MAY 24, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:25)
PUBLISHED (SCOKY).
WEBB V. SHARPCLARK V. COMMONWEALTH
CRIMINAL: JURY INSTRUCTIONS; PRIOR BAD ACTS
2005-SC-000177-DG.pdf
PUBLISHED: REVERSING AND REMANDING (MINTON)(SCOTT DISSENTING W/SEP OP
W/CUNNINGHAM JOINING)
DATE RENDERED: 5/24/2007 (FROM BULLITT CIR. CT; HON. THOMAS WALLER)
On discretionary review, SC reversed sexual abuse convictions of former priest Daniel Clark. TC committed reversible error by (1) refusing to instruct the jury on sexual abuse in the second degree; and (2) by permitting the Commonwealth to present testimony to the jury of Clark's prior sexual misconduct involving another victim.
In most situations, an instruction on second-degree sexual abuse is not a lesser-included offense when the primary charge is first-degree sexual abuse. TC in this case acted properly in refusing to instruct the jury on second-degree abuse as to Clark's alleged conduct toward
E.H. since E.H. turned twelve in October 2002, several months after the expiration of the time period set forth in the indictment . But in a situation like the charge involving L.H .,where the
date(s) of the abuse are not described with particularity in either the indictment or the testimony such that a reasonable juror could have concluded that the victim was either eleven or twelve when the abuse occurred, TC erred by failing to instruct a jury on both first and second-degree sexual abuse.
As a prerequisite to the admissibility of prior bad acts evidence, the proponent of the evidence must "demonstrate that there is a factual commonality between the prior bad act and the charged conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual. Conduct that serves to satisfy the statutory elements of an offense will not suffice to meet the modus operandi exception. Instead, the modus operandi exception is met only if the conduct that meets the statutory elements evidences such a distinctive pattern as to rise to the level of a signature crime. Here, the Commonwealth relies upon the following alleged similarities: all three victims were of the same approximate age ; Clark put his hands inside each victim's pants and fondled the penis; Clark never asked any of the three victims to reciprocate his sexual contact with them ; and Clark was in a position of trust with each victim. By contrast, there are numerous differences in Clark's conduct toward all three victims . As previously mentioned, not all of the victims accused Clark of orally abusing them. And though we agree with the trial court that it is not necessary that the abuse always occur in the same geographical location, the abuse of all three victims occurred in many different places, such as school, bedrooms, bathrooms, living rooms, and vehicles. Moreover, Clark sometimes abused the children when he was alone with them and sometimes abused them when others were around. Finally, Clark's position with regard to M.M . and E .H . and L.H . is vastly different because he was a counselor and priest to M.M ., while he was a longstanding friend of the family of
E.H. and L.H . So, it appears that, at most, there were as many differences as similarities between Clark's past and current alleged conduct. This state of relative equipoise is insufficient to meet the demanding modus operandi exception.
By
Scott
Byrd
On discretionary review, SC reversed Defendant's drug convictions based upon a deficient search warrant. Here, the Defendant claimed that the affidavit did not state with specificity what the alleged contraband was, listed the wrong name of the property owner on the second page, and contained no information to establish the reliability of the informant, who was not identified. TC denied the motion to suppress based upon the good faith exception to the warrant requirement. The affidavit listed the thing to be seized only as "illegal contraband," the informant was not named, and the officer's reason for believing the informant to be reliable was not stated. The affidavit states that the officer's independent investigation consists of "information" that was received from a deputy sheriff without stating the nature of that information. Further, the warrant is facially deficient because it does not adequately describe the thing to be seized. On the whole, it is impossible to tell the basis of the officer's knowledge or exactly what he is looking for. The affidavit is thus so lacking in indicia of probable cause that any warrant issued on it must likewise be lacking. Failing to state what the object of the search is amounts to requesting permission to go on a fishing expedition. While the requesting officer may indeed be acting in good faith, no one's home should be searched without a specific object of the search being stated . For this reason, failing to name the thing to be seized is not covered by the "good faith" justification for a search on a warrant issued by a judicial officer that lacks probable cause .
