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Around the Circuit |
House
lawmaker Feeley is named circuit judge
FRANKFORT, Ky. -- State Rep. Tim Feeley, a
Republican member of the Kentucky House, has been
appointed to a circuit judgeship, Gov. Ernie Fletcher
announced yesterday.
PS. I knew Tim when he was a Judge
Advocate at Fort Knox, Kentucky. He is hard working,
bright, conscientious, caring, and takes ethics and values
seriously. He will make a great judge.//mike stevens
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| SB 1 - KENTUCKY |
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On Friday, the State
Senate voted on Senate Bill 1. The vote was 21 yeas,
13 nays, 2 passes and 2 not voting. The bill did not
receive the required super majority (23) necessary to pass
a Constitutional Amendment.
For the Courier-Journal article on 2/19/2005:
Malpractice
measure falls short
FRANKFORT, Ky. -- A proposed constitutional amendment on
medical malpractice stalled in the Senate yesterday as
Democrats and a lone Republican blocked it. Senate
Bill 1, aimed at curbing rising malpractice insurance
rates, came up two votes short of passage. Senate
President David Williams, the bill's sponsor, vowed to
reintroduce it next year.
The actual bill
was:
AN ACT
proposing amendments to the Constitution of Kentucky
relating to health care matters.
Be
it enacted by the General Assembly of the Commonwealth
of Kentucky:
SECTION
1
. IT IS PROPOSED THAT A NEW SECTION BE ADDED TO THE
CONSTITUTION OF KENTUCKY TO BE NUMBERED 54A AND TO READ AS
FOLLOWS:
(1) As
used in this section, "health care provider"
means any person or organization licensed or certified by
the Commonwealth of Kentucky to provide health care
services and who has been designated as a health care
provider by act of the General Assembly for the purposes
of effectuating this section of the Constitution.
(2) Any
section of this Constitution to the contrary
notwithstanding, in civil actions where the act or
omission of a health care provider has been alleged to
have resulted in death or injury to any natural person,
through the provision of health care services, the General
Assembly may by general law:
(a) Where
recoverable, limit the maximum amount to be recovered for
noneconomic loss; however, no maximum amount shall be set
at an amount less than two hundred fifty thousand dollars
($250,000) for each civil action;
(b)
Where recoverable, limit the maximum amount to be
recovered for punitive damages; however, no maximum amount
shall be set at an amount less than two hundred fifty
thousand dollars ($250,000) for each civil action;
(c)
Require any party bringing a civil action subject
to this section to submit the claim of that action to a
system of alternative dispute resolution before seeking
redress in any other forum or exercising their right to a
jury trial; and
(d) Provide
for a uniform statute of limitations or statutes of
repose, or both, for any civil action subject to this
section.
(3) No
provision of this section of the Constitution shall apply
to a criminal action against a health care provider, and
the provisions of Sections 59 and 60 of the Constitution
shall specifically apply to any criminal action against a
health care provider.
Section
2
. It is proposed that Section 14 of the Constitution of
Kentucky be amended to read as follows:
Except
as provided in Section 54A, all courts shall
be open, and every person for an injury done him in his
lands, goods, person or reputation, shall have remedy by
due course of law, and right and justice administered
without sale, denial or delay.
Section
3
. It is proposed that Section 54 of the Constitution of
Kentucky be amended to read as follows:
Except
as provided in Section 54A, the General
Assembly shall have no power to limit the amount to be
recovered for injuries resulting in death, or for injuries
to person or property.
Section
4
. It is proposed that Section 241 of the Constitution of
Kentucky be amended to read as follows:
Except
as provided in Section 54A, whenever the death
of a person shall result from an injury inflicted by
negligence or wrongful act, then, in every such case,
damages may be recovered for such death, from the
corporations and persons so causing the same. Until
otherwise provided by law, the action to recover such
damages shall in all cases be prosecuted by the personal
representative of the deceased person. The General
Assembly may provide how the recovery shall go and to whom
belong; and until such provision is made, the same shall
form part of the personal estate of the deceased person.
