Archive for September, 2010

Justices Noble and Schroder dissent Makes sense in conviction of drunk -

Saturday, September 25th, 2010

Ball v. Commonwealth, No. 2008-SC-000430-MR (Ky. 3/18/2010) (Ky., 2010)

 NOBLE, J., Dissenting:

   Consequently, I would hold that the language in KRS 503.060(1), “although the arrest is unlawful” is unconstitutional, and must be stricken from the statute. Without that language, the Appellant is clearly entitled to make his case that the deputy acted unlawfully in his attempt to arrest Appellant, and thus Appellant was entitled to act in self protection if the facts warrant it. He should have received an instruction to that effect, along with an instruction from the judge that the arrest in this case was unlawful. Thus I would reverse, and remand for a new trial.

        SCHRODER, J., joins this dissenting opinion.

  SCHRODER, J., Dissenting.

        I have a problem with a twenty-year sentence for what started as an illegal arrest for public intoxication on Ball’s own front porch. I don’t see the justice.

        This case began with Ball drinking beer with a friend on his front porch in a dry county. A passing officer noticed a beer can next to Ball, and, believing its possession illegal, stopped to question Ball. Ball retreated inside his house with the officer in pursuit. The intoxicated Ball would not submit to the arrest for public intoxication. He pulled an unopened pocket knife from his pocket, which he dropped, and then charged the officer, carrying both out the front door, off the porch, and into the yard. In the ensuing scuffle, Ball bit the officer’s hand. Ball got the worst of it and ended up briefly in the hospital.

        Ball was convicted of third-degree assault, a felony, because the victim was a police officer. KRS 508.025(l)(a) 1. He was sentenced to four years, enhanced to twenty because of his two prior felonies. If he had assaulted someone not a peace officer, he would have received a year or less on a misdemeanor, fourth-degree assault charge. KRS 508.030.

        Intoxication is currently not a justification for resisting an illegal arrest. Likewise, twenty years for a drunken attempt to resist is hardly a punishment befitting the crime. With the cost of incarceration over $20,000 a year, we could spend over $400,000 to house a drunk. Does the sentence make us safer or feel better? I don’t see the justice in this case.

Noble, J., joins.


Tuesday, September 14th, 2010

SEPT. 14, 2010

 By LawReader Senior Editor Stan Billingsley

 We have a great new Supreme Court.  The level of legal reasoning of our current seven justices is in our opinion the highest it has ever been. 

 One of the leading thinkers on the current Supreme Court is Justice Mary Noble from Lexington.  (She was recently elevated to Deputy Chief Justice.)

 The following opinions (the last one is a dissent) show the strength of her voice on the court. 

 In the Montgomery case she shows a practical justification for dealing with juror bias on voir dire.  We believe she  also makes a strong argument which can be used to rebut the “admonition presumption” which holds, “all jurors who receive an admonition not to consider  improperly admitted evidence are presumed to follow the admonition.”

 In  Edmonds, she dissents in a clear voice about the improper admission of victim impact evidence admitted during the guilt phase. (Prosecutors seek to do this to humanize the victim and deflect the jury from their duty to find facts by inflaming their passions.)

One suspects that the years Justice Noble spent as a trial judge provides her an advantage that Justices without that experience don’t have.

 Further in Edmonds Justice Noble presents the best argument yet written by the Ky. Supreme Court on the correct and incorrect use of the “harmless error” doctrine.

 Justice Noble has taken a stand in Edmonds (quoted below), that while a dissent, merits a close examination by all lawyers and judges.  If one didn’t read Justice Noble’s name on the opinion  in Edmonds,  one might think it was written by Professor Lawson or the late Justice Charles Leibson.  We can conceive of no greater compliment.

  We have found instances while writing our weekly synopsis of all Kentucky Appellate decisions (which are published weekly on, that raise questions about some rulings in which the “harmless error” doctrine appears to have been used to sweep errors under the rug.  In the past this rule was used, often without explanation, and gave the impression that it was merely being used as a shortcut to uphold convictions in favor of the Commonwealth. 

 There should be a great burden on any appellate judge  to justify the application of the Harmless Error rule after having found that an error was committed  and improper evidence has been admitted.   Justice Noble’s dissent in Edmonds reveals the correct standard that should be used before the Harmless Error rule is applied.  Someday this will be the law.

 History is full of strong dissents which ultimately become law.  We believe this dissent will one day be recognized.



