| PUBLISHED
DECISION FROM KY SUPREME CT. FOR APR.
21, 2005 |
2004-SC-001035-KB.pdf
Date: 4/21/2005
|
KBA
CLE
V. PETER C. BROWN
ATTORNEY CONTINUING EDUCATION |
2000-SC-000799-KB.pdf
Judge: 443 kb
Date: 4/21/2005
PUBLISHED |
STEPHEN
R. DUNN V. KBA
ATTORNEY DISCIPLINE |
2003-SC-000996-KB.pdf
Date: 4/20/2005
|
MELISSA
HAGGARD V. KBA
ATTORNEY DISCIPLINE
|
2002-SC-000595-KB.pdf
Date: 4/21/2005
|
ARTHUR
W. PULLIAM
ATTORNEY DISCIPLINE |
2004-SC-001088-KB.pdf
Date: 4/21/2005
|
TAYLOR
STRASSER V. CHARACTER
FITNESS COMMITTEE OF KBA
ATTORNEY - ADMISSION AND CHARACTER AND
FITNESS |
2003-SC-000103-MR.pdf
Judge: WINTERSHEIMER
AFFIRMING
Date: 4/21/2005
|
ALLEY
V. COM
CRIMINAL
SC affirmed Defendant's
convictions and life sentence without
parole for 25 years for murder and
assault - 4th degree. TC
properly found Defendant was competent
to stand trial. In
Kentucky, the standard of competency
is whether the defendant has a
substantial capacity to comprehend the
nature and consequences of the
proceedings against him and to
participate rationally in his defense.
The decision of the trial judge was
supported by substantial evidence and
was not clearly erroneous.
Alley was not entitled to a hearing on
the issue of whether
the defendant should be forcefully
medicated. The trial judge did
not err in denying relief on the
grounds that the motion was not
properly before him. Alley
had sufficient notice of the
aggravating circumstance used to
enhance his sentence eligibility.
Alley was not entitled to a directed
verdict of acquittal on the burglary
aggravator. Given the totality
of the circumstances, Alley failed to demonstrated
that the prosecutor's comments
during closing arguments were
prejudicial or sufficient to affect
the outcome of the trial or the
penalty. Even though the
instructions might have been drafted
more concisely, the jury had
sufficient information so as to decide
the appropriate and available
penalties.
P.S. The Commonwealth's
closing arguments were:
"Essentially the prosecutor
stated that life without the
possibility of parole for 25 years
would be a correct verdict and that he
had voluntarily removed the death
penalty from the equation. The
prosecutor also stated that Alley had
been given a lot of constitutional
rights in this trial but the victim
had not been extended similar
rights."
|
2003-SC-000807-DG.pdf
Judge: LAMBERT
REVERSING
Date: 4/21/2005
|
COM. V.
MOBLEY
CRIMINAL -
Search & Seizure
On discretionary
review, SC reversed CA
ruling that arrest and search of
automobile passenger violated Fourth
Amendment. The
issue at bar was whether
discovery by a police officer of a
crack pipe in plain view constituted
the commission of a misdemeanor in the
police officer's presence authorizing
the arrest of a passenger in close
proximity to the drug paraphernalia.
Relying on Maryland v. Pringle, 540
U.S. 366, 124 S.Ct. 795, 157 L.Ed. 2d
769 (2003), SC held in the affirmative
and overruled Mash v. Commonwealth,
769 S.W.2d 42 (Ky. 1989) to the extent
it is inconsistent with this opinion.
In Maryland v. Pringle, the
United States Supreme Court
unanimously reversed the highest court
of Maryland holding that the Fourth
Amendment was not violated by an
arrest of a passenger in an automobile
where the officer could reasonably
infer from the circumstances that the
occupants had knowledge of, and
exercised dominion and control over
the contraband.
|
2002-SC-001088-MR.pdf
Judge: COOPER
AFFIRMING
Date: 4/21/2005
PUBLISHED
|
ERNST V.
COM.
CRIMINAL
SC affirmed Defendant's
convictions and life sentence without
parole for kidnapping and murder.
The indictment was
sufficient to charge Defendant with
capital kidnapping. The
admission of hearsay statements was
proper and/or harmless error.
Photographs and videotape of victim's
body were properly admitted.
