1
06/15/2008
Leadership Branch
J.R. Brown, Branch Manager
859-622-6591
Legal Training Section
Main Number 859-622-3801
General E-Mail Address
Gerald Ross, Section Supervisor
859-622-2214
Helen Koger, Administrative Specialist
859-622-3801
Anna Hudgins, Office Support Assistant
858-622-3745
Kelley Calk, Staff Attorney
859-622-8551
Thomas Fitzgerald, Staff Attorney
859-622-8550 Tom.
Shawn Herron, Staff Attorney
859-622-8064
Kevin McBride, Staff Attorney
859-622-8549
Michael Schwendeman, Staff Attorney
859-622-8133
NOTE:
General Information concerning the Department of Criminal Justice Training may be found at Agency publications may be found at .
In addition, the Department of Criminal Justice Training has a new service on its web site to assist agencies that have questions concerning various legal matters. Questions concerning changes in statutes, current case laws, and general legal issues concerning law enforcement agencies and/or their officers can now be addressed to . The Legal Training Section staff will monitor this site, and questions received will be forwarded to a staff attorney for reply. Questions concerning the Kentucky Law Enforcement Council policies and those concerning KLEFPF will be forwarded to the DOCJT General Counsel for consideration. It is the goal that questions received be answered within two to three business days (Monday-Friday). Please include in the query your name, agency, and a day phone number or email address in case the assigned attorney needs clarification on the issues to be addressed.
1
06/15/2008
First Quarter, 2008
KENTUCKY
PENAL CODE - WANTON MURDER
Miller v. Com.
2008 WL 466138 (Ky. 2008)
Not Published
FACTS:On September 15, 2004, Miller, and two accomplices, Shepherd and Cook, “were accused of accosting [18 year old Megan] Liebengood as she was unloading groceries from her car and of fatally shooting her in the course of stealing her purse.” Miller, who was 16 at the time, conspired with the two others, also juveniles at the time, to commit the robbery. They acquired a gun (apparently stealing it from a family member) and Shepherd carried that gun in his belt. After robbing Liebengood of her purse and car keys, Cook later testified that Liebengood refused to get into the trunk of the car and that “Miller briefly grabbed her arm and Shepherd punched her in the face, knocking her to the ground.” Shepherd then shot Liebengood, and all three fled the scene. Miller was carrying the purse, and his girlfriend later took the purse and tried to dispose of it by throwing it over the fence. The purse was found by them the next morning, however, snagged on the other side of the fence, so Miller and the girlfriend took it to dispose of it nearby. The girlfriend also testified later that Shepherd confessed to the shooting.
Shepherd was arrested the next day. He claimed that Miller had shot Liebengood, and that he [Shepherd] had “thrown both the gun and the keys to Liebengood’s car into a dumpster.” The next day both Cook and Miller were brought in, gave statements and were arrested. All three were indicted for murder and first-degree robbery. Cook pled guilty to the robbery charge and testified. Statements given by Miller and Shepherd were introduced at trial, but “were redacted to eliminate any reference to the other defendant.” Both “pointed the finger at the other for the murder.”
Shepherd was convicted of intentional murder, and Miller was convicted of complicity in both murder and robbery. Miller appealed.
ISSUE:May a non-shooting co-conspirator be convicted of wanton murder when a participant in the crime commits an intentional murder?
HOLDING:Yes
DISCUSSION:Miller argued that “the evidence was insufficient to support findings either that he intended Liebengood’s death or that he so wantonly disregarded the risk that she might be killed as to be deemed indifferent to the value of human life.” The Court noted that:
… under the old felony murder doctrine, when two or morepersons undertook a dangerous felony in the course of which a victim was killed, guiltfor the killing could be imputed to all the participants regardless of which one actuallycommitted it.[1] Kentucky, however, had abandoned the felony murder rule and “replaced it with the offense of wanton murder, narrowing somewhat the potential liability of participants in dangerous felonies for killings committed by a cohort.”
