JULY 20, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:35)
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. 755-773; 19 rendered decisions with 7 published and 4 reversed, remanded, dismissed and/or vacated decisions.
PUBLISHED (COA).
TAYLOR V. O'NEILIn a highly publicized case involving a fatal Louisville Metro Police shooting of a handcuffed man, the estate sued for wrongful death and the CA affirms the jury verdict of justifiable use of deadly force. (Jefferson Cir. Ct., Hon. Kathleen Voor Montano, judge, presiding).
On 12/5/02, LMPD officers O'Neil and Luckett went to a home on St. Catherine street in Louisville to investigate a crime. On approach, they heard screaming and a female voice say the word "knife." Luckett saw James Edward Taylor through the open door with his fists clenched; O'Neil saw crack pipes on a table. In addtion to Taylor, there were 4 other people in the apartment; one was screaming that Taylor was not going to cut her. By all accounts, Taylor was very agitated and appeared intoxicated. Luckett entered the apartment, sat Taylor in a chair and handcuffed his hands behind his back. While O'Neil was searching the other occupants, Taylor repeatedly tried to rise from the chair, though Luckett was able to push him back down. Taylor retrieved a box cutter from his pocket, got up and began advancing toward the officers. O'Neil drew his weapon, ordered Taylor to stop and drop the knife. Taylor refused and attempted to slash
Luckett. Several witnesses testified that Taylor cursed the officers and challenged them to "come on." At this point, the accounts vary somewhat. Luckett had allegedly backed up to the door and O'Neil was backed into a corner. Taylor advanced on O'Neil. O'Neil fired once, hitting Taylor in the chest. Taylor did not stop; O'Neil fired again, hitting Taylor ten more times. Despite the shots, Taylor was still standing and the box cutter was in his hands. O'Neil kicked at Taylor; Taylor fell backward and died at the scene.
The estate sued the city, the police department and the officers for wrongful death and failure to adequately train and supervise the officers. On appeal, the estate argues that the appellees improperly used peremptory challenges to strike African-American jurors from the panel, that it was entitled to a jury instruction on its independent negligence claim against the city, that it was entitled to directed verdicts on its claims against the city and O'Neil, and that the trial court should have granted a mistrial based on improper comments during opening statements. Cross-appeals were also filed.
After voir dire, the city and O'Neil independently used their peremptory challenges to exclude the 4 remaining African-American jurors from the panel. All of the African-Americans stricken had answered "yes" when asked if they believed it is "impossible for a man in handcuffs to pose a threat of death or serious bodily injury to a police officer." The estate argued that these improper race-based strikes, noting that defense counsel had circled the race of all members of the venire on the juror questionnaire forms; that the strikes excluded all African-Americans from the panel; and that defense counsel chose not to strike whites who also answered "yes" to the relevant question. CA holds that the estate did not show the TC's determination of no race-based strikes to be wrong to a clear and convincing degree.
CA found no clear error in its rulings on directed verdict. CA also holds that there are no Kentucky cases holding that an employer may be independently liable for an injury caused by its failure to adequately train or supervise an employee. Finally, the estate moved for a mistrial when O'Neil's counsel, during opening statements, informed the jury that Taylor had been convicted of manslaughter. O'Neil's counsel argued that it was relevant to the estate's claim for the destruction of Taylor's power to earn money. CA finds no abuse of discretion in failing to grant a mistrial.
By
John E. Hamlet
GUSSLER
V. COM.
CRIMINAL: RCR 11.42, CR 60.02 AND NEW SENTENCE HEARING
2006-CA-000754
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; COMBS, WINE CONCUR
COUNTY: LAWRENCE
DATE RENDERED: 7/20/2007
Circuit Court properly denied Gussler's various post-conviction motions seeking relief from his 1987 sentence of life in prison without the possibility of parole for 25 years. The filing of the motions was predicated upon the rendering of the United States Supreme Court's opinion in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Roper overruled the earlier United States Supreme Court opinion in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), which held that death sentences passed constitutional muster for juveniles between the ages of 15 and 18 who committed capital crimes. Roper, however, found such sentences to be unconstitutional, reasoning that juveniles had diminished culpability due to their age. The holding in Roper does not affect the imposition of a sentence of life imprisonment without the possibility for parole for a minimum of 25 years. CA rejected Gussler's argument that his guilty plea in the circuit court was made in order to avoid the imposition of the death penalty, and therefore, he was denied the benefit of his bargain.
