Kentucky Law Review

Ky. Decisions: Supreme Court - Dec. 22, 2005

Supreme Court Minutes for Dec. 22, 2005 with link to all decisions by name, published and not published.

PUBLISHED DECISIONS OF SUPREME COURT

CAVALIER HOMES OF ALA. V. JUDGE COLEMAN
ADR - Extraordinary Remedies
2005-SC-000160-MR
Published
AFFIRMING
LAMBERT
Date: 12/22/2005

Cavalier Homes sought to compel enforcement of contract's arbitration clause.  Trial court disagreed finding appellee did not have actual knowledge of the arbitration policy.  Cavalier sought extraordinary relief. Both COA and SC denied since appeal was adequate remedy.   The Uniform Arbitration Act at KRS 417.220, expressly provides that "An appeal may be taken from [a]n order denying an application to compel arbitration made under KRS 417-060. . . . The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action ." Thus, the foregoing enactment, created a statutory interlocutory right of appeal where no such right would otherwise exist.

DAVID GRIGSBY V. KBA
ATTORNEY DISCIPLINE - Suspension from practice of law
2005-SC-000463-
Published
Date: 12/22/2005

HAMILTON V. KBA
ATTORNEY DISCIPLINE
2004-SC-000105-
Published   
Date: 12/22/2005

KBA V. NANCY CALLOWAY
ATTORNEY DISCIPLINE
2005-SC-000563-
Published 
Date: 12/22/2005

KBA V. STUART LYON
ATTORNEY DISCIPLINE - Suspension from practice of law.
2005-SC-000736-
Published 
Date: 12/22/2005

HUGH RICHARDS V. KBA
ATTORNEY DISCIPLINE - Public reprimand
2005-SC-000851-
Published 
Date: 12/22/2005

COM. V. KELLY
CRIMINAL - Search & Seizure; Anonymous Tips
2004-SC-000385-DG
Published 
REVERSING AND REMANDING
GRAVES
Date: 12/22/2005

Upon discretionary review, SC reversed CA and Circuit Court's order suppressing evidence seized as a result of a traffic stop following tip by restaurant employees.

Lexington police received a call from two persons who identified themselves simply as Waffle House employees. The employees reported that they suspected a recent patron of their restaurant of being intoxicated and that the suspect was about to drive away from the restaurant. They stated their location and gave details about the suspect and his vehicle.  The suspect was described as being a white male and the vehicle was identified as being a red, older model Camaro with Tennessee tags.  Upon pulling into the parking lot, Officer Hastings saw two people standing outside whom he assumed were the employees who had reported the suspected drunk driver. Upon seeing the police vehicle, the two people then started pointing in the direction of a night club across the street from the restaurant. When Officer Hastings looked toward the area where the people were pointing, he immediately spotted a red, older model Camaro. Officer Hastings drove across the street to the night club and followed the Camaro to a nearby hotel. He then activated his emergency lights and proceeded to conduct an investigatory stop of the vehicle and its driver, who identified himself as Appellee, Michael Kelly.

It is well-established that investigatory stops, such as the one performed by Officer Hastings in this case, are permissible if the officer has reasonable and articulable suspicion that a violation of the law is occurring.  The significance of whether this tip was generated from "anonymous" informants or not bears upon our overall determination of reliability.  We find that the setting and circumstances of this case do not support a conclusion that the tip was truly "anonymous." While the tipsters did not give their names, they (1) identified themselves as employees of the Waffle House restaurant; and (2) provided the location of the particular restaurant where they  worked.  Finally, the reliability and veracity of the tip in this case was corroborated by Officer Hastings to the extent that: (1) he was able to verify most of the details given in the tip, including the identity of the tipsters; and (2) he was able to personally observe the tipsters.  When all of these circumstances are considered in their totality, we are unable to conclude that Officer Hastings lacked the requisite reasonable suspicion to justify his stop of Appellee that night.

Note:  Following a national trend, this decision expands the scope of investigative stops permitted by police.  In restricting the definition of "anonymous", spying on your neighbor is further encouraged.

JOHNSON V. COM.
CRIMINAL - Defining Reasonable Doubt 
2004-SC-000516-MR
Published 
AFFIRMING
ROACH
Date: 12/22/2005

In a 5-2 opinion, SC affirmed Johnson's convictions for Robbery in the First Degree and PFO 2 and his underlying sentence of 20 years.  The Commonwealth presented evidence that Johnson was the getaway driver in a liquor store robbery.  During voir dire, the prosecutor made a statement to jurors concerning the concept of reasonable doubt.  Although he noted that no one could define it for the jury, he explained that it was not the equivalent of beyond the shadow of a doubt.  Defense counsel objected, stating that the prosecutor was actually defining reasonable doubt by ruling out alternatives (i.e. stating what it was not).  The trial court overruled the objection.  Not surprisingly, the primary issue on appeal was whether the trial judge had erred in denying this objection.  The majority opinion held that the prosecutor's statement at worst was harmless error and that it did not violate Commonwealth v. Callahan, 675 S.W.2d 391 (Ky. 1984).  Callahan prohibits counsel from offering any definition of reasonable dbout at any point in a trial.  However, in that case, the Court affirmed Callahan's convictions even though the prosecutor essentially attempted to state what reasonable doubt was not.  The majority stated that what the prosecutor did in Johnson's case was no different and therefore should require the same result.  Justices Cooper and Lambert offered an eloquent dissent in which they traced the evolution of case law on the definition of "reasonable doubt."  In short, they claim that the majority's view will encourage trial counsel to offer their own client-serving definitions of this concept despite the clear prohibition in Callahan. 

COM. V. PRIDDY
CRIMINAL - Terry Stops and Reasonable, Articulable Suspicion
2003-SC-000041-DG
Published
REVERSING
SCOTT, J.
Date: 12/22/2005

In another 5-2 opinion, the SC reversed the CA's decision and effectively upheld the trial court's denial of Priddy's motion to suppress drug evidence seized during his arrest.  The case arose when a police officer was on his way to a domestic disturbance.  While en route, a citizen flagged him down and said that a six foot tall, 170 pound white male with shoulder-length, black, curly hair, driving a late 1970s model black Ford truck with primer on the hood was in the K-mart parking lot on 191 Outer Loop and was about to (sell drugs).  The officer then went to the K-mart parking lot and found the man and vehicle exactly as described.  The trial judge concluded that the officer had testified that the man was leaving the lot after having met another person.  (The dissent noted that the officer gave no such testimony.)  As the truck left the lot, the officer followed it and initiated a traffic stop.  The man appeared to move frantically in his vehicle.  When he got out of his truck, he had a bulge in his front pocket that he stated was a crack pipe.  He was arrested and charged with Possession of a Controlled Substance, Possession of Drug Paraphernalia, and No Motor Vehicle Insurance.  A suppression hearing was held in which the trial judge denied the motion to suppress the drug evidence, stating that the officer had sufficient reasonable, articulable suspicion of criminal activity under the circumstances.  Priddy entered a conditional guilty plea that preserved his right to appeal the trial judge's denial of his motion to suppress.  CA reversed the suppression ruling, stating that the crucial evidence suggesting reasonable suspicion was contained in the officer's citation which was not offered into evidence at the suppression hearing (i.e. the reference to the defendant meeting another person at the parking lot).  The SC reversed, holding that the statements contained in the officer's citation were effectively admitted at the hearing because the officer testified about them.  It further held that the citizen's tip contained sufficient predictive reliability to justify the officer's reasonable suspicion.   Justices Cooper and Lambert dissented, noting that the key evidence supporting reasonable suspicion was the cryptic phrase in the officer's citation regarding the defendant's having met another subject before leaving the parking lot.  Because the officer never testified to that and because the citation was not entered into evidence, the CA was right and the trial judge wrong.    

BAYLESS V. BOYER, M.D.
DAMAGES - Inadequate Damages, New Trial (medicals awarded with no pain and suffering)
2003-SC-000250-DG
Published 
AFFIRMING
ROACH, J.
Date: 12/22/2005

In this medical negligence case involving a missed diagnosis of a wrist fracture by the doctor, the jury awarded the minor his medicals but nothing for pain and suffering. Both the radiologist and the ER doctors missed the fracture.

Expert testimony noted that if the doctor had examined the x-rays he would have noticed the fracture. However, the ER doctor testified there was no acute pain so he probably did not review the films.  Patient was discharged and to return as needed if pain developed.  Patient continued to be active upon discharge and played baseball (with much icing of his sore wrist).  There was no follow-up care by the minor or at direction of his parents for two months.  It was disputed whether the minor discovered the break before or after the end of the baseball season, but the orthopedist examined the wrist two months later, noted the break and calcification could not be repaired by a cast, performed surgical repair, was confident of a good result and  that he should return to normal strength with no more increased risk of arthritic pain than if had been casted properly following the injury.

At trial, the jury found no fault on the ER doctor but found the radiologist negligent.  The jury also apportioned fault on the minor and his parents combined for half the fault.

The COA then went through the basics in analyzing a zero pain and suffering verdict and rejected the contention that surgery constituted uncontroverted evidence of pain entitling the young man to those damages.  The appellate standard is a review of the motion for new trial on inadequate damages under a 'clearly erroneous' standard and further reminded us that a "new trial depends to a great extend upon factors which may not readily appear in an appellate record."  Miller v. Swift was then mentioned as a brief reminder that zero pain and suffering verdicts "may sometimes be appropriate (emphasis added).  Hazel v. Beauchamp was relied upon by the claimants (hand in a shredder case followed by surgery had inadequate/nominal damages) but distinguished by the Supremes who added a caveat that Miller v. Swift was being followed but not extended.

With all that said, Justice Roach did address the facts at trial in the form of depositions, testimony and medical records to conclude the jury had a basis to conclude no pain following the break, no pain following surgery, and no interference with his day to day activities (play baseball, do pushups etc), to name a few. "Dr. Wyrick testified that there would likely have been significant pain associated with treatment of Michael's fractured wrist regardless of the treatment option, either casting or surgery, that was used. He further testified that he could not predict  any significant difference in pain between the two options. Finally, Michael's surgery was performed under general anesthesia, preventing or limiting the acute pain directly related to the procedure . There was substantial evidence for the jury to conclude that Appellants were not entitled to a damages award for pain and suffering. "

STEPHENSON V. WOODWARD
ELECTIONS - Contests, Qualifications
2005-SC-000603-TG
2005-SC-000604-TG
2005-SC-000645-TG
Published
JOHNSTONE
REVERSING IN PART AND AFFIRMING IN PART
Date: 12/21/2005

In this on-going election contest dispute, the SC held that it was a question of statutory interpretation rather than a constitutional separation of powers and political question, holding that the separate circuit court action which was not appealed by either of the two candidates vying for the 37th District's senatorial seat now constituted the law of the case with the Republican candidate Stephenson conclusively determined not be to a Kentucky resident and that the challenger Woodward who got fewer votes did not win and cannot sit. The result is the injunction continues to prevent Stephenson from taking her seat even though the Kentucky Senate has approved and determined she is qualified to sit.

BROWN V. INDIANA INS. CO.
INSURANCE - Automobile Liability Coverage if no workers comp
WORKERS COMP - Exclusive Remedy and Liability Insurance
2004-SC-000065-DG
Published 
AFFIRMING
COOPER, J. 
Date: 12/22/2005

COMPANION CASES:
2004-SC-000067-DG
2004-SC-000070-DG
2004-SC-000071-DG

The issue presented by this appeal is whether a commercial automobile liability insurance policy affords coverage for damages sought in a tort action brought against the insured employer for the wrongful death of its employee, where the action would have been barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act but for the fact that the employer failed to procure a policy of workers' compensation insurance. SC held that the automobile liability policy neither affords coverage for such an action nor requires the insurer to pay the cost of defending such an action.

HARRISON V. VALENTINI M.D.
TORTS - Medical Negligence (SOL and continuing treatment)
CIVIL PROCEDURE - Statute of Limitations (medical Negligence)
2004-SC-000015-DG
Published 
LAMBERT
REVERSING AND REMANDING
Date: 12/22/2005

Continuing treatment by the Defendant physician tolls the running of the statute of limitations for the patient under rule called the "continuous course of treatment rule." Rationale is that both are afforded the opportunity to cooperate with each other to correct the problem and mitigate the damages. However, no benefit shall inur to a patient who feigns a desire to continue treatment in order to shop around for an expert or give a lawyer more time to file a complaint.

KUBAJAK V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
WORKERS COMP
2003-SC-000974-WC
Published 
AFFIRMING
Date: 12/22/2005

It is undisputed that the claimant police officer suffered from post-traumatic stress disorder, that the condition is disabling, and that it is work-related . An Administrative Law Judge (ALJ) determined, however, that the condition was due to observing gruesome crime scenes. Therefore, it was not an "injury" as defined by KRS 342.0011(1) and was not compensable . See Lexington-Fayette Urban County Government v. West, 52 S .W.3d 564 (Ky. 2001) . Having determined that the evidence did not compel a finding that the condition resulted from a physically traumatic event, the Workers' Compensation Board (Board) and the Court of Appeals have affirmed . Likewise, SC affirmed.

HILLTOP BASIC RESOURCE, INC. V. BOONE COUNTY
ZONING - Zoning Amendment; Standard of Review
2004-SC-000003-DG
2003-SC-001052-DG
Published   
REVERSING AND REMANDING
GRAVES
Date: 12/22/2005

Hilltop Basic Resources, Inc. (“Hilltop”) sought to mine underground limestone in a rural area of Boone County not zoned for such use. Hilltop requested an amendment to the zoning map. The Planning Commission, by a vote of seven (7) to five (5) recommended approval. The Fiscal Court disagreed. It voted three (3) to zero (0) to deny the zoning amendment.

Hilltop appealed the Fiscal Court’s decision, arguing (1) that it acted arbitrarily and capriciously, and (2) that it violated due process requirements because two of its members were biased. Hilltop alleged that the members’ biases were evidenced by their public and private comments opposing mining activities in general. Specifically, one member allegedly stated that she “would never vote for a mine in this area of Boone County” because “[t]he people in Boone County just don’t want it.” The Boone Circuit Court upheld the decision of the Fiscal Court, finding that it was neither arbitrary nor erroneous as a matter of law.

Hilltop had better success at the Court of Appeals. There, the Court held that procedural due process was violated because two of the Fiscal Court members were biased.