Section
5
. This amendment shall be submitted to the voters
of the Commonwealth for their ratification or rejection at
the time and in the manner provided for under Sections 256
and 257 of the Constitution and under KRS 118.415. The
question to be presented to the voters shall read as
follows: "Are you in favor of, in civil cases
involving negligence by health care providers, permitting
the General Assembly to by General law: (1) Limit the
maximum amount to be recovered for noneconomic loss for
which the maximum amount shall not be set at an amount
less than two hundred fifty thousand dollars ($250,000)
for each civil action; (2) Limit the maximum amount to be
recovered for punitive damages for which the maximum
amount shall not be set at an amount less than two hundred
fifty thousand dollars ($250,000) for each civil action;
(3) Create statutes of limitations or statutes of repose
as to how long after the incident a law suit may be
commenced; and (4) Require alternative dispute resolution
prior to trial by jury?"
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Kentucky
Supreme Court Decisions
January 20, 2005 - 34 Decisions |
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| AOC
LINKS - FULL TEXT |
SUMMARIES OF DECISIONS |
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2003-SC-000098-MR.pdf
JUDGE: COOPER
REVERSING AND REMANDING
Date: 1/20/2005
PUBLISHED |
METCALF V. COM.
CRIMINAL - KRE 404(b) -
Prior Bad Acts
SC reversed and
remanded Defendant's convictions and 20
year sentence for one
count of sodomy in the first degree, KRS
510.070, and one count of sexual abuse
in the first degree, KRS 510.110.
Introduction of evidence of the
videotaping of S.K., the indecent
exposure, and the pornography incident,
was admitted only to show Defendant's
"lustful inclination," i.e. ,
that he was the type of person who would
likely molest the alleged victim.
TC improperly admitted the videotaping
evidence under KRE 404(b)(2), reasoning
that it was"so inextricably
intertwined" with the charged
offense that its exclusion would
seriously adversely affect the
Commonwealth's ability to present its
case.
The Commonwealth did
not fail to preserve exculpatory
evidence, and therefore, Defendant was
not entitled to suppression of his
confession. TC properly found that
that the recording device malfunctioned
and that an audible recording never
existed. Any possible prejudice
was cured by the missing evidence
instruction.
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2002-SC-000842-MR.pdf
AFFIRMING
Date: 1/20/2005
PUBLISHED |
RAMSEY V.
COM
CRIMINAL - DUI, Wanton Endangerment
In 4-3 opinion, SC affirmed Defendant's
convictions and 20 year sentence for first-degree
wanton endangerment, DUI (4th offense), driving
with a suspended license (3rd offense),
and first-degree persistent felony
offender. Defendant was not
entitled to a directed verdict on
first-degree wanton endangerment. "A
person is guilty of wanton endangerment
in the first degree when, under
circumstances manifesting extreme
indifference to the value of human life,
he wantonly engages in conduct which
creates a substantial danger of death or
serious physical injury to another
person." KRS 508.060(1).
Drunk driving with a ten-year-old child
as a passenger, under the particular
circumstances in the present case,
creates a substantial and unjustifiable
risk to that child. Further, the jury
properly found that Defendant's
wanton conduct manifested "extreme
indifference to human life.
"Finally, one
thing worthy of noting is that this
opinion should not be read as
authorization of a wanton endangerment
prosecution in every DUI violation. It
is true that the immediate public is
placed at risk whenever an intoxicated
driver enters the roadways and the crime
of DUI is always to be denounced,
however, the offense of DUI is separate
and distinct from the offense of wanton
endangerment. The sole fact of
intoxication is not enough to sustain a
conviction of wanton endangerment. As
stated above, however, the facts in this
case are so egregious as to warrant
conviction of wanton endangerment."
In his dissenting opinion, Justice
Johnstone, joined by Cooper and
Scott, stated Ramsey was entitled to a
directed verdict on the Wanton
Endangerment charge. The
dissenters believe Defendant's actions
did not create a "substantial
danger of death or serious physical
injury" required under the statute.
Note: The dissent
in this case is well-reasoned and
examines the practical ramifications of
the majority's holdings.
Specifically, the door is now wide open
for police and prosecutors to charge
Wanton Endangerment every time a drunk
driver has a passenger. This does
not mean every case will proceed to
circuit court for felony prosecution; however,
every criminal defense attorney is
aware of the practice of overcharging in
order to leverage a plea to the
lesser charge.
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2003-SC-000022-MR.pdf
Judge: KELLER
AFFIRMING
Date: 1/20/2005
PUBLISHED
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SHABAZZ V.
