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June 2012 Archives

How is Robbery Defined in Kentucky Laws?

Kentucky law differentiates between Robbery, Theft and Burglary as all are separately defined.  This post will discuss the charges of 1st Degree Robbery and 2nd Degree Robbery in the Commonwealth of Kentucky.  Essentially, Robbery is theft by force while Burglary is breaking and entering with the intent to commit a crime.  The above links are prior posts describing theft and burglary. 515.020 Robbery in the first degree. (1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he: (a) Causes physical injury to any person who is not a participant in the crime; or (b) Is armed with a deadly weapon; or (c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime. (2) Robbery in the first degree is a Class B felony.  Class B felony is punishable by 10-20 years in prison.  515.030 Robbery in the second degree. (1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft. (2) Robbery in the second degree is a Class C felony.  Class C felony is punishable by 5-10 years in prison. Another major consideration when considering a trial versus a plea deal is that the B Felony of Robbery in the 1st Degree is considered as a violent offense under Kentucky statutes.  That is significant in dealing with the possibility of parole.  Under normal conditions, an inmate is eligible for parole after serving 20% of his sentence in Kentucky.  If the offense is considered a violent offense, parole eligibility is not available until the inmate serves 80% of his sentence.  The difference in a 10 year prison term under Class C v. Class D may be 8 v. 2 years of actual time incarcerated. If you have been charged with Robbery or any other crime in Northern Kentucky, you should discuss the case with an experienced criminal defense attorney.  For a consultation with a lawyer in Gallatin, Boone, Campbell or Kenton Counties, call Michael Bouldin at 859-581-6453 or email at mwbouldin@fuse.net

What Is Discovery?

