Appeals

Murder conviction reversed

Southworth v. Commonwealth

Donald Southworth was convicted of murdering his wife, Umi Southworth, and was sentenced to life in prison. He raises numerous issues on appeal, including that he was entitled to a directed verdict and that the trial court admitted evidence of other acts in violation of KRE 404(b). While Southworth was not entitled to a directed verdict of acquittal, and therefore may be retried, the admission of the other-acts evidence was in error and prejudiced Southworth. For that reason, his conviction is reversed.

Reversal and remanded

Released from probation

Tapp v. Commonwealth

Attorney Jason Hart briefed this case in the appellate courts. His supervisor's name ended up on the opinion because Jason transferred to the Capital Trial Branch East of the Department for Public Advocacy. The circuit court revoked David Tapp's probation. On appeal, the Court of Appeals vacated the circuit court's order, and the Commonwealth appeals from that Court's opinion. With a critical difference in analysis and for the reasons set forth below, we affirm. The language of KRS 533.020(4) is clear: probation is automatically discharged upon completion of a probationary period unless it has been revoked or an arrest warrant is pending. If neither condition exists, the trial court loses jurisdiction both to revoke and to modify the conditions of probation. A warrant remains "pending" until the defendant is brought before the court at which time, given probable cause to do so, the court may extend the probationary period for a reasonable time until a revocation hearing can be held. Because Tapp's probationary period was not extended, the court lost jurisdiction to revoke his probation. However, this Opinion will give the necessary guidance to the next trial court faced with similar circumstances. For the above stated reasons, the decision of the Court of Appeals is affirmed.

Reversal and affirmed

Case overturned

Brann v. Commonwealth

This case is again before this Court upon remand from the Supreme Court of Kentucky for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). Initially this Court vacated and remanded the case for further consideration by the trial court of the applicability of Kentucky Revised Statutes (KRS) 439.3106. However, the Supreme Court granted discretionary review and in the meantime rendered Andrews, supra. After reviewing Andrews, we again vacate and remand for the trial court’s consideration under KRS 439.3106.

Vacated and remanded

Righting the wrongs of unfair trials

Muchrison v. Commonwealth

Appellant, Brian Keith Muchrison, appeals from a verdict and judgment of conviction entered by the Mason Circuit Court following a jury trial. Having reviewed the record, we reverse. Muchrison takes the position on appeal that the trial court’s denial of his attorney’s motion to withdraw deprived him of a fair trial. He adopts the position taken by his trial counsel in the motion to withdraw. Trial counsel’s position was that his representation of Trent, and the ethical responsibilities inherent therein, precluded him from fully exploring exculpatory facts in his crossexamination of Suister, which prevented him from fully presenting Muchrison’s defense. The trial court’s ruling diminishes the fact that trial counsel’s original source of information, which he would later need in order to effectively represent another client, was a confidential communication with his client. Further, the identity of the confidential informant was exactly that—confidential—until such time as the commonwealth made it a matter of public record mere hours before trial. The trial court also clearly recognized the potential presence of a conflict of interest; otherwise the order for trial counsel to discontinue representation of Trent served as a completely moot gesture. That Muchrison’s trial counsel was able to find a different line of questioning to establish Suister’s motive to fabricate a narcotics transaction is immaterial. The conflict manifested itself the instant trial counsel was forced by his obligations to Trent to search for such alternative line of questioning. The ethical dilemma placed on trial counsel by the trial court’s ruling limited his ability to cross-examine a critical witness, and thus deprived him of the right to effective counsel. This Court thus concludes that the trial committed reversible error in failing to permit Muchrison’s trial counsel to withdraw.

