SCOKY: Ky. Supreme Court Decisions - Jan. 20, 2005 (Published)

If you would like a complete listing of the published and nonpublished decisions of January 20,2005 posted by the LouisvilleLawWire, then click here (organized by subject matter, with short summaries and links to the full text of the decision posted at the AOC Web Site).

MICHAEL R. MOLONEY   V.   KBA
ATTORNEYS
2004-SC-001053-KB.pdf
Date: 1/20/2005

INQUIRY COMM.  V. DAVID W. WILLIAMS
ATTORNEYS
2004-SC-000740-KB.pdf
Date: 1/20/2005

KBA  V.  LAWRENCE HEMMING
ATTORNEYS
2004-SC-000758-KB.pdf
Date: 1/20/200

KBA  V. JOEL R. EMBRY
ATTORNEYS
2004-SC-000763-KB.pdf
Date: 1/20/2005

KBA  V. FRED L. TANNER
ATTORNEYS
2004-SC-000851-KB.pdf
Date: 1/20/2005

KBA  V.  EDWARD H.  ADAIR
ATTORNEYS
2004-SC-001011-KB.pdf
Date: 1/20/2005

KBA  V.  JOHN D. HAYS
ATTORNEYS
2004-SC-001029-KB.pdf
Date: 1/20/2005

METCALF  V. COM.
CRIMINAL - KRE 404(b) - Prior Bad Acts
2003-SC-000098-MR.pdf
JUDGE:  COOPER
REVERSING AND REMANDING
Date: 1/20/2005

SC reversed and remanded Defendant's convictions and 20 year sentence for one count of sodomy in the first degree, KRS 510.070, and one count of sexual abuse in the first degree, KRS 510.110.  Introduction of evidence of the videotaping of S.K., the indecent exposure, and the pornography incident, was admitted only to show Defendant's "lustful inclination," i.e. , that he was the type of person who would likely molest the alleged victim.  TC improperly admitted the videotaping evidence under KRE 404(b)(2), reasoning that it was"so inextricably intertwined" with the charged offense that its exclusion would seriously adversely affect the Commonwealth's ability to present its case.

The Commonwealth did not fail to preserve exculpatory evidence, and therefore, Defendant was not entitled to suppression of his confession.  TC properly found that that the recording device malfunctioned and that an audible recording never existed.  Any possible prejudice was cured by the missing evidence instruction.

RAMSEY  V.   COM
CRIMINAL - DUI, Wanton Endangerment
2002-SC-000842-MR.pdf
AFFIRMING
Date: 1/20/2005

In 4-3 opinion, SC affirmed Defendant's convictions and 20 year sentence for first-degree wanton endangerment, DUI (4th offense), driving with a suspended license (3rd offense), and first-degree persistent felony offender.  Defendant was not entitled to a directed verdict on first-degree wanton endangerment.  "A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 508.060(1).  Drunk driving with a ten-year-old child as a passenger, under the particular circumstances in the present case, creates a substantial and unjustifiable risk to that child. Further, the jury properly found that Defendant's wanton conduct manifested "extreme indifference to human life.

"Finally, one thing worthy of noting is that this opinion should not be read as authorization of a wanton endangerment prosecution in every DUI violation. It is true that the immediate public is placed at risk whenever an intoxicated driver enters the roadways and the crime of DUI is always to be denounced, however, the offense of DUI is separate and distinct from the offense of wanton endangerment. The sole fact of intoxication is not enough to sustain a conviction of wanton endangerment. As stated above, however, the facts in this case are so egregious as to warrant conviction of wanton endangerment."

In his dissenting opinion, Justice Johnstone, joined by Cooper and Scott, stated Ramsey was entitled to a directed verdict on the Wanton Endangerment charge.  The dissenters believe Defendant's actions did not create a "substantial danger of death or serious physical injury" required under the statute.

Note:  The dissent in this case is well-reasoned and examines the practical ramifications of the majority's holdings.  Specifically, the door is now wide open for police and prosecutors to charge Wanton Endangerment every time a drunk driver has a passenger.  This does not mean every case will proceed to circuit court for felony prosecution; however, every criminal defense attorney is aware of the practice of overcharging in order to leverage a plea to the lesser charge.

SHABAZZ  V.  COM
CRIMINAL - Mistrial; PFO
2003-SC-000022-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 1/20/2005

SC affirmed Defendant's convictions and 20 year sentence for two felony drug offenses and First-Degree Persistent Felony Offender (PFO).  Prosecutor's questions to a witness on redirect, a prosecution witness's answers during cross-examination, and the prosecutor's statements during closing argument, all concerning whether Defendant requested that certain aspects of the case be investigated, did not prejudice Defendant to such a degree as to require a mistrial.  Next, there was sufficient evidence presented to the jury that Defendant was on probation when he committed the crimes in this case.  Therefore, Defendant was not entitled to a directed verdict on the PFO charge.