In representing criminal defendants in the Commonwealth of Kentucky, the defendant is permitted to inspect, discover and be made aware of the evidence which the Commonwealth prosecutor intends to introduce in order to try to gain a conviction in the criminal case.  Generally, the attorney for the Defendant will file a motion for discovery.  This is based primarily on the US Constitution, Kentucky Constutation and Criminal Rule 7.24 in Kentucky Rules of Criminal Procedure.   The Rule is as follows:  RCr 7.24 Discovery and inspection (1) Upon written request by the defense, the attorney for the Commonwealth shall disclose the substance, including time, date, and place, of any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness, and to permit the defendant to inspect and copy or photograph any relevant (a) written or recorded statements or confessions made by the defendant, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody, or control of the Commonwealth, and (b) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, that are known by the attorney for the Commonwealth to be in the possession, custody or control of the Commonwealth. (2) On motion of a defendant the court may order the attorney for the Commonwealth to permit the defendant to inspect and copy or photograph books, papers, documents or tangible objects, or copies or portions thereof, that are in the possession, custody or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable.  This provision authorizes pretrial discovery and inspection of official police reports, but not of memoranda, or other documents made by police officers and agents of the Commonwealth in connection with the investigation or prosecution of the case, or of statements made to them by witnesses or by prospective witnesses (other than the defendant). (3)(A)(i) If the defendant requests disclosure under Rule 7.24(1), upon compliance to such request by the Commonwealth, and upon written request of the Commonwealth, the defendant, subject to objection for cause, shall permit the Commonwealth to inspect, copy, or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody, or control of the defendant, which the defendant intends to introduce as evidence or which were prepared by a witness whom the defendant intends to call at trial when the results or reports relate to the witness's testimony. (ii) If the defendant requests disclosure under Rule 7.24(2), upon compliance with such request by the Commonwealth, and upon motion of the Commonwealth, the court may order that the defendant permit the Commonwealth to inspect, copy, or photograph books, papers, documents or tangible objects which the defendant intends to introduce into evidence and which are in the defendant's possession, custody, or control. (B)(i) If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt, the defendant shall, at least 20 days prior to trial, or at such later time as the court may direct, notify the attorney for the Commonwealth in writing of such intention and file a copy of such notice with the clerk.  The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate. (ii) When a defendant has filed the notice required by paragraph (B)(i) of this rule, the court may, upon motion of the attorney for the Commonwealth, order the defendant to submit to a mental examination.  No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, shall be admissible into evidence against the defendant in any criminal proceeding.  No testimony by the expert based upon such statement, and no fruits of the statement shall be admissible into evidence against the defendant in any criminal proceeding except upon an issue regarding mental condition on which the defendant has introduced testimony. (C) If there is a failure to give notice when required by this rule or to submit to an examination ordered by the court under this rule, the court may exclude such evidence or the testimony of any expert witness offered by the defendant on the issue of his or her guilt. (D) Evidence of an intention as to which notice was given pursuant to this rule, but later withdrawn, shall not be admissible, in any civil or criminal proceeding, against the person who gave said notice. (4) If the case has been set for trial, a request for relief under this rule shall be made a reasonable time in advance of the trial date, and the granting of a continuance by reason of such request shall lie within the sound discretion of the court. (5) An order granting relief under this rule shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just. (6) On a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate.  On motion the court may permit the Commonwealth to make such showing, in whole or part, in the form of a written statement to be inspected by the court privately;  and if the court thereupon grants relief following such private inspection the entire text of the Commonwealth's statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant. (7) One (1) motion shall exhaust the relief available to the movant under this rule, except that a subsequent motion may be sustained on a showing of just cause. (8) If subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested which is subject to discovery or inspection under the rule, that party shall promptly notify the other party or the other party's attorney, or the court, of the existence thereof. (9) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or an order issued pursuant thereto, the court may direct such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as may be just under the circumstances. With this evidence, the Defendant should be well aware of the evidence and thus allow the attorney and Defendant to assess the strength of the case.  There should be very little in the way of surprises at the trial of the action; of course, a witness might testify differently than the statement says, but a prior statement can be used to cross examine and impeach testimony.   While each county is different, most Northern Kentucky prosecutors have an Open File policy.  This means that the prosecutor will share with the defense attorney all of the information, likely even including notes (which are not discoverable) that is in their files.  Local counsel knows the prosecutors and can use this information to negotiate plea bargains as well as defend the case.  This process also generally greatly increases the time required to obtain discovery and leads to plea deals in a most efficient manner. The most important general pieces of evidence are any statements/confessions by the Defendant and the statements of the witnesses.  The physical evidence can also be inspected and may be separately tested, if there is a reason for the test.  In almost every case, the attorney should at least make an effort to obtain the evidence which is discoverable under criminal rule 7.24. If you have been charged with a crime and need to consult a lawyer and have criminal defense questions in Northern Kentucky contact Michael W. Bouldin at mike@bouldinlawfirm.com or call 859-581-6453.  

What is Miranda Rights and Can Charges Be Dismissed If Not Read?

Many people believe that if they are arrested and not "read their rights," they can escape punishment.  This is incorrect.  If the police fail to read a suspect his or her Miranda rights during a custodial interrogation, then the prosecutor cannot use anything the suspect says as evidence against the suspect at trial.

When Does Drunk Diving Become Homicide?

