CA affirmed TC's denial of Ford's motion for postconviction relief pursuant to CR 60.02.  Ford pleaded guilty in March 2001 to two counts each of Kidnapping and Complicity to Commit Murder and was sentenced to life in prison without the possibility of parole.  He later filed an RCr 11.42 motion alleging that his counsel was ineffective by failing to advise TC that Ford was not competent to enter a guilty plea.  After an evidentiary hearing at which Ford's trial counsel produced a psychiatric report (written months before the plea) expressly ruling out any psychological-legal defense, TC denied the motion.  Ford then filed the present motion under CR 60.02(a), asking that another evidentiary hearing be granted and that counsel be appointed to represent him at the hearing.  TC denied the 60.02 motion because Ford's allegation that he was incompetent to enter a guilty plea was without merit.  On appeal, CA affirmed because there was no abuse of discretion.

CA affirmed TC's ruling denying Graves' motion for posconviction relief under RCr 11.42.  Following a jury trial, Graves was convicted of two counts of Capital Murder and was sentenced to life in prison without the possibility of parole for 25 years.  The Kentucky Supreme Court later affirmed his conviction on direct appeal.  Graves ultimately filed the present motion alleging that his trial counsel was ineffective for failing to relay a plea offer from the Commonwealth of 65 years.  Following an evidentiary hearing, TC found that trial counsel had timely notified Graves of the offer.  Consequently, it denied the 11.42 motion.  CA found no abuse of discretion under the circumstances. 

CA reversed and remanded Groce's conviction for Fleeing and Evading Police in the First Degree.  The case arose when Groce's mother-in-law called 911 to report that Groce had slapped his 4-year old daughter on the arm leaving a red mark.  Groce fled the home before police arrived but later spotted him driving a white Neon.  He then led police a high-speed chase, passing other vehicles across double yellow lines.  Police ultimately lost sight of the Neon but were able to arrest Groce the next day at his home.  Groce was indicted for Fleeing and Evading under KRS 520.095 but the indictment omitted the language in subsection (a)(1) regarding flight "immediately after committing an act of domestic violence."  At trial, the Commonwealth nonetheless introduced evidence, including inadmissible hearsay statements, to support this prong of the Fleeing and Evading statute.  Groce's trial counsel (gulp) failed to object.  At the close of the Commonwealth's proof, the prosecutor moved to amend the indictment to include the language from KRS 520.095(1)(a)(1).  Groce's trial counsel (gulp) agreed to the amendment but moved for a directed verdict based on insufficiency of the evidence to support a conviction.  The motion was denied.  Groce's trial counsel then (gulp again) failed to renew the directed verdict motion after the defense proof and after the Commonwealth's rebuttal proof.  The jury then convicted Groce of Fleeing and Evading in the First Degree and recommended 5 years -- the maximum.  On appeal, CA held that there was insufficient evidence to show that Groce had inflicted a "physical injury" on a family member as the term is defined in KRS 500.080.  However, because trial counsel failed to renew his directed verdict motions, this issue was not properly preserved for review.  Nonetheless, the Court used the palpable-error rule in its analysis, stating that the defendant was deprived of a unanimous verdict of guilt.  Because there were two primary theories of guilt under the instructions -- one of which was unsupported by the evidence in the Court's view, it was not possible to determine which one the jury used to reach its verdict.  Therefore, the unanimous verdict requirement under RCr 9.82 was violated.  Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978).      

Editorial Note:  The result here was surprising given that the jury apparently gave significant weight to the eyewitness testimony that Groce struck his 4-year old child, leaving a red mark.  There was also a hearsay statement from the child that "Daddy hurt me."  Despite all of this, the CA determined that there was insufficient evidence to prove "substantial physical pain or any impairment of physical condition."  Scratch your head on that one.  Apparently, the Court was skeptical of the mother-in-law's testimony because the police were unable to interview the child-victim, there was no medical exam of the child, and the child did not testify at trial.  Such circumstances are typical in domestic-violence scenarios.     

The opinion also offers lessons for prosecutors and defense attorneys alike.  Prosecuting 101: Be sure to include the "entire" text of the statute defining the offense to be charged in the indictment.  The prosecutor in this case failed to do so and attempted to remedy this problem by amending the indictment during trial.  Judges are understandably leery of such amendments because of constitutional ramifications, particularly the defendant's right to fair notice of the charges against him and his right to cross examine the witnesses against him.  Defense 101: Always move for a directed verdict after the close of the Commonwealth's proof, the defendant's proof (if any), and any rebuttal proof.  Failure to do so will likely mean that issues are not preserved for appellate review.  Baker v. Commonwealth, 973 S.W.2d 54 (Ky. 1998).  Also, always object to the Commonwealth's motion to amend the indictment during trial.  Such motions usually mean that the prosecution made a charging mistake and is trying to clean up the mess.     

