ pretrial motion as required by Gaddin PFO cases rather than disruptingtrial or necessitating a continuancewhen the commonwealth seeks tointroduce the prior at trial.

III. BALDASAR: "UNRELIABLE"PRIOR CONVICTIONS EXCLUDED

Most defense attorneys are aware ofthe longstanding rule that a felonyconviction obtained in violation ofthe defendant’s right to counsel maynot be used to enhance punishment ona subsequent conviction as in PFOcases, Burgett v.Texas, 389 U.S.109, 88 S.Ct. 258, 19 L.Ed.2d 3191957. Most are not, however, awareof a 1980 decision which has yet tobe cited in any reported Kentuckycases which extended this principleto preclude enhancement b?sed onmisdemeanorconvictions which did notresult in confinement. Baldasarv.Illinois, 446 U.S. 222, 100 S.Ct.1585, 64 L.Ed.2d 169 1980.

Baldasar was convicted of his firstoffense of theft a misdemeanor andwas sentenced to a fine and a periodof probation. The record of that casereflected that he was not representedby a lawyer and did not formallywaive any right to counsel. He wassubsequently charged with a secondoffense of theft a felony underIllinis law and objected to introduction in evidence of his priorconviction. The court noted that theprior conviction was not obtained inviolation of Baldasar’s sixthamendmentright to counsel, since nojailtime was imposed, Scottv.Illinois, 440 U.S. 367, 99 S.Ct.1158, 59 L.Ed.2d 383 1979, butrecognized that the defendant wouldsuffer enhanced punishment now as adirect result of the earlier

conviction. The court held that the

prior uncounselled conviction was toounreliable to justify enhancedpunishment: "...a conviction which isinvalid for purposes of imposing a

sentence of imprisonment for the

offense itself remains invalid for

purposes of increasing a term of

imprisonment for a subsequent con

viction under a repeat offender

statute." 100 S.Ct. at 1589 Mar

shall, concurring.

State courts around the country have

applied Baldasar to preclude enhancedpunishment in DUI cases where theprior conviction was uncounselled and

the record does not show a specific

valid waiver of that right, see,Statev.Mattila, 629 P.2d 845

Ore. 1981, State v.O’Brien, 666S.W.2d 484 Tenn.Crim.App. 1984.This rule applies whether the

enhanced punishment is still within

the misdemeanor range as with DUI

offenses under the new law, seeStatev.Ulibarri, 632 P.2d 746 N.

Mex. 1981, or to felony level aswith third offender revoked license

cases, see State v. Veniza, 391

Continued, P. 26

- 25 -

So.2d 450 La. 1980. A waiver of theright to counsel is not valid unlessthe record reflects that thedefendant was also advised of theright to court appointed counsel ifindigent. In reSmiley, 66 Cal.2d 6061967, State v. Cichirillo, 440So.2d 934 La.App. 1983.

Few Kentucky district court DUI convictions prior to the effective dateof the new act are likely to meetthis standard, so counsel should becertain to review the record docketsheet and tape recording of theprior if the trial court permitsretrospective application of theslammer bill.

IV. BOYKIN - VIOLATIVEPRIORS INADMISS IBLE

Those who practice in the districtcourts are aware that the volume ofcases disposed of. there makes itimpractical for the court to conducta full colloquy of advice and waiverof constitutional rights required by

Boykinv.Alabama, 395 U.S. 238, 89S.Ct. 1709, 23 L.Ed.2d 274 1969.Nonetheless, contrary to popularbelief, there is no exception to theBoykin requirements for misdemeanorand traffic’ guilty pleas, and convictions obtained in violation ofBoykin are not admissible at trial toenhance punishment. State v.Smith,329 N.W.2d 564 Neb. 1983, Peoplev.Hernandez, 100 Cal.App.3rd 6371979. The record must reflect aspecific waiver of each right; adocket reciting defendant’s waiver ofright to trial and trial judge’ssatisfaction that defendant "knew hisrights" is insufficient and constitutionally invalid, since it does notcontain advice or waiver of therights to confrontation and againstself-incrimination. Sta1 v.Lee, 407So.2d 1192 La. 1981.

Many Kentucky cases show confusion orignorance concerning the Boykindoctrine. Fortunately, the federal

Court of Appeals has clarified thisfor us in a federal habeas corpusappeal of a Kentucky enhanced sentence for DUI and driving with arevoked license. In reviewing thestandard for admissibility of priorconvictions in Sizemore v.DistrictCourt, 735 F.2d 204 6th Cr.,6/0/84 the court explained:

It is well-settled that any courtaccepting a guilty plea mustfirst ascertain that the defendant is fully cognizant of thefundamental constitutional guarantees which are waived uponentry of the plea. Boykincitation omitted. It is inherently prejudicial to admit aconstitutionally infirm pleaagainst a defendant at a subsequent trial on a new offense.Burgett citation omitted. Accordingly, if Sizemore’s priorthree pleas were indeed constitutionally offensive then thewrit must be granted.13 SCR at 13.

One time-saving practice employed in

many district courts is that of thegroup arraignment, where alldefendants on the docket are readtheir rights together at thebeginning of the session of courtmorning and afternoon, or evenhourly. This practice has been heldto be permissible so long as thecourt ascertains at the plea thateach defendant understood theserights and made knowing and voluntarywaivers of them. Mills v.MunicipalCourt, 10 Cal.3rd 288, 515 P.2d 2731973. Where the defendant’s presence at the group arraignment is acontested issue, the courts havesplit on the burden of proof: see

Statev.Ziemba, 346 N.W.2d 208 Neb.1984, holding that "the record mustdisclose that defendant was presentat that time", compare Hartv.Mun

icipalCourt, 138 Cal.App.3rd 196

Continued, P. 27

U

- 26 -

I

1983, hinting that defendant mustsubmit affidavit or testify that hewas not present to render priorinvalid.

The’ determination of the constitutional adequacy of advice andwaiver of rights must be madeentirely on the face of the court’srecord docket sheet, transcript, ortape recording of proceedings. The

rosecution may not offer evidenceoutside the record such as testimonyof judge to show court’s habit andpractice

to prove a valid wavier; aninadequate record of waiver creates aconclusive presumption of invalidityof the plea. Youkhanna V. MunicipalCourt, 86 Cal.App.3rd 612 1978. Onepossible exception to this ruleoccurs where the defendant was represented by counsel, as there is atrend to presume that counsel advisedthe defendant of collateral rightsand elements of and defenses tocrime. See Marshall v.Lonberger, 459U.S. , 103 SCt. 843, 853, 74L.Ed.2d 646 1982. The presumptionis rebuttable, and may be overcome by

the

testimony of the defendant, resulting in invalid prior due toineffective assistance of counsel.

Peoplev.Bowen, 22 Cal.App.3rd 2671974.

The presumption that an attorney hasadvised the defendant of rights also

.does not apply where the attorney isentering a plea of guilty for the

defendant in the defendant’s absence.Such a plea is invalid unless accompanied by a signed, written wavier ofrights by the defendant, Mills v.

MunicipalCourt, supra, Statev.Pfeifer, 544 S.W.2d 317 Mo.App.1976.

V. DRAETING AND PRESENTING THE MOTION

If the defendant has been givennotice of the Commonwealth’s intentto rely on prior convictions toenhance punishment, defense counselshould file a written motion tostrike the prior convictions. Themotion should be filed under thecaption of the new charge not in theprior case, since it does not attackthe validity of whatever sentence wasimposed in the first charge, but onlyits subsequent use to enhance in thenew proceeding. A favorable rulingwill exclude admission of the priorfrom the trial t the new charge, butdoes not reverse or vacate the priorconviction itself. People v.Hernan-dez and State v.Smith, both supra.

