Vol. 2003/27       

• KENTUCKY APPELLATE DECISIONS 
  FOR August 18 - 22, 2003
   
• Kentucky SUPREME COURT Decisions 
  PUBLISHED - Aug. 21, 2003
  

  AOC LINKS SUMMARIES OF DECISIONS

  1999-SC-001122-MR.pdf Size: 1545 kb Date: 8/15/2003 Jackson v. Com. Criminal - Procedure SC vacated 1st Degree Assault conviction and 20 year sentence following bench trial.  Jackson argued he was entitled to new trial because the trial court failed to obtain written jury trial waiver.   Issue:  Is Defendant automatically entitled to new trial because the trial court failed to comply with RCr 9.26(1) which requires a jury trial waiver to be in writing?   Answer:    No.  In reaching this decision, the SC looked to the interpretation of Federal Rule of Criminal Procedure (FRCP) 23(a), which is virtually identical to RCr 9.26(1).  Under the federal rule, four (4) conditions are necessary for a valid waiver: (1) the defendant must knowingly, voluntarily, and intelligently waive his right to trial by jury; (2) the government's attorney must consent; (3) the trial court must agree; and (4) the waiver must be in writing.  Following this approach the SC concluded that a failure to comply with RCr 9.26(1)'s "in writing" requirement will not prejudice a defendant's substantial rights if the trial court engages in a colloquy with the defendant to ensure that the defendant's waiver is constitutionally adequate - i .e . , that the defendant is knowingly, voluntarily, and intelligently waiving the right to a jury trial .   Case remanded for the trial court to conduct an evidentiary hearing to determine whether the bench trial was conducted without Jackson's waiver of his right to a jury trial, in which case he is entitled to a new trial, or whether Jackson actually knowingly, voluntarily, and intelligently waived his right to trial by jury but was erroneously permitted to communicate that waiver through his attorney rather than in writing . Stated otherwise, SC remanded the case for the trial court to evaluate whether its failure to require Jackson's written waiver was a mere technical error or a prejudicial error that wrongfully deprived Jackson of his right to trial by jury.   Strong dissenting opinion by Justice Cooper, joined by Stumbo, who believe case should be remanded for a jury trial.   2000-SC-000206-KB.pdf Size: 3086 kb Date: 8/18/2003 Countrywide Home Loans, Inc. v. Kentucky Bar Association Practice of Law in Real Estate Transactions   The Kentucky Supreme Court vacated KBA U-58 (1999), an opinion of the Kentucky Bar Association Committee on the Unauthorized Practice of Law which opined that all real estate closings must be conducted under the supervision and control of an attorney, and that closings conducted by title companies were the unauthorized practice of law.  The Court reaffirmed KBA U-31 (1981), which opined that title companies and non-lawyers could conduct closings that are ministerial in nature, but must not answer legal questions.  If legal issues arise, a closing must be stopped and lawyers consulted.   2000-SC-000227-DG.pdf Size: 588 kb Date: 8/15/2003 Martin v. Mekanhart Corp. d/b/a Frisch's of Somerset Negligence, Premises Liability, Daubert Supreme Court affirmed trial court and reversed Court of Appeals.  When patron slips on oil in the Frisch's parking lot, summary judgment is not proper based on Lanier v. Wal-Mart, 99 S.W.3d 431(2003).  Lanier held that the customer must prove:  1.) he/she had an encounter with a foreign substance or other dangerous condition on the business premises;  2.) the encounter was a substantial factgor in causing the accident and the customer's injuries; and  3.) by reason of the presence of the substance or condition, the business premises was not in a reasonably safe condition for the use of business invitees.   This proof creates a rebuttable presumption sufficient to avoid summary judgment or directed verdict and shifts the burden of proving the absence of negligence or exercise of reasonable care to the party who invited the injured customer to its business premises.  Frisch's failed to rebut this presumption and the jury verdict was proper.  Frisch's failure to meet this burden was found in evidence that showed  Frisch's seldom, if ever, scrubbed and hosed the parking lot.  The evidence  further showed that the oil stain on Plaintiff's pants was smeared, not  splattered, created an inference that the oil spill was not new.  This  evidence created a reasonable inference that Mekanhart's employees did not regularly seek out and remedy a recognized danger created by an oil leaking onto the surface of the parking lot and that the spot that caused Martin to slip and fall had been present for a sufficient length of time to have been discovered and remedied.  Smith v. Walmart, 6 S.W.3d 829 (1999). Another issue in the case was the failure to object to video testimony by a doctor.  If you are going to object to video testimony given by a doctor, you must do so 10 days before trial pursuant to CR 30.02(4)(e).  Failure to timely object waives your right to do so at trial. 2000-SC-000717-DG.pdf Size: 725 kb Date: 8/18/2003 Island Creek Coal Co. v. Wells Interpreting Judgment/Settlement on Entitlement to Disability Benefits Parent company not liable to pay  long term disability benefits to employee of parent's subsidiary after subsidiary sold based upon agreed judgment between subsidiary and wholly-owned subsidiary. 2000-SC-000727-DG.pdf Size: 1503 kb Date: 8/15/2003 Kentucky Dept. of Corrections v. McCullough Civil Rights Retaliation, Punitive Damages Plaintiff sued alleging gender discrimination and unlawful retaliation in violation of the Kentucky Civil Rights Act ("KCRA").   SC held that a claim for unlawful retaliation requires the plaintiff to first establish a prima facie case of retaliation, which consists of showing that "(1) she engaged in a protected activity, (2) she was disadvantaged by an act of her employer, and (3) there was a causal connection between the activity engaged in and the [defendant] employer's act."  