Health insurer filed an original action in the Kentucky Court of Appeals, seeking prohibition against the circuit court on grounds that insured’s claim was barred by the doctrine of res judicata.  The insurance policy in question had previously been the subject of a class-action claim heard in a federal court in New Jersey.  The writ was denied and this appeal followed.

The newest addition to the Supreme Court, Justice Roach, made a detailed examination of writ cases and their three classes: 1) Cases where the inferior court is acting without jurisdiction; 2) Cases where the lower court is acting erroneously, but with jurisdiction; and 3) Cases where great and irreparable injury are not present, but there is a “substantial miscarriage of justice will occur and correction of the error is necessary and appropriate in the interest of orderly administration.”

Here, the insurer attempted to avail itself of all three of these classifications.  However, the Supreme Court upheld the denial of the writ, ruling that the circuit court was acting within its jurisdiction and that the insurer had not demonstrated a lack of adequate remedy by appeal or otherwise great injustice and irreparable injury.

The appellants, pursuant to CR 65.09 and 76.22, move this Court to grant expedited interlocutory relief, pending appeal, to enjoin the  Lexington-Fayette Urban County Government and Fayette County Clerk Don Blevins from expending any funds or otherwise taking any steps in furtherance of conducting an election on November 8, 2005 on the ballot initiative at issue in this case.   The circuit court determined that the initiative process was legal in Fayette County and permitted the election to go forward, ruling that the next regular election in Fayette County was in November of 2005. An appeal was taken to the Court of Appeals and a panel of that court denied injunctive relief and found that the appellants failed to show cause why they would suffer irreparable harm. Supreme Court was presented with a motion for interlocutory relief. The central question is whether an election can be held on November 8, 2005. Supreme Court held the answer the "No" because it is not a regular election.

COOPER, J.
PUBLISHED 3299 
Date: 10/20/2005

Following a jury trial in Fayette District Court, Lopez was convicted of DUI.  He appealed the conviction to the Fayette Circuit Court on various grounds, including the trial court's failure to properly instruct the jury.  After a complicated appellate process, the case ended up in the Kentucky Supreme Court on the sole issue of whether the jury instructions were proper.  At trial, the district judge submitted a DUI instruction based on the 2000 version of KRS 189A.010(1)(a) that required the jury to find, among other things, that the blood alcohol sample from the defendant was taken within 2 hours of his "cessation of operation or physical control of a motor vehicle."  Over Lopez's objection, the prosecutor was allowed to tell the jury both in opening statement and closing argument that they could find the defendant guilty if his blood-alcohol level was ..08 at the time of the breath test even if the level was below .08 at the time he stopped driving his car.  Although the impropriety of the prosecutor's remarks was not an issue before the Supreme Court, the justices noted that such comments were a misstatement of the law.  It held that the instruction submitted to the jury was proper because it required a finding that the defendant's BAC level be .08 or higher at the time he stopped operating his vehicle.  However, on remand, the justices recommended that the parties stipulate to that portion of the tendered instruction regarding the 2-hour time limit for breath tests.  Such an element may end up confusing the jury if it becomes part of an instruction.

A unanimous SC affirmed Clemons' convictions for Meth Manufacturing and Trafficking.  The primary issue on appeal was whether sufficient evidence supported the convictions.  At trial, the Commonwealth presented evidence that the defendant used the Anhydrous Ammonia method of making meth in which the only equipment needed was a jar to hold the ammonia and ephedrine.  Pursuant to a search warrant, sheriff's deputies seized such a jar along with coffee filters, a turkey baster, a Sprite bottle with modified cap and hole in the top, liquid fire, salt, a cutting agent, plastic baggies, metal and glass tubes, baggies containing drug residue, and prescription vials.  There was also testimony from witnesses who observed Clemons standing in front of these materials inside his home and that the home smelled of ether.  Lab tests confirmed that meth was found in the coffee filters, some twist-tie bags, and prescription vials.  A large amount of cash ($580) was found in Clemons' bedroom.  A sheriff's deputy, who happened to be Clemons' neighbor, testified that he observed many short-term visitors to the Clemons household.  There was also evidence that finished meth product was found in various individual baggies.  Under the circumstances, SC held that there was sufficient evidence to induce reasonable jurors to convict Clemons of the charged offenses.