The Kentucky Supreme Court granted discretionary review. The Court, in a unanimous decision, reversed the ruling of the Court of Appeals. Citing American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, 379 S.W.2d 450 (Ky. 1964), the Court noted that a zoning determination is reviewed for the limited purpose of determining if it is arbitrary. The issue of arbitrariness involves three questions: (1) whether an action was taken in excess of granted powers, (2) whether affected parties were afforded procedural due process, and (3) whether determinations are supported by substantial evidence. While the Court of Appeals held that due process required the Fiscal Court to be a completely “impartial tribunal,” the Supreme Court disagreed. It held that fiscal courts are legislative bodies and do not perform a judicial function. Thus, the Court reasoned, fiscal courts should not be held to the heightened standards of impartiality that are applied in the judicial context. (The Court noted that there were no allegations of “malice, fraud, corruption or other conflicts of interest.”) It stated that policy-based controversies in nonjudicial settings are best “ferreted out in the legislative arena, i.e., through expression of the will of the voters.”

The Supreme Court remanded the matter to the Court of Appeals with instructions to consider Hilltop’s argument concerning whether the Fiscal Court’s decision was based on substantial evidence, and whether its decision was “in conformance with the comprehensive plan and applicable zoning law,” issues the Court of Appeals did not previously consider.

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

Ky. Decisions: Supreme Court Published on Nov. 23, 2005

KENTUCKY SUPREME COURT DECISIONS - PUBLISHED
NOV. 23, 2005

Minutes for NOV. 23, 2005

LEWIS V. JACKSON ENERGY COOPERATIVE CORP.
ADMINISTRATIVE LAW - Electric Cooperatives
2003-SC-000119-DG.pdf
Published 
REVERSING
WINTERSHEIMER
Date: 11/23/2005

It was plain error for both the circuit court and the Court of Appeals to construe KRS 279 .020 as permitting rural electric cooperatives to engage in non-electric ventures.   Rural electric coop not permitted to sell propane.

KBA V. ROBERT M. BEAL
ATTORNEYS - Discipline
2005-SC-000697-KB.pdf
Published
Date: 11/23/2005

One year suspension from practice of law.

KBA V. NICKIE BARTON VANMETER
ATTORNEYS - Discipline
2005-SC-000724-KB.pdf Published 
Date: 11/23/2005

Permanent disbarment.

INQUIRY COMMISSION V. KENNETH EUGENE RYLEE, JR.
ATTORNEYS - Discipline
2005-SC-000776-KB.pdf
Not Published  105 kb
Date: 11/23/2005

Temporary suspension.

RUSSELL L. CROLEY
ATTORNEYS - Discipline
2005-SC-000826-KB.pdf
Published 
Date: 11/23/2005

Public reprimand.

YEAGER V. MCLELLAN
CONTRACTS - Breach, illegality
2003-SC-000180-DG.pdf
Published 
AFFIRMING
GRAVES
Date: 11/23/2005

This appeal arose from an action for breach of contract/breach of warranty based  upon alleged misrepresentations made by the sellers of a home.  Appellee charged that Appellants falsely completed the disclosure form because the two incidents listed (March 1989 and 1999) were not the only times that the basement had leaked . The Jefferson Circuit Court entered partial summary judgment in favor of Appellants, reasoning that the disclosure form clearly stated that it was not a warranty.

A court may refuse to enforce a contract on grounds of illegality where the contract has a direct objective or purpose that violates the federal or a state Constitution, a statute, an ordinance, or the common law .  the clause in this contract creates a warranty. The contract incorporates the disclosure form by reference and explicitly warrants the truthfulness and accuracy of the form and must be enforced as such .

As the Court of Appeals correctly noted, the contract does not violate KRS 324.360 or 201 KAR 11 :350 because the parties are in compliance with these provisions and merely sought to give greater weight to the disclosure form than was statutorily required.

ROBERTSON V. COM.
CRIMINAL - RCr 11.42; Equitable Tolling
2003-SC-000948-DG.pdf
Published
REVERSING AND REMANDING
COOPER
Date: 11/23/2005

 

SC reversed Circuit Court's dismissal of pro se Defendant's RCr 11.42 motion as untimely.  Case remanded to the Nelson Circuit Court for an evidentiary hearing to determine whether the three-year period of limitation was equitably tolled in this case.

 

"Considering the similarities between 28 U.S .C. § 2255 and RCr 11.42(10), and the fact that the denial of a motion under RCr 11.42 often results in the filing of a habeas petition within the jurisdiction of the Sixth Circuit, we now adopt the Dunlap test for determining whether equitable tolling is applicable to an otherwise limitation-barred RCr 11.42 motion."  In Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit adopted for equitable tolling purposes in habeas cases the same five-factor test it had approved for employment discrimination cases in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988): (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.

 

Note:  The Justices must have felt strongly about this case given the three separate dissenting opinions.

 

WILLIAMS V. COM.
CRIMINAL -  Sexual Exploitation
2003-SC-001024-MR.pdf
Published
AFFIRMING IN PART, REVERSING AND REMANDING IN PART
WINTERSHEIMER
Date: 11/23/2005

 

SC affirmed Defendant's convictions of four counts of use of a minor in a sexual performance but reversed the 40 year sentence.

KRS 531.300 et seq. pertains to the Sexual Exploitation of Minors. KRS 531.310(1) provides that "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." A "sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a minor[ .]" KRS 531.300(6) . A "[p]erformance" includes any play, motion picture, photograph or dance." KRS 531.300(5) (emphasis added) .  Here, the plain language employed in the definition of "performance" focuses on "any photograph ." The singular form of "photograph" read in conjunction with the term "any" clearly indicates that the Legislature intended prosecution for each differing photograph . Accordingly, a person who generates differing and multiple prohibited photographs or causes a child to engage in the creation of such photographs commits multiple offenses of KRS 531.310, even though each such differing photograph involves the same subject captured in a narrow timeframe.

SC ordered new sentencing hearing as TC permitted non-final convictions to be admitted during sentencing phase.

WOOD V. COM.
CRIMINAL
2003-SC-000535-MR.pdf
Published 
AFFIRMING
JOHNSTONE
Date: 11/23/2005

SC affirmed Defendant's conviction for capital murder and life sentence without parole.  SC rejected the nine claims of error alleged by the Defendant.

 

WHITE V. COM.
CRIMINAL - Murder
2004-SC-000082-MR.pdf
Published 
AFFIRMING
ROACH
Date: 11/23/2005

Affirmed conviction of Pulaski County Sheriff Catron finding all claims to be without merit.

THOMPSON V. COM
CRIMINAL - 11.42 Granted
2004-SC-000217-DG.pdf
Published
REVERSING AND REMANDING
SCOTT
Date: 11/23/2005

11.42 granted and reversed/remanded on ineffectiveness of counsel issue as it was unreasonable not to attempt in some  way to contest evidence or at least insure its reliability

COM. V. STACEY
CRIMINAL - 11.42
2004-SC-000358-DG.pdf
Published
REVERSING
JOHNSTONE
Date: 11/23/2005

SC reinstated the trial court's order denying Stacey's motion for post-conviction relief pursuant to RCr 11 .42.

The issue to be considered is not whether Stacey was, in fact, competent at the time he entered his plea, but rather whether he alleged sufficient grounds in his untimely RCr 11 .42 motion to warrant an evidentiary hearing.

BUCKLEY V. HON. WILSON
EXTRAORDINARY REMEDIES
2004-SC-000727-MR.pdf
Published 
AFFIRMING
LAMBERT
Date: 11/23/2005

Denied writ of prohibition on claim that judge was misinterpreting the law.  It  was the trial court's duty to interpret and apply the controlling appellate court decision. A trial court, in interpreting an appellate court's decision, is not acting outside its jurisdiction even if its interpretation is erroneous.

KENTUCKY FARM BUREAU MUT INS CO V. RYAN
INSURANCE - Uninsured motorist
CIVIL PROCEDURE - Apportionment, Warning order attorney
2003-SC-000944-DG.pdf
Published
reversing
JOHNSTONE
Date: 11/23/2005

The basic holding permitted a UIM carrier to third party an unknown motorcyclist defendant for purposes of apportioning fault even though there was no personal jurisdiction over that unknown motorcyclist.  An odd twist in this case was that the UIM was also a UM carrier and was permitted to use the 'no contact' rule to defeat the plaintiff's claim for uninsured motorist benefits.

Comment:  However for now, note the inconsistent positions permitted KFBM in talking what were essentially inconsistent positions by parsing the policy provisions and not reading the policy as a whole and ignore the intent and purpose of the 'no contact' rule to prevent fraudulent claims.  Justice Johnstone wrote for the majority and made some black letter law pronouncements that a UIM claim is not controlled by the apportionment statute since it is a contract and not a tort and its tweener status (my word not his) does not change that fact.  However, in a UIM case the damages are in tort and the third party claim for apportionment is permitted.  Of course, would a constructively served third party complaint suffice if a direct action against the tortfeasor?  Time will tell on that one, but in that scenario I would suggest a motion to dismiss by the plaintiff for failure to state a cause of action since indemnity in this situation is non-existent and apportionment is a legal conclusion and not a claim, Kevin Tucker case notwithstanding in creating the legal fiction.

WILLIAMS V. WAL-MART STORES, INC.
TORTS - Age Discrimination
2004-SC-000080-DG.pdf
Published 
AFFIRMING
ROACH
Date: 11/23/2005

Although plaintiff  was replaced by at least one of these substantially younger individuals,  this  case is one of those "instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory ."

In St. Mary's Honor Center, the Supreme Court rejected the "pretext plus" and "pretext only" approaches in favor of the "permissive pretext only' standard and held that it was permissible, but not mandatory, for the trier of fact to make an ultimate finding of intentional discrimination once the plaintiff has established pretext.   Considered together, and despite Williams's weak showing of pretext, these facts show that Medina was solely responsible for Williams's termination and that he did not know her age at the time he made that decision .

PREVIS V. DAILEY
TORTS- Negligence (duty of care, bicyclist and MVA)
2004-SC-000131-DG.pdf
Published
REVERSING AND REMANDING
JOHNSTONE
Date: 11/23/2005

The accident arose when a truck was cresting a hill and pulled into the left lane to pass a bicyclist.   Assuming he had passed her, the trucker maneuvered his truck back into the right-hand lane  and caught the bike's  handlebars which became wedged under the second flatbed wagon . The bike was pulled under the wagon and the bycyclist was thrown into a ditch on the side of the road .

Biker sued car in a personal injury action.  The trial court denied both parties' motions for a directed verdict, and the case was thereafter submitted to the jury, which returned a verdict in favor of Dailey .

Trucker's legal duty required that he not pass biker unless he could do so without interfering with the safe operation of her bicycle, and that if, in fact, he did pass her that he not drive to the right until he was reasonably clear of her.  Apparently, truck believed that it was solely biker's obligation to make sure he safely passed her. Clearly that is not the law. See KRS 189 .340(1). Nor are we sympathetic to truck driver's claim that he had no choice but to move back into the right lane so as to avoid a potential collision with oncoming traffic .

If the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189 .340(4) .2

We hold that the trial court should have granted bicyclist a directed verdict on the issue of truck driver's negligence .

However, a jury is still entitled to consider Previs's duties in operating her bicycle, and apportion fault should it find that Previs was negligent as
well. The jury was given instructions on both Previs's duties and apportionment, but the roadway before coming within one hundred feet (100') of any vehicle approaching from the opposite direction. was directed not to consider them upon finding for Dailey . On remand, a jury must consider these additional issues.

LANE V. S & S TIRE, INC.
WORKERS COMP - Death Benefits (Suicide from denial of benefits Claimed)
2005-SC-000141-WC.pdf
Published
AFFIRMING
Date: 11/23/2005

Worker sustained work related injury and later died of self-inflicted gun shot wounds.  Widow claimed (and ALJ rejected) contention that decedent committed suicide due to his employer's unreasonable refusal to pay voluntary benefits following the injury and awarded Priscilla survivors' benefits under KRS 342.730(3) rather than the death benefits she sought under KRS 342.750.

The ALJ refused to increase the income benefit by a factor of 0.02 on the ground that Douglas had a GED diploma and also rejected a request for sanctions under KRS 342 .040 and KRS 342.310 on the ground that the employer's insurance carrier had a reasonable basis for refusing to pay
temporary total disability (TTD) and medical benefits voluntarily.

KEITH V. HOPPLE PLASTICS
WORKERS COMP -
2004-SC-000451-WC.pdf
Published 
AFFIRMING
Date: 11/23/2005


KRS 342.730(4) (DOES NOT) violate the equal protection clause of the United States Constitution and/or Section 3 of the Kentucky Constitution

DOUBLE L CONSTRUCTION INC. V. MITCHELL
WORKERS COMP - Temporary Total Disability
2004-CA-1316-WC
PUBLISHED
AFFIRMING
DATE: 11/23/2005

The employee was working at two employments, carpentry and an after hours cleaning job, when his eye was punctured by a nail. During the surgeries which followed he was able to return to the cleaning job, but not the carpentry job. The ALJ determined that the return to only part of his employment did not render him ineligible for temporary total disability benefits. The Workers' Compensation Board reversed, but the Court of Appeals reversed the Board, holding that when an employee is unable to return to his customary employment, and has not reached MMI, he is entitled to TTD based on the wages earned in both employments. The Supreme Court affirmed, on different grounds, holding that the inability to return to the employment in which the employee was injured entitled him to TTD based on that employment only. However, the employer failed to preserve that issue and the Supreme Court did not grant it a credit. This decision is practical, since denying TTD based on a relatively minor concurrent job would leave the worker destitute while he was unable to perform his major employment because of the injury. It makes a careful analysis of the definition of temporary total disability based on its definition in the statute. It may also provide an answer to situations where the employer can provide light work while the employee is recovering, but only at reduced wages. It is not fair to penalize the worker for being injured at work.

The newest member of the Court, Roach, makes a lone dissent which accuses the majority of creating law which should be statutory. However, he ignores the definition of TTD in the statute, which leaves open the meaning of "returning to employment". The statute is ambiguous in that the meaning of return to employment can mean returning to all employment, or only part of previous employment. Such an ambiguity requires judicial interpretation.

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

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.

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.

Published Kentucky Supreme Court Decisions - Sept. 22, 2005

Supreme Court Minutes and Published Decisions for Sept. 22, 2005.
23 published and 23 nonpublished decisions this date.