The motion should make specificreference to the Sixth and FourteenthAmendments as authority in order topreserve the issue for appellate andcollateral review. Citing Boykin andBaldasar in the body of the motionputs the court on notice of thedoctrine on which .you will rely. Themotion should specifically allegethat the defendant was notrepresented by counsel in the priorproceedings, and did not knowingly orintelligently waive the right to berepresented by counsel. If thedefendant was indigent at the time ofthe prior conviction, that should bestated as a separate ground alongwith the failure of the court toadvise the defendant of the right toappointed counsel. Where the record,of the prior does not comply withBoykin, a separate ground shouldstate that the prior pleas of guilty

Continued, P. 28

- 27 -

Reprinted with Permission

were not knowing and voluntary andthat the records failed to reflectthat the court advised the defendantof and inquired concerning waiver ofthe Boykin rights.

A certified copy of the docket sheetreflecting the prior convictionsshould be appended as an exhibit tothe motion. This is the first step inmaking a record for review of thisissue. Counsel should also listen tothe actual tape recording of theprior proceedings available from thedistrict court clerk. Where thedocket sheet recites an adequatewaiver of right to counsel and otherBoykin rights, but the actual taperecording does not indicate that thistook place, the transcript or taperecording is considered the bestevidence, and the defendant isentitled to strike the prior. State

v.Cichirillo, supra.

The Sizemore case from Kentucky wasremanded to the federal districtcourt to enable the Commonwealth tosubmit the tape recording of theprior convictions to establish theirvalidity. Although that practice ismost consistent with the Commonwealth’s burden to prove a knowingand intelligent waiver, Californiacourts have held that where thewritten record reflects that atranscript or tape recording ofproceedings is available and thedefense fails to produce it athearing on the motion, the motion tostrike the prior may be denied.

Peoplev.Zavala, 147 Cal.App.3rd 42991983, seealso State v.Leis, 648P.2d 1345 Ore.App. 1982. Counselshould therefore subpoena the actualtape recording from the districtcourt clerk, who will either produceit or testify that it is n longer inexistence in which case the matterwill have to be decided solely fromthe written record.

Some Kentucky authority suggests thatwhether a defendant was represented

TOPPIX

- 2S

"I ,nads a Is$ts booboo ysstsrday. Iforgot if it was innocncs or guiltthat

thsr.s supoosad tohs * prasumptian of."

Reprinted with Permission

by counsel at a prior conviction mustbe put in issue by testimony of thedefendant. Phillips v.Commonwealth,559 S.W.2d 724 Ky. 1977. Althoughthis rule is constitutionally suspect, counsel would be wise to havethe written motion verified underoath by the defendant or offer thedefendant’s testimony at the hearing.

VI. CONCLUSION

SB 20 has limited the prosecutor’sdiscretion to amend DUI charges,andabolished the court’s discretion tosuspend sentences for repeat of fenders. Striking the prior convictionon the foregoing grounds is the onlysure way to avoid mandatory jailtimefor second offenders. The attorneywho preserves a client’s liberty hasdone his or her job well.

The brief that persuaded the UnitedStates Supreme Court in Scottv.Illinois, supra, that defendants arenot entitled to appointed counselunless jail time actually resultsconceded that uncounselled riorswould not be admissible to enhance."When prosecuting an offense theprosecutor knows that by not requesting that counsel be appointedfor the defendant, he will be precluded from enhancing subsequentoffenses.", footnote to Baldasar, 100S.Ct. at 1587. Competent defensecounsel must now make the prosecutionabide by the five year old promise.

JAY BARRETT

- 28 -

LET’SGET PHYSICAL, SERIOUSLY

I * SERIOUS PHYS 1CM. INJURY

Serious physical injury is anessential element in both first andsecond degree assault. See KRS 508.010la, b; 508.020la, c. Serious physical injury is defined in KRS500.08015:

"Serious physical injury" meansphysical injury which creates asubstantial risk of death, orwhich causes serious and prolonged disfigurement, prolongedimpairment of health, or prolonged loss or impairment of thefunction of any bodily organ.

Because a finding of insufficientevidence of serious physical injurycould mean a reduction of the chargesfrom a Class B felony first degreeto a Class C felony second degree oneven a Class A misdemeanor fourth

I degree thorough litigation and de- termination of whether there are suf

ficient facts to support an instruction including serious physicalinjury is essential and potentiallyquite profitable for the defendant.

The problem is that many injuries thatappear serious from a "common experience" standpoint are not reallyserious under the legal definition inthe statute, and vice versa. But theevidence presented by the Commonwealthmust conform to the legal requirements. In Prince v. Commonwealth, Ky.App., 576 S.W.2d 244, 246 1979, theCourt of Appeals of Kentuckyexplained:

We are not prepared to hold’ thatmedical proof is an absoluterequisite to prove serious physical injury, but do coneludethat KRS 500.08015 sets afairly strict level of proofwhich must be met by sufficientevidence of injury, medical and/or non-medical, taken as a

whole, before an instruction onfirst degree assault maybegiven. .

II. LUTRELL

The leading Kentucky case is Luttrellv. Commonwealth, Ky., 554 S.W.2d 751977. In that case, a suspect shot apolice officer in the chest with a .38caliber revolver filled with birdshot. The officer was hospitalized forfive days and missed six weeks of workwhile recuperating. The Supreme Courtof Kentucky held that this wasinsufficient evidence on which to givea first degree assault instructionbecause "while Officer Phillipssuffered from his wounds he was notseriously injured in the statutorysense." Id. at 79.

III. OTHERCASES

Although there is a paucity of otherpublished cases which speakly directlyto this issue, two cases shed somelight on what Kentucky courts considerto be serious physical injury. InCheeks v. Commonwealth, Ky.App.,S W.2d decided May 11, 1984,disc. review pending, a defendant wasconvicted of the second degree assaultof his sister-in-law’s five-month oldson after the baby received seconddegree burns on most of his abdomenand left hand from an aluminum

Continued, P. 30

KATHLEEN KALLAHER

- 29 -

skillet. While reversing on anotherissue, the Court of Appeals statedthat "a serious question could beraised as to whether or not the burnsactually suffered by the child were aserious, physical injury within themeaning of K.R.S. 508.020lc." Thecourt did not reach the issue becauseit was not raised in the brief. KRS508.020].c.

In Commonwealth v. Hammond, Ky.App.,633 S.W.2d 73 1982, the Court ofAppeals held that a trial court shouldhave given a tendered Commonwealthinstruction for second degree assaultwhich included the theory that thedefendant intentionally shot thevictim, causing as nonserious physicalinjury. The victim had been shot inthe abdomen near the spine with a .38caliber gun and evidence, medical andotherwise, was presented that showedhe underwent several operations andwas unable to walk without crutches.Id. at 74. The court’s decisionimplies that this evidence wouldsuport a jury verdict based on afinding that the injury was not aserious one.

IV. OTHERJURISDICTIONS

Several cases from other jurisdictionswhose statutes are similar toKentucky’s may be helpful in persuading the trial court that there isinsufficient evidence to give an instruction which includes seriousphysidal injury as an element.

The Court of Appeals of Oregon hasproduced two such cases. In State v.Dazhan, Or.App., 516 P.2d 92 1973,evidence showed the victim who hadbeen beaten suffered a cut under theright eye, resulting in a permanentscar, a cut under the right eyebrow, asevere black eye, a crack’ed nose andbruises on his chest. He could notsee out of his swollen eye for alittle over a week, but there was nopermanent impairment of his sight.The court held these injuries were not

serious as defined by the Oregonstatute which is virtually identicalbto Kentucky’s.