Here the officer established prima facie case that department's adverse actions were caused by her prior protected action and that department's explanation for adverse action was pretext for retaliatory motive. Kentucky Civil Rights Act does not provide for punitive damages in employment discrimination cases or interest against state entity. 2000-SC-000730-MR.pdf Size: 862 kb Date: 8/15/2003 Harbin v. Com. Criminal - Forfeiture SC affirmed Harbin's convictions and 20 year sentence for Trafficking, Wanton Endangerment, Attempting to Elude, Resisting Arrest, & PFO 1.  However, Jefferson Circuit Court's order of forfeiture was reversed and remanded.   Convictions affirmed:  Any error in impermissibly limiting Defendant's voir dire by ruling that he could only inform the jury panel that the possible range of penalties was "one day to life," without any further explanation was harmless in light of guilty plea to PFO 1 and subsequent minimum sentence.  Any error in admitting "highly prejudicial testimony regarding a photograph of a nude woman lying on a bed surrounded by large amounts of cash" was harmless.   However, Harbin's Due Process rights were violated when his vehicle and the $6,500 found therein were forfeited without notice and an opportunity for a hearing.  The statutes pertaining to forfeiture are KRS 218A.410 and KRS 218A.460.  Pursuant to KRS 218A.410, property subject to forfeiture includes "vehicles . . . which are used, or intended for use, to transport or in any manner to facilitate the transportation, for the purpose of sale or receipt" of controlled substances and equipment used in the manufacture of such, and "all proceeds . . . traceable to the exchange, and all moneys . . . used or intended to be used, to facilitate any violation of this chapter [ .]" KRS 218A .410(1)(h) and (j). However, subsection (j) further provides: It shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to controlled substances, to drug manufacturing or distributing paraphernalia, or to records of the importation, manufacture, or distribution of controlled substances, are presumed to be forfeited under this paragraph. The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence. The burden of proof shall be upon the law enforcement agency to prove by clear and convincing evidence that all real property is forfeitable under this paragraph. In addition, KRS 218A.460, which concerns the application of the forfeiture procedures, states, in pertinent part:  (2) Following conviction of a defendant for any violation of this chapter, the court shall conduct an ancillary hearing to forfeit property if requested by any party other than the defendant or the Commonwealth. The Commonwealth's attorney, or the county attorney if the proceeding is in District Court, shall initiate the hearing by filing a motion requesting entry of a final order of forfeiture upon proof that the property was being used in violation of the provisions of this chapter.  The final order of forfeiture by the court shall perfect in the Commonwealth or appropriate law enforcement agency, as provided in KRS 218A .435, right, title, and interest in and to the property. The Commonwealth may transfer any real property so forfeited by deed of general warranty.  (4) Unless otherwise expressed in KRS 218A.410, the burden shall be upon claimant to property to prove by preponderance of the evidence that it is not subject to forfeiture. As Appellant in this case was not provided notice of the forfeiture action, it follows that he did not have any opportunity to present evidence to rebut the presumption that his property was forfeitable.  Accordingly, the matter was remanded to Circuit Court for further proceedings concerning the forfeiture of Appellant's property. 2001-SC-000192-MR.pdf Size: 1270 kb Date: 8/18/2003 Parrish v. Com. Criminal - Death Penalty SC affirmed Defendant's conviction for murder and subsequent death penalty.  The indictment was sufficient on its face.  It was not error to ask prospective jurors if they held any moral, religious, spiritual or personal beliefs that would interfere with their service as jurors on this death penalty case.  The trial judge did not abuse in any way her discretion in permitting the medical examiner to simply state, as part of his autopsy findings, that the female victim was pregnant.  No error by allowing a corroborating witness, a jailhouse informant, to testify at trial.  The trial judge was correct in not instructing the jury as to the existence of an Extreme Emotional Distress (EED) factor as to the child victim.  Penalty phase instructions were not flawed.  The aggravating circumstance was not vague and was properly applied in this case.  The penalty phase instructions did not coerce or mislead the jury into believing that it must impose the death penalty.  Trial judge did not err by prohibiting the introduction of letters and cards from his children and photographs of his children during the penalty phase.  There was no individual error and there was no cumulative error. "Pursuant to KRS 532 .075(3), we have reviewed the death sentence imposed herein and conclude that it was not imposed under the influence of passion, prejudice or any other arbitrary factor. . . . The sentence of death in this case was not excessive or disproportionate to the penalties imposed in similar cases considering both the crimes and the defendants." 2001-SC-000444-MR.pdf Size: 1822 kb Date: 8/15/2003 Wheeler v. Com. Criminal - Death Penalty SC affirmed Defendant's conviction for murder and subsequent death penalty.  The voir dire process was entirely proper and thoroughly examined the question of whether any prospective jurors were predisposed. There was no error and the rights of the defendant to a fair trial by a fair and impartial jury, due process and freedom from cruel and unusual punishment under both the federal and state constitutions were not violated.  This Court and the United States Supreme Court have repeatedly rejected the argument that death qualification of a jury violates the constitutional rights of the defendant.  