COMMONWEALTH OF KENTUCKY
MCCRACKEN CIRCUIT COURT
CASE NO: 04-CR-00477-003
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS.
XXXXX XXXX XXXX DEFENDANT
COMMONWEALTH OF KENTUCKY
MCCRACKEN CIRCUIT COURT
CASE NO: 04-CR-00477-002
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS.
XXXXXXXXXXXXXXXXX DEFENDANT
JOINT MOTION FOR JUDGMENT OF ACQUITTAL
AND ALTERNATIVE MOTION FOR NEW TRIAL
NOW COMES the above named Defendants, XXXXXXXXXXXXXXXXX and XXXXX XXXX XXXX, by and through appointed counsel, and respectfully request that this Honorable Court enter a judgment of not guilty on Counts I and II of the Indictment, or alternatively, a new trial. This motion is filed pursuant to RCr 10.24, which allows a defendant, within five (5) days of the conclusion of a trial, to move for a directed verdict of acquittal after a jury has failed to return a verdict, and to join with that motion any motion for a new trial.
The Defendants respectfully show the Court as follows:
I. Defendants were charged with several felonies, which included Count I (possession of a methamphetamine precursor) and Count II (possession of anhydrous ammonia with intent to manufacture methamphetamine).
II. The Defendants claimed not to be at the scene of the alleged crimes, which occurred at or about 12:30 a.m. on November 4, 2003, but claimed to be somewhere else. As an alibi defense, Tanya McKendree took the stand and testified that she had picked up one of the Defendants at someone’s residence between 11:00 o’clock or midnight on the night before the Defendants were on WPSD’s “The Fugitive File” and that the other defendant had been left behind at the residence. She could not say for sure, however, what date she picked up the defendant; only that she was certain it was the night before the fugitive file, because she remembered watching the fugitive file and seeing their faces on it. The witness testified to nothing else relevant to the case.
III. If believed by the jury, the witness’ testimony would have provided an alibi for the whereabouts for both defendants. Thus, the Commonwealth cross-examined the witness and confirmed her certainty that she was with one of the defendants on the night before the airing of the “fugitive files.” The state then called a rebuttal witness, Capt. John Hayden, who testified that the “fugitive file” ALWAYS came on television on Thursday nights. If so, then the alibi witness would have picked up the defendant XXXXXXXXXXXXXXXXX on Wednesday night / Thursday morning (the 4th and the 5th of November), rather than on Tuesday night / Wednesday morning (the 3rd and the 4th of November, when the crime was alleged to have occurred).
IV. On cross-examination, Capt. Hayden was asked whether he was certain that the “fugitive file” always was aired on Thursday nights. “Could it possibly be aired on Wednesday nights?” To this, Capt. Hayden replied that he was certain the fugitive files were aired on Thursday nights. Thus, Ms. McKendree’s testimony proved to be supportive of the prosecution’s case, and not the defendant’s alibi, because the night before Thursday was not the night of the alleged occurrences.
V. The importance of the testimony of Ms. McKendree became apparent when the jury, during deliberations, asked for her testimony to be replayed. It was the only testimony they asked to see. After listening to that testimony again, the jury returned a verdicts of guilty for both Counts I and II, either as principal or as accomplice.
VI. As it turns out, Capt. Hayden’s testimony that the “fugitive file” airs only on Thursday nights was not true. Attached is a copy of a web page for WPSD which confirms that the fugitive files aired on Wednesday nights. (At the hearing on this motion, it is anticipated that certified business records will be adduced which will prove that this particular fugitive file did air on Wednesday, November 4, 2003.) Thus, Ms. McKendree’s testimony would have supported the defendants, and not the prosecution.
VII. Whether Capt. Hayden’s misstatement was accidental or intentional is irrelevant. The fact is that the jury believed that Ms. McKendree’s testimony to be important, as illustrated by their desire to hear it again. Since her testimony related almost solely to the issue of alibi, and since the Commonwealth’s rebuttal was based on erroneous facts the guilty verdicts should be overturned and not guilty verdicts entered in their place. But for the Commonwealth injecting erroneous, yet persuasive facts, into the evidence, the jury may well have returned not guilty verdicts.
VIII. Alternatively, new trials should be granted.
WHEREFORE, the Defendants respectfully request that this Honorable Court enter a judgment of not guilty on Counts I and II of the Indictment, or order a new trial for each.
Respectfully submitted,
______
B. Scott West
Assistant Public Advocate
503 N. 16th St.
Murray, KY 42071
(270) 753-4633
NOTICE OF HEARING
A hearing on the above styled motion will be set for March 10, at 9:00 a.m., or whenever the court desires to hear this motion.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion has been served on the Commonwealth by hand delivery this ____ day of ______, 2004.
______
B. Scott West
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