Ky Supreme Court - Published - April 2005

APRIL 2005 KY SUPREME COURT.

The case number following each decision is a link to the complete opinion posted at the official web site for the Kentucky Administrative Office of the Courts (AOC).

If you would like a complete listing of the published and nonpublished decisions of from the Kentucky Supreme Court  for  this month  posted by the Louisville LawWire, then click on the following dates (organized by subject matter, with short summaries and links to the full text of the decision posted at the AOC Web Site).

• May 19, 2005 - Supremes - 2005/23

KBA CLE    V.    PETER C. BROWN
ATTORNEY CONTINUING EDUCATION
2004-SC-001035-KB.pdf
Date: 4/21/2005

STEPHEN R. DUNN  V. KBA
ATTORNEY DISCIPLINE
2000-SC-000799-KB.pdf
Date: 4/21/2005

MELISSA  HAGGARD  V.  KBA
ATTORNEY DISCIPLINE
2003-SC-000996-KB.pdf
Date: 4/20/2005

ARTHUR W. PULLIAM
ATTORNEY DISCIPLINE
2002-SC-000595-KB.pdf
Date: 4/21/2005

TAYLOR STRASSER  V.  CHARACTER FITNESS COMMITTEE OF KBA
ATTORNEY - ADMISSION AND CHARACTER AND FITNESS
2004-SC-001088-KB.pdf
Date: 4/21/2005

ALLEY   V.   COM
CRIMINAL
2003-SC-000103-MR.pdf
Judge:  WINTERSHEIMER
AFFIRMING
Date: 4/21/2005 - PUBLISHED

SC affirmed Defendant's convictions and life sentence without parole for 25 years for murder and assault - 4th degree.  TC properly found Defendant was competent to stand trial.  In Kentucky, the standard of competency is whether the defendant has a substantial capacity to comprehend the nature and consequences of the proceedings against him and to participate rationally in his defense.  The decision of the trial judge was supported by substantial evidence and was not clearly erroneous.  Alley was not entitled to a hearing on the issue of whether the defendant should be forcefully medicated. The trial judge did not err in denying relief on the grounds that the motion was not properly before him.  Alley had sufficient notice of the aggravating circumstance used to enhance his sentence eligibility.  Alley was not entitled to a directed verdict of acquittal on the burglary aggravator.  Given the totality of the circumstances, Alley failed to demonstrated that the prosecutor's comments during closing arguments were prejudicial or sufficient to affect the outcome of the trial or the penalty.  Even though the instructions might have been drafted more concisely, the jury had sufficient information so as to decide the appropriate and available penalties.

P.S. The Commonwealth's closing arguments were:  "Essentially the prosecutor stated that life without the possibility of parole for 25 years would be a correct verdict and that he had voluntarily removed the death penalty from the equation. The prosecutor also stated that Alley had been given a lot of constitutional rights in this trial but the victim had not been extended similar rights."

COM.  V.  MOBLEY
CRIMINAL - Search & Seizure
2003-SC-000807-DG.pdf
Judge:  LAMBERT
REVERSING
Date: 4/21/2005 - PUBLISHED

On discretionary review, SC reversed CA ruling that arrest and search of automobile passenger violated Fourth Amendment.  The issue at bar was whether discovery by a police officer of a crack pipe in plain view constituted the commission of a misdemeanor in the police officer's presence authorizing the arrest of a passenger in close proximity to the drug paraphernalia.  Relying on Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed. 2d 769 (2003), SC held in the affirmative and overruled Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989) to the extent it is inconsistent with this opinion.  In Maryland v. Pringle, the United States Supreme Court unanimously reversed the highest court of Maryland holding that the Fourth Amendment was not violated by an arrest of a passenger in an automobile where the officer could reasonably infer from the circumstances that the occupants had knowledge of, and exercised dominion and control over the contraband.

ERNST   V.   COM.
CRIMINAL
2002-SC-001088-MR.pdf
Judge:  COOPER
AFFIRMING
Date: 4/21/2005 - PUBLISHED

SC affirmed Defendant's convictions and life sentence without parole for kidnapping and murder.  The indictment was sufficient to charge Defendant with capital kidnapping.  The admission of hearsay statements was proper and/or harmless error.  Photographs and videotape of victim's body were properly admitted.  Admission of prior bad acts was not reversible error.  While the jury instructions were not ideal, there was no palpable error.