COM
CRIMINAL - Mistrial;
PFO
SC affirmed Defendant's convictions and
20 year sentence for two
felony drug offenses and First-Degree
Persistent Felony Offender (PFO).
Prosecutor's questions to a witness on
redirect, a prosecution witness's
answers during cross-examination, and
the prosecutor's statements during
closing argument, all concerning whether Defendant
requested that certain aspects of the
case be investigated, did not prejudice Defendant
to such a degree as to require a
mistrial. Next, there was
sufficient evidence presented to the
jury that Defendant was on probation
when he committed the crimes in this
case. Therefore, Defendant
was not entitled to a directed
verdict on the PFO charge.
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2003-SC-000359-DG.pdf
Judge: WINTERSHEIMBER
AFFIRMING
Date: 1/20/2005
PUBLISHED |
STEWART V.
COM
CRIMINAL - Parole, Recission
On discretionary review from CA, SC
affirmed Circuit Court's order dismissing
a pro se petition by Stewart
for declaratory judgment after the
Parole Board reversed its decision to
parole him. The decision of
the Board to rescind its original
recommendation for parole was not
arbitrary and based on improper
evidence. 501 KAR 1:030 § 4(2)(a)
provides that the Board may rescind a
parole recommendation any time prior to
the release of an inmate on parole.
Consequently, an inmate, who has no
fundamental right to parole, does not
have an actual expectation of parole
even after a recommendation has been
made. Clearly, the Board has the
authority to rescind any such
recommendation at any time prior to the
actual release. Finally, the
retroactive application of a Sex
Offender Treatment Program does not
create an unconstitutional ex post facto
violation. See Garland v.
Commonwealth, 997 S.W.2d 487 (Ky.App.
1999).
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2003-SC-000237-MR.pdf
Judge: COOPER
REVERSING AND REMANDING
Date: 1/20/2005
PUBLISHED |
TERRY V. COM
CRIMINAL - Hearsay
In 5-2 decision, SC reversed and
remanded Defendant's convictions and 45
year sentence for murder,
robbery in the first degree, and wanton
endangerment in the first degree.
TC improperly permitted hearsay evidence
concerning the crime scene from
non-testifying accomplice in violation
of Bruton v. United States, 391
U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968). The
statement was not admissible as an
adoptive admission. Next, witness'
testimony that non-testifying accomplice
told her that Defendant had used
his gun to kill the victim also did
not fall under any exception to the
hearsay rule. Moreover, TC's retroactive
exclusion of this evidence pursuant to
objection was too inflammatory to be
cured by an admonition.
On retrial, TC should
heed the principles enunciated in United
States v. Slone, 833 F.2d 595, 597
(6th Cir. 1987) concerning TC's
questioning of witness. Here,
TC asked witness 103 questions following
direct examination by Commonwealth.
KRE 614(b) provides that "[t]he
court may interrogate witnesses, whether
called by itself or by a party."
Principles stated in Slone
are as follows: "First, in a
lengthy, complex trial, judicial
intervention is often necessary for
clarification. Second, if the attorneys
in a case are unprepared or obstreperous
or if the facts are becoming muddled and
neither side is succeeding at attempts
to clear them up, judicial intervention
may be necessary for clarification.
Third, if a witness is difficult, if a
witness' testimony is unbelievable and
counsel fails to adequately probe, or if
the witness becomes inadvertently
confused, judicial intervention may be
needed."
Note:
This
opinion reaffirms the principles stated
in Bruton v. United States, supra,
Lilly v. Virginia, 527 U.S.
116, 119 S.Ct. 1887, 144 L.Ed .2d 117
(1999), and Crawford v.
Washington, 541 U.S. 36,124 S.Ct.
1354, 158 L.Ed .2d 177 (2004). At
the same time, the opinion acknowledges
the death knell for Taylor v .
Commonwealth, 821 S.W.2d 72 (Ky .
1990) ("Taylor I ") and Taylor
v. Commonwealth, 63 S.W .3d 151,
166-68 (Ky. 2001) ("Taylor II
").
