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KENTUCKY APPELLATE DECISIONS
September 8 - 19, 2003
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- Kentucky SUPREME COURT Decisions
PUBLISHED - September 11, 2003
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SUMMARIES OF DECISIONS |
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1999-SC-001122-MR.pdf
Size: 1577 kb
Date: 9/15/2003
AS MODIFIED :
SEPT
11, 2003
RENDERED: AUG 21, 2003
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JACKSON
V. COMMONWEALTH
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). U nder 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.
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- Kentucky SUPREME COURT Decisions
NOT TO BE PUBLISHED - None
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SUMMARIES OF DECISIONS |
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None
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- Kentucky SUPREME COURT Decisions
PUBLISHED - September 18, 2003
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SUMMARIES OF DECISIONS |
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1998-SC-000915-MR.pdf
Size: 2422 kb
Date: 9/22/2003
AS MOD: SEPT 22, 2003
RENDERED: SEPT 18, 2003
ORIGINAL OPINION
RENDERED AUG.24, 2000
PET FOR REHEARING
GRANTED: SEPT 27, 2001 |
HOLLAND
V. COM.
CRIMINAL - Jury Instructions
SC reversed Defendant's conviction and 40
year sentence for Attempted Murder and Burglary due to
erroneous instructions. TC
's failure to define the term "voluntary
intoxication" entitled Defendant to a new
trial. This omission deprived the jury of any
basis upon which to distinguish between the statutory
concepts of voluntary and involuntary intoxication.
Error might have been compounded by prosecuting
attorney's declaration during his closing argument.
TC further commited reversible error by
denying Defendant's request (1) to incorporate
Extreme Emotional Distress (EED) as an element of
the Attempted Murder instructions; and (2) to
instruct the jury that it could find Appellant guilty
of Attempted First-Degree Manslaughter as a
lesser-included offense.
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1999-SC-001055-DG.pdf
Size: 3201 kb
Date: 9/15/2003
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FENWICK
V. FENWICK AND HUCK
CHILD CUSTODY,
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2000-SC-000950-DG.pdf
Size: 963 kb
Date: 9/15/2003
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HART
V. COM.
CRIMINAL - Evidence
In 4-3 decison, SC affirmed CA ruling
to uphold Defendant's conviction for 1st Degree
Rape. At issue in this case was the DNA
testimony offered by a KSP crime lab expert
implicating the Defendant. The expert
testified via closed circuit TV, a factor which made
the adequate presentation of certain testing
exhibits impossible. On appeal, the Defendant
asserted the omission of these items from evidence
was reversible error.
A majority of the SC held that
Defendant failed to preserve the issue for appeal by
failing to introduce the evidence by avowal and/or
failing to ask for a continuance to get said items
from Frankfort. Without avowal, the SC
reasoned it could not presume a reasonable
probability of a different outcome, and therefore,
could not presume prejudice to the Defendant.
Excellent dissent by Justice Cooper.
How could a
party offer by avowal evidence that which is in
the physical custody of the opposing party at a
place other than where the trial is being held? How
could this Court possibly hold harmless the
failure of the TC to permit defense counsel and the
jury to view and decide for themselves the
credibility of the evidence used to convict
Defendant?
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2001-SC-000431-DG.pdf
Size: 732 kb
Date: 9/15/2003
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SOMMERKAMP
V. LINTON (ROBERTS)
PEREMPTORY CHALLENGES, MEDICAL NEGLIGENCE
Defendant doctors and hospital in medical
negligence case had antagonistic interests and were entitled to separate peremptory challenges, even though there were no cross-claims
had been filed. Each of them had separate counsel, separate experts, distinct specialties, different time frames for treatment of patient, independent allegations of negligence against each of them, and the trial judge gave the jury an apportionment instruction.
COMMENTARY: Black
letter law on peremptory challenges and antagonistic
interests.
"There are three elements to be considered in determining if coparties have antagonistic interests. They are 1) whether the coparties are charged with separate acts of negligence.
