SCOKY Decisions - Feb. 23, 2006 (Vol. 2006:09)

KBA V. SCOTT STAPLES
ATTORNEY DISCIPLINE
2005-SC-000902-.pdf
PUBLISHED
DATE: 2/20/2006

WELCH V. VELTEN
APPEALS - Time for Filing Cross-Appeal suspended pending motion to dismiss
2003-SC-001000-DG.pdf
PUBLISHED
VACATING AND REMANDING
DATE: 2/23/2006

Supremes held that a party's motion to dismiss an opponent's appeal pursuant to CR 76.34(6) suspends the running of time within which that party may file a notice of cross-appeal, pending a ruling on the motion to dismiss. Court held that any ambiguity in the rule as to the suspension of time should be resolved in favor of having appeals and cross-appeals decided on their merits.

ROBERSON V. COMMONWEALTH
CRIMINAL - Miranda Violation
2004-SC-001026-MR.pdf
PUBLISHED
AFFIRMING (SCOTT)
DATE: 2/23/2006

SC affirmed TC's order denying Defendant's motion to suppress statement given to police alleging Miranda violation. Defendant unequivocally invoked his right to have counsel present at his interrogation and to remain silent until a lawyer was provided to him. Testimony revealed, however, that his mother convinced him to speak to the police without the assistance of an attorney. Furthermore, the record shows that the police in no way coerced Ms. Taylor to speak with Defendant and likewise made no promises to her in allowing her to speak with him

POWELL V. HON. WILLIAM GRAHAM
CRIMINAL - Mental Examination
EXTRAORDINARY WRITS
2005-SC-000625-MR.pdf
PUBLISHED
REVERSING (ROACH)
DATE: 2/23/2006

SC granted Defendant's motion for writ of prohibition. While the trial court had the authority to order Defendant to undergo a mental examination by the prosecution's expert, its order, as written, provides insufficient protection for Defendant's Fifth Amendment rights. As such, the trial court's order, insofar as it failed to provide such protection, was in error. Forcing a criminal defendant to undergo a mental examination by an agent of the prosecution immediately brings up core Fifth Amendment concerns. The gravity of these concerns and the nature of the constitutional right involved lead us to the conclusion that the harm caused by the compelled mental examination satisfies the "great injustice and irreparable injury" prong required under the proceeding erroneously writ standard.

SC held RCr 7.24(3)(B) was inapplicable to this case. The rule is applicable only when a defendant intends to offer evidence that directly bears on the issues of guilt or punishment, not in a situation such as this where evidence of the defendant's mental instability relates to whether other evidence is to be barred from trial and, therefore, has only a tangential bearing on guilt. CR 35.01 is the applicable rule. The mental examination authorized by CR 35.01 in the context of a criminal case will inevitably infringe on a criminal defendant's Fifth Amendment rights without some additional protection, yet the rule contains no default mechanism for safeguarding those rights. The easiest way to apply CR 35.01 in a fair manner is simply to impose on it the protective template from the criminal rule that it most resembles, RCr 7.24(3)(B)(ii). That rule reasonably restricts the scope and use of evidence obtained from the independent mental examination in a way that protects a defendant's privilege against self incrimination.

OSBORNE V. COMMONWEALTH
CRIMINAL - Jails
2004-SC-000566-DG.pdf
PUBLISHED
AFFIRMING (SCOTT)
DATE: 2/23/2006

On discretionary review, SC held that county jails, not the Commonwealth, are responsible for paying the cost of providing psychotropic medications to inmates incarcerated at those county jails pursuant to KRS § 441.045(3).

KRS § 441.045(3) provides, in pertinent part, that "the cost of providing necessary medical, dental, and psychological care for indigent prisoners in the jail shall be paid from the jail budget." Clearly this statute places the financial responsibility for covering all aspects of an inmate's psychological care on the county jail. The plain language of KRS § 441.047(1) reveals that this portion of the statute clearly applies to those situations where an indigent inmate receives "psychiatric evaluations, treatment or services" at a nearby state-supported or state-operated psychiatric facility. It is only when this "in-house" treatment is rendered that the Commonwealth is responsible for the costs associated with such services. By "in-house" we mean any treatment rendered at a state supported or state-operated facility or other suitable private facility outside the confines of the county jail.