In State v. Moyer, Or.App., 587 P.2d1054 1978 a trial court found, basedon medical testimony, that a knifewound, requiring surgery, had notdamged any vital organs and thus hadnot created a substantial risk ofdeath. The Court of Appeals of Oregonthen held that the resulting one and aquarter inch scar located to the leftof the sternum, and the surgery scar,beginning four inches below the neckand extending down six to seveninches, did not constitute a seriousand protracted disfigurement. TheCourt noted that the scars were"located.., in an area normallycovered by clothing." Id. at 1056.

Dazhan and Moyer are interesting and* important because they deal withscars.

In both cases, such scars, either

because they are small, as in Dazhan,

or hidden by clothing, as in Moyer,

did not fulfill the element of "ser

ious and prolonged disfigurement" in

the statutory definition. So even some

permanent injuries still do not

qualify as serious physical ones underthe statute.

In Bolden v. Commonwealth, Ark., 593

S.W.2d 156 1980, the Supreme Court

of Arkansas held that a defendant had

not inflicted "life endangering" injuries when he beat an officer on the

head and chest, causing him to suffer

a broken jaw and broken ribs. Thecourt reversed his conviction for

first-degree battery.

Continued, P. 31

State V. Rossier, Conn., 397 A.2d 110

978 is an interesting case in that

it dealt with medical evidence of

injuries consisting of contusions, a

sprained ankle, and. an emotionalpost-trauma reaction of the victim to

- 30 -

beating he suffered. The courtreversed the first degree assaultconviction, holding that such evidencewas insufficient to support a findingthat the physical injury was serious.It could be argued that this casemeans that adverse physical affects onone’s health, caused by emotional ormental reactions to a sustainedinjury, cannot be considered seriousphysical injuries, at least withoutvery strong medical proof.

V. SUBSTANTIAL RISK OFDEATH

This leads to consideration of anotherelement of the statutory definition-that the injury must create a substantial risk of death. Usually, medical evidence is necessary to suffi-ciently establish this element. However, often the physician will say notthat the particular injury in question‘ created a substantial risk of death,but that the type of injury is generally life-threatening That testimony

does not fulfill the requirements ofthe statutes. Also, the "quantum ofrisk involved is to be determined as

* of the time of the act, not at somepoint later in time." People v.Martinez, Cob., 540 P.2d 1091, 10931975. Thus, the timing, extent, andexistence of any substantial risk ofdeath must relate to the specificinjury involved when it was inflicted.

VI. PRESERVATION

A short discussion about preservingthis issue for appellant review may beuseful at this point. It is well knownthat to preserve an issue concerningsufficiency of the evidence, a motionfor a’ directed verdict of acquittalmust be made at the close of thecommonwealth’s case-in-chief, at theclose of the defense case, and at theclose of any rebuttal evidene. SeeKimbrough v. Commonwealth, Ky , 550S.W.2d 525 1977. However, this doesnot preserve the issue if there is

insufficient evidence to support theprincipal offense but there is

sufficient evidence to support alesser included offense. See Campbellv. Commonwealth, Ky., 569 S.W.2d 5281978. In that case, specific objections to the instructions, as well asdirected verdict motions, must bemade. See Qeen v. Commonwealth, Ky..,551 S.W.2d 239 1977. This is corn-

plicat?d by the fact that a defendanttried for first degree assaultgenerally wants a charge on seconddegree assault but that lesserincluded also includes a theory basedon serious physical injury. Thus,trial counsel must object not only tothe first degree assault instructionbecause of insufficient evidence toshow serious physical injury but alsoto any second degree instruction which

includes serious physical injury as anelement.

VII. IMPORTANCE OFISSUE

In closing, it must be reemphasized

how important it is to litigate this

issue in an assault case within thestatutory definition of serious physical injury even when the victim has

injuries that, to the ordinary person,

would appear serious. A recent casefrom the Court of * Appeals aptlyillustrates this principle. In DrakeV. Commonwealth, Ky.App., decided

June 29, 1984 decision not to be

published, the Court of Appeals

reversed a first degree assault

Continued, P. 32

- 31

conviction because there was insufficient evidence of serious physicalinjury. The court pointed out that thevictim suffered "multiple lacerationsto the chest, arms, and abdomen, possibly involving the right kidney."She spent five days in the hospitaland convalesced at home after that.She had no permanent effects from herwounds, except for various scars.

What the court did not mention in itsopinion was the evidence that thevictim was injured when stabbed twicein the arm with an icepick, the tip ofwhich broke off in her arm, and thenwas stabbed repeatedly with a butcherknife! Gruesome facts indeed, yet,citing Prince, supra, the court stillfound that the evidence presented,which consisted of only the victim’stestimony and hospital records, wasinsufficient under the statute to showa serious physical injury. Thus,success in winning a directed verdictmotion depends not on an absence of apainful or bloody injury to the victim, but whether the Commonwealth canprove that the wound 1 created asubstantial risk of death or 2caused serious and prolonged disfigurement, 3 prolonged impairment ofhealth, or 4 prolonged loss orimpairment of the function of anybodily organ.

Until one of these elements has beenproven beyond a reasonable doubt, nocriminal defendant can be convicted offirst or second degree assault under atheory which relies on serious

physical injury as an essential ebe-ment.

KATHLEEN KALLAHER

Special thanks to Bill Robinson!

* * * * **

Assistant Public Advocate, Mary jObermeyer, left the Somerset Officethe end of September, and has relocated in Florida. She is shown herewith Patrick McNally of our Hazard Office.

Our ReadersWrite...Dear Editor:

Presently a 1962 law 439.344 pre-vents prisoners from recieving creditfor the time served on parole unlessthey complete their parole satisfactorily.

If someone could have the court makea declaratory judgment that 532.100and 439.346 and 439.348 are controlling over 439.344, the -over

crowding would be greatly resolved,

the prisoners in jail could beaccepted, and time would be enhanced

to work out possible future solutions. The questions now is HOW &WHEN?.

Ed Wagner, Jr., 79259Kentucky State Reformatory

* * * * * *

J

MARY OBERI4EYER

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Kentucky Supreme Court Rule Changes

The following is a summary of theimportant rules changes announced bythe Supreme Court of Kentucky on June29, 1984 which relate to the practiceof criminal law:

The rules changes are to be effective on January 1, 1985, unlessotherwise noted:

CIVILRULES

1. CR 72.10 Statement of Appealfrom District Court

A new Paragraph f is added to therule which requires the Statement ofAppeal in a criminal case appealedfrom the District Court to CircuitCourt to be served upon both theCounty Attorney and the CommonwealthAttorney.

I’2. CR 73.022

The amendment to this Paragraph of CR73.02 relates to failure of a party

to file a timely Notice of Appeal or

failure of a party to file a timelyNotice of Cross-Appeal. Under theamendment the failure to file thoseNotices of Appeal and Cross-Appeal

may result in the dismissal of the

appeal, striking of pleadings,briefs, record or portions thereof,imposition of fines on Counsel forfailing to comply with the rules ofnot less than Two Hundred Fifty

Dollars $250.00 nor more than Five

Hundred Dollars $500.00 and suchfurther remedies as are specified inthe applicable rules.

It appears for the first time theCourt is beginning to impose

sanctions upon counsel who fail tofile timely Notices of Appal onbehalf of their clients rather thanautomatically dismissing the appeals.