KY   Montgomery v. Commonwealth of Kentucky, 819 S.W.2d 713 (Ky. 10/24/1991)


 …… Of the jurors who actually sat in the case, at least four, Kenneth Jones, Jerry Riley, James Suitor and William Rogers, answered questions acknowledging not only familiarity with the pretrial publicity surrounding the case, but also that they had formed opinions as to the appellants’ guilt.

 In each instance they asserted they believed they could put aside their preconceived opinions and be impartial, but, perhaps individually, and certainly collectively, these answers fail to meet the standard for a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Section 11 of the Kentucky Constitution.

 Mere agreement to a leading question asking whether the jurors will be able to disregard what they have previously read or heard is not enough to discharge the court’s obligation to provide a neutral jury:

 ”The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. . . . No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one’s fellows is often its father. . . .” Irvin v. Dowd, 366 U.S. 717, 728, 81 S.Ct. 1639, 6 L.Ed.2d 751, 759 (1961).

 “. . . the test is ‘whether the nature and strength of the opinion formed are such as in law necessarily. . . raise the presumption of partiality. The question thus presented is one of mixed law and fact. . . .’” Id., 6 L.Ed.2d at 756.

 Edmonds v. Commonwealth, No. 2007-SC-000350-MR (Ky. 11/25/2009) (Ky., 2009)


 I respectfully dissent as to the majority holdings that the erroneous admission of Kay Thomas’s testimony was harmless error and that the appellants were not entitled to an instruction on second-degree manslaughter as a lesser-included offense.

 I.                    Kay Thomas’s Testimony and Harmless Error

         The majority agrees that much of Thomas’s testimony was improper and exceeded the scope of allowable humanizing evidence. This means it was victim impact testimony which could not properly be given in the Commonwealth’s case in chief, if at all, because Thomas did not qualify to give such testimony as she was not among the statutorily eligible witnesses for victim impact testimony. Additionally, the record indicates that much of her

testimony was given even though the trial court had expressly ruled that she could not testify on those issues. Yet the majority concludes that this erroneous testimony—which included describing an international card campaign expressing outrage over the crime; saying that the victim had “met the devil” at the hands of the appellants; graphically describing his injuries and how she sat and held his hand; describing conversations with the victim’s exwife; and saying that his brown eyes turned blue on the day he died, among other non-substantive comments—was harmless because the evidence of guilt was otherwise overwhelming, meaning that the erroneous testimony had no influence on the verdict. I cannot join this conclusion.

         Over the years, we have struggled with how to apply the harmless error rule, RCr 9.24, to non-constitutional errors.11 At times, we have employed a guilt-based test that focuses on whether the result would have been different absent the error, usually by looking at whether the evidence other than that erroneously admitted was overwhelming (and in some outliers, merely “sufficient” for a guilty verdict). See, e.g., Brewer v. Commonwealth, 206 S.W.3d 313, 324-25 (Ky. 2006); Taylor v. Commonwealth, 175 S.W.3d 68, 72 (Ky. 2005); Abernathv v. Commonwealth. 439 S.W.2d 949, 952 (Ky. 1969). In other cases, we have looked at whether the error had any effect on, or

contributed to, the verdict returned by the jury. See Morgan v. Commonwealth, 189 S.W.3d 99, 108 n.27 (Ky. 2006); Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky. 1998).

  In recent years, the debate, at least as to the larger issue of “different result” versus “effect on the verdict,” appears to have been settled, with the effect-on-the-verdict test being the correct standard. See Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008); Monroe v. Commonwealth, 244 S.W.3d 69, 78 (Ky. 2008); Emerson v. Commonwealth, 230 S.W.3d 563, 570 (Ky. 2007); Vaughn v. Commonwealth, 230 S.W.3d 559, 561 (Ky. 2007). The weight of critical opinion supports this shift. See, e.g., Harry T. Edwards, To Err is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167 (1995) (arguing in favor of an effect-on-the verdict test); Roger J. Traynor, The Riddle of Harmless Error (1970) (same).

 Deciding on “effect on the verdict” over “different result” alone does not answer all questions related to the harmless error doctrine, however. For example, how much effect must the error have had on the verdict before the error is sufficiently prejudicial to require reversal? Is any effect enough or must there be a substantial effect? These are difficult questions to which we have unfortunately provided inconsistent answers. Though the general focus on effects on the verdict has been steady in our recent decisions, the exact formulations of the standard to be applied have differed, sometimes substantially. See Harp, 266 S.W.3d at 818 (explaining the test as simply whether an error affected the verdict); Monroe, 244 S.W.3d at 78 (describing the test as whether an error had a “reasonable probability” affecting the verdict); Emerson, 230 S.W.3d at 570 (applying a test of whether there was a “reasonable possibility that [the errorl affected the verdict"); Vaughn, 230 S.W.3d at 561 (employing a test of whether the error "possibl[yl . . . had an effect on the verdict"). Though these "tests" arguably differ little, and despite a proper core concern for the impact of an error on a jury's verdict, they are inconsistent.