Minutes.
For the Court's order announcing published, nonpublished decisions, petitions reconsideration granted and denied, attorney disciplinary matters, etc. with a hot link to the actual PDF decision for both published and nonpublised.

ATTORNEY DISCIPLINE MATTERS

KBA V. GABBARD
ATTORNEYS
2005-SC-000548-KB.pdf - PUBLISHED
Date: 9/23/2005

KBA V. WADE
ATTORNEYS
2005-SC-000549-KB.pdf - PUBLISHED
Date: 9/23/2005

INQUIREY COMMISSION V. ROBEY
ATTORNEYS
2005-SC-000573-KB.pdf - PUBLISHED
Date: 9/23/2005

PUBLISHED DECISIONS

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CAB. V. KENTEC COAL CO., INC.
ADMINISTRATIVE LAW - Mining Regulations
2003-SC-000622-DG.pdf - PUBLISHED
Judge: SCOTT
AFFIRMING
COOPER, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION WITH JOHNSTONE AND ROACH, J.J., JOINING THAT OPINION.

ROACH, J., DISSENTS BY SEPARATE OPINION WITH COOPER AND JOHNSTONE, J.J., JOINING THAT OPINION.

Date: 9/23/2005

SC held the review procedures under KRS 350.0301(5) and 405 KAR 7:092 (e.g., violators required to prepay assessments in order to obtain formal hearing on contest) was unconstitutional (equal protection, arbitrary and unreasonable). [updated and corrected by MLS on 9/29/2005].

TRANSPORTATION CAB. V. TAYLOR
BOARD OF CLAIMS - Negligence Claim and Guardrail Guidelines
2003-SC-000556-DG.pdf
2003-SC-000586-DG PUBLISHED
Judge:  COOPER
AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART AS TO 2003-SC -556-DG AND REVERSING AND REMANDING AS TO 2003-SC-586-DG.
Date: 9/23/2005

These two appeals are from separate decisions of the Board of Claims, KRS 44 .070, et seg . , denying claims for damages allegedly caused by the Transportation Cabinet's failure to provide warnings and/or erect guardrails at the scenes of two different single-vehicle accidents. In each case, the Board concluded that the negligence of the vehicle's operator was the sole cause of the accident without addressing whether any negligence on the part of the Cabinet was a contributing cause of the damages sustained because of the accident.

Perceiving an inconsistency in the respective decisions of the Court of Appeals, SC granted discretionary review of both cases.

A highway authority is not automatically liable every time a motorist drives his vehicle off the traveled portion of the highway and strikes a roadside hazard. Nor does the failure to follow design guidelines, such as those recommended by AASHTO or the Warrants & Guidelines , constitute the equivalent of negligence per se (as implied by the Board in the Babbitt case) .

AKERS V. COM.
CRIMINAL - Discovery
2003-SC-001049-DG.pdf published
Judge:  JOHNSTONE
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING.

WINTERSHEIMER, J., DISSENTS BECAUSE THE DISCOVERY VIOLATION DID NOT REQUIRE A MISTRIAL AND VACATION IS UNWARRANTED
Date: 9/23/2005

Appellant was convicted of first-degree stalking, fourth-degree assault, and two counts of second-degree unlawful imprisonment. He was sentenced to four years' imprisonment. On appeal, the Court of Appeals held that a discovery violation and an error with regard to the instructions on the misdemeanor charges warranted reversal of the unlawful imprisonment and assault convictions . However, the court affirmed the felony first-degree stalking conviction .

Supreme Court granted Akers' motion for discretionary review to consider two issues: (1) whether the discovery violation also warrants reversal of the felony stalking conviction, and (2) whether Akers was denied his right to peremptory challenges by the trial court's refusal to excuse a juror for cause. Affirmed in part, and reversed in part.

When the Commonwealth called Trooper White to the stand, he testified as to the injuries Ranie sustained on her leg from being dragged across the gravel driveway. On cross-examination, defense counsel attempted to impeach Trooper White with the uniform offense report he completed, in which he checked the box indicating "no injury." Trooper White thereafter explained that the report defense counsel was referring to was for the unlawful imprisonment charge and, in fact, there was a separate report for the assault charge on which he did mark the injury box.  This separate report had not been disclosed to the defendant.

Had Trooper White testified only as to the false imprisonment report, the case would have simply been a "he said/she said" situation . However, once Trooper White confirmed the existence of the second undisclosed report, defense counsel's ability to cross-examine him was essentially eviscerated . Anderson v. Commonwealth, 864 S .W .2d 909 (Ky. 1993); Barnett v. Commonwealth, 763 S.W.2d 119 (Ky. 1988).

Moreover, because all of the charges stemmed from the single incident, Akers ability to defend against any of them, not merely the assault charge, was substantially impaired.

The trial court has broad remedial powers under RCr 7.24(9). As we noted in Weaver v. Commonwealth, 955 S.W.2d 722, 725 (Ky. 1997), "(a) discovery violation justifies setting aside a conviction 'only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different ."'  Here, the Commonwealth's failure to disclose Trooper White's assault report prejudiced Akers' ability to prepare a defense. Defense  counsel labored under a misconception that there was no physical evidence.  All of Akers' convictions must be reversed .

BRAY V. COM
CRIMINAL -  Hearsay; Confrontation; Sufficiency of Evidence
2003-SC-000656-MR.pdf
Judge:  COOPER AFFIRMING
Date: 9/23/2005

Following defendant's retrial, he appealed  asserting the following claims of error: (1) admission of certain hearsay statements in violation of his Sixth Amendment right to confrontation ; (2) insufficiency of the evidence to support his convictions ; (3) denial of his motion for a continuance for the purpose of obtaining an independent competency evaluation; (4) failure to hold a competency hearing after ordering that a competency evaluation be performed by the Kentucky Correctional Psychiatric Center (KCPC) or its designee ; and (5) failure to declare a mistrial after the prosecutor introduced evidence of Appellant's other bad acts .

A declarant's fearful statements over the telephone that a crime may occur do not alone establish "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . . .. Crawford, 541 U .S. at 52, 124 S .Ct. at 1364. The statements at issue here were not testimonial in nature, thus not within the type of hearsay absolutely precluded by Crawford .

There was sufficient circumstantial evidence to support the jury's conclusion that Appellant murdered Audrey Bray and Effie York.  Circumstantial evidence can suffice to support a criminal conviction . Baker v. Commonwealth , 860 S .W.2d 760, 761 (Ky. 1993) . A conviction may be obtained upon circumstantial evidence when the evidence taken as a whole is of such character that a jury would not be clearly unreasonable in concluding that a person is guilty beyond a reasonable doubt. Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) . The same standard applies regardless of whether a case involves direct or circumstantial evidence. Commonwealth v. Collins, 933 S.W.2d 811, 815 (Ky. 1996).

Because the two psychological opinions were virtually identical, except that Deland's was more emphatic, and because Appellant was deemed competent after a hearing on Sivley's opinion, a reasonable judge would have no reason to further doubt Appellant's competency. See Pate v. Commonwealth , 769 S.W .2d 46, 47 (Ky. 1989) ("There is no right to a continual succession of competency hearings in the absence o f some new factor .") .

COM. V. NOURSE
CRIMINAL - Search and Seizure
2003-SC-000220-MR.pdf
2003-SC-000221-MR
Judge:  GRAVES
Wintersheimer concurs inpart and dissents in part
AFFIRMING
Date: 9/23/2005 PUBLISHED

Cotenant can authorize search.

DENO V. COM.
CRIMINAL - Pro Se Representation
2004-SC-000233-MR.pdf
Judge:  LAMBERT
REVERSING AND REMANDING
Date: 9/23/2005 PUBLISHED

A request to proceed pro se or with counsel in a limited fashion must be timely and unequivocal. In the case at bar, Appellant's request was timely and unequivocal considering the circumstances under which the request was made. A request for hybrid representation is timely if made before meaningful trial proceedings have begun. Appellant proffered his request in the trial judge's chamber before the jury was selected. Although an earlier request would have been preferable, the request was made before any part of the trial had begun. Therefore, the request was timely.

HEARD V. COM.
CRIMINAL - Identity of Informant
2003-SC-001031-DG.pdf
Judge:  SCOTT
REMANDING
Date: 9/23/2005 PUBLISHED

A defendant who requests disclosure of the identity of an informant must first make a proper showing that an exception applies. See Schooley v. Commonwealth, 627 S.W.2d 576 (Ky. 1982). Once Appellant has made such a showing, the burden would shift to the Commonwealth to overcome this inference. See United States v. McManus, 560 F.2d 747 (6th Cir. 1977). Factors a court would normally consider include whether the informant's life would be in danger were his identity revealed or if he is needed for other undercover work, etc.

A proper determination cannot be made regarding the KRE 508 privilege without the trial court conducting an "in camera" hearing. Case remanded to the trial court for the limited purpose of holding a KRE 508 "in camera" hearing consistent with this opinion.

KURTZ V. COM.
CRIMINAL - Out of Court Testimony of Child-Witness
2004-SC-000650-MR.pdf
Judge:  GRAVES
VACATING AND REVERSING REMANDING FOR A NEW TRIAL
Date: 9/23/2005 - PUBLISHED

When Ms. Griffey's testimony (child's mental health counselor) is considered in its entirety, the Supreme Court found the trial court did not abuse its discretion when it found the content of the testimony to be sufficient to support a finding of compelling need for each child.

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding.

KRS 421.350(5) defines "compelling need" as "the substantial probability that the child would be unable to reasonably communicate because of serious emotional distress produced by the defendant's presence." Appellant contends the trial court erred when it allowed the children to testify by video deposition (which was later played to the jury at trial) pursuant to a finding of compelling need under this statute. A trial court's finding of compelling need pursuant to KRS 421.350 is reviewed for abuse of discretion. Danner v. Commonwealth, 963 S.W.2d 632, 634 (Ky. 1998).

MAJOR V. COM
CRIMINAL - Admissibility of Motive Evidence
2003-SC-000673-MR.pdf
Judge:  SCOTT
REVERSING AND REMANDING
COOPER, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION WITH JOHNSTONE, J., JOINING THAT OPINION.
ROACH, J., DISSENTS BY SEPARATE OPINION WITH GRAVES AND
WINTERSHEIMER, JJ., JOINING THAT OPINION.
WINTERSHEIMER, J., DISSENTS  BY SEPARATE OPINION.
Date: 9/23/2005 PUBLISHED

The appeal from a murder conviction dealt with motive evidence under KRE 404(b)(1).   

First,   the testimony of Donald Oakes, as to his sexual abuse by the Appellant, both prior to, and after the disappearance of Marlene Major, was appropriate and admissible under KRE 404(b)(1) as proof of "motive."   

Second, however, Oakes'  testimony about Appellant beating him after his interview by the police officers is evidence which is recognized as "an expression of a sense of guilt." Rodriguez v. Commonwealth, 107 S.W.3d 215, 219, 220 (Ky. 2003). The jury could well believe the beating was designed to cover up evidence of Appellant's guilt or to prevent further disclosures.

Third, however, the testimony of the daughter, Lalona Bramble, as to her sexual abuse, though terrible, had no relevance to the issues involved in the murder; nor could it be said to be so "inextricably intertwined" with the other evidence as to have necessarily been admissible. "The key to understanding this exception is the word inextricably. The exception relates only to evidence that must come in because it is so interwoven with the evidence of the crime charged that its introduction is unavoidable." Funk v. Commonwealth, 842 S.W.2d 476, 480 (Ky. 1993). The abuse of Lalona Bramble did not occur until after the disappearance of Marlene Major and then, only sometime after they relocated to Rhode Island. There is simply nothing in the evidence from which we could conclude Lalona's abuse was in anyway tied to the motive for the murder of Marlene. Nor does it supply, or support, any other reasonably related issue.

POLLINI V. COM.
CRIMINAL - Jury Selection
2003-SC-000552-MR.pdf
Judge:  GRAVES 
AFFIRMING IN PART; REVERSING IN PART.
COOPER, J., CONCURS IN A SEPARATE OPINION IN WHICH JOHNSTONE, J., JOINS.
SCOTT, J., DISSENTS IN A SEPARATE OPINION IN WHICH LAMBERT C., AND WINTERSHEIMER J., JOIN.
Date: 9/23/2005 PUBLISHED

Appellant  asserts error with respect to the trial court's question regarding whether the jurors had any "moral or religious or conscientious objections that would prevent" consideration of the death penalty as a punishment. Appellant argued such an inquiry violates the jurors' rights to religious freedom under the Kentucky and United States Constitutions. This issue was not preserved and is raised by Appellant as palpable error under RCr 10.26. Appellant concedes that we addressed and rejected essentially the same argument in Parrish v. Commonwealth, 121 S.W.3d 198, 202 (Ky. 2003) ("There was no violation of any provision of either the federal or state constitutions" when the trial court asked each prospective juror "if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case."), but nonetheless urges reconsideration of the issue.  After careful review, SC held the totality of the circumstances in this case do not compel reconsideration of this issue and thus, no palpable error in the trial court's voir dire question.

POTTS V. COM
CRIMINAL - Motion for Directed Verdict (Stating grounds)
2003-SC-000500-MR.pdf
Judge:  COOPER
AFFIRMING
Date: 9/23/2005 PUBLISHED

Appellant's motion for a directed verdict of acquittal failed to specify any grounds for the motion. CR 50.01 states, in pertinent part, "[a] motion for a directed verdict shall state the specific grounds therefor."   CR 50.01 has been previously applied to criminal cases and have held that its requirement of "specific grounds" must be followed to preserve for appellate review a denial of a motion for a directed verdict of acquittal.

ROBINSON V. COM.
CRIMINAL - Motion of Directed Verdict Standard
2004-SC-000050-MR.pdf
Judge: SCOTT
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
Date: 9/23/2005 PUBLISHED

A trial court, on a motion for directed verdict, must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given such testimony. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991).

SKAGGS V. COM.
CRIMINAL - Competency to Stand Trial (Evidentiary Hearing)
2002-SC-000436-MR.pdf
Judge:  COOPER
Wintersheimer dissenting by sep. opinion
REMANDING
Date: 9/23/2005 PUBLISHED

Because the trial court overruled Appellant's motion for an evidentiary hearing on whether he was entitled to the mental retardation exemption, the issue becomes whether Appellant has produced "some  evidence creating a doubt as to whether he is mentally retarded," so as to entitle him to an evidentiary hearing. Bowling, 163 S.W.3d at 384.  While the evidence was insufficient to entitle Appellant to a directed verdict on the issue, as he claims on appeal, it was sufficient to entitle Appellant to an evidentiary hearing and a determination of the issue by the trial court. Compare Bowling, 163 S.W.3d at 384, where the lowest I.Q. measurement in the record was 79.