Reversal

580 year sentence reversed

Martin v. Commonwealth

A circuit court jury convicted Joseph David Martin of fourteen counts of first-degree unlawful transaction with a minor; fourteen counts of incest, and a single count each of use of a minor in a sexual performance, complicity to tampering with a witness, and complicity to tampering with physical evidence. The jury recommended Martin consecutively serve the statutory maximum for each conviction, totaling 580 years. And the trial court adopted this recommendation in full—ignoring the consecutive-sentence cap in Kentucky Revised Statutes (KRS) 532.110—and imposed a sentence of 580 years imprisonment. Martin appeals from the resulting judgment as a matter of right. Martin alleges the trial court erred by (1) instructing the jury in a manner that violated his right to a unanimous verdict; (2) failing to instruct the jury regarding the consecutive-sentence cap in KRS 532.110 or to impose a sentence consistent with that cap; and (3) allowing the victim during her testimony at trial to refresh her memory with previously written notes. We agree with Martin that the trial court's jury instructions, except for those pertaining to his complicity charges, denied him a unanimous verdict. So we are constrained to reverse those convictions. We find no error in Martin's complicity to tampering with a witness and complicity to tampering with physical evidence convictions. And we affirm those convictions. We address the other allegations of error as they may be relevant to a retrial.

Reversal and remand

Martin v. Commonwealth

A circuit court jury convicted Joseph David Martin of fourteen counts of first-degree unlawful transaction with a minor,' fourteen counts of incest, and a single count each of use of a minor in a sexual performance, complicity to tampering with a witness, and complicity to tampering with physical evidence. The jury recommended Martin consecutively serve the statutory maximum for each conviction, totaling 580 years. And the trial court adopted this recommendation in full—ignoring the consecutive-sentence cap in Kentucky Revised Statutes (KRS) 532.110—and imposed a sentence of 580 years' imprisonment. Martin appeals from the resulting judgment as a matter of right. Martin alleges the trial court erred by (1) instructing the jury in a manner that violated his right to a unanimous verdict; (2) failing to instruct the jury regarding the consecutive-sentence cap in KRS 532.110 or to impose a sentence consistent with that cap; and (3) allowing the victim during her testimony at trial to refresh her memory with previously written notes. We agree with Martin that the trial court's jury instructions, except for those pertaining to his complicity charges, denied him a unanimous verdict. So we are constrained to reverse those convictions. We find no error in Martin's complicity to tampering with a witness and complicity to tampering with physical evidence convictions. And we affirm those convictions. We address the other allegations of error as they may be relevant to a retrial.

Reversal and remand.

Southworth v. Commonwealth

Donald Southworth was convicted of murdering his wife, Umi Southworth, and was sentenced to life in prison. He raises numerous issues on appeal, including that he was entitled to a directed verdict and that the trial court admitted evidence of other acts in violation of KRE 404(b). While Southworth was not entitled to a directed verdict of acquittal, and therefore may be retried, the admission of the other-acts evidence was in error and prejudiced Southworth. For that reason, his conviction is reversed.

Reversed and remanded.

Brann v. Commonwealth

This case is again before this Court upon remand from the Supreme Court of Kentucky for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). Initially this Court vacated and remanded the case for further consideration by the trial court of the applicability of Kentucky Revised Statutes (KRS) 439.3106. However, the Supreme Court granted discretionary review and in the meantime rendered Andrews, supra. After reviewing Andrews, we again vacate and remand for the trial court’s consideration under KRS 439.3106.

Vacated and remanded.

Assault

Jail Time Dismissed For Assault In The Fourth Degree

Our client was facing up to 365 days in jail and up to a $500 fine for a charge of assault in the fourth degree. The client firmly maintained her innocence throughout the process and indicated that she was acting in self-defense from her abusive ex. Our firm completed a thorough investigation of the facts of the case and was able to find several inconsistencies in the alleged victim’s story. As a result, and the fact that the client otherwise had a clean record, the prosecution chose to dismiss the charge against our client with prejudice. She kept her job, her freedom, and was able look after her adorable young son.

