JUNE 22, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:31)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes].
Nos. 651-676; 26 rendered decisions with 7 published and 4 reversals
PUBLISHED (COA).
BAKER V. COM.CA reversed and remanded Defendant's conviction and 3.5 year sentence for criminal non-support due to TC's failure to conduct indigency hearing. In Tinsley v. Commonwealth, 185 S.W.3d 668 (Ky.App. 2006), this Court recently summarized the standards governing the determination of indigency for the purpose of appointment of counsel. The opinion outlined the two-step process that must be followed if a defendant raises the issue of indigency. First, “a hearing must be held . . . in accordance with the requirements set forth in KRS Chapter 31, and the court must enter findings at the conclusion thereof.” TC did not hold a formal hearing, nor did it enter written findings to support its decision to vacate his public defender appointment. The decision appears to have been based on information elicited at the September 16, 2005, pretrial conference: namely, that Baker was planning to retain an attorney to handle his civil case whom he was hoping would also review his criminal case, and that he had been employed since May or June. The court made no inquiries as to the amount of Baker’s income, nor is there any indication in the record that the court considered any of the other factors listed in KRS 31.120(2). The court also ordered the execution of the bench warrant, thereby making it impossible for Baker to continue his employment without securing work release, which was not granted. Next, even assuming for the sake of argument that the findings of the trial court were adequate to support its conclusion that Baker was not indigent, the court also failed to comply with the next step of the process as outlined in Tinsley. “[I]f the findings do not support indigency, and the defendant persists in not employing counsel, he shall be deemed to have waived counsel, whereupon he is entitled to the protections of Faretta.” Tinsley at 675. “In Kentucky, a trial court is under an affirmative duty to hold a Faretta hearing when an accused attempts to make an absolute or limited waiver of the right to counsel.”
Digested by Scott
Byrd @ www.OlginandByrd.com
CA affirmed Circuit Court's order pursuant to RCr 11.42 granting Wood a new trial based upon evidence that the jurors consulted a dictionary during their deliberations for the definition of the word “rape”. TC did not err by hearing the juror's testimony about the alleged misconduct. The jury's use of a dictionary falls into the other category described in Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001), i.e., it is an “overt act” about which a court may receive testimony in order to ensure a defendant is given a fair trial. As to the merits of the juror's testimony regarding the alleged misconduct, Kentucky courts have recognized that “[t]here is a time and a place for all things. Permitting a jury to take a dictionary to the jury room is neither the time nor the place.” Cole v. Commonwealth, 553 S.W.2d 468, 471 (Ky. 1977). Nevertheless, a jury's use of a dictionary in the jury room is not reversible error per se. Rather, a defendant must show that he was prejudiced by the conduct. In this matter, Wood clearly was prejudiced by the juror misconduct. The jury foreperson testified that during deliberations, the jurors were confused as to the “description” of rape, specifically as to whether it required penetration. So the jurors would be on the same “platform,” they consulted a dictionary for the definition of “rape” and found that according to such definition, rape could occur without ejaculation or penetration. It is clear, however, that penetration is a required element in each of Kentucky's rape offenses. See KRS 510.040 – 510.060; KRS 510.010(8). Since the jury here was instructed not only as to first-degree rape, but also as to first-degree sexual assault which only requires “sexual contact” and thus no penetration, it is clear that Wood's substantial rights were prejudiced.
Digested by Scott
Byrd @ www.OlginandByrd.com
Circuit Court properly dismissed pro se inmate's challenge to the Department of Corrections (DOC) designating him as a violent offender pursuant to Kentucky Revised Statutes (KRS) 439.3401. In 2002, the legislature amended KRS 439.3401 to specifically include first degree robbery as a stand-alone violent offense. When Wathal pled guilty to first degree robbery, he automatically became a violent offender under the plain meaning of the statute. Further, CA rejected Wathal's contention that the DOC failed to follow its own administrative regulation, 501 KAR 1:030(3)(1)(b), to calculate his parole eligibility. The regulation states that 85% of the inmate's sentence must be served when the crime is a “Class B felony where the elements of the offense or the judgment of the court demonstrate that the offense involved death or serious physical injury to the victim . . . .” In this case, the DOC regulation is in conflict with the violent offender statute. “[I]t is axiomatic that the grant of the power to make regulations does not authorize an administrative agency to adopt regulations which are contrary to legislative policy as expressed in the statutes.” Kentucky Alcoholic Beverage Control Bd. v. Anheuser-Busch, Inc., 574 S.W.2d 344, 345 (Ky. App. 1978). Accordingly, it is clear that KRS 439.3401 controls, and the DOC properly calculated Wathal's sentence pursuant to KRS 439.3401(3).