KY RETIREMENT SYSTEMS V.HALFHILL
EMPLOYMENT LAW - Retirement Regulation; Discriminatory Intent
2003-SC-000771-DG.pdf
Judge:  GRAVES
REVERSING.
ROACH, J., NOT SITTING.
WINTERSHEIMER, J., DISSENTS BY SEPARATE OPINION.
Date: 9/23/2005

Appellee, H . Dennis Halfhill, a deputy sheriff with the Kenton County Sheriffs Office, sought and was denied disability retirement benefits' after he was injured in an automobile accident in the course of his employment. A former Kentucky Administrative Regulation barred disabled state employees from being eligible for disability retirement benefits if they were independently eligible for unreduced normal retirement benefits . It mandated that the employee accept the "non-disability" normal retirement benefits in lieu of claiming disability retirement.

Without further evidence establishing that the above stated intent is somehow irrational or is otherwise clearly a pretext for age discrimination based primarily on "inaccurate and stigmatizing stereotypes," we find that evidence simply showing the regulation was issued as a "corrective" measure in response to a challenge by the EEOC is insufficient, in and of itself, to establish that Kentucky Retirement had a discriminatory motive when it enacted the former regulation .

Without sufficient evidence to establish proof of discriminatory motive by Kentucky Retirement, Halfhill's claim of disparate treatment under KRS 344.040 must fail . Accordingly, SC reversed the Court of Appeals and reinstated the trial court's verdict.

GOFF V. GOFF
FAMILY LAW - Child Support and Custody; UCCJA (Jurisdiction)
2003-SC-000477-DG.pdf
Judge:  LAMBERT
AFFIRMING
Date: 9/23/2005 PUBLISHED

Parties married in Tenn., have child, and then split up with mother staying in Tenn. and father coming to Kentucky.  Issues developed during divorce and custody as to state with jurisdiction.

In this case, Tennessee declined to hear a motion offered by Ms. Goff to establish child support payments . It also dismissed her divorce case.   In its order dismissing, the Tennessee court impliedly declined jurisdiction to determine child custody. Upon dismissal, there was no longer a vehicle by which the Tennessee Court could adjudicate any issues between the parties. In the "agreed" decree of dissolution of marriage of March 3, 1997, the Kentucky court determined that Ms. Goff "is a fit and proper person to have the care and custody and control of the parties' infant child." The refusal of the Tennessee court to hear the child support motion and dismissal of the case amounts to clear communication from the Tennessee court that it was refusing to exercise jurisdiction over the child custody matter . In light of the requirement that courts communicate a clear intent or reason for declining jurisdiction, the  record is sufficient. Therefore, the Tennessee court effectively declined jurisdiction, thereby authorizing Kentucky to assert jurisdiction pursuant to KRS 403.420(1)(d) . Therefore, the decision of the Court of Appeals on this issue is affirmed.

The second issue is whether Kentucky has continuing jurisdiction to modify a custody order. At the time a party seeks modification, KRS 403.420(1)(a)-(d) must apply as the jurisdictional requirements of the UCCJA apply to all cases regardless of whether the custody order originated in Kentucky or another state or foreign court.   That threshold determination required by the UCCJA to establish Kentucky jurisdiction is likewise required to modify an order even of its own making. Mr. Goff's request for change in custody can only be considered when the circumstances covered by the UCCJA are present.

The child was born in Tennessee and Tennessee is the child's home state . Therefore, Kentucky does not have continuing jurisdiction to modify custody. At the time modification was sought, Tennessee was unquestionably the home state of the child and Kentucky courts were without custody modification jurisdiction .

THOMPSON V. THOMPSON
FAMILY LAW - Child Support (Jurisdiction - Circuit, District)
2004-SC-000062-DG.pdf
Judge:  LAMBERT
REVERSING AND REMANDING.
JOHNSTONE, J., DISSENTS BY SEPARATE OPINION IN WHICH SCOTT AND WINTERSHEIMER, JJ., JOIN.
Date: 9/23/2005 PUBLISHED

After Paul's divorce petition was filed, but prior to service of process, Lisa obtained a district court custody and support order in conjunction with a domestic violence proceeding. Neither party took any action on the case for several months, but on June 12, 2000, pursuant to Paul's motion, the district court purported to vacate its support order and send the case to circuit court.

Thereafter, in August 2000, Lisa moved the circuit court to set child support and this was ultimately, albeit not expeditiously, accomplished . Moreover, the final circuit court judgment relative to child support purported to vacate the district court support order.  Thus, we have a district court support order arising out of a domestic violence proceeding that was subsequently vacated by the district court and that was also  subsequently vacated, expressly or by implication, by the circuit court when it set child support from December 1999 .

From these facts the issue that emerges is whether a child support order rendered by a district court, ancillary to a domestic violence proceeding, may be retroactively modified by the rendering court or by a circuit court in a dissolution proceeding. In other words, was the district court order of December 1999 subject to subsequent eradication, and elimination of the accumulation of child support at $500.00 per week from December 1999 until June 12, 2000?

This case well illustrates the desirability of having all matters relating to a family's domestic conflicts handled by the same court. This case began in circuit court, orders were entered in district court, hearings were held before commissioners in circuit court, and orders and judgments were rendered by the circuit court.  The complex  and contradictory nature of this proceeding would likely have been eliminated if a single judge presiding over both the district court and circuit court elements of the case had conducted all proceedings as is done in family court .

RODGERS V. KENTUCKY FARM BUREAU MUT. INS. CO.
INSURANCE - BAD FAITH EVIDENCE
2002-SC-001044-DG.pdf
REVERSING AND REMANDING

LAMBERT, C.J., DISSENTS BY SEPARATE OPINION, WITH SCOTT, AND WINTERSHEIMER, JJ., JOINING THAT DISSENTING OPINION

WINTERSHEIMER, J., DISSENTS BY SEPARATE OPINION, WITH LAMBERT, C.J., AND SCOTT, J., JOINING THAT DISSENTING OPINION.

Date: 9/23/2005 PUBLISHED

The appeal dealt with the testimony of an attorney in an unrelated matter identifying other procedures or bad faith actions of the insurance company as evidence in the current bad faith claim and with punitive damages.  The court ruled solely on the inadmissibility of the testimony and reversed the COA so there was no need to address the punitive damages.

This was a 4 to 3 decision with newly appointed Justice Roach siding with the majority in an opinion of the court.  A vigorous dissenting opinion was filed.

This was a bad faith case against KFBM, and the plaintiff offered testimony by an attorney representing another claimant against KFBM in an unrelated matter who described the bad faith response to KFBM in his case (a/k/a the Raines testimony or matter involving Mabel Raines v. KFBM).

The mere fact that this testimony was relevant for another purpose does not remove it from the purview of Campbell or KRE 404(b) . The Raines evidence that tended to show the ineffectiveness of Hibberd's "proper demand letter" was not admissible for the purpose of proving Farm Bureau's bad faith in this case by showing that it had acted in bad faith in another case . Rather, the evidence was admissible only to impeach the credibility of Hibberd's expert opinion about the efficacy of detailed demand letters in aiding insurance companies to process claims in a more timely and fair manner. Such impeachment testimony is not proscribed by Campbell or KRE 404(b) . "The credibility of a witness' relevant testimony is always at issue, and the trial court may not exclude evidence that impeaches credibility even though such testimony would be inadmissible to prove a substantive issue in the case." Sanborn v. Commonwealth , 754 S.W.2d 534, 545 (Ky. 1988). Professor Lawson echoed this sentiment when he noted that "[a] wide array of evidence is admissible only because it renders testimonial credibility more probable or less probable than it would without the evidence." Lawson, supra, § 5.05[3], at 82. However, since the Raines evidence was  admissible only for this limited purpose and was inadmissible for the purpose of obtaining punitive damages or proving action by Farm Bureau in conformity with other wrongful acts, an admonition, if requested, should be given if the same evidence is offered for impeachment purposes upon retrial.  COA reversed and remanded for new trial.

AETNA CAS. & SURETY CO. V. NATURAL RESOURCES AND ENV. PROTECTION CAB.
INSURANCE - Commercial Coverage Question (Fortuity and CERCLA);  Defense Costs; Pro-rata Liability
2002-SC-000307-DG.pdf
Judge:  SCOTT
AFFIRMING IN PART AND REVERSING IN PART.

COOPER, J., DISSENTS BY SEPARATE OPINION WITH ROACH, J., JOINING THAT OPINION EXCEPT FOR ITS RELIANCE ON SECTION 2 OF THE CONSTITUTION OF KENTUCKY.

Date: 9/23/2005 PUBLISHED

The requirement that loss be fortuitous, i.e. not intended, is a concept inherent in all liability policies.

Fortuity "must be judged using a subjective standard, because requiring this knowledge element best serves the overall principle of insurance law." Aetna Cas. & Sur. Co. v. Dow Chemical Co., 10 F.Sugg.2d 771, 789, (E. D. Mich. 1998) (internal quotes and citations omitted). "The crucial issue is whether [the insured] was aware... of an immediate threat of the [injury] for which it was ultimately held responsible and for which it now seeks coverage, not the [insured's] awareness of its legal liability for that [injury]." Id. at 790.

We also find the Commonwealth's proffered instruction to more accurately state the law as spoken to in Brown Foundation, supra. In Brown Foundation, this Court addressed the issue of fortuity regarding a claim for insurance coverage. The case mirrors the case at hand in that it involved insureds seeking coverage to pay for an environmental cleanup ordered by the EPA pursuant to CERCLA. We held the Foundation was entitled to coverage under its policies unless it had specific and subjective intent to cause the pollution giving rise to the CERCLA claims. Equating the reasoning of Brown to the case at hand, the Commonwealth and US Ecology are entitled to insurance coverage unless they specifically and subjectively intended to cause the migration of radioactive contamination.

COOMER V. PHELPS
SETTLEMENT AND RELEASE - Incapacity and Bad Faith Alleged
2004-SC-000294-DG.pdf
Judge:  ROACH
AFFIRMING
Date: 9/23/2005 PUBLISHED

Supreme Court would not set aside release signed by injured claimant who believed she only had a bruised knee.   An adjuster from Progressive showed up at her doorstep right after the accident, and the claimant was on pain pills from the ER who advised her knee injury was not a fracture.  She settles with the adjuster for $1,000, and days later learns that her patella is fractured.  Claims of capacity and bad faith were rejected by the Supremes who affirmed the summary judgment dismissing the claim due the the valid release.

Comment.  Although the law on this topic is clear, it is surprising the Court would have affirmed the summary judgment since a genuine issue of material fact existed on the signing of the release.

BENTLEY V. BENTLEY
TORTS - Parent Can Sue Child in MVA
2003-SC-001051-DG.pdf
Judge:  COOPER
AFFIRMING IN PART AND REVERSING IN PART.

ROACH, J., CONCURS BY SEPARATE OPINION, WITH GRAVES, J., JOINING THAT CONCURRING OPINION

Date: 9/23/2005 PUBLISHED

Supreme Court REVERSED Thompson v. Thompson , 264 S.W.2d 667 (Ky . 1954) and now hold that a parent could maintain an action in tort against his or her unemancipated minor child for injuries arising out of the child's negligent operation of a motor vehicle . SC now concluded Kentucky should depart from this aspect of intra-family immunity, and overrule Thompson.

PATTERSON V. BLAIR
TORTS - Vicarious Liability
2003-SC-000646-DG.pdf
Judge:  ROACH
REVERSING.
GRAVES, J., NOT SITTING.
Date: 9/23/2005 PUBLISHED

This action arose from a car dealer's attempt to repossess a vehicle it had sold.  One of the dealer's employee's discovered the car and the putative buyer on the road and jumped out and shot the tires.  An assault and batter charge plus some criminal charges ensued.  The issues is the employer's liability under respondeat superior.  [Note Justice Roach provides a good 'One Minute CLE" in this case on the law and rationale of respondeat superior.]  The Supreme Court reversed the COA and reinstated the jury verdict holding the dealership liable under respondeat superior.

The most prominent alternative to the foreseeability standard is the principle that an action is only within the scope of employment when the employee intends to further the employer's business or advance the employer's goal. Prosser and Keeton state that "in general . . . . the master is held liable for any intentional tort committed by the servant where its purpose, however misguided, is wholly or in part to further the master's business." Prosser and Keeton at 505. In explaining this principle, they offer the following example of the rule in action

Thus a railway ticket agent who assaults, arrests or slanders a passenger, in the belief that he has been given a counterfeit bill for a ticket, is within the scope of employment, although the employer has not authorized such conduct, or has even expressly prohibited it. But if he acts from purely personal motives, because of a quarrel over his wife which is in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment, and the master is not liable.

BILLY BAKER PAINTING V. BARRY
WORKERS COMP -  Notice and SOL
2005-SC-000029-WC.pdf
AFFIRMING
Date: 9/23/2005 PUBLISHED

The defendant-employer failed to include a "payment adjustment end date," when notifying the Department of Workers' Claims that it was terminating voluntary temporary total disability (TTD) benefits due to the claimant's return to work. For that reason, the Department did not notify the claimant of his right to file an application for benefits and of the applicable period of limitations. An Administrative Law Judge (ALJ) determined subsequently that the employer failed to comply adequately with KRS 342.040(1); therefore, the period of limitations was tolled when the claimant filed his application. The employer maintains that it complied with KRS 342.040(1), that it was unnecessary for the claimant to be informed of the date when benefits were terminated, and that it was the Department that failed to comply with KRS 342.040(1).

GRAY V. TRIMMASTER
WORKERS COMP -  Form 111 and Waiver
2004-SC-001027-WC.pdf
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING.
Date: 9/23/2005 PUBLISHED

In failing to deny the allegations of the claimant's application, the employer thus had admitted that the claimant had sustained "repetitive motion injuries to both upper extremities," that the injuries caused an "inflammatory process," and that they occurred "within the course and scope of her employment." Therefore, the employer effectively admitted that there were objective medical findings of a harmful change, i.e., of an inflammatory process. The admission subjected the employer to potential liability for the inflammatory process, but the burden remained on the claimant to prove the extent of that liability. Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Acknowledging her burden, the claimant conceded on the BRC memorandum that extent and duration, medical expense payment, and entitlement to TTD remained contested. She has not appealed the decision regarding TTD. She asserts, however, that her unrebutted evidence compelled an award of income and/or medical benefits.