This appeal arises from a highly publicized case in which Hardin, a juvenile, was convicted of Wanton Murder and sentenced to 22 years in prison.  Hardin and his brother were playing with a loaded firearm when the gun fired and killed his brother.  He was later tried in circuit court pursuant to an automatic transfer statute.  Upon his conviction, TC remanded Hardin to the custody of the Department of Juvenile Justice because he was a youthful offender.  When he turned 18, Hardin was sentenced as an adult and granted supervised probation.  After violating the conditions of his probation, Hardin was later revoked and sentenced to serve the balance of his 22 year term.  Within the requisite statutory period, Hardin asked TC to grant him shock probation.  TC denied the motion, stating that Hardin was not eligible because of the nature of his conviction.  CA vacated and remanded for a determination of the merits of Hardin's shock probation motion.  The Court held that shock probation is an option for youthful offenders pursuant to KRS Chapter 640.  It further noted that an order denying shock probation is appealable when the ruling is not based on a review of the merits.  And finally, it held that a juvenile's "age of majority hearing" is a resentencing hearing for purposes of the shock probation statute. 

At issue is whether an attorney who recommends a guilty plea to an amended lesser offense which the defendant could not be found guilty of renders ineffective assistance. The facts in the case at hand establish that Hawks could have been convicted of a Class C felony; however, he was allowed to plead guilty to a Class D felony. Consequently, the trial court correctly decided that Hawks’ trial counsel did not render ineffective assistance.

Affirmed denial of RCr 11.42 that he claimed that his attorney had coerced him into entering the guilty plea, and had failed to investigate evidence that could have exculpated him. 

Held prosecution’s statement regarding defendant's prior bad acts was inappropriate, but the court’s admonition to the jury cured any negative effect the comment may have had.

(5) the length of time between the crime and the confrontation.

Kentucky courts have also considered whether other evidence tends to corroborate the witness's identification.

2003-CA-001317.pdf
Judge: KNOPF
AFFIRMING
Date: 3/18/2005
NOT PUBLISHED

BALL  V.   BALL
FAMILY LAW - MAINTENANCE

Wife appealed from TC’s order reducing Husband’s monthly maintenance obligation and allowing husband to set off maintenance arrearages with his share of equity in the marital residence.   Because Husband had filed a Chapter 7 bankruptcy during the pendency of the divorce, Mom claimed that Trustee had taken possession of husband’s marital equity in the house so that it was no longer Husband’s to give.  CA noted that discharge is not the only possible disposition of property in bankruptcy so no reason to presume Husband’s loss of the property.  Mom next argued that allowing the marital equity set-off in effect “discharged” Husband’s maintenance obligations, in contravention of the federal bankruptcy statutes.  CA found this argument weaker than the first, as Husband still had to pay the arrearages.  TC affirmed.

2004-CA-001001.pdf
Judge: EMBERTON
AFFIRMING
Date: 3/18/2005
NOT PUBLISHED

HORSTMAN    V.   CRAWFORD
FAMILY LAW - CUSTODY

Pro se Dad appealed TC’s order denying his motion to modify custody of parties’ children from sole with Mom to joint.  However, because the record on appeal contained no transcript or video record of the hearing below, and no designation of record was filed as provided for in CR 75.01, CA concluded that “no basis for disturbing the decision of the trial court ha[d] been demonstrated.”  CA then comforted Dad with the knowledge that, based on the pleadings, affidavits and reports, Dad would have lost anyway.   TC affirmed.

CA dismisses would-be adoptive parents' appeal as interlocutory in this adoption case. 

Appellants filed for adoption of child after being granted permanent custody in a dependency action.  As part of the dependency action, the child's biological maternal grandfather (MGF) was granted visitation. Later, MGF's motion to intervene in adoption action was granted; this appeal followed. 

The Supreme Court has previously stated that a minor child's biological relatives have a sufficient legal interest in an adoption to be entitled to intervene as a matter of right. The TC's order to that effect in this action, however, did not adjudicate any right of any party in the action and was therefore unappealable. (Denial of a motion to intervene as a matter of right is appealable, however.) 

CA affirms judgment in favor of agent and insurer in this bad faith action. 

Appellants claimed they purchased insurance on a motorcycle involved in an accident, but that insurer failed to defend and indemnify, resulting in a judgment lien being placed against their property. They claim the agent either failed to purchase the policy after the premium was paid or cancelled it without authorization. Agent claims it was appellants' frequent practice to add and drop vehicles on their policies and that the motorcycle involved was actually added to a preexisting policy as an endorsement and that coverage ended at the end of the preexisting policy period. The agent's secretary had sent an insurance card with the incorrect policy period date on it, but had sent a correction and the insured was sent several renewal reminders, but chose not to renew. The accident occurred one week after the policy lapsed. The TC jury verdict was for the agent and insurer.

