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Major v.Com., 2003-SC-000673-MR - To Be Published, Reversing and Remanding -- PDF

The Appellant, William Alexander Major, was convicted of murder and tampering with physical evidence by the Boone Circuit Court and sentenced to a term of life in prison . He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error; (1) Admission of uncharged acts in violation of KRE 404 and 403; (2) failure to grant a mistrial upon the mention of a polygraph test; (3) failure to suppress a taped phone conversation between the Appellant and his father; (4) admission of a firearm not proven to be connected with the crime; (5) prejudicial conduct (crying) of the prosecutor during the trial and(6) the failure to grant a mistrial due to a conversation between the Court Bailiff and a juror.

Martin v Com., 2004-SC-000718-MR - To Be Published, Affirming -- PDF

Appellant, Leonard Martin, was convicted of three counts of sexual abuse in the first degree and one count of sodomy in the first degree. The jury recommended a sentence of five years for each count of sexual abuse, for a total of fifteen years, and a sentence of twenty-five years for the sodomy count, the sentences to run concurrently . The court entered a judgment sentencing Appellant to serve twenty-five years . Appellant appeals to this Court as a matter of right,' asserting three claims of reversible error: (1) that double jeopardy bars Appellant's retrial; (2) that the Commonwealth's use of prior uncharged bad acts were not so similar to warrant their introduction and therefore prejudiced Appellant; and (3) other errors made by the trial court either alone, or cumulatively with the previous errors, so prejudiced Appellant that his conviction should be reversed . Having considered all of Appellant's claims of error, we affirm the conviction .

Mathews v. Com., 2003-SC-000378-MR - To Be Published, Affirming -- PDF

Appellant William Vernon Matthews was convicted of First-Degree Rape, found to be a Second-Degree Persistent Felony Offender ("PFO"), and sentenced to life in prison . He claims that the trial court abused its discretion when it (1) refused to grant a mistrial after a witness referred to his prior incarceration, (2) admitted evidence of a prior misdemeanor charge, and (3) admitted the victim's hospital records into evidence . We hold that the trial court did not commit reversible error in any of these instances, and we affirm the final judgment of the Rowan Circuit Court.

Matthews v. Com., 2003-SC-000364-MR - To Be Published, affirming -- PDF

This appeal is from a judgment based on a jury verdict that convicted Matthews of manufacturing methamphetamine, possession of marijuana, possession of drug paraphernalia and being a first-degree persistent felony offender. He was sentenced to a total of forty-five years in prison . The questions presented are whether an alleged violation of the Interstate Agreement on Detainers (IAD) required dismissal of this case ; whether prosecutorial misconduct occurred ; whether the trial judge abused his discretion by failing to hold an evidentiary hearing on the IAD issue; whether Matthews was denied effective assistance of counsel; whether the defendant's confession should have been suppressed ; whether Matthews was entitled to a directed verdict on the manufacturing methamphetamine charge ; and whether the trial judge erred by failing to hold a Faretta hearing before making Matthews co-counsel .

Maxwell v. Com., 2003-SC-000655-MR -Not To Be Published, Affirming -- PDF

Appellant, Timothy Wayne Maxwell, was convicted by a Logan County jury of two counts of first-degree unlawful transaction with a minor and one count of custodial interference . He received a sentence of twenty years' imprisonment and appeals to this Court as a matter of right. Ky. Const. § 110 (2)(b). Appellant asserts the following trial court errors: 1) the improper admission of character evidence, 2) the failure to grant a mistrial, 3) the failure to enter a directed verdict of acquittal, and 4) improper prosecution in violation of double jeopardy protection. We affir

McCary v Com., 2004-SC-000277-MR - Not To Be Published, Affirming -- PDF

A jury of the Graves Circuit Court convicted Appellant of Trafficking in a Controlled Substance in the First Degree. KRS 218A.1412(2)(b) . For this crime, Appellant was sentenced to a total of twenty years' imprisonment. Appellant now appeals to this Court as a matter of right . Ky. Const. § 110(2)(b) . For the reasons set forth herein, we affirm Appellant's conviction .

