Petition for Writ of Certiorari — Robinson v. Kentucky

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86-650 SEP 22 1988

JOSEPH F. SPANIOL, JR,

CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JO EVELYN ROBINSON,

Petitioner

vs.

COMMONWEALTH OF KENTUCKY,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE KENTUCKY COURT OF APPEALS

ROBERT E. SANDERS

ROBERT E. SANDERS & ASSOCIATES

The Colonial, Suite One

508 Greenup Street

Covington, Kentucky 41011

Telephone: (606) 491-3000

ATTORNEY FOR PETITIONER

Serve: Robert E. Sanders

CERTIFICATE OF SERVICE

I hereby certify that on the 18th day of

October, 1986, I served by United States Mail,

three true and correct copies of this Petition

for Writ of Certiorari upon all parties re-

quired to be served: Hon. David L. Armstrong,

Attorney General of the Commonwealth of

Kentucky, Office of the Attorney General,

Capitol Building, Frankfort, Kentucky 40601;

Hon. Paul Twehues, Campbell County Attorney,

331 York Street, Newport, Kentucky 41071; and

upon Hon. Justin Verst, Assistant Campbell

County Attorney, 331 York Street, Newport,

Kentucky 41071.

¢,

ROBERT E. SANDERS

ATTORNEY FOR PETITIONER

ROBERT E. SANDERS AND

ASSOCIATES

508 Greenup Street

Suite One

Covington, Ky. 41011

(606) 491-3000

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QUESTIONS PRESENTED

WHETHER PETITIONER WAS DENIED HER SIXTH

AMENDMENT RIGHT TO CONFRONT WITNESSES

AGAINST HER WHEN THE COMMONWEALTH OF

KENTUCKY FAILED TO DISCLOSE ITS INTENT TO

CALL A WITNESS AS REQUESTED IN A BILL OF

PARTICULARS, AND WHEN THE TRIAL COURT

OVERRULED A DEFENSE MOTION FOR A CONTINU-

ANCE, DENYING THE DEFENSE AN OPPORTUNITY

TO PREPARE EFFECTIVE CROSS-EXAMINATION OF

THE WITNESS.

WHETHER PETITIONER WAS DEPRIVED OF DUE

PROCESS OF LAW, AS GUARANTEED BY THE

FOURTEENTH AMENDMENT, BY THE PROSECUTOR'S

CONDUCT DURING CROSS-EXAMINATION OF

DEFENSE WITNESSES AND DURING CLOSING

ARGUMENTS WHEN, OVER OBJECTIONS, HE WAS

ALLOWED TO MAKE REPEATED REFERENCES TO

UNRELATED CONVICTIONS, AND UNRELATED

ARRESTS IN WHICH NO CONVICTIONS WERE EVER

OBTAINED .

WHETHER PETITIONER WAS DEPRIVED OF HER

FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS

OF LAW, WHEN THE TRIAL COURT REFUSED, AS

A MATTER OF POLICY, TO CONSIDER PROBATION

AND CONDITIONAL DISCHARGE, DISREGARDING

KENTUCKY CASE LAW AND KENTUCKY STATUTES

REQUIRING SUCH CONSIDERATION, AFTER A

JURY VERDICT SET A SENTENCE AND PENALTY.

TABLE OF CONTENTS

OUCGECIORS PROROGRTOGE 6 oii sete ee tases 3

Bae ee PRESS OG a ee ce ee wes eantaon 5

wo RS ee ea aa a a ame aera a ee ae 9

JUBASGICCLORRL STATCOMONRE 2... cc cccessintveeas 9

COMSCITULCIOORL FPEOVEGIONS «2. on ct cece aces 10

SUMCemeRne GE Cie CARS 2 oc crest ete sicens 10

Reasons for Granting the Writ ............. 19

t< THE COMMONWEALTH OF KENTUCKY, BY

FAILING TO DISCLOSE ITS INTENT TO

CALL A WITNESS, AND THE TRIAL COURT,

IN OVERRULING DEFENSE MOTIONS IN

LIMINE OR FOR A CONTINUANCE, VIOLATED

VIOLATED PETITIONER’ S SIXTH AMENDMENT

RIGHT TO CONFRONT OPPOSING WITNESSES

Xe)

II. IMPROPER CONDUCT BY THE PROSECUTOR

DURING CROSS EXAMINATION OF DEFENSE

WITNESSES AND DURING CLOSING ARGUMENTS,

DEPRIVED PETITIONER OF DUE PROCESS OF

LAW, AS GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE

oe: Oe eee ee re ee 30

III. PETITIONER WAS DEPRIVED OF DUE PROCESS

OF LAW WHEN THE TRIAL COURT REFUSED, AS

A MATTER OF POLICY, TO CONSIDER PROBA-

TION OR CONDITIONAL DISCHARGE, IN

APPARENT DISREGARD OF KENTUCKY STATUTES

AND CASE LAW REQUIRING IT .........226. 40

CS a ee ee Se a a ak ee a ee 44

RE in 5-5 ke a Ce es 6 SA ee eee 45

TABLE OF AUTHORITIES

U.S. Supreme Court Cases: Page

Alford v. United States,

(2 ON Se see, Se rer ree ere 27

Davis v. Alaska,

ee ae Ge POE beet we eee es caeas 27

Donnelly v. DeChristoforo,

| ee ee aan 36, 37

Mattox v. United States,

a a ee ee kek eee tee een abes 28

Pointer v. Texas,

ee ec ee RO ck wc hk 8 6 4 8 eee oe 26

Smith v. Illinois,

ee ae BO RUD 2c cease eee he 8 be ees 27

Other Federal Cases:

