• Court finalist's article opposed rejecting sodomy laws
  FRANKFORT, Ky. -- John Roach, Gov. Ernie Fletcher's general counsel and a finalist for a Kentucky Supreme Court vacancy, wrote an article in 1993 saying the state's sodomy laws should not have been overturned.
• A judgeship can wait
  In some ways, John Roach is an attractive candidate for appointment to the state Supreme Court. He certainly is bright and capable. » Originally published on 05/21/05.
• Fletcher aide up for court seat
  Despite having no experience on the bench, the top lawyer for Gov. Ernie Fletcher was chosen yesterday as one of three finalists for a Kentucky Supreme Court seat, along with two longtime judges.  » Originally published on 05/17/05.

PUBLISHED

Although it is correct that information from an anonymous tipster that is not predictive of a person’s conduct and is not corroborated is not sufficient to support a Terry stop and that information obtained from a confidential informant may be insufficient to establish probable cause to support a search warrant or a warrantless arrest, it is not correct that information obtained from a reliable, confidential informant when coupled with some independent verification from a police investigation cannot be sufficient to support a Terry stop.

A police officer does not violate either the United States Constitution or the Kentucky Constitution by merely approaching an individual in a public place, by asking him to identify himself, and “by putting questions to him if the person is willing to listen.”  

A police officer may briefly detain an individual in a public place, even though there is no probable cause to arrest him, if there is a reasonable suspicion 
that criminal activity is afoot.

“[A] police officer can subject anyone to an investigatory stop if he is able to point to some specific and articulable fact which, together with rational inferences from those facts, support ‘a reasonable and articulable suspicion’ that the person in question is engaged in illegal activity”.

CA reverses and remands TC entry of SJ for Louisville/Jefferson Cty. Metro in this personal injury case involving the Louisville Extreme Park.

The Extreme Park opened in April 2002. Within the first month of operation, at least 2 riders received serious injuries falling into an 11-foot-deep bowl that was part of the advanced level. This bowl was right next to the beginner's level with no warning or guardrail. While the Metro was considering how to make it safer and also maintain liability (as internal e-mails and memos illustrate), the 11-year-old appellant in this case fell into the bowl and injured himself. Suit followed and TC granted Metro's motion for SJ based upon immunity under the Recreational Use statute.

CA reverses and remands, finding evidence sufficient to raise a factual issue as to whether the Metro failed to warn or failed to guard, or both.

The park's designer was unaware at the time it was designed that the park would be unsupervised.

Affirms order upholding Cabinet’s denial of re-licensure to Appellant daycare center.  The circuit court had upheld the Cabinet’s decision on its merits.  However, the Court of Appeals affirmed based on Appellant’s failure to file exceptions to the hearing officer’s recommended order, which the Cabinet subsequently adopted in its entirety.  In so doing, the COA held, the Appellant had failed to preserve any issues for appeal.

One year Statute of limitations for Personal injury (KRS 413.140 (1) upheld in a case where the Plaintiff's injury manifested itself immediately.  The discovery rule did not apply when Plaintiff was three weeks late filing suit.  Discovery rule is only applicable where injury fails to manifest immediately.  Here Plaintiff should have been able to tell he had an injury and that it was caused by the tortfeasor.  Further, the disability required under the statute to toll the statute of limitations is not a physical disability but one that affects the competence of the Plaintiff to know or understand that he has a claim that needs prosecuting such that he is excused from his failure to file on time.  KRS 413.280.

Defendant Payne argued he was improperly convicted of multiple counts of robbery arising from a single bad act, that the indictment failed to state an offense, and that robbery is a crime against persons rather than business entities.  

CR 60.02 exists to correct errors only upon a showing of facts or grounds not appearing on the face of the record and that were discovered only after the judgment without fault of the party seeking relief.

COA found no error in the denial of Payne’s motion for relief from judgment.

The Kentucky Supreme Court has consistently limited the availability of CR 60.02 relief in criminal cases, stating in McQueen v. Commonwealth as follows:

The interrelationship between CR 60.02
and RCr 11.42 was carefully delineated in
Gross v. Commonwealth, Ky., 648 S.W.2d 853
(1983). In a criminal case, these rules are
not overlapping, but separate and distinct.

