-
Join the LBA at Slugger Field
for a CLE Ethics program
followed by a Bats game (6/26). This package deal includes reserved
seating for the game, picnic-style buffet dinner and a one-hour
CLE ethics program.
For
more info click here.
-
KBA Proposed Advertising Regulations
-
Deadline for filing written comments to the
Attorneys Advertising Commission is September
1, 2003.
- All comments should be sent to the Attorneys' Advertising
Commission, c/o Bruce K. Davis, KBA Executive Director, 514
West Main Street, Frankfort, KY 40601-1883.
- Proposed
Rule Changes - In PDF <<<--- Here's a
link to the proposed changes.
- Kentucky Supreme Court Decisions - PUBLISHED
June 12, 2003
2000-SC-000166-DG.pdf
Size: 1644 kb
Date: 6/12/2003
|
Kassulke
v. Briscoe-Wade
Criminal,
Calculation of Sentence
While on parole from a ten (10) year Kentucky
prison sentence, Defendant was convicted of a felony
offense in Missouri . A Missouri trial court sentenced Defendant
to five (5) years for the new conviction, but ordered its
sentence to run concurrently with her previous Kentucky
sentence. Upon her return to Kentucky after twenty-one (21)
months in the custody of the Missouri Department of Corrections, Defendant
sought habeas corpus relief and a Kentucky circuit court
released her from custody after determining that she was
entitled to custody credit on her Kentucky sentence for the time
that she was incarcerated in Missouri. Court of Appeals
affirmed circuit court.
Held: SC reversed circuit court and Court of Appeals. Defendant
not entitled to credit against her Kentucky sentence for the
time she served in Missouri because a parolee receives no credit
against his or her sentence for the period of time spent on
parole from that sentence, and the Missouri trial court could
not create credit on Defendant's Kentucky sentence by
designating its own sentence to run concurrently with
Kentucky's. sb. |
2000-SC-000296-MR.pdf
Size: 4895 kb
Date: 6/5/2003
|
Caudill
v. Com.
Criminal
Defendants' death sentences for Murder, Robbery, Burglary,
Arson, and Tampering with Physical Evidence affirmed.
This brief threw in everything but the kitchen sink.
Indictment was sufficient; Closed circuit television
arraignment was proper; motion to sever properly denied;
absence from pretrial hearings not reversible error;
postponement of jury service not abuse of discretion; trial
court properly phrased "death qualification" question;
no abuse in rulings to strike for cause; no abuse in failing
to grant additional peremptory strikes; no Batson
violation in Commonwealth's strikes.
Statements were properly redacted; no error in failure to
give unrequested limiting instruction; photographs
properly introduced; harmless error in admitting
evidence of victim being cautious; evidence of prior
bad acts properly admitted; limited cross-examination did
not violate right to confrontation; harmless error in asking
witness to characterize testimony as lie; mistrial not
necessary for reference to "America's Most
Wanted"; failure to delete racial slur from statement
not reversible error; lay witness properly expressed opinion
of another's demeanor; cross-examination of Defendant
proper; no violation of impeachment rule (KRE 609); no
hearsay violations; no guilt phase instruction errors.
No error in failing to grant unrequested severance during
sentencing phase; no error in discovery of doctor's report;
no error in introduction of prior convictions in sentencing;
the McClellan definition of
Extreme Emotional Distress (EED) applies only to EED as a
defense under KRS 507.020(1)(a) and not to EED as a
mitigating circumstance under KRS 532 .025(2)(b)(2); no
prosecutorial misconduct; sufficient evidence for
convictions; convictions for robbery and burglary do not
violate double jeopardy; death penalty is not
unconstitutional; death qualification of jurors in not
unconstitutional; no cumulative error; sentences of death
was neither excessive nor disproportionate.
|
2000-SC-000341-MR.pdf
Size: 3911 kb
Date: 6/5/2003
(ORIGINAL OPINION RENDERED: DECEMBER 19,
2002) (PETITION FOR REHEARING AND MODIFICATION GRANTED: APRIL
24, 2003)(ORIGINAL OPINION WITHDRAWN : APRIL 24, 2003) |
Kotila
v. Com.
Criminal
SC reversed Defendant's conviction and 25 year sentence
for manufacturing methamphetamine. The offense was
enhanced to a Class A felony by the jury's additional finding
that he was in possession of a firearm at the time the offense
was committed.
The trial judge properly denied motion to suppress evidence
obtained during consensual search and statements made
during custodial interrogation; evidence was
sufficient to support his conviction; firearm enhancement
evidence did not need to be reserved for the penalty phase; statute
under which Defendant was convicted is not
unconstitutionally vague.