Digested by Scott C. Byrd
@ Olgin and Byrd
CA affirmed Land's conviction for Burglary in the 2nd Degree and being a Persistent Felony Offender in the Second Degree. TC properly denied Defendant's motion for a mistrial following the admission of evidence concerning an original charge during the sentencing hearing. Under KRS1 532.055(2)(a)(2), the Commonwealth is permitted to introduce “[t]he nature of prior offenses for which he was convicted.” At sentencing, the Commonwealth is permitted to divulge some details of the indictment or charge. Maxie v. Commonwealth, 82 S.W.3d 860, 865-66 (Ky. 2002). CA agreed with the trial court that a generic mention of a charge of “theft of mail matter,” while admittedly the mention of a Class D felony, would be insignificant to a jury. Thus, any error in reading the charge prior to amendment would have been harmless. RCr 9.24.
CA dismissed Land's argument that error resulted from the jury’s failure to properly complete the sentencing form, i.e., the jurors' failure to impose a punishment for burglary in the second degree, before the panel's discharge. Although the defense objected once the incomplete form was discovered, after the jury was discharged, this objection was untimely and therefore not preserved. the jury set the penalty within the range authorized by the PFO statute, and Land received a sentence which was authorized by law. In addition, the parties declined the trial court’s offer to review the jury’s verdict prior to the jury’s discharge. Thus, the jury’s failure to complete the sentencing form for the underlying offense was a procedural rather than a substantive defect, and further sentencing deliberations were unnecessary after the jury was discharged. The trial court's reconvening of the jury does not affect the fact that the jury's recommended sentence on the PFO charge was, and remained, 20 years.
Due to the timing of this case and the
upcoming election in November, I have digested this in more detail than
normal. However, the bottom line from the COA decision is that
although it found election illegalities and fraud at one precinct in the
election for mayor of Tomkinsville, it would not invalidate the whole
election but would not count those votes from the machines at the one
precinct even though the candidate was not involved in those
illegalities. Note that this was a one-vote win!
Beverly McClendon brings this appeal from a judgment in an election contest that voided the November 7, 2006, mayoral
election for the city of Tompkinsville, Kentucky. COA affirmed in part, reversed
in part, and remanded.
Jerry Hodges filed a “Petition for Recount Pursuant to KRS 120.185 and Petition of Election Contest” in the Monroe Circuit Court
challenging the legality of the general election for the mayor of the city of Tompkinsville.
In the petition, Hodges initially named McClendon and the Monroe County Board of Elections (Board) as respondents. The Board conducted a recount of the mayoral election
and the election results were verified. Following the recount, the Board was dismissed as a party. Hodges specifically challenged the legality of the votes cast by walk-in absentee ballot in the West Tompkinsville and Courthouse Precincts, which are located within the city of Tompkinsville and comprise the Fourth Magisterial
District (District 4).2
The record reveals that in the general election conducted on November 7, 2006, McClendon won the mayoral race by a single vote. McClendon's total was 325
votes, one more than the 324 votes received by Hodges.3 Of this total vote, McClendon received 162 votes by walk-in absentee ballot and Hodges received 35. Of the 162 walkin absentee votes for McClendon, 102 were from District 4. And, of the 35 walk-in absentee votes for Hodges, 9 of those votes were from District 4.
After a nineday bench trial where more than one hundred witnesses testified, the circuit court found
“there was no proof as to specific acts of misconduct by the Respondent Beverly McClendon.”
