Supreme Court Published Decisions for Oct. 20, 2005

KENTUCKY SUPREME COURT DECISIONS - PUBLISHED
OCTOBER 20, 2005

Minutes for Oct. 20, 2005

KBA V. DOUGLAS C. BRANDON
ATTORNEY DISCIPLINE
2005-SC-000718
PUBLISHED Date: 10/20/2005

Confirmed automatic temporary suspension until superseded by subsequent order.

KBA V. BENJAMIN C. HALL
ATTORNEY DISCIPLINE
2005-SC-000173
2005-SC-000591
PUBLISHED 454 Date: 10/20/2005

Five year suspension.

KBA V. ROBERT M. BEAL
ATTORNEY DISCIPLINE
2005-SC-000620
PUBLISHED Date: 10/20/2005

Sixty-day suspension.

KBA V. JOEL R. EMBRY
ATTORNEY DISCIPLINE
2004-SC-000763
PUBLISHED Date: 10/20/2005

Permanent disbarment.

JAMES RAYMOND HIGDON V. KBA
ATTORNEY DISCIPLINE
2005-SC-000077
PUBLISHE

TOD MEGIBOW V. KBA
ATTORNEY DISCIPLINE
2005-SC-000517-KB
PUBLISHED 10/20/2005

Public reprimand.

INDEPENDENT ORDER OF FORESTERS V. HON. CHAUVIN
EXTRAORDINARY REMEDIES - Writ of Prohibition
2005-SC-000193-MR
PUBLISHED
ROACH
AFFIRMING
Date: 10/20/2005

Health insurer filed an original action in the Kentucky Court of Appeals, seeking prohibition against the circuit court on grounds that insured’s claim was barred by the doctrine of res judicata.  The insurance policy in question had previously been the subject of a class-action claim heard in a federal court in New Jersey.  The writ was denied and this appeal followed.

The newest addition to the Supreme Court, Justice Roach, made a detailed examination of writ cases and their three classes: 1) Cases where the inferior court is acting without jurisdiction; 2) Cases where the lower court is acting erroneously, but with jurisdiction; and 3) Cases where great and irreparable injury are not present, but there is a “substantial miscarriage of justice will occur and correction of the error is necessary and appropriate in the interest of orderly administration.”

Here, the insurer attempted to avail itself of all three of these classifications.  However, the Supreme Court upheld the denial of the writ, ruling that the circuit court was acting within its jurisdiction and that the insurer had not demonstrated a lack of adequate remedy by appeal or otherwise great injustice and irreparable injury.

ROGERS V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
APPEALS - Interlocutory Relief
ELECTIONS
2005-SC-0748-1
PUBLISHED
VACATING AND REMANDING
10/20/2005

The appellants, pursuant to CR 65.09 and 76.22, move this Court to grant expedited interlocutory relief, pending appeal, to enjoin the  Lexington-Fayette Urban County Government and Fayette County Clerk Don Blevins from expending any funds or otherwise taking any steps in furtherance of conducting an election on November 8, 2005 on the ballot initiative at issue in this case.   The circuit court determined that the initiative process was legal in Fayette County and permitted the election to go forward, ruling that the next regular election in Fayette County was in November of 2005. An appeal was taken to the Court of Appeals and a panel of that court denied injunctive relief and found that the appellants failed to show cause why they would suffer irreparable harm. Supreme Court was presented with a motion for interlocutory relief. The central question is whether an election can be held on November 8, 2005. Supreme Court held the answer the "No" because it is not a regular election.

ST. CLAIR V. COM.
CRIMINAL - Marital Privilege
2001-SC-000209-MR
PUBLISHED
LAMBERT
REVERSING AND
REMANDING
Date: 10/20/2005

 

SC reversed and remanded Defendant's conviction and death sentence for capital kidnapping.  TC improperly permitted testimony of Defendant's wife in violation of the marital privilege.

 

The exception to the privilege did not apply because although Bylynn facilitated St. Clair's flight after his prison escape, there was no evidence that Bylynn conspired or acted jointly in the commission of the crimes with which St. Clair was charged (two counts of receiving stolen property over $100, criminal attempt to commit murder, second-degree arson, or capital kidnapping).

 

KRE 504(b), "[a] communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person." St. Clair was running from the authorities, and confided certain information to his wife.  His statements implicated him in various crimes, and their sensitive nature combined with the circumstances of their disclosure rendered them confidential.  For these reasons statements two and three fall within the ambit of a confidential communication, and should have been excluded by virtue of the marital privilege.  Therefore, upon remand the trial judge should hear additional evidence regarding the circumstances of statement one and make a factual finding.  The admission of the privileged statements was prejudicial because the Commonwealth used this testimony to corroborate Reese's testimony that St . Clair was the ringleader and the shooter.  Bylynn was a critical witness as her testimony repeated the details of the jail escape and that St. Clair had stolen the alleged murder weapon. It revealed that she felt a gun on Appellant's person when she met him in Dallas, and her testimony contradicted St. Clair's defense that he had never been in Kentucky because he told her he had burned a truck in Kentucky. Bylynn's testimony was crucial because it contained the only admission by St. Clair of guilt, and one of a few pieces of evidence that placed St. Clair in Kentucky at the time of the kidnapping and murder.  Consequently, the admission of Bylynn's testimony was prejudicial error and retrial is required.