Admission of prior bad acts was not
reversible error. While the jury
instructions were not ideal, there was
no palpable error.
|
2003-SC-000364-MR.pdf
Judge: WINTESHEIMER
AFFIRMING
Date: 4/21/2005
|
MATTHEWS
V. COM
CRIMINAL -
Speedy Trial
SC affirmed Defendant's
convictions and 45 year sentence for manufacturing
methamphetamine, possession of
marijuana, possession of drug
paraphernalia and being a first-degree
persistent felony offender. The
question presented is what time limit
applies when both the Commonwealth and
the prisoner file documents to
effectuate speedy disposition.
After careful consideration of the
three approaches taken by other
jurisdictions, SC adopted the first
approach, that is - where the
defendant initiates Article III
proceedings he invariably waives his
Article IV rights, including the
shorter time limit. Here, the
Commonwealth had one hundred eighty
days from October 10, 2002, within
which to bring Matthews to trial and
that such requirement was satisfied in
this case. The trial judge did not err
in overruling the motion to dismiss.
There
was no prosecutorial misconduct that
warranted reversal. The trial
judge did not err in denying the
motion to suppress the statement by
Matthews given to the second
detective. Based on the totality
of the circumstances, it is clear that
Matthews waived his Miranda rights.
There was sufficient evidence that
Matthews possessed all the chemicals
necessary to manufacture
methamphetamine. No Farretta
hearing was required in this
case.
|
2003-SC-000098-MR.pdf
Judge: COOPER
REVERSING AND REMANDING
Date: 4/15/2005
|
METCALF
V. COM.
CRIMINAL
-- Prior Bad Acts; Missing Evidence
Instruction
Technical
modification of opinion previously
rendered on January 20, 2005.
Original holding remains unchanged.
See January "Supremes"
edition of Lawwire for summary. |
2004-SC-000572-MR.pdf
Judge: WINTERSHEIMER
AFFIRMING
Date: 4/20/2005
|
MOORE
V. COM
CRIMINAL -- Search Warrants; Good Faith Exception
Technical
modification of opinion previously
rendered on March 17, 2005.
Original holding remains unchanged.
See March "Supremes" edition
of Lawwire for summary.
|
2002-SC-000973-MR.pdf
Judge: GRAVES
AFFIRMING
Date: 4/21/2005
|
PETERSON
V. COM.
CRIMINAL
-- Shackling Defendant during
Trial; Virtual Child Pornography
In
a 5-2 decision, SC affirmed
Peterson's convictions for Use of a
Minor in a Sexual Performance,
Possession of Matter Portraying a Sexual
Performance by a Minor, and Persistent
Felony Offender in the Second Degree and
his underlying sentence of 20 years.
The Court's opinion addressed three allegations
of error. First, the
defendant did not show that he was
prejudiced when the trial court denied
his motions for a continuance and/or
dismissal when, before voir dire, 21
potential jurors failed to report for
service. There was no evidence to
suggest that the trial court actually
excused any of them. Second, the
trial court properly denied Peterson's
request for a directed verdict on the
offense of Possession of Matter
Portraying a Sexual Performance by a
Minor. Peterson alleged that the
Commonwealth failed to show that the
minors depicted were real people instead
of "virtual" images.
"Juries are still capable of
distinguishing between real and virtual
images; and admissibility remains within
the province of the sound discretion of
the trial judge" quoting United
States v. Farrelly, 389 F.3d 649,
655 (6th Cir. 2004). Third, the
trial court did not abuse its discretion
in ordering that Peterson would wear
handcuffs and leg irons throughout
trial. His belligerent conduct
before trial and his refusal to assure
the trial judge that future outbursts
would not occur were sufficient to
justify his shackling during trial.
Justices Keller and Johnstone offer a
compelling dissent, stating that there
were no extraordinary reasons justifying
the trial court's decision to shackle.
In fact, the record indicated that
Peterson became
"understandably" belligerent
only when the bailiff told him that he
would require Peterson to wear leg irons
during trial -- well before Peterson
made any outburst.
|
2003-SC-000710-OA.pdf
JUDGE: KELLER
DENYING PETITION FOR WRIT OF MANDAMUM
Date: 4/21/2005
|
STOPHER
V. COM
CRIMINAL
- Ineffective Assistance; Expert Funds
for Indigent Defendants
SC
denied Stopher's petition for a
writ of mandamus directing the trial
court to hold an ex parte hearing on his
request for expert funds under KRS
31.185 in furtherance of his ineffective
assistance motion. He was
previously convicted of Murder for
killing a Jefferson County Sheriff's
deputy and was sentenced to death.