WILLIAMS V. WHITE CASTLE SYSTEMS, INC.
WORKERS COMP -  Presumptions of Work-relatedness
2004-SC-001048-WC.pdf
AFFIRMING
Date: 9/23/2005 PUBLISHED

The claimant bears the burden of proving every element of a workers' compensation claim, including causation.  See Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).  Even when a worker's death occurs on the employer's premises, the burden is on those seeking compensation to establish that the death was connected to the individual's work in order for it to be compensable.  Enacted effective January 1, 1973, and amended effective December 12, 1996, KRS 342.680 addresses the problem of proving work-relatedness in instances where the injured worker dies and, therefore, is unable to testify regarding an injury.

It authorizes a rebuttable presumption that the injury or death was work-related and precludes an intoxication or suicide defense if there is prima facie evidence that the injury or death was work-related and no substantial evidence to the contrary. The procedural effect of the presumption is to shift to the employer the burden of going forward with substantial evidence that the injury or death was not work-related; however, the burden of proving causation remains on the claimant. See KRE 301; Magic Coal Co. v. Fox, 19 S.W.3d at 95.

If the employer fails to meet its burden, the claimant is entitled to the presumption and prevails on the issue of causation. If the employer does meet its burden, the claimant is not entitled to the presumption of causation and must go forward with evidence that is persuasive enough to convince the ALJ that the injury or death was work-related.

An Administrative Law Judge (ALJ) determined that an injured worker's death was due to multiple drug toxicity and was not causally related to his work. The Workers' Compensation Board (Board) rejected arguments that the finding was erroneous under the positional risk theory and under KRS 342 .680, and the Court of Appeals affirmed the Board . Supremes affirmed.

The decedent/employee sustained a work-related back injury while working for the defendant-employer. He underwent an initial surgery iafter which he filed an application for benefits. He underwent a second surgery  and died, one day after his release from the hospital.  The estate revived the claim and amended it to assert that his death was the result of post-operative medication and was therefore a compensable event.

This appeal is from the judgment of the Court of Appeals, affirming the decision of the Jefferson Circuit Court, except on the

jury

instruction issue of fortuity. The Court of Appeals reversed on the issue of fortuity and remanded the matter for a new trial consistent with their opinion.

Six separate issues were raised on appeal and cross-appeal by the various parties. These include: (1) whether the Court of Appeals erred in setting aside the

jury verdict; (2) whether ANI should be required to reimburse the insureds for the costs of participating in the CERCLA action; (3) whether the costs of site measures are paid "as damages because of property damages" within the meaning of the ANI policies; (4) whether exclusion (f) applies and therefore precludes coverage; (5) whether ANI's policies cover the defense costs incurred in this action; and (6) whether the ANI policies were triggered for the full amount of the limits in effect at any time the property damage at issue was caused without pro-rating the liability .

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

Ky Supreme Court - Decisions - May 2005

MAY 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

THE ELK HORN COAL CORP.  V. CHEYENNE RESOURCES, INC.
APPEALS - KRS 26.A.300 Penalty on Appeal
2002-SC-000743-DG.pdf
Judge:  KELLER
REVERSING
Date: 5/19/2005 - PUBLISHED

This case involved an appeal of a $9.5 million judgment and the staying of the enforcement of that judgment during the appellate process by posting a supersedeas bond and because the discretionary review to the Supremes further delayed enforcement of that judgment, the trial court assessed as additional damages a penaly equal to 10% of the superseded amount per KRS 26A.300.

SC held KRS 26A .300 violates the equal protection provisions of both the Kentucky and United States Constitutions and that it also violates the separation of powers provisions of the Kentucky Constitution and therefore vacated that part of the judgment imposing the 10% penalty.

The alternate means, i.e., CR 73 .02(4), for deterring frivolous appeals to the Supreme Court is sufficient and does not discriminate against unsuccessful appellants who have superseded a money judgment.  KRS 360.040, which provides judgment interest, and was enacted to compensate for delay, also acts to deter frivolous appeals  The relationship between KRS 26A.300 and its goal is "so attenuated as to render the statute arbitrary and irrational.  Although the goal of KRS 26A.300 is laudable, it is not rationally related to the statute, and that KRS 26A.300 denies Appellant equal protection. It, therefore, fails constitutional scrutiny.

FYI:  KRS 26A.300 provides -

(1) When collection of a judgment for the payment  of money has been stayed as provided in the Rules of Civil
Procedure, there shall be no damages assessed on the first appeal as a matter of right contemplated by Section 115 of
the Constitution of Kentucky.

(2) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil
Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed
against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an
appellate court.

(3) Similar damages of ten percent (10%) shall be imposed when a petition for writ of certiorari, petition for
rehearing, or other petition which stays collection of a judgment for the payment of money is denied by an
appellate court under circumstances not constituting a first appeal under subsection (1) of this section.

(4) No additional penalty shall be imposed upon a party as a consequence of a review subsequent to a petition
or a second appeal.

(5) Damages imposed under subsection (2) or (3) of this section shall not be payable and shall be void if the
decision of the trial court awarding the payment of money is ultimately reversed .

WILSON   V.   RUSSELL
APPEALS - Final Order (Judgment NOV)
2003-SC-001015-DG.pdf
JUDGE: LAMBERT
VACATING AND REMANDING
Date: 5/19/2005 - PUBLISHED

Judgment nothwithstanding the verdict in negligence case was interlocutory and not final.  Appeal not perfected.

CHARLES E. KING    V.   KBA
ATTORNEY DISCIPLINE
2005-SC-000246-KB.pdf
Date: 5/19/2005

COM. V.  BERRY
CRIMINAL - Right to Counsel and Right to Self-Representation
2003-SC-000357-DG.pdf
Judge: GRAVES
REVERSING
Date: 5/19/2005 - PUBLISHED

SEE ALSO:
2004-SC-000231-DG.pdf

In a 6-1 vote, SC reversed the CA's decision and reinstated Berry's convictions for Assault in the Second Degree and PFO 1.  On the morning of trial, Berry asked the Court for permission to represent himself.  After an extensive colloquy in which Berry acknowledged the risk of substantial prison time, the judge concluded that his waiver was acceptable under Faretta v. California, 422 U.S. 806 (1975).  The CA concluded otherwise and reversed his convictions.  SC examined the record to determine if Berry knowingly and intelligently waived his right to counsel.  The majority concluded that he was "made aware of the dangers and disadvantages of self-representation," that he knew what he was doing by choosing this course of action, and that "his choice (was) made with eyes open."  Justice Keller wrote a brief dissent in which he stated that the trial judge did not do an adequate job of warning Berry about the dangers of acting pro se.   

COM. ATTY R. DAVID STENGEL    V.     KBA
CRIMINAL - Ethics Opinion E-243 and Use of Subpoenas
2004-SC-000305-.pdf
Date: 5/19/2005 - PUBLISHED

COMPANION CASES:
2004-SC-000332-KB.pdf
2004-SC-000336-KB.pdf
2004-SC-000339-KB.pdf
2004-SC-000346-KB.pdf
2004-SC-000347-KB.pdf
2004-SC-000349-KB.pdf
2004-SC-000350-KB.pdf
2004-SC-000357-KB.pdf

Multiple Commonweath's Attorneys filed motions under SCR 3.530(5) for review of Ethics Opinion E-243 which had previously been adopted by the KBA Board of Governors.  The Supreme Court vacated all portions of KBA Opinion E-423 to the extent it addresses Grand Jury practices and proceedings and use of subpoena's therein.  The Ethics Opinion was promulgated prior to Supreme Court's  January 2005 amendment of RCr 5 .06, which added the statement that "RCr 7 .02 shall apply to Grand Jury subpoenas."

GUTIERREZ    V.    COM
CRIMINAL - Injunction (Validity and DVO)
2003-SC-000130-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SC affirmed Gutierrez's convictions for Murder, Burglary in the First Degree, Violation of a Domestic Violence Order (DVO) and other offenses and upheld his underlying sentence of 60 years.  The primary issue on appeal was whether the trial judge erred by allowing the Commonwealth to use the violation of the DVO as a substantive charge and as an aggravating circumstance in the Murder charge.  A few months before breaking into the victim's home and stabbing her to death, the Trimble District Court entered a DVO against Gutierrez at the victim's request.  Before trial, his counsel moved to exclude evidence of the DVO by challenging its validity.  SC held that defendants like Gutierrez are generally barred from collaterally attacking DVOs in subsequent criminal prosecutions for violating the DVOs because they are civil orders that must ordinarily be attacked in the courts in which they were issued.  (The only exception involves a collateral attack of a civil order on the basis that the issuing court lacked subject matter or personal jurisdiction.)  The Court further held that "the validity of a DVO is (also) not a proper subject of inquiry when it is offered as proof of an aggravating circumstance in a capital murder prosecution."

 

HILBERT   V.   COM
CRIMINAL - Defenses (Self-Defense, Instructions, No Duty to Retreat)
2002-SC-000095-MR.pdf
Judge:  GRAVES
REVERSING AND REMANDING
Date: 5/19/2005 - PUBLISHED

 

In a 5-2 decision, SC reversed and remanded Hilbert's convictions for a new trial on two counts of Murder. He was convicted at trial and sentenced to Life without the Possibility of Parole for 25 years.  Hilbert did not testify at trial but sought self-protection instructions based on his statements, introduced through other witnesses, that the two victims assaulted him and "kept coming at me."  The trial judge denied his request for such instructions, reasoning that the defendant must testify that he had a subjective belief in the need to use deadly force.  SC held that defendants who seek self-protection instructions need not actually testify at their trials in order to receive them. Hasty v. Commonwealth, 272 S.W.2d 325 (Ky. 1954).  Evidence of the defendant's subjective belief can be circumstantial, such as what happened here.

Statements from the defendant that the victims charged and assaulted him shortly before the shootings along with evidence of an injury to the defendant's forehead are sufficient to justify the giving of self-defense instructions.  The Court further held that, when a trial judge correctly instructs the jury on self protection, "it need not also give a no duty to retreat instruction."  Justices Wintersheimer and Keller dissent, stating that the evidence in support of a self protection instruction showed that Hilbert's belief was not subjectively reasonable.   

HOWELL  V.  COM
CRIMINAL - Forfeitures and Defendant's Attorney Fees and Costs
2002-SC-001064-MR.pdf
Judge:  COOPER
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED
SEE ALSO:
2003-SC-000219-TG.pdf

Because the trial court was required to order forfeit all property that it found "subject to forfeiture" under KRS 218A.410(1), and because the Commonwealth, not Appellant Howell, had title to the forfeited currency at all relevant times, the court had no option to use any part of that currency to reimburse the costs of Appellant's defense .

MATTHEWS   V.   COM
CRIMINAL
2003-SC-000378-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

Trial court did not commit reversible error by refusing to grant mistrial after a witness referred to defendant's prior incarceration, admitting prior misdemeanor charge, and admitting victim's hospital records.

MEREDITH  V.  COM.
CRIMINAL - Crimes (Complicity)
2002-SC-000741-MR.pdf
Judge:  GRAVES
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SC affirmed conviction of D after jury trial on charges of Robbery and Murder. SC ruled that TC did not err in denying directed verdict motion. No error for TC to allow testimony that D needed money to pay his child support as motive for Robbery.

D was the driver in the Robbery/Murder. There was no evidence that the plan was for the co-defendant to kill the victim, and the evidence tended to show that an argument between the co-defendant and victim resulted in the shooting death of the victim. Thus, the victim’s murder was "imputed" onto D. SC held that under KRS 507.020, if the D’s participation in a felony (e.g. Robbery) constitutes wantonness manifesting extreme indifference to human life, D is guilty of murder. Justice Johnstone and Lambert filed a dissenting opinion saying they would vacate D’s murder conviction.

MILLS  V.   COM.
CRIMINAL - Applicability of Civil Rules; Ineffective Assistance Counsel
2002-SC-000216-MR.pdf
Judge: KELLER

AFFIRMING IN PART AND REVERSING IN PART

Date: 5/19/2005 - PUBLISHED

D was convicted at trial of Robbery, Burglary and Murder and sentenced to death. D filed an 11.42 petition, TC denied the petition and refused to hold an evidentiary hearing. SC affirmed the trial court's order overruling RCr 11 .42 motion, except as to D's claims regarding his attorney's alleged ineffective assistance and the prosecutor's alleged misconduct relating to the possibility that another person killed the victim and possibility that exculpatory evidence was not turned over to the defense, and as to D's claim of ineffective assistance of counsel related to the presentation of mitigating evidence during the penalty phase. Case remanded for an evidentiary hearing on those issues.

SMITH   V.   COM.
CRIMINAL - Sentences
2004-SC-000402-TG.pdf
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED

D was convicted at trial of multiple burglaries and theft charges and received a 70 year sentence. Because the highest felony D was convicted of at trial was a class C felony, the highest sentence he could receive was 20 years. Case remanded to reduce his sentence to nor more than 20 years.

Also held that it was harmless error for KY to introduce a pawn ticket from Missouri through a KY police officer as a business record because the police officer could not verify the authenticity of the receipt.

TAYLOR    V.   COM
CRIMINAL - Recanted Testimony's Reliability
2004-SC-000018-MR.pdf
Judge:  LAMBERT
AFFIRMING
Date: 5/19/2005 - PUBLISHED

This is another opinion in the famous 1984 "Trinity Murder Case" involving defendants Wade and Taylor. In this opinion, the SC denies Taylor’s appeal of TC denial of his 60.02 motion for a new trial.

Of note is that Wade gave a police confession that also implicated Taylor and also fingered Taylor as the triggerman in the double murder. Wade’s confession was played for the jury at Taylor’s trial, despite the fact that Wade did not testify and was not subject to cross examination. Eleven years after Taylor’s trial, Wade testified at Taylor’s 11.42 hearing and recanted his confession to police as it related to Taylor. The TC did not find Wade’s recantation credible.