BUT: Defendant was
convicted under a prejudicially erroneous guilt phase
instruction. Reversed and remanded for a
new trial. |
2000-SC-000373-DG.pdf
Size: 449 kb
Date: 6/11/2003
|
Anderson
v. Com.
Criminal
SC reversed Defendant's conviction and 5 year
sentence for Assault 2 because jury included convicted
felon. Felon did have civil rights restored by Governor,
but this was limited to right to vote and hold office. It
was within the Governor's prerogative to so
limit the rights restored to juror, but outside the power
of the court to alter or expand upon the Governor's order
where the executive order itself does not otherwise violate
the Constitution. |
2000-SC-001127-DG.pdf
Size: 3489 kb
Date: 6/5/2003
|
Dorning
v. Asente
Family Law, Child Custody, Private Adoption
"This action began as a proposed
interstate adoption arrangement between the Asentes, Ohio
residents, and Moore and Doming, Kentucky residents . The
Asentes had previously adopted another child, Joey, born to
Moore and Doming Thus, when Moore discovered that she was
pregnant again, she contacted the Asentes to see if they were
interested in adopting this child as well . The Asentes
responded affirmatively and agreed to adopt the yet-unborn
child that would later be named Justin."
"This appeal from a child custody
action, which resulted from the breakdown of a proposed
private adoption, presents three (3) primary issues . Regina
Moore ("Moore") and Jerry Dorning
("Dorning") signed consents to allow Richard and
Cheryl Asente ("the Asentes") to adopt their son,
Justin. The consents, by their terms, would become irrevocable
twenty (20) days from the date when Justin was placed with the
Asentes. Before signing the consents, however, Moore and
Doming were advised by their attorney that they could revoke
their consent to Justin's adoption at any time before their
parental rights were terminated . Immediately before the
termination of parental rights ("TPR") hearing, but
more than twenty (20) days after Justin's placement with the
Asentes, the birth parents announced their desire to revoke
their consents. Did the consents become irrevocable twenty
(20) days after Justin's placement? Because Moore and Dorning
were misinformed of the legal effect of the consents and
relied on this misinformation in signing the consents, the
consents were not knowingly given and were thus invalid and
unenforceable."
"[W]e affirm the Court of Appeal's
holding that the trial court properly exercised jurisdiction
in this case, but reverse its holding as to the merits of the
underlying custody action . We remand this matter to the
Kenton Circuit Court for it to determine, based on Justin's
best interest, whether custody of Justin should be vested in
Moore and Doming or the Asentes."
Comment:
This is a LONG one. Rather than summarize the law, we just
highlighted the issues to get you interested. Note it
was an interstate adoption that went bad. Birth parents
gave consent, but revoked it within 20 days. Consent to
terminating parental rights is not necessarily the same as
consent for adoption. Physical custody to have standing to for
child custody dispute is more than mere physical possession.
Parent's consent costs them their superior right in a child
custody issue. Kentucky, not Ohio, has
jurisdiction. Bottom line - goes back to Kenton Circuit
Court to do what is in the child's best interests. |
2001-SC-000002-MR.pdf
Size: 1091 kb
Date: 6/6/2003
|
Crawley
v. Com.
Criminal
SC reversed Defendant's conviction and 25 year
sentence for First Degree Robbery and of being a First-Degree
Persistent Felony Offender (PFO).
Reversed and remanded because the trial court did not sufficiently
determine that Defendant's waiver of his right to testify on
his own behalf was knowingly and intelligently made.
Here, counsel for Defendant stated to court and jury that
Defendant wished to testify but counsel would not permit it.
The instruction for Complicity erroneously
failed to require that Defendant intended that the principal
commit the robbery. Alleged error not preserved that Defendant was
denied the ability to call a witness to testify about a
co-conspirator's motive to lie. |
2001-SC-000312-DG.pdf
Size: 801 kb
Date: 6/5/2003
|
Com.
v. McManus
Criminal, Search and Seizure
SC affirmed in part and reversed in part Court of Appeal's
reversal of Defendants' convictions for cultivation of
marijuana. Police had tip from estranged wife that
Defendants were cultivating marijuana. They went to
home, were denied consent to search, and gave warning they
would be back. Soon thereafter, police witnessed
occupants of home frantically carrying items
believed to assist in the cultivatation of marijuana.
Claiming exigent circumstances (i.e. destruction of
evidence), the police moved in and seized evidence.
