Free in Kentucky: Criminal Liability for Apartment Infested with Dea...

Free in Kentucky: Criminal Liability for Apartment Infested with Dea...: "Holy Gross! Deadly spiders. I was going to post the link to this story, but I’ll go ahead and post the entire article since it is small...."

Criminal Liability for Apartment Infested with Deadly Spiders? You be the Jury!

Holy Gross!  Deadly spiders.  

I was going to post the link to this story, but I’ll go ahead and post the entire article since it is small.  Per WHAS 11 news:

        WHAS11 News has learned that the Elizabethtown, Kentucky family whose apartment had become infested with deadly Brown Recluse spiders has been let out of their apartment lease.

        The management company is letting them out of their lease without the 60 day notice and 3 months rent, which is their usual policy.

        A spokesperson for the apartment complex said: 

        "The safety of our tenants is always our first priority. Management has been working with the occupants to address the problem. In the interest of arriving at the swiftest possible resolution, we have allowed the tenants to terminate their lease without penalty."

        The Stone family had already moved out of the apartment and is living with family.

At this point I would like to highlight the legitimate PR skills of the “spokesman for the apartment complex.”  Kudos for a well thought out, poignant statement concerning the complex.  You directed attention to the complex’s commitment toward safety, and didn’t once mention the INFESTATION OF DEADLY SPIDERS.  Good job.

Obviously, there is no indication that anyone was killed by the deadly spiders in the above story.  But what would happen if someone was, in fact, bitten and killed???  The question for the day is “If a landlord has knowledge that a premises is infested with deadly spiders, and they rent the premises to someone without disclosing that information, can the landlord be subject to criminal liability (assuming someone is bitten and dies).”

The first section of the KRS that we will address is the homicide section, naturally, since in our hypothetical, someone died.  KRS 507 governs criminal homicide, and in this great Commonwealth, we have four (4) types of criminal homicide:  Murder, Manslaughter in the First Degree (hereinafter, “Man1”), Manslaughter in the Second Degree (hereinafter, “Man2”), and Reckless Homicide.  In all 4 scenarios, someone dies.  In all 4 scenarios, in order to be guilty, the Defendant had to have caused the victim’s death.  The difference between them largely lies in the mental state of the Defendant, what Louisville homicide lawyers call the “Mens Rea.”

If someone dies because your conduct was “reckless,” the crime is Reckless Homicide.  Reckless Homicide is a Class D felony, which means it carries a penalty of 1-5 years in a Kentucky penitentiary.

If someone dies because your conduct was “wanton,” then the crime is Man2, depending on the circumstances.  Killing someone with the wanton operation of a motor vehicle, and leaving a child in a car in extreme heat will get you Man2, a Class C felony which carries a penalty of 5-10 years in prison.

Man1 requires intent to kill someone, but generally speaking, it means that there was a reason you killed the person that makes the killing…more…acceptable?  The typical example is when a man comes home and finds his wife in bed with another man.  He kills both of them under the extreme emotional stress of the incident.  Husband would be guilty of Man1, which is a Class B felony carrying a penalty of 10-20 years in prison.

Murder includes the intentional killing of another person, but also includes “under circumstances manifesting extreme indifference to human life” wantonly engaging “in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

Back to our hypothetical about the apartment complex owner, let’s assume that the landlord does not INTEND for anyone to die.  They just really want to rent an apartment out, so they sweep the information about the infestation of deadly spiders under the rug.  Would this type of conduct be reckless?  Wanton?  Wanton conduct under circumstances manifesting extreme indifference to human life?  This is the type of question that would be left for a jury, not a judge or lawyer, to decide.  So you tell me.  Choose an answer and leave it in the comment section with your explanation.

In order to help you decide, here are the definitions for “Wantonly” and “Recklessly” as defined by KRS 501.020: 

"Wantonly" -- A person acts wantonly with respect to a result or to a circumstance described by a  statute defining an offense when he is aware of and consciously  disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

"Recklessly" -- A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Enjoy!

If you are charged with murder, manslaughter, or reckless homicide, you need an experienced Louisville homicide lawyer.  Call Gruner & Simms, PLLC for a free initial consultation.  Don’t trust a homicide charge to a lawyer who only practices criminal defense “every once in a while.”  If you have a homicide charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 or visit www.grunersimms.com.  Results.  As fast as the law will allow.

Free in Kentucky: Lawyer Allegedly Force-Feeds iPhone to Girlfriend

Free in Kentucky: Lawyer Allegedly Force-Feeds iPhone to Girlfriend: "I’m not sure how many times you’ve heard a phone go off in a movie theatre, or other inappropriate place, and thought “I’d like to shove tha..."