POSEY V. COMMONWEALTH
CRIMINAL - Possession of Firearm by Convicted Felon

2004-SC-000060-DG.pdf
PUBLISHED
AFFIRMING (GRAVES)
CONCURRING OPINIONS FILED (ROACH)
DATE: 2/23/2006

SC affirmed Posey's conviction for POFCF and related offenses. In doing so, it revisited the issue of whether Kentucky's statute prohibiting convicted felons from possessing firearms violates Kentucky's Constitution. Section 1(7) of the constitution states that "all men ... have certain inherent and inalienable rights, among which (is) the right to bear arms." SC held that KRS 527.040 is reasonable legislation in the

interest of public safety and does not offend Section 1 since convicted felons are not endowed with the natural right to possess firearms.

SIMMONS V. COMMONWEALTH
CRIMINAL - Ineffective Assistance of Counsel
1989-SC-000736-MR.pdf
PUBLISHED
AFFIRMING (WINTERSHEIMER)
DATE: 2/23/2006

SC affirmed Simmons' appeal of the TC's denial of his RCr 11.42 motion alleging ineffective assistance of counsel. Simmons was originally convicted of multiple counts of murder, rape, and kidnapping. He was sentenced to death and his convictions were affirmed on direct appeal. Here, the Court rejected all 15 allegations of error which Simmons claimed.

EPPERSON V. COM.
CRIMINAL - Murder; Sufficiency of Indictment
2003-SC-000595-MR.pdf PUBLISHED
AFFIRMING (WINTERSHEIMER)
DATE: 2/23/2006

SC affirmed Epperson's convictions for Murder, Robbery, and Burglary, and his underlying sentence of death. The Court rejected all 32 points of error raised in Epperson's appeal. The primary issue was whether the indictment was defective for failing to list all elements of all offenses for which he was charged. SC held that the indictment was legally sufficient because it put Epperson on notice of what he was being charged with.

RAYBORN V. RAYBORN
FAMILY LAW - Modification of Maintenance Obligation
2005-SC-000357-DG.pdf
PUBLISHED
AFFIRMING (ROACH)
DATE: 2/23/2006

The Supreme Court found this to be “one of those rare domestic cases where deference to the trial court’s judgment is unwarranted.”

Husband requested modification of TC’s maintenance award, claiming a substantial and continuing change of circumstances based on his decreased income, Wife’s increased standard of living, and a division of marital property that occurred after the decree. TC agreed with Husband and terminated his obligation, finding that the initial decree did not include sufficient findings of fact and that, had sufficient findings been made, the award of maintenance would have been unconscionable when the decree was entered. CA recognized that this was the incorrect standard, and reversed TC’s order.

On discretionary review, SC recognized that the “changed circumstances” Husband referred to, his decreased income and Wife’s improved standard of living, were actually the product of the divorce decree and its included maintenance obligation and were not the result of a material change in Husband’s or Wife’s circumstances after the marriage was ended. “ KRS 403 ..250(1) requires that the changed circumstances occur after the divorce decree and maintenance obligation become effective. Implicit in this requirement is the understanding that the circumstances of the parties brought about by the entry of the divorce decree and maintenance obligation cannot serve as the basis of the ‘changed circumstances’ required by the statute. Rather, the parties' circumstances at the time of the decree and maintenance obligation are the status quo against which the changed circumstances requirement of KRS 403 ..250(1) is to be measured.” Thus, the facts that Wife had an improved standard of living due to her receipt of maintenance and Husband had decreased income due to his payment of maintenance did not constitute changed circumstances.