MATTHEWS   V.   COM
CRIMINAL - Speedy Trial
2003-SC-000364-MR.pdf
Judge:  WINTESHEIMER
AFFIRMING
Date: 4/21/2005 - PUBLISHED

SC affirmed Defendant's convictions and 45 year sentence for manufacturing methamphetamine, possession of marijuana, possession of drug paraphernalia and being a first-degree persistent felony offender.  The question presented is what time limit applies when both the Commonwealth and the prisoner file documents to effectuate speedy disposition.  After careful consideration of the three approaches taken by other jurisdictions, SC adopted the first approach, that is - where the defendant initiates Article III proceedings he invariably waives his Article IV rights, including the shorter time limit.  Here, the Commonwealth had one hundred eighty days from October 10, 2002, within which to bring Matthews to trial and that such requirement was satisfied in this case. The trial judge did not err in overruling the motion to dismiss.

There was no prosecutorial misconduct that warranted reversal.  The trial judge did not err in denying the motion to suppress the statement by Matthews given to the second detective.  Based on the totality of the circumstances, it is clear that Matthews waived his Miranda rights.  There was sufficient evidence that Matthews possessed all the chemicals necessary to manufacture methamphetamine.  No Farretta hearing was required in this case.

METCALF   V.  COM.
CRIMINAL -- Prior Bad Acts; Missing Evidence Instruction
2003-SC-000098-MR.pdf
Judge:  COOPER
REVERSING AND REMANDING
Date: 4/15/2005 - PUBLISHED

Technical modification of opinion previously rendered on January 20, 2005.  Original holding remains unchanged.  See January "Supremes" edition of Lawwire for summary.

MOORE    V.    COM
CRIMINAL -- Search Warrants; Good Faith Exception
2004-SC-000572-MR.pdf
Judge:  WINTERSHEIMER
AFFIRMING
Date: 4/20/2005 - PUBLISHED

Technical modification of opinion previously rendered on March 17, 2005.  Original holding remains unchanged.  See March "Supremes" edition of Lawwire for summary.

PETERSON   V.   COM.
CRIMINAL -- Shackling Defendant during Trial; Virtual Child Pornography
2002-SC-000973-MR.pdf
Judge:  GRAVES
AFFIRMING
Date: 4/21/2005 - PUBLISHED

In a 5-2 decision, SC affirmed Peterson's convictions for Use of a Minor in a Sexual Performance, Possession of Matter Portraying a Sexual Performance by a Minor, and Persistent Felony Offender in the Second Degree and his underlying sentence of 20 years.  The Court's opinion addressed three allegations of error.  First, the defendant did not show that he was prejudiced when the trial court denied his motions for a continuance and/or dismissal when, before voir dire, 21 potential jurors failed to report for service.  There was no evidence to suggest that the trial court actually excused any of them.  Second, the trial court properly denied Peterson's request for a directed verdict on the offense of Possession of Matter Portraying a Sexual Performance by a Minor.  Peterson alleged that the Commonwealth failed to show that the minors depicted were real people instead of "virtual" images.  "Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge" quoting United States v. Farrelly, 389 F.3d 649, 655 (6th Cir. 2004).  Third, the trial court did not abuse its discretion in ordering that Peterson would wear handcuffs and leg irons throughout trial.  His belligerent conduct before trial and his refusal to assure the trial judge that future outbursts would not occur were sufficient to justify his shackling during trial.  Justices Keller and Johnstone offer a compelling dissent, stating that there were no extraordinary reasons justifying the trial court's decision to shackle.  In fact, the record indicated that Peterson became "understandably" belligerent only when the bailiff told him that he would require Peterson to wear leg irons during trial -- well before Peterson made any outburst.