Lawyer Allegedly Force-Feeds iPhone to Girlfriend

I’m not sure how many times you’ve heard a phone go off in a movie theatre, or other inappropriate place, and thought “I’d like to shove that effing phone [in to/up] [his/her] [choose an orifice]” but I sure have.  Don’t judge me.  I really like going to the movies.  And it says really big ON THE SCREEN before the movie starts that you are supposed to TURN YOUR PHONE OFF.  Anyway, if you’re like me and you’ve ever had that impulse but didn’t act on it because you aren’t a complete psycho, this blog post is for you.

37-year-old Brian Anscomb, a New York City Patent Attorney, was recently arrested based on allegations that he "force-fed" an iPhone to his girlfriend during an argument.  According to court documents referenced by the New York Post, the force-feeding bruised and cut the mouth of his 23-year-old (presumably “ex”) girlfriend.

There is an incredible lack of information regarding the particulars of the allegations.  Neither the New York Times, nor the only other internet site I checked in an incredibly hasty effort to throw together facts, told exactly how Anscomb allegedly attacked the young woman or how he was supposed to have forced an object the shape and size of a friggin’ iPhone down the girl’s throat.

Based on said absence of information, I doubt that the force-feeding described by the Post led the woman to actually swallow the phone.  Right?  I mean, that’s got to be virtually impossible.  I wonder if it had a protective casing on the iPhone...hmm...either way, the guy could use a good assault lawyer. 

Anyway, let’s take a look at the Kentucky Revised Statutes in order to get a better handle on what the charges might look like in a Commonwealth such as ours.  I have no idea whether any of the allegations against Mr. Anscomb are true or not.  So let’s make a hypothetical situation, where “Bob” is a Kentucky resident and during an argument, he force-fed an iPhone to his girlfriend named “presumably ‘ex’ girlfriend.”  For the sake of today’s conversation, assume the girl has some scrapes and bruises in her mouth, but no tearing of the esophagus or trachea.  First let’s look at Assault in the First Degree, commonly referred to as “Assault with a deadly weapon.”

KRS 508.010   Assault in the first degree.

(1) A person is guilty of assault in the first degree when:

(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

(2) Assault in the first degree is a Class B felony.

Let’s take last things first and define “deadly weapon” and “dangerous instrument.”  Then we’ll see if an iPhone fits into one of those categories.  We find the definitions for those two phrases in KRS 500.080, which defines them as follows:

"Deadly weapon" means any of the following:

(a) A weapon of mass destruction;

(b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;

(c) Any knife other than an ordinary pocket knife or hunting knife;

(d) Billy, nightstick, or club;

(e) Blackjack or slapjack;

(f) Nunchaku karate sticks;

(g) Shuriken or death star; or

(h) Artificial knuckles made from metal, plastic, or other similar hard material;

Obviously the definition of “deadly weapon” includes some pretty specific language concerning what is and what is not a deadly weapon.  KRS 500.080(4) excludes iPhones from the definition of “deadly weapon” by omitting the same in an exhaustive list.  In addition, and on a personal note, KRS 500.080(4) really makes me want to go buy some Nunchaku karate sticks.  Before I do that, let’s talk about the next definition.

"Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury[.]

Although the definition of “dangerous instrument” is clearly more vague and encompassing than the definition of “deadly weapon,” I think most judges would agree that an iPhone isn’t something that is (reasonably) “readily capable of causing death or serious physical injury.”

First things last, this particular act wouldn’t qualify as Assault in the First Degree because the injuries received by presumably “ex” girlfriend weren’t serious enough to rise to the level of “serious physical injuries.”  Without getting too complicated, the injuries received by the girl in our scenario would qualify as “physical injury” but not “serious physical injury.”  Any experienced Louisville assault lawyer would tell you that Bob is not guilty of Assault in the First Degree.

How about Assault in the Second Degree?

KRS 508.020   Assault in the second degree.

(1) A person is guilty of assault in the second degree when:

(a) He intentionally causes serious physical injury to another person; or

(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

(2) Assault in the second degree is a Class C felony.

The same reasoning applies, and our guy Bob is not guilty of Assault 2 because there are no “serious physical injuries” to presumably “ex” girlfriend, and the iPhone isn’t a deadly weapon or dangerous instrument.

Assault in the Third Degree is inapplicable, as it is generally reserved for assaulting a government employee of some sort (commonly referred to as “Assaulting an Officer”).  So we will move on to Assault in the Fourth Degree.