McCreary v. Com., 2003-SC-000210-MR -Not To Be Published, Affirming -- PDF

This appeal is from a judgment based on a jury verdict that convicted McCreary of two counts of murder. He was sentenced to life in prison without the possibility of parole for twenty-five years . The questions presented are whether the jury should have been instructed on lesser-included offenses of murder; whether prosecutorial misconduct occurred regarding the disclosure of evidence ; whether the closing argument was proper; whether evidence of $500 should have been suppressed ; whether the female victim's dying declarations were properly admitted; whether prosecutorial misconduct occurred relating to the testimony of a witness ; whether two jurors should have been removed for cause; and whether the defendant's statement to police should have been suppressed . McCreary was indicted for two counts of murder in Jefferson County Kentucky. Both the male victim and the female victim were shot multiple times inside the home

McFarland v. Com.,2002-SC-000790-MR - Not To Be Published, Affirming -- PDF -

Appellant, Uzell "Casey" McFarland, was convicted by an Edmonson County jury of two counts of kidnapping, KRS 509.040(1)(c), and of one count of assault in the first-degree, KRS 508.010(1) . The jury recommended life imprisonment on the two counts of kidnapping and ten years for assault, to run concurrently, and judgment was imposed in accordance with the jury verdict. Appellant appeals to this Court as a matter of right.' On November 13, 1999 and prior thereto, Appellant resided with his wife, Carrie McFarland, in Bowling Green . He and Carrie had a history of marital problems. On one occasion, Appellant believed that she had been unfaithful to him and he began to beat her. Appellant beat her in the head, giving her a cerebral concussion, cracked her ribs, and stabbed her in the leg and hand with a butcher knife.

McGowan v. Com., 2002-SC-000966-MR -Not To Be Published, Affirming -- PDF -

This appeal is from a judgment based on a jury verdict that convicted McGowan of murder. He was sentenced to fifty years in prison . The questions presented are whether an unsolicited statement by a witness concerning McGowan's guilt necessitated a mistrial ; whether the prosecution's alleged comment on the defendant's silence denied him a fair trial ; and whether prosecutorial conduct denied McGowan a fair trial . The nine-month-old victim was left in the care of McGowan while the baby's mother and great aunt went to pick up a prescription for her. The baby had been sick, but other than the symptoms related to her illness, she was healthy. When the mother and great aunt returned from the 30-45 minute trip, the victim was unconscious and struggling to breathe . The baby was taken to the emergency room and ultimately transported to a hospital in Louisville where she died the next morning .

Mcpherson v Com., 2004-SC-000068-MR- To Be Published,Affirming -- PDF

A jury convicted Appellant, William McPherson, of four counts of sexual abuse in the first degree . He received a five-year sentence on each count, to run consecutively for a total of twenty years. McPherson appeals to this court as a matter of right, contending that he suffered substantial prejudice by the Commonwealth's amendment of the indictment after trial and denial of his equal protection by the prosecution's use of peremptory challenges. Both issues were preserved for our review.

Meredith v. Com.,2002-SC-000741-MR - To Be Published, Affirming -- PDF -

Appellant, Richard Allen Meredith, was convicted in the Jefferson Circuit Court of complicity to commit murder and complicity to commit first-degree robbery . His convictions stemmed from an incident that took place at Harold's Hubcaps in Louisville, Kentucky, in November 2000 . Specifically, the jury found that Appellant was involved in the robbery and shooting death of the establishment's owner, Harold Smith . During the course of the investigation, the police received an anonymous tip that a Michael Crain had been involved in the crimes . When police ultimately attempted to confront Crain, he pulled a gun and fled . At some point during the pursuit, Crain was shot and killed. There is some indication from the record that Crain's gunshot wounds were self-inflicted . Following Crain's death, police received information that Appellant also may have been involved in the crimes . Appellant was subsequently indicted on charges of complicity to commit murder and complicity to commit first-degree robbery. Following the guilt phase of trial, Appellant waived formal sentencing and accepted the Commonwealth's recommendation of life without the possibility of parole for twenty-five years on the murder charge and twenty years imprisonment on the robbery charge, to run concurrently . Judgment was entered accordingly . He appeals to this Court as a matter of right.

Metcalf v. Com., 2003-SC-000098-MR - To Be Published, Reversing And Remanding -- PDF

A McCracken Circuit Court jury convicted Appellant, Kevin Wayne Metcalf, of one count of sodomy in the first degree, KRS 510 .070, and one count of sexual abuse in the first degree, KRS 510 .110. The trial court sentenced him to twenty years imprisonment for the sodomy conviction and one year imprisonment for the sexual abuse conviction . Appellant appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error: (1) admission of uncharged acts in violation of KRE 404(b) and (c) ; (2) denial of his motion to suppress his confession; (3) improper interpretation by witnesses of inaudible portions of his audiotaped confession; (4) destruction of exculpatory evidence by the Commonwealth; (5) release of a subpoenaed witness by the Commonwealth without Appellant's consent; and (6) the Commonwealth's recall of two witnesses for rebuttal purposes during its case-in-chief . We reverse and remand this case for a new trial because of the improper admission of evidence of uncharged crimes. We will address those additional claims of error that are likely to recur upon retrial. Springer v. Commonwealth , 998 S.W.2d 439, 445 (Ky . 1999) .

