12/13/02 - MOTION FOR JUDGMENT OF ACQUITTAL/MOTION FOR NEW TRIAL

JOHN PATRICK MCCREARY DEFENDANT

Comes the defendant, by counsel, pursuant to RCr 10.24, RCr 10.02, RCr 10.26, RCr 10.06, CR 6.01, CR 59.01, CR 59.04, CR 60.02, RCr 1.04, the Kentucky and United States Constitutions; and all applicable statutes, rules, and case law; and hereby moves this Court for a judgment of acquittal, or in the alternative, to grant his motion for a new trial. In support of this motion, the defendant, by counsel, notes the following:

1. The defendant, John Patrick McCreary, being charged with Murder, two (2) counts, was tried by jury trial from Friday, November 8, 2002, to Tuesday, December 10, 2002, in Jefferson Circuit Court, Division Nine (9). He was found guilty by the jury of the charged offenses of Murder, and the jury set his punishment at life without parole for twenty-five (25) years. A sentencing date is to be assigned on Monday, December 16, 2002. The admission of improper and/or unduly prejudicial evidence or information over objection of the defendant, the denial of motions to strike improper and/or unduly prejudicial testimony that lacked probative value, the denial of the defendant's request to present evidence disputing the chief prosecution witnesses credibility, the denial of the defendant's motion for a directed verdict of acquittal at the close of the Commonwealth's case, the denial of the defendant's motion for a directed verdict of acquittal at the close of the defendant's case, the denial of the defendant's motion for a directed verdict of acquittal at the close of the Commonwealth's rebuttal case, the denial of the numerous motions to grant a mistrial, the sustaining of the Commonwealth's various motions in limine which prevented the defendant from contesting, impeaching, controverting, and disputing the credibility, veracity, and believability of various witnesses, and other factual, legal, and equitable errors, prevented the defendant from receiving a FAIR trial on the above charges. The Court has the opportunity pursuant to this motion to grant a judgment of acquittal, or alternatively, grant a motion for a new trial to correct the above errors, and remedy the defendant's improper conviction on the charges upon which he was convicted. While counsel will not discuss each and every error as indicated above in this motion, and instead will concentrate on some limited grounds and the law, the Court may respectfully grant the above alternative motions for these and/or other grounds, in its discretion.

2. RCr 10.24 allows five (5) days after the return of a verdict, and RCr 10.02 allows ten (10) days after the return of a verdict to file the above alternative motions. CR 6.0 1, along with the above criminal rules, indicates that intervening Saturdays, Sundays and Holidays are not to be included in the computation of time. This motion is being filed five (5) days after the return of the verdict by the jury, and it is therefore timely pursuant to the above rules, both civil and criminal.

3. The defendant, John Patrick McCreary, by counsel, respectfully requests the Court to grant his motion for a judgment of acquittal pursuant to RCr 10.24 as his initial remedy based on the grounds above and to follow. This rule grants the Court discretion "Not later than five (5) days after the return of a verdict finding a defendant guilty of one or more offenses, or after the discharge of the jury following their having not returned a verdict, a defendant who has moved for a directed verdict of acquittal at the close of all the evidence may move to have the verdict set aside and a judgment of acquittal entered, or for a judgment of acquittal. Likewise, if a defendant has been found guilty under any instruction to which at the close of all the evidence such defendant objected upon the ground that the evidence was not sufficient to support a verdict of guilty under that instruction, that defendant may move that to that extent the verdict be set aside and a judgment of acquittal entered. A motion for anew trial may be joined with this motion."

4. The above criminal rule has changed its title from MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT to MOTION FOR JUDGMENT OF ACQUITTAL, and it has also added the phrase "or after the discharge of the jury following their having not returned a verdict" to its alternative language. Otherwise, the language has continued from its adoption July 1, 1979. The rule gives the Court in its discretionary authority to review and/or correct trial matters prior to the transfer of the cases to the jurisdiction of the appellate court. While counsel could not find interpretation of the rule after the added language and new title became effective on January 1, 1999, one case provided insight to the requirement that counsel move for a directed verdict of acquittal both at the close of the Commonwealth's case, and at the close of the defense case, Commonwealth v. Pevely , Ky.App., 759 S.W.2d 822 (1988). Counsel for Mr. McCreary moved for a directed verdict of acquittal at the close of the Commonwealth's case, at the close of the defense case, and at the close of the Commonwealth's rebuttal case as well. A primary error by the trial court in this case was a denial of the defendant's efforts to impeach the chief prosecution witness, Ms. Jessica Hawkins, whose testimony was received by and through various "911 tapes", the testimony of LeeAnn Muncey, Emma Foust, and others. Counsel sought to impeach Ms. Hawkins's 911 testimony with the fact that she had lied to many and varied witnesses on the day of her death by indicating she was pregnant when the doctor who examined her on that date indicated she was not pregnant. She told Emma Foust, LeeAnn Muncey, Jesse Hawkins, presumably Joel Blevins, and others of this immediately prior to her death. The Commonwealth was allowed to bring into evidence multiple hearsay statements by Ms. Hawkins which allegedly implicated the defendant, vouch for her credibility as a witness, and then prevent the defense from impeaching that credibility by hiding behind in limine motions attacking the defense's impeachment as hearsay. This court approved error and successful Commonwealth tactic prevented the defendant from using crossexamination to evidence to the jury Ms. Hawkins' duplicity on the day of her death. The Court gave state evidentiary rules precedence over federal "right to present a defense" United States Supreme Court case law and thus denied the defendant a fair trial. The defendant should be granted a judgment of acquittal, or in the alternative, a new trial.