KRS 508.030   Assault in the fourth degree.

(1) A person is guilty of assault in the fourth degree when:

(a) He intentionally or wantonly causes physical injury to another person; or

(b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

(2) Assault in the fourth degree is a Class A misdemeanor.

Assuming Bob didn’t “accidentally” force feed the iPhone to presumably “ex” girlfriend, under KRS 508.030(1)(a) it would appear that Bob is guilty of Assault in the Fourth Degree because he intentionally caused physical injury to her.  Pursuant to the last subsection, Assault 4 is a Class A misdemeanor.  However, if Bob and presumably “ex” girlfriend have a child together, are living together, or have lived together in the past, this act could qualify as a domestic violence assault.  Under KRS 508.032, that means that Bob has committed a Class D felony, not a Class A misdemeanor.  Either way, Bob needs a good Louisville assault lawyer.

In conclusion (Not really.  I'm just going off on a different tangent about impulse behavior.), it seems like a lot of my clients get in trouble because they act on impulse when they get angry.  Whether it's shoving a piece of modern technology into a loved one's orifice, or putting a noose around their spouse's neck and making them stand in the back yard naked as punishment, or setting fire to a co-worker's lingerie because they stole customers at a strip joint, lots of people tend to act on impulse out of anger.  Please be advised that some proactive anger management can eliminate a lot serious legal issues.

If you are charged with Assault in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 or visit www.grunersimms.com.  At Gruner & Simms, PLLC, we know that assault is a serious crime.  You should have an experienced Louisville assault lawyer on your side. 

Results.  As fast as the law will allow.


Questions answered in this blog post:  How do I find a good Louisville assault lawyer; What is criminal assault; what is the story about the lawyer who force fed an iPhone to his girlfriend; what is a deadly weapon; what is assault in the fourth degree; how do I find a good Louisville assault 4th degree lawyer; what  is assault in the second degree; how do I find a good Louisville assault 2nd degree lawyer; what is assaulting an officer in Kentucky?

Free in Kentucky: DUI Field Sobriety Tests: Police Officers Giving Y...

Free in Kentucky: DUI Field Sobriety Tests: Police Officers Giving Y...: "This post concerns Field Sobriety Testing - and specifically, the “eye test” that police officers perform. If you ever wondered why police ..."

DUI Field Sobriety Tests: Police Officers Giving You the Finger - Test.

This post concerns Field Sobriety Testing - and specifically, the “eye test” that police officers perform.  If you ever wondered why police officers waive their finger in front of somebody's face to see if they've been drinking, this post should answer that question. 

If you are stopped by a police officer and the officer believes you have been drinking, the officer will most likely ask you to perform Field Sobriety Tests (hereinafter, “FSTs”).  You are probably a little bit familiar with these tests even if you have never been asked to perform them.  Since they have been standardized and consistently used for years, you have probably heard of the Horizontal Gaze Nystagmus (hereinafter “HGN” and commonly referred to as the “eye test”), the One Leg Stand, and the Walk and Turn Tests.  

I first became familiar with FSTs at Eastern Kentucky University.  EKU has a pretty phenomenal police administration program - one of the best in the nation.  They used to (and probably still do) get college students to come in and drink, so they could teach aspiring police officers and new recruits how to perform FSTs.  They would  get some of us a little intoxicated and some of us over the limit, take us around to different stations and let the officers perform tests on us.  The officers would guess whether we were over or under the legal limit, and then they would feed us.  We watched some movies, and then left after we blew .000 on the breathalyzer.  And they paid us $75 for the day.  It was a pretty fantastic way to earn side cash in college.  I actually know a guy who took a date to the alcohol testing.  But that's probably a story for another time.  I don't want to tell you who it was, but if you're ever in the Richmond area and run into a guy named Shane Smith, ask him about it.

Anyway, while performing the tests I became very interested in how they were performed, and the different rules to which the officers had to abide.  There are a lot of details that go into the tests and often, officers forget some of the details.  If that happens, an experienced Louisville DUI lawyer might be able to get the evidence of FSTs suppressed.  That means they wouldn’t be admissible at a jury trial.

The HGN:

The HGN test is an assessment of the involuntary movement of a subject’s eyes.  An officer takes a stimulus, often their index finger, and move the stimulus back and forth in front of the subject’s eyes.  The subject is supposed to stand still, keep their head still, and follow the finger only with their eyes.  As the officer moves the stimulus, they will first check your pupils, then check for equal tracking of the eyes (whether they both move together like they should) and finally, the officer will look for “jumping” or “jerking” of the eyes.  This involuntary movement is nystagmus (or one of the many different kinds of nystagmus).