In Northern Kentucky there is a difference between normal DUI, which may be aggravated if it involves serious physical injury or death, and reckless homicide, manslaughter and murder.  While a DUI accident which results in death is probably most appropriate for a reckless homicide charge, the prosecutor has broad discretion in what type of charges to bring and that decision is based on a number of factors. As posted in the Northern Kentucky Enquirer today: COVINGTON -- A 29-year-old Northern Kentucky man learned his punishment on Tuesday for a fatal hit-and-run accident that killed a grandfather who was changing his tire on the side of an interstate. Michael Benjamin Smith was sentenced to eight years and six months in prison by Judge Martin Sheehan. He had previously pleaded guilty to reckless homicide and first-degree wanton endangerment in addition to drunken driving for killing 66-year-old White Oak resident Peter Minor. "The conduct after the crime is troubling," Sheehan said while explaining his decision. The judge then rattled off Smith's actions after the fatal crash: He drove after his mother warned him not to get behind the wheel. He didn't stop to render aid when he hit the stranded motorist. He lied about driving and then tried to make up an alibi. Assistant Commonwealth's Attorney James T. Redwine had asked for the maximum 10 years. He said this wasn't a case of someone having one too many drinks to drive legally. "This was driving to the extent that he can't remember - driving while blacked out," Redwine said in reference to Smith's claims he doesn't remember the details of the crash. Smith's attorney, Scott Croswell, was hoping for a sentence of no more than five years. He had asked the judge to split the punishment between prison time and probation. Croswell said his client has shown genuine remorse. He said since the crash, Smith has acknowledged a serious alcohol addiction, began training to speak to students about the dangers of drinking and driving and tried to commit suicide - twice. The victim's wife, Jennie Minor, had also wanted the maximum sentence. "He shattered our dreams of growing old together," she said while fighting back tears. "I miss him every minute of every day. My life will never be the same." Peter Minor's son, Shannon Minor, said no amount of time behind bars is enough for what Smith did. He gets to come home eventually," Shannon Minor said. "My dad never gets to come home. What am I supposed to tell my children? My 3-year-old keeps telling me grandfather is going to come back." In Northern Kentucky the first decision on how to charge the case belongs to the officer.  Often, however, the prosecutor will overrule that decision in bringing either more serious felony charges of homicide or less serious charges on only the DUI.  This decision of whether to bring the charges is vested in the County Attorney and with the Commonwealth Attorney of the County of arrest.  A variety of factors influence that decision, including: public perception and outrage, media attention, victim family impact, prior conduct of the defendant, actions before, during and after of the defendant AND, most importantly, the ability of the prosecution to prove their case to a jury. Involvement of an attorney for the defendant from the earliest possible time is often the key to negotiating a favorable resolution.  If the attorney can avoid media coverage, the likelihood of a lesser charge is increased.   Once the case reaches the media, the pressure on the prosecution for justice is intense.  A skilled attorney can assist in negotiating a plea agreement that is acceptable to the defendant as well as allows the prosecutor to appease the victim as well as the public. If you have been arrested and charged with DUI, reckless driving, reckless homicide, manslaughter or any other crime, contact a criminal defense attorney who has handled numerous cases.  In Northern Kentucky, contact Michael Bouldin for a consultation regarding your case by calling 859-581-6453 or email to mwbouldin@fuse.net.

What Is Fleeing Charge in Kentucky?

Kentucky has various degrees of fleeing from an officer under the criminal code. It can be charged as either a felony or a misdemeanor charge. A class A misdemeanor is punishable by up to 12 months in jail, $500 fine or both. A class D felony is much more serious as it carries 1-5 years in prison as well as a permanent record of the felony in most cases. In this blog, I will consentrate on the mroe seriouse felony charge of Fleeing or evading police in the first degree under KRS 520.095. The statute defines Felony Fleeing under KRS 520.095 as as Class D Felony as follows: (1) A person is guilty of fleeing or evading police in the first degree: (a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists: 1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720; 2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010; 3. The person is driving while his or her driver's license is suspended for violating KRS 189A.010; or 4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property; or (b) When, as a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and at least one (1) of the following conditions exists: 1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720; or 2. By fleeing or eluding, the person is the cause of, or creates a substantial risk of, serious physical injury or death to any person or property. Whether at the arraignment, talking to the prosecutor, at the preliminary hearing or elsewhere, an attorney can be of significant aid when dealing with a felony fleeing charge. The attorney can attempt to negotiate or secure testimony that may be used later to successfully defend the matter. As you can see from the statute, there are a number of elements required to prove felony fleeing. Those include: knowing or wantonly disregarding an officer's direction to stop as well as one of the other factors. Simply failing to stop in a time the officer deems reasonable while driving drunk is insufficient. If you have been charged with either misdemeanor or felony fleeing, you should contact an attorney at the earliest opportunity. For a consultation, contact Michael W. Bouldin at 859-581-6453 or email at mike@nky-criminal-defense-lawyer.com

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