Digested by Scott
Byrd @ www.OlginandByrd.com
Ex-Husband appealed TC ruling that required him to pay all the debt remaining on the marital residence, gave Ex-Wife half of any future award he may receive from his lawsuit against his former employer, and awarded maintenance to Ex-Wife. Although Ex-Husband made about three times Ex-Wife’s income during the marriage, he was fired from his employment after failing a mandatory drug test. TC found that this unemployment was not voluntary.
Debt on Marital Residence:
Because of the disparity in incomes between John and Barbara and in lieu of maintenance, TC initially ruled that Ex-Husband was responsible for making the mortgage payments on the marital residence during the pendency of the divorce action. However, Ex-Husband failed to make the mortgage payments as ordered, resulting in foreclosure on the mortgage prior to TC’s final hearing, which required Ex-Wife and the parties’ two children to find a new home. Following a sale of the property, there remained a deficiency balance of approximately $100,000.00. Though Ex-Husband failed to make the payments due to his firing, TC nonetheless found that Ex-Husband had sufficient income to maintain the mortgage payments until the final hearing. CA found no abuse of discretion in this decision.
Division of Potential Wrongful Termination Award:
Ex-Husband argued that awarding Wife half of his potential wrongful termination award would accord Ex-Wife a windfall. CA did not dispute the possibility that this might be true, but noted that any attempt by TC to divide the claims as a part of the marital estate was premature given the fact that there was no proof in the record as to the exact nature of the claims asserted by Ex-Husband and whether any damages awarded for those claims may properly be deemed marital property. CA noted that there is no Kentucky precedent as to the divisibility of speculative wrongful termination awards, but the treatment of other forms of future income in Kentucky, such as personal injury and workmen’s compensation claims, reveals that such awards have some components that are deemed marital property and some that are not. Thus, because Ex-Husband had not yet received any damage award pursuant to his wrongful termination claim, and further because of the speculative nature of any such award and its characterization, CA held that TC lacked a sufficient basis for deeming the entirety of his wrongful termination claims marital property. CA noted that if, at some point in the future, Ex-Husband is successful and receives a monetary judgment against his former employer, TC may revisit the matter for an appropriate determination at that time.
Award of Maintenance to Ex-Wife:
Ex-Husband claimed that TC should not have ordered him to pay maintenance to Ex-Wife because TC awarded her majority of marital property and she had employment income sufficient to provide for her own needs. CA disagreed with this argument, finding that Ex-Wife’s income and assets were insufficient to support the standard of living acquired during the marriage. However, CA held that TC failed to consider Ex-Husband’s ability to pay when it awarded maintenance to Ex-Wife, and reversed the maintenance order and remanded to TC for additional proceedings.
By Michelle Eisenmenger Mapes with www.Louisvilledivorce.com
NATIONWIDE MUTUAL FIRE INS. CO. V. PELGENCOA reverses holding in declaratory action which held that Nationwide could not rely exclusions to deny coverage in a shooting death.
Charles R. Swope fatally shot his estranged wife and himself. The record shows years of mental illness on his part. His
administratrix sought coverage under the couple's homeowners policy; Nationwide denied personal liability and medical coverage under the
intentional act exclusion and the criminal act exclusion. Nationwide then filed this dec action.
After a hearing, the TC held that Nationwide could not rely on either exclusion b/c it was undisputed that Mr. Swope lacked the
capacity to understand the physical nature of the consequences of his actions.