Cook v. Bordenkircher,

Soe ©.ae ear seem Cig. 2979) «.. 22> as ae

St. Clair v. Eastern Airlines, Inc.,

279 F.2d. 119 (2nd Cir. 1960), cert.

Genied 366 U.8. GE2Z €Ii9GO) 2... .cccvcese 34

Stevens v. Bordenkircher,

tae B.ae@ Jee (60m Cif. 19664) .....2 20% 26

United States v. Bohle,

See wie oe tree CSF. ESTE) co cwcis cee 34

United States v. Leon,

Soe oime Oar tecm Cet. I97G) 2c escvcaes 37

Kentucky Cases:

Barnett v. Commonwealth,

403 8.0.24 40 (Ky.Ct.App. 1966) ..... 35

Bowler v. Commonwealth,

558 S.W.2d 169 Ce EERE: 6 ae k we hee a 32

Brewer v. Commonwealth,

wae cee Pe ORY. AST TF) 6 cee eee passim

Brown v. Commonwealth,

378 S.W.2d 608 (Ky. 1964) (overruled

ee wk bean en aes 21

Commonwealth vy. Barber,

643 S.W.2d 592 (Ky.Ct.App. 1982) . passim

Davis v. Commonwealth,

a eee Be Es ROT OD: occ cs asin wane 24

Donovan v. Commonweaith,

Sic 8.8.00 Ges €hv. F9GO) .....4.. aa, a2

Edwards v. Commonwealth,

Be Rs I” RN or a 33

James v. Commonwealth,

ge ee Re os ee 26

King v. Venters,

ae mec. Tae: Ce .. ROOE ks ts 66 een ee 22

Louisville & Nashville R.R. Co. v. Payne,

Rae ee ee Oe PE 6 oe bene eee 32

Parsley v. Commonwealth,

eee ee ee es ED wt ice eke 36

Payne v. Commonwealth,

ee Bee ee) CO .. ) e 21

621 S.W.2d 36 (Ky.Ct.App. 1981) ...... 39

Thompson v. Commonwealth,

Woodford v. Commonwealth,

376 @.0. 26 Soe thy. 1964) ...6.0.5.55: 32

Kentucky Statutes & Criminal Rules

is wee A a A A686 06 Ree tended passim

Ky. Rev.Stat.Ann. Section 533.010

Cee as Ge 6 kia 5 0064 8 fo 6 passim

Ky. Rev. Stat. Ann. Section 529.010

EE OED” 6G a kW 6c6ta ae 6 Woe od 608 passim

Treatises

Haynes, Kentucky Jurisprudence [Criminal

PD ROE he tic hc eV ek 6a eae k ies 21

rad

ate.

art ’ a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JO EVELYN ROBINSON

Petitioner

vs.

COMMONWEALTH OF KENTUCKY

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE KENTUCKY COURT OF APPEALS

Petitioner, Jo Evelyn Robinson, respect -

fully prays that a Writ of Certiorari be

issued to review the Judgment of the Kentucky

Court of Appeals in this case.

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OPINION BELOW

The Order of the Kentucky Court of

Appeals denying discretionary review in this

case is attached hereto as Appendix "A".

The Judgment of the Campbell Circuit

Court, adopting and reaffirming a previously

vacated Order and Judgment, is attached hereto

as Appendix "B”.

The verdict of the Campbell County

Kentucky District Court is attached hereto as

Appendix "C".

JURISDICTIONAL STATEMENT

The Order of the Kentucky Court of

Appeals denying discretionary review of this

case was entered July 23, 1986. This Court's

jurisdiction is invoked pursuant to 28 U.S.C.

Section 1257(3), Petitioner having asserted

below, and asserting herein, deprivation of

rights secured by the United States Constitu-

tion.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The provisions of the United States

Constitution which are relevant to the deter-

mination of the present case are the follow-

ing: U.S. Const. Amendments VI and XIV.

See appendix "D" for the text of these Amend-

ments.

The Kentucky statutes and criminal rules

which are relevant to the determination of the

present case, are the following: Ky. Rev.

Stat. Ann. Sections 529.060, and 533.010

(Baldwin 1984), and Ky.R.Crim.P. 6.22, which

are set out verbatim herein.

STATEMENT OF THE CASE

On May 14, 1985, Petitioner, Jo Evelyn

Robinson, an exotic dancer, was employed as

the feature act at The Brass. The Brass is a

nightclub located in Newport, Kentucky. While

working, Petitioner noticed Newport Police

Officer Coy Cox as he sat at a table posing as

a customer of the establishment, and asked him

if he would like to buy her a drink. The

drink price is eight dollars. By purchasing a

drink for a dancer, the customer is then

permitted ten minutes of conversation with a

dancer with whom a customer would normally not

be permitted to speak. This practice is known

as "mixing" and is a means by which dancers at

The Brass earn additional money based on a

percentage of the total amount of money spent

on drinks purchased for them.

Having agreed to purchase a drink for

her, Officer Cox falsely identified himself as

"Doug" and told Jo Evelyn he was employed at

Proctor and Gamble in Cincinnati, Ohio.

Later in the evening, Officer Cox, (known

to Petitioner as "Doug") agreed to buy Jo

Evelyn a "fish bowl". This is a more expen-

Sive drink ranging in price from thirty-five

dollars to fifty-five dollars, depending on

how much the customer wishes to spend. The

dancer also receives a percentage of a "fish

bowl", and the customer is permitted to

converse with the dancer, usually a feature

act, for an additional thirty minutes.