 

Note:  This decision is a hollow victory for St. Clair as a Bullitt County jury recently sentenced him to death again following a separate death sentence reversal.

 

DAVENPORT V. COM.
CRIMINAL - Confrontation Clause
2002-SC-000483-MR
PUBLISHED
JOHNSTONE
AFFIRMING
Date: 10/20/2005

In 4-3 decision, SC affirmed Defendant's convictions and 50 year sentence for Murder and First Degree Robbery.  TC did not err in prohibiting evidence of witness' probation in Pulaski County or his pending misdemeanor charges in McCreary County. While a witness's pending charges or probationary status alone may, in some cases, be a satisfactory basis upon which to infer bias, the facts in evidence here were simply insufficient to support the inference of Davenport's bias. Other than the plain fact of Davenport's probationary status, defense counsel offered no evidence whatsoever to support the claim that he was motivated to testify in order to curry favor with authorities . Nor was there any evidence that prosecutors had offered Davenport a "deal" for his testimony. In short, the claim was purely speculative.

TC did not abuse its discretion in limiting the cross-examination of Ms. Ross, as defense counsel failed to establish a satisfactory connection between the proposed testimony and the facts in evidence.

TC did not abuse its discretion by denying defense counsel's motion for funds with which to hire a crime scene investigation expert.  KRS 31.110(1)(b) provides that needy defendants charged with serious crimes are entitled to "necessary services and facilities of representation including investigation and other preparation" and the court shall waive the cost of such services. The services to be provided are those that are "reasonably necessary."  Here, defense counsel sought funds for an expert who would undermine the sufficiency of the investigation.  We agree with the trial court that this purpose could be, and in fact was, reached by cross-examination of the investigating officers into what procedures were and were not taken in the investigation.

 

DICKERSON V. COM.
CRIMINAL - Joinder
2003-SC-000543-MR
2003-SC-000833-TG
2003-SC-000834-TG
PUBLISHED
COOPER
REVERSING AND REMANDING
Date: 10/20/200

 

In consolidated appeals, SC reversed and remanded Defendant's conviction for possession of a handgun by a convicted felon.  Appellant's objection to the consolidation of the sex offender registration charge with the handgun charge for purposes of trial was erroneously overruled. Consolidation of separate indictments for trial is permitted only if the offenses charged in those indictments could have been joined in a single indictment. RCr 9.12. Offenses can be joined in a single indictment only if "the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan." RCr 6 .18.  There is no similarity between the handgun offense and the sex offender registration offense. To convict Appellant of the handgun offense, it may (or may not) have been necessary to introduce both the 1995 and 1989 convictions.  However, it was completely irrelevant and highly prejudicial to prove at Appellant's trial for possession of a handgun that Appellant was not only a convicted sexual offender but also that he had violated the Sex Offender Registration Act.  The same can be said for the introduction at Appellant's trial for violating the Sex Offender Registration Act of evidence that he also violated the proscription against possession of a handgun by a convicted felon. It was also irrelevant and prejudicial to introduce the fact of Appellant's 1989 conviction during the guilt phase of the sexual offender registration trial, since the Sex Offender Registration Act did not apply to that conviction.  Consolidation of these indictments for purposes of trial was error requiring a new trial of the handgun offense .

 

HAYES V. COM.
HARRISON V. COM.
CRIMINAL - Voir Dire; Right to Remain Silent
2003-SC-000675-MR
REVERSING AND REMANDING
2003-SC-000717-MR
VACATING IN PART & REVERSING AND REMANDING IN PART

COOPER, J.
PUBLISHED 3299
Date: 10/20/2005

SC reversed Hayes's convictions and sentences and remanded the charges against him for a new trial.  SC vacated Harrison's convictions and sentences for manufacturing methamphetamine, possession of anhydrous ammonia, and receiving stolen property; and reversed Harrison's conviction and sentence for possession of drug paraphernalia and remanded that charge for a new trial.  TC's failure to permit counsel to ascertain during voir dire whether any of the prospective jurors would hold against them the fact that they exercised their Fifth Amendment privilege not to testify was an abuse of discretion that denied Hayes and Harrison their fundamental right to a fair and impartial jury, an error that is not subject to harmless error analysis

 

LOPEZ V. COM.
CRIMINAL - DUI Prosecutions; Jury Instructions
2003-SC-000878-DG
PUBLISHED
COOPER
REVERSING AND REMANDING
Date: 10/20/2005