Roberts v. Taylor, Ky., 339 S.W.2d 653 (1960) and
Mackey v. Greenview Hosp., Inc., Ky.App., 587 S.W.2d 249 (1979); 2) whether they share a common theory of the case.
Davenport v. Ephraim McDowell Mem'l Hosp., Inc., Ky.App., 769 S.W.2d 56 (1988); and 3) whether they have filed cross-claims.
Davenport, supra. Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment."
MIKE
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2001-SC-000458-MR.pdf
Size: 1541 kb
Date: 9/15/2003
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BROOKS
V. COM.
CRIMINAL
SC affirmed Defendant's conviction and 70
year sentence for Attempted Murder, Robbery, and
Unlawful Transaction with a Minor.
(1) The TC correctly
permitted videotaped testimony from an incarcerated
witness. TC properly exercised his sound
discretion in determining that witness was
unavailable to attend or testify because of sickness
or infirmity pursuant to RCr 7.20(1); (2) TC
properly admitted the audiotape of the
statement made by the witness to police; (3) the
closing argument by the prosecutor was not improper;
(4) TC did not deny Brooks his right to due
process when he made a determination that the
defendant was a violent offender and that the victim
suffered serious physical injury; and (5) TC
did not allow too much of a description of the prior
misdemeanor convictions of Brooks into the
sentencing portion of the trial.
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2001-SC-000722-DG.pdf
Size: 791 kb
Date: 9/15/2003
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COM.
V. BRANDENBURG
CRIMINAL - Search &
Seizure
In 4-3 decision, SC affirmed CA decision
that search warrant was invalid because it was
not issued by a detached and neutral magistrate.
The sole issue before the Court
was whether a trial commissioner who is married to
an employee of the Commonwealth Attorney's office
manifests that neutrality and detachment demanded of
a judicial officer when presented with a warrant
application for a search and seizure. SC held
that the trial commissioner, due simply to her
marital status, was not the neutral and
detached magistrate that the Fourth Amendment to the
United States Constitution, Section 10 of the
Kentucky Constitution, and the United States Supreme
Court guarantee. Accordingly, the search
warrant was invalid and Defendant's motion to
suppress is granted.
Note: This
decision immediately brought to mind Jefferson
County Commonwealth's Attorney Dave Stengel and his
wife, Jefferson District Judge Michelle Stengel.
Under this holding, any search warrant
issued by Judge Stengel in Jefferson County would
automatically be deemed invalid.
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2001-SC-000738-MR.pdf
Size: 687 kb
Date: 9/15/2003
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COCHRAN
V. COM.
CRIMINAL - Burglary -
Definition of "Dwelling"
SC affirmed Defendant's convictions and 50
year sentence for 1st, 2nd, and 3rd Degree Burglary.
Cochra n argued that the TC
erred in instructing the jury on second-degree
burglary in connection with the break-in and theft
of items from the trailer home of an
individual who had died one week prior to the
break-in and, therefore, Cochran argued that the
trailer was not a "dwelling" within the
meaning of the burglary statutes.
"A person is guilty of burglary in the second
degree when, with the intent to commit a crime, he
knowingly enters or remains unlawfully in a
dwelling." KRS 511 .030(1) "Dwelling"
is defined as "a building which is usually
occupied by a person lodging therein." KRS 511
.010(2). Under this definition, a building
does not have to be occupied at the time of the
crime charged to constitute a "dwelling ."
See Haynes v. Commonwealth, Ky., 657 S.W.2d
948, 952 (1983); 13 Am.Jur. 2d Burglary § 8. The SC
disagreed with the Defendant's argument, holding
that
given the potential for occupancy and the
sensitivities of the potential occupants, it is
reasonable to construe "dwelling" to
include buildings that have been occupied in the
immediate past by a recently deceased resident.
Thus, the TC did not err in instructing
the jury on second-degree burglary.