3. CR 73.024

This is a new Paragraph. of CR 73.02which provides that if an AppellateCourt determines an appeal to befrivolous then it may award justdamagesas well as up to double coststo the Appellee. In light of thefact that many of the appeals whichmany of you handle would be in formapauperis appeals it would appearunlikely that the Court would takethe drastic step* of awarding damagesand double costs to the Commonwealthfor a determination of a frivolousappeal. It should be noted howeverthat this rule would in alllikelihood apply in those cases inwhich the appeal was not being takeninforma pauperis.

The Court goes on to note in the rule

that an appeal is frivolous if it is

found that the appeal is "so totallylacking in merit that it appears to

have been taken in bad faith."

4. CR 73.03 Notice of Appeal

The Court has divided CR 73.03 into

two numbered paragraphs which are

essentially the same as the old CR73.03. There is one addition toParagraph 1 which now requires the

party or attorney filing a Notice of

Appeal to certify that a copy of theNotice has been served upon all op-

Continued, P. 34

t

BILL AYER

- 33 -

posing counsel or if a party is not

represented by an attorney, then itmust be served upon the party at his

last known address. The new addition

to the rule requires the certificateto indicate that the Notice wasserved prior to filing of the Noticewith the Clerk of the Court.

5. CR 73.08 Certification of Record

on Appeal

The change in this rule is thatfollowing the initial sixty 60 day

period for the certification of a

record on appeal after filing of the

Notice of Appeal, any further ex

tensions must be requested from the

Appellate Court. As you will recall,

the previous rule permitted the Trial

Court to grant one, sixty day

extension, however, under the amended

rule the Trial Court can grant no

extensions of time for certificationof the record on appeal and anyextensions must be requested from the

Appellate Court. The rule is specific

in noting that the Motion forExtension must be made before theexpiration of the original period of

time.

6. CR 76.124civForm and Content of’ Briefs-Argument:

This Subsection iv has been amendedto require a statement at thebeginning of each Argument showingwhether the issue raised by theAgument has been properly preservedfor review and if it has been

properly preserved for review inwhat manner the preservation has

taken place. The amendment requiresthat the statement refer to the

portion of the record which indicates whether or not the issue has

been properly preserved.

7. CR 76.202 aTime for Motion for Discretionary Review

A new sentence has been added to

Subsection a which makes it clearthat the failure of a party to filea

timely Motion for DiscretionaryReview shall result in the dismissalj

of the Motion for Discretionary Re

view. While I am sure that we all

assumed that such was the case, in

fact, there was no provision in the

previous rule which ‘ specified the

penalty for failure to file a timely

Motion for Discretionary Review.

8. CR 76.284 aPublication of Opinions

This’ Subsection is an amendment to

the existing rule relating to the

publication of opinions when a Motion

for Discretionary Review has been

filed with the Supreme Court. Under

this new amendment, any time a Motion

for Discretionary Review is filed

with the Supreme Court, then the

opinion of the Court of Appeals in

the case which is under review will

not be published unless the Supreme

Court so orders. Previously the rule

provided that the opinion of the

Court of Appeals would not be

Continued, P. 35

SUPREME COURT OF KENTUCKY

IN RE:

ORDER AMENDING

RULES OF THE SUPREME COURT SCR,

RULES OF CIVIL PROCEDURE CR

RULES OF CRI1INAL PROCEDURE RCr, andADMINISTRATIVE PROCEDURES OF THE

COURT OF JUSTICE AP

8Lf-2

This Includes the new

Mandatory Continuing Legal Education RuleSCR 3,665 et seg,

- 34 -

published unless ordered by theSupreme Court only in those cases inwhich the Motion for DiscretionaryReview is granted. It appears nowthat in any case in which the Courtof Appeals has directed that itsopinion be published and the opposing party files a Motion forDiscretionary Review, that opinionwill not be published unless soordered by the Supreme Court ofKentucky, even if the MDR is notgranted.

9. CR 76.343 Motions - Number ofCopies

This amendmentrequires that five 5copies of all motions and responsesshall be filed in both the Court ofAppeals and the Supreme Court, unlessdirected otherwise by the appropriatecourt. Previously, in the SupremeCourt, only the original of a motionor response needed to be filed.

CR 76.361 and 2Original Proceedings inAppellant Court - Petition forRelief and Response

The amendment of Paragraphs 1 and2 merely includes a "real party ininterest" in those persons upon whomservice must be made of the petitionas well as notice of the filing ofthe petition by the clerk. The "realparty in interest" is defined in anew Subsection 8 which will bediscussed later.

11. CR 76.367hijand8Appeals to Supreme Court andReal Party in Interest

The amendment to Subparagraphh nowrequires briefs in response to anappeal or cross-appeal. Apparentlythere was some question as to whetherthey were required previously. Theamendment also requires that- in anycase where an appeal is taken against

* a judge and where that appealI concerns the performance of an

official act, the party appealing isrequired to serve notice on the "realparty in interest" who is thenrequired to file a brief on behalf ofthe judge against whom the appeal orcross-appeal is taken. The amendmentalso points out that no attorney isrequired or permitted to file such abrief where his doing so would be aconflitct of interest of that of hisclient.

Subparagraph Ci now specifies thenumber of copies of briefs to befiled on original action appeals.That number is ten 10 and thebriefs do not need to be printed.

Subparagraph j is merely a relettering of subparagraph Ci as itexisted previously.

Paragraph 8 is one paragraph whichdefines the term "real party in interest." That term is defined as "anyparty in the Circuit Court actionfrom which theoriginal action ariseswho may be adversely affected by therelief sought pursuant to this rule."Obviously ma criminal case in whichthere is a Petition for Writ ofProhibition or Petition for Writ ofMandamus filed against a circuitjudge it is ‘ likely that theCommonwealth Attorney or AttorneyGeneral will be a real party ininterest and therefore those of youfiling original actions must beprepared to serve the Commonwealth’sAttorney or Attorney General. inaccordance with the requirementsstated previously.

12. CR 76.375 and 6Certification of Question ofLaw; Costs of Certification andBriefs and Argument:

Paragraphs 5 and 6 have both beenamended to establish that briefingtime on certification of questions oflaw is now thirty 30 days rather

Continued, P. 36

10.

I

/

- 35 -

than sixty 60 days as it was in theprevious rule.

13. CR 76.3710 Certification ofLaw by the Commonwealth

This amendment clarifies the mannerin which the Commonwealth initiatesthe certification procedure. Underthis amendment the Commonwealth shallfile a motion in the Supreme Courtrequesting that the Court accept thequestions for review. The motion isrequired to contain the same elementsas provided in Paragraph 3 of thisrule for a certification order. Themotion is required to be served and aresponse is permitted in conformitywith the other rules. If the motionis sustained then thereafter the caseshall proceed in the same manner asany other appeal.

14. CR 76.402 Timely Filing

The amendment to this rule removesthe permission to use "certifiedmail, return receipt requested" andin place thereof allows the use of"express mail" or "mail by otherrecognized mail carriers." Thus, onecan no longer use "certified mail,return receipt requested" for thepurposes of being considered safeunder the timely filing rule. However, it does appear that one can nowuse United States Postal Service"express mail" as well as UnitedParcel Service or other suchrecognized carriers provided thedocument has been placed with the

United States Postal Service or theother carrier within the time allowedfor filing.

15. CR 76.44a Stay Pending Reviewby United States SupremeCourt

The amendment here indicates thatstays pending review by the UnitedStates Supreme Court shall be grantedin those cases involving a sentenceof death. Obviously all of theprocedural requirements must be

followed under the rules of theUnited States Supreme Court in order -‘

to obtain the automatic stay. Theprevious rule did not automaticallyrequire a stay in death penaltycases.