 Rather than continuing to muddle through the muck and trying to invent the wheel anew, our most recent cases have sought guidance from the federal courts. Specifically, we have adopted the harmless-error standard announced in Kotteakos v. United States, 328 U.S. 750 (1946). See Crossland v. Commonwealth, 291 S.W.3d 223, 233 (Ky. 2009) (applying Kotteakos as the harmless error standard for non-constitutional errors); Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) ("The Kotteakos standard is the appropriate standard for non-constitutional errors."). The standard articulated by the United States Supreme Court in that case requires that a non-constitutional error have a substantial effect on the verdict before reversal is merited:

 If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. Id. at 764-65 (1946) (emphasis added). Restated in simplest terms, a nonconstitutional evidentiary error must have had a substantial effect on the verdict actually returned by the jury or the judgment entered by the court in order to require reversal.

 Though we have finally adopted what I consider to be the proper standard for evaluating harmless error, we still have not engaged in a thoughtful discussion of why it is the correct standard in a published decision, having instead simply declared it to be the appropriates standard, despite the fact that it represents a clear departure from some of our earlier precedent. And even as the articulation of the rule has changed, we have failed even to admit in a published decision that the rule has changed or that the various standards we have articulated are different. Yet, that this new standard is different and how it is different are important going forward, as the harmless error standard goes to the heart of what we do when we review a criminal jury trial. Because the standard is different, it means that the results in some cases will be different, meaning that we cannot simply plug the correct standard into an opinion without demonstrating how it applies—or doesn't— which is what the majority has failed to do here. The inescapable conclusion is that the standard and the policy behind it matter. We must still think long and hard on the issue of harmless error so that we can properly apply the new standard.

 Ultimately, I think that the majority is wrong in its harmless error determination in this case. Why this is the case, however, requires a candid discussion about harmless error that acknowledges it is a difficult and subtle proposition, and not just a rule to preserve convictions for heinous crimes in the face of error. In explaining why I disagree with the majority's application, I hope to focus on what must be considered.

 To begin with, I agree with our decisions designating Kotteakos as the appropriate standard for non-constitutional errors. Such errors are likely to be less serious than constitutional errors, and by their very nature, they rarely touch on those fundamental concerns and guarantees that lie at the heart of the criminal justice system and are more likely to be merely technical or relatively minor. This distinction between the various types of errors is anticipated by the harmless error rule itself, which focuses on "substantial justice" and "the substantial rights of the parties." RCr 9.24. Kotteakos, by offering a lesser standard than that required for constitutional errors, also recognizes the distinction.

 My foremost concern is that the majority, in focusing on whether the properly admitted evidence in this case was overwhelming, has effectively applied the old different-result approach to harmless error rather than the effect-on-the-verdict approach under Kotteakos.

 The different-result approach required that an appellate court look at all the evidence, minus that which was improperly admitted, and determine whether a jury would have returned a guilty verdict. This is different from a situation where an appellate court looks at sufficiency of the evidence and must determine whether the evidence is such that a reasonable jury could return a guilty verdict. This latter analysis is a way of looking at what the jury in the case actually did and evaluating whether it was reasonable. The former requires postulating a new, entirely hypothetical verdict, one that was not returned by the jury that actually heard the case, since that jury heard the improper evidence. Looking at the evidence and deciding a different result would not have occurred is tantamount to directing a verdict for the Commonwealth after the fact. Thus, the policy underlying the different-result approach is a dangerous one that threatens to undermine our rules concerning who gets to find the facts in a case.

 Beyond the policy concerns, however, are substantial constitutional concerns about the different-result approach. "Here, special concern exists that judicial toleration of harmless error is not a license for judicial invasion of the issue-resolving province constitutionally reserved for the jury." Henry P. Monaghan, Harmless Error and the Valid Rule Requirement, 1989 Sup. Ct. Rev. 196, 200 (1989). The postulation of a non-existent jury verdict absent the error lies at the heart of the different-result test. As the United States Supreme Court has stated, such an approach runs afoul of the Sixth Amendment's jury trial guarantee:

 Consistent with the jury-trial guarantee. ...the reviewing court [is] to consider … not what effect the … error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. Harmless-error review looks, we have said, to the basis on which the jury actually rested its verdict. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.