Commonwealth's opening statement was not improper.  It was not prejudicial error to admit evidence that the female victim was pregnant at the time of her murder.  It was not error for the trial judge to exclude the introduction of Wheeler's tennis shoes as evidence.  The trial judge correctly denied the defense counsel the right to impeach a witness about her delay in reporting knowledge about the crime.  It was not error for the trial judge to allow the detective to explain his comments regarding the photo pack questioning by the defense.  The trial judge properly determined that Dr. Amy Burrows qualified as an expert witness so as to permit her to testify about both blood spatter and bite-mark evidence.  There was no abuse of discretion by the trial judge in admitting the crime scene video into evidence.  The instructions issued by the trial judge during the guilt phase were appropriate and the Defendant's tendered instructions were properly refused.  The trial judge did not improperly limit the penalty phase testimony of a defense psychiatrist regarding extreme emotional distress at the time of the murders.  Evidence only of drug dependency is not sufficient to justify an instruction for EED.  The use of a videotape record does not deny Wheeler due process.  The indictment was valid on its face and conformed to statutory requirements and the indictment in regard to aggravating circumstances was not defective.  The use of mutually supported aggravating circumstances does not violate the prohibition against double jeopardy contained in Section 13 of the Kentucky Constitution and the Fifth Amendment to the Federal Constitution.  The use of another murder as a substantive crime and as an aggravating circumstance does not violate double jeopardy principles.  Lethal injection is not cruel and unusual punishment.  Wheeler has not shown in his particular case that his death sentence is discriminatory, arbitrary or  disproportionate.  There is sufficient statutory guidance for the imposition of the death penalty in Kentucky.  Due process was not violated because the trial judge did have a separate and distinct role as contemplated by KRS 532 .025 and KRS 532.030.  The proportionality review conducted by this Court does not violate due process or equal protection.  No error in instructing the jury.  The closing argument by the prosecutor during both the guilt and penalty phases of the trial did not in any way deprive Wheeler of due process or a fair trial. 2001-SC-000516-DG.pdf Size: 387 kb Date: 8/15/2003 Thompson v. Sherwin Williams Co., Inc. "Fratzke" Rule,  CR 8.01 Damages Interrogatory SC reinstated trial court's verdict on damages.    This was an MVA case in which plaintiff's response to CR 8.01 interrogatories on unliquidated damages simply gave an amount for pain and suffering rather than allocating it between past and future pain and suffering.  CA had held pain and suffering amount did not include future pain and suffering and shot down the jury's award for future pain and suffering.  The SC continued to follow the Fratzke rule on damages  so that if the plaintiff responds to an interrogatory as to amount of unliquidated damages claimed and does not supplement the response, the plaintiff's recovery is limited to the amount stated in the last response; if the plaintiff does not respond to the interrogatory, the plaintiff is not entitled to an instruction on unliquidated damages.  However, the SC did add that "the purpose and the only requirement of CR 8.01(2) is that information be furnished as to the "amount claimed" in unliquidated damages, not an itemization of each category of unliquidated damages for which that amount is claimed. Fratzke, supra, at 272-73. The rule is a substitute for the previous procedure of stating the amount claimed in the ad damnum clause of the complaint and serves the same purpose as the former procedure in addition to the salutary purpose of facilitating settlements. Lafleur, supra, at 478-79. Although a request for a categorization of damages is within the scope of CR 33.01, it is not within the requirement of CR 8.01(2). The remedy for a violation of CR 33.01 is found in CR 37.01 and CR 37.02, not in CR 8.01(2). The damages instruction given in this case did not authorize a verdict in excess of the "amount claimed" in the response to Interrogatory No. 14." Comment:  This is a significant retrenchment from the Fratzke CR 8.01(2) rule.  For those not familiar with this 'trap', CR 8.01(2) ties the plaintiff to his/her last response to unliquidated damages.  If you did not itemize the damage, then you get no instruction and was on the short end of a directed verdict on that element and if you said $1 then that was the max that went to the jury.  OUCH...  How was the Fratzke Friar set in motion???  Simple, the defense tenders standard interrogatories early in the case;  some attorneys would indicate discovery was not yet complete and would supplement later.  The trap was laid, with the defense remaining silent.  If no amount was provided later, then the defendant would move for a DV dismissing that element of the damages!  If the plaintiff said, "$10,000", then that was the amount you were stuck with at trial.  No motion to complel answers is required, and the defense lies low, lets the trial start, and then moves to dismiss later (sometimes as late as jury instructions and all had rested).   The nasty thing about this case was that the plaintiff asked for a $100,000 in pain and suffering, and the CA would have limited that to past pain and suffering.  Ouch.   Here the SC removed some of the collateral damages from the trap.  You just have to list your unliquidated damages, and not itemize them!  Solution - answer  "This interrogatory is premature and discovery is not yet complete but in order to comply with CR 8.01(2) and decisions interpreting that rule, the plaintiff claims unliquidated damages of $1,000,000 based upon advice of counsel."  Should any defense attorney lead with his/her chin on this one, the witness opens the door to the technical nature of the damages and then the plaintiff's lawyer closes the door during argument about those technical formulas and the games people play!  