Further:
There are two ways in which a non-killing participant in a dangerous felony maybe convicted of wanton murder. The participant may be convicted as a principal directlyunder KRS 507.020(1)(b),[2] see or he may beconvicted pursuant to KRS 502.020 as complicit in the killing where his wantondisregard of the grave risk of death and his conduct contributing to the risk undercircumstances manifesting extreme indifference to human life satisfy the complicitystatute's requirement that the accomplice "act[] with the kind of culpability with respectto the result that is sufficient for the commission of the offense."[3].” In this case, the Court noted that there was much evidence that Miller instigated the robbery and supplied the loaded weapon, and that he failed to intervene when Shepherd tried to force Liebengood into the trunk. As such, the Court agreed that Miller “was aware of but disregarded a grave risk that the armed robbery he was instrumental in bringing about would result in a death and that he was callously indifferent both to that potential result and to the death that did in fact occur.
Miller also argued that his statement, given about an hour after his arrest, should have been suppressed, because he was not given his Miranda. The arresting officers, however, testified that they gave the warnings. Miller was then transported and handed over to Det. Schoonover, who “asked Miller if he had been advised of his rights and Miller indicated that he had been, referring to Miranda by name.” When the detective asked him to elaborate, Miller’s response was unsatisfactory, and Det. “Schoonover thenundertook to readvise Miller of his rights, but omitted from the required warnings theadmonition that anything Miller said could be used against him in court. Miller indicatedthat he understood, waived his rights, and made the limited statement.”
The Court concluded, however, that Officer Cobb's testimony concerning both the content of the warnings he gave aswell as the fact of giving them, together with Miller's unhesitating admission at theoutset of his interview with Detective Schoonover that the arresting officer hadMirandized him is substantial evidence supporting the trial court's finding that OfficerCobb issued valid and complete warnings. Because (1) those warnings were given onlyabout an hour before Miller's interrogation, (2) Detective Schoonover reminded him ofthose warnings, and (3) Detective Schoonover's omission was clearly an inadvertentmistake unlikely either to diminish the significance of the earlier warnings or to inducean unwitting waiver, we conclude that Officer Cobb's warnings remained effectiveduring Miller's interview with Detective Schoonover.
Miller’s conviction was upheld.
PENAL CODE - THEFT BY FAILURE TO MAKE REQUIRED DISPOSITION
Greek v. Com.
2008 WL 744934 (Ky. App. 2008)
Not Published
FACTS:Greek and Nicolini had a long business relationship involving the buying and selling of antiques. After a falling-out concerning a painting, Greek relocated from Midway to Michigan. There, he discovered he had inadvertently transported a clock that belonged to Nicolini to his new home - he had left all other items belonging to Nicolini with someone in Kentucky. However, he never notified Nicolini where he could find his belongings, although eventually, after Nicolini had talked to local police about his belongings, Nicolini discovered the whereabouts of his belongings and recovered some, but not all, of what he believed Greek had in his possession. Greek was eventually charged with Theft by Failure to Make Required Disposition, and convicted. Greek then appealed.
ISSUE:Is transporting an item lawfully in one’s possession, to another state, without a notification to the actual own of the item, sufficient to charge with Theft by Failure to Make Required Disposition of Property?
HOLDING:Yes
DISCUSSION:Greek argued that there was insufficient evidence that he “intentionally dealt with Nicolini’s property as his own.” The Court agreed that the context of the situation with the clock was such that that the jury could reasonably conclude that “Greek intentionally took Nicolini’s clock with him when he moved to Michigan, intending to keep it as his own, and not make payment to Nicolini.”
Greek’s conviction was affirmed.
PENAL CODE - WANTON ENDANGERMENT
Partin v. Com.