Petitioner and Officer Cox moved to a

booth and conversed. At the close of their

conversation, Petitioner asked "Doug" to stop

in again. Her intention was to encourage

"Doug" to return and thereby possibly earn

additional drink sale commissions, which was

common practice in such establishments. There

was never any allegation that any improper or

illegal conversation occurred during this

meeting.

Two days later, on May 16, 1985, Officer

Cox returned to The Brass, once again posing

as a customer. This time he was approached by

another dancer known as "Serena Storm". He

told Serena that he was there to see "Angel"

(Petitioner's stage name is "Angel Delight"),

who was dancing at the time. Later, Petition-

er joined "Serena” and "Doug" at a table and

the three of them conversed.

From this point forward, the testimony of

Petitioner, Serena and Officer Cox conflicts.

Officer Cox testified that when Petition-

er joined he and Serena at the table, Serena

mentioned a "menage a trois", then left to sit

with another customer. Officer Cox testified

that Petitioner then suggested that only the

two of them get together, and asked him what

time he finished work the next day (Friday,

May 17, 1985). (Trial Tape 7236, side 2).

Officer Cox testified that they arranged

to meet at the River City Landing, a local

restaurant, at 5:00 p.m. the next day and that

Petitioner would "fuck and suck" him. This

activity was supposedly to occur at the Travel

Lodge, a nearby motel. It was further alleged

that Petitioner instructed him to bring around

one hundred and fifty dollars: thirty for the

room, one hundred for her, and the rest for

drinks. (Trial Tape 7236, side 2).

Petitioner, Jo Evelyn Robinson, testified

that "Doug" seemed different from the routine

customer who frequented The Brass; he was

sophisticated and treated her with kindness.

She further testified that she had been

impressed with "Doug" and was interested in

seeing him socially, and that he had seemed,

by his conduct, to be equally interested.

(Trial Tape 7238, side 2). Although Jo Evelyn

does not normally date customers, she liked

"Doug" and saw him as "different" from the

ordinary patrons. (Trial Tape 7239, side l).

Petitioner and "Doug" arranged to meet at

the River City Landing at 5:00 p.m. the

following day for drinks and dinner before she

was scheduled to work at The Brass at 7:30

p.m. Petitioner further testified that there

was never any mention of "fucking and suck-

ing", the Travel Lodge, or of any money.

(Trial Tape 7238, side 2).

The only other witness testifying for the

Commonwealth at trial was Police Lt. Kenneth

Page, who was not present during any of the

conversations or meetings between Officer Cox

and Jo Evelyn. Nevertheless, Lt. Page was

permitted, over repeated objections by defense

————— <x“

counsel, to describe to the jury in particu-

larity, the history of prostitution and vice

in the City of Newport, and to give a detailed

account of the efforts made by the Newport

Police Department to clean up the City. (Trial

Tape 7235, sides 1 & 2). None of the infor-

mation elicited during Lt. Page's testimony

was relevant or material to the charges

against Petitioner.

Likewise, during the testimony of defense

witnesses, and over repeated objections, the

prosecutor, was allowed by the Trial Court to

cross-examine regarding prostitution within

the City of Newport, in which convictions were

obtained against other women employed at

various nightclubs. The prosecutor further

questioned defense witnesses, concerning other

prostitution arrests, in which no convictions

or adjudications of guilt were secured. None

of these cases had anything whatsoever to do

with Petitioner, or the events which led to

the charges against her. (Trial Tape 7236,

side 1).

Although the trial court sustained

defense objections to references regarding

undisposed of, or open prostitution charges,

and finally admonished the prosecutor against

the use of such information, (Trial Tape 7235,

side 2), the prosecutor nevertheless persisted

and continued to read open charges from a

stack of his records, within the guise of

questions. (Trial Tape 7236, side 1). The

implication to the jury was that Petitioner, a

woman with no prior criminal record cf any

kind, was responsible for the evils, whether

real or imaginary, in Newport, Kentucky.

The jury found Petitioner guilty of

prostitution and fixed her punishment at

thirty days confinement in the county jail and

a fine of two hundred fifty dollars. Immedi-

ately thereafter, the trial judge entered

judgment on the jury’ s verdict, overruled

Defendant’ s request for a pre-sentence inves-

tigation, and gave no consideration to proba-

tion or conditional discharge. (Trial Tape

7240, side 1). The execution of the sentence

was postponed until August 12, 1985, in order

for defense counsel to begin the appellate

process. At that time, defense counsel again

moved for probation or conditional discharge.

The court, reiterating its position taken

earlier at trial, stated that its policy was

never to probate or conditionally discharge a

sentence returned by a jury verdict. (Trial

Tape 7233, side l).

Defense counsel filed a Statement of

Appeal on October 9, 1985, to which the

Commonwealth filed a Counterstatement of

Appeal on October 25, 1985. A Reply Memoran-

dum in response to the Counterstatement of

Appeal was filed by defense counsel on Novem-

ber 13, 1985. Although the defense had, by

right, until November 14, 1985, to file the

reply brief, Judge Leonard Kopowski, the judge

designated on appeal, entered his judgment

affirming the verdict on November, 4, 1985.

This was ten days before the deadline for

Defendant's reply brief.

As a result, Judge Kopowski, upon motion

of defense counsel, recused himself and set

aside the judgment of November 4, 1985, on

November 21, 1985. The case at bar was sub-

sequently assigned to Judge George Muehlenkamp

of the Campbell County Kentucky Circuit Court

for adjudication upon appeal. On April 22,

1986, Judge Muehlenkamp entered a judgment

adopting and reaffirming the vacated Judgment

of November 4, 1985. The Defendant filed a

timely Motion for Discretionary Review with

the Kentucky Court of Appeals which was denied

July 23, 1986. This Petition for a Writ of

Certiorari followed.