16. RCr 4.08b

This amendment provides that anyinformation furnished by a defendantto the pretrial release officer andrecorded on the pretrial releaseofficer’s completed interview formshall be furnished to law enforcement officials upon request if thedefendant fails to appear in Courtwhen he is required to do so. Theprevious rule only required therelease of information concerning thedefendant’s last known address.

17. RCr 7.022345and6* Subpoenas

Paragraphs 2,3,4,5 and 6 of

this rule have been redesignated asParagraphs 3,4,5,6 and 7. Anew Paragraph 2 has been added andParagraph 6 which is now Paragraph

7 has been amended.

Paragraph 2 provides that subpoenas which are to be served upon

unmarried infants are to be servedupon the resident guardian of the

unmarried infant. If there is no

resident guardian known to the party

requesting the subpoena, then service shall be by serving either the

mother or father of the unmarriedinfant within the state. If there isno mother or father within the stateservice shall be had by serving theperson within this state havingcontrol of the infant and it shallcommand that person to attend the

proceedings with the infant for thepurpose of giving testimony.

The amended Paragraph 7 providesthat the appearance of the unmarried

Continued, P. 37

- 36 -

-infant, specified in a subpoena,shall be deemed compliance by theperson who was served on behalf ofthe infant. Thus, if the unmarriedinfant appears as a witness as required by the subpoena then there canbe no contempt proceeding against theperson who received the service forthe unmarried infant even if he theperson receiving service fails toappear.

18. RCr 7.061Indispensable Witness

The amendmentto this Paragraph makesit clear that there must be an orderissued by the Court to a peaceofficer to bring the indispensablewitness before the court after whicha hearing is to beheld "without unreasonable delay." While one wouldassume that such was the intent ofthe previous rule, it was not specified and thus this amendmentclarifies that point.

" 19. RCr 7.14 Notice of TakingDepositions

The Court has divided this rule intotwo 2 numbered paragraphs. Paragraph 1 is essentially the same asthe first sentence of the old rulewith the addition of a second sentence which specifies that in theabsence of good cause shown notice ofless than seventy-two 72 hoursshall not be deemed as a reasonabletime for notice.

Paragraph 2 is exactly the same asthe second and third sentences of theold rule with no additions.

20. RCr 8.08 Pleas

This is merely an amendment torecognize the plea of "guity butmentally ill."

21. RCr 8.10 Withdrawal of Plea

Once again this amendment merelyrecognizes that the defendant maywithdraw a plea of guilty or guiltybut mentally ill.

22. RCr 8.12 Pleadings

Again, the amendment merely incorporates the plea of guilty butmentally ill as one of the pleadingsin a criminal proceeding.

23. RCr 8.32 Transfer from theCircuit or District for Plea ‘andSentence

This is a new rule which has beenadded by the Supreme Court. Itconsists of three 3 paragraphs. Itprovides that a defendant who isbeing held in a county of a circuitor a district other than that inwhich an indictment or information ispending against him may waive trialin the county of the circuit ordistrict in which the indictment orinformation is pending and consentto disposition of the case in thecounty in which he is being held. Theconsent and request must be done inwriting and is subject to approval ofthe Commonwealth’s Attorney for eachof the counties when the matterinvolves a Circuit Court action orthe approval of the County Attorneyfor each of the counties when thematter is in the District Court.

There is a procedure set up for theclerk of the court to transmit thepapers from the original county tothe new county. The rule alsoprovides the same type of procedurewhere only a complaint is pending andthere is no indictment at that time.

Continued, P. 38

- 37 -

Paragraph 3 of the rule providesthat after the action has beentransferred pursuant to Paragraphs1 or 2 should the defendant thenenter a plea of not guilty then theclerk is to return the papers to theoriginal court and the matter is tobe restored to the docket at thatcourt.

24. RCr 9.541 and 2Instructions

The amendment to Paragraph 1 makesit clear the requirement that instructions be in writing and be readto the jury may not be waived exceptby agreement of both the defense andthe prosecution.

The amendment to Paragraph 2 setsout that any party may tender instructions and further requires thatif a party is going to assign aserror the giving or failure to givean instruction he must make "specific" objection to the giving orfailure to give of an instruction.

25. RCr 11.425

The amendment to this rule requiresthat in order for an individual toreceive the assistance of counsel

under RCr 11 .42, he must make specific written request for the appointment of counsel. The previousrule did not require specific writtenrequest for counsel.

26. Administrative Procedure,Section 2

VI,

The amendment to Paragraph 1 makesit mandatory that the Trial Judgeassume control of all shorthand notesand other materials used in thepreparation of a record of a civil orcriminal proceeding when the CourtReporter is terminated fromemployment or becomes incapacitateddue to illness or failure to prepareand deliver the transcript. In thepast, the assumption of those records

by the Trial Court was merelypermissive and not mandated.

The amendment to Paragraph 2attempts to define the term "exhibits" as used in this administrativeprocedure. Specifically, exhibitsdoes not include property which wasalleged or suspected to be the pro-ceds of a crime or used tofadilitate the commission of a crimeor those items which are subject toconfiscation or forfeiture under theKentucky Revised Statutes. The ruledirects attention to KRS 67.592,67.594 and 95.845.

WILLIAM C. AYER, JR.

Bill Ayer served with DPA for morethan 10 years, and was Deputy formany years. He left the office onJanuary 1, 1983 to enter privatepractice in Frankfort. Prior toworking for DPA, Bill served asAssistant Director of the KBA.

Assistant Public Advocates, ChrisBurke and Denise Regan, resigned fromtheir positions effective August 15,1984. They now reside in Arlington,Massachusetts. They are shown herewith Patrick McNally of our HazardOffice, and John Halstead of our Officein Somerset.

i

* * * * * *

- 38 -

PAROLE BOARDCHAZR14ANSPEAKS

Harry Rothgerber, Jr., has been amember of the Kentucky Parole Boardsince 1979, and has been its chairperson since 1982. He is the formerchief of the juvenile division of theJefferson County public defenderoffice. He addressed the Kentuckypublic advocates at our May, 1984seminar. In a series of articles hiscomments, in a condensed and editedversion, will be set out. Below isthe first article.

It is my pleasure to be here. I’m nothere to talk about philosophies ortheories. I am up here to tell youabout some practical ramificationsof our parole practices and ourparole policies and regulations.

One of the most embarrassing thingsI could say was that, as a public

defender, my knowledge of the parolesystem was just about limited to thefour corners of the parole scheduleand that was it. I knew nothing atall about sentencing calculationswhich the Corrections Cabinet isresponsible for. And it’s to mydiscredit that I have to say butonce I get back in private practiceagain, or public defense work, Iwill certainly be better and moreadequately prepared to represent myclients fully in all phases ofcriminal proceedings because of myknowledge of the parole system.

I. PAROLE DISCUSSIONSWITH A DEFENDANT

To begin with, when discussing pleaswith your clients, don’t make anypromises to them. Don’t make anything that comes near a promise tothem. Don’t intimate any’ action atall by the Board. We hear thisconstantly. We’ve seen suits. Wehave seen actions brought to the Bar

Association because of, and we’veseen 11.42’s brought on the basis

that promises were made at pleabargaining stage regarding parole.Be up front with your client, tellthem "no promises" - send them aletter after the plea. In it, put"no promises" regarding parole canbe made. Protect yourself.