After his conviction was affirmed on
direct appeal, he filed an RCr 11.42
motion alleging that his trial
counsel was ineffective for failing to
investigate and pursue a "bad
batch" defense based on
Stopher's LSD intoxication at the time
of the killing. SC held that
General Assembly limited the use of
funds or facilities allowed under KRS
31.185 to attorneys representing
indigent defendants at trial. It
further held that Foley v.
Commonwealth, 17 S.W.3d 878 (Ky.
2000) is overruled to the extent
that it holds that an indigent person is
entitled to funds for expert assistance
upon showing of reasonable necessity.
|
2004-SC-000413-MR.pdf
Judge: LAMBERT
REVERSING
Date: 4/21/2005
|
ST.
LUKE HOSPITALS, INC. V.
SHORT
EVIDENCE - PRIVILEGE (ATTORNEY CLIENT);
MEDICAL NEGLIGENCE
In this medical negligence case, the
plaintiff's attorney needed and sought
documents from the medical provider
which were otherwise privileged.
Trial court noted they were privileged
but order the records produced, and the
defense filed a writ of
prohibition. The COA denied the
writ, but the Supreme Court reversed
holding "the attorney-client privilege is not overridden by need of an opposing party to obtain information not otherwise available but for breach of the privilege."
P.S. Don't confuse
attorney-client privilege with
work-product privilege (otherwise
referred to as trial preparation
materials under CR 26.02(3)) and
"substantial need" for those
materials. |
2004-SC-000262-WC.pdf
REVERSING
Date: 4/21/2005
RELATED CASE:
2004-SC-000289-WC.pdf
|
DAY
V. FAIRBANKS COAL CO.
WORKERS COMPENSATION - ADMISSIBILITY OF
X-RAYS
The pneumoconiosis law requires that, if
the x-ray interpretation of the
plaintiff's experts and the defendant's
experts do not reach a consensus, the
x-rays are sent to a panel of x-ray
reading experts for a determination that
holds presumptive weight. The
claimant argued that, because the
statute requires the x-ray film to be
marked with the date of the x-ray when
it is sent to the panel, and it was not,
it was inadmissible. The Supreme
Court held that marking it with a letter
to identify it was sufficient. The
Supreme Court rested its opinion on the
intent of the statute to mask the source
of the x-ray, and surmised that the
experts would have known that the
earlier x-rays were taken on behalf of
the plaintiff. Therefore the
intent of the statute was better served
by masking the date of the x-ray. The
Court reversed the Court of Appeals
decision and reinstated the decision of
the ALJ, who had denied the claim based
on the expert panel's finding that the
x-ray did not show evidence of
pneumoconiosis.
|
2004-SC-000420-WC.pdf
Judge: REVERSING
Date: 4/21/2005
|
HIGHLAND
HEIGHTS VOLUNTEER FIRE DEPT.
V. ELLIS
WORKERS COMP - ENHANCED BENEFIT
The claimant was injured in his job
as a firefighter when he was burned,
suffered a cervical strain, and had
psychological injuries. His
psychological injury kept him from
returning to his volunteer fire fighting
job, but he returned to his job as a
retirement benefits specialist. The
ALJ ruled that he was not entitled to
the 1.5 multiplier for being unable to
return to the type of work he was
performing at the time of the injury
(pre-2000 law). A .5 multiplier
was applied to his benefits because he
was earning a greater wage than at the
time of the injury. The Workers¹
Compensation Board reversed, holding
that the inability to perform the fire
fighting job entitled the claimant to
the enhanced benefit, and the Court of
Appeals affirmed. The Supreme
Court held that because the average
weekly wage was derived from the
claimant's regular employment, his fire
fighting job being unpaid, the benefit
enhancement should be determined by the
ability to return to regular employment.
This holding is probably best
limited to volunteer positions, given
the Court's reasoning that used the
special statute for volunteer fire
fighting and EMT jobs. To apply it
to situations where the claimant had
more than one paying job at the time of
the injury would create too much
ambiguity, much of which would conflict
with wording of the statute and the
intent of workers'; compensation laws to
compensate for occupational loss.
|
| NON-PUBLISHED
DECISION FROM KY SUPREME CT. FOR APR.
21, 2005 |
2004-SC-001000-MR.pdf
AFFIRMING
Date: 4/21/2005
|
IN
RE: THOMAS C. BOWLING, ELIZABETH
STOVAL, ETC.