STOPHER   V.   COM
CRIMINAL - Ineffective Assistance; Expert Funds for Indigent Defendants
2003-SC-000710-OA.pdf
JUDGE: KELLER
DENYING PETITION FOR WRIT OF MANDAMUM
Date: 4/21/2005 - PUBLISHED

SC denied Stopher's petition for a writ of mandamus directing the trial court to hold an ex parte hearing on his request for expert funds under KRS 31.185 in furtherance of his ineffective assistance motion.  He was previously convicted of Murder for killing a Jefferson County Sheriff's deputy and was sentenced to death.  After his conviction was affirmed on direct appeal, he filed an RCr 11.42 motion alleging that his trial counsel was ineffective for failing to investigate and pursue a "bad batch" defense based on Stopher's LSD intoxication at the time of the killing.  SC held that General Assembly limited the use of funds or facilities allowed under KRS 31.185 to attorneys representing indigent defendants at trial. It further held that Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000) is overruled to the extent that it holds that an indigent person is entitled to funds for expert assistance upon showing of reasonable necessity.   

ST. LUKE HOSPITALS, INC.   V. SHORT
EVIDENCE - PRIVILEGE (ATTORNEY CLIENT); MEDICAL NEGLIGENCE
2004-SC-000413-MR.pdf
Judge:  LAMBERT
REVERSING
Date: 4/21/2005 - PUBLISHED

In this medical negligence case, the plaintiff's attorney needed and sought documents from the medical provider which were otherwise privileged.  Trial court noted they were privileged but order the records produced, and the defense filed a writ of prohibition.  The COA denied the writ, but the Supreme Court reversed holding "the attorney-client privilege is not overridden by need of an opposing party to obtain information not otherwise available but for breach of the privilege."

P.S. Don't confuse attorney-client privilege with work-product privilege (otherwise referred to as trial preparation materials under CR 26.02(3)) and "substantial need" for those materials.

DAY V. FAIRBANKS COAL CO.
WORKERS COMPENSATION - ADMISSIBILITY OF X-RAYS
2004-SC-000262-WC.pdf
REVERSING
Date: 4/21/2005  - PUBLISHED  (RELATED CASE: 2004-SC-000289-WC.pdf)

The pneumoconiosis law requires that, if the x-ray interpretation of the plaintiff's experts and the defendant's experts do not reach a consensus, the x-rays are sent to a panel of x-ray reading experts for a determination that holds presumptive weight.  The claimant argued that, because the statute requires the x-ray film to be marked with the date of the x-ray when it is sent to the panel, and it was not, it was inadmissible.  The Supreme Court held that marking it with a letter to identify it was sufficient.  The Supreme Court rested its opinion on the intent of the statute to mask the source of the x-ray, and surmised that the experts would have known that the earlier x-rays were taken on behalf of the plaintiff.  Therefore the intent of the statute was better served by masking the date of the x-ray.  The Court reversed the Court of Appeals decision and reinstated the decision of the ALJ, who had denied the claim based on the expert panel's finding that the x-ray did not show evidence of pneumoconiosis.   

HIGHLAND HEIGHTS VOLUNTEER FIRE DEPT.   V.   ELLIS
WORKERS COMP - ENHANCED BENEFIT
2004-SC-000420-WC.pdf
Judge:  REVERSING
Date: 4/21/2005

The claimant was injured in his job as a firefighter when he was burned, suffered a cervical strain, and had psychological injuries.  His psychological injury kept him from returning to his volunteer fire fighting job, but he returned to his job as a retirement benefits specialist.  The ALJ ruled that he was not entitled to the 1.5 multiplier for being unable to return to the type of work he was performing at the time of the injury (pre-2000 law).  A .5 multiplier was applied to his benefits because he was earning a greater wage than at the time of the injury.  The Workers' Compensation Board reversed, holding that the inability to perform the fire fighting job entitled the claimant to the enhanced benefit, and the Court of Appeals affirmed.  The Supreme Court held that because the average weekly wage was derived from the claimant's regular employment, his fire fighting job being unpaid, the benefit enhancement should be determined by the ability to return to regular employment.  This holding is probably best limited to volunteer positions, given the Court's reasoning that used the special statute for volunteer fire fighting and EMT jobs.  To apply it to situations where the claimant had more than one paying job at the time of the injury would create too much ambiguity, much of which would conflict with wording of the statute and the intent of workers'; compensation laws to compensate for occupational loss.

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

Michael L. Stevens, Editor