In actuality, everyone has at least a little bit of nystagmus, all the time.  Nobody’s eyes move in exact smooth pursuit.  Consistently, there are very small involuntary jumps.  Alcohol consumption exaggerates the nystagmus that we all have.  If you have a DUI charge, and the officer wrote “lack of smooth pursuit” on your citation, that’s what the officer was saying.

As the suspect follows the police officer's finger with their eyes, the officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins.  If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05.  If you have a DUI charge and the officer performed the HGN, the officer probably wrote “onset of nystagmus prior to 45 degrees” on the citation.

The next part of the HGN is to note whether the jerking becomes more "distinct" when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at “maximum deviation.”

Officers are supposed to administer the test the same way every time and to use an objective scoring method to determine the results of the test.  In reality, few officers understand the test, administer it correctly, or use objective scoring.  A lot of officers simply report that they "detected nystagmus", and subjectively count that as a failure.  However, it is the characteristics of nystagmus, not the simple presence thereof, which is relevant to determining whether someone may be impaired.  As a side note, and unfortunately, many things besides alcohol cause nystagmus and many of us have distinct nystagmus under normal conditions.

The above reasons are why you should NOT perform field sobriety tests.  You do not have any obligation to do so, and you are well within your rights to refuse to take the tests.  In fact, you should not speak to the officer, and you should just hand them my card.  On the back of my card, the officer will find the following message:  

Dear Officer:  I do not waive any of my Constitutional Rights.  I do not consent to any search.  I wish to remain silent.  I will not perform Field Sobriety Tests, and I will not take a PBT.  If you have any questions, call my attorney, Greg Simms, at 502.618.4949.

If an officer asks for your license, registration or proof of insurance, you should hand my card to the officer with the aforementioned documentation.

If you have a DUI charge in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 or visit www.grunersimms.com.  Don’t trust your case to a DUI attorney who only takes DUI cases “every once in a while.”  Get an experienced Louisville DUI lawyer on your side.  Results.  As fast as the law will allow.

Free in Kentucky: Angry About Casey Anthony? This Might Explain Why...

Free in Kentucky: Angry About Casey Anthony? This Might Explain Why...: "This particular post isn’t really directly about, but has been triggered by the Casey Anthony trial. There has been a lot of response, whic..."

Angry About Casey Anthony? This Might Explain Why Some Juries Do What They Do.

This particular post isn’t really directly about, but has been triggered by the Casey Anthony trial.  There has been a lot of response, which has varied, but a lot of it has teetered on wide open furiousness...of...anger...ocity.  People are genuinely mad because Casey Anthony was found Not Guilty of Murder or Manslaughter (or whatever they call the equivalent in Florida.  I’m too tired to look it up right now because it is 9 o friggin clock and I’ve been working all day).  If you are angry about the outcome, hopefully this might make you feel a little better.

I just want to touch on a few things.

1) “You’re only as good as your verdict.”

This is something that lawyers say to each other when they want to talk like hot shots.  It basically means that the public perception of a lawyer’s legal prowess is based purely on whether you win or lose.  It holds a lot of weight.  I’ve already heard people talking wide open about how good the Defense attorneys from the Anthony trial must be phenomenal, and about how the Prosecutors must have “totally screwed the case up.”  

The truth is that lawyers win and lawyers lose.  It happens.  My philosophy is to work extremely hard and be as prepared as possible, and hopefully I’ll win more than most.  It has worked out pretty well so far.  

It might be true that public perception of a lawyer’s worth is substantially based on winning or losing, but it shouldn’t be assumed that a a lawyer’s performance is THE factor that wins cases.  Contrary to what most of us trial lawyers want to believe, we aren't the single deciding factor.  The truth is that there are a whole lot of factors that go into a trial - one important factor that happens to be significant to this post is the background and experiences of each juror.  Which brings me to my next point.

2) “Your jurors are the first 12 people out of Wal-Mart.”

There are a lot of sayings about juries.  I don’t particularly like the derogatory phrases about juries like, “the jury is made up of 12 people who aren’t smart enough to get out of jury duty.”  These sayings don’t take into account the fact that a lot of people actually give a damn about doing their civic duty and/or being a huge part of our judicial system.    Personally, I think serving on a jury is the second most important civic duty a person in America can perform - second to serving in the armed forces.  The “Wal-Mart” saying I don’t mind, because pretty much everybody goes to Wal-Mart.  I’ve seen people from all walks of life there, and the first 12 people out of Wal-Mart could very well be on your jury.  If the person uttering it means that your jury will be made up of a random cross section of the community, they are absolutely right.