Nationwide argues on appeal that the TC abused its discretion in rejecting the "inferred intent" rule. CA agreed, noting that the rule is
supported by sound public policy principles, in part because it removes from the trial court the burden of determining an actor's
thought process when engaging in conduct resulting in harm.
by
John
Hamlet
COA rules that a conveyance of a "30 foot width" created a nonexclusive easement (based on the TC's finding that the terms of the deed were ambiguous and admitted testimony of the Grantor that he intended to convey an easement). Deed was drawn by Grantee and used boilerplate language of a fee simple conveyance but contained the word "road" which is generally used in easements and that the conveyed property "crosses" the Grantor's property further evidence of the intent of an easement. The testimony of the Grantor was a proper admission of extrinsic evidence by the TC because of an ambiguity between the boilerplate language of the deed and the portion written by the parties. Further, because the deed was drafted by the Grantee the TC was correct by not following the general rule that a deed is construed most strongly on the Grantor and most favorably on the Grantee (the underlying rationale for the rule is removed because the Grantee prepared this deed).
by
Paul O'Bryan
This case addresses the difference between an ”unexplained fall” and an “idiopathic fall”. The difference is important in workers’ comp because injuries which arise from an unexplained fall at work are work-related while those caused by an idiopathic fall are not. The employee was unloading coal cars and fell over backwards injuring her shoulder. She did not testify that she tripped or slipped, but she guessed that she lost her balance, although she did not know. She also testified that she previously sought treatment for feeling off balance. However, she did not testify that she lost consciousness. The Administrative Law Judge ruled that this was an unexplained fall, and applied a presumption of work-relatedness in unexplained falls established by the Courts in Coomes v. Robinson Lumber, 427 SW2d 809 (Ky. 1968). The employer appealed arguing that the Courts could not create such a presumption where the legislature has not done so. The Workers’ Compensation Board affirmed, as did the Court of Appeals. The Court cited to Larson’s Workers’ Compensation in reasoning that, but for the employment and being on the job, the worker would not have been injured. Whereas, if the proof is that a medical condition such as a seizure or blackout condition caused the fall, then it is personal to the claimant and not related to the work, therefore, not a compensable injury.
By
Peter Naake
NOT PUBLISHED (COA)
JONES V. HANEYPATRICK V. CITIZENS BANK & TRUST CO. OF
JACKSON
CIVIL PROCEDURE: MOTION UNDER CR 59 AND WAIVER
2005-CA-002344
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/22/2007
MCGREGOR V. COM.
CRIMINAL: Commenting on silence of defendant
EVIDENCE: Self-authenticating documents under KRE 902(4)
2005-CA-001773
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/22/2007
CARPENTER V. COM.
CRIMINAL: VOLUNTARINESS OF PLEA AND COLLATERAL CONSEQUENCES; SIXTH AMENDMENT
INEFFECTIVE ASSISTANCE OF COUNSEL
2006-CA-001012
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/22/2007
HAYS V. COM.
CRIMINAL: RETURN TO INDIANA TO RECOMMENCE SENTENCE
2006-CA-001194
NOT PUBLISHED:
DATE RENDERED: 6/22/2007
ELLIS V. COM.
CRIMINAL: RCR 11.42
2006-CA-000119
NOT PUBLISHED: VACATING AND REMANDING
DATE RENDERED: 6/22/2007
CHARLES V. KENTUCKY WORKFORCE DEVELOPMENT
CABINET
EMPLOYMENT: GOVERNMENT DISABILITY RETIREMENT, BURDEN OF PROOF
2005-CA-002615
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/22/2007
COX V. COX
FAMILY LAW: MAINTENANCE; SOUND DISCRETION OF COURT
2005-CA-000317
NOT PUBLISHED:AFFIRMING
DATE RENDERED: 6/22/2007
RUTHERFORD V. PHILLIPS
RELEASES: DEFINED AND APPLICATION IN CONTRACTUAL MATTER; CONSIDERATION
2006-CA-000234
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/22/2007
KELLY MOUNTAIN LUMBER V. MEADE
WORKERS COMP: EMPLOYEE VS. INDEPENDENT CONTRACTOR STATUS
2006-CA-001611
NOT PUBLISHED:
DATE RENDERED: 6/22/2007
Editors: 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.