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| New trial ordered in Dunn case |
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4/17/2014
By Tom Marshall
Senior Advocate writer
The Kentucky Court of Appeals has overturned the conviction of Michael Dunn in a child sodomy case and ordered a new trial.
A jury found Dunn guilty of five counts of sodomy in January 2010 involving a 14-year-old boy. He was sentenced to 50 years in prison.
In a ruling recently handed down by the court, the panel’s three judges granted a motion from Dunn arguing that he was entitled to a new trial based on ineffective counsel. Dunn’s trial lawyer was ineffective for failing to object to the jury instructions, court documents say.
“The Commonwealth admits that Dunn is entitled to a new trial because counsel was ineffective for not objecting to the jury instructions which contained identically worded instructions for each charged offense,” an opinion filed by the court states.
“We therefore vacate Dunn’s conviction and remand for a new trial,” the court ruled.
It cites the 2009 case of Miller vs. Commonwealth “where the Kentucky Supreme Court found such identical instructions to be palpable error and presumptively prejudicial to the defendant. We agree with Dunn and the Commonwealth that this requires a new trial.”
Dunn argued in a motion before the court that the instructions given to the jury at trial failed to properly particularize each of the charges against him.
Dunn raised a number of issues in a 166-page motion alleging the ineffectiveness of his trial lawyer, Alex Rowady of Winchester, in late 2012.
The court notes those issues “but they are moot in light of our decision to remand for a new trial. Any of these other issues can be raised by Dunn with his new trial counsel.”
Dunn remains in custody pending a bond hearing in the case.
Montgomery County Circuit Judge William “Bill” Lane said he plans to schedule a status hearing in the case soon to see where it stands.
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