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2001-SC-001054-MR.pdf
Judge: JOHNSTONE
AFFIRMING IN PART AND VACATING AND
REMANDING IN PART
Date: 1/20/2005
TO
BE PUBLISHED
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TURNER V. COM
CRIMINAL - Wanton
Murder
In 4-3 decision, SC affirmed in
part and vacated and remanded in part
Defendant's convictions and 40 year
sentence for wanton murder, burglary in
the second degree, and theft by unlawful
taking. SC vacated Defendant's
conviction for wanton murder. The
evidence was insufficient to sustain a
wanton murder conviction, and therefore
the trial court erred in denying
Defendant's motion for a directed
verdict.
KRS 507.020(1)(b), which
states that a person is guilty of murder
when "under circumstances
manifesting extreme indifference to
human life, he wantonly engages in
conduct which creates a grave risk of
death to another person and thereby
causes the death of another
person." KRS 501.020(3) defines
"wantonly" as follows :
A
person acts wantonly with respect to a
result or to a circumstance described by
a statute defining an offense when he is
aware of and consciously disregards a
substantial and unjustifiable risk that
the result will occur or that the
circumstance exists. The risk must be of
such nature and degree that disregard
thereof constitutes a gross deviation
from the standard of conduct that a
reasonable person would observe in the
situation.
SC concluded that the
Commonwealth failed to satisfactorily
establish this element of the crime. No
evidence was presented that Defendant
was aware of Mr. Russell's heart
condition; in fact, Mr. Russell's own
son testified that even he was unaware
of his father's condition. Nor can it be
argued, as the Commonwealth maintains,
that Defendant should have been aware
that her conduct would cause Mr. Russell
to have a heart attack.
Commonwealth also failed to provide
sufficient evidence to support the
conclusion that Defendant's conduct
manifested the requisite extreme
indifference to human life.
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2004-SC-000263-MR.pdf
Judge: KELLER
AFFIRMING
Date: 1/20/2005
PUBLISHED |
NEWELL
ENTERPRISES, INC. V.
HON. JAMES BOWLING, JR.
EXTRAORDINARY REMEDIES - cONTEMPT
PROCEEDINGS
Supremes affirmed COA's
findings that Appellants had failed to show that they had
no adequate remedy by appeal and that they would suffer great and irreparable harm
regarding contempt order in trial court.
Because almost any contempt finding by the circuit court would be appealable, the remedy of a writ is inappropriate.
In a piece of advice to
the lawyers, the Supreme then added at the
end of their opinion:
"Finally, we note that Appellants would have been better served by proceeding
under the first class of writ cases, i.e., where the lower court is proceeding outside its
jurisdiction, because it appears that the circuit court in this case has done exactly that
with the order it entered on December 8, 2003 . "In simple terms, jurisdiction is `[a]
court's power to decide a case or issue a decree."'22 Jurisdiction, however, consists of
three separate elements: "(1) jurisdiction over the person, (2) jurisdiction over the
subject matter, and (3) jurisdiction to render the particular judgment sought, or as
is sometimes said, jurisdiction of the particular case ."23 This case appears to fail this third
prong because the civil case in which the order and Concrete Products's motion for
contempt were filed had already been dismissed with prejudice by the entry of the
"Judgment Pro Confesso" in August 2003 and Concrete Products had not filed a
separate civil suit over the alleged new breach of the non-compete agreement.
Because the civil action was no longer pending before the circuit court, the circuit court
had no jurisdiction to take any action in the case.
Appellants, however, have not raised this issue. And though in the context of a
writ case where the lower court was acting outside its jurisdiction our predecessor court
noted that "it would be a most inept ruling to deny the writ, require a trial
on the merits, and then on an appeal be forced to reverse the case," 24 it also noted that "question [of jurisdiction] is squarely presented"25 and that jurisdiction was "the very question . . .
before [the Court] ."26 Thus, because the issue is not before us and was never even
presented to the Court of Appeals, we cannot reverse the denial of the writ on this
ground ."
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2002-SC-000204-TG.pdf
Judge: KELLER
AFFIRMING 2001-1032-DG
REVERSING AND REMANDING IN 2002-SC-0204-TB
Date: 1/20/2005
Companion Case
REVENUE
CABINET V. O'DANIEL SR.2001-SC-001032-DG.pdf
Judge: KELLER
AFFIRMING
Date: 1/20/2005
PUBLISHED
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REVENUE
CABINET V. CURTSINGER
REVENUE AND TAXATION
This combined decision addresses two cases with similar circumstances. In both instances, consumers purchased automobiles in late-December 1994, but did not register the vehicles until after January 1, 1995. KRS 186A.095 allows a 15-day grace period for car buyers to register their vehicles. Ad valorem taxes, at the time, were assessed on vehicles on file with Kentucky's automated vehicle registry as of January 1. Accordingly, neither O'Daniel nor Curtsinger's vehicles were initially assessed since they were not registered on January 1, 1995. The Revenue Cabinet, acting under a new policy that tax liability attached at sale rather than registration.sent 1995 tax bills in October 1996 to the owners of as many as 8,000 vehicles. Curtsinger and O'Daniel challenged the tax bills in separate cases that were eventually combined during the appeals process.