SC affirmed CA decision that the search was in
violation of the 4th Amendment as no exigent circumstances
existed. SC reversed CA's decision effectively
granting Defendants a directed verdict. Commonwealth
was free to continue prosecution, but had to do so without
seized evidence.
|
2001-SC-000345-MR.pdf
Size: 626 kb
Date: 6/5/2003
|
Rodriguez
v. Com.
Criminal
Defendant's conviction for 1st Degree Robbery and 20 year
sentence affirmed.
Trial Court did not err in denying motion to
suppress eyewitness identifications of Defendant
as the person who robbed them. Initial
identifications were not the unlawful result of an unduly
suggestive, single-person showup. A
single-person-showup identification is inherently
suggestive, which requires the court to assess the totality
of the circumstances surrounding the identification to
consider the likelihood of an "irreparable
misidentification" by the witness. Merriweather v .
Commonwealth , Ky., 99 S.W.3d 448, 451 (2003), citing
Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct.
375, 34 L . Ed . 2d 401 (1972). The Neil Court set
forth five factors to be considered when making this
assessment: (1) the opportunity of the witness to view the
criminal at the time of the crime, (2) the witness's degree
of attention, (3) the accuracy of the witness's prior
description of the criminal, (4) the level of certainty
demonstrated by the witness at the confrontation, and (5)
the length of time between the crime and the confrontation.
Applying these factors, SC found identifications of Defendant
were sufficiently reliable.
Trial Court did not err in admitting evidence of the
stolen truck and the subsequent chase that led to Defendant's
arrest. Defendant moved in limine to suppress this
evidence on grounds that it was excluded by KRE 404(b) as
inadmissible prior-bad-act evidence. The Commonwealth
responded that the theft of the truck and subsequent chase
were inextricably entwined with the other evidence of the
case and, thus, was admissible under the second exception to
the exclusion of evidence under KRE 404(b). The Trial Court
denied Rodriguez's motion on grounds that evidence of flight
is admissible to prove guilt. The SC stated there was
evidence to infer that Rodriguez stole the truck as a means
to escape arrest for the robbery, rather than as an end in
itself, and thus, the evidence was relevant and admissible
subject to the balancing test of KRE 403. Further, the
Trial Court allowed this evidence for "some other
purpose," i.e., an expression of a sense of guilt,
within the meaning of KRE 404(b)(1).
Trial Court did not err in denying Defendant's
motion for a new trial on grounds that a juror failed to
answer a question that would have caused the juror's
disqualification.
|
2001-SC-000645-DG.pdf
Size: 359 kb
Date: 6/5/2003
|
M.M.(A
Juvenile) v. Williams
Criminal
SC affirmed Court of Appeals' decision that reversed Trial
Court's grant of writ of habeas corpus.
Juvenile pled guilty in Floyd
District Court to charges of third-degree assault and
attempted escape, which occurred while he was in custody at
the Big Sandy Area Detention Center. The Floyd District
Court thereafter released juvenile to his parent's
custody and transferred the case to the Laurel District
Court for final disposition since juvenile was a resident of
Laurel County. The Laurel District Court entered
an order committing juvenile to the Clark County
Detention Center pending placement by the Department of
Juvenile Justice. Juvenile appealed to the Laurel
Circuit Court and sought release pending the appeal pursuant
to RCr 12.04. The Laurel Circuit Court denied the motion for
release. The Department for Juvenile Justice subsequently
placed juvenile in a facility in Morgan County. Juvenile
thereafter sought habeas corpus relief in the Morgan Circuit
Court to preclude further enforcement of the order of
the Laurel District Court pending resolution of his appeal
to the circuit court. The Morgan Circuit Court granted
juvenile's petition for habeas corpus relief.
Notwithstanding the merits of juvenile's claim under RCr
12.04, habeas relief was not a proper substitute for other
available remedies. Lear v . Commonwealth, Ky. 884
S.W.2d 657 (1994). Juvenile's remedy to the adverse ruling
lay in appeal or mandamus, not in a habeas petition to
another circuit court.
|
2001-SC-000800-DG.pdf
Size: 662 kb
Date: 6/5/2003
|
Powell
v. Powell
Family Law, Maintenance
SC reversed and remanded maintenance award. The
parties reserved the issues of maintenance, attorney fees, and
costs. Commissioner ruled husband (Dr. Powell) to pay
attorneys fees, costs, and $3,000 in monthly maintenance. SC
held that "While the award of maintenance comes within
the sound discretion of the trial court, a reviewing court
will not uphold the award if it finds the trial court abused
its discretion or based its decision on findings of fact that
are clearly erroneous . Perrine v. Christine, Ky., 833 S.W.2d
825, 826 (1992) ; Browning v. Browning , Ky . App ., 551 S
.W.2d 823, 825 (1977) . In the case at bar, we believe the
trial court did abuse its discretion in awarding Ms . Powell
only $3,000 .00 per month for the duration of three years in
light of the factors enumerated in KRS 403.200. We find the
trial court's decision to limit the amount and duration of
maintenance particularly unjust considering Dr. Powell's
substantial income and the gross disparity of that income
compared with Ms . Powell's potential income."