Metcalf v. Com., 2003-SC-000098-MR - To Be Published, Reversing and Remanding -- PDF

A McCracken Circuit Court jury convicted Appellant, Kevin Wayne Metcalf, of one count of sodomy in the first degree, KRS 510.070, and one count of sexual abuse in the first degree, KRS 510.110 . The trial court sentenced him to twenty years imprisonment for the sodomy conviction and one year imprisonment for the sexual abuse conviction . Appellant appeals to this Court as a matter of right, Ky . Const. § 110(2)(b), asserting the following claims of error: (1) admission of uncharged acts in violation of KRE 404(b) and (c); (2) denial of his motion to suppress his confession; (3) improper interpretation by witnesses of inaudible portions of his audiotaped confession ; (4) destruction of exculpatory evidence by the Commonwealth ; (5) release of a subpoenaed witness by the Commonwealth without Appellant's consent; and (6) the Commonwealth's recall of two witnesses for rebuttal purposes during its case-in-chief. We reverse and remand this case for a new trial because of the improper admission of evidence of uncharged crimes .

Miller v. Com., 2002-SC-000527-MR - Not To Be Published, Affirming -- PDF

Kelly Miller was convicted of three counts of first-degree assault and sentenced to serve ten years on each count. His sentences were ordered to run consecutively, for a total of thirty years in the penitentiary . Miller appeals to this Court as a matter of right.' On June 12, 1999, Miller shot Thomas Napier, Darrell Bowling, and Ben Gunsauley in front of multiple witnesses . Miller does not dispute the facts . However, he contends that his convictions should be reversed for a new trial because his evidence of insanity and extreme emotional disturbance was not rebutted by the Commonwealth, because the trial judge refused to give an intoxication instruction to the jury, and because prosecutorial misconduct deprived him of a fair trial . In the alternative, Miller asserts that his convictions should be partially reversed, either because neither Napier nor Gunsauley suffered "serious physical injury" when he shot them, or because the prosecutor improperly urged the jury to sentence Miller to the maximum of sixty years . In any event, Miller asks this Court to credit his 873 days of pre-sentencing, home-incarceration as time served . Concluding that Miller's claims were either not properly preserved or are without merit, we affirm.

Mills v. Com., 2002-SC-000216-MR - To Be Published, Affirming in Part, Reversing in Part -- PDF

On August 30, 1995, Appellant, John Mills, was arrested for the murder of A.L . Phipps . At trial, the jury found Appellant guilty of Murder, First-Degree Burglary, First- Degree Robbery, and sentenced him to death . The primary facts of Appellant's case, upon which we rely here, except where a more specific discussion is necessary, are recounted in Appellant's direct appeal, wherein we affirmed the judgment of the trial court.' Appellant began post-conviction proceedings by filing a motion under RCr 11 .42 . The trial court entered an order scheduling an evidentiary hearing for September 6, 2000. On July 10, 2000, Appellant filed a motion to recuse the trial judge, who had presided over the trial, from hearing the RCr 11 .42 motion . Instead of holding an evidentiary hearing on the RCr 11 .42 motion on September 6, 2002, the trial court held a hearing on the motion to recuse . On October 2, 2000, the trial court entered an order overruling the motion to recuse . On July 27, 2001, the trial court entered an order overruling the RCr 11 .42 motion without a hearing. Next, Appellant filed a motion under CR 59.05 asking the trial court to reconsider its ruling on the RCr 11 .42 motion . The trial court overruled this motion in an order dated February 6, 2002. Appellant now appeals to this Court as a matter of right2 and claims that the trial court erred in refusing to strike the Commonwealth's response to his RCr 11 .42 motion, in applying a heightened pleading standard, in not conducting an evidentiary hearing, in finding that a judicial privilege barred the testimony of the trial judge's former law clerk, and in refusing to recuse from ruling on the judicial privilege issue. We affirm the trial court's overruling of the RCr 11 .42 motion in part and reverse in part and remand for an evidentiary hearing on several of Appellant's claims.

Mills v Com., 2004-SC-000140-MR - Not To Be Published, Affirming in Part, Reversing and Remanding in Part -- PDF

Appellant, Gary Haven Mills, pled guilty in the Johnson Circuit Court to complicity to murder, robbery in the first degree, and arson in the third degree, and was sentenced to twenty-five years in prison . He does not appeal from his convictions, but only from the trial court's failures to (1) award him the proper amount of jail time credit, and (2) order that his presentence investigation (PSI) report, KRS 532.050, be amended to reflect that he did not kill the victim but acted only as an accomplice . Appellant was initially arrested on these charges on March 15, 1998, and remained in custody until he escaped on November 2, 1998. He was captured and reincarcerated on November 22, 1998, and has remained in custody since that date . Following a trial by jury in 1999, Appellant was initially convicted of complicity to murder, robbery in the first degree, arson in the third degree, and of being a persistent felony offender in the second degree (PFO 2nd), and was sentenced to life in prison without the possibility of parole for twenty-five years. KRS 532.030(1) . On May 24, 2001, those convictions and sentences were reversed and remanded for a new trial . Mills v. Commonwealth, 44 S .W .3d 366 (Ky. 2001). On July 3, 2001, Appellant was discharged from state prison and reincarcerated in Johnson County.