The Supreme Court relied upon the plain language if KRS 134.810(4) and 186.021(2) which, at the time, both stated that "the owner of record on January 1 of any year shall be liable for taxes" on the motor vehicle. In affirming that Curtsinger and O'Daniel bore no tax liability, the Supreme Court stated: "[T]he legislature demonstrated its intent to limit the meaning of "owner" for the purpose of tax liability only to the owner of record on January 1. [...] [The taxpayers in this case] did not hold legal title to the vehicle on that date. Thus they are not liable for the taxes."
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2004-SC-000162-WC.pdf
AFFIRMING
Date: 1/20/2005
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AK
STEEL CORP V.
JOHNSTON
WORKERS COMP - HEARING LOSS
This is an important case regarding
hearing loss claims in workers'
compensation. Because KRS
342.0011(1), the definition of "injury",
excludes effects of the natural aging
process as a compensable injury, employers
have sought to exclude part of the
impairment rating under the AMA Guides for
hearing loss on the basis that some part
of the hearing loss is attributable to the
natural aging process. The Supreme
Court rejected this contention, holding
that apportioning part of a person's
hearing loss to the natural effects of
aging is speculative, and also finding
that the specific statute on hearing loss
does not exclude the effects of the
natural aging process. The Court
cited extensively to the AMA Guides, which
allow for increases of impairment
for tinnitus (a condition specifically
excluded by the statute) and for
presbycsis, which is an age related
condition. Noting that the hearing
loss statute did not contain an exclusion
for age related impairment, but did
exclude tinnitus, and that it contained a
presumption of work-relatedness, as well
as a threshold requirement of 8%
impairment to the body as a whole to make
the hearing loss compensable, the Court
relied on the specific statute rather than
using the more general definition of "injury"
in KRS 342.0011.
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| NON-PUBLISHED
DECISIONS OF KY SUPREME COURT FOR JAN 20,
2005 |
2002-SC-001090-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
BAILEY V.
COM
CRIMINAL - Voir Dire; Batson challenge
SC affirmed Defendant's convictions and
20 year sentence for two
counts of Wanton Endangerment, one count
of First-Degree Possession of a
Controlled Substance, Firearm Enhanced,
one count of Possession of Marijuana,
Firearm Enhanced, one count of
Possession of Drug Paraphernalia,
Firearm Enhanced, and being a
Second-Degree Persistent Felony.
TC's findings that the black jurors in
question were struck for valid
non-racial reasons were not clearly
erroneous and not in violation of Batson
v. Kentucky, 476 U .S. 79, 106 S
.Ct. 1712, 90 L.Ed.2d 69 (1986).
In Batson,
the United States Supreme Court held
that the use of peremptory challenges to
strike jurors solely on the basis of
race violated the Equal Protection
Clause of the Fourteenth Amendment. The
Supreme Court then set forth a
three-step inquiry for evaluating such
challenges to the composition of a jury
where it is alleged that peremptory
challenges have been used in a racially
discriminatory manner: (1) the defendant
must make a prima facie showing that the
peremptory challenges in question are
racially biased; (2) upon such a
showing, the burden of proof shifts to
the state to provide neutral reasons for
the challenges; and (3) the trial court
is then required to evaluate the stated
reasons to determine if discrimination
occurred.
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2003-SC-000131-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
BLEVINS V.
COM
CRIMINAL - Robbery
SC affirmed Defendant's convictions and
30 year sentence for first
degree robbery and being a
first-degree persistent felony offender.
First degree robbery instruction was
proper. Defendant was not denied a
fair trial and his right of
confrontation by prosecutor's redirect
examination of witness. TC
properly denied Defendant's motion to
suppress his confession.