Rather, the circuit court found that the new electronic voting machines furnished by Harp Enterprises in 96 of Kentucky's 120
counties was the cause of some concern and intimidation on the part of certain
voters such that many individuals apparently obtained assistance in voting that were not authorized to obtain assistance pursuant to Kentucky Statute because they were not blind, they understood the English language, and they have no physical disability which
affected their ability to cast a vote.
However, the newness of the voting machines did not create false addresses for certain voters, and there was evidence that the utilization of false addresses in District #4 regarding the walk-in absentees was rampant.
Based on the evidence heard, the circuit court invalidated the mayoral election and specifically
concluded that the illegal acts regarding walk-in absentees in the 4th District have been so pervasive and numerous so as to leave no reasonable person any doubt as to whether or not the results obtained in that district were the will of the
electorate; that due to the closeness of the election, all of the precincts can be called in to question, even though the proof in this action was limited to the walk-in absentees in
District #4.
KRS 120.165(4) prescribes that if it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the Circuit Court, or an appellate court, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify. If one of the parties is adjudged by the court to be elected to the office, he shall, on production of a copy of the final judgment, be permitted to qualify or be commissioned.
Accordingly, the court is directed to void an election when fraud, intimidation, bribery, or violence has so corrupted the election that the true outcome of the election cannot be fairly determined from the whole record.
In the case sub judice, the circuit court found pervasive fraud only in the walk-in absentee ballots in District 4 and yet voided the mayoral election because it could not determine a true sense of the electorate. Having reviewed the entire videotape of the trial proceedings, we believe the circuit court's finding of pervasive fraud in the walk-in absentee ballots in District 4 to be substantiated by the record but find no evidence to support a finding of pervasive fraud in the election as a whole.
Given that the illegally procured votes were directed to that race, there is no basis for concluding that similar conduct occurred in other precincts where the District 4
magistrate race was not even on the ballot. Second, there was absolutely no evidence of any illegal or fraudulent conduct, even in District 4, on election day, November 7, 2006, when voters would have voted in their respective precincts as opposed to the county clerk’s office. All of the illegal voting about which the trial judge heard evidence involved walk-in absentee votes cast at the county clerk’s office in the days preceding the election.
Thus the trial court erred in concluding that there was pervasive fraud requiring the entire mayoral election to be set aside.
On the basis of the facts before the trial court, we conclude that the walk-in absentee voting in District 4 must be discarded as permeated with illegality and
fraud.
The trial court specifically found that although there was “no proof of specific acts of misconduct” by McClendon, his margin in the walk-in absentee voting did indicate that “he benefited from the manner in which the election was conducted.”
It is not essential to establish a nexus between proven misconduct and the
candidate that benefited from the illegality.
In the oft-cited words of Chief Justice Palmore, “[w]hen all else is said and done, common sense must
not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970).
Because the true sense of the electorate was not in doubt except for the walk-in absentee voting in District 4, there is
no basis for setting aside the entire mayoral vote.
The COA requested the Attorney General and the Secretary of State take whatever action that they may deem to be warranted concerning the conduct of the walk-in absentee voting in the November 7, 2006 mayoral election, as well as to prevent such abuses in the conduct of future elections.
The winner of the Tompkinsville mayoral election shall be determined by deducting the walk-in absentee votes in District 4 from the total votes received by each mayoral candidate as previously certified in the November 7, 2006, election.
By Michael Stevens
This is an excellent primer on the issue of wrongful discharge based upon public policy against termination for refusal to violate the law. It delineates the three criteria necessary to maintain a claim and gives an analysis by the COA to the specific facts in the case. It provides a great yardstick to measure against a potential case. It is a must read.