Husband/doctor had gross income in excess of $600,000 per year
and wife a nurse with masters degree had been out of the work
force since 1987 raising their child.
Although Ms. Powell could have earned
$20-45K per year, she was 50 years old and had suffered back
injuries limiting her employability.
"KRS 403 .200 seeks to
enable the unemployable spouse to acquire the skills necessary
to support himself or herself in the current workforce so that
he or she does not rely upon the
maintenance of the working spouse indefinitely . Clark v.
Clark , Ky. App., 782 S.W.2d 56, 61 (1990) . However, "in
situations where the marriage was long term, the dependent
spouse is near retirement age, the discrepancy in incomes is
great, or the prospects for self-sufficiency appears
dismal," our courts have declined to follow that policy
and have instead awarded maintenance for a longer period or in
greater amounts. Id . Further, KRS 403 .200
specifically states that the trial court should consider the
standard of living to which the parties are accustomed in
determining the amount and duration of the award .
"It is especially
acceptable for the trial court to consider the impact of the
divorce on the nonprofessional's standard of living and award
an appropriate amount that the professional spouse can afford
." Clark , supra, at 61 . We do not feel that the
trial court's award of maintenance would allow Ms. Powell to
continue the standard of living that the parties enjoyed while
married . See Casper v. Casper, Ky., 510 S.W.2d 253 (1974)."
In addition, the commissioner's analysis
of the flow of income from property distributed to the wife
appeared 'overstated.'
The wife got $360,000. SC stated
"we do not impose a duty to invest all proceeds from a
cash settlement in order to reduce the amount of spousal
maintenance required for one's needs. Atwood v. Atwood , Ky.
App ., 643 S .W.2d 263, 265 (1982) .
"We think that common sense
dictates that a court consider the parties' net
income when determining whether or not the spouse
seeking maintenance will be able to meet his or her needs, as
well as the payor spouse's ability to continue meeting his or
her own needs "
Comment:
Some interesting factors came into play regarding the
award of maintenance. Although they all smack of common
sense, what was the commissioner thinking? The parties
were married 20+ years, income disparity was $600,000 to
$45,000 (at best), wife was injured (bad back), high standard
of living, wife could not meet her expenses, husband had money
to spare, wife helped husband get his professional degree, and
wife was getting close to retirement age. This one is
published folks.
|
2002-SC-000338-MR.pdf
Size: 1179 kb
Date: 6/5/2003
|
Wilder
v. Absorption Corporation
Jurisdiction, Arbitration, Choice of Forum Clause
SC held CA erred in granting mandamus to review forum
selection clause and also erred in disturbing the Master
Commissioner's findings of fact so that the matter should be
submitted to binding arbitration in the state of Kentucky
rather than state of Washington. Enforcement of the
forum selection clause for arbitration in Washington would
produce a manifest injustice and would
result in an inconvenience of forum so serious as to deprive
the two Kentucky parties of their opportunity for a day in
court. The choice of forum clause presented an impossible
situation .
Comment:
The standard for interpreting forum selection clauses can be
found in Prudential Resources Corp . v. Plunkett, Ky.App.,
583 S.W.2d 97 (1979). The four factors in Plunkett,
supra, concerning the enforcement of a forum selection clause
are: 1) whether the clause was freely negotiated ; 2) whether
the specific forum is a seriously inconvenient place for
trial; 3) whether enforcement would contravene a strong public
policy of the forum in which the suit is brought; and 4)
whether Kentucky has more than a minimal interest in the
lawsuit. |
2002-SC-000622-WC.pdf
Size: 659 kb
Date: 6/5/2003
|
Kentucky
River Enterprises, Inc. v. Elkins
Workers Compensation - Application of KRS
342.730(1)(c) Modifiers
Elkins was working more than
60 hours per week as a mechanic and heavy equipment operator
prior to his September 8, 2000 low back injury. ALJ
Edens
resolved the
dispute about whether carrying a five gallon can of oil had
caused Elkins' L5-S1 disc herniation in Elkins' favor.