Appellants challenged the jury instructions, hearsay evidence and the insurer's notice of cancellation. CA found no error in the instructions; that policy documents were properly admitted under the business records exception to the hearsay rule; and that notice of lapse for nonpayment was proper.
 

GREENWELL    V.   UNIFIED FOOD SERVICE PURCHASING CO-OP, LLC
LABOR AND EMPLOYMENT - Retaliation 
Appellant was employed as an accountant for Appellee (Unified Food Service Purchasing).  She testified for another employee of Appellee in an unemployment hearing.  The other employee filed a reverse discrimination suit against Appellee and the parties to that suit orally stipulated the testimony in the unemployment hearing would be relevant to the reverse discrimination suit.  The employee's suit settled and was dismissed.  Shortly after Appellant testified, Appellee notified Appellant that she had breached corporate confidentiality.   Several managerial duties were taken away from her and she filed suit against Appellee alleging retaliation under the KCRA, that Appellees violated public policy and IIED.  Before trial, the TC granted a motion in limine in favor of Appellees regarding an issue of attorney-client privilege.  The COA upheld the ruling.

After presentation of Appellant's case, Appellees moved for a directed verdict on all claims which the TC granted.  Using the Brooks test to review Appellant's retaliation claim, the COA held Appellant's testimony in the unemployment hearing was a protected activity.  Specifically, the COA, citing a second circuit decision and   Johnson v. Univ. of Cincinnati,  215 F.3d 561 (6th Cir.  2000) held it was required to construe the participation clause broadly.  Therefore, Appellant had participated in a protected activity (by virtue of her testimony in the unemployment hearing, the oral stipulation of the parties to use that testimony in the civil rights case and the subpoena in the civil rights case). Continuing it's analysis,  the COA found Appellant had experienced adverse action as a result of her participation and there was a causal connection between the adverse action and participation in the protected activity. 

The COA upheld the TC's grant of a directed verdict in favor of Appellee on Appellant's IIED because Appellant had not established a prima facie case under Kentucky law.

Denney's filed claim to quiet title to 3 tracts.  First TC judge ruled in favor of Southwoods.  First TC judge then replaced and second judge alters judgment in favor of Denney's.  Multiple issues arise including claim that judge should recuse himself, however, COA held that TC was not clearly erroneous on substantive issues.

COA reversed based upon apportionment of fault and no setoffs.

"It is well-established that fault must be apportioned among “each claimant, defendant, third-party defendant, and person who has been released from liability” and that the liability of each is limited to the degree of fault apportioned to each. Stratton v. Parker, 793 S.W.2d 817, 820 (Ky. 1990).
It is equally clear that liability shall be imposed in proportion to fault, without regard to whether a particular tortfeasor was named as a party to the action. Floyd v. Carlisle Construction Co., 758 S.W.2d 430 (Ky. 1988).
In Central Kentucky Drying Co. v. Dept. of Housing, Building and Construction, 858 S.W.2d 165 (Ky. 1993), the Supreme Court specifically addressed setoffs against damage awards and held that Stratton precludes consideration of a setoff for amounts paid by settling tortfeasors. The Court reasoned: If we were to hold otherwise . . . there would be a real chilling effect on voluntary settlements of claims. Non-settling
defendants would always get the benefit of set-offs from overpayments by settling defendants, but would never have to pay more than their apportioned share, even if there was an underpayment by the settling
defendant. Central Kentucky Drying Co., 858 S.W.2d at 168. We view the
rule enunciated in Stratton, Central Kentucky Drying Co. and Floyd as broad enough to encompass the circumstance presented in the case sub judice.
Here, two of the five tortfeasors chose to settle with appellant before he filed the complaint in the circuit court. Nathan, Corey, and Ian chose to litigate rather than settle their claims and should not be permitted to benefit from the purported overpayment made by the settling tortfeasors."

Interesting footnote 4 in the opinion - " No party to this appeal has raised the issue of whether this statute is applicable to damages arising from intentional torts. At least one Kentucky Court has applied this statute to intentional tort claims, holding joint and several liability claims are not available for intentional torts. Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky.App. 1998). However, the prevailing view in most jurisdictions is that comparative negligence principles are not applicable to intentional torts and thus joint and several liability would be applied to intentional tort damage claims. See Allan L. Schwartz, Annotation, Applicability of Comparative Negligence Principles to Intentional Torts, 18 A.L.R.5th 525 (2005)."

You got to wonder about dictum in the footnote of an unpublished opinion and the reasons behind the comment (thrice-removed from binding precedent with no useful purpose in mind).  It almost sounds like a appellate gotcha that serves no useful purpose then to lay the foundation for an unhappy client and a little rubbing of salt into the jurisprudential wound.