REASONS FOR GRANTING THE WRIT

THE COMMONWEALTH OF KENTUCKY, BY FAILING

TO DISCLOSE ITS INTENT TO CALL LT. PAGE

AS A WITNESS, AND THE TRIAL COURT, IN

OVERRULING THE DEFENSE MOTIONS IN LIMINE

OR FOR A CONTINUANCE, VIOLATED PETI-

TIONER’S RIGHT TO MEANINGFULLY CONFRONT

WITNESSES AGAINST HER, AS GUARANTEED BY

THE SIXTH AMENDMENT TO THE CONSTITUTION

OF THE UNITED STATES.

Kentucky Rule of Criminal Procedure 6.22

reads as follows:

The Court for cause shall direct

the filing of a bill of particulars. A

motion for such bill may be made at any

time prior to arraignment, or thereafter

in the discretion of the Court. A bill

of particulars may be amended at any

time subject to such conditions as

justice requires. (Ky.R.Crim.P. 6.22)

In the case at bar, counsel for the

defense filed a Motion for a Bill of Particu-

lars, pursuant to Kentucky Rule of Criminal

Procedure 6.22, which was sustained by the

Campbell County District Court, requesting in

part that the Commonwealth:

6. Provide the Defendant with the names

and addresses of any witnesses to the

alleged violation and/or of any persons

who could provide corroboration thereof.

In response to this motion, the Common-

wealth represented to the defense that the

only witness to be called was Ofticer Cox, the

arresting cfficer. At trial, the Common-

wealth, contrary to this representation,

called Lt. Page of the Newport Police Depart-

ment as a witness. Over repeated objection by

defense counsel, Lt. Page was permitted to

testify concerning the manner in which police

investigations were conducted in numerous

clubs throughout Newport -- testimony which

was totally unrelated either to Petitioner,

the events which transpired between Petitioner

and the police officer, or to the specific

club in which Petitioner was working at the

time. (Trial Tape 7235, sides 1 & 2).

The Commonwealth contends that the

Kentucky Rules of Criminal Procedure do not

contain a requirement that the prosecution

' furnish a list of material witnesses to the

defense upon request. Although there is no

particular rule specifically addressing this

' point, the purpose of a Bill of Particulars is

to furnish information necessary to enable an

accused to understand and prepare his defense

against the charges without prejudicial

surprise upon trial.

As recognized by William Haynes in his

treatise (Haynes, Kentucky Jurisprudence

[Criminal Procedure] (1985)), Criminal Rule

6.22 is complimentary to the shorter form of

indictment permitted under Criminal Rule 6.10,

and, therefore, its function is to supplement

and provide any additional information that a

defendant needs to prepare his defense against

the charges without prejudicial surprise upon

trial. (Haynes, supra, at 173). See, Brown v.

Commonwealth, 378 S.W.2d 608 (Ky. 1964) (over-

ruled on other grounds), Payne v.Commonwealth,

656 S.W.2d 719 (Ky. 1983).

This position is further buttressed by

the fact that a motion made pursuant to

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Criminal Rule 6.22 can be amended at any time

when justice requires according to the rule.

. eons ae

_ It is therefore evident that the policy in

Kentucky favors discovery and inspection in

criminal proceedings.

Contrary Kentucky case law such as

Commonwealth v. Barber, 643 S.W.2d 592 (Ky.

Ct.App. 1982), is distinguishable from the

facts at bar. Barber dealt with a perjury

prosecution in which a handwriting expert was

called to testify that the signature on the

sworn statement in controversy was in fact

that of the defendant, and the prosecution's

failure to disclose the name of that witness.

The decision in Barber, was based on an

in-depth analysis of both King v. Venters, 596

S.W.2d 721 (Ky. 1980), and Donovan v. Common-

wealth, 610 S.W.2d 601 (Ky. 1980). Neither of

these cited cases is any more on point factu-

ally with the case at bar, than is the citing

case.

King dealt with an appeal from an order

of the Court of Appeals denying prohibition

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against an order of the trial court requiring

the defendants to submit a witness list to the

Commonwealth. The case narrowly held that

there is no authority requiring a defendant to

furnish a witness list to the Commonwealth.

Id.at 721. Likewise, Donovan, the case most

heavily relied on in the Barber opinion, dealt

specifically with the defendant's being

required to furnish the prosecution with a

list of witnesses in a Fifth Amendment con-

text.

The facts of Barber and its supporting

line of cases are totally inapplicable to the

situation before this Court. Here, Lt. Page

did not testify as an expert witness, but

rather gave irrelevant and inflammatory

testimony explaining the procedures of the

Newport Police Department concerning various

other unrelated investigations into Newport

night life.

Likewise, the analysis in Barber related

only to the defendant’s rights and duties in

supplying discovery information to the

_ Commonwealth and with Fifth Amendment ramifi-

oak

Brn

_cetions. Had the case at bar dealt with Jo

I Evelyn‘s failure to provide the Commonwealth

with the name of a witness and/or a Fifth

Amendment issue, Barber could be said to

weaken the Petitioner’s position. The case at

bar, however, deals with the Commonwealth‘ s

intentional withholding of information specif-

ically requested in the defense’s Motion for a

Bill of Particulars. As such, Barber cannot

possibly be relevant to an analysis of the

issues at bar, nor does it weaken the argu-

ments presented.

The failure of the Commonwealth to

disclose that Lt. Page would testify, thereby

misrepresenting discovery information to the

defense, constitutes reversible error pursuant

to Davis v. Commonwealth, 464 S.W.2d 250 (Ky.