It was stipulated that, following back surgery, he returned
to work in a supervisory capacity at the same
"wages," but, at he hearing, he testified
that he continued to earn the same hourly rate but now worked
for only 40 to 60 hours per week. Dr. Sharma, Dr.
Templin, Dr. Sheridan and Dr. Ensalada each assigned
a 10% AMA DRE rating. Dr. Sharma declined to
apportion any part of the rating to a previous surgery at
L4-5. Dr. Templin attributed 0.5% to
the pre-existing condition and 9.5% to the 2000
incident. Dr. Sheridan opined the L5-S1 rupture
was secondary to the prior rupture and was pre-existing and
active before September 8, 2000. Dr. Ensalada opined the
condition was entirely pre-existing and active.
Observing that Elkins had returned to work as a coal truck
driver and mechanic after the previous surgery about 10
years earlier and continued in that capacity until the
2000 injury, the ALJ accepted Dr. Templin's opinions and utilized
a 9.5% AMA rating in awarding PPD benefits and the KRS
342.730(1)(c) modifier. The ALJ's reliance on the 9.5%
rating was challenged in the grounds that it is contrary to
the AMA Guides which state DRE ratings in 5% increments.
However, given a lack of medical testimony to establish
that Dr. Templin's method was erroneous, the use of the 9.5%
rating was affirmed. Citing its decision in Fawbush v.
Gwinn, Ky., -- S.W.3d
- (2003), the Court observed
that, where the evidence in a post-July
14, 2000 claim would support applying both KRS 342
.730(1)(c)1 and 2, the ALJ is authorized to determine which
provision is more appropriate on the facts and to calculate
the benefit under that provision, the application of
paragraph (c)1 is appropriate if the evidence indicates that
the worker is unlikely to be able to continue earning a wage
that equals or exceeds the wage at the time of the injury
for the indefinite future. Given that the ALJ had determined
only that Elkins could not return to the type of work that
he was performing at the time of his injury and, on that
basis, concluded that the weekly benefit must be multiplied
by 3 under KRS 342 .730(1)(c)1, the
Court remanded the claim for further consideration
of whether Elkins is able to work at least the same
number of hours as before the injury and, therefore, to earn
an average weekly wage that equals or exceeds his average
weekly wage at the time of his injury. If he is, the ALJ
must determine whether he is likely to be able to
continue earning such a wage for the indefinite future and
whether the application of paragraph (c)1 or 2 is more
appropriate on the facts.
|
2002-SC-000673-WC.pdf
Size: 260 kb
Date: 6/5/2003
|
Nygaard
v. Gooding Brothers, Inc.
Workers Compensation - Constitutionality of 1996
Reopening Amendment
Nygaard was injured in 1990 and
settled in 1994 for 72% PPD. Nygaard moved
to reopen in 2001 alleging a worsening of his physical
condition forced him to close his used car lot on December
31, 2000, at which point he became totally disabled.
ALJ Steen dismissed on the grounds the motion
was not filed before December 12, 2000 under
KRS 342 .125(8), as amended effective December
12, 1996. Nygaard appealed arguing the statute
unconstitutionally extinguished his right to reopen before
it became vested. Following its previous rulings, the
Court held that the right to be compensated for a post-award
increase in disability is inchoate until such time as an
increase occurs, so no vested right was affected. KRS
342 .125(8) is both a statute of limitation and repose and may
extinguish a cause of action before it arises. The
right to reopen is a
peculiarity of Chapter 342. Whereas the statutory
amendments did not abolish or diminish the legal
remedies for common-law causes of action for personal
injuries or death that existed prior to the adoption of the
1891 Kentucky Constitution, the statute is not
unconstitutional.
|
2003-SC-000315-OA.pdf
Size: 321 kb
Date: 6/5/2003 |
Martin
v. AOC (Administrative Office of the Courts)
Costs of Transcript, Family Law
Issues pertaining to mandamus, family law, and costs
associated with in forma pauperis appeals.
Per Commonwealth, ex rel . Morris v.
Morris , Ky., 984 S.W .2d 840 (1998), SSI benefits are
properly included in gross income in determining child
support.
"By applying the standards set out for
writs of mandamus or prohibition, we find that there is no
irreparable injury or great injustice that will result and
that Martin has an adequate remedy by appeal through the Court
of Appeals. We determine that this case is not one of such
great public importance as contemplated by Ex parte Auditor of
Public Accounts. KRS 453 .190(1) contains no language that
requires the Administrative Office of the Courts to pay th
$67.50 for transcripts for an appeal in forma pauperis. To
order the AOC to pay the transcription costs of indigent
appellants would be a violation of the separation of powers
doctrine." |
- Kentucky SUPREME COURT -
NOT TO BE PUBLISHED -
June 12, 2003
1998-SC-001025-MR.pdf
Size: 623 kb
Date: 6/5/2003
|
Herald
v. Com.