Discuss with them, if you wish, thepositive and negative factors thatare involved in their case. If theywant to know if they’re going tomake parole or not, you can’t tellthem. But you can tell them that thenegative factors are these. You’vecommitted a serious crime. You’vegotten a 20-year sentence forassault I. You have 3 prior incar-cerations and a half dozen differentfelony convictions. Those are allnegative factors. Tell them that apositive factor would be if theywent to the institution and didwell. Discuss it in terms of positive and negative factors, if youwish.

II. PAROLE THE FIRST TIME UP

They are going to want to know ifthey are going to make parole thefirst time up. For fiscal year 1982-83, exactly 52.8 percent of thepersons who came up the first timefor parole made it. For this fiscalyear, although I don’t have exactstats, the number will be substantially less the first time up.

Continued, P. 40

HARRY ROTHGERBER, JR.

- 39 -

Your client has less than a 50percent chance at this point ofbeing recommended for parole thefirst time up. To suggest to themotherwise is to me quite unethical.

III. PSI

Let me go to some other areas: thePSI, tie Presentence Investigation,is the main body of information onwhich the Board relies in gettinginformation on the crime, the crimestory, the defendant’s story of thecrime, the defendant’s backgroundand any other factors which thecourt might consider when decidingwhether or not to probate yourclient. Make sure the crime storyand the other pertinent facts in thePSI are correct. Make sure theyaccurately reflect what happened sothat the Board has good informationbefore it in making its decision.

If you see inaccuracies, try tocorrect them before the sentencingcourt. If the sentencing judge won’tcorrect what you perceive as inaccuracies, then send the Board aletter simply stating that "I disagree with the PSI in these areas."And be specific.

IV. SPECIAL REPORTTO THE BOARD

Many of you may not be aware of thefact that at the time of sentencing,the probation and parole officerwill also prepare a special reportto the Parole Board, in addition tothe PSI. Now this special report tothe Parole Board is not available toyou, but it relates the attitudes ofthe sentencing judge, the commonwealth attorney and any other publicofficials in that county or districtwho may wish to rende.r opinionsabout parole for your client.Sometimes community attitudes, thatis attitudes from the employer orneighbor of your client, may be inthis special report also.

I have seen some situations in whicha defense counsel has plea bargainedfor a statement, a positive statement, by an assistant commonwealthattorney on behalf of the defendantin this special report to the ParoleBoard. Not that the Board is goingto be bound by it and not that we’renot going to give it any more weightthab ordinary. I just relate thatbecause you may not be aware thatthere is such an animal. And it maybe worthwhile information to you inthe future. It’s entitled "SpecialReport to the Parole Board" and ifyou want more detailed informationon it I would suggest you talk tosomebody in your local paroleoffice.

V. DEFENDANT’SSTATEMENT IN PSI

If’ I were you, I would prepare yourclient to make some type ofstatement for the preparationof thePSI. As you know, there is a spacethere for the defendant’s version.There may be reasons that you can’tlet your client make that statementbecause of appeal or other problemsthat might be raised in the case,and obviously that is your decisionto make. But if your client has pledguilty, I would suggest that itmight be to his or her benefit tomake such a statement and to make atruthful statement.

VI. REQUESTS FORMINIMUM SECURITY PLACEMENT

In the case of a first time orminimal offender, it might be toyour client’s benefit to send aletter to the Corrections Cabinetrequesting some type of minimumsecurity institutional placement bemade. Again, no promises can be madebut if there are verifiable reasonsand you think your client would be agood risk in a minimum security

Continued, P. 41

- 40 -

*- situation, it doesn’t hurt to point1 that out to the officials in the

Corrections Cabinet.

VII. EARLY PAROLE

Let me say a few words about earlyparole consideration. Not long ago,in December, I stood in this verysame room and addressed the statewide conference of the CommonwealthAttorneys Association. And I wouldsay that fully half of them did notunderstand what early parole was.By "early parole" I do not meanparole the first time up. Earlyparole is exactly what it means:parole earlier than our regulareligibility schedule.

You know that as of December 3,1980, the Board greatly simplifiedits parole eligibility schedule.Basically now, for all sentences,ranging from 2 to 39 years, yourclient is eligible after 20 percent

.of service of time for an initial/parole hearing.

However, the Board’s regulationsallow it to go outside that schedule. In fact, the regulationsstate that upon majority vote of theBoard, whenever it deems advisable

to do so, which is about as broad alanguage as you can get, the Boardcan see any inmate at any time.Theoretically then, a person on alife sentence could be seen, if amajority of the Board wanted to,upon his first day in theinstitution, and could be paroled atthat time. That is what I mean byearly parole consideration.

This is a possibility. But it’s nota very likely possibility. I pointthis out to you in case you have agood case which you think,, wouldmerit it in the future. The Boardreceives literally hundreds ofrequests for early parole consideration each week.

In fiscal year 1982-83, the Boardgranted 31 of these requests andgave early parole, actually, to 27people. So far, in fiscal year1983-84, the Board has granted 5early parole requests. As I said,it’s a possibility but not a verylikely one.

There re 5 members of the Board andevery member has his or her ownopinion about voting on early parolecases and the most positive factorsthat can be considered in thosecases. So I can’t tell you what

specific items you need in each andevery early parole request. Tostart off with though, it would helpif you had a recommendation from the

sentencing judge and the commonwealth attorney. Lots of luck!...

You would be surprised how manyrequests we do receive from such

officials though. Again, we don’t

even bind ourselves to honor their

requests. We consider them like any

other request.

Furthermore, when an early parole

request has been denied, it is a

policy of the Board not to consideranother such request for at least 12

months.

VIII. RECONSIDERATION OF DEFERMENTS

When a client of yours receives a

deferment, which is known in common

parlance, as a setback or a flop, or

when that person receives a serve-

out, it is also common for them to

request reconsideration of that

decision by the Board.

In order to cur5 the tremendous

number of such requests that come

in, the Board has also made it a

policy not to reconsider such

deferments or serve-outs within 12

months of those decisions. So if you

have that piece of information

Continued, P. 42

I-’

r

- 41 -

there, if a convicted former clientof yours would ever ask, he or shecan’t do anything within 12 monthsafter getting that decision.

IX. INFO TO THE BOARD

Many of you have compiled the usualletters on behalf of a client’smotion for probation or shockprobation. These letters wouldinclude letters from employers, pastemployers, from clergy persons,family and friends, and anybody whohas a good word to say about yourclient. I would suggest that you

might want to also send that packetof information to the Board in thelikelihood that your client isn’tprobated or shocked, or make copiesof that information and send those

copies for inclusion in yourclient’s file. It can’t hurt. DaveNorat is back there, saying "I know

it can’t help." Audience, it can’thurt. Believe it or not, the Boarddoes consider each and every pieceof information before it either insupport of or in opposition to aninmate.

If you have mitigating factors thatyou want to bring to the Board’sattention, do so in the form of aletter. Counsel is not allowed toappear at the parole hearing itself.

That’s a closed hearing, only theinmate, the board members and the

Boarc’s staff are allowed to be

present. Not even institutionalstaff are allowed to be present andthe Board has no intention ofopening this hearing up into anadversary proceeding. Choose your

words carefully, briefly, concisely;put it in a letter. It will be read.Your letter will be answered and allthe board members will consider itat the time the decision" is made.

X. RAMIFICATIONS OF CONVICTION FOR ACRIME INVOLVING A FIREARM WHILE ON

PAROLE FROM A LIKE CONVICTION

There is something else that you,should consider in plea bargaining.jThe Board has taken, last year, avery harsh attitude toward the useor the repeated use of firearms incrimes. The Board has made it apolicy that when a person has beenparoled on a crime involving the useof a firearm, that if that person isreturned with a new conviction forany crime involving the use of afirearm, that person will receiveeither a serve-out or an extremely

long deferment. And by extremelylong deferment, I am not talking

about 12 months, I am talking about

years.

