Supreme Court Not for Publication Decisions for Oct. 20, 2005

KENTUCKY SUPREME COURT DECISIONS - NOT TO BE PUBLISHED
OCTOBER 20, 2005

Minutes for Oct. 20, 2005

LANE V. COM.
CRIMINAL - Investigative Hearsay
2002-SC-000585-MR
NOT PUBLISHED
Date: 10/20/2005

SC affirmed Lane's convictions for Burglary in the First Degree and Assault in the Fourth Degree.  He raised numerous errors on appeal.  The primary issue concerned whether Lane was prejudiced by alleged investigative hearsay during the lead detective's testimony.  During trial, the prosecutor asked the detective whether he knew that the sole defense witness (someone other than Lane) was under criminal investigation.  The detective said yes.  He was then asked whether the investigation concerned the witnesses in Lane's trial and their testimony.  He responded yes.  Defense counsel objected, stating that the remarks were impermissible investigative hearsay and improperly impeached the defense witness in advance.  The Court explained that the detective's statements were not hearsay because they were not out of court statements.  Moreover, they were things within the detective's personal knowledge.  Under the circumstances, the testimony did not serve to impeach the defense witness in advance of his testimony because there was no clear indication that the witness was the target of the investigation.

HENSLEY V. COM.
CRIMINAL - Murder; Opinion Testimony on Credibility of Other Witnesses
2003-SC-000470-TG
NOT PUBLISHED
Date: 10/20/2005

SC affirmed Hensley's conviction for Murder.  The primary issue on appeal was whether he was prejudiced when the trial judge allowed the prosecution to play an unredacted taped statement for the jury in which Hensley incriminated himself.  Defense counsel objected, stating that the tape would unduly prejudice Hensley because the interrogating officer repeatedly stated on the tape (before Hensley actually confessed) that he did not believe what Hensley was saying.  In a 6-1 opinion, the majority stated that Commonwealth v. Lanham, 2005 WL 2043703 (Ky. 2005) was dispositive.  In Lanham, the Court held that playing such a tape was necessary to show the context surrounding a defendant's incriminating statement.  It also noted that the officer's statements of disbelief were a legitimate interrogation technique and were not meant to show that a suspect was lying.  Justice Cooper dissented, citing his dissenting opinion in Lanham.

THACKER V. COM.
CRIMINAL - Murder; Change of Venue
2004-SC-000517-MR
NOT PUBLISHED
Date: 10/20/2005

 

SC affirmed Thacker's conviction for Murder.  The primary issue on appeal was whether the trial court improperly denied his motion for a change of venue.  Thacker's trial counsel argued that heavy media coverage, including radio and television news stories, had made it impossible to empanel a fair and impartial jury.  After a hearing on the matter, the trial judge concluded that the media exposure had not "so aroused public opinion to preclude the defendant from receiving a fair trial."  Kordenbrock v. Commonwealth, 700 S.W.2d 384, 387 (Ky. 1985).  The justices concluded that the judge had not abused his discretion in so ruling.

 

FITTS V. COM.
CRIMINAL - Sentencing; Due Process
2004-SC-000653-MR
NOT PUBLISHED
Date: 10/20/2005

Fitts was convicted of multiple counts of Trafficking in Cocaine and was sentenced to 30 years in prison.  However, on direct appeal, the SC reversed the 30-year sentence because the jury received improper instructions on the enhancement of a prior trafficking conviction.  Upon remand, a new jury recommended a sentence of 40 years.  Fitts appealed the 40-year term, arguing that the higher sentence constituted vindictiveness for having successfully appealed his first sentence.  SC held that North Carolina v. Pearce, 395 U.S. 711 (1969) did not apply because a due process violation occurs only when the same agent imposes a harsher sentence.  Because a different agent (i.e. the new jury) imposed the higher sentence, Pearce did not apply.

Editor's Note:  This case ably demonstrates the old maxim: "Be careful what you ask for -- you just might get it."    

WOODALL V. COM.
CRIMINAL - CR 60.02
2004-SC-000931-MR
NOT PUBLISHED
Date: 10/20/2005

SC affirmed Circuit Court's denial of Defendant's CR 60.02 motion alleging juror misconduct.  Defendant's death sentence and denial of RCr 11.42 upheld.