STEWART   V.   COM
CRIMINAL - Parole, Recission
2003-SC-000359-DG.pdf
Judge:  WINTERSHEIMBER
AFFIRMING
Date: 1/20/2005

On discretionary review from CA, SC affirmed Circuit Court's order dismissing a pro se petition by Stewart for declaratory judgment after the Parole Board reversed its decision to parole him.  The decision of the Board to rescind its original recommendation for parole was not arbitrary and based on improper evidence.  501 KAR 1:030 § 4(2)(a) provides that the Board may rescind a parole recommendation any time prior to the release of an inmate on parole. Consequently, an inmate, who has no fundamental right to parole, does not have an actual expectation of parole even after a recommendation has been made. Clearly, the Board has the authority to rescind any such recommendation at any time prior to the actual release.  Finally, the retroactive application of a Sex Offender Treatment Program does not create an unconstitutional ex post facto violation. See Garland v. Commonwealth, 997 S.W.2d 487 (Ky.App. 1999).

TERRY  V. COM
CRIMINAL - Hearsay
2003-SC-000237-MR.pdf
Judge:  COOPER
REVERSING AND REMANDING
Date: 1/20/2005

In 5-2 decision, SC reversed and remanded Defendant's convictions and 45 year sentence for murder, robbery in the first degree, and wanton endangerment in the first degree.  TC improperly permitted hearsay evidence concerning the crime scene from non-testifying accomplice in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).  The statement was not admissible as an adoptive admission.  Next, witness' testimony that non-testifying accomplice told her that Defendant had used his gun to kill the victim also did not fall under any exception to the hearsay rule.  Moreover, TC's retroactive exclusion of this evidence pursuant to objection was too inflammatory to be cured by an admonition.

On retrial, TC should heed the principles enunciated in United States v. Slone, 833 F.2d 595, 597 (6th Cir. 1987) concerning TC's questioning of witness.  Here, TC asked witness 103 questions following direct examination by Commonwealth.  KRE 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party."  Principles stated in Slone are as follows:  "First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness' testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed."

Note:  This opinion reaffirms the principles stated in Bruton v. United States, supra, Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed .2d 117 (1999), and Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354, 158 L.Ed .2d 177 (2004).  At the same time, the opinion acknowledges the death knell for Taylor v . Commonwealth, 821 S.W.2d 72 (Ky . 1990) ("Taylor I ") and Taylor v. Commonwealth, 63 S.W .3d 151, 166-68 (Ky. 2001) ("Taylor II ").

TURNER  V. COM
CRIMINAL - Wanton Murder
2001-SC-001054-MR.pdf
Judge:  JOHNSTONE
AFFIRMING IN PART
AND VACATING AND REMANDING IN PART
Date: 1/20/2005

In 4-3 decision, SC affirmed in part and vacated and remanded in part Defendant's convictions and 40 year sentence for wanton murder, burglary in the second degree, and theft by unlawful taking.  SC vacated Defendant's conviction for wanton murder.  The evidence was insufficient to sustain a wanton murder conviction, and therefore the trial court erred in denying Defendant's motion for a directed verdict.

KRS 507.020(1)(b), which states that a person is guilty of murder when "under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person." KRS 501.020(3) defines "wantonly" as follows :

    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.

SC concluded that the Commonwealth failed to satisfactorily establish this element of the crime. No evidence was presented that Defendant was aware of Mr. Russell's heart condition; in fact, Mr. Russell's own son testified that even he was unaware of his father's condition. Nor can it be argued, as the Commonwealth maintains, that Defendant should have been aware that her conduct would cause Mr. Russell to have a heart attack.  Commonwealth also failed to provide sufficient evidence to support the conclusion that Defendant's conduct manifested the requisite extreme indifference to human life.

NEWELL ENTERPRISES, INC.  V.  HON.  JAMES BOWLING, JR.
EXTRAORDINARY REMEDIES - CONTEMPT PROCEEDINGS
2004-SC-000263-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 1/20/2005

Supremes affirmed COA's findings that Appellants had failed to show that they had no adequate remedy by appeal and that they would suffer great and irreparable harm regarding contempt order in trial court. Because almost any contempt finding by the circuit court would be appealable, the remedy of a writ is inappropriate.