CRIMINAL - New Trial, Penalty Phase
In this death penalty case, evidence
during penalty phase of the trial that
the jurors failed to consider mitigating
evidence is incompetent evidence under
RCr 10.04 to establish grounds for a new
trial. |
2002-SC-000739-MR.pdf
Date: 4/21/2005
AFFIRMING
|
BROWN
V. COM.
CRIMINAL - LIO's
SC found no palpable error in giving
lesser included offense instruction in
manslaughter case relying upon Wolford
v. Com. that "lesser included
offense more closely inures to the
defendant's benefit than to his
prejudice." |
2003-SC-000724-MR.pdf
AFFIRMING
Date: 4/21/2005
|
COOK
V. COM
CRIMINAL - Palpable Error
SC did not find four errors raised for
the first time by the defendant on
appeal to be 'palpable' and therefore
affirmed sodomy conviction. |
2003-SC-000536-MR.pdf
AFFIRMING
Date: 4/21/2005
|
HENCHON
V. COM
CRIMINAL - Defenses
Trial judge does not have a sua
sponte duty to raise a defense,
especially where there is little
evidence, if any, to support the
defense. |
2003-SC-000671-TG.pdf
AFFIRMING
Date: 4/21/2005
RELATED RULING
2003-SC-000672-TG.pdf
|
HUMPHREY
V. COM
WILSON V. COM
CRIMINAL - Sleeping with the Judge and
Fair Trials Under CR 60.02
In this kidnap, rape, robbery, and
murder case, the female defendant raised
the claimed under CR 60.02 that her
sexual affair with the trial judge
interfered with her attorney-client
relationship and denied her a fair
trial.
Even though the misconduct by (Judge) Gilliece was unacceptable, the CR 60 .02 motion
by Humphrey was untimely post-conviction action successive of her RCr 11 .42 action .
A defendant is required to avail herself of RCr 11 .42 while in custody under sentence or
on probation, parole or conditional discharge, as to any ground of which she is aware,
or should be aware, during the period when this remedy is available to her. Gross v.
Commonwealth , 648 S .W .2d 853 (Ky. 1983) . |
2003-SC-000655-MR.pdf
Judge: AFFIRMING
Date: 4/21/2005
|
MAXWELL
V. COM
CRIMINAL - Evidence of Other Crimes
under KRE 404
In criminal case involving unlawful
transactions with a minor, it was not
error to admit 75 instances of defendant
providing drugs and alcohol to the minor
since this evidence falls within an
exception to the prohibition against
character evidence. KRE 404(b). |
2003-SC-000577-MR.pdf
AFFIRMING
Date: 4/21/2005
|
TROTTER
V. COM
CRIMINAL
In case involving murder and tampering
with physical evidence, the Supremes
affirmed and shot down multiple errors
raised by defendant, to wit:
admissibility of prior bad acts; denial
of directed verdict and allowing Com. to
shift burden of proof; not suppressing
taped statement to police; failure to
instruct on imperfect self-defense and
extreme emotional disturbance. |
2003-SC-000703-MR.pdf
AFFIRMING
Date: 4/21/2005
|
WASHINGTON
V. COM
CRIMINAL - Witness (Competency of Child
Witness)
Competency determinations are within
the sound discretion of the trial court,
and the competency of a child witness
depends on the child's level of
development and the subject matter at
issue in the case. Other issues in
this case included a sleeping juror,
404(b), confrontation rights under RS
421.350, hearsay evidence. |
2003-SC-000601-MR.pdf
Judge: AFFIRMING
Date: 4/21/2005
|
WILSON
V. COM
CRIMINAL - Directed Verdict
Sole issue on appeal of conviction
for criminal possession of forged
instrument and PFO was trial court's
denial of directed verdict motion.
He lost at trial, and lost on
appeal. Affirmed. |
2005-SC-000043-MR.pdf
AFFIRMING
Date: 4/21/2005
|
BOWLING
V. BOWLING
FAMILY LAW - EXTRAORDINARY WRITS
Wife
appealed CA’s denial of her petition
for writ of prohibiltion and
intermediate relief. Wife claimed
to TC and CA that she and Husband had
continued to have sexual relations
within the sixty day waiting period
before entry of the decree, and
specifically alleged that she was four
months’ pregnant with Husband’s
child. Wife claimed to SC that it
was unconscionable for TC to allow the
child to be born as illegitimate.