Citing Crawford v. Washington, SC held that Wade’s statement should not have been admitted at trial as such violated the Sixth Amendment confrontation clause. However, looking at the remainder of the evidence, SC held that the admission of the statement was harmless error and thus, Taylor could not receive a new trial. Justice Cooper filed a dissent noting that Crawford required that Taylor be given a new trial.

DR. FANKHAUSER   V.  COBB
EDUCATION - Dismissal; directed verdict
2002-SC-000368-DG.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SEE ALSO:
2003-SC-000396-DG.pdf

Affirmed decision of circuit court in action arising out of disciplinary proceeding against school principal.  The Fayette County Board of Education had alleged on appeal that the tribunal had improperly imposed sanctions less than the termination sought by the Board.  Held: the Supreme Court adopted the position of the state court of appeals in Gallatin County Board of Education v. Mann, 971 SW2d 295, that a tribunal convened under KRS 161.790 "has inherent authority to modify the sanction imposed on a teacher."  The Supreme Court also rejected the Board's arguments that the hearing officer's use of jury-style instructions and presence during the tribunal's deliberations amounted to reversible error.

GULLION   V.   GULLION
FAMILY LAW - Custody Changes (CR 59.05 & KRS 403.340 and Need for Affidavits to Alter, Amend or Vacate)

2004-SC-000494-DG.pdf
Judge:  LAMBERT
REVERSING AND REMANDING
Date: 5/19/2005 - PUBLISHED

SC considered Mom’s motion for discretionary review to decide whether there is a basis in case law or the Kentucky Rules of Civil Procedure to require affidavits to accompany a CR 59 .05 motion to alter, amend or vacate a custody judgment.  Affidavits are clearly required for KRS 403.340 motions when a party seeks to modify a custody order.  However, modification of a custody order pursuant to KRS 403.340 is not possible when awaiting TC ruling on a CR 59.05 motion, thereby rendering a final judgment.  Because the language of CR 59 .05 does not require affidavits to be filed, SC held that affidavits are not required in support of a CR 59.05

motion to alter, amend or vacate a judgment.

SC considered the ancillary issue whether TC abused its discretion in granting Appellant's CR

59.05 motion to alter or amend its judgment. Dad argued that TC considered evidence that occurred subsequent to its ruling that the father be the primary custodian.  CR 59.05 provides: "A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." SC held that a party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment. Although TC may grant a CR 59.05 motion if the movant presents newly discovered evidence that was not available at the time of trial, "newly discovered evidence" must be of facts existing at the time of trial.  Thus, it is improper for TC to rely upon evidence of events that occurred subsequent to the trial in ruling on a CR 59.05 motion.

BREWER   V.   NATIONAL INDEMNITY CO.
INSURANCE - Fiduciaries
2004-SC-000270-CL.pdf
Judge:  LAMBERT
CERTIFICATION OF LAW PER SIXTH CIRCUIT
Date: 5/19/2005 - PUBLISHED

The Fourth Circuit certified a question to the Supreme Court of Kentucky essentially asking whether a personal representative may, after settling with a negligent insured and his insurer, maintain an action against the insurer for underinsuring the negligent insured.

A wrecker owned by a Kentucky corporation, driven by a Kentucky resident, and insured by an auto liability policy issued in Kentucky, struck and killed a West Virginia resident in West Virginia. Suit was filed by the personal representative and removed to the US DC for the SD of WV.  The complaint was amended to include both a wrongful death claim and a negligent underinsurance claim in that the insurer allegedly negligently insured the wrecker for only $100,000 instead of the minimum amount of commercial coverage of $750,000. The parties settled with the insurer paying the $100,000 coverage for a release of its insured and an agreement to litigate the underinsurance claim. Insured agreed to assign its underinsurance claim to the personal representative. The parties signed one 5-page agreement.

Insurer, National Indemnity, subsequently reneged and moved to dismiss the underinsurance claim, arguing that the personal representative and decedent had no privity and therefore no standing to sue because National Indemnity wasn't a party to the assignment agreement. The 4th Circuit held that KY law applies and certified the question to the Supreme Court of Kentucky, which held that contrary to National Indemnity's assertions, the settlement agreement shows that they were clearly a party to the agreement to assign & litigate the remaining claim.

GOV. FLETCHER   V.  ATTY GEN STUMBO
REVENUE AND TAXATION - Spending Without Approved Budget
2005-SC-000046-TG.pdf
Judge:  COOPER
AFFIRMING IN PART AND REVERSING IN PART
Date: 5/19/2005 -  PUBLISHED

SEE ALSO: 2005-SC-000049-TG.pdf
2005-SC-000050-TG.pdf

 

Held: the Governor does not possess the constitutional, inherent or emergency powers to appropriate funds from the state treasury, or otherwise exercise legislative powers, to maintain governmental services when the General Assembly has failed to do so.  In so ruling, the Supreme Court explicitly overturned Miller v. Quertermous, Ky., 202 SW2d 389 (1947).

The Court rejected the Governor's argument that the appeal should be dismissed as moot since the General Assembly subsequently ratified the emergency appropriations and expenditures.  The Supreme Court noted that legal challenges to similar actions by the previous administration had been so dismissed.  Therefore, the Court availed itself of an exception to the mootness doctrine: where an issue is "capable of repetition, yet evading review."

LAMB   V.   HOLMES
TORTS - Defenses (Immunity, School Searches)
2003-SC-000495-DG.pdf
Judge:  SCOTT
REVERSING
Date: 5/19/2005 - PUBLISHED

This case arose from allegations that a few teachers and administrators from a public middle school "strip searched" three female students in a locker room to find a missing pair of shorts.  The local school board had a policy prohibiting "strip searches" of students but the phrase was not defined.  The students claimed that they were required to pull their shorts down and their shirts up in order to reveal their underwear.  The teachers and administrators countered that they merely required the students to flip their waistbands out to reveal whether the students were wearing the missing shorts.  The students later filed suit against the school board and the teachers / administrators alleging various theories of liability, including negligence, intentional infliction of emotional distress, and Section 1983 violations.  The school board moved for summary judgment on behalf of all defendants which the trial judge granted.  CA reversed in part and remanded.  On discretionary review, SC reversed the CA's opinion by a 6-1 vote and held that: (1) the teachers and administrators were entitled to qualified official immunity because the law at the time the searches were conducted did not clearly establish that searches conducted in either manner (as described above) were unreasonable; (2) "[q]ualified official immunity protects state and local officials who carry out executive and administrative functions from personal liability so long as their actions do not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known'" citing Harlow v. Fitzgerald, 457 U.S. 800 (1982); and (3) the actions of the teachers / administrators were made in good faith, were discretionary in nature and were within the scope of their authority because the board's policy prohibiting "strip searches" contemplated nude searches only.  Justice Keller dissented, stating that the policy in question covered less-than-nude searches.   

CABINET FOR FAMILIES AND CHILDREN   V.  DR. CUMMINGS
TORTS - Kentucky Whistleblower Act
2002-SC-000788-DG.pdf
AFFIRMING IN PART, REVERSING IN PART
Date: 5/19/2005 - PUBLISHED

SEE ALSO: 2002-SC-000791-DG.pdf

The Kentucky Whistleblower Act is not an avenue for suits against policy makers and managers in their individual capacity.

HARGIS  V.  BAIZE
TORTS - Negligence Per Se (statutory violation; KOSHA)
2002-SC-000969-DG.pdf
Judge:  COOPER
REVERSING AND REMANDING
Date: 5/19/2005 -TO BE PUBLISHED

The statute under which the KOSHA regulations were promulgated (KRS 338.031(1)(b)) specifically provides that "[e]ach employer . . . [s]hall comply with occupational safety and health standards promulgated under this chapter." Since those standards are promulgated in the regulations adopted by the Kentucky Occupational Safety and Health Standards Board, KRS 338.051(3); KRS 338.061(1), the violation of a KOSHA regulation would constitute a violation of KRS 338.031(1)(b), thus triggering the right of  action created by KRS 446.070.

HUNTER  EXCAVATING   V.  BARTRUM
WORKERS COMP - X-Rays (Constitutionality of limiting number)
2004-SC-000485-WC.pdf
EN BANC OPINION OF COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED

This decision will have considerable impact on the practice of black lung law in Kentucky.  Over 400 cases have been held in abeyance waiting for the ruling.  Essentially, the statute governing black lung claims requires that the best lung x-rays be sent to a panel of experts.  If the expert panel reaches a consensus on what the x-rays find, that consensus carries presumptive weight.  However, it may be rebutted by clear and convincing evidence that the consensus is incorrect.  The Supreme Court held that the procedure allows additional interpretations of the same x-rays previously submitted to be used to rebut the consensus.  However, no new x-rays can be submitted.  The statute allows the ALJ to conduct further proceedings, so it is not unconstitutional as violating due process, but the regulations which do not allow additional readings to be submitted were beyond the Commissioner’s authority to promulgate regulations, and were therefore stricken.

Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, 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.

Michael L. Stevens, Editor

SCOKY: Discretionary Review - 5/11/2005

DISCRETIONARY REVIEW GRANTED May 11, 2005
The Supreme Court granted discretionary review in the following cases.

• Mohammad v. Commonwealth, 2004-SC-875-DG
  Criminal Law. Carrying a Concealed Deadly Weapon. Glove Compartment
  Exception . The issue is whether the glove compartment exception in KRS
  527.020(8) applies to factory-installed center consoles.
• Davis v. City of Winchester, 2004-SC-820-DG
  Malicious Prosecution . Evidence . Issues include whether the trial court
  properly could preclude the plaintiff from putting into evidence the fact that
  all criminal charges were dismissed and instead simply not give an
  instruction concerning whether the plaintiff achieved a favorable result in the
  criminal case.
• Distler v. Pearson, 2004-SC-791-DG
  Torts . Personal Injury. Retrial . A verdict was returned by a jury on liability
  and damages . A new trial was granted on damages only. Proof of
  damages was limited on retrial to the proof submitted during the first trial,
  regardless of subsequent developments. Issues include (1) whether a new
  trial should have been granted on both liability and damages due to claims
  of passion and prejudice on the part of the first jury, and (2) whether it was
  proper to limit the proof of damages on retrial .
• Revenue Cabinet. Commonwealth of Kentucky v. GTE South, Inc ., n/k/a
  Verizon South Inc. , 2004-SC-519-DG and (Cross Motion) GTE South, Inc.,
  n/k/a Verizon South, Inc. v. Revenue Cabinet, Commonwealth of Kentucky,
  2005-SC-223-DG
  Taxation . Notice of Assessment. Timeliness . Refunds . Issues include   whether the Revenue Cabinet, in assessing additional tax against taxpayer following an audit, complied with the time and notice requirements of KRS139.620(1); and, if collection of the assessment is barred, whether and to what extent it may withhold, toward satisfaction of the assessment, refund amounts which may be due for a lesser period included within the audit
  period .

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

Ky Supreme Court - Published - Mar. 2005

Published decisions from the Kentucky Supreme Court for March 17, 2005.

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  March  2005 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).

• Mar. 17, 2005 - Supremes - 2005/12 

KBA   V.   HALL
ATTORNEY DISCIPLINE
2004-SC-001103-KB.pdf
Date: 3/17/2005 - PUBLISHED

KBA   V.  STEINER
ATTORNEY DISCIPLINE
2004-SC-000909-KB.pdf
Date: 3/17/2005 - PUBLISHED

BOWLING    V.   COM
CRIMINAL - DEATH PENALTY APPEAL
2004-SC-000880-MR.pdf
Judge:  COOPER
AFFIRMING
Date: 3/17/2005 - PUBLISHED

SC affirmed dismissal of civil action death row inmate filed in the Fayette Circuit Court against Glenn Haeberlin, warden of the Kentucky State Penitentiary where inmate presently resides on death row, claiming he is exempt from the death penalty because he is mentally retarded. SC treated the action as having been properly brought under CR 60.03.  SC rejected inmate's argument that his death sentence should be vacated following the United States Supreme Court's holding in Atkins v. Virginia, 536 U .S. 304, 122 S .Ct. 2242, 153 L. Ed .2d 335 (2002), that the Eighth Amendment's proscription against cruel and unusual punishment "places a substantive restriction on the State's power to take the life of a mentally retarded offender."  Even if Defendant had not procedurally defaulted this claim, he has produced no evidence that creates a doubt as to whether he is mentally retarded. Denial of an opportunity to further litigate this claim will not result in a fundamental miscarriage of justice.

COM.    V.   SOWELL
CRIMINAL - DWOP
2003-SC-000355-DG.pdf
Judge:  LAMBERT
AFFIRMING
Date: 3/17/2005 - PUBLISHED

In 4-3 decision, SC affirmed Jefferson District Court's original ruling dismissing domestic assault case that Commonwealth attempted to redocket following its dismissal without prejudice (DWOP).

The question we must address is whether a case dismissed without prejudice may be redocketed and proceed as if there had been no dismissal or whether new process is required.  We hold that a dismissal without prejudice is a final and appealable order, and that after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged.

Note:  This case finally decides the debate between prosecutors and defense attorneys concerning the correct interpretation of the term "dismissed without prejudice".  This close case could have an effect on the way the Jefferson County Attorney's Office does business.

A.W., A CHILD UNDER EIGHTEEN   V.  COM
CRIMINAL - JUVENILES
2003-SC-000424-DG.pdf
Judge:  SCOTT
AFFIRMING
Date: 3/17/2005 - PUBLISHED

SC upheld Juvenile Court's exercise of contempt powers as punishment for violations of conditions of probation; yet reversed the contempt sentence due to the absence of several due process safeguards during the hearing.  The detention limitations of forty-five (45) days for public offenses (for fourteen-year-olds) as set out in 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.

MONDIE   V.   COM
CRIMINAL -- Burglary; Assault; Jury Instructions
2002-SC-000534-DG.pdf
JUDGE:  KELLER
REVERSING AND REMANDING
Date: 3/17/2005 - PUBLISHED

SC reversed and remanded Mondie's conviction for Second-Degree Assault.  The primary issue on appeal was the trial court's failure to give an instruction on protection from burglary.  The case arose when the victim, McGowan, came to Mondie's residence and confronted him in the driveway.  Mondie told McGowan to leave but McGowan refused.  Mondie then went inside his home and McGowan, who was not given permission to enter, followed him inside.  Once again, Mondie told McGowan to leave.  McGowan then hit Mondie in the mouth.  Mondie went to his bedroom, retrieved a gun, and told McGowan to leave.  McGowan then hit Mondie in the face once more.  Mondie then shot McGowan, striking him in the chest.  McGowan then left the home and drove himself away.