(3 Justices dissented to the holding
on this issue.)
Next, the TC did not err in failing
to excuse juror for cause. Finally,
Defendant did not preserve objection, and there was
no palpable error, to admission of 30 year old
conviction during sentencing phase.
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2002-SC-000004-DG.pdf
Size: 1309 kb
Date: 9/15/2003
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KENTUCKY
TRANSP. CABINET V. RJ CORMAN RAILROAD CO.
CONDEMNATION, SUMMARY JUDGMENT
SC reversed CA and returned to TC which had
granted summary judgment in favor of the commonwealth
since Defendant Corman has suffered no compensable loss as a result of the installation by the
Plaintiff of the crossings over the Defendant's railroad track and that the Defendant is
entitled to a maximum recovery of nominal damages .".
COMMENTARY: Black
letter law on
Condemnation, Compensable
Damages, Generally
- Elizabethtown & Paducah R. Co . v. Helm , 8
Bush 681 [1871]) .
"[T]he measure of damages where part of a tract of land is taken has always been the difference in market value of the tract before and after the
taking." Commonwealth, Dep't of Highways v. Sherrod
, Ky., 367 S.W.2d 844, 852 (1963) (emphasis in original).
- Commonwealth, Dep't of Highways v.
Carlisle, Ky ., 442 S.W. 2d 294, 296 (1969)
"Loss of access is not a compensable factor if the property owner retains reasonable means of ingress and
egress".
- Commonwealth, Dep't of Highways v .
Cammack, Ky., 408 S.W.2d 615, 617 (1966)
"Ordinarily, `inconvenience' is not compensable in eminent domain
cases"
- Commonwealth, Dep't of Highways v . Rogers, Ky., 399 S.W.
2d 706, 707 (1965)
"Business losses resulting from condemnation are not
compensable".
Condemnation, Compensable Damages
for Railroad
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City of Shively
v. Illinois Cent. R .R . Co., Ky., 349 S .W. 2d
682, 685 (1961)
Kentucky courts have consistently denied railroads
compensation for the maintenance of crossings and
the related safety equipment. See also Louisville
& Nashville R.R. Co. v . City of Louisville,
190 Ky . 214, 227 S.W. 160 (1921); City of
Newport v. Louisville & Nashville R.R. Co.,
174 Ky. 799, 192 S .W. 838 (1917); See also
Chicago, B. & Q. R.R. Co . v. Chicago, 166 U.S
. 226, 255, 17 S.Ct . 581, 592, 41 L.Ed . 979, 991
(1897) (denying a railroad compensation for
"erecting gates, planking the crossing, and
maintaining flagmen") ; 4A Nichols on Eminent
Domain § 15 .13[l] (3rd ed ., 1999) (noting that
"increased operating expenses resulting from
the crossing are not recoverable") ."
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2002-SC-000542-WC.pdf
Size: 833 kb
Date: 9/15/2003
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JOHNSON
V. GANS FURNITURE INDUSTRIES, INC.
WORKERS COMPENSATION
The claimant's award was entered before December 12, 1996, at which time there was no limitation on the period for reopening.
Her latest motion to reopen was filed in 2001
claiming post-award worsening of physical condition.
Worker's right to increased benefits due to her total disability had not vested, for purposes of determining whether amendment to statute limiting the time claimants could reopen an award applied to her motion to reopen her
claim. KRS 342.125(8) amendment did not violate provision in Kentucky Constitution prohibiting the legislature from passing special legislation. |
2002-SC-000695-MR.pdf
Size: 815 kb
Date: 9/15/2003
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PETERSON
V. JUDGE SHAKE
CRIMINAL - Sex Offender
Registration Act
In 4-3 decision, SC reversed CA's denial of
Defendant's Petition for Writ of Prohibition against
Jefferson Circuit Judge James Shake. Writ was
proper because Commonwealth sought felony
prosecution against Defendant under 2000 amendment
to Act when 1998 version, permitting only
misdemeanor penalty, properly applied.