A defendant who is in custody under sentence
or on probation, parole or conditional
discharge, is required to avail himself of
RCr 11.42 as to any ground of which he is
aware, or should be aware, during the period
when the remedy is available to him. 


Civil Rule 60.02 is not intended merely as an
additional opportunity to relitigate the
same issues which could “reasonably have
been presented” by direct appeal or RCr
11.42 proceedings. RCr 11.42(3);

The obvious purpose of this principle is to prevent the relitigation of issues which either were or could have been litigated in a similar proceeding. . . . In summary, CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings. . . .  As  pointed out in Gross, a CR 60.02 movant must demonstrate why he is  entitled to this special, extraordinary 
relief. “Before the movant is entitled to an evidentiary hearing, he must
affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.” Gross v. Commonwealth.    Here, Johnson’s claims may be summarized as alleging that his trial counsel provided ineffective assistance, that the  evidence was insufficient to support the claims against him, that his trial counsel and the Commonwealth’s Attorney tricked or defrauded Johnson and the trial court, and that his Alford pleas were inadequate as he had no opportunity to describe his lack of involvement in the events which led to the charges

COA found no merit in defendant's claims that keys seized from him was impermissible.  The terms “reasonable suspicion” and “probable cause” are not easily defined; rather, “[t]hey are commonsense, nontechnical conceptions that deal with ‘the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act.’”

The United States Supreme Court has described reasonable suspicion as “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity,”  while probable cause to search is described as existing “where the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found.”

CA affirmed Eapmon's conviction for Trafficking in a Controlled Substance (Cocaine) and underlying sentence of 5 years.  All of his claims of error were not preserved for review and none resulted in manifest injustice. 

CA affirmed the trial court's denial of Nichols' motion to withdraw his guilty plea and upheld his underlying sentence of 10 years.  The record refuted Nichols' contentions that his plea was involuntary. 

CA affirmed the trial court's dismissal of Rauch's appeal of the Kentucky Parole Board's decision denying him parole.  Because Rauch only challenge the board's reasoning for its decision, such a ground was not reviewable on appeal.  KRS 439.330(3).

CA affirmed in part, reversed in part, and remanded his case to the trial court for an evidentiary hearing on Caudill's allegation of ineffective assistance pertaining solely to the issue of restitution.  The record did not contain sufficient evidence to refute Caudill's claims that his counsel was ineffective in the sentencing phase for failing to object to the trial court's imposition of restitution as a condition of parole. 

CA affirmed Riemenschneider's convictions and underlying sentences for Failure to Comply with Sex Offender Registration.  He was not entitled to relief under CR 60.02 because the trial court correctly found that the 2000 version of KRS 17.510 applied to him.  Therefore, his conduct was properly enhanced to the felony level.

CA affirmed the trial court's denial of Martin's CR 60.02 motion.  There was no double jeopardy violation because the relevant offenses contained different elements of proof.  Polk v. Commonwealth, 679 S.W.2d 231 (Ky. 1984).  

CA affirmed Epperson's conviction for First-Degree Sexual Abuse and his underlying sentence.  There was no indication that the Commonwealth's Victim Advocate made gestures or otherwise communicated with the child victim during the victim's testimony.

COA affirmed dismissal of 11.42 petition. TC had dismissed the petition on the record and declined to hold an evidentiary hearing or to appoint D counsel. 

COA VACATED AND REMANDED D's conviction for assault in 2nd degree for an alleged stabbing. D argued that TC erred for not instructing on assault
4th. Opinion discusses Kentucky's case law regarding when a D can receive a self-defense instruction and a lesser included instruction in an assault or homicide case. For example, when a D is wanton or reckless in his belief that self-defense is necessary, then D cannot be acquitted but is entitled to an instruction on a lesser included offense. COA reversed noting that D was entitled to a fourth-degree assault instruction even if he recklessly or wantonly believed self-defense was necessary. 