The sale of the parties’ farm and distribution of the proceeds that should have occurred as part of the divorce decree also did not create a substantial and continuing change of circumstances sufficient to modify maintenance. Receipt of the proceeds left the parties in the same financial position, relative to the other.

CA affirmed.

EQUITANIA INS. CO. V. SLONE & GARRETT, P.S.C.
TORTS - Legal Negligence
2003-SC-001003-DG.pdf
PUBLISHED
REVERSING (WINTERSHEIMER)
DATE: 2/23/2006

S.Ct. reverses the CA, which had affirmed the TC SJ/jury verdict rejecting a very complex legal malpractice claim.

Two groups of shareholders fought for control of Equitania, an insurance company providing coverage for horse owners. One group of shareholders sued attorney Garrett alleging she negligently advised them during the dispute. The TC granted partial SJ to the attorney; the jury found for her on the remainder.

On appeal, the S.Ct. held that the jury instructions given by the TC over objection were not an accurate statement of the law regarding legal malpractice in Kentucky because they provided for an exception from attorney liability for errors in judgment. Whether an error of judgment is legal malpractice is a question of fact for the jury. The S.Ct. also held it was error to exclude expert testimony as no prejudice was shown.

HOWELL V. HERALD
WILLS, ESTATES & TRUSTS - Deathbed Gift
2003-SC-000476-DG.pdf
PUBLISHED
REVERSING AND REMANDING (LAMBERT)
DATE: 2/23/2006

John Turner died in 1998, leaving the bulk of his $15 million estate to a Foundation. Prior to death, he had talked with his lawyer about giving some real property to his niece. He decided against it. However, on his deathbed, he had his attorney prepare a power of attorney and then transfer the property to his niece, while reserving a life estate. The deeds were not delivered to the niece and she did not know about the gift. Thus, the issue was whether delivery had occurred. After reviewing Kentucky law and noting the conflicting authority, the Supreme Court concluded that the decedent’s retained life estate indicated the intent to give something—a remainder interest—and that the involvement of a third-party fiduciary (the lawyer serving as attorney-in-fact) satisfied the delivery and related completeness and irrevocability requirements. Thus, the Supreme Court reversed the Court of Appeals and held for the gift recipient.

KRAHWINKEL V. COMMONWEALTH ALUMINUM
WORKERS COMPENSATION - Independent Contractor; Double Recovery
2003-SC-000708-DG.pdf
PUBLISHED
REVERSING AND REMANDING (COOPER)
DATE: 2/21/2006

There's good news and bad news in this decision.

First, the Supreme Court decides to reverse the Court of Appeals on the issue of whether the exclusivity of workers' compensation prevents an independent contractor's employee from suing the property owner in tort. Krahwenkle worked for Intech, which was hired by Commonwealth Aluminum to replace a tank in its plant. Commonwealth apparently had the duty to keep the site clean and put up guard rails, which it did not due, and Krahwinkle slipped and fell into the tank. A jury awarded damages, but the Court of Appeals said that Commonwealth was an up-the-ladder employer and therefore immune from tort liability. The Supreme Court reversed, saying that replacing tanks was not a regular and recurrent part of Commonwealth's business, and therefore reversed the Court of Appeals. The bad news is that even though Intech waived its subrogation rights for the medical and temporary total disability it had paid in workers' comp, Krahwinkle did not get to keep those elements of damages, and Commonwealth, the tortfeasor, did not have to pay those elements of damages in order to avoid a windfall to the injured party. So, the windfall goes to the party who was at fault!

Hopelessly confusing this issue is AIK vs. Bush which says that the subrogation interest does not begin until the subrogation lien exceeds the plaintiff's attorney's fee. Does this mean in larger cases that the tortfeasor doesn't have to pay for medicals and temporary total disability while the subrogation interest does not get paid back? The Supreme Court makes mention of the fact that the subrogation interest did not assign its rights to Krahwinkle, but only waived them. However, if it assigned those rights to the plaintiff, he would would still get double recovery. Nevertheless, the suggestion is there and practitioners are advised to follow it until the Court comes up with a new decision. This and AIK vs. Bush are the result of old statutes in workers' comp which prohibit double recovery and explicitly limit the subrogation interest's rights to recover its payments until it has paid the cost of the plaintiff's attorney's fee and expenses. This literal reading of the statute is balanced against the common law liability of the third party, which has no statute to require it to pay its full liability.in order to permit double recovery.