         … The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal ….

         Sullivan v. Louisiana. 508 U.S. 275, 279-80 (1993) (emphasis added, quotation marks and citations omitted).

         Any approach to harmless error that focuses on whether the result would have been different, including whether the other evidence in the case was overwhelming, is suspect for these reasons. It is possible that there could be substantial, even overwhelming, evidence of guilt in a case, and yet a piece of improper evidence could also have been admitted that substantially influenced the jury. This is, in fact, what I think happened in this case. Instead of looking at whether the other evidence was overwhelming, we should instead focus on what effect the erroneous testimony had on jury’s verdict in this case. Otherwise, we return to the old standard, albeit under a different name.

(emphasis added by LawReader)



Tuesday, September 7th, 2010


By Andria Simmons   The Atlanta Journal-Constitution     9-7-2010

Billy Williams already had spent $7,000 on attorney fees getting a divorce when he decided to act as his own lawyer for a custody dispute involving his 13-year-old son.

Williams figured he could save this time around by representing himself, but he left the courtroom feeling frustrated after Cobb County Superior Court Judge Lark Ingram interrupted him several times for not following proper court procedures.

The judge granted primary custody to his ex-wife. Williams felt he was at a disadvantage because his wife had an attorney; he didn’t.

“She had the upper hand; there is no doubt,” Williams said. “I’m sure the judge kind of went in her favor because of the lawyer.”

State court judges across the country report that more people like Williams are acting as their own attorneys in civil matters. The trend is a cause of concern for a judiciary that is having to become more efficient because of state budget cuts. State funding to the courts in 2009 was at its lowest level in recent history. County and municipal governments also have frozen or cut court funding in the wake of declining tax revenue.

Court officials say self-represented litigants tend to slow proceedings and use more staff time.

“It’s a huge issue with judicial economy and use of the court’s time,” said Fulton County Superior Court Judge Bensonetta Tipton Lane. “It is difficult to mete out justice when there are two people not providing an orderly presentation, but trying to get their barbs in. Cross-examination gets reduced to ‘No, I didn’t,’ and ‘Yes, I did.’ ”

It’s unknown exactly how many more people are handling their own cases, because state courts don’t track those statistics, said Mike Holiman, executive director of the Council of Superior Court Clerks of Georgia.

However, a survey released in July by the American Bar Association found that 60 percent of judges said the number of self-represented cases increased in 2009. The survey, which 1,176 judges took, was intended to gauge the impact of the economy on the courts. Georgia had the highest participation, with 124 judges responding.

The most common types of cases in which self-representation is growing are domestic relations, common law, foreclosures and housing.

People acting as their own lawyers often fail to ensure both parties receive the necessary notification and paperwork, and they commit procedural errors, said Cobb County Superior Court Judge Robert Flournoy.

Gwinnett County State Court Judge Randy Rich said, “When it comes down to a trial, they don’t know the rules of evidence to get their documents admitted, and they don’t know the way to present whatever they want to present.”

In cases where someone had no legal representation, 62 percent of judges surveyed by the ABA said outcomes for the litigant were worse.

When a person shows up at the courthouse without a lawyer, clerks who file cases and judges who hear them are put into the position of guiding an unschooled party through a complex legal system. They must somehow do this without doling out any legal advice.

“Our members, particularly the people on the front counter, are not lawyers,” said Holiman, referring to court clerks. “We are cautious about practicing law without a license, which you can get into very quickly if you start assisting [self-represented] litigants.”

By the same token, judges’ hands are bound because they are supposed to be impartial.

People charged with a crime who cannot afford an attorney are entitled to have a defense attorney appointed to their case free of charge. However, the Constitution does not guarantee the same rights in civil cases except in a few cases where a person would risk loss of liberty (such as mental commitment or juvenile delinquency cases).

There are some options for people facing economic hardship, but there is no perfect solution.

Atlanta Legal Aid’s executive director, Steve Gottlieb, said uncontested divorces often can be handled by individuals without a lawyer. But he would not advise handling a divorce or child custody dispute if it is contentious or it involves a complicated division of property. Foreclosures also are an area where people can quickly get in over their heads. Without a lawyer’s help, a resident easily can lose his home or become a victim of a scam, Gottlieb said.