In a piece of advice to the lawyers, the Supreme then added at the end of their opinion:

"Finally, we note that Appellants would have been better served by proceeding under the first class of writ cases, i.e., where the lower court is proceeding outside its jurisdiction, because it appears that the circuit court in this case has done exactly that with the order it entered on December 8, 2003 . "In simple terms, jurisdiction is `[a] court's power to decide a case or issue a decree."'22 Jurisdiction, however, consists of three separate elements: "(1) jurisdiction over the person, (2) jurisdiction over the  subject matter, and (3) jurisdiction to render the particular judgment sought, or as is sometimes said, jurisdiction of the particular case ."23 This case appears to fail this third prong because the civil case in which the order and Concrete Products's motion for contempt were filed had already been dismissed with prejudice by the entry of the "Judgment Pro Confesso" in August 2003 and Concrete Products had not filed a separate civil suit over the alleged new breach of the non-compete agreement.  Because the civil action was no longer pending before the circuit court, the circuit court
had no jurisdiction to take any action in the case.  Appellants, however, have not raised this issue. And though in the context of a writ case where the lower court was acting outside its jurisdiction our predecessor court noted that "it would be a most inept ruling to deny the writ, require a trial on the merits, and then on an appeal be forced to reverse the case," 24 it also noted that "question [of jurisdiction] is squarely presented"25 and that jurisdiction was "the very question . . . before [the Court] ."26 Thus, because the issue is not before us and was never even presented to the Court of Appeals, we cannot reverse the denial of the writ on this
ground ."

REVENUE CABINET   V.  CURTSINGER
REVENUE AND TAXATION
2002-SC-000204-TG.pdf
Judge:  KELLER
AFFIRMING
2001-1032-DG
REVERSING AND REMANDING IN 2002-SC-0204-TB
Date: 1/20/2005

Companion Case
REVENUE CABINET  V.  O'DANIEL SR.
2001-SC-001032-DG.pdf
Judge:  KELLER
AFFIRMING
Date: 1/20/2005

This combined decision addresses two cases with similar circumstances. In both instances, consumers purchased automobiles in late-December 1994, but did not register the vehicles until after January 1, 1995. KRS 186A.095 allows a 15-day grace period for car buyers to register their vehicles. Ad valorem taxes, at the time, were assessed on vehicles on file with Kentucky's automated vehicle registry as of January 1. Accordingly, neither O'Daniel nor Curtsinger's vehicles were initially assessed since they were not registered on January 1, 1995. The Revenue Cabinet, acting under a new policy that tax liability attached at sale rather than registration.sent 1995 tax bills in October 1996 to the owners of as many as 8,000 vehicles. Curtsinger and O'Daniel challenged the tax bills in separate cases that were eventually combined during the appeals process.

The Supreme Court relied upon the plain language if KRS 134.810(4) and 186.021(2) which, at the time, both stated that "the owner of record on January 1 of any year shall be liable for taxes" on the motor vehicle. In affirming that Curtsinger and O'Daniel bore no tax liability, the Supreme Court stated: "[T]he legislature demonstrated its intent to limit the meaning of "owner" for the purpose of tax liability only to the owner of record on January 1. [...] [The taxpayers in this case] did not hold legal title to the vehicle on that date. Thus they are not liable for the taxes."

AK STEEL CORP   V.   JOHNSTON
WORKERS COMP - HEARING LOSS
2004-SC-000162-WC.pdf
AFFIRMING
Date: 1/20/2005

This is an important case regarding hearing loss claims in workers' compensation.  Because KRS 342.0011(1), the definition of "injury", excludes effects of the natural aging process as a compensable injury, employers have sought to exclude part of the impairment rating under the AMA Guides for hearing loss on the basis that some part of the hearing loss is attributable to the natural aging process.  The Supreme Court rejected this contention, holding that apportioning part of a person's hearing loss to the natural effects of aging is speculative, and also finding that the specific statute on hearing loss does not exclude the effects of the natural aging process.  The Court cited extensively to the AMA Guides, which allow  for increases of impairment for tinnitus (a condition specifically excluded by the statute) and for presbycsis, which is an age related condition.  Noting that the hearing loss statute did not contain an exclusion for age related impairment, but did exclude tinnitus, and that it contained a presumption of work-relatedness, as well as a threshold requirement of 8% impairment to the body as a whole to make the hearing loss compensable, the Court relied on the specific statute rather than using the more general definition of "injury" in KRS 342.0011.

Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, Reed Ennis, John Hamlett, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Michelle Eisenmenger Mapes , Peter Naake, Paul C. O'Bryan, Bryan Pierce, Richard Schiller, Paul Schurman, and Michael Stevens for their efforts in digesting these decisions.

Michael L. Stevens, Editor