Comment: Obtain an assignment of the workers compensation subrogation rights of recovery and do not rely upon simply an agreement by the insurer to 'forego', waive, or not to prosecute. Otherwise, the defendant/employer obtains a credit. An actual assignment of the benefits obviates this problem.

What about UM and UIM claims? These benefits are contractual and anyone can purchase additional protection for which a subrogation interest does not get credit. The double recovery statute (KRS342.700) only applies to proceedings against the employer and "such other person" as caused the injury. The UM or UIM coverage is not that other person, in fact, it belongs to the injured party himself, so it is just contractual. The fact that the amount payable under that policy is determined by the actions of the tortfeasor does not make it belong to the tortfeasor. In the same way, it does not protect the torfeasor, it is purchased to protect the injured party. Note that the Motor Vehicle Reparations Act and cases create a preference for UM and UIM coverage, but first look at 342.700, which is pretty specific about who it applies to. That statute was written in 1916, and they didn't even have UIM coverage back then!

Thanks to Scott Byrd, Patrick Bouldin, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Michelle Eisenmenger Mapes , Peter Naake, Paul C. O'Bryan, Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's published appellate decisions.

COOPER, J., DISSENTS FOR THE REASONS SET FORTH IN HIS DISSENTING OPINION IN GRIMES V. MCANULTY, 957 S.W.2d 227, 229-33 (KY. 1997), AND BECAUSE HE BELIEVES FACTUAL ISSUES SHOULD BE RESOLVED BY JURIES, NOT JUDGES.

error were rejected.

GAITHER V. COM.
CRIMINAL - Pro Se Appeal (Dismissal affirmed, errors not preserved; Remmer issue not preserved)
2004-SC-000474-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

GAITHER V. KY. COURT OF APPEALS
CRIMINAL - Denied mandamus to review criminal defendant's RCr 10.06 action to protect his 'jural rights'
2005-SC-000910-OA.pdf
NOT PUBLISHED
DENYING
DATE: 2/23/2006

SC rejected pro se Defendant's 15 claims of error in affirming his convictions for first-degree manslaughter, kidnapping, theft by unlawful taking of property valued less than $300, and tampering with physical evidence.

RICHARDSON V. COM.
CRIMINAL
2004-SC-000561-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

SC affirmed Defendant's conviction by a Fayette Circuit Court jury of first-degree possession of a controlled substance, and first-degree persistent felony offender (PFO).

TANNER V. COM.
CRIMINAL - Double Jeopary
2004-SC-000641-MR.pdf
NOT PUBLISHED
AFFIRMING IN PART AND REVERSING AND VACATING IN PART
DATE: 2/23/2006

Because all of the elements of theft as set forth in KRS 514.030 are incorporated into the robbery statute (KRS Chapter 515), Tanner was impermissibly subjected to double jeopardy.

RICHARDSON V. COM.
CRIMINAL -Arguments (counsel prohibited from defining term "reasonable doubt'")
2004-SC-001028-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

Trial Court's limitation on defense counsel's closing argument concerning the definition of reasonable doubt did not warrant reversal.

DEAN V. COM.
CRIMINAL - Search and Seizure
2004-SC-001054-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

Jefferson Circuit Judge James Shake's order denying Defendant's motion to suppress upheld. Trial court's finding of consent was supported by substantial evidence.

RICE V. COM.
CRIMINAL - Search and Seizure
2004-SC-001076-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

The search of Defendant's automobile was lawful as a search incident to arrest and as an automobile search based upon probable cause. Prosecutor's comments did improperly attempt to define reasonable doubt, however error was harmless.