Criminal
SC affirmed Defendant's convictions and forty year
sentence for first-degree robbery,
first-degree sodomy, first-degree attempted sodomy,
first-degree rape and being a first-degree persistent felony
offender. No reversible error by absence of defense
counsel from pretrial hearing; no error in releasing
juvenile and mental health records to KCPC as part of competency
evaluation; retrospective competency hearing did not
violate state and federal due process of law; Defendant was
competent to stand trial; no entitlement to directed
verdict.
|
2000-SC-000015-MR.pdf
Size: 1048 kb
Date: 6/5/2003
|
Murphy
v. Com.
Criminal
SC affirmed Defendant's conviction and life sentence for
Murder and Theft By Unlawful Taking after jury verdict of
guilty but mentally ill. Trial
Court did not err when it failed to direct a verdict in
Defendant's favor after the Commonwealth failed to introduce
its own expert testimony or otherwise contest the testimony
of the experts who testified on behalf of Defendant
that he was unable to appreciate the criminality of his
actions. Trial Court did not commit reversible error
in granting Commonwealth's motions in limine. |
2001-SC-000807-MR.pdf
Size: 855 kb
Date: 6/5/2003
|
Wagers
v. Com.
Criminal
SC affirmed Defendant's convictions and thirty-five year
sentence for First-Degree Sodomy and two
counts of First-Degree Sexual Abuse. Defendant not denied
a fair and impartial jury because there were less than 28 venire persons; trial
court did not erroneously fail to strike six jurors for
cause, thereby requiring the defense to use its peremptory
challenges to remove the jurors; two counts of Sexual
Abuse I should not have merged with the count of Sodomy I;
Defendant not entitled to directed verdict. |
2001-SC-000939-MR.pdf
Size: 510 kb
Date: 6/5/2003
|
Smith
v. Com.
Criminal
SC affirmed Defendant's conviction and 20 year
sentence for 1st Degree Rape. Defendant not entitled
to directed verdict. In 4-3 decision, SC found harmless
error in trial court's decision to exclude Defendant's
medical expert testimony that Defendant's blood
pressure medication caused him to suffer erectile
dysfunction. |
2001-SC-001014-MR.pdf
Size: 780 kb
Date: 6/5/2003
|
Plotnick
v. Com.
Criminal
SC affirmed Defendant's conviction and 20 year sentence
for 1st Degree Sodomy. Defense
counsel not improperly denied recross-examination of
the victim after the Commonwealth had insinuated on redirect
that the victim's mother had manipulated the victim's
testimony (further, issue was unpreserved); issue of
error in failing to instruct the jury on the
lesser-included offense of Sexual Abuse I not properly
preserved; no error to deny motion for directed
verdict; prosecutor's comments did not rise to level of prejudicial
error. |
2002-SC-000045-MR.pdf
Size: 549 kb
Date: 6/5/2003
|
Herald
v. Com.
Criminal
Consolidated with 1998-SC-001025-MR, above. |
2002-SC-000529-WC.pdf
Size: 446 kb
Date: 6/5/2003
|
Smith
v. Mate Creek Development
Workers Compensation -
Reopening - ALJ as Factfinder
Smith was injured in 1993 when a rib of
coal rolled over him in an underground coal mine and
never returned to work. He settled with the
employer in1994 for 13.95% occupational disability. The
settlement agreement described the injury as "acute
pain in the lumbar area, radiating to the right leg
." The word "psychological" was handwritten
just above this description and was initialed only by
Smith. He filed a Form 101 against the Special Fund in
1995 alleging injuries to his back, neck and head with
resulting physical and psychological disability which he
settled for 15 .9% occupational disability. In
December 2000, he moved to reopen alleging a worsening of
condition from a physical and psychological standpoint.
ALJ Steen found that the submitted medical evidence was
not so compelling as to require reopening of the back
claim. The issue in this appeal was the continuing
challenge to the denial of reopening based on the cervical
and psychological conditions. Smith testified to
having headaches within a couple of months of injury
and that his neck problems began about a year later,
that he believed them to be related, and they
have increased in intensity and frequency since
settlement. Dr. Templin diagnosed chronic cervical
pain syndrome and degenerative cervical disc disease but
did not render an opinion as to whether the condition had
worsened since settlement. Dr. Travis
concluded the cervical condition had not progressed 1993.