1970), in which the Kentucky Supreme Court

held:

When it is recalled that the appellant

was forced to trial over the proclaimed

unpreparedness of his counsel, complete-

ly frustrated in his effort to obtain a

meaningful bill of particulars... it

appears obvious that his rights were

substantially prejudiced. Id. at 252.

Item 6 of Defendant’s Bill of Particulars

not only requested "“eye-witnesses," but also

that the defense be apprised of any ‘corrobor-

ating witnesses". Unless Lt. Page was a

witness to the event, or a witness providing

corroboration of the event in some way, his

testimony was irrelevant and immaterial to the

case at bar.

If Respondent argues that Lt. Page was

neither a witness to the event nor a witness

providing corroboration of the event in some

way, and hence his testimony was not subject

to discovery under the Bill of Particulars,

then his testimony was irrelevant and inadmis-

sible at trial.

Since Lt. Page testified, he must rave

been deemed either a witness to the event or a

corroborating witness in order for his testi-

mony to have been adjudicated sufficiently

relevant to have been presented before the

jury. Therefore, because his expected

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' testimony was not disclosed in the Bill of

_ Particulars, his actual testimony at trial was

error. In James v. Commonwealth, 482 S.W.2d

92 (Ky. 1972), the Kentucky Court of Appeals

' stated that [the Defendant] should not have

"to guess whom the Commonwealth might use as

corroborating witnesses .. ." Id. at 93.

The Commonwealth’s failure to disclose

Lt. Page as a witness. and the trial court’s

allowing him to testify over repeated objec-

tions of defense counsel, (Trial Tapes 7234

side 2, 7235 sides 1 & 2), unquestionably

deprived Petitioner of her right to confront

the witnesses offered against her, as mandated

by the Sixth Amendment to the Constitution of

the United States. As stated by this Court,

the right to confront forms the core of the

values furthered by the Sixth Amendment, and

"the right of cross-examination is an essen-

tial and fundamental requirement of the kind

of fair trial which is this country’s consti-

tutional goal." Pointer v. Texas, 380 U.S.

400 (1965). Likewise, in Stevens v. Borden-

* ean ii

pe.

kircher, 746 F.2d 342, 346 (6th Cir. 1984),

the United States District Court for the

Eastern District of Kentucky recognized

effective cross-examination as a fundamental

right.

In keeping with this premise, courts and

proceedings which prevent the criminal defen-

dant from attempting to show bias, prejudice

or lack of credibility on the part of a prose-

cution witness have consistently been held to

violate the Confrontation Clause. Davis v.

Alaska, 415 U.S. 308 (1974); Smith v. Illi-

nois, 390 U.S. 129 (1968); Alford v. United

States, 282 U.S. 687 (1931).

Such was the situation at bar. Although

Defendant had the opportunity to question Lt.

Page, in that he was present in the court-

room, Defendant was denied even the oppor-

tunity to formulate an effective cross-

examination, as interpreted by this Court.

A trial is an adversarial proceeding, and

the purpose of cross-examination is to

- aire 38 »

an a ’

question the credibility of the witness and

test his seusthaction. Ideally, this process

will reveal the truth. Effective

Cross-Examination cannot be accomplished

without careful pre-trial preparation, aimed

at presenting the jury with the widest possi-

ble panorama. Petitioner was not afforded

this opportunity, and therefore the jury

ee z

hearing her case was not presented with all

the facts necessary to reach a carefully-

rendered verdict. As this Court has stated:

The primary object of the constitutional

provision in question was to prevent

depositions or ex-parte affidavits being

used in lieu of a cross-examination of

the witness in which the accused has an

opportunity of .. . sifting the con-

: science of the witness.

Mattox v. United States, 156 U.S. 237,

242-243 (1895).

Defense counsel's inability to vigorously

cross-examine Lt. Page rendered his testimony

little more than an ex-parte soliloquy,

thereby defeating the doctrinal basis for the

Confrontation Clause. Unable to interview or

in any way discover a witness he knew nothing

about, there was no possible way that counsel

for the defense could attempt to dispute the

irrelevant testimony of Lt. Page. Lt. Page's

testimony was undoubtedly made more credible

and convincing to the jury due to his cloak of

authority as a police officer and by the

details of his years of experience in previous

irrelevant vice investigations, which were

drawn out in extensive detail by the prosecu-

tor. The jury was therefore fed only the dish

served to them by the Commonwealth -- a dish

_ of little substance, but upon which they

feasted heartily.

There can be little doubt that Lt. Page's

irrelevant testimony was planned, and inten-

tionally withheld by the Commonwealth. This

resulted not only in reversible error on the

part of the trial court, but also in a total

violation of Petitioner's rights under the

Sixth Amendment to the Constitution of the

United States.

II.

IMPROPER CONDUCT BY THE PROSECUTOR

DURING CROSS-EXAMINATION OF DEFENSE

WITNESSES AND DURING CLOSING ARGUMENTS

DEPRIVED PETITIONER OF DUE PROCESS OF

LAW AS GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES.

In the case at bar, the prosecutor's

. blatant and repeated attempts to get clearly

inadmissible evidence to the jury constituted

reversible error. During the trial, Mr. Roger

Peterson, manager of The Brass nightclub, was

called to testify for the defense. On cross-

examination, the prosecutor asked whether the

management of The Brass had "managed to be

successful at stopping prostitution at The

Brass." (Trial Tape #7238, side 1) Although

Mr. Peterson replied affirmatively, stating,

"[I] can’t say it never’s (sic) gone on there"

the prosecutor, in the guise of impeachment,

proceeded to present the jury with

unadjudicated charges against alleged perpe-

trators in totally unrelated cases:

Mr. Verst: Do you know a Margaret Ann

Cope? Are you aware of a charge of

prostitution against her back in 1978

out of the Brass Mule?