Mitchell v. Com., 2003-SC-000670-MR -Not To Be Published, Affirming -- PDF

Appellant was convicted by a Fayette County Circuit Court jury of wanton murder and robbery in the first-degree. Appellant was sentenced to life imprisonment without the possibility of parole for twenty-five years on the wanton murder conviction, and ten years for the first-degree robbery conviction . He appeals to this Court as a matter of right.

Moody v Com., 2004-SC-000341-MR - To Be Published, Affirming -- PDF

A jury of the Christian Circuit Court convicted Appellant of First Degree Trafficking in a Controlled Substance, First Offense, Cocaine, and of being a First Degree Persistent Felony Offender for which he was sentenced to a total of twenty years imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) . For the reasons set forth herein, we affirm Appellant's convictions. On November 9, 2001, Appellant was alleged to have been videotaped by a confidential informant who was working for the Hopkinsville Police Department.' The informant testified that she bought crack cocaine from Appellant. The detective who employed the informant stated that she left with cash and returned with crack cocaine. He also testified that he searched the informant and her van prior to giving her money to buy drugs and that he maintained eye contact with the informant up to the point when she entered the targeted residence . Other witnesses also testified for the Commonwealth and their testimony will be recounted herein as necessary.

Moore v. Com., 2004-SC-000572-MR - Not To Be Published, Affirming -- PDF -

This appeal is from a judgment based on a conditional guilty plea in the Fayette Circuit Court which convicted Moore of four counts of theft of identity of another without consent, one count of second-degree criminal possession of a forged instrument, one count of theft of identity without consent, and two counts of fraudulent use of credit cards - over $100 in a six-month period . He was sentenced to a total of twenty years in prison . Moore presents two issues: whether the search warrant affidavit upon which the search warrant issued was based failed to establish probable cause to search his home ; and, if the warrant provided a sufficient nexus between criminal activity and the address supplied or if information not provided by the detective to the magistrate had an effect on whether the good faith exception applies to allow admission of the fruits of the search of his home .

Moore v. Com., 2004-SC-000572-MR - To Be Published, Affirming -- PDF

This appeal is from a judgment based on a conditional guilty plea in the Fayette Circuit Court which convicted Moore of four counts of theft of identity of another without consent, one count of second-degree criminal possession of a forged instrument, one count of theft of identity without consent, and two counts of fraudulent use of credit cards - over $100 in a six-month period . He was sentenced to a total of twenty years in prison . Moore presents two issues: whether the search warrant affidavit upon which the search warrant issued was based failed to establish probable cause to search his home ; and, if the warrant provided a sufficient nexus between criminal activity and the address supplied or if information not provided by the detective to the magistrate had an effect on whether the good faith exception applies to allow admission of the fruits of the search of his home.

Mondie v Com,2002-SC-000534-DG -To Be Published, Reversing and Remanding -- PDF

Appellant, Steve Mondie, was convicted of Second-Degree Assault for shooting Greg McGowan . Appellant testified that he shot McGowan only after ordering him to leave Appellant's residence and then being hit in the mouth by McGowan . Appellant tendered a protection against burglary instruction, which the trial court refused . Was Appellant entitled to such an instruction? Because the evidence supported a finding that Appellant shot McGowan to prevent a burglary of his residence, we hold that the trial court erred in refusing to give a protection against burglary instruction . Accordingly, we reverse Appellant's conviction and remand for a new trial .

Morrison v. Com., 2002-SC-000936-MR -Not To Be Published, Affirming -- PDF

Appellant was convicted of Second-Degree Burglary and Alcohol Intoxication and found to be a First-Degree Persistent Felony Offender (PFO). He received a PFO enhanced sentence of twenty years and now appeals to this court as a matter of right, claiming four errors: (1) the trial court erred in failing to direct a verdict on the Second- Degree Burglary charge; (2) the trial court erred in failing to sua sponte instruct the jury on the defense of voluntary intoxication ; (3) the trial court erred in refusing to grant Appellant's motion for a mistrial following testimony from a witness that referred to Appellant's prior felony conviction ; and (4) the trial court erred in failing to direct a verdict on the charge of Alcohol Intoxication . After reviewing the record, we affirm Appellant's convictions