Of course, the defense can simply tender interrogatories which either itemize or request an itemization of damages.  Which is basically the result of this decision.  Then, no harm no foul so long as the total listed does not exceed the total awarded.  Hmmmmmm.  The down side is that if discovery is supposed to apprise the other side of the risk of damages, then the million dollar response is no response and the shifting sands of numbers is nothing to evaluate.  So, why bother?  The SC giveth, and the SC taketh away.  So it is written, so it is done.  Now when is the Supremes going to put some meat into the expert opinion disclosures under CR 26.02 since they are so darned concerned about surprise and hiding the ball???  Gotta disclose the numbers but let's not get overly concerned about  those trivial medical opinions as to causation, prognosis, impairment ratings, etc.  Mike S. 2001-SC-000526-MR.pdf Size: 1211 kb Date: 8/25/2003 Hodge v. Com. Criminal - Death Penalty SC affirmed Circuit Court's denial of Defendant's RCr 11.42 motion to vacate his conviction and death sentence without an evidentiary hearing.  Hodge received reasonably effective assistance of defense counsel.  Any of the alleged ineffectiveness was not so serious as to deprive him of a fair trial and there is no reasonable probability that a different result could have been achieved by even the best counsel. A complete review of the record in this case demonstrates that Hodge received a fundamentally fair trial with a reliable and fair sentence. 2001-SC-000563-DG.pdf Size: 2401 kb Date: 8/27/2003 Grubbs v. Barbourville Family Health Center, P.S.C. Medical Negligence, Birth Defects, Claim of child or parents  Case of first impression. Neither the parents or the child have a cause of action for wrongful life or wrongful birth against a physician for failure to diagnose a fetal defect in time for the parents to have an abortion an abortion.  However, the parents did have a breach of contract claim against physicians who ordered and misinterpreted a prenatal diagnostic test. 2001-SC-000573-DG.pdf Size: 668 kb Date: 8/15/2003 Burton v. Kentucky Farm Bureau Ins. Co. Uninsured Motorist (UM), Physical Contact/Hit & Run Rule SC affirmed the "physical contact" or "hit & run" rule as an exclusion to uninsured motorist benefits coverage does not violate public policy. Comment:   This is still an oldie but goodie rule.  No contact, no case in UM.  The purpose of this rule is to avoid fraudulent claims by insured's who are injured and saying they were run of the road by this unknown person who drove away.  Even if they say there was contact, then the vehicle is examined for third party paint.  However, remember it's a two part test and both must be met - no contact and no driver.  If you know who forced you off the road, then your uninsured claim is still viable but subject to proving it if denied by the putative UM driver.  Mike S. 2001-SC-000626-DG.pdf Size: 1148 kb Date: 8/18/2003 Pathways, Inc. v. Hammons Negligence, Duty, Foreseeability, Placement in Nursing Home Psychiatric and social services provider placed mentally ill client in an unregistered boarding home.  Patient sued provider for negligence when she was sexually assaulted by other boarder at the nursing home. SC reversed CA and dismissed claim holding social services provider had a duty to their client to use current state-provided list of registered boarding homes when placing their client, but this was NOT the legal cause of the assault. J. Stumbo dissented highlighting the patient was under the provider's care and the patient was not able make a decision of where to go and "so far as foreseeability enters into the question of liability for negligence, it is not required that the particular, precise form of injury be foreseeable--- it is sufficient if the probability of injury of some kind to persons within the natural range of effect of the alleged negligent act could be foreseen." 2001-SC-000648-TG.pdf Size: 1394 kb Date: 8/15/2003 Schwindel v. Meade County, Ky. Sovereign Immunity - County, Board of Ed., Individual, Unknown Defendants  FACTS.  Appellant Leah Schwindel was injured while a spectator at a softball tournament held at Meade Olin Park in Brandenburg, Kentucky.  She was injured when a foot rail slip while she was descending the bleachers, causing her to fall onto the open metal braces below.  Suit was filed eleven hours and thirty-three minutes before the expiration of the one-year period of limitations under KRS 413.140(1)(a) by her and her husband.  Named as defendants were Meade County and its county judge and fiscal court magistrates "in their official capacities" and the Meade County Board of Education and its superintendent and board members "in their official capacities" all of whom pled sovereign immunity as an affirmative defense.  Three months after filing suit (and the expiration of the statute of limitations), the Schwindels amended their complaint to add "unknown defendants."  No depositions taken, no open records requests to identify the unknown defendants, and no affidavits other than Mrs. Schwindel.  No warning order attorney attempted for constructive service on the unknown defendants.   Summary judgment granted dismissing ALL of the claims.  SC held as follows. (1) A county government is cloaked with sovereign immunity. Nor can a county, absent a legislative waiver of immunity be held vicariously liable in a judicial court for the ministerial acts of its agents, servants, and employees. (2) "Claims Against Local Governments Act" (CALGA) is not a waiver of a county's immunity from vicarious liability for damages arising from the tortious performance of ministerial acts by its employees. (3) School board's sponsorship of an interscholastic athletic tournament in a park was an immune governmental function. (4) County judge/executive,  magistrates, the superintendent of schools, and the members of the board of education are ALL cloaked with the same immunity as the government or agency they individually represented. (5) The amended complaint against the "unknown defendants" was barred by statute of limitations and did not relate back to time of original complaint. 