THOMPSON V. COM.
CRIMINAL - Search & Seizure
2004-SC-001070-MR
NOT PUBLISHED
Date: 10/20/2005

 

SC affirmed Defendant's convictions and 20 year sentence in Jefferson Circuit Court for Trafficking in a Controlled Substance and PFO 1.   TC properly denied Defendant's suppression motion, finding that it was not unreasonable for Detective Hayes to place the Defendant in handcuffs while waiting for back up and for verification that the vehicle driven by Defendant was stolen.  The minimal intrusion on Defendant by being placed in handcuffs for approximately fifteen minutes was outweighed by the governmental interests of safety and security in this case.

 

LAWSON V. COM.
CRIMINAL - Witness Identification
2004-SC-001134-MR
NOT PUBLISHED
Date: 10/20/2005

 

SC affirmed Defendant's convictions and 20 year sentence for second-degree burglary, theft by unlawful taking less than $300 and being a first-degree persistent felony offender.  TC properly denied the Defendant's motion to suppress the victim's out-of court and in-court identification of the defendant.  Under all the circumstances, the single photograph was unduly suggestive.   However, TC also properly concluded that the victim could still reliably identify the person despite the improper identification procedure.  TC's findings of fact as they relate to the five factors set out in Neil are supported by substantial evidence and thus are conclusive.  The closing argument by the prosecutor was not unduly prejudicial.

 

SHOREWOOD PACKAGING V. BROOKS
WORKERS COMP - PRE-EXISTING ACTIVE DISABILITY, TRIPLE MULTIPLIER
2004-SC-000946-WC
NOT PUBLISHED
Date: 10/20/2005

The Supreme Court affrmed the Court of Appeals in finding that the issue of pre-existing portions of disability can be apportioned withot using the A.M.A. Guides to determine the percentage, and in finding that a surveillance videotape did not constitute substantial evidence to show that the claimant could return to heavy manual labor.  He had started his own business installing home video and stereo systems, but the surveillance did not show him lifting anything heavy or taking part in activities which exceeded his restrictions.  Therefore, that evidence could not be used as a basis for rejecing the medical testimony that he was unable to perform heavy lifting, and the triple multiplier applied.

ADAMS V. COASTAL COAL CO.
WORKERS COMP -  AMA Guides, credit for overpayment
2004-SC-000997-WC
NOT PUBLISHED
Date: 10/20/2005

The Supreme Court affirmed the ALJ's opinion finding that the claimant¹s spinal injury, although multiple levels were involved, could be measured by the Diagnosis Related Evaluation method under the AMA Guides, rather that the Range of Motion method.  Also affirmed were findings that credit for overpayment of temporary total disability could be given against past due payments of permanent partial disability.

BLACK V. CMT TRUCKING
WORKERS COMP -  Res Judicata
2005-SC-000168-WC
NOT PUBLISHED
Date: 10/20/2005

The claimant attempted to use a 1989 workers¹ comp. award finding that he suffered from coal workers' pneumoconiosis as res judicata in a 2001 claim against a different employer in which it was found that he did not suffer from the disease.  The issue preclusion portion of the res judicata doctrine, however, requires that there be identity of the parties, and the Court rejected the appeal.

SUMMERS V. U.S. LIQUIDS
WORKERS COMP -  Reopening for manifest injustice
2005-SC-000244-WC
NOT PUBLISHED
Date: 10/20/2005

After a serious fall, the claimant was given a sedentary job, which he held at the time of the hearing.  The claimant was not found to be totally disabled, but awarded a disability based on a 40% impairment rating.  A few weeks after the ALJ rendered his decision, the claimant¹s job was eliminated.  The claimant attempted to reopen on the basis of either mistake, or manifest injustice, which attempt was rejected at all levels.  A re-opening requires an increase in impairment rating, and must be brought within four years from the date of the award.  The other statutory bases for reopening are rarely allowed. 

 

Thanks to Scott Byrd, Patrick Bouldin,  Reed Ennis, 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.