The Atlanta Legal Aid Society serves Cobb, Clayton, DeKalb, Gwinnett and Fulton counties. Last year, the organization handled 24,636 cases. However, because of the organization’s limited resources, about half of the people who ask for assistance are turned away, Gottlieb said.

If somebody is able to handle a case himself or herself, Legal Aid lawyers may provide this person with needed forms or give him or her a brief legal consultation instead of agreeing to represent. They also provide referrals to the Atlanta Volunteer Lawyers Foundation, another organization that does pro bono work for low-income people.

The Atlanta Legal Aid Society prioritizes cases where the person is particularly vulnerable to domestic violence, disability or illness. They are less likely to get involved if there is little chance of obtaining an economic benefit for the client.

DeKalb and Fulton have Family Law Information Centers that are county-funded to assist people in domestic legal matters. Fulton also has a Probate Information Center to help people with issues surrounding wills and estates.

Miriam Loyal, who heads the Family Law Information Center in DeKalb, said a 30-minute consultation with a lawyer costs $20, and obtaining relevant forms costs from $5 to $20.

The Superior Court of Cobb County has worked with local attorneys to offer a free, hourlong Family Law Workshop on the first Tuesday of each month for people with domestic legal issues.

Several other Georgia counties, such as Chatham and Bibb, are looking into starting a program modeled after the one in Cobb, said Cobb County Superior Court Judge Mary Staley, who helped start the Family Law Workshop.

“Feedback we’re getting from judges in the courtrooms is that it’s helping,” Staley said.


Wednesday, September 1st, 2010


By KBA -e-news

For Kentucky Bar Association members, gaining access to the CourtNet database is as easy as one, two, three.

With only three steps, attorneys can view all pending civil and criminal cases in Kentucky. If a criminal case is pending, an attorney can also see both opened and closed cases associated with a particular defendant. Cases with disposition dates are not available. The Administrative Office of the Courts maintains the CourtNet database, which stores court records from all 120 Kentucky counties.

To learn more about: (1) registering, (2) downloading and returning the KBA User Agreement, and (3) resetting your password every 90 days, click here.

Justice Mary C. Noble named deputy chief justice of Supreme Court of Kentucky

Wednesday, September 1st, 2010


FRANKFORT, Ky., Sept. 1, 2010 – Chief Justice of Kentucky John D. Minton Jr. has named Justice Mary C. Noble as deputy chief justice of the Supreme Court of Kentucky. Justice Noble has served as a justice since November 2006 and as a judge for more than 18 years.

“I am pleased to announce that Justice Noble will serve as deputy chief justice for the Supreme Court,” Chief Justice Minton said. “Justice Noble is an effective leader and a skilled jurist who has earned the trust and respect of her colleagues on the court.”

Justice Noble succeeds Justice Will T. Scott as deputy chief justice. He had served in that role since July 1, 2006. The deputy chief justice fills in when the chief justice recuses in a case or an administrative matter.

Justice Noble represents the 5th Supreme Court District, which is comprised of Anderson, Bourbon, Boyle, Clark, Fayette, Franklin, Jessamine, Madison, Mercer, Scott and Woodford counties. Following her election to the Supreme Court of Kentucky for the first time in November 2006, she was re-elected unopposed in 2008 for an eight-year term.

Justice Noble chairs the Supreme Court Civil Rules Committee. She recently coordinated the effort to draft the Family Court Rules of Practice and Procedure that have been proposed to the Supreme Court. The proposed rules are uniform rules for Family Court programs statewide. She has also judged trial competitions at several law schools across the country and been a frequent speaker at state and national conferences on a variety of legal topics. 

Prior to her election to the Supreme Court, Justice Noble was a Fayette County Circuit Court judge for 15 years and served two consecutive terms as chief regional circuit judge for the Fayette Region. She is one of the founders of Kentucky Drug Court and served as a Drug Court judge in Fayette County from 1996 to November 2006. 

Justice Noble has served as president of the National Association of Drug Court Professionals Congress of State Drug Courts. She has also served on the board of the National Association of Drug Court Professionals and received its Stanley Goldstein Award, making her a member of the association’s national hall of fame.   

She was in private practice for 10 years and served as a domestic relations commissioner for two years before being elected to the Fayette Circuit Court bench in 1991. 

Justice Noble earned her juris doctor at the University of Kentucky College of Law in 1981. She earned her bachelor’s and master’s degrees from Austin Peay State University in Clarksville, Tenn.