Mr. Peterson: No I’m not - she was

never arrested on the premises .. . if

there was a charge against her later on,

I have no idea.

Mr. Verst: Are you aware of a Roberta

Patton?

Mr. Peterson: Correct.

Mr. Verst: .. . two counts of prosti-

tution out of the Brass Mule, also of

December of 1984. Do you know where she

is now? She failed to appear for trial

and a Bench Warrant was issued for her

she’s never been located .. . Do

you know a girl named Bambi? Where's

Bambi ?

Over repeated objections by defense

counsel and admonition by the trial court, the

prosecutor nonetheless pursued a line of

questioning concerning unadjudicated accusa-

tions of wrongdoing dealing with other indi-

viduals. Clearly, the prosecutor, a well-

educated and seasoned advocate, knew the

ispropriety of such action, especially after

having been informed of such by the bench.

Equally as clear is the fact that the prosecu-

tor presented these unrelated facts in the

guise of substantive evidence, when in fact

the prosecutor had no substantive evidence to

present. A prosecutor’s use of incidents

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involving another person at a time and place

remote from the matter on trial in cross-exam-

ination was specifically condemned by the

Kentucky Supreme Court in Woodford v. Common-

wealth, 376 S.W.2d 526 (Ky. 1964).

As early as 1909, in the often-cited

decision of Louisville & N. R. Co. v. Payne,

118 S.W. 352 (Ky. 1909), the Kentucky Supreme

Court espoused the following presumption in

order that courts throughout the Commonwealth

might retain their credibility as fair but

adversarial forums:

where counsel persistently pursues a

line of interrogation which the Court

rules to be wrong and which one reason-

ably well acquainted with the rules

governing the admission of evidence must

be known to be improper, the conclusion

is that it is done for the purpose of

influencing and prejudicing the minds of

the jury. Id. at 354.

As articulated by Justice Lukowski for the

Kentucky Supreme Court in Bowler v Common-

wealth, 558 S.W.2d 169 (Ky. 1977), the highest

court of Kentucky

has repeatedly held that where the

Commonwealth Attorney persists in asking

improper and prejudicial questions for

the purpose of getting before the jury

evidence which the law does not permit

them to hear, a judgment of conviction

will be reversed. Id. at 171.

Although the Commonwealth’s Attorney

might attempt to justify his conduct during

cross-examination as an attempted showing of

intent or lack of mistake under Edwards v.

Commonwealth, 489 S.W.2d 23 (Ky. 1973), such

an attempt is unfounded. Edwards and its

progeny deal with witnesses who testify at

trial to show intent or lack of mistake or

innocent purpose of a defendant by utilizing

materials connected with the defendant. None

of the Clerk’s packets containing the

unadjudicated charges which the prosecutor

used in the alleged "impeachment" of Mr.

Peterson contained any information concerning

Petitioner.

Under these circumstances, it is ludi-

crous at best to suggest that such "evidence"

was introduced to show any common scheme,

intent, lack of mistake, etc., on the part of

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the Petitioner. Petitioner had no prior

criminal record of any kind, and the prose-

cutor either knew or should have known this

fact.

Presenting such prejudicial allegations

before a jury by means of cross-examination,

without being prepared to prove them, is

prneree regarded as reversible error.

United States v. Bohle, 445 F.2d 54, 73 (7th

Cir. 1971), St. Clair v. Eastern Air Lines,

ing., 279 ©.42@ ii9, i222 (26 Cir. 2960), cert.

denied, 364 U.S. 882 (1960).

Likewise, in his closing argument, the

prosecutor again went outside the evidence

when he told the jury:

All these people are so concerned and so

careful, but vice is still going on.

Why do we have to fight it day in, and

day out? Because they are not that

concerned and not that careful.

These girls go from one place to

another. How many of these girls would

you think, when they "fell" would report

that? When asked, would report they had

been convicted of prostitution? How

many of you think they'd write "yes" to

that? It’s ridiculous to think they

would answer that question truthfully

when they go from this state to that

state, and that state. Do you think she

will go to Nevada next week if she is

convicted today and say, fill out an

employment application, and say Yes, I

was convicted of prostitution in Ken-

tucky ? And they won't hire me out

there and, therefore, my livelihood is

down the tubes. Let’s be practical.

Let's be reasonable.

This is a way of life for these people.

They are not going to put that down -

that they have been convicted of prosti-

tution in Newport or ‘Vegas or anywhere

else. And we don't know that she

wasn t! (Trial Tape 7239, side 2).

There was, of course, no evidence to

support such an outrageous argument because,

in fact, the Defendant had never, before the

instant case, been accused of prostitution in

any State. Surely, the Commonwealth's

Attorney, a vigorous advocate, came to this

realization during his trial preparation.

Furthermore, an experienced prosecutor also

should ave known that reference to facts and

conclusions, which are outside the evidence,

are strictly forbidden in Kentucky, pursuant

to Barnett v. Commonwealth, 403 S.W.2d 40 (Ky.

1966).

It 1.8 clear that the prosecutor, by

injecting irrelevant and inadmissible matters

into the trial, attempted to picture for the

jury imaginary situations which had no founda-

tion in the record. The very same grounds

constituted reversible error in Parsley v.

Commonwealth, 306 S.W.2d 284, 286 (Ky. 1957).

The prosecutor s conduct did not result

in Jo Evelyn being tried for the charges

against her, but rather, for all the past and

present problems associated with Newport night

life. As such, the conduct of the prosecutor

invaded the province of the jury and consti-

tuted a violation of Petitioner’s right to due

process under the Fourteenth Amendment to the

Constitution of the United States.