2008 WL 109650 (Ky. App. 2008)
Not Published
FACTS:Partin was accused, and eventually convicted, of First-Degree Wanton Endangerment for setting a fire in her cell at the BellCountyDetentionCenter. At the time, the jail had approximately 80 prisoners, plus staff. The cell was “constructed of fire retardant materials,” but that “did not guarantee the fire would be contained.” There was also the risk of fumes and smoke spreading through the facility.
Partin appealed.
ISSUE:Is starting a fire in an occupied building sufficient to charge Wanton Endangerment in the First Degree?
HOLDING:Yes
DISCUSSION:The Court quickly agreed that such conduct was sufficient to satisfy the elements of the first degree of the charged offense. Partin’s conviction was affirmed.
NOTE:The Opinion gives no indication as to why Partin was not charged with Arson.
PENAL CODE - STALKING
Mosby v. Com.
2008 WL 162858 (Ky. App. 2008)
Not Published
FACTS:Mosby and Ritter separated after 18 years of marriage, and Mosby moved out of the marital home. However, Mosby showed up at the home numerous times “uninvited and unwelcome or made telephone calls.” He also showed up at Ritter’s place of work and his confrontation with her there was witnessed by off-duty jail personnel. That same day, when she returned home, Ritter discovered someone had attempted to break into the house. She requested and received an EPO as a result of these incidents. On March 3, 2004, she filed a divorce action.
On March 6, Ritter’s car caught fire while at a repair shop. Later testimony suggested that someone had broken a window prior to the fire with a tool that later disappeared. That was the day the EPO was served on Mosby. On March 9, Ritter saw Mosby parked near her house - police found him “driving away from the general area.” He was then arrested for Stalking in the First Degree. They found a tool (a wrench) in the car that matched the description of the item seen at the car fire. Investigation also indicated the wrench may have been used in the attempted burglary.
Mosby was indicted, and subsequently convicted of Stalking. He appealed.
ISSUE:If the existence of a served EPO is not challenged, is Stalking in the Second Degree an appropriate charge?
HOLDING:No
DISCUSSION:Mosby argued that the jury should have been instructed on both Stalking in the Second Degree and Harassment, and that both are lesser-included offenses of the First Degree offense. The court noted that “[a]n offense is a lesser included offense” if “it is established by proof of thesame or less than all of the facts required to establish the commission of the offense charged.”[4] The Court compared the two offenses of Stalking and concluded that the Stalking in the Second Degree is, in fact, a lesser-included offense of the First Degree charge. However, the Court found that the alternate instruction on Second-Degree was inappropriate, as the existing of the EPO and a prior conviction against his wife were not contested. As such, if he was guilty of Stalking at all, it would have been the First-Degree, rather than the Second-Degree offense.
Finally, although the argument for Harassment as a lesser-included offense was not properly preserved, the Court found that the “crime of harassment is not established by the proof of the same or less than all of the facts required to establish the commission of stalking in the first degree and is therefore not a lesser included offense of stalking in the first degree.”
Mosby’s conviction was affirmed.
PENAL CODE - SEXUAL OFFENSES
Kirchner v. Com.
2008 WL 110657 (Ky. App. 2008)
Not Published
FACTS:Kirchner was charged with 22 counts of a variety of sexual offenses against his stepdaughter. The crimes allegedly took place over an almost three year period, when the child was between 11 and 13 years of age. During the subsequent trial, Kirchner requested a directed verdict against the First-Degree charges, since evidence concerning the exact date (and thus the exact age of the victim) was not provided. The Court denied the motions, and he was ultimately convicted. Kirchner then appealed.
ISSUE:Is a First-Degree sexual offense (dependent upon the age of the victim for the degree) appropriate when the victim is not clear on the actual dates of the crime, and thus their actual age at the time of the crime?
HOLDING:Yes (but see discussion)
DISCUSSION:The Court noted that although the “victim’s testimony was not clear as to some issues, [it] believe[d] that was merely a product of her young age.” Combined with the testimony of other witnesses, that helped to place certain actions on or about certain dates, the Court found that there was sufficient evidence to uphold Kirchner’s conviction.