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2004-SC-000047-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
EDWARDS V. COM
CRIMINAL - Search
Warrant; Confidential Informants
SC affirmed TC's denial of Defendant's
motion to suppress and motion to compel
the disclosure of confidential
informant's identity. SC properly
found that the confidential informant
was not needed in the prosecution of the
case, and that the controlled buys were
one of several factors that the officer
used to obtain the search warrant.
The trial court does not
have a duty to disclose the identity of
a confidential informant at a pretrial
hearing, and the process due at a
suppression hearing may be less
demanding than that of the trial itself.
United States v. Raddatz, 447 U
.S. 667, 679, 100 S.Ct . 2406, 65 L.Ed
.2d 424 (1980). Further, KRE 508 grants
a privilege to the Commonwealth to
refuse to disclose the identity of a
confidential informant.
"Exceptions to the privilege occur
when the disclosure is voluntary, when
the informant is a witness and when the
testimony of the informant is relevant
to an issue ." Taylor v.
Commonwealth, 987 S.W.2d 302, 304
(Ky. 1998). None of the exceptions
applied in this case.
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2003-SC-000742-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
FIELDS V.
COM
CRIMINAL - EED
SC affirmed Defendant's convictions and
35 year sentence for Murder and
Tampering with Physical Evidence.
TC properly denied
Defendant's request to instruct the jury
on extreme emotional disturbance (EED)
as an element of first-degree
manslaughter. TC did not abuse its
discretion in considering other
impact statements from other individuals
affected by the crime.
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2004-SC-000271-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
JOHNSON V. COM
CRIMINAL - Prior Bad
Acts
SC affirmed Defendant's convictions and
25 year sentence for first
degree rape and first degree sexual
abuse. SC rejected Defendant's
contention that he was entitled to
reversal due to witness' answer
that was non-responsive to the question
posed by defense counsel and in that
answer offered testimony that was of an
inadmissible nature under KRE 404(b)
because it referred to an alleged prior
bad act. Alleged error was not
preserved and did not rise to palpable
level. "We do not
believe, in view of all of the evidence
presented by the Commonwealth, namely
the context in which the statement was
made, how quickly the judge stopped his
testimony as soon as he mentioned the
alleged assault, the admonition offered
to cure any possible defect and
Appellant receiving the exact relief he
requested, that Appellant was unduly
prejudiced by Timothy Scott's comment.
We do not believe that the result would
have been any different had it never
been introduced."
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2002-SC-000966-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
McGOWAN V.
COM
CRIMINAL - Prosecutorial Misconduct
SC affirmed Defendant's conviction and
50 year sentence for Murder.
Defendant was not entitled to a mistrial
when witness stated she
came forward because she wanted the
world to know that the defendant
murdered her baby. Any error
concerning Defendant's failure to give a
statement to police was cured by TC's
admonition. There was no
prosecutorial misconduct despite
numerous objections by the defense
during trial.
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2002-SC-000527-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
MILLER V. COM
CRIMINAL - Directed Verdict
SC affirmed Defendant's convictions and
30 year sentence for three counts of
first-degree assault. Defendant
was not entitled to directed verdicts as
Commonwealth submitted sufficient proof
of serious injury. Defendant did
not preserve claim that he was entitled
to directed verdict due to extreme
emotional disturbance. No
entitlement to directed verdict due to
insanity. No entitlement to
instruction on voluntary intoxication.
There was no prosecutorial misconduct
despite various allegations by
Defendant. TC properly denied
Defendant credit for time spent in home
incarceration prior to trial. Buford
v. Commonwealth, 58 S.W.3d
490 (Ky. App. 2001).
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2003-SC-000435-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
PAYNE V. COM
CRIMINAL - Prior Bad
Acts
SC affirmed Defendant's convictions and
30 year sentence for four counts of
first degree rape. Defendant was
not entitled to reversal despite
allegations of improper introduction of
prior bad acts. Several
allegations were not properly preserved
for appeal. The
evidence of Payne's sexual assaults was
admissible to prove intent, as well as
motive and plan, with respect to the
first-degree rape charge. TC did
not abuse his discretion in allowing the
videotape of Defendant's confession to
be introduced or played for the jury.
Any error concerning the Commonwealth's
erroneous interpretation of the
inaudible portion of the videotape was
harmless. Any error concerning the
introduction of investigative hearsay
was harmless. Defendant was not
entitled to a directed verdict of
acquittal.