The due process boundaries of

prosecutorial argument in Kentucky were

clearly delineated in Cook v. Bordenkircher,

602 F.2d 117 (6th Cir. 1979). In Cook, the

Sixth Circuit adhered to the “est articulated

by this Court in Donnelly v. DeChristoforo,

A ell Aled. ail lyay

416 U.S. 637 (1974), that prosecutorial

argument, to violate the Constitution, must be

so egregious as to render the entire trial

fundamentally unfair. The Cook court further

defined the Donnelly “egregious conduct” test

by reference to the framework provided in

United States v. Leon, 534 F.2d 667 (6th Cir.

1976):

In every case, we consider the degree to

which the remarks complained of have a

tendency to mislead the jury and to

prejudice the accused; whether they were

isolated or extensive; whether they were

deliberately or accidentally placed

before the jury, and the strength of the

competent proofs introduced to establish

the guilt of the accused. Id. at 679.

In the case at bar, such analysis flows

towards a conclusion that the "egregious

conduct” test was met, and that the Common-

wealth’s prosecutorial argument constituted a

violation of due process of law. As review of

the Record will show, the prosecutor contin-

ually and successfully sought to introduce

evidence which was both inadmissible and

highly inflammatory. He purposefully failed

to disclose a witness, who then was permitted

Pea Ah let a ADL elle sata tea ethan!

to relate irrelevant testimony concerning the

investigative procedures of the Newport vice

squad. This testimony was entirely unrelated

to either the Defendant or the charges against

her. Throughout cross-examination of defense

witnesses, the prosecutor utilized unadjud-

icated prestitution charges against other

individuals in Newport, to cast a cloud of

guilt and doubt over the Petitioner and to

arouse within the jury an "us against them"

sentiment of civic morality.

As for the strength of the competent

proofs introduced to establish the guilt of

the accused, the amount of objective proof

required by statute in Kentucky, only serves

to augment the contemptuous conduct of the

prosecution. Pursuant to Kentucky Revised

Statute 529.060 (1):

No person shall be convicted of prosti-

tution solely on the uncorroborated

testimony of a patron.

Ky.Rev.Stat.Ann. section 529.060 (1)

(Baldwin 1984).

Furthermore, the official commentary to

;

the statute reads in pertinent part:

The corrobative evidence must tend to

connect the accused with the commission

of the offense charged. The corrobative

evidence must be of such nature, charac-

ter and quality that a reasonable and

unprejudiced mind could conclude that it

tends to establish some fact that links

the accused with the principal fact of

the commission of the offense charged.

Ky.Rev.Stat.Ann. section 529.060, 1974

commentary (Baldwin 1984).

In Thompson v. Commonwealth, 621 S.W. 2d

36 (Ky.Ct.App. 1981), a police officer was

determined not to be a patron within the

meaning of K.R.S. 529.060 (1). Therefore, the

only evidence presented at trial was the word

of a police officer, clad in the authority and

credibility of his official position, against

the word of Jo Evelyn, a professional dancer,

who by the reputation of her profession alone,

was prejudiced in the eyes of the jurors

before her case in chief had even begun.

In light of these facts, the egregious

conduct of the prosecutor constituted a

violation of Petitioner’s due process rights.

ie aoa

rit.

PETITIONER WAS DEPRIVED OF HER FOUR-

TEENTH AMENDMENT RIGHT TO DUE PROCESS

OF LAW, WHEN THE TRIAL COURT REFUSED,

AS A MATTER OF POLICY, TO CONSIDER

PROBATION OR CONDITIONAL DISCHARGE, IN

APPARENT DISREGARD OF KENTUCKY CASE

LAW AND KENTUCKY STATUTES REQUIRING

SUCH A CONSIDERATION, AFTER A JURY

VERDICT SET A SENTENCE AND PENALTY.

The Kentucky Statute in effect during

this trial provided:

(1) Any person who has been convicted

of a crime and who is not been sentenced

to death may be sentenced to probation

or conditional discharge as provided in

this chapter.

(2) Before imposition of a sentence of

imprisonment the court shall consider

the possibility of probation or condi-

tional discharge. After due considera-

tion of the nature and circumstances of

the crime and the history, character and

condition of the defendant, probation or

conditional discharge should be granted

unless the court is of the opinion that

imprisonment is necessary for protection

of the public because:

(a) There is substantial risk

that during a period of probation

of conditional discharge the

defendant will commit another

crime; or

(b) The defendant is in need of

correctional treatment that can be

‘provided most effectively by his

commitment to a correctional

institution; or

chapter will unduly depreciate the

seriousness of the defendant ’s

crime.

Ky. Rev.Stat.Ann. section 533.010

(Baldwin 1984).

Although the statute leaves the granting

of probation to the discretion of the trial

court, subsections (2)(a) - (c) set out the

mandatory steps a judge must follow in every

criminal case in which a sentence of imprison-

ment is imposed.

The process mandated by statute is

illustrated in Brewer v. Commonwealth, 550

S.W.2d 474 (Ky. 1977). In that case, the

defendant argued that under K.R.S. 533.010 the

trial court is required to consider the

question of probation or conditional discharge

and to make a record of such consideration and

the reason for selecting an alternative. The

Kentucky Supreme Court recognized that K.R.S.

533.010 (2)(a) - (c¢) ocontcibe guidelines to

be used by the trial court in making the

determination” and held:

Even though the trial court has discre-

tionary authority. . .regarding the

granting of conditional discharge, it

was required to consider the feasibility

of this procedure. In view of this

rule, the record of the proceedings

leading up to the entry of the judgment

should clearly reflect the fact that the

consideration required by K.R.S. 533.010

had been afforded the convicted person

before judgment was finally éntered.