Case Dismissed

Case Diverted for Client Facing 12 Months In Jail

Our client was going through a difficult divorce with his wife. He admittedly, had an alcohol problem and immediately sought treatment when he retained our services. The client was honest about his alcohol issues but the determinative allegations against him for the offense were suspect. He also had no prior history of criminal offenses. The County Attorney, with the alleged victim’s consent, agreed to divert his case so long as he had no new offenses and followed the family court’s orders. The case is set to be dismissed this year. If and when the case is dismissed our office will discuss expungement with the client so that the charge will not tarnish his record.

Case Diverted

Case Resolved For Client Facing Life Sentence

Our client had made some mistakes while under the influence of alcohol and unfortunately injured an elderly man. This case received media coverage and the Commonwealth, and the Community were seeking to make an example of our client. The client had a substantial criminal record and was sure to be convicted of his persistent felony offender in the second-degree enhancement. The Assault 1st Degree count was litigated and preserved for possible appeal as the client was bare handed and alleged to have made only a single punch in the case that severely and arguably unforeseeably injured the elderly individual and risked his life. Under the case law of the Commonwealth it appeared to us that the charge was not legally appropriate. The Commonwealth eventually offered to amend the charge to Assault 2nd degree which was more in line with the statute and which also did not carry the 85% parole eligibility of Assault 1st Degree. Client accepted the offer to a seventeen-year sentence and is now serving his sentence working toward his 20% parole eligibility date.  

Case Resolved

Drug Possession

Drug Trafficking

Our client was charged with two indictments for trafficking in methamphetamine among other charges. He also had a persistent felony offender second-degree charge, which if valid, would have enhanced the penalty of his felony charges by a degree. After some research any work on his case the Commonwealth agreed to dismiss the persistent felony offender in the second-degree charge, a felony promoting contraband charge, and amend one of the class C felony trafficking charges to a class D felony possession of a controlled substance. After corresponding with the Commonwealth regarding several offers, the client ultimately plead to a combined sentence of only seven years on both of his trafficking indictments.  

Case Resolved

Felony Drug Possession

Our client desperately wanted a chance for drug treatment. She had numerous indictments for drug possession and was building a lengthy criminal record. She always complied with police investigations when she was suspected of using illegal substances. Unfortunately, she was looking at serving up to over half a decade in prison for her candor. With some discussion with the Commonwealth, she was able to be placed on probation to a long-term rehabilitation facility with a total four-year sentence on all of her indictments. She now has a chance to face her addiction and reclaim a drug free life.

Case Resolved

Heroin Trafficking

Our client had a serious problem with heroin and fell in with a group of people seeking to benefit from her addiction. She was indicted for trafficking in heroin with her codefendant and was also charged as a persistent felony offender in the second degree, which would enhance her possible sentence to 10 to 20 years in prison. Through an agreement with the Commonwealth and some assistance with the facts of the case, the client was permitted to plea to an amended misdemeanor charge of tampering with physical evidence while the remaining felony and misdemeanor charges were dismissed. She now does not have a felony on her record and is able to seek drug treatment in the community.

Case Resolved

Third Chance

Our office was retained to represent a gentleman at his second felony probation revocation hearing. The client had been managing to stay drug-free but was having trouble complying with the requirements of his long drug rehabilitation and it seemed apparent that he had some underlying mental illness issues. After conferring with a Commonwealth Attorney whom was open to mental health treatment, we were able to get the young man into a long-term treatment facility that also offered mental health care. Unfortunately, six weeks before graduation he was terminated primarily for his consensual romantic relationship with a staff member at the treatment facility. At the third probation revocation hearing the Commonwealth was able to agree to send him again to a long-term treatment facility rather than imposing his lengthy probated prison sentence.

Case Resolved

Trafficking Cocaine

Our client had a relatively clean record and had never been in trouble before. He was facing five to ten years in prison on a class C felony and was in a stressful situation. After some discussion and a counter offer in our case we were able to convince the Commonwealth to offer to amend the case to a class D felony possession of a controlled substance and give him an opportunity to stay crime and drug-free without having a felony on his record. Now our client gets to keep his job and his freedom.

Case Diverted