Regardless, you have to understand that when jurors come into a trial they all have different experiences and opinions.  What one thinks is “reasonable” may not be what another person believes is also reasonable.

Which brings me to my next point.

 3) Beyond a reasonable doubt.

There are a lot of different burdens of proof or standards of evidentiary proof that have to be presented in legal settings.  Feel free to sit down in a little orange plastic chair while I blather on about them and write on a chalk board.

Scintilla (pronounced SIN-tila) of Evidence - this means any little speck of evidence.  Anything at all that might tend to prove any fact would be considered a scintilla of evidence.

Reasonable Suspicion - This is what officers need to pull you over in your car or effectuate a “Terry Stop” (named after the case which established the standard of proof).

Probable Cause - This is the level of evidence that is required for an officer to arrest you.  This is not really that high of a burden, but is higher than reasonable suspicion.

Preponderance of the Evidence - This is the standard for winning a civil jury trial.  If the Plaintiff in the case proves from the evidence at trial that it is even the slightest bit more probable that their side is correct, they win.  If they can’t, the defendant wins.  The Plaintiff has the “burden of proof” which means that it is their duty to produce the evidence in front of the jury, and if they cannot, they lose.

Clear and Convincing Evidence - This is pretty self explanatory.  It is a higher burden than a preponderance, and the evidence must be clear and convincing in order for the party with the burden of proof to prevail.

Beyond a Reasonable Doubt - BARD is the highest standard of evidence that exists.  It is a great burden.  It means that if a juror thinks that someone is probably guilty, but they are not sure, and they have any doubt which they consider reasonable, they must vote to find the Defendant Not Guilty.  If they think someone is most likely guilty and they are almost completely positive, but there is one single solitary fact that causes a doubt, and they think it is a reasonable doubt, they MUST find the Defendant Not Guilty.  It is huge.  It is a huge burden for the prosecution.

The reason we have this massive burden for the prosecution is that, as a country, we tend to give a damn about freedom.  We think it’s pretty awesome that liberty is valued, and that some of our citizens are willing to go to some God forsaken desert and get shot at to protect it.  So we stack the odds against the house because it is better to allow 10 guilty people to walk free than it is to allow 1 innocent person to be imprisoned.*

As attorneys, we are not even allowed to explain what “reasonable doubt”  is to juries.  The reason for this is, as explained supra**, everyone has different opinions and what may be reasonable for some may not be reasonable for others.

Which does NOT bring me to my next point, but again, it’s late.  So I don’t care.

 4) A jury doesn’t get to hear everything.

Everyone else was privy to the media coverage, for better or worse, concerning the Casey Anthony trial.  The jury was not.  So they didn’t hear everything that we did.  There are very good reasons for this.  Without insulting any member of the press, I have had several experiences where I gave statements to the press and they totally screwed it up.  They aren’t perfect and they don’t report...perfect...ly.  Also, I hope this doesn’t shock anyone, but the media is SELLING something.  They sell time and space.  Advertisers buy that time and space.  That is how the media stays alive.  Sex sells and violence sells but explaining both sides of a story and trying to remain unbiased does NOT sell.

In order to peddle their wares, the media can tend to exaggerate and sensationalize to sell time and space to advertisers.  They start with some facts and then they throw some sparkle and glitter on it.  So it is a good thing that juries don’t get to hear all of that.  They are supposed to decide a case based on facts.  Not sparkle.  Nor glitter. 

Also, evidentiary rules keep certain bits of evidence out that you might get to hear from the media.  Again, there are very good reasons for that.  But again, it's late.  And I have droned on for long enough.  Even Greg Simms gets tired of listening to Greg Simms after a while.

Conclusion-

Looking back, I don’t know if this will make you feel better or not.  Maybe it has less to do with Casey Anthony and more to do with my rants and/or the fact that it is now 9:46pm.  Either way, I hope you got something out of it.

Murder is a very serious crime.  If you have been charged with Murder, you are facing 20 years to life in prison - or in some cases, the death penalty.  Do not trust your case to a lawyer who has never tried a homicide case.  Call an experienced Louisville Murder attorney at Gruner & Simms, PLLC.  You can contact us at 502.618.4949 or visit www.grunersimms.com.  Results.  As fast as the law will allow.

*Don’t blame me.  Freedom rules.

**Fancy Lawyer Talk