LAMBERT, C.J., AND COOPER, J., DISSENTS, FOR THE REASONS SET FORTH IN HIS DISSENTING OPINION IN JOHNSON V. COMMONWEALTH, _ _ _ S.W.3d_ _ _ , _ _ _ (slip op. at 8-11), 2005 WL 3500288 (Ky. 2005), i.e., THAT IT WAS REVERSIBLE ERROR TO PERMIT THE PROSECUTOR TO DEFINE "REASONABLE DOUBT."

BEARD V. COM.
CRIMINAL - Indictments
2004-SC-001108-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

Defendant was not prejudiced by the superseding indictment, nor was the indictment duplicative. RCr 6.16 allows amendment of an indictment "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

MILES V. COM.
CRIMINAL - Prosecutorial misconduct
2005-SC-000123-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

SC affirmed Defendant's convictions for three counts of first degree robbery, KRS 515.020, one count of first degree burglary, KRS 511.020, and being a persistent felony offender in the first degree, KRE 532.080(3). There was no prosecutorial misconduct that warranted reversal.

HINKLE V. COM.
CRIMINAL - Competency hearing
2005-SC-000342-MR.pdf
NOT PUBLISHED
AFFIRMING IN PART AND REMANDING IN PART
DATE: 2/23/2006

Case remanded to the Knox Circuit Court for it to determine whether a retrospective competency hearing is constitutionally permissible under due process and, if necessary, to conduct such a hearing within 60 days from the entry of this Opinion and Order. If the trial court rules that a competency hearing is not constitutionally permissible, or if it determines that Hinkle was not competent to stand trial, it shall enter an order granting a new trial pursuant to RCr 10.02. Hinkle shall not be retried until the trial court finds him competent to stand trial. If the trial court determines that a retrospective competency hearing is warranted and constitutionally permissible, and further finds that Hinkle was competent to stand trial, then it shall make findings of fact in support of this conclusion in its order, which shall be appealable by Hinkle.

SHIRLEY V. COM.
CRIMINAL - Lesser Instructions
2005-SC-000503-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

TC did not err by failing to instruct the jury on self-protection and the protection of others. TC did not err in failing to further clarify the distinction between wanton murder and second-degree manslaughter.

HARDIN V. COM.
CRIMINAL - Evidence
2005-SC-000505-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

No abuse of discretion in the trial court's ruling which precluded details regarding a drug transaction the victim had with the alleged new buyer just prior to his death and the buyer's name/physical description. This information is not indicative of the victim's state of mind at the time of his death and would have unnecessarily maligned the victim's character.

KREMER V. COM.
CRIMINAL - KRS § 500.110; Speedy trial waived upon agreed continuance
2005-SC-000520-MR.pdf
2005-SC-000585-MR.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

TC properly denied Defendant's motion to dismiss because Defendant did knowingly and voluntarily waive any perceived right to be tried by time required pursuant to KRS § 500.110.

EASON V. HORNBACK CABINET CO.
WORKERS COMP - Expert testimony required re proper interpretation of AMA Guides as a medical question
2005-SC-000561-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

SHOEMAKER V. IRVING MATERIALS, INC.
WORKERS COMP - Cervical condition not accident-related
2005-SC-000710-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/23/2006

HODGES V. SAGER CORP.
WORKERS COMP - Reopening for post-award change of disability and KRS 342.125(1)(D)
2005-SC-000066-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/21/2006

LANE V. S & S TIRE, INC. #15
WORKERS COMP - Reasonable basis for refusing to pay TTD and medical benefits
2005-SC-000141-WC.pdf
NOT PUBLISHED
AFFIRMING
DATE: 2/21/2006

HOWARD V. PEABODY COAL CO.
WORKERS COMPENSATION - Request for attorney fee for obtaining retraining benefits denied as untimely
2005-SC-000327-WC.pdf
PUBLISHED
AFFIRMING
DATE: 2/23/2006