'There is no proof that the unknown defendants were still employed by the county or board on the day this action was filed. But if they were, we would not presume that they were notified of the lawsuit during the eleven hours and thirty-three minutes remaining after it was filed and before the period of limitations expired.' Comment:  The unknown defendant is a useful procedure to avoid the statute of limitations problem, but you got to employ it within the period or it's too late.  The relation back provisions for amending a complaint does not work unless actual notice, and since they were unknown, then there is no proof they would have known of the original complaint. 2001-SC-000658-MR.pdf Size: 610 kb Date: 8/18/2003 Florence v. Com. Criminal - Expert Testimony SC affirmed Defendant's convictions and 20 year sentence for 2nd Degree Criminal Possession of a Forged Instrument, Theft by Deception Over $300, and Being a Persistent Felony Offender (PFO) in the first degree. The trial court did not improperly disallow a Daubert hearing to determine the admissibility of handwriting analysis expert testimony.  "In Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995), overruled on other grounds, Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999), this Court adopted the analysis of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), wherein the United States Supreme Court set out key considerations for admitting expert testimony under the Federal Rules of Evidence.  In Goodyear Tire and Rubber Company v. Thompson, Ky., 11 S.W.3d 575 (2000), this Court adopted the reasoning of Kumho Tire Company v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), in that the Daubert analysis 'applies not only to testimony based on 'scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge.'  When a party proffers expert testimony, the trial court must determine in a preliminary hearing pursuant to KRE 104, 'whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue .' The nonexclusive, flexible factors to be considered in determining the admissibility of the proffered expert testimony as set forth in Daubert and adopted in Mitchell are: (1) whether the theory or technique can be or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the theory or technique has general acceptance within its particular scientific, technical, or other specialized community." "The foregoing factors represent the prevailing standard for the determination of whether to admit expert testimony. In Johnson v. Commonwealth, Ky., 12 S.W.3d 58 (1999), we clarified when a Daubert hearing is required. This Court followed the Third Circuit decision in United States v. Martinez, 3 F.3d 1191 (3rd Cir. 1993), where 'it was held that once an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of reliability and validity of the scientific method, technique or theory at issue.'" "Applying Johnson, there is a burden shift from the party offering expert testimony to the party opposing the testimony. The opposing party, when it so requests, has a right to present evidence that the scientific evidence at issue is not or is no longer scientifically reliable. In the present case, Appellant did not challenge the reliability of the expert handwriting analysis with evidence to the contrary. Rather he sought only a Daubert hearing, and under Johnson v. Commonwealth and relying on the general acceptance of handwriting analysis as demonstrated by Marcum v. Gallup, Ky., 237 S.W.2d 862 (1951), and Jones v. Sutton, Ky., 255 S.W.2d 658 (1953), a preliminary hearing was not required without a proffer of evidence challenging the reliability of the discipline at issue." The trial court did not erroneously fail to inquire into the reasoning behind Defendant's failure to testify.  The SC recently decided Crawley v. Commonwealth, Ky., 107 S.W.3d 197 (2003), in which it held that "a trial court has a duty to conduct further inquiry when it has reason to believe that a defendant's waiver of his right to testify was not knowingly or intelligently made or was somehow wrongly suppressed."  Here, defense counsel stated in his closing that he told the Defendant not to testify.  Evidently, this was not enough to trigger the TC's duty to inquire further. Defendant was not entitled to a directed verdict on one or both counts of theft by deception. 2002-SC-000342-DG.pdf Size: 1287 kb Date: 8/15/2003 Williams v. Kentucky Dept. of Education Board of Claims, Sovereign Immunity, Negligent Supervision HS student was killed in car accident when he was a passenger in car driven by another student at a time when he was supposed to be at school sponsored extra-curricular activity (decorating gym).  Administrator of estate filed in board of claims for minor's death and loss of consortium for minor. SC affirmed the dismissal of the claims for loss of consortium but reversed the dismissal of the claim for wrongful death. Because the Board of Claims dismissed that claim without reaching the issues of negligence, causation, apportionment, or damages, SC remanded to the Board for further proceedings on those issues. A school teacher can be held liable for injuries caused by negligent supervision of his/her students. Yanero v. Davis, Ky., 65 S.W.3d 510, 529 (2001); Wesley v. Page, Ky., 514 S.W.2d 697, 699 (1974). SC noted that among other facts, many of the students brought alcoholic beverages to the gymnasium in their private vehicles and openly consumed those beverages while supposedly decorating the gym. An ALJ could believe that the described pandemonium at Betsy Layne High School and at the gymnasium on the morning of April 28, 1989, was the result of negligent supervision (or no supervision), and that such was a substantial factor in causing the death of Anthony Williams. Each teacher and administrator in the public schools shall in accordance