NOTE: Court also held that it was error to make D pay restitution to the hospital where the alleged victim was treated. KRS 532.021(1) only allows restitution to the victim himself, and not the hospital or insurance company. 

Held it was error not to strike juror no. 48 who was employed by the bank where the forged checks were drawn and who knee the owner of a local merchant where one of the checks was cashed.

Ex-wife claims her judgment lien is superior to banks mortgages under theory that mortgages secured line of credit but did not say so as is mandated by KRS 382.385.  TC rejected ex's arguments holding that statute was not exclusive method of securing debt and that, as a signatory to the mortgages, she was fully appraised of banks liens.

Banks liens were secured by two notes, one that required a new note everytime an advance was made, and another that did not.  COA affirms TC, holding that KRS 382.385, which was enacted in the early 1990's in response to a sudden upsurge in demand for lines of credit, uses the permissive word "may" when describing how this type of mortgage can be secured.  The statute itself expressly provides that there are other ways to secure this type of mortgage.  Moreover, failure of subsequent renewal mortgages to contain future advance clause is moot becuase other mortgage didn't require renewals at all.

Note by editor: great discussion of Kentucky law regarding mortgages, future advances and lines of credit.

Golden appeals Jeff. Circuit Court (Conliffe) ruling that Lou. MSD had properly exercised eminent domain by exercising in good faith with golden for temp and perm easements for public sewers and drainage.  CA affirms.

MSD entered negotiations with Golden to acquire Golden’s private sewer line for public use.  MSD’s 1^st petition was dismissed by TC in 2001 because of lack of good faith negotiations.  CA affirmed that ruling in 2003 and the Supremes declined to review.  While appeals were pending the parties negotiated again—MSD raised its offer from $4k to over $38k and Golden rejected it.  MSD filed a 2^nd petition and TC held right-to-take hearing after the Supremes rejected the appeal from the 1^st TC hearing and TC granted MSD’s petition.

Golden argues on appeal that TC erred by failing to require that MSD follow the standards set forth in the dismissal of the initial petition.  Constitution provides that the taking be for a public use and for just compensation and KY courts added the requirement of good faith negotiations.  CA disagreed with Golden citing that the TC’s “standards” were peripheral concerns or comments on Golden’s concerns and the “crux of the court’s concerns was MSD’s failure to negotiate in good faith.

Golden also argues that MSD opening negotiations during pendency of appeal further evidenced MSD’s lack of good faith.  CA disagrees saying that Golden did not initially object to the negotiations but voluntarily engaged in them until MSD would not negotiate on the peripheral concerns of Golden.

Next, Golden argues that TC erred by allowing the 2^nd petition when MSD had not yet acquired all the individual easements necessary for the proposed use of the disputed sewer line.  CA disagreed citing N. KY Port Auth. V. Cornett: the Port authority could proceed with condemnation even though it critical phases of the project had not been completed.  The test is not certainty of completion but “the reasonable expectation of its probable consummation.”

Lastly, Golden argues the TC erred by failing to dismiss because MSD’s board resolution to authorize the taking was fatally defective because it listed the previous owner of the private sewer line instead of Golden.  MSD responded that Golden reperated identified itself as “The Louisville E.O.P., Inc. (now Golden Foods)” and has admitted that it owned the private sewer line in question.  The inaccuracy amounts to a clerical error resulting in no prejudice to Golden.

 A quick read does not reveal any extraordinary principles of law in this unpublished opinion.  It is interesting to the estate planner, however, because the Court of Appeals appears to have understood a fairly complicated sequence of events.  It is worth a read just to see how to explain that in a logical, concise way.

The claimant was found to be totally disabled as a result of a work related injury in 1991, and the decision was rendered in 1995.  In 1999, the employer reopened his claim and he was found to be 70% occupationally disabled.  He reopened his claim in 2003 claiming that his injuries once again rendered him totally disabled.  However, the reopening statute, KRS 342.125, by its 1996 amendment, limits reopening to a period of time four years from the date of the original award.  The claimant argued that it should be four years from the date of the last decision modifying benefits, but the statute plainly states otherwise.  The Court of Appeals affirmed the dismissal of the reopening motion.