Sharon Follett appeals from the Montgomery Circuit Court’s
order granting summary judgment in favor of Gateway Regional Health
System, Inc. (Gateway) and its CEO, Patrick Romano, on Follett’s claim
of wrongful discharge. Follett, then the Director of Nursing at Mary
Chiles Hospital, claimed she had been wrongfully discharged for her
actions regarding two situations which occurred at the hospital during the
year prior to her discharge. The first involved her reporting
suspicions that an emergency room doctor was under the influence of
alcohol while on duty. The other situation involved her involvement in
reporting suspected emergency room billing irregularities at the hospital.
Under Kentucky law, an employer may ordinarily “discharge his at-will
employee for good cause, for no cause, or for a cause that some might view
as morally indefensible.” There is a narrow public policy
exception to this “terminable at-will” doctrine, however, whereby an
employee has a cause of action for wrongful discharge when the discharge
is contrary to a fundamental and well-defined public policy as evidenced
by existing law evidenced by a constitutional or statutory provision. An
employee cannot be fired for refusing to violate the constitution or a
statute.
As Follett alleges that she was discharged contrary to this explicit
legislative statement prohibiting the discharge of employees in certain
situations, she has based her claim upon an exception to the
employment-at-will doctrine.
As there is rarely a case where a plaintiff has a “smoking
gun” to prove improper motive, a plaintiff must frequently “rely on
circumstantial evidence and the inferences that can be drawn therefrom to
make his or her case.”
Either KRS 311.990(6) or KRS 205.8465 may form the basis for a wrongful
discharge claim, and thus, genuine issues of material fact exist as to
whether Follett was engaged in a statutorily-protected activity when she
advised her staff members to report the matter.
Considering all of the circumstances, Follett has alleged facts to
establish a sufficient connection between her protected activity and her
discharge, with the result that the circuit court erred by granting
summary judgment against her.
Finally, Follett presented evidence from which a jury could disbelieve
Romano’s proffered reason for discharging her. Romano called Follett
shortly before she was to leave on vacation in February 2003 and told her
not to complete any additional pay raise forms until they discussed the
matter.
Based upon all of this evidence, a jury reasonably could infer that
Follett’s involvement in reporting the billing irregularities, and her
involvement in reporting the physician issue to the investigator, were
substantial and motivating factors but for which Follett would not have
been discharged. Thus, genuine issues of material fact exist as to whether
she was wrongfully discharged.
By Paul Schurman and Michael Stevens
COA affirmed the Worker's Compensation Board decision
awarding Rager an attorney's fee pursuant to KRS 342.320(7), but denying
his motion that the Appellee, Crawford and Company (hereinafter “Crawford”),
his former employer, be required to pay that attorney's fee.
Rager requested sanctions in the form of attorney fees pursuant to KRS
342.310, based on the alleged unreasonableness of Crawford's reopening
of the proceedings.
The ALJ entered an order on October 3, 2005, holding that the proposed
medical procedures, including the additional surgery, were reasonable
and ordering Crawford & Company to pay the expenses for such
procedures as well as all other disputed medical bills. However, the ALJ
denied Rager's request for sanctions pursuant to KRS 342.310, finding
that Crawford had a reasonable basis for reopening the proceedings and
contesting the necessity of the additional expenses. The ALJ's
order did, however, invite a standard motion for attorney fees by the
claimant.
After a series of motions, appeals, remands, etc., the ultimate order
which ended up in this appeal was the ALJ's award of attorney fees to
Rager, the claimant, but these were to be borne by him personally.
Rager's only claim on appeals is that he should have been awarded
attorney fees against Crawford pursuant to KRS 342.320. While that
statute does not expressly prohibit the award of attorney fees against
the employer, neither does it make any provision for such an award
COA believed the Board's holding is consistent with a common-sense
interpretation of KRS 342.320 and also with the overall statutory
scheme, allowing attorney fees only from the employee personally or from
his recovery, in the absence of grounds for sanctions.
Although he ALJ has the authority to award attorney fees in a
medical-fee dispute under KRS 342.320(7), the COA did not construe this
statute as permitting the imposition of fees on the defendant employer
in this situation.