By
Scott
Byrd
Upon certification of the law, SC held KRS Chapter 304 does not attach criminal liability upon a non-owner operator of an uninsured vehicle. The amendments made in 2005 do not adequately demonstrate that the General Assembly wanted to change the statutory interpretation of KRS Chapter 304.
By
Scott
Byrd
ATTORNEY DISCIPLINARY MATTERS - PUBLISHED
KBA V. GEORGE T. RORRER, IIIORDER PERMANENTLY DISBARRED RESPONDENT FROM THE PRACTICE OF LAW.
CONFIRMED AUTOMATIC SUSPENSION FOR PLEA OF GUILTY TO FELONY.
GENON G. HENSLEY V. KBA
ATTORNEYS
2007-SC-000149-KB.pdf
PUBLISHED:
DATE RENDERED: 6/5/2007
ORDER SUSPENDED MOVANT FROM THE PRACTICE OF LAW FOR 61 DAYS WITH CONDITIONS.
CHAD DONOVAN TALBOTT V. KBA
ATTORNEYS
2006-SC-000902-KB
PUBLISHED
DATE: 5/30/2007
ORDER RESTORED MOVANT TO THE PRACTICE OF LAW.
NOT PUBLISHED (SCOKY)
GORDON V. COM.GREY
V. COM.
CRIMINAL: Destruction of evidence (due process)
2005-SC-000590-MR.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (FAYETTE COUNTY)
DATE RENDERED: 5/24/2007
PATE
V. COM.
CRIMINAL: Search and seizure (express vs implied coercion; and merely
stating have a warrant)
EVIDENCE: KRe 504(c)(1) - no marital privilege in criminal proceeding
examined
2005-SC-000654-MR.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (BRACKEN CIR CT)
CUNNINGHAM CONCURS BY SEP. OP.
DATE RENDERED: 5/24/2007
SMITH
V. COM.
CRIMINAL: CONFRONTATION CLAUSE; PLAN B DEFENSE BLAMING THIRD PARTY;
DISCOVERY VIOLATION
2005-SC-000840-MR.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (WHITLEY COUNTY)
DATE RENDERED: 5/24/2007
FULCHER
V. COM.
CRIMINAL: SEARCH AND SEIZURE (PROBABLE CAUSE)(AFFIDAVIT)
2005-SC-000883-MR.pdf
2005-SC-000952-TG.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (LOGAN COUNTY)
DATE RENDERED: 5/24/2007
ROWE
V. COM
CRIMINAL: SEARCH AND SEIZURE
2006-SC-000356-MR.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (PIKE COUNTY)
SCOTT, J. NOT SITTING
DATE RENDERED: 5/24/2007
JOHNSON
V. CHERNE CONTRACTING CO.
WORKERS COMP: WORK-RELATED TRAUMA AND INDEPENDENT INTERVENING CAUSE;
MITIGATION; MEDICAL ADVICE
2006-SC-000576-WC.pdf
NOT PUBLISHED: MEMORANDUM OPIN. OF THE COURT AFFIRMING (FROM COA)
LAMBERT, CJ, DISSENTS BY SEPARATE OP. IN WHICH SCOTT, J., JOINS
DATE RENDERED: 5/24/2007
MCCAULEY
V. PPG INDUSTRIES D/B/A PORTER PAINTS
WORKERS COMP: DISABILITY VS. IMPAIRMENT
2006-SC-000696-WC.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (FROM COA)
DATE RENDERED: 5/24/2007
DAVIS
V. CARHARTT INC
WORKERS COMP: ARBITRATION; DISPUTED CLAIMS UNDER ALTERNATIVE PROCEDURES
THAN W.COMP
2006-SC-000758-WC.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (FROM COA)
DATE RENDERED: 5/24/2007
PIKE
V. FAMILY DOLLAR STORE
WORKERS COMP: INCREASED IMPAIRMENT AND OBJECTIVE MEDICAL EVIDENCE
2006-SC-000850-WC.pdf
NOT PUBLISHED: MEMORANDUM OPINION OF THE COURT AFFIRMING (FROM COA)
DATE RENDERED: 5/24/2007
Thanks to Scott Byrd, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.