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2003-SC-000803-MR.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
PRITCHARD
V. COM
CRIMINAL - Prior Consistent
Statement
SC affirmed Defendant's conviction and
20 year sentence for first degree
robbery. TC
properly allowed a witness's police
statement to be admitted into evidence
as a prior statement. KRE
801A(a)(2) allows the trial court to
admit statements that are consistent
with the declarant's testimony when the
statements are offered to rebut an
express or implied charge against the
declarant of recent fabrication or
improper influence or motive. "This
is precisely the circumstance in the
case at bar, as the Commonwealth only
sought to introduce the police statement
after defense counsel accused Ms . Van
Winkle of recent fabrication."
Any error during prosecutor's closing
argument did not rise to palpable level.
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2004-SC-000188-WC.pdf
2004-SC-000146-WC.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED |
ADVANCE
AUTO PARTS V. MATHIS
WORKERS COMP- AMA GUIDE IMPAIRMENT RATING
- AWARD OF TTD BENEFITS
This case was appealed by the employer,
who questioned the ALJ's reliance on a
doctor who gave a 15% impairment rating,
when the AMA Guides authorized only a 5%
impairment rating. The Court stated
that the 15% rating was valid, without
going into the details of the AMA Guides.
The claimant's cross-appeal argued
that he should have been awarded a total
disability. It is clear that the ALJ's
decision "split the baby" by giving the
highest AMA rating, and using the triple
multiplier for inability to return to
former employment, but denying a total
disability. The Supreme Court's
decision grants the ALJ discretion to do
this. Although the ALJ might have
rejected the 15% impairment, he was not
required to do so by making an independent
analysis of the AMA Guides. Also
rejected was the claimant's argument that
TTD should have been awarded for certain
periods of time. The Court found
that there was not sufficient evidence to
compel an award of TTD for these periods.
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2003-SC-001046-WC.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED
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CALDWELL
V. NALLY AND HAMILTON
ENTERPRISES, INC .
WORKERS COMP - SUBSTANTIAL EVIDENCE
The claimant appealed this case after
the ALJ allowed evidence to be introduced
at the last minute on behalf of the
Defendant, without opportunity for
cross-examination or rebuttal. She
dismissed the claim on the basis of that
evidence. However the Board remanded
and the claimant got his opportunity for
rebuttal and cross, but only introduced
rebuttal testimony. The ALJ
dismissed the claim again.
This time, it went up on the question of
whether there was substantial evidence to
support the denial of benefits. The
Court of Appeals and Supreme Court found
that there was, and therefore affirmed.
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2004-SC-000338-MR.pdf
2004-SC-000291-WC.pdf
AFFIRMING
Date: 1/20/2005
NOT TO BE PUBLISHED
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CRUSE
V. ARISTECH CHEMICAL CO.
WORKERS COMP - REOPENING
This appeal involves the timeliness of a motion to reopen. Reopenings were limited to four years after the original award or before December 12, 2000 by a change in the law in 1996. The original award was a settlement in 1990, which was later increased to a total disability in 1994. In 1997 the award was reduced to a partial disability and then the claimant underwent additional surgery in 1999. He moved to reopen, but the claim was not ruled upon until 2001, when it he renewed his motion to reopen and it was ruled untimely. The Court held that the 1998 motion was not a motion for increased disability, but was to resolve a medical fee dispute, and affirmed the finding that the 2001 motion was untimely.
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2004-SC-000145-WC.pdf
Judge: 312 kb
Date: 1/20/2005
NOT TO BE PUBLISHED
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TRANSPORT
CORP. V. LOVELY
WORKERS COMP - STATUTE OF
LIMITATIONS
This claim involves the tolling of the
statute of limitations due to the
voluntary payment of TTD benefits. The
two year statute of limitations runs from
the date of the injury or the date of the
last payment of TTD benefits, whichever is
later. KRS 342.185(1) . In
this claim, the insurance company paid TTD
benefits, then later discovered that the
rate at which it paid was too low and
issued an additional check. The
claim was filed within two years of the
date the underpayment of TTD check was
issued, but later than two years after the
regular payments of TTD stopped. The
ALJ held that the claim was not barred,
and the Board, Court of Appeals, and
Supreme Court affirmed.
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