Ky Supreme Court - Decisions - June 2005

JUNE 2005 published decisions from the Kentucky Supreme Court.   

The 'links' are to the full text documents in PDF format with the Kentucky Administrative Office of the Courts (AOC).

If you would like a complete listing of the published and nonpublished decisions for this 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).

• Jun 16, 2005 - Supremes - 2005/28 

KBA  V. SLOAN
ATTORNEY DISCIPLINE
2005-SC-000204-.pdf
Date: 6/16/2005
PUBLISHED

KBA  V.  SIVALLS
ATTORNEY DISCIPLINE
2005-SC-000216-.pdf
Date: 6/16/2005
PUBLISHED

BROWN   V.   COM
CRIMINAL - Wanton Murder
2003-SC-000716-TG.pdf
Judge:  COOPER
AFFIRMING
Date: 6/16/2005
PUBLISHED

SC affirmed Defendant's convictions and 20 year sentence for two counts of wanton murder, KRS 507.020(1)(b), and two counts of wanton endangerment in the first degree, KRS 508.060, following motor vehicle accident.  Defendant was not entitled to a directed verdict of acquittal on the wanton murder charges.  Defendant's conduct was substantially more than a mere traffic violation.  In addition to driving at a rate exceeding the speed limit and violating a traffic signal, there was substantial evidence that Defendant was watching television rather than monitoring the traffic at the intersection and that he attempted to "time" the traffic light despite the fact that it remained red at all times during his approach.

Defendant was not entitled to new trial based upon allegation of juror misconduct.  Allegation of improper redirect examination and closing argument by the prosecutor did not warrant reversal.

COM.  V. MITCHELL
CRIMINAL - Argument (Send a Message)
2003-SC-000927-DG.pdf
Judge:  JOHNSTONE
REVERSING
Date: 6/16/2005
PUBLISHED

Defendant sentenced to 71/2 years for selling 6 Oxycontin drugs to an uncover police informant. REVERSED COA WHICH HAD REVERSED Defendant’S CONVICTION. Prosecutor in closing argued it was time for the jury to "send a message" to the community that KY was going to punish drug dealers. Defendant did not object to this argument at trial. After jury deliberations began, defense counsel argued that the comment was improper. TC treated such as a motion for a mistrial and denied it. SC noted that the prosecutor cannot place upon the jury what is necessary to protect the community. However, comments did not rise to level of reversal of conviction since KY was responding to defense counsel’s arguments not to send his client away for a long time for 6 year and that Defendant did not look like a drug dealer.

At trial, the lead detective also testified about the nature of Oxycontin. The SC noted that such testimony has little relevance as to whether Defendant sold the drug or not. However, the SC noted that it did not think that such testimony fell under "matters of specialized scientific knowledge" under KRE 702.

SC also held that detective’s comments that they had "identified several targets and had purchased narcotics from them" as a basis for using an undercover agent in this case was not improper investigative hearsay or improper KRE 404(b) evidence. In large part, SC held Defendant did not properly preserve this objection at trial.

THOMAS V. COM
CRIMINAL
2003-SC-000989-MR.pdf
Judge:  COOPER
REVERSING
Date: 6/16/2005
PUBLISHED

Thomas was convicted of first-degree assault and second-degree assault and was sentenced to 24 years.  In a 5-1 opinion, SC reversed and remanded for a new trial.  The primary issues on appeal were: (1) whether the TC erred by failing to instruct on Assault under Extreme Emotional Disturbance; (2) whether statements from the victims made at the hospital while they were being treated for their injuries were properly admitted as excited utterances; and (3) whether opinion testimony concerning the higher rate of alcohol absorption in the body of an alcoholic was proper.  SC held that the trial judge improperly denied an EED instruction because there was evidence from which a jury could infer a reasonable explanation or excuse for the defendant's conduct under the circumstances as he believed them to be.  KRS 507.020(1)(a) and Engler v. Commonwealth, 627 S.W.2d 582 (Ky. 1982).  In addition, the Commonwealth did not prove that the victim's statements at the hospital while they were undergoing treatment were "excited" utterances because there was no proof that either man was still under the stress of the startling event.  Souder v. Commonwealth, 719 S.W.2d 730 (Ky. 1986).  And finally, opinion evidence that Thomas had a higher blood-alcohol level on the night in question because of his history of alcoholism was improper because there was no proof that he actually did have such a history of alcohol abuse.  Justice Wintersheimer dissented, stating that the failure to give an EED instruction was proper under the evidence and that the excited utterances of the victims were properly admitted. 

KY RETIREMENT SYSTEMS   V.  LEWIS
EMPLOYMENT LAW - Government (Exhaust Administrative Remedies)
2003-SC-000730-DG.pdf
Judge:  JOHNSTONE
REVERSING
Date: 6/16/2005
PUBLISHED

The Court of Appeals erred in holding that Lewis was relieved of her obligation to exhaust all administrative remedies due to an inconsistency between 105 KAR 1 :210 and KRS 61 .665(2)(e) . Lewis was obliged to obtain a final order from the agency before seeking judicial redress.

KENTUCKY RETIREMENT SYSTEMS   V.  LEWIS
EMPLOYMENT LAW - Government Disability Benefits
2002-SC-000516-DG.pdf
Judge:  JOHNSTONE
REVERSING
RENDERED: 3/17/2005
MODIFIED:  6/16/2005
PUBLISHED

Medical examiner reviewed Lewis' disability application and determined there had not been a substantial change in condition and thus denied the application.  However, Lewis is still required to pursue her administrative remedies to conclusion before seeking judicial intervention.

A.W., A CHILD    V.   COM.
FAMILY LAW - Juveniles (Contempt)
2003-SC-000424-DG.pdf
Judge:  936
Date Modified: 6/16/2005
PUBLISHED

KRS 635.060 does not act as a limitation on the length of sentence a juvenile court may impose in the appropriate exercise of its inherent contempt powers for violation of its orders. The Juvenile Code simply does not allow a court to give up on the rehabilitation of a juvenile who refuses to perform the terms of probation . Thus, the contempt power exists for the purpose of compelling the juvenile to comply with the court's orders and to enable the court to help the juvenile become a productive citizen.

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