Mondie was indicted for First-Degree Assault in connection with the shooting.  Following the conclusion of all proof at his jury trial, he submitted instructions that included one for protection against burglary.  The TC refused to give the instruction and the CA affirmed, stating that "the record did not support Mondie's claim of burglary."  The SC reviewed the record and determined that the jury could have reasonably believed that McGowan had entered or remained in Mondie's home with the intent to assault him -- the essential elements of burglary.  Under KRS 503.080, deadly physical force in such circumstances is justifiable when the defendant believes that the person against whom such force is used is committing or is about to commit a burglary.  While noting that KRS 503.080 states an "incredibly generous" rule for the use of deadly force (i.e. a dweller may use deadly force against a burglar who has any criminal purpose in mind -- even petty theft or simple assault), the SC held that the statute means what it says even if the Court may not like it.  Therefore, the TC's failure to give the tendered instruction was reversible error.   

RICHARDSON    V.   COM
CRIMINAL -- Child Sexual Abuse; Cross Examination; Mental Health History
2003-SC-000654-MR.pdf
Judge:  JOHNSTONE
AFFIRMING
Date: 3/17/2005 - PUBLISHED

SC affirmed Richardson's convictions for First-Degree Rape, Second-Degree Rape, Second-Degree Sodomy, and two counts of Sexual Abuse in the First Degree and underlying sentence of 40 years.  The case arose when Richardson engaged in sexual activity with a mentally disabled minor.  The sexual abuse occurred when the victim was 11 to 13 years old.  During jury selection, the TC refused to remove a potential juror who stated that she had been the victim of sexual abuse.  Upon further questioning, the juror stated that she could still remain fair and impartial in this case.  At trial, the Commonwealth introduced testimony from a variety of witnesses, including the victim and a forensic pediatrician, Dr. Betty Spivak.  During the victim's testimony, she spoke of how Richardson would give her cigarettes and alcohol as a way of inducing her to have sex with him.  Dr. Spivak also testified about her findings from a physical examination of the victim.  Defense counsel sought to cross-examine Spivak about a reference in her written report to the victim's psychiatric history and the medications that the victim was taking.  The Commonwealth objected, stating that the victim's psychiatric records were confidential and that defense counsel had not followed the procedure outlined in Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) for the disclosure of such information.

The Court held that the TC's failure to strike the potential juror who noted that she was a sexual abuse victim was not an abuse of discretion.  See Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999).  It also held that the victim's testimony about how Richardson would give her cigarettes and alcohol as an inducement to sexual activity was not preserved for review and was not palpable error because the evidence was probative of the defendant's "modus operandi in controlling" the victim.  And finally, SC held that the TC's prohibition of trial counsel's cross-examination of Dr. Spivak on the victim's psychiatric history and prescribed medications was proper because counsel had failed to seek an in-camera review of the relevant records before trial.  Barroso requires that counsel make a preliminary showing of "evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence" before an in-camera review occurs.  If the requisite showing is made, then the trial judge will review the records in-camera to determine if exculpatory evidence actually exists.  If such evidence is found, the trial judge will notify all counsel and will establish appropriate limits on the introduction of such evidence.  In the present case, defense counsel wanted to cross-examine Dr. Spivak without having made any preliminary showing that the records contained exculpatory evidence and without making any pretrial request for an in-camera review under Barroso.

WELBORN   V.  COM
CRIMINAL
2002-SC-001071-MR.pdf
Judge:  WINTERSHEIMER
AFFIRMING
Date: 3/17/2005 - PUBLISHED

KRS 505.020 allows prosecution for multiple offenses arising from a single course of conduct.

COM.   V. CRUTCHFIELD
EDUCATION
2003-SC-000483-DG.pdf
Judge:  GRAVES
REVERSING
Date: 3/17/2005 - PUBLISHED

Crutchfield was elected to the Garrard County Board of Education in 2000. At that time, his uncle was employed as a bus driver by the school district. The Office of the Attorney General initiated an ouster action against Crutchfield pursuant to KRS 160.180(2)(i), which prohibits membership on a board of education by a person having a ‘relative’ employed by the school board. KRS 160.180(1) defines ‘relative’ as “father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law and daughter-in-law.” However, the circuit court denied the OAG’s ouster petition and granted summary judgment for Crutchfield, holding the statute unconstitutional because it found no rational basis for the difference in classification between aunts and uncles, but not nieces and nephews. The Court of Appeals affirmed, and this appeal followed.

The Supreme Court concluded that the inclusion of the aunt/uncle relationship in the definition of relative was rationally related to the legitimate state interest in eliminating nepotism. The SC declined to find the legislature acted irrationally by not including the niece/nephew relationship in its definition of relative, stating “the classification need not be the least restrictive means of achieving a permissible end, nor must it be the fairest or best means that could have been used.”

FAYETTE BOARD OF ED.   V. M.R.D., BY AND THROUGH HIS NEXT FRIENDS
EDUCATION
2003-SC-000448-DG.pdf
Judge:  JOHNSTONE
REVERSING
Date: 3/17/2005 - PUBLISHED

Appellees are a learning disabled student and his parents. Appellees requested an administrative hearing before the Franklin County Board of Education (“FCBE” and Appellants herein), claiming failure to provide their son with a free and appropriate education. The Appellees sought, inter alia, reimbursement for costs associated with the private school in New York were they enrolled their son.

After a hearing, the hearing officer ruled in favor of the school district. The Exception Children Appeals Board and the Fayette Circuit Court both affirmed the hearing officer’s decision. However, the Court of Appeals concluded that the FCBE had not complied with the Individuals with Disabilities Educational Act (“IDEA”) in providing educational programming, and ordered that the Appellees be reimbursed. The Supreme Court granted discretionary review and this appeal followed.

The Supreme Court took issue with the standard of review utilized by the Court of Appeals. The COA had concluded that the IDEA required the court to use “modified de novo” review. This standard requires the reviewing court examine the administrative record, hear additional evidence if requested, and to base its decision on the preponderance of the evidence. However, the SC ruled that this level of review applies only to the initial reviewing court, which in this case was the circuit court. Since the IDEA does not prescribe a manner of judicial review to be conducted at the appellate level, the SC held that the COA should have reviewed the circuit court’s findings of fact “only for clear error pursuant to CR 52.01 and reviewed its conclusions of law de novo.” The SC then applied this standard or review and concluded that it was not clearly erroneous for the Circuit Court to determine the FCBE fulfilled its statutory duties to the Appellees. The SC then reversed and remanded the COA and reinstated the Circuit Court decision.

KENTUCKY ASSOCIATION OF COUNTIES ALL LINES FUND V.  MAGISTRATES OF PULASKI FISCAL COURT
INSURANCE - Coverage
2002-SC-000648-DG.pdf
Judge:  KELLER
REVERSING
Date: 3/17/2005 - PUBLISHED

The Supreme Court of Kentucky reverses the CA, holding that Pulaski County Fiscal Court magistrates are not entitled to insurance coverage from Kentucky Association of Counties trust fund ("KALF") for actions taken in illegally doubling their own salaries while in office. 

People for Ethical Government ("PEG") filed a complaint when the magistrates doubled their salaries shortly after taking office, in clear violation of state law. The magistrates demanded a defense and indemnification from KALF; KALF declined and filed a dec action to determine the rights & responsibilities under the applicable policy. The TC found no duty to defend or indemnify; CA reversed; and now the SC reverses the CA.

Magistrates had argued (and CA agreed) that PEG's claims "sounded in tort," which was covered by the policy, in that the magistrates were essentially accused of "conversion" of state funds. Even if this were true, however, conversion is an intentional tort specifically excluded from coverage. SC, however, finds that underlying action does not sound in tort, but quasi-contract with the people of Pulaski County by virtue of the election. A dissenting opinion argues that the magistrates' action was simply an uninformed, negligent violation of state law, and therefore unintentional and that the complaint could be construed to sound in tort.

KENTUCKY RETIREMENT SYSTEMS   V.  LEWIS
LABOR AND EMPLOYMENT LAW - GOVERNMENT DISABILITY
2002-SC-000516-DG.pdf
2003-SC-000730-DG.pdf
JUDGE:  JOHNSTONE
REVERSING
Date: 3/17/2005 - PUBLISHED

Unanimous opinion of the Supreme Court reversing COA opinion which held Appellee was not required to exhaust all administrative remedies prior to seeking judicial review of an order by a hearing officer.  Appellee initially filed an application for and had been denied disability retirement benefits in 1997.  She filed a substantial change application in 1999 which was also denied.  A dispute arose between the parties regarding the proper procedure for evaluation of the substantial change application.  Appellee contended the application required review by up to three medical examiners.  Appellant asserted review by only one examiner was required.  At the hearing, the officer entered preliminary orders including the procedure to be followed by the agency.  Before a hearing on the merits was to occur, Appellee petitioned the circuit court for a declaratory judgment.  The circuit court refused stating it lacked jurisdiction to rule on the matter because no final administrative decision on the merits of the application had been entered.

On appeal, the COA reversed and remanded finding that agency regulations did not comport with the  statutory procedure established in KRS 61.665(2)(e) which violated Appellee's due process rights.  Therefore, Appellant acted ultra vires in denying the application.  In short, Lewis was not obliged to exhaust all administrative remedies prior to seeking judicial review.

SC held that KRS Chapter 13B governs Appellant's administrative process and that the Board of Trustees of the Kentucky Retirement Systems is responsible for entry of the final administrative orders, that prior to seeking judicial review, Appellee was required to exhaust all administrative remedies.  In this case a final order had not been entered.  Therefore, Appellee had not exhausted all administrative remedies.  Finally, the SC ruled that in order for Appellee must first exhaust all administrative remedies which would then enable her to claim actual injury when raising constitutional issues.

LUMPKINS   V.  CITY OF LOUISVILLE
LABOR AND EMPLOYMENT - DISCRIMINATION (Instructions)
2003-SC-000267-DG.pdf
2003-SC-000851-DG.pdf
Judge:  WINTERSHEIMER
REVERSING
Date: 3/17/2005 - PUBLISHED

Appeal from COA opinion reversing a judgment in which Appellants alleged racial discrimination resulting from a hostile work environment.  Appellants were employed by the City of  Louisville as lifeguards and filed a hostile work environment suit as a result of events which occurred during the summer of 1997.  Although there were other incidents (which Appellee denied) the primary incident which was undisputed was that Appellants' direct supervisor subjected them to racial epithets in front of the public and other employees. TC entered a judgment in favor of Appellants which COA reversed on the basis that the bare bones instruction by the trial judge was inadequate because she had not included language that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment.

On review, the SC held that the bare bones instruction the trial court gave was appropriate for a civil rights case and clearly conveyed the Harris standard i.e., that the hostile work environment must be severe or pervasive and more than episodic.   Inclusion of an instruction highlighting an isolated incident would have been prejudicial because it would have caused undue focus on specific facts or issues.  SC held the terms 'severe' and 'pervasive' are not terms or art, are not arcane and are not beyond the understanding of any jury.

Since the trial court's instructions were not erroneous, the SC reviewed the case for clear error.  Because there were multiple incidents of discrimination, the SC held there was sufficient evidence to support the verdict.

Justice Cooper' dissent stated the bare bones approach to jury instructions was correct. However, the facts of this case were premised on one incident. As a matter of law, that one incident did not support a claim of hostile work environment.

MCCLANAHAN   V.   MOUNTAIN EDGE MINING CO.
WORKERS COMP - BLACK LUNG CLAIMS PROCEDURE
2004-SC-000429-WC.pdf
Judge:  AFFIRMING
Date: 3/17/2005 - PUBLISHED

The Claimant's claim for benefits under the coal workers' pneumoconiosis claims procedure was dismissed because two out of three of the x-ray readers appointed by the Department of Workers' Claims formed a 'consensus' which was given presumptive weight by the Administrative Law Judge.  That was that the claimant had x-ray findings of 0/1 opacities on x-ray, a finding that does not entitle a claimant to an award under the statute.  The Claimant appealed, arguing that the x-ray readers did not agree on which lung zones the opacities were found, and so they did not form a consensus.  The ALJ explained on reconsideration that the definition of 'consensus' in the statute required only that the opacities be found in the same lung zones, but only that the profusion of the opacities be the same or one level apart.

MELO, M.D.   V.  BARNETT
WORKERS COMP - DISCLOSURE OF PROTECTED MEDICAL INFORMATION
2003-SC-000200-DG.pdf
Judge:  GRAVES
REVERSING
Date: 3/17/2005 - PUBLISHED

In this case of first impression, the Supreme Court decided that no right of action exists when a patient's HIV infection status is disclosed to an employer pursuant to a workers' compensation claim procedure.  The Plaintif had sued Dr. Melo, who had treated Barnett for a work-related infection, resultin from a cat bite.  He was asked to consult with the treating doctor because the patient was already being treated with antibiotics for HIV infection.  When the employer learned of the HIV positive status of its employee, the Plaintiff alleged that the workplace became hostile and he quit his job.

The Court ruled that because the workers' compensation statute required that Dr. Melo disclose the patient's health status to the employer for billing purposes,  no cause of action existed.  The Supreme Court reversed the Court of Appeals decision, and reinstated the trial court's summary judgment dismissing the case.

Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, 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.

Michael L. Stevens, Editor

SCOKY: Ky Supreme Court - Published - Feb. 2005

FEB 2005 KY SUPREME COURT
If you would like a complete listing of the published and nonpublished decisions of from the Kentucky Supreme Court  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).