If you’ve been following some of the

Board’s decision, you can see what Imean. The 60, 72, 84, or 96 month

deferments are not at all uncommon

these days.

I think that’s a piece of vital

information that you need to know in

advising your client whether to

out or not. Of course, your client’sF’

going to blame you all the time

anyway if the wrong .. .when your

client appears before us, I don’t

know whether you all are aware of

that but they are never guilty, it’s

always the plea bargain they got

from their public defender. Usually,

the key words are "well, I couldn’t

afford my own attorney, so I had to

get a public defender." We have a

lot of fun with that, with the other

board members knowing my past back

ground.

XI. MISCONCEPTIONS

Let me get to a list of mis

conceptions about the parole process

and the parole policies.

A. Release at First EligibilityDate

I’ve already pointed out the fact

that everybody thinks especiallyContinued, P. 43

- 42 -

the public the initial paroleY hearing date, which is usually cited

in the newspapers, is when theperson’s going to be released. I’vetried to dispell that. For fiscalyear 1982-83 approximately 53 percent were actually paroled the firsttime up, 39 percent were deferred,and 8 percent were served, out.That’s the total for all institutions.

B. Recidivism

There is a misconception that mostprison commitments consist of parolees who have new felonyconvictions. That’s certainly nottrue. The latest figures from Corrections Cabinet show that of thepersons who have been committed toprison during this fiscal yearexactly 9.1 percent were paroleeswho were returned with either newconcurrent or new consecutivesentences. So the persons coming to

prison for the most part are *not‘parolees who committed new felonies.

Also, for this current fiscal year,so far 19.4 percent of prisoncommitments are technical paroleviolators. That is persons who,while on parole, have failed toreport, have absconded, have pickedup a misdemeanor conviction or violated their parole in some manner

other than a new felony conviction.It’s really not the technical paroleviolators that bother me so much asit is the felony violators.

C. Parole Due to No Room

It’s a misconception that the Boardrecommends persons for parolebecause of over-population problemsand over-crowded problems. Pleasedon’t cite that as one f thereasons you think your client shouldbe paroled. The Board is only goingto recommend for parole when wethink ‘a person is no longer a threat

to society and is ready, willing andable to be a law-abiding citizen.

Again, that’s broad language butthat’s our statutory mandate andthat’s the only thing we can go by.The statute doesn’t say anythingabout the population problems. Weleave ,that to Secretary Wilson andthe Corections Cabinet to work out.I sympathize with them but I am notgoing to vote to set somebody looseif that person is going to go outand commit another crime.

D. Release Other Than Parole

It’s a misconception that every excon on the streets is a parolee. Aperson can be released from prisonthrough numerous methods besidesparole. You can be shocked, you canescape, you can be served-out; oh,believe me, we’ve gotten blamed forcrimes committed by escapees whileon escape. You can be furloughed.You can be released on a court orderor an appeal bond. Some persons inprison are still serving under theold maximum expiration law and couldbe released under maximum expiration of sentence. These are allways that an inmate could bereleased other than parole.

E. Parole onPFO Convictions

There is a misconception that theBoard paroles P.F.O.l’s prior to 10years. It is true that P.F.O.l’scan’t be released prior to 10 years.On numerous occasions, I see somefamiliar faces here in the audiencewho have called me right during pleabargaining with the commonwealthattorney and asked me about this.

P.F.O.l’s who receive a minimum 10-year sentence and who do nothing inprison to screw up their good timeor to lose their good time, will

Continued, P. 44

- 43 -

serve out after 7 1/2 years. Inmatesare entitled to 1/4th of theirsentence as good time. On a 10-yearsentence, you get 2 1/2 years’ goodtime. The P.F.O.1 laws do not erasethe right to get statutory goodtime.

Therefore, I will repeat it again:if your client gets a P.F.O. 1conviction, with a 10-year sentence,he will never meet the Board. Hewill serve out in 7 1/2 years.

That has nothing to do with Boardpolicy or Board procedure, it’s asimple matter of reconciling a fewstatutes. Again, many of the commonwealth attorneys blame us forthat, but we don’t have anything todo with it.

F. Early Parole

As I told you before, I mentioned.early parole, it’s a misconceptionthat we recommend many people forearly parole. And I think I’vealready given you the stat whichshould disprove that.

Another statistic which you shouldknow is that the Board held 4,409hearings last fiscal year. So, ofthose 4,409 hearings, 31 were earlyparole hearings which even makesthat 31 figure more miniscule.

G. Deferments of Technical ParoleViolators

The Jefferson County Grand Jury,among others, is of the opinion thatthe Board automatically defers alltechnical parole violators for 1month only. They cited this in about3 of their last 5 grand jury reportsand it’s to the point now where thisis information which is.being spreadaround among the defense bars. It issimply not true.

By regulation, the Board can deferas long as 96 months. We cananywhere from 1 to 96 months. Whenwe see persons at their finalparole revocation hearings, the same3 options are then available to usas they are in regular hearings.Persons can be recommended forparole reinstatement. They can beive a deferment or they can beserved out. There is no 1 month or 1year policy or practice by which theBoard goes.

H. Opinions from Citizens andDefense Bar

There is a misconception that theBoard does not respect or consideropinions from officials and citizens, and the defense bar. We appreciate those comments that youhave to make, that the citizenry hasto make. We welcome them; we wantyour comments, especially if youhave unique information to giveabout your client’s case.

I. Parole Eligibility onLife Sentence

I notice that some of you may befamiliar with the case at Olive Hillthat occurred within the last coupleof weeks where a person convicted ofa vehicular homicide received a lifesentence. It’s typical that I shouldhave read the article which appearedin the Lexington Herald-Leader’ aboutthat case. It quoted the commonwealth attorney as saying he thoughtthat a person would be eligible forparole after 6 years.

As of December 3, 1980, it was 8years. And this crime certainlyhappened after that and it seems tome that the commonwealth attorneydoes not know the parole regs. Itold them that. So, it’s not anything I am talking behind his backabout but if they should know them,you should know them.

}

‘.4.,

- 44

PROSECUTOR: Objection and move the1JoOII1II1efltCourt to admonish the jury.

JUDGE: You will not consider thestatement by [defense counsel] aboutsomebody being a liar. I want you toapologize to the Court.

Our version of Chuck Sevilla’s "GreatMoments in Courtroom History" con- DEFENE ATTORNEY: I will not apolo-tinues. Send your contributions to gize,the lady--The Advocate, c/o Department of Public Advocacy, Frankfort. All dialogue JUDGE: I am asking you to apologizeguaranteed verbatim from Kentucky to the Court for making that state-courtroom records or newspapers. ment.

* * * * * DEFENSE ATTORNEY: I apologize to theCourt and to the jury but not to her.

THE GARY JOHNSON SCHOOLOF DEFENSEADVOCACY JUDGE: Well---

Prosecutor cross-examining defense DEFENSE ATTORNEY: And not to [pros-attorney. ecutor] or [assistant prosecutor].

PROSECUTOR: You did what you did to PROSECUTOR: You don’t owe me any

represent the best interest of your apology.

client?ASSISTANT PROSECUTOR: I wouldn’t have

DEFENSE ATTORNEY: Yes, ma’am. your apology.

PROSECUTOR: Were you trying to weasle DEFENSE ATTORNEY: Thank you. No

out of anything? further questions.

DEFENSE ATTORNEY: I was trying to* * * * *

weasle him out of a criminal charge,yes, if it took weasling, yes. DOES THIS VIOLATE

THE SEQUESTRATION RULE?