Here, Defendant was released from
custody in June 1999. In late 2001, the
Kentucky State Police determined that Defendant
provided false, misleading, or incomplete
information on a sex offender registration form, and
Defendant was indicted for same.
Judge Shake determined that the 2000 version of
KRS 17.510 was applicable to the Defendant, and
thus, he was subject to prosecution for a Class
D felony instead of a Class A misdemeanor.
The CA denied Defendant's Petition for Writ of
Prohibition. Looking to the intent of the
General Assembly, the SC reversed the CA and held the
Defendant was not among the class of individuals
subject to the 2000 amendment to the Act.
Accordingly, the Defendant was only subject to
misdemeanor prosecution, and the Circuit Court was
proceeding outside its jurisdiction.
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2002-SC-000720-WC.pdf
Size: 233 kb
Date: 9/15/2003
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ROGERS
V. PALM BEACH CO., INC.
WORKERS COMP, STATUTE OF LIMITATIONS
2 year statute of limitations is not tolled by
employer's bankruptcy. |
2002-SC-000853-WC.pdf
Size: 334 kb
Date: 9/15/2003
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RIDGE
V. VMV ENTERPRISES, INC.
WORKERS COMP, JOINDER OF CLAIMS
SC affirmed dismissal of claim for back injury in
1999 on the ground that the claimant had failed to join it during the pendency of the
1998 knee injury claim as required by KRS 342.270(1). |
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- Kentucky COURT OF APPEALS Decisions
PUBLISHED - September 19 , 2003
| AOC LINKS |
SUMMARIES OF DECISIONS |
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2000-CA-000056.pdf
Size: 40 kb
Date: 9/17/2003
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SLOAS
V. ROWAN COUNTY, KENTUCKY
SOVEREIGN IMMUNITY
Prisoner had a bad day while working at the county
work program when a tree cut by another prisoner fell on
him. Prisoner sues everyone he can lay his
manacled hands upon, but all of the usual suspects were
able to escape on summary judgment based upon on
sovereign immunity - to include the county, jailer and
deputy jailer in their official capacity. Plus the
county was not vicariously liable for the negligence of
the other prisoner cutting down the tree (negligent
supervision). But (and there is always a but), a
genuine issue as to a material fact existed as to
preclude summary judgment on the prisoner's claims against jailer and deputy jailer in their
individual capacities so that this portion of
the decision will meander back down to Rowan County for
another "look see".
Reverse Commentary:
Sorry for the very breezy summary, but some days you got
to go with your gut. For the serious few,
here is what we could have said -
"CA reverses and remands so much
of summary judgment dismissing prisoner's negligence
claims against jailer and deputy jailer for injuries
sustained by falling tree cut by fellow prisoner since
genuine issues exist as to material facts surrounding
jailer and deputy jailer in their individual capacities
as opposed to their official capacities. County is
not vicariously liable for negligence of prisoner who
injures another prisioner."
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2002-CA-001656.pdf
Size: 36 kb
Date: 9/17/2003
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AMERICAN
PRINTING HOUSE FOR THE BLIND V. BROWN
WORKERS COMP
Employer's obligation to pay workers compensation
benefits were triggered on date employee
self-diagnosed her carpal tunnel syndrome and reported
the injury to her employer rather than the date she
was advised she had the injury by her physician. |
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- Kentucky Court of Appeals Decisions
NOT TO BE PUBLISHED - September 19, 2003
| AOC LINKS |
SUMMARIES OF DECISIONS |
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2001-CA-002483.pdf
Size: 29 kb
Date: 9/17/2003
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ARLINGHAUS
V. COVINGTON URBAN DESIGN & REVIEW BOARD
ZONING
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2001-CA-002691.pdf
Size: 25 kb
Date: 9/17/2003
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SPRADLIN
V. SPRADLIN
DIVORCE, PROPERTY DISTRIBUTION
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