Dr. Patrick found Smith to have normal findings about the
cervical spine and no measurable functional impairment.
Smith testified about his psychological condition during
the prior proceedings against the Special Fund in
which Dr. Vyas assigned a 45% AMA rating with
5% attributed to "mental anguish" without
defining "mental anguish." Smith
testified it related to anxiety and depression from
his injury and that he now feels useless and
irritable, yet has never sought treatment. On
reopening, Smith offered the uncontradicted report of Dr.
Cooke, who diagnosed adjustment disorder with depressed
mood, noting Smith felt depressed over certain family
matters. He assigned a 15% AMA rating, with 12% attributed
to the 1993 work injury but did not state whether this was
a change in condition from the time of settlement.
The ALJ was not persuaded that the 1993 injury
produced any neck injury nor any psychological condition
based on the lack of any medical documentation of any
significant injury in those areas, which Smith was
required to file with his Form 101 under the
regulations in effect at that time, and held that his
attempt to do was barred by the statute of limitations. The
Board reversed the dismissal based in the statute of
limitations on the grounds that the 1995 Form 101
specifically included the neck and psychological claims
and both settlements referred to the psychological
injury, and remanded for further consideration with the
observation that its view of the evidence lends itself to
little, if any, factual basis for increased benefits on
reopening . The Court of Appeals disagreed and
reversed the Board. The
Supreme Court held Smith did not present compelling
evidence that his alleged neck or psychological problems
have worsened since the settlements that would require a
different result and
the Court of Appeals was correct in concluding that a
remand for additional findings was unnecessary.
|
2002-SC-000563-DG.pdf
Size: 238 kb
Date: 6/5/2003
|
Allen
v. Com.
Criminal
SC reversed trial court's assessment of Defendant as
high-risk sexual offender. Defendant's due process
rights require the attendance at the risk assessment hearing
of the author of the risk assessment report upon which the
court relies in making its determination. See Hyatt
v . Commonwealth, Ky., 72 S.W.3d 566, 573 (2002). |
002-SC-000581-WC.pdf
Size: 344 kb
Date: 6/5/2003
|
Appalachian
Racing, Inc. v. Blair
Workers
Compensation - Independent Use of Guides to
Determine Rating
ALJ Steen found Blair to have proven
a 10% AMA impairment due to a work-related back
injury, but to have failed to prove a work-related neck
injury or any permanent impairment from a work
related knee injury that required medical treatment.
The employer appealed the PPD award on the low back
as an abuse of discretion. Dr. Ravvin
assigned a 0% AMA rating to the lumbar spine. By
report, Dr. Bryson diagnosed lumbar disc disease and chronic
lumbar sprain and assigned a 12-15% impairment
rating without specifying the pages or
tables in the AMA Guides upon which it was based and did
not allocate the impairment between the lumbar spine and
the neck. By deposition, Dr. Bryson testified
Blair's impairment rating under the Fourth Edition would
be 12-15%, based upon abnormal neurological findings,
that he used the DRE tables when assigning that
percentage, and that under the Third Edition Blair
fell into DRE category III for the lumbosacral spine and
category II for the cervical spine. The employer
argued Blair failed to introduce a proper AMA
impairment into evidence in that the Fourth Edition does
not provide for an impairment range such as 12-15% and
that the ALJ was not authorized to choose an impairment
from within the range or that the ALJ was compelled to
rely upon Dr. Ravvin's testimony. The Supreme
Court observed that Dr. Bryson did assign a
combined impairment of 12-15% and did not specifically
state that Blair's lumbosacral impairment was 10% or
that her cervical impairment was 5% but that it
is undisputed that under the Fourth Edition of the
Guides, a DRE category III lumbosacral impairment is 10%
and a category II cervical impairment is 5%. Once
the ALJ had determined that that Dr. Bryson's assessment
of Blair's back condition was more credible, the
ALJ was entitled to rely on his testimony that the
condition fell into the DRE category III
table, read the table, and determine that a lumbosacral
category III warranted a 10% AMA impairment. No
medical expertise is required to use the table to equate
DRE categories into AMA impairments, and it is not an
abuse of discretion for the ALJ to do so.
Comment:
This appears to signal that erosion of the line
of decisions that have barred ALJs (and attorneys)
from being permitted to read and apply the AMA Guides on
the grounds that they are the exclusive province of
medical experts, most recently seen in City
of Henderson Fire Department v. Stone, Ky. App., 2002-CA-002238
(5/28/03)(Not to be published) will continue, perhaps to
include a ruling that medical expertise is not required
to perform the ministerial task of processing multiple
whole body impairment ratings into a single rating
through the combined values table. TGH
|
2002-SC-000629-WC.pdf
Size: 465 kb
Date: 6/5/2003
|
Morgan
v. Leslie Resources, Inc.