SC affirmed Farrow's convictions for Trafficking in a Controlled Substance and Persistent Felony Offender in the First Degree.  The prosecution's case was based on evidence of two controlled drug-buys in which an informant agreed to purchase cocaine from Farrow while police recorded the transactions on audio and video.  At trial, the Commonwealth's lead officer testified as the first witness and stated that the informant used in this case was reliable.  Farrow's counsel objected, stating that the officer's conclusion was made without a proper foundation.  The officer then went on to say that the informant had worked for police numerous times in the past and that her assistance had always resulted in a conviction.  No objection was made at that time.  SC held that such testimony was inadmissible character evidence under KRE 608.  Even if the informant later testified and was subject to a credibility attack, rehabilitation evidence could only consist of her character for truthfulness.  Moreover, the reference to specific instances of conduct (i.e. past work always resulting in conviction) was improper because the general rule is that character cannot be proven with specific instances of conduct.  However, Farrow's counsel failed to object on the basis that improper character evidence was being introduced.  Therefore, the error was not properly preserved for review.  Furthermore, the admission of improper character evidence did not constitute palpable error.   

SC affirmed Lane's convictions for Burglary in the First Degree and Assault in the Fourth Degree.  He raised numerous errors on appeal.  The primary issue concerned whether Lane was prejudiced by alleged investigative hearsay during the lead detective's testimony.  During trial, the prosecutor asked the detective whether he knew that the sole defense witness (someone other than Lane) was under criminal investigation.  The detective said yes.  He was then asked whether the investigation concerned the witnesses in Lane's trial and their testimony.  He responded yes.  Defense counsel objected, stating that the remarks were impermissible investigative hearsay and improperly impeached the defense witness in advance.  The Court explained that the detective's statements were not hearsay because they were not out of court statements.  Moreover, they were things within the detective's personal knowledge.  Under the circumstances, the testimony did not serve to impeach the defense witness in advance of his testimony because there was no clear indication that the witness was the target of the investigation. 

SC affirmed Hensley's conviction for Murder.  The primary issue on appeal was whether he was prejudiced when the trial judge allowed the prosecution to play an unredacted taped statement for the jury in which Hensley incriminated himself.  Defense counsel objected, stating that the tape would unduly prejudice Hensley because the interrogating officer repeatedly stated on the tape (before Hensley actually confessed) that he did not believe what Hensley was saying.  In a 6-1 opinion, the majority stated that Commonwealth v. Lanham, 2005 WL 2043703 (Ky. 2005) was dispositive.  In Lanham, the Court held that playing such a tape was necessary to show the context surrounding a defendant's incriminating statement.  It also noted that the officer's statements of disbelief were a legitimate interrogation technique and were not meant to show that a suspect was lying.  Justice Cooper dissented, citing his dissenting opinion in Lanham. 

Fitts was convicted of multiple counts of Trafficking in Cocaine and was sentenced to 30 years in prison.  However, on direct appeal, the SC reversed the 30-year sentence because the jury received improper instructions on the enhancement of a prior trafficking conviction.  Upon remand, a new jury recommended a sentence of 40 years.  Fitts appealed the 40-year term, arguing that the higher sentence constituted vindictiveness for having successfully appealed his first sentence.  SC held that North Carolina v. Pearce, 395 U.S. 711 (1969) did not apply because a due process violation occurs only when the same agent imposes a harsher sentence.  Because a different agent (i.e. the new jury) imposed the higher sentence, Pearce did not apply. 

Editor's Note:  This case ably demonstrates the old maxim: "Be careful what you ask for -- you just might get it."     

The claimant attempted to use a 1989 workers¹ comp. award finding that he suffered from coal workers¹ pneumoconiosis as res judicata in a 2001 claim against a different employer in which it was found that he did not suffer from the disease.  The issue preclusion portion of the res judicata doctrine, however, requires that there be identity of the parties, and the Court rejected the appeal.

After a serious fall, the claimant was given a sedentary job, which he held at the time of the hearing.  The claimant was not found to be totally disabled, but awarded a disability based on a 40% impairment rating.  A few weeks after the ALJ rendered his decision, the claimant¹s job was eliminated.  The claimant attempted to reopen on the basis of either mistake, or manifest injustice, which attempt was rejected at all levels.  A re-opening requires an increase in impairment rating, and must be brought within four years from the date of the award.  The other statutory bases for reopening are rarely allowed.