Under the statutory scheme, attorney fees can be imposed upon an
employer only as a sanction under KRS 342.310, for prosecuting or
defending workers' compensation proceedings “without reasonable
ground.” The ALJ found that Crawford had reasonable grounds for
reopening and for their position in this matter. Rager did not appeal
from that ruling.
The appellant asserts that his position is consistent with the
legislative purpose of KRS 342.320(7), which allows the award of
attorney fees on the reopening of a case. But there is nothing in that
section which suggests that those fees should come from any other
sources than they would come from in the ordinary case, before a
reopening; that is, from the employee personally or from his
recovery.
The decision of the Worker's Compensation Board is affirmed.
By Michael Stevens
COA affirmed ALJ/WCB who concluded claimant Anderson's bilateral carpal tunnel syndrome and Kienböck's disease were work-related and compensable.
United Parcel Service (UPS) appealed from an opinion of the Workers' Compensation Board affirming the decision of the Administrative Law Judge awarding Paul Anderson permanent partial disability benefits based on a 17% functional
impairment rating related to his carpal tunnel syndrome and Kienböck's disease.
UPS contends that the Board erred when it affirmed the ALJ's award which was based on the opinion of Dr. Joseph Zerga regarding causation but did not follow Dr. Zerga's opinion as to apportionment. Alternatively, UPS argues that the ALJ abused his discretion when he relied on Dr. Zerga as to causation but awarded benefits based on Dr. Michael Moskal's impairment rating. It also contends that the Board substituted its judgment for that of the ALJ when it found that Anderson did not have a pre-existing active condition.
The ALJ is free to “pick and choose among conflicting medical opinions” and has the sole authority to determine whom to believe. Thus, the ALJ was free to rely upon Dr. Zerga's opinion in regard to causation but to rely on that of Dr. Moskal as to the impairment rating.
When a “work related trauma causes a dormant degenerative condition to become disabling and to result in functional impairment, the trauma is the proximate cause of the harmful change; hence, the harmful change comes within the definition of an injury.”
The Board correctly recited the law applicable to the compensability of a pre-existing condition when it stated:
It is well established that in permanent partial disability cases, before a condition may be characterized as “active” the underlying pre-existing condition must be symptomatic and must be capable of being rated pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“Guides”) immediately prior to the occurrence of the work-related injury. Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003).
The opinion of the Workers' Compensation Board is affirmed.
By Michael Stevens
NOT PUBLISHED (COA)
CITY OF BURNSIDE V. BRYANTGOVER
v. COM.
CRIMINAL: GUILTY PLEA
2005-CA-001699
NOT PUBLISHED: 107
DATE RENDERED: 7/20/2007
MILLER
V. COM.
CRIMINAL: COLLATERAL ATTACK OF CONVICTION
2006-CA-000540
NOT PUBLISHED: 78
DATE RENDERED: 7/20/2007
MILLS
V. COM.
CRIMINAL: LESSER INCLUDED INSTRUCTIONS
2006-CA-001149
NOT PUBLISHED: 83
DATE RENDERED: 7/20/2007
CREW
V. COM.
CRIMINAL: POSSESSION OF HANDGUN ADDRESSED
2006-CA-001739
NOT PUBLISHED: 103
DATE RENDERED: 7/20/2007
L.O.M.F.
V. KENTUCKY CABINET FOR HEALTH & FAMILY SERVICES
FAMILY LAW: INVOLUNTARY TERMINATION OF PARENTAL RIGHTS
2006-CA-001544
NOT PUBLISHED: 85
DATE RENDERED: 7/20/2007
SENGER
V. UPS
WORKERS COMP: ALJ CHANGING MIND ON WHICH DOCTOR'S OPINION TO USE
2007-CA-00011
NOT PUBLISHED: 90
DATE RENDERED: 7/20/2007
Thanks to Scott Byrd, John E. 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.