with the rules, regulations and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities. Faculty members in charge of this school-sponsored event conducted during school hours and on school premises should have foreseen that students who consumed alcoholic beverages on the premises, then left the premises in their private vehicles during the event, with or without permission, were likely to be involved in an accident causing injury or death. Thus, the fact that an alcohol-related accident actually occurred and caused the death of one of the students was neither "extraordinary" nor "unforeseeable." The Department of Education waived immunity for itself or any of its agencies or managerial officials and employees from vicarious liability for negligent performance of ministerial acts by employees of a local board of education. Loss of consortium is not a recoverable claim under Board of Claims Act. 2002-SC-000582-MR.pdf Size: 797 kb Date: 8/15/2003 Lewis LP Gas, Inc. v. Lambert Writ of Prohibition, Jurisdiction SC held family corporation and minority shareholder are interested parties and not strangers to the proceedings and therefore had standing to seek writ to prevent circuit court from enforcing order enjoining corporation from selling assets as part of divorce involving majority shareholder.  The trial court was without jurisdiction to enjoin the corporation and that it has no adequate remedy by appeal such that the CA abused its discretion when it denied Appellant's petition for a writ of prohibition. SC remanded to the Court of Appeals for the entry of a writ of prohibition against the trial court. 2002-SC-000772-WC.pdf Size: 352 kb Date: 8/18/2003 Coalfield Telephone Co. v. Thompson Workers Compensation - Settlement   Thompson was injured in 1999.  During the course of litigation, employer's counsel sent a letter to Thompson's counsel proposing terms of settlement which Thompson's counsel stated by letter Thompson had advised him to accept and requested employer's counsel prepare the settlement agreement to be signed and presented to the ALJ for approval.  Thompson died 3 days later, before a formal settlement agreement was circulated and signed.  ALJ D. Smith entered an award of benefits to Thompson's mother as representative of his estate which differed from the terms of the letters exchanged by counsel without considering approval of the "agreement." Thompson's mother appealed and prevailed at the Board, Court of Appeals, and Supreme Court which held KRS 342.265 does not require a formal document (Form 110) that contains the terms of an agreement and is signed by the parties.  Since the letters exchanged clearly indicated the terms to which the parties had agreed and there was no assertion the terms were incomplete, the ALJ erred by addressing the form of the agreement rather than its substance (and would presumably be required to do so on remand).   2002-SC-000825-WC.pdf Size: 223 kb Date: 8/18/2003 Roberts Brothers Coal Co. v. Robinson Workers Compensation - Reopening (Disability v. Impairment)   Robinson injured his back at work in 1999 and ALJ Kerr found him to be permanently totally disabled as a result.  Despite the existence of prior back difficulties, Robinson was working without restrictions prior to the injury.  Therefore, the ALJ held there was no pre-existing active disability.  However, the PTD award was reduced by 25% based on medical testimony that 25-50% of Robinson's impairment was due to the natural aging process without any medical opinion that it was attributable to or aroused by the work.  The Board, Court of Appeals and Supreme Court disagreed with the ALJ.   A finding of noncompensable impairment does not preclude an award of PTD benefits. Disability and impairment are not synonymous.  Disability is the basis on which a KRS 342.730(1)(a) determination of total disability is based (albeit subject to there being an impairment), while partial disability under KRS 342.730(1)(b) is based solely on a finding of a particular AMA impairment.  "An exclusion from a total disability award must be based upon pre-existing disability, while an exclusion from a partial disability award must be based upon pre-existing impairment. ... [I]f an individual is working without restrictions at the time a work-related injury is sustained, a finding of pre-existing impairment does not compel a finding of pre-existing disability with regard to an award that is made under KRS 342.730(1)(a)."  The 25% reduction for the natural aging process based solely upon impairment was erroneous where the ALJ had determined that Robinson had no pre-existing active disability.   2002-SC-000974-WC.pdf Size: 304 kb Date: 8/18/2003 Roberts v. George W. Hill & Co. Workers Compensation - Statute of Limitations (Minor)   Roberts alleged a crush injury to his hand in the course of his work at age 15 in October 1997.  His parents, acting as next friends, submitted a notice of rejection of KRS Chapter 342 and filed a civil action in the circuit court against the employer which was dismissed in October 1998.  The dismissal was upheld by the Supreme Court on appeal on August 24, 2000 on the grounds that a rejection of the Act after the date of injury did not bar the exclusive remedy provision of the Act.  Roberts filed his Form 101 on his 20th birthday, November 5, 2001.  ALJ Overfield dismissed the claim as being untimely filed and was affirmed by the Board, Court of Appeals and Supreme Court.  Robinson argued that KRS 342.210 precluded the statute of limitations from running during the time of his minority such that he had a period of 2 years from the date of majority in which to file his claim.  However, appointment of his parents as next friend to act on his behalf in order to prosecute the civil action caused him to become sui juris and the statute for filing his claim began to run on the date of their appointment.  Robinson's claim was filed more than 2 years of the date of his parents appointment and was not filed within 90 days after the August 24, 2000 ruling on the civil action under KRS 413.270.

