COMMONWEALTH OF KENTUCKY
MARSHALL CIRCUIT COURT
INDICTMENT NO. 03-CR-00175
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS
CHRISTOPHER XXXXXX DEFENDANT
MOTION FOR DEPOSITION AND FUNDS
AND
MOTION FOR CONTINUANCE
Christopher XXXXXX, through counsel, respectfully requests that this Court grant permission to take a deposition, and to grant funds with which to pay for the cost and travel to and from the deposition, and for a continuance of this case, for following reasons:
I. Charges Against the Defendant
Mr. XXXXXX is charged with burglary in the 1st degree, burglary in the second degree, and persistent felony offender in the 1st degree. Specifically, he is accused of either unlawfully entering or remaining in the home of Lou Ann Egner, where the alleged victim Jonni Clevinger was supposedly staying, with the intent to commit a crime. In the course of committing this burglary, Mr. XXXXXX is accused of threatening Ms. Clevinger with a knife by holding it to her throat. Mr. XXXXXX denies that any of this happened, and states as part of his defense that Ms. Clevinger is making this story up and is lying. He has asked for a jury trial.
II. Anticipated Testimony of Joe Caron
Mr. Joe Caron, the ex-husband of the alleged victim, Jonni Clevinger, is an officer with the Colebrook Police Department in Colebrook, New Hampshire. He is willing to give testimony in this case. Mr. Caron’s whereabouts and the substance of his testimony was discovered by the defense on February 24, 2004, only two weeks ago. Mr. Caron is willing to testify, but cannot afford the trip from New Hampshire to Kentucky without some kind of reimbursement for his travel. Mr. Caron is expected to testify to the following:
· Jonni Clevinger is not a truthful person and has made up stories against him.
· There are so many instances of Ms. Clevinger lying “it is difficult to know where to begin.”
· On one occasion, he came home from work and Jonni was there with a friend. She picked up the phone, called 9-1-1, and hung up. She sat back down on the couch and waited. A short time later, the police arrived and she made some accusations against Caron of domestic violence. These accusations were unfounded, and she later admitted to doing this to get him in trouble. She told him that she knew that the only way she could get him in trouble was this way. (The officer who responded to this incident is currently employed in Iraq.)
· In Caron’s words, Ms. Clevinger is a “chronic liar” who “schemes things up.”
· While they were married, Ms. Clevinger would often times think that something happened that never did. She would occasionally mention something that they did together when they were married that never happened.
III. The Rules of Character Evidence and the Relevancy of Caron’s Testimony to this Case.
KRE 404(a) provides in pertinent part:
(a) Character evidence generally. Evidence of a person’s character or trait of a character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
* * *
(2) Character of a victim generally. Evidence of a pertinent trait of character of the victim of the crime offered by the accused….
KRE 405(c) provides:
Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
In this case, the Commonwealth’s entire case consists of Ms. Clevinger’s word against Mr. XXXXXX’ word. The defense believes that Ms. Clevinger’s trait of lying, and more particularly, the specific instance where she has falsely reported an incident of domestic violence, is an essential element of Mr. XXXXXX’ defense. Therefore, such testimony is not only admissible under the Kentucky Rules of Evidence, but is critical to a fair trial of this case.
IV. Depositions are Necessary
Kentucky RCr 7.10(1) specifies the grounds for taking depositions. If it appears that a prospective witness may be unable to attend or is a nonresident of the Commonwealth, and his testimony is material, and it is necessary to take the witness’s deposition in order to prevent a failure of justice, the court may upon motion and notice to the parties order that the witness’s testimony be taken.
The Commonwealth has indicated that they will object to having Mr. Caron’s testimony entered into the record. However, Mr. Caron’s testimony is clearly material and relevant, and necessary to the defense, and therefore admissible under KRE 404 and 405.
Funds are requested in order that (1) these depositions be taken in New Hampshire, or (2) alternatively, to allow Mr. Caron to travel to Murray, Kentucky, where his deposition may be taken here. Funds under (1) would include air fare or mileage, hotel room(s) (number depending upon mode of travel), and the cost of a court reporter. If the Court chooses option (2), mileage or airfare for Mr. Caron only, plus hotel(s) would be all that would have to be ordered. The deposition could be taken on court video, after being sworn in by the Court or a clerk, as if it were live testimony.
Round trip driving mileage to Colebrook, New Hampshire from Murray is 2,548 miles. Reimbursement at .32 per mile equals $815.36. Assuming three hotel nights at the rate of $55.00 per night, lodging would cost $165.00. Total cost for travel to and from Colebrook would be $990.36. Therefore, funds in the amount of $1,000.00 are requested in the event this court allows Mr. Caron to travel to Murray to have his deposition taken.
In the event that depositions are to be taken in New Hampshire, $1,000.00 plus the cost of a deposition by court reporter is at this time unknown. However, both a stenographic and video deposition are requested. The actual cost of the deposition would be proven by invoice, and paid only upon receipt of the video and the final typed transcript.
V. Motion for Continuance
In either event, Counsel for Defense does not believe that Mr. Caron’s testimony could be preserved for viewing by a jury by the scheduled trial date of March 23, 2004. Mr. Caron would have to request leave to appear live at trial, and there is not enough time for that. As stated, Mr. Caron’s whereabouts and anticipated testimony were not known until February 24, 2004, and counsel has been unable to get this issue before the court earlier than now.
On information and belief, the Commonwealth will not oppose the continuance in order that they may research and respond to the Defense’s motion for a deposition. Moreover, Mr. XXXXXX has expressly given his consent to waive his fast and speedy trial motion in order that counsel may pursue getting this deposition.
WHEREFORE, a deposition is requested, funds with which to accomplish the deposition, and a continuance of this case.
Respectfully,
______
B. Scott West
Asst. Public Advocate
503 N. 16th St.
Murray, KY 42071
(270) 753-4633
Notice of Hearing
This motion will be brought on for hearing on March 15, 2004 at 9:00 a.m.
Certificate of Service
I hereby certify that a true and correct copy of the foregoing motion was served via fax and regular mail to the Hon. Gale Cook, Commonwealth Attorney, on this day of March 9, 2004.
______
B. Scott West
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