SC held that Mom’s arguments were “completely
without merit” and “procedurally
barred. Section 115 of the Kentucky
Constitution provides that the General
Assembly may prohibit appeal from that
portion of a judgment dissolving a
marriage. The legislature has done so in
KRS § 22A.020 . To permit review in an
action for prohibition would circumvent
the Constitution of Kentucky and the
power of the General Assembly to deny
such right of review.” CA
affirmed.
|
2004-SC-000320-WC.pdf
AFFIRMING
Date: 4/21/2005
|
BROWN
V. WORKERS COMPENSATION BOARD
WORKERS COMP - BLACK LUNG
The ALJ found that the consensus
among a panel of experts was that the
failed to prove that the claimant did
not suffer from pneumoconiosis.
He argued that there was no proof
that the x-rays that the experts read
were the best quality among the x-rays
taken. The Courts rejected his
argument, stating that the burden was on
him to show that the proper procedure
was not followed. |
2004-SC-000372-WC.pdf
AFFIRMING
Date: 4/21/2005
|
GRIBBINS
V. AMAZONL.COM
WORKERS COMP - Substantial Evidence
The claimant appealed pro se from a
decision awarding her benefits for a low
back injury, but finding that a cervical
injury was not proven. The Board
and the Court of Appeals found that the
evidence was not so overwhelming as to
require reversal.
|
2004-SC-000362-WC.pdf
Judge: AFFIRMING
Date: 4/21/2005
|
NALLEY
V. KEITH WHEATLEY
CONSTRUCTION
WORKERS COMP - Reopening
The Supreme Court upheld the Workers'
Cmpensation Board's reversal of the
ALJ's decision to grant benefits on
re-opening. The Claimant had a
fall from a roof in 1990, and settled
his case, and on reopening, the ALJ
inferred from the evidence, although it
was not explicitly stated by a doctor,
that his worsening in 2001 resulted from
the same injury. The defense
presented evidence from Dr. Ballard that
this was a new injury. The
ALJ's award was thrown out because he
rejected the uncontradicted medical
opinion of Dr. Ballard, and relied on
inference for a finding of causation.
The Court stated that the burden
of proof is on the claimant to show
causation, even after the case has been
accepted and settled by the employer.
|
2004-SC-000376-WC.pdf
AFFIRMING
Date: 4/21/2005
|
S.F.
AND S. COAL CO., INC.
V. CARNES
WORKERS COMP - Medical Expenses
The claimant was awarded benefits for
Coal Workers' Pneumoconiosis, and years
later, was diagnosed with a lump in his
lung. The employer challenged the
diagnostic tests as not work related
because the doctors performing the
biopsy did not know it was related to
his pneumoconiosis until after the
biopsy. The Workers' Compensation
Board reversed, holding that after an
award, it is the employer's burden to
show that a procedure is either not
reasonable or unrelated to the
occupational condition. The
employer argued that the Board did not
have the power to make findings of fact,
but the Court of Appeals and Supreme
Court affirmed, holding that the facts
were not in dispute, but their legal
significance was at issue. The
Board ordered even anxiety medication
over the lump o be paid by the employer.
The lump turned out to be
anthracosis, i.e., related to the
pneumoconiosis, so the employer gets a
lump of coal for appealing this one,
since the miner got one too. |
2003-SC-000516-WC.pdf
AFFIRMING
Date: 4/21/2005
|
WEST
KY EASTER SEALS CENTER
V. WRIGHT
WORKERS COMP
The claimant was awarded a total
disability stemming from a knee injury.
The employer appealed, losing at
the Board and Court of Appeals. The
Supreme Court affirmed the award, but
the dissenting opinion is what is
interesting in this case.
The Supreme Court held
in Vessels v. Brown-Foreman, 793
SW2d 795 (1990) that all workers
compensation litigants have an appeal as
a matter of right to the Supreme Court.
This is because Section 115 of the
Kentucky Constitution guarantees an
appeal from one court to another. When
the Circuit Court step of appeals was
eliminated, the only appeal from one
court to another was from the Court of
Appeals to the Supreme Court. This
is why we have so many opinions from the
Supreme Court about workers
compensation. The dissent argued
that the Vessels case should be
overruled. However, the Court in
Western Baptist Hospital v. Kelly stated
that even if the case is appealed to
them, the Supremes don't have to
consider fact questions very carefully,
since they have already been considered
by the Workers' Compensation Board and
the Court of Appeals.
|