6. The defendant made numerous motions for mistrial in the above case. Among the grounds for a mistrial were the improper and prejudicial mention by witnesses and the Commonwealth of the earlier trial of the defendant. This information led the jury to improperly speculate as to "why" there had been an earlier trial. Whether the jury speculated it was due to "some technicality", a "hung jury", a mistrial, or otherwise deprived the defendant of a fair trial at this trial and made the jury more cc conviction prone" to correct for perceived "technicalities" at the earlier trial. Such error requires the Court to sustain the defendant's motion for a judgment of acquittal, or in the alternative, to grant the defendant a new trial.

7. An additional motion for a mistrial concerned the Commonwealth's disclosure in the middle of its case that the Commonwealth had sent additional evidence to the crime lab some two months prior to the trial to determine if there was saliva/DNA present on a "washcloth/baby wipe" used by Joel Blevins's mother to wipe her hand after touching her son's face in the area of a bite mark at issue in the case. The Commonwealth did not advise the defense of the existence of this evidence, the sending of this evidence to the crime lab, the results of the test of this evidence, or of its availability for testing by the defendant. This violated discovery rules, denied the defendant due process notice of this evidence and the right to seek to controvert the evidence, denied the defendant the opportunity to test what could be possible exculpatory evidence, and to investigate the circumstances of the evidence being received by the victim's mother. Such blatant disregard of the Court's discovery rules and deprivation of the defendant's right to present a defense demands the Court to enter a judgment of acquittal, or in the alternative, to grant a new trial.

8. An additional motion for a mistrial concerned the lead government's officer injecting an opinion in a non-responsive answer to a question that "his investigation showed the defendant to be guilty". Such a blatant effort to prejudice the jury, inject improper opinion evidence that invades the province of the jury on the ultimate issue in the case, and deny the defendant a fair trial, cries out for the sanction of a judgment of acquittal. Counsel provided the Court case law support for the granting of a mistrial on this ground alone. In the alternative, the Court should grant the defendant a new trial on this ground.

9. Other motions for a mistrial arose throughout the trial of the above case, and the cumulative effect of the errors by the Commonwealth and the Court support granting a judgment of acquittal. In the alternative, the Court should grant the defendant a new trial.

10. As the above case revolves itself around the statements of Ms. Jessica Hawkins, either through "911 tapes" or Ms. Jessica Hawkins' alleged statements made to LeeAnn Muncey, Emma Foust, Jesse Hawkins, and others, impeachment of these witnesses, and the challenge of Ms. Hawkins truthfulness, was at the heart of the defense case. Defense counsel was denied the opportunity to impeach and challenge Ms. Hawkins' statements by the Court's erroneous rulings prior to and during the trial. Case law supports the Court granting a judgment of acquittal, or in the alternative, granting a new trial.

11. Williams v. Commonwealth, Ky., 569 S.W.2d 139 at 143 (1978), in discussing false testimony by a witness, held that "in order to have his conviction set aside the defendant in such a case need only show that "the false testimony could in any reasonable likelihood have affected the judgment of the jury." See Giglio, 405 U.S. at 154, 92 S.Ct. at 766, quoting from Nqpue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (195 9)." Mr. McCreary, by counsel, argues that the factually challenged testimony by the primary Commonwealth witness, Ms. Jessica Hawkins, should be considered by the Court in reviewing this motion. The CD introduced by the defense as Exhibit # 56, of Ms. Hawkins response to the 911 operator at ": 52", indicates that she responded to "Who shot you?" with "It was Travis Thompson". This contradicts the "My cousin" answers the Commonwealth alleges she made to this operator. The defendant sought to impeach other contradictory statements of Ms. Hawkins as testified to by Ms. Muncy, Ms. Foust, and Mr. Hawkins but was prevented from doing so by the Court's pretrial and trial rulings.