Id. at 478.

The situation in Brewer is similar to the

situation at bar. The record in Brewer failed

to disclose any consideration of the feasibil-

ity of probation or conditional discharge. In

the case at bar, the record clearly reflects a

failure to comply with the statute:

Mr. Sanders: We would again ask the

court to consider probation or condi-

tional discharge .

Prosecutor: .. .after a jury verdict is

returned it is our policy never to

recommend a change from that jury deter-

mination .

Judge Hehl: When the jury renders a

verdict and sets a sentence and penalty,

we don't touch it and we'll state here

that probation was considered and it's

the court’s policy not to consider

probation in instances such as this.

(Trial Tape 7233, side 1).

According to Brewer, the feasibility of

granting probation must be evaluated pursuant

to the factors enumerated in the statute, and

the record must refiect such an analysis. The

mere fact that within the same sentence Judge

Hehl stated “probation was considered” and

that “when a jury renders a verdict and sets a

sentence and penalty, we don’t touch it",

clearly illustrates that such a consideration,

although paid lip service, was by no means

considered pursuant to the mandates of K.R.S.

533.010 and Brewer. This is evidenced by the

fact that Petitioner had no prior criminal

history, owned her own home, and supported a

child, and yet was not deemed a candidate for

either probation or conditional discharge of

this, her first offense. Equally evident is

that such a failure on the part of the trial

court constituted a violation of Petitioner's

right te due process of law under the Four-

teenth Amendment to the Constitution of the

United States.

CONCLUSION

For the reasons set forth above, Peti-

tioner, Jo Evelyn Robinson, respectfully prays

that a Writ of Certiorari be granted to review

the Judgment of the Kentucky Court of Appeals.

re igen SUBMI D,

ROBERT E. SANDER

ATTORNEY FOR PETITIONER

ROBERT E. SANDERS AND

ASSOCIATES

The Colonial, Suite One

508 Greenup Street

Covington, Kentucky 41011

Telephone: (606) 491-3000

APPENDIX A

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. 86-CA-1274-D

JO EVELYN ROBINSON MOVANT

Vv. ON MOTION FOR DISCRETIONARY REVIEW

FROM CAMPBELL CIRCUIT COURT

COMMONWEALTH OF KENTUCKY RESPONDENT

kkkkkKkKKKKKKKEE

ORDER DENYING DISCRETIONARY REVIEW

BEFORE: LESTER, McDONALD, AND REYNOLDS,

JUDGES.

Ic is ORDERED that movant’s motion

for leave to file a reply to respondent's

response is GRANTED, and the reply is ORDERED

filed.

This Court, having considered the motion

for discretionary review, the response thereto

and reply to the response, and being otherwise

sufficiently advised, ORDERS that the motion

be, and it is hereby, DENIED.

ENTERED: July 23, 1986

‘/S/Charles B. Lester

JUDGE, COURT OF APPEALS

‘

APPENDIX B

CAMPBELL CIRCUIT COURT

DIVISION NO. ONE

JO EVELYN ROBINSON, )

Defendant/Appellee, )

-vs- NO. 85-X-039

COMMONWEALTH OF KENTUCKY

ee eee ee”

Plaintiff/Appellant.

On November 4, 1985, an Order and Judg-

ment was entered affirming the judgment of the

District Court. On November 21, 1985, an

Order was entered vacating this Judgment

because the Judge of the Circuit Court had

inadvertently entered said Order prior to the

appellant having filed a reply brief. Subse-

quently a motion to recuse the Circuit Judge

from participating was filed and said motion

was sustained. Thereafter, this matter was,

by Order of the Chief Regional Judge, referred

to the undersigned.

This Court has reviewed extensively the

record in this case, including the reply brief

of the appellant. After such review, and

having considered all of the arguments of

counsel, and the Court being advised:

IT IS ORDERED AND ADJUDGED that the

Judgment heretofore entered on November 4,

1985, which Order and Judgment affirmed the

action of the Campbell District Court, is

hereby adopted and reaffirmed. The judgment

of the lower Court is affirmed.

Entered April 22, 1986

/s/George Muehlenkamp

JUDGE

APPENDIX C

* Le

Sin Deer ates | ee Be otha oi ayes

are ; oe

CAMPBELL DISTRICT COURT

DIVISION NUMBER TWO

COMMONWEALTH OF KENTUCKY $

Plaintiff :

vs. TRIAL AND VERDICT

JO EVELYN ROBINSON

Defendant

This cause coming on for trial on the 6th

day of July, 1985, parties announced ready for

trial; came this Jury:

Dorothy Huff, Elva Lonneman, Patricia

McMillan, Holly Hegg, Stanley Hanson,

Joe Kries,

who were duly impaneled and sworn to law to

try the issue herein.

Having heard the evidence and argument by

counsel for both the Commonwealth and the

defendant, and being instructed by the Court,

the Jury retired to its room for deliberation,

and after due diligence, returned the follow-

ing verdict:

"We, the Jury, find the defendant guilty

of prostitution and we fix her punishment at

confinement in the County jail for a period of

30 days and a fine in the sum of $250.00.

/s/ Stanley Hanson, Foreman.

/s/ Lambert Hehl

LAMBERT HEHL, JUDGE

cc: Hon. Justin Verst

Hon. Robert Sanders

APPENDIX D

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the witness-

es against him; to have compulsory process for

obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

U.S. Const. amend, XIV Section 1:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty or

LABLE COPY |

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property, without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.