PENAL CODE - FLEEING & EVADING
Jones v. Com.
247 S.W.3d 539 (Ky. App. 2008)
FACTS: On the evening in question, a Lexington area officer stopped Jones’s vehicle “because Jones failed to dim his high-beam headlights for oncoming traffic.” When the vehicle stopped, “Jones gave his passenger a quantity of marijuana, exited the vehicle, and fled on foot all the while ignoring the peace officer’s loud commands to stop.” He was caught, charged and convicted of marijuana possession and fleeing or evading the police in the second degree. Jones appealed.
ISSUE:Is Fleeing and Evading the appropriate charge when the risk is as a result of a foot chase of a suspect into traffic?
HOLDING:Yes
DISCUSSION:Jones argued that his flight was not sufficient to charge fleeing and evading. However, “the Com. proved that Jones fled from the peace officer, at night, in the direction of a four-way traffic stop.” The Court found that it was reasonable for the jury to conclude that Jones created a situation inherently fraught with danger to himself, to the peace officer, and to any vehicular traffic near the four-way stop.
Jones’s conviction was upheld.
ARREST
Doss v. Com.
2008 WL 746708 (Ky. App. 2008)
Not Published
FACTS:On February 20, 2007, Officer Flener (Central City PD) held several warrants for Doss’s arrest. He went to Doss’s mother home at about 11:15 p.m., and observed the back of the house. At about that time, he saw “Doss and an unknown male exit from the back of Doss’s house.” The unknown man left and Doss appeared to go back inside, although Flener “admitted that he could not see the backdoor” of the house. (Apparently he could see the back porch, but not the actual door.) He then contacted Officer Beadnell, who arrived within minutes, and who then stationed himself at the front door. Officer Flener went to the back door and knocked. Doss’s mother answered and said that he was not at home - the officer later testified that Doss’s mother “was very upset and aggravated with him.” Flener “admitted he entered the house without her consent” and went to Doss’s “bedroom door which was locked.” He called Beadnell on the cell phone, and was told that Beadnell already had Doss in custody. Beadnell testified that when he heard a commotion inside, he knocked on the front door and it opened. He saw Doss and told him they had warrants for him, and Doss came out on the front porch. Beadnell stated he did not enter the house at any time. Officer Flener came around the house. As Beadnell tried to handcuff Doss, he ran, but was captured a block away. They found methamphetamine on his person.
Doss’s mother testified that she did not give consent, but neither did she ask Officer Flener to leave. Doss testified that he had been in the house, but that Beadnell had to have forced the front door open because it had been locked.
The trial court found there was “sufficient reason for Flener to have believed that Doss was inside his house” and denied the suppression motion that Doss had made. Doss took a conditional guilty plea, and appealed.
ISSUE:Is it appropriate to enter a residence if the officer has a reasonable belief that the subject of an arrest warrant is inside the address listed on that warrant?
HOLDING:Yes
DISCUSSION:The Court noted that:
… turning to the applicable law, we find that, according to the UnitedStates Supreme Court, “for Fourth Amendment purposes, an arrest warrant founded onprobable cause implicitly carries with it the limited authority to enter a dwelling in whichthe suspect lives when there is reason to believe the suspect is within.”[5]In other words, if the police have a valid arrest warrant, thatwarrant grants the police the authority to enter a suspect’s home if the police reasonablybelieve that the suspect is inside. “Reasonable belief is established by looking atcommon sense factors and evaluating the totality of the circumstances.”[6]
According to the record, Flener had several outstanding arrest warrants forDoss. At the evidentiary hearing, Flener testified that he was certain that Doss had reentered the home. Moreover, while Doss also testified at the hearing, he nevercontradicted any of Flener’s testimony. Considering the totality of the circumstances andapplying common sense, we find that it was more than reasonable for Flener to believethat Doss was inside his residence. Given the reasonableness of this belief, the trial courtdid not err when it denied Doss’s motion to suppress.