PROSECUTOR: That was to the bestinterest of your client? PROSECUTOR during voir dire: Okay.

Now this case may last for two weeks

DEFENSE ATTORNEY: Well, yes. or it may last longer than that. Inview of this is there any undue

Epilogue: Welcome back, Gary! hardship that you would suffer whichwould make it impractical for you to

* * * * * serve on this Jury?

ADVOCACY IS NEVER JUROR: Can I keep my wife with me

HAVINGTO SAY YOU’RE SORRY . all the time? I don’t like to sleep

by myself.

DEFENSE ATTORNEY: And the star witness for the Commonwealth is this

* * * * *

trained liar that lied to you andtold you lies and changed that testimony today under oath? Continued, P. 46

- 45 -

At 3:50 p.m., the jury retired todeliberate a verdict. At 5:10 theyreturned to open Court and thefollowing was heard:

JUROR:Judge.

We can’t reach a decision,

JUDGE: Well, can you tell me how youstand in numbers? How many are forone thing and how many are forsomething else?

JUROR:innocent...

There was one guilty, one

* JUDGE: No, don’t tell me that. Howdo you stand in numbers?

JUROR: One, one and ten...

JUDGE: Can you answer the questionhow far you are in numbers? How manyare for one thing and how many arefor someting else? Don’t tell mewhat you’re for.

JUROR: Ten is for one thing.

JUDGE: Ten to two?

JURORS: Not really. Ten and one andone.

JUDGE: Well, if you’ve got ten forsomething you’re pretty close to averdict... I think I’ll send youback in. Go back in and try to makea verdict.

[Defense mistrial motion overruled,then granted. Jury recalled.]

JUDGE: I’ve been thinking about what[the foreman] said about it and itprobably wasn’t very fair for me tosend you back in. I told you not totell me how you stood, but you didtell me. I guess we can’t’ do it, sowe’ll have to get another jury to trythe case.

PUBLIC DEFENDER: Your Honor, I think[the prosecutor] and I would both

like to ask them how they did Standnow that they have been discharged. 3JUDGE: There’s nothing wrong withtelling now how you stood.

JUROR: One guilty, one not guiltyand ten undecided.

JUDG: Ten undecided? How in theworld?

JUROR: Ten felt like there wasn’tenough evidence, but that he wasguilty.

JUDGE: Well, if there wasn’t enoughevidence then he was innocent. If youdidn’t believe what the officerssaid, he’s innocent.

JUROR: But don’t all twelve have togo?

JUDGE: Yes, you all have to go.We’ll have to find another jury totry him. You may be excused. CourtC%is adjourned.

* * * * *

Thanks and a tip o’ the hat to Neal

Walker and Jay Barrett.

KEVIN MCNALLY

* * * * * *

Book Review"HOW CAN YOU DEFENDTHOSE PEOPLE?"The making of aCriminal Lawyer

by JamesS. Kunen

270 pp. New York: RandomHouse$15.95

Continued, P. 47

- 46 -

The role of the defense attorney isthe hardest role. in the criminaljustice system to explain. Defenseattorneys are very often having tojustify their work to the public,their friends and even their relatives. In How Can You Defend ThosePeople? James S. Kunen attempts toexplain why lawyer would want torepresent a person charged with acrime. Mr. Kunen worked as a staffattorney for a the District ofColumbia Public Defender Service fortwo and *a half years. During thattime he represented about 150alleged criminals.

In telling his story he provides areal sense of how the justice systemworks. The cases he described aretypical of what goes on in criminalcourt everyday. He records the factswith insight and conveys his feelings for the job. He lets the readerknow the enormous toll it takes andthe special satisfactions it brings.

In the criminal field trials are theexception. Most cases are settledthrough plea-bargaining -- the procedure by which both the prosecutorand the defense attorney can maintain their batting averages, although their slugging percentagesuffers a little. There are manypeople who argue with the plea-bargaining system, Mr. Kunen explains why, in the welter of overcrowded dockets, the process makesreasonable sense for society as wellas for the defendants.

Mr. Kunen’s best writing is indescriptions of actual trials, explaining why he and others did whatthey did in each case. He also comments on a wide range of currentissues involving the criminal law.He discusses the insanity deense atlength and explains, very clearly,why "guilty but insane" is a contradiction in terms. His explanationof reasonable doubt is much betterthan many criminal law textbooks:

"Like any other instruction, itmeans whatever the jury decides itmeans. It is my job to argue thatthere is a reasonable doubt. I can’tcreate that doubt; it has to bethere, in the evidence. I do my jobwith pride, believing that * theadvocacy system is not only thefairest method of determining guiltbut aiso the most reliable--reliablebecause it is fair: each side hasthe opportunity to negate the distortions of the other." The adversarial nature, of the criminal process requires lawyers to take sides:"This sort of nimble dance isperfectly proper and takes placeall the time, but it does havean effect on how lawyers think of‘the truth’: the truth is what theevidence proves, and the evidenceproves what you want it to."

The system within which he worked isfair but hardly perfect. The justicedispensed by our legal system depends very much on money. Theconstitutional right to legalcounsel for criminal defendants isimplemented unevenly and uncertainly, even in the District ofColumbia which provides as gooddefense counsel for an indigentaccused of a crime as anyplace inthe country. The legal help theyreceive is, sometimes, not all itshould be because of the heavycaseloads, inadequate time for preparation and endless other pressuresfacing public defenders. For thosewho can afford their own attorneysthe picture is quite different.Defendants with private attorneysare more likely to escape prosecution; if prosecuted, they are morelikely to avoid conviction; and ifconvicted, they are more likely tostay out of jail.

Justice is a public enterprise andthe government has a monopoly on thejudicial system. Yet, the private

Continued, P. 48

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market essentially shapes the results in the courts because lawyersare needed to make it work.

The Courts provide a balance betweenthe rights of society and theaccused. They work in the sense thatthey help society contain aberrantbehavior and at the same timeprovide some process for dealingwith that misconduct. There’s noargument that justice should beequal for all people, but how isequal access to the system thatprovides justice attained? Mr. Kunendoes not comment on these issues ofinequity. Rather, he reveals howwell the current arrangements canwork if an accused individual,though indigent, is fortunate enoughto be represented by a publicdefender with energy and ability.One who still has some of theidealism he had when he chosedefense work in a public defender’soffice over private practice. Onewho has not yet sunk into thecynicism and stoicism of Sisyphus.

Although he does not delve into thebroader issues of the law and thedelivery of justice, Mr. Kunen’sprogress from naive’ law schoolgraduate to competent trial lawyerwill make interesting reading forlaw school students and newlypracticing attorneys.

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WE’ yEMOVED

The Department of Public Advocacy hasmoved from the State Office BuildingAnflex. The new address is:

DEPARTMENT OF PUBLIC ADVOCACY151 ELKHORN COURT

FRANKFORT, KENTUCKY 40601

Most telephone numbers have remainedthe same, but please make note of thefollowing changes:

1. Office Receptionist - 564-80062. Appellate Branch - 564-52343. Investigative Branch - 564-37654. Post-Conviction Branch - 564-26775. Protection & Advocacy - 56471816. Trial Services Branch - 564-7204

Toll Free Number 800 372-2988 ForMessagesOnly.

THE ADVOCATE

Department of Public Advocacy151 Elkhorn CourtFrankfort, Kentucky 40601

Bulk RateU.S.Postage

PAID IFrankfort, KY

40601 IPermit No.Li

I

ADDRESS CORRECTION REQUESTED