Following a jury trial in Fayette District Court, Lopez was convicted of DUI.  He appealed the conviction to the Fayette Circuit Court on various grounds, including the trial court's failure to properly instruct the jury.  After a complicated appellate process, the case ended up in the Kentucky Supreme Court on the sole issue of whether the jury instructions were proper.  At trial, the district judge submitted a DUI instruction based on the 2000 version of KRS 189A.010(1)(a) that required the jury to find, among other things, that the blood alcohol sample from the defendant was taken within 2 hours of his "cessation of operation or physical control of a motor vehicle."  Over Lopez's objection, the prosecutor was allowed to tell the jury both in opening statement and closing argument that they could find the defendant guilty if his blood-alcohol level was ..08 at the time of the breath test even if the level was below .08 at the time he stopped driving his car.  Although the impropriety of the prosecutor's remarks was not an issue before the Supreme Court, the justices noted that such comments were a misstatement of the law.  It held that the instruction submitted to the jury was proper because it required a finding that the defendant's BAC level be .08 or higher at the time he stopped operating his vehicle.  However, on remand, the justices recommended that the parties stipulate to that portion of the tendered instruction regarding the 2-hour time limit for breath tests.  Such an element may end up confusing the jury if it becomes part of an instruction.

CLEMONS V. COM.
CRIMINAL - Methamphetamine; Sufficiency of the Evidence
2003-SC-001040-MR
PUBLISHED
LAMBERT
AFFIRMING
Date: 10/20/2005

A unanimous SC affirmed Clemons' convictions for Meth Manufacturing and Trafficking.  The primary issue on appeal was whether sufficient evidence supported the convictions.  At trial, the Commonwealth presented evidence that the defendant used the Anhydrous Ammonia method of making meth in which the only equipment needed was a jar to hold the ammonia and ephedrine.  Pursuant to a search warrant, sheriff's deputies seized such a jar along with coffee filters, a turkey baster, a Sprite bottle with modified cap and hole in the top, liquid fire, salt, a cutting agent, plastic baggies, metal and glass tubes, baggies containing drug residue, and prescription vials.  There was also testimony from witnesses who observed Clemons standing in front of these materials inside his home and that the home smelled of ether.  Lab tests confirmed that meth was found in the coffee filters, some twist-tie bags, and prescription vials.  A large amount of cash ($580) was found in Clemons' bedroom.  A sheriff's deputy, who happened to be Clemons' neighbor, testified that he observed many short-term visitors to the Clemons household.  There was also evidence that finished meth product was found in various individual baggies.  Under the circumstances, SC held that there was sufficient evidence to induce reasonable jurors to convict Clemons of the charged offenses.

FARROW V. COM.
CRIMINAL - Character Evidence
2004-SC-000293-MR
PUBLISHED
COOPER
AFFIRMING
Date: 10/20/2005

SC affirmed Farrow's convictions for Trafficking in a Controlled Substance and Persistent Felony Offender in the First Degree.  The prosecution's case was based on evidence of two controlled drug-buys in which an informant agreed to purchase cocaine from Farrow while police recorded the transactions on audio and video.  At trial, the Commonwealth's lead officer testified as the first witness and stated that the informant used in this case was reliable.  Farrow's counsel objected, stating that the officer's conclusion was made without a proper foundation.  The officer then went on to say that the informant had worked for police numerous times in the past and that her assistance had always resulted in a conviction.  No objection was made at that time.  SC held that such testimony was inadmissible character evidence under KRE 608.  Even if the informant later testified and was subject to a credibility attack, rehabilitation evidence could only consist of her character for truthfulness.  Moreover, the reference to specific instances of conduct (i.e. past work always resulting in conviction) was improper because the general rule is that character cannot be proven with specific instances of conduct.  However, Farrow's counsel failed to object on the basis that improper character evidence was being introduced.  Therefore, the error was not properly preserved for review.  Furthermore, the admission of improper character evidence did not constitute palpable error.   

BRASCH-BARRY GENERAL CONTRACTORS V. JONES
WORKERS COMP - Appeals Procedure
2004-SC-001126-WC
PUBLISHED
GRAVES
REVERSING AND REMANDING
Date: 10/20/2005

The claimant was awarded a disability based on a 26% impairment rating.  The employer appealed without first filing a petition for reconsideration to the Aministrative Law Judge.  The Board reversed the aLJ, but the Court of Appeals reinstated the ALJ opinion, finding that the failure to file a petition for reconsideration made all findings of fact conclusive.  The argument was basically that the doctor who testified to a 26% impairment had misinterpreted the AMA guides.  The Supreme Court reversed the Court of Appeals and found that the issue was a legal one and not a factual one, which made a petition for reconsideration unnecessary.

HODGES V. SAGER CORP.
WORKERS COMP - Reopening 
2005-SC-000066-WC
PUBLISHED
AFFIRMING
Date: 10/20/2005

The Supreme Court affirmed the Court of Appeals which ordered the dismissal of a reopening motion based on the claimant's failure to make a prima facie case for reopening.  Black letter law:  the motion to reopen is govrerned by th law in effect on the date the motion is filed, in this case, the 1996 changes requiring an increased impairment rating.  Once the case is reopened it is governed by the law in effect on the date of the injury.

Thanks to Scott Byrd, Patrick Bouldin,  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, and Paul Schurman, for their efforts in digesting these decisions.