Workers
Compensation - Sufficiency of Evidence
Morgan rolled his truck in September, 1998, missed
three days of work, sought medical treatment two months
later. Two physicians could find nothing
wrong with him and he returned to his usual work with
complaints of pain in his low back and tailbone.
After Morgan's truck overturned in a 1999 accident, he completed
his shift, had no any significant absence from work, sought
no treatment for 18 months, then was unable to return to
work due to an inability to sit for long. An MRI
revealed nerve damage at L4-5. He received
short-term disability benefits and filed a Form 101 on February
1, 2001. Dr. Brandon diagnosed lumbar myofascitis
with radiculopathy and recommended continued chiropractic
treatment. Dr. Gilbert received a history of only
the 1998 accident and diagnosed chronic sprain/strain
syndrome, muscle spasm, and lumbago, assigned a 21%
impairment, and indicating that the injury was
the cause of Morgan's complaints. Dr. Patrick received
a history of both injuries and treatment, diagnosed
traumatic coccydynia from the 1998 accident, and
assigned a 5% AMA impairment attributed to the 1998
injury. Dr. Best received a history of both
accidents and diagnosed each as causing a
musculoligamentous low-back strain which later resolved
without permanent impairment or need for further
treatment. The employer's personnel records
custodian testified its records contained no request
from Morgan for medical treatment following either
accident and nothing in the records indicated that he
had missed any time for a work injury, back pain, or
treatment of a work-related injury, between September 2,
1998, and June 7, 1999 and that he continued working his
regular hours in the weeks that followed both accidents.
It was stipulated no TTD or medical expenses were
paid. The employer maintained Morgan did not
miss work or request medical treatment after either
accident and that it was first informed he was alleging an
injury in January, 2001, at which time he was given
paperwork for short-term disability. Chief ALJ
Lowther dismissed the 1998 injury claim as barred
by limitations under KRS 342.185 and
held Morgan failed to meet his burden
of showing that the 1999 accident caused an injury of
appreciable proportion that resulted in a permanent
impairment. Morgan appealed arguing the ALJ
erred by determining all of his current problems were
related to the 1998 accident and Dr. Best's finding
of a musculoligamentous strain after each accident without
evidence of a pre-existing active condition entitled him
to an award of income and medical benefits for the 1999
injury. As was the case before the Board and Court
of Appeals, the Supreme Court affirmed noting that the ALJ
is the sole finder of fact whose findings will
not be reversed on appeal when supported by substantial
evidence of record. The failure to seek
medical treatment for the effects of
the June 2, 1999 accident until
December 15, 2000 and lack of any physician assigned permanent
impairment to the effects of that accident
support a finding that no appreciable injury resulted
from that accident. (Morgan
failed to preserve an allegation of error that the
employer's payment of short- and long-term disability
benefits and alleged failure to file a timely report
of the 1998 accident barred assertion of the statute of
limitations defense to the 1998 claim).
|
2002-SC-001057-MR.pdf
Size: 527 kb
Date: 6/5/2003 |
Lee
v. Judge Stephen Ryan, Jefferson Cir. Ct.
Extraordinary Remedies, Grand Jury, Criminal
SC reversed Court of Appeals denial of Writ of Mandamus.
Case remanded to trial court for hearing. Issue:
Was the grand jury process being improperly used as a
substitute for discovery? The SC stated:
The remedy that Lee desires in this case,
i.e., a writ of prohibition and mandamus, is an
extraordinary form of relief. Generally, a writ will only be
granted if (1) the lower court is proceeding or is about to
proceed outside its jurisdiction, or (2) the lower court is
about to act incorrectly, although within its jurisdiction,
and there exists no adequate remedy by appeal or otherwise
and great injustice and irreparable injury would result. Southeastern
United Medigroup v. Hughes, Ky ., 952 S .W.2d 195, 199
(1997). While we rarely grant such relief, there is a
serious question regarding whether the investigative
procedures of the grand jury are being used in an improper
fashion. In Bishop, supra, we ultimately
reversed the decision rendered by the Court of Appeals and
remanded the case for a determination to be made as to
whether the sole or dominant purpose of the issuance of the
subpoenas was to facilitate discovery by the Commonwealth of
facts related to a pending criminal indictment. Id. at 4. We
follow our decision in Bishop and hold that, under
the circumstances, a like conclusion is appropriate in this
case as well. |
|