12. In Commonwealth v. Spaulding, Ky., 991 S.W.2d 651 at 657, citing CR 60.02, the Court indicates "Thus, we conclude that in the appropriate case the introduction of perjured testimony, which is not known as such by the prosecutor, can result in a violation of the right to due process of law as provided by the Kentucky and United States Constitutions. Thus, we hold that a criminal conviction based on perjured testimony can be a reason of an extraordinary nature justifying relief pursuant to CR 60.02(f)..." While the case cites CR 60.02, RCr 10.26 similarly considers "Substantial Error" as "A palpable error which affects the substantial rights of a party... (allows) ... appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." See also Brock v. Commonwealth, Ky., 947 S.W.2d 24 (1997) indicating "We have interpreted the requirement of "manifest injustice" as used in RCr 10.26 ... to mean that the error must have prejudiced the substantial rights of the defendant ... i.e. a substantial possibility exists that the result of the trial would have been different." citing Schaefer v. Commonwealth, Ky., 622 S.W.2d 218 (198 1) and Partin v. Commonwealth, Ky., 918 S.W.2d 219,224 (1966).

13. The Court has discretion in considering such motions to grant an evidentiary hearing, see U.S. v. Anderson, 76 F.3d 685 (6th Cir. 1996), Land v. Commonwealth, Ky., 986 S.W.2d 440 (1999), and Wheeler v. Commonwealth, Ky., 395 S.W.2d 569 (1969). Mr. McCreary, by counsel, would respectfully request to present evidence at an evidentiary hearing in this regard if this would assist the Court in ruling on the above matters.

14. Most of the cases in Kentucky that consider the Court's role at this stage of the proceeding indicate the Court's discretion in this area and discuss RCr 10.02 motions for a new trial. In 1952, in Commonwealth for the Benefit of City of Richmond, 248 S.W.2d 895 at 897 (1952) the Court held "The trial judge has broad discretion in granting or denying a new trial, and this Court will not interfere except when that discretion clearly has been abused." In a case that hits close to home relative to the case at bar, Perecinsky v. Commonwealth, Ky, 340 S.W.2d 233 at 234-235 (1960) the Court reversed and granted a new trial after it held that the jury heard illicitly volunteered information by a witness, "Where the question of guilt or innocence hangs on a thread the effect of any improper information imparted to the jury is more likely to be prejudicial than it is where the Commonwealth has made a strong case otherwise. ... Perecinsky was entitled to a fair trial, and he was deprived of it by the misconduct of the witness." Counsel for Mr. McCreary objected to much of the Commonwealth's case although the Court allowed the introduction of said evidence. The Court, allowing this question and answer, and considering this in reaching a verdict, denied the defendant from receiving a fair trial comporting with fundamental fairness, due process, and from a fact decision being made based upon legally permissible evidence. As such, this ground alone warrants a RCr 10.24, RCr 10.26, or RCr 10.02 ruling.

15. Combs v. Commonwealth, Ky., 356 S.W.2d 761 at 764 (1962) held "The granting or refusing of a new trial generally rests in the sound discretion of the trial court in the exercise of deliberate judgment founded on established principles. A new trial should be granted whenever it reasonably appears that the accused did not have a fair trial,..." See also: Mullins v. Commonwealth, Ky., 375 S.W.2d 832 (1964), Jackson v. Commonwealth, Ky., 445 S.W.2d 835 (1969), and Jillson v. Commonwealth, Ky., 461 S.W.2d 542 (1970).

16. RCr 10.02 authorizes the trial court "Upon motion of a defendant, the court may grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice. If trial was by the court without a jury, the court may vacate the judgment, take additional testimony and direct the entry of a new judgment." Counsel would respectfully request a new trial on any and all of the verdicts above should the Court decide not to grant RCr 10.24 or 10.26 relief. The defendant, by counsel respectfully requests the opportunity to present evidence in this regard.

17. Section Two (2) of the Kentucky Constitution forbids and states "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority." The Court based a decision to deny the defendant a right to pi-esent a defense upon state evidentiary grounds in contravention of United States Supreme Court case law. The defendant's motion, for a judgment of acquittal should be granted.

18. The improper evidence, false testimony, denial of motions for mistrial, and all the other unduly prejudicial testimony and evidence in the above case deprived the defendant of a fair trial, fundamental fairness, his right to present a defense, denied him due process, and resulted in an erroneous finding of guilt. Mr. McCreary, by counsel, would respectfully request the alternative motions to be considered, and granted in the court's discretion.

WHEREFORE, the defendant, by counsel, respectfully requests the Court to grant the defendant's Motion for Judgment of Acquittal, or in the alternative to grant his Motion for a New Trial.

Respectfully submitted,

KENNETH L. McCARDWELL
Attorney at Law
Professional Arts Building
730 West Market Street, Suite 430
Louisville, Kentucky 40202
(502) 589-1360
Counsel for John Patrick McCreary

CERTIFICATE

This is to certify that a copy of the foregoing motion was mailed to the Hon. Brian Butler and the Hon. David Schuler, Assistant Jefferson County Commonwealth Attorneys, Office of the Commonwealth's Attorney, 514 West Liberty Street, Louisville, Kentucky 40202, or their agents, on this the 13th day of December, 2002. by first class mail.

KENNETH L. McCARDWELL