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - Aug. 21, 2003
   

  AOC LINKS SUMMARIES OF DECISIONS

  2000-SC-000778-MR.pdf Size: 1285 kb Date: 8/15/2003 Cranmer v. Com. Criminal - Evidence  SC reversed Defendant's conviction for 1st Degree Assault and PFO 1 and remanded for new trial.  Defendant's conviction for DUI 1st affirmed.  The trial court committed reversible error by allowing  habit testimony, i.e., the victim's "habit" of usually turning on his headlights when driving at night and using turn signals.   2001-SC-000088-MR.pdf Size: 1526 kb Date: 8/18/2003 Chambers v. Com. Criminal   SC affirmed in part and reversed in part Defendant's convictions for a variety of sexual offenses against a minor.   SC found overwhelming evidence of guilt that would render harmless any error accompanying the admission of six evidentiary items in violation of KRE 404(b), other crimes, wrongs, or acts.  The minimal amount of testimony regarding a single count excluded from the indictment, compared with the vast array of evidence supporting the many other counts makes the prejudicial impact minimal.  Defendant was not entitled to directed verdicts on Sodomy and Criminal Attempt to Committ Unlawful Transaction with Minor charges as there was sufficient evidence.  However, Defendant was entitled to directed verdict on Use of a Minor in a Sexual Performance counts.  Convictions for these four counts reversed.   Defendant was not entitled to change of venue.  Trial court did not commit error by failing to strike juror for cause.  Exclusion of notebook evidence was proper remedy to discovery violation.  T he use of leading questions and Defendant's journal to refresh victim's memory as to the dates of the crimes was proper.  The introduction of a co-defendant's guilty pleas was improper but harmless error in light of the overwhelming evidence.  Defendant was not prejudiced by the amended indictment.   In sum, convictions affirmed except for four (4) Use of Minor in Sexual Performance counts.  Case remanded for resentencing.   2001-SC-000232-MR.pdf Size: 928 kb Date: 8/15/2003 Shavers v. Com. Criminal  SC afirmed Defendant's convictions and 65 year sentence for murder, burglary, robbery, and tampering with physical evidence. (1) Defendant was not denied a fair trial when he was tried by a jury that was "death-qualified" under the mistaken belief that Defendant was sixteen when the crimes were committed; (2) the trial court did not err when it refused to give a reckless homicide instruction to the jury; (3) Defendant was not entitled to a directed verdict on the burglary charge ; (4) Defendant was not entitled to a directed verdict on the charge of tampering with physical evidence;  (5) the trial court did erroneously apply the sentencing statutes; (6) reversible error did not occur when the trial court allowed the introduction of a prior misdemeanor during the penalty phase of the trial; (7) the photo identification technique used by police was not unduly suggestive to one witness; (8) the prosecutor had no duty to present exculpatory evidence to the grand jury; (9) there was no prosecutorial misconduct in closing; and (10) there was cumulative effect of errors committed during the trial that amounted to a denial of due process. 2001-SC-000448-MR.pdf Size: 254 kb Date: 8/15/2003 Dailey v. Com. Criminal SC affirmed Defendant's conviction and 20 year sentence for murder.  The trial judge's did not commit reversible error in failing to instruct the jury sua sponte on first-degree manslaughter with the mitigating factor of extreme emotional disturbance (EED). 2001-SC-000747-MR.pdf Size: 676 kb Date: 8/15/2003 Stiltner v. Com. Criminal SC affirmed in part and reversed in part Defendant's conviction for conspiracy to commit murder.   (1) The trial judge erred when he refused to merge four counts of a four count conspiracy to commit murder indictment into a single count where all four counts arose from the same agreement.  In this case, the conspiracy consisted of murdering a circuit judge, a commonwealth attorney, and the commonwealth attorney's family.  Accordingly, the SC reversed the convictions on three counts and reduced the sentence from 200 years to 50 years; (2)  the Defendant was not entitled to a directed verdict on two of the conspiracy charges; (3) any introduction of improper character evidence was harmless error in light of the overwhelming evidence of guilt; (4) any error concerning the playing of surveillance tapes and recordings was harmless; (5)  the 200 year sentence did exceed the maximum allowed pursuant to KRS 532.110, but the 50 year amended sentence did not; (6) any error in placing the De fendant in handcuffs during the penalty phase was harmless; and (7) there was no abuse of discretion in a llowing the victims to testify during the penalty phase.   2001-SC-000923-MR.pdf Size: 810 kb Date: 8/15/2003 Shavers v. Com. Criminal See Shavers v. Com. , above 2001-SC-001023-MR.pdf Size: 1554 kb Date: 8/15/2003 Price v. Com. Criminal SC affirmed Defendant's convictions and 69 year sentence for multiple sexual offenses against single victim.  The SC concluded that from the victim's subjective point of view, there was sufficient evidence to support the jury's finding of forcible compulsion.   2002-SC-000033-MR.pdf Size: 683 kb Date: 8/18/2003 Shores v. Com. Criminal   SC affirmed Defendant's convictions and 60 year sentence for murder and robbery. (1) The Defendant alleged the trial court erred to his substantial prejudice by refusing to compel specific performance of a plea agreement he had reached with the Commonwealth.  The SC disagreed, stating "a plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest." Mabry v. Johnson , 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437, 442 (1984). Here, the trial court never accepted the plea agreement, nor did Appellant enter a plea. Since the plea agreement was never 'embodied in the judgment' of the trial court, Appellant cannot validly claim constitutional error.  In addition, it is within the discretion of the trial court to accept or reject a guilty plea. RCr 8 .08. If a trial court determines not to accept a defendant's guilty plea, this Court will not disturb such, unless it is clear that there has been an abuse of discretion. Skinner v . Commonwealth , Ky ., 864 S .W.2d 290, 294 (1993). (2) The trial court did not abuse its discretion when it refused to allow the avowal testimony of a witness before the jury; (3) The trial court did not abuse its discretion when it allowed evidence of a spent bullet found at the crime scene to be presented at trial; and (4) The trial court did not commit reversible error when it denied Defendant's motion for a directed verdict on the charge of first-degree robbery.   