• Feb. 17, 2005 - Supremes - 2005/07

KBA  V. DAVID P. CHINN
ATTORNEYS
2004-SC-001010-KB.pdf
Date: 2/17/2005 - PUBLISHED

ROSCOE  C.  BRYANT, III   V. KBA
ATTORNEYS
2004-SC-000918-KB.pdf
Date: 2/17/2005 - PUBLISHED

INQUIRY COMMISSION   V.  BARRY SLOAN SMITH
ATTORNEYS
2004-SC-001014-KB.pdf
Date: 2/17/2005 - PUBLISHED

JOHN R. HANSEN   V. KBA
ATTORNEYS
2004-SC-001102-KB.pdf
Date: 2/17/2005 - PUBLISHED

DONNA K. MCNEW   V. KBA
ATTORNEYS
2004-SC-001122-KB.pdf
Date: 2/17/2005 - PUBLISHED

SPOULL  V.   KBA
ATTORNEYS
1999-SC-000597-KB.pdf
Date: 2/17/2005 - PUBLISHED

PEDIGO   V.   BREEN
CIVIL PROCEDURE - STATUTES OF LIMITATION (Legal Negligence)
2003-SC-000028-DG.pdf
Judge: LAMBERT
REVERSING AND REMANDING
Date: 10/21/2004
Modified: 2/17/2005 - PUBLISHED

Ms. Pedigo retained the legal services of Mr. Breen way back in 1992 when he advertised his plans to pursue a class action lawsuit against breast implant manufacturers for defective products.  She claims she took her original medical records to his office for review, and that later he declined to represent her yet never returned her records, despite repeated requests that he do so (he claims she never brought him those records).  Several years passed, during which time Ms. Pedigo sought the services of other attorneys for her medical problems, but the lack of her original medical records precluded her from joining class action suits against the manufacturers.  She eventually settled with 3M for $50,000 in 1998 but later discovered her settlement would have been five times that amount had she been able to participate in the class action suit.

In 1999, she brought suit against Mr. Breen for legal negligence, arguing that the date of her 1998 settlement was when he damages ceased to be speculative and thus began the statute of limitations.  The trial court and the CA both ruled she filed against Mr. Breen outside the SOL of one year as per KRS 413.245.  The Supremes took discretionary review and held that professional negligence claims do not accrue until there has been a negligent act and reasonably ascertainable damages are incurred.  It found that she was unable to ascertain her damages until she reached a settlement with 3M, and since she had filed against Mr. Breen within one year of that settlement, her suit against him fell within the applicable SOL.  The Court noted that this ruling illustrates the desirability of strictly construing the occurrence rule and requiring that all tort elements be fully developed.   It also serves public policy by allowing parties an opportunity to seek mitigation of damages by pursuing an underlying claim and by leaving the professional negligence claim open until the underlying claim is concluded.

The COA decision dismissing the malpractice claim was reversed and remanded.

GERLAUGH   V.  COM.
CRIMINAL - Hearsay, Co-Conspirator letter
2002-SC-000382-MR.pdf
Judge: COOPER
REVERSING AND REMANDING -
Date: 2/17/2005 - PUBLISHED

In 5-2 decision, SC reversed Defendant's conviction and 20 year sentence for Robbery 1st degree.  TC improperly admitted hearsay letter from alleged co-conspirator in perjury allegation.  Letter was not admissible as "a statement by a coconspirator made during the course and in furtherance of the conspiracy." KRE 801 A(b)(5).  The letter was the only evidence offered to prove the existence of the alleged conspiracy or Defendant's and co-conspirator's participation in it.

SC concluded, as did the U.S. Supreme Court in Bourjaily v. United States, 483 U .S. 171, 107 S .Ct. 2775, 97 L.Ed .2d 144 (1987), that KRE 104(a) now permits partial "bootstrapping" to the extent that the trial court may consider the challenged out-of-court statement in making the required preliminary findings. However, SC also concluded, as did every federal court of appeals that considered the issue before the 1997 amendment of FRE 801(d)(2)(E), that the foundational requirements cannot be proven solely by the out-of court statement of an alleged co-conspirator but must be supported by some independent corroborative evidence of those facts. Since there was no independent corroborative evidence of a "perjury conspiracy" in this case outside the inference the Commonwealth draws from the statement in DeWitt's letter, the trial court erred in admitting the excerpt from the letter into evidence. Meredith v. Commonwealth, 959 S.W.2d 87, 91 (Ky. 1997).

Defendant's speedy trial rights were not violated.  The nine-month delay in this case was not presumptively prejudicial.  The in-trial identification of Defendant was not tainted by the improper photo-pack line-up in which Defendant was the only fairhaired, light-eyed person depicted.  Unless additional identification evidence is produced upon retrial, the evidence concerning the pistol shall not be admitted.  Detective did not improperly comment on Defendant's post-arrest silence.  Eyewitness identification of Defendant as the perpetrator was admissible.

HALE    V.   COM
CRIMINAL - Competency Hearing
2003-SC-000284-MR.pdf
Judge: KELLER
AFFIRMING
Date: 2/17/2005 - PUBLISHED

SC affirmed Defendant's guilty pleas and 30 year sentence for First-Degree Robbery, Second-Degree Assault, Kidnapping, Criminal Attempt to Commit Murder, and being a First-Degree Persistent Felony Offender.  Because the trial court did not have reasonable grounds--either before or after Defendant's evaluation to believe that Defendant was incompetent to stand trial, the trial court did not err in accepting Defendant's guilty pleas or in not conducting a competency hearing.  The acceptance of the pleas prior to the completion of the evaluation was entirely proper, and because the evaluation found that Defendant was competent, the failure to hold a competency hearing was not error.

HILLIARD   V.   COM.
CRIMINAL - Sexual Contact

2002-SC-000702-MR.pdf
Judge: COOPER
AFFIRMING IN PART, VACATING IN PART
Date: 2/17/2005  - PUBLISHED

SC affirmed in part and vacated in part Defendant's convictions and 20 year sentence for unlawful transaction with a minor in the first degree, KRS 530.064(1), for knowingly inducing A.W., age fifteen, to engage in illegal sexual activity; and one count of unlawful transaction with a minor in the third degree, KRS 530.070(1)(a).  The evidence was sufficient for a jury to believe beyond a reasonable doubt that Defendant committed the offense of unlawful transaction with a minor in the first degree.  Minor's "fisting" of Defendant constituted "sexual contact.  KRS 510 .010(7) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party."  Defendant's statement that it "felt great" sufficed to prove that Defendant solicited the conduct for the purpose of his own sexual gratification.

TC properly sustained the Commonwealth's motion to exclude evidence of A.W.'s sexual history.  SC rejected Defendant's claim of juror misconduct.  Commonwealth's use of subpoenas to compel witnesses to attend a pretrial interview with the prosecutor was improper, but since the same information may have been obtained during voluntary interviews, SC was unable to conclude that manifest injustice resulted from the improper interviews.

Note:  As the lone dissenter, Justice Johnstone strenuously attacked the majority's analysis, referring to its "absurdity".  Johnstone believes Hilliard was denied the fundamental constitutional right to be given notice of the specific charges against him before he was put on trial.  On another note, the majority was extremely forgiving of a significant amount of prosecutorial misconduct that appeared to take place here.

WEAVER   V.   COM
CRIMINAL - Escape; Home Incarceration

2003-SC-000353-DG.pdf
Judge:  JOHNSTONE
AFFIRMING
Date: 2/17/2005 - PUBLISHED

On discretionary review, SC affirmed CA's reversal of Jefferson Circuit Court order dismissing Escape 2nd charge against the Defendant in 4-3 decision.  The sole issue before SC was whether a conviction for escape may arise from a violation of home incarceration that was imposed as a condition of pretrial release.   SC concluded that it may.

This issue is one of statutory interpretation, specifically whether Appellant's placement on home incarceration as a condition of pretrial release fits the definition of "custody" within the meaning of KRS 520.010(2) . Pursuant to KRS 520.030, a person is guilty of escape in the second degree when he "escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KRS 520.010(2) defines "custody" for purposes of KRS Chapter 520 as "restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes, but does not include supervision of probation or parole or constraint incidental to release on bail ."

Note:  Dissent notes this inconsistency:  Majority opinion holds that an individual on pretrial release conditioned on home incarceration is not in custody for purposes of jail-time credit, but nevertheless is in custody for purposes of charging him or her with escape from custody.

COM.   V.    C.J., A CHILD
FAMILY LAW - JUVENILES - INFORMAL ADJUSTMENT
2002-SC-001009-DG.pdf
Judge: JOHNSTONE
AFFIRMING
Date: 2/17/2005 - PUBLISHED

Commonwealth sought discretionary review of Supreme Court after Jefferson Circuit Court and Court of Appeals held that no appeal may be taken of an informal adjustment.

C.J. had been charged with unlawful possession of a weapon on school property and second-degree wanton endangerment.  Commonwealth requested C.J.’s detainment at the arraignment.  Over Commonwealth’s objection and without victim consultation, TC instead ruled that the case should be resolved by informal adjustment.  Both Circuit Court and Court of Appeals refused to hear an appeal of the informal adjustment.

SC affirmed, holding that an informal adjustment does not constitute a final action and is therefore unappealable.  The legislature specifically addressed appealable actions within the Juvenile Code, and an informal adjustment was not one of them. Although appeal via KRS 610.130 is permissive rather than restrictive, it still requires that the appeal come from “dispositional orders.”  However, by its very definition, an informal adjustment is neither an adjudication or disposition.  “There is simply no language in  Kentucky 's Juvenile Code authorizing an appeal of an informal adjustment. Had the legislature intended to include such language, it certainly could have done so . By omitting informal adjustments from those matters that are appealable, the inference is that the legislature intended no appeal be allowed from an informal adjustment by the juvenile court.  Because no appeal from an informal adjustment is available, the Commonwealth, if it desires review of such action, is required to bring an original proceeding in the circuit court in the nature of a writ of mandamus or prohibition.”

DISSENT:  “The Commonwealth, undisputedly a party, did not agree to an informal adjustment; therefore, it was not possible for the juvenile court to informally adjust C .J .'s case. Accordingly, by ‘adjusting’ the case over the Commonwealth's objection, the juvenile court in effect entered a formal adjudication and disposition, and thus the Commonwealth had the right to appeal from the juvenile court's disposition of C.J.'s case ..”

YORK  V.  KENTUCKY FARM BUREAU MUT. INS. CO.
INSURANCE - Coverage (Automobile, Non-Permissive User Exclusion)
2003-SC-000334-DG.pdf
Judge: GRAVES
AFFIRMING
Date: 2/17/2005 - PUBLISHED
COMPANION CASE: 2003-SC-000338-DG.pdf

The Supreme Court affirms the CA holding that a non-permissive user exclusion applied to absolve Kentucky Farm Bureau of providing liability coverage.

As folks socialized in the "Chat and Chew" parking lot, Driver-Appellant insisted on test driving Camaro despite owner's repeated and absolute refusal. Driver had a single-car wreck, injuring Passenger-Appellant.

Both Driver and Owner were insured by KFB. KFB moved for SJ arguing that both policies had a non-permissive user exclusion. TC granted SJ against KFB, holding that the exclusion applied in Owner's policy, but did not apply in Driver's policy. TC held that the exclusion for "any" non-permissive user did not specifically reference insureds under the policy, so Kentucky public policy favored a liberal construction in favor of coverage. A unanimous CA reversed.

The Supreme Court finds no ambiguity in the exclusion; "any" non-permissive driver is excluded.

Justice Lambert wrote a dissenting opinion joined by Scott and Wintersheimer: "Kentucky law and public policy considerations mandate that we find coverage in cases involving the injury of an innocent 3rd party."

GRAYSON COUNTY BOARD OF ED.   V.   CASEY
TORTS -  DEFENSES  - SOVEREIGN IMMUNITY
2003-SC-000208-DG.pdf
Judge: COOPER
REVERSING
Date: 2/17/2005 - PUBLISHED

SC reinstates SJ for Board of Education entered by TC, overturning CA reversal.

Appellee was injured by the negligent operation of a forklift by a Grayson Cty. Board of Ed. employee. TC entered SJ for the Board, which was reversed by the CA. SC reviews and reverses.

"A board of education is an agency of state government and is cloaked with governmental immunity; thus, it can only be sued in a judicial court for damages caused by its tortious performance of a proprietary function, but not its tortious performance of a governmental function, unles the General Assembly has waived its immunity by statute." The Board of Claims Act is a partial waiver of immunity that permits a person damaged by a board of education's negligent performance of a governmental function to file a claim for damages in the Board of Claims, including a claim premised upon vicarious liability for the torts of the board of education's employees. Since Appellee's action was brought in the circuit court and not the Board of Claims, it was properly dismissed because there was no waiver under KRS 160.310.

DRAVO LIME CO., INC.  V.   WORKERS COMP BOARD
WORKERS COMP - CAUSATION
2003-SC-001027-WC.pdf
AFFIRMING IN PART AND REVERSING IN PART
Date: 2/17/2005 - PUBLISHED

The Supreme Court affirmed the Court of Appeals in finding that the ALJ had substantial evidence on which to base her finding that the disease he was suffering from - fibrosis- was caused by his work.  Mr. Eakins had brought a piece of lime (calcium oxide) with him to one of the evaluations to which he submitted, and showed the doctor that lime produces a chemical reaction when mixed with water.  While other doctors had evaluated him for limestone exposure and silicosis, the ALJ found that the proof of lime causing fibrosis was convincing.  The Supreme Court also affirmed the ALJ's decision finding that a privately funded disability policy did not duplicate workers' compensation benefits, and therefore no offset was allowed between the award and the disability policy.  The Supreme Court's reasoning was that the disability plan did not contain an offset provision by its terms.

BRUMMITT  V.  SOUTHEASTERN KENTUCKY REHABILITATION INDUSTRIES
WORKERS COMP – GRADUAL INJURIES
2003-SC-001028-WC.pdf
REVERSING AND REMANDING
Date: 2/17/2005 - PUBLISHED

The Supreme Court considered a case in which the worker was diagnosed with carpal tunnel syndrome in April 2000, and filed a claim on that gradual ‘cumulative trauma’ injury. However, the claimant also went to the doctor in October 2000, who diagnosed that the condition had worsened by that time.  The problem was, the employer had changed insurance carriers between those dates.  She settled against the carrier on risk for the first injury date, and this appeal involved an appeal against the carrier on risk for the second injury date.  The ALJ held that there was no liability against the carrier on risk in October, 2000, because the gradual injury had manifested itself in April, making that the injury date.  However, the Supreme Court sent the case back for a finding of whether the worsening of the condition occurring after April until October was the result of new trauma.  If so, the second carrier could be liable.  Justice Cooper dissented, pointing out that American Printing House for the Blind v. Brown, Ky. , 142 S.W.3d 145 (2004) was identical to this case, but there it was held that the first manifestation date created liability solely in the carrier on risk at that time. He also pointed out that this holding will complicate gradual injury claims endlessly, allowing carriers to discontinue coverage and avoid liability, and encouraging the termination of workers affected by cumulative trauma injuries.

Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, 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.

Michael L. Stevens, Editor

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