Whitesburg KY

Appeal Court upholds one conviction, tosses other out

A man convicted of robbing a Whitesburg motel in 2010 won’t spend as much time in prison after the Kentucky Court of Appeals has reversed the conviction and sentence for retaliating against a participant in the legal process.

In August 2011, a Letcher Circuit Court jury found Mark Joseph Morton, 26, of 95 Bicycle Lane, Whites( burg, guilty of holding a butcher’s knife to the throat of a Super 8 desk clerk and demanding money while wearing a full-face toboggan. An estimated $553.73 was taken during the December 2010 robbery.

Letcher Circuit Judge Sam Wright followed the jury’s recommendations and ordered Morton to serve 10 years for robbery and two years for intimidating a witness, with the charges to run consecutively.

Malachi Longworth, the hotel desk clerk, testified during the two-day trial that after Morton took the money from a safe in a back room, Morton told Longsworth not to call police or he would return.

In an opinion handed down June 14, the Court of Appeals said Longworth did not testify that Morton threatened to physically harm him if he called police, nor did Longworth express any fear of such occurring.

“We are of the opinion that (Morton’s) innocuous comment that he would return, without any more specificity, was simply part of the robbery,” the opinion says. “In any event, there is nothing in Longworth’s testimony to support a finding that (Morton) ‘engage[d] or threaten[ed] to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process or a person he or she believes may be called as a participant in the legal process.’ As such, we conclude that under the evidence as a whole, it would be clearly unreasonable for the jury to find (Morton) guilty.”

Letcher Commonwealth’s Attorney Edison Banks said Morton’s sentence has been lowered to 10 years. Morton will have to serve at least 85 percent of that sentence and will be eligible for parole after serving eight and a half years in prison.

“With all due respect to the Court of Appeals, I would still consider this a threat and so did 12 members of the jury,” said Banks.

The Appeals Court said it was “somewhat perplexed by the use” intimidating a witness charge “in the context of what occurred.”

“ The Commonwealth has not cited to case law, and we find none, from any jurisdiction, much less Kentucky, that supports such a cause of action under the circumstances presented,” the opinion says.

The Court of Appeals affirmed Morton’s conviction and sentence for firstdegree robbery.

In his appeal, Morton argued that he was entitled to a mistrial based upon the testimony of Whitesburg Police Officer Phillip Slone and Whitesburg Assistant Police Chief Tyrone Fields.

Slone testified that Morton’s clothing matched the description given by Longworth. The prosecutor asked him how so and the defense council objected. The Court of Appeals said that even though Wright overruled the objection, the prosecutor did not ask Slone to explain how the photos and description matched.

During testimony by Fields, the police chief concluded that Morton had robbed the hotel. The defense attorney objected and asked for a mistrial. Wright denied the mistrial, but told the jury that by Fields and other witnesses in criminal trials can only testify about the facts they observe, not their conclusions. Wright instructed the jury to disregard that part of the testimony by Fields.

“We similarly cannot conclude that Chief Fields’s testimony warranted a mistrial,” said the Court of Appeals.

The Court of Appeals said it was unlikely that jurors weren’t able to follow the Judge Wright’s “simple and straightforward admonition.”

Said the opinion: “Finally, given the overwhelming evidence of guilt, Chief Fields’s testimony was simply not ‘devastating’ to (Morton’s) case … .”

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