2002-SC-000052-MR.pdf Size: 998 kb Date: 8/15/2003 Cobb v. Com. Criminal  - Severance SC affirmed Defendant's convictions and 70 year sentence for Robbery, Assault, and PFO 1.  T he trial court did not abuse its discretion by denying Defendant's severance motion.  The trial court has broad discretion in granting or denying a motion for separate trials, and Appellant must show prejudice and a clear abuse of discretion to reverse the trial court's decision on appeal. Commonwealth v. Collins , Ky ., 933 S.W.2d 811 (1996); Sherley v. Commonwealth , Ky., 889 S.W.2d 794 (1994); Rearick v. Commonwealth , Ky., 858 S .W.2d 185 (1993). Offenses of the "same or similar character" may be properly joined for trial. RCr 6 .18; Cargill v. Commonwealth , Ky., 528 S.W.2d 735 (1975). "Offenses closely related in character, circumstances and time need not be severed." Sherley , supra , at 800; see also Carding v. Commonwealth , Ky., 623 S.W.2d 895 (1981). Joinder of charges is prejudicial when it is "unnecessarily or unreasonably hurtful ." Romans v. Commonwealth, Ky., 547 S .W.2d 128, 131 (1977). A significant factor in determining whether joinder would be prejudicial is whether evidence of one offense would be admissible in the trial of the other offenses. Rearick , supra , at 187. The trial court correctly found that Defendant's confession was voluntary despite his claim that he was under the influence of cocaine.  The trial court properly denied Defendant's motion to suppress victim's out-of-court identification.  SC found no possibility that the trial court's refusal to excuse Juror 938 and Juror 609 for cause interfered with Defendant's rights to an impartial jury and to his allotted number of peremptory strikes, and therefore that error, if any, does not warrant reversal.  The trial court did not err in refusing to instruct the jury as to mere theft.  T he trial court did not err in denying Defendant's request for an instruction on voluntary intoxication.  The trial court properly limited evidence to that relevant to co-defendant's motive for testifying and her credibility as a witness.  Defendant not entitled to mistrial concerning statement made to Officer.  Commonwealth's  use of a peremptory challenge did not violate Batson v. Kentucky .  Defendant was not entitled to directed verdict. 2002-SC-000222-TG.pdf Size: 469 kb Date: 8/15/2003 Foley v. Com. Criminal - Dealth Penalty SC affirmed trial court's denial of Defendant's motion for new trial pursuant to CR 60.02 and RCr 10.02.  SC had previously upheld Defendant's death sentence on direct appeal and upheld denial of RCr 11.42 motion to vacate. 2002-SC-000253-MR.pdf Size: 311 kb Date: 8/15/2003 Jackson v. Com. Criminal - Evidence - KRE 404(b) SC affirmed Defendant's conviction for murder and 33 year sentence.  T he trial court did not err in allowing testimony regarding events that occurred three days prior to the murder in violation of KRE 404(b).  KRE 404(b) states "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, this type of evidence may be admissible if it is shown there is a basis for inclusion that is independent of character and criminal predisposition. In other words, the evidence must be used "for some other purpose" than to blacken the defendant's character. KRE 404(b). The trial judge has discretion to admit evidence of prior bad acts after completing a three-pronged inquiry. Bell v. Commonwealth, Ky., 875 S .W .2d 882 (1994). First, the trial judge must determine that the evidence is relevant "for some purpose other than to prove the criminal predisposition" of the defendant. Id. at 889. Secondly, the trial judge must determine that the evidence of prior bad acts is sufficiently probative of the defendant's commission of the prior acts. Id. at 890.  Finally, the potential for undue prejudice to the defendant cannot outweigh the probative value of the evidence. Id . at 890.  T he prior bad acts of Defendant were offered for the purpose of demonstrating Defendant's malice towards the victim and his intent to kill. The trial court did not abuse its discretion in admitting the evidence of prior abuse under KRE 404(b). 2002-SC-000355-MR.pdf Size: 533 kb Date: 8/15/2003 Rivera-Cerritos v. Com. Criminal SC affirmed Defendant's conviction and 20 year sentence for murder.  1) The trial court did not err in failing to instruct the jury on extreme emotional distress and failing to explain reasonable doubt; 2) The trial court did not err in precluding Rivera from putting on evidence that the victim slept with other men; 3) No error in failing to excuse for cause a juror whose cousin works in the Fayette Commonwealth's Attorney office; and 4) No error in permitting the prosecutor to tell the jury in closing argument that the defense never questioned the accuracy of the interpretation of Defendant's statements to investigators. 2002-SC-000713-WC.pdf Size: 227 kb Date: 8/15/2003 Whittaker v. Keller Workers Compensation - Start of Disability - Final and Appealable Order   Keller was injured in January 1996.  he settled in February 1997 based on 30% occupational disability, 15% to the employer and 15% to the Special Fund.  Following subsequent surgery, he reopened in 1999.  The employer settled and ALJ Nanney awarded permanent total disability benefits.  The Special Fund appealed to the Board regarding the proper date of commencement of the PPD and credit for any overlap between the prior PPD and the award on reopening, and the Board reversed and remanded for reconsideration of the starting date of disability based on evidence other than the Form SF3A.  The Court of Appeals took the Board's decision of law to be a final order, and further decided the issue of law.  There is no rule that dictates absolute evidence as to the date of a disability's beginning.  Settlements are evidence of substance regarding the start of disability and may be considered by an ALJ.   The Supreme Court held that the Board had not entered a final and appealable order and was correct to remand to the ALJ for consideration of the settlement agreement in determining the start of disability.