AUGUST 23, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:40)
PUBLISHED (SCOKY).
DEBRULER V. COM.TC did not abuse its discretion in denying Debruler's request for a Daubert hearing prior to the admission of the canine scent tracking testimony. Testimony concerning the use of canine scent tracking in a particular case does not involve scientific knowledge. The practice of using trained dogs to track a human scent lacks the hallmark of scientific knowledge identified by the Supreme Court. Further, the Commonwealth provided sufficient foundation for admission of the testimony concerning canine scent tracking. Next, TC did not err in refusing to grant a continuance or to exclude the testimony, where no violation of the agreed discovery order occurred. Finally, joinder of the kidnapping and robbery charges was proper as there was significant evidence upon which to conclude that the two offenses were related criminal acts and there was no prejudice to Defendant.
Digested by Scott C. Byrd
www.olginandbyrd.com
Synopsis: Although trial court should have prohibited testimony concerning Defendant's commission of a similar crime pursuant to KRE 404(b), the error was harmless. Anderson's convictions and 30 year sentence for complicity to burglary, first-degree; two counts of complicity to theft by unlawful taking over $300; and of being a persistent felony offender in the second-degree affirmed.
SC affirmed Defendant's convictions and 30 year sentence for complicity to burglary, first-degree; two counts of complicity to theft by unlawful taking over $300.00; and of being a persistent felony offender in the second-degree. Although TC violated KRE 404(b) when it allowed the prosecution to elicit testimony concerning Defendant's commission of a similar crime, the error was harmless. Here, the evidence for the Commonwealth was overwhelming . Viewing the case as a whole, the evidence of Anderson's past criminal conduct, though in violation of KRE 404(b), was trivial when considered with the totality of the evidence. The Commonwealth produced three eyewitnesses who testified to Anderson's involvement in the burglary of Dean's home, two of whom were coconspirators.
Digested by Scott C. Byrd
www.olginandbyrd.com
TC properly denied Defendant's motion to suppress following search and seizure. In light of the totality of the circumstances, the officers had a reasonable and articulable suspicion that Defendant was engaged in criminal activity, thereby justifying a brief investigatory stop. Though his name was unknown, the man who gave the tip to the police was not truly anonymous. The officers were familiar with him, having spoken with him on several previous occasions. One of the officers had previously received reliable tips from the man about criminal activity. Rather than being an anonymous tipster, whose information would need significant verification in order to support even a reasonable, articulable suspicion, the man on the bike was more akin to a citizen informant, whose tip inherently bears more indicia of reliability than that of a purely anonymous informant. Citizen informants are tipters who have face-to-face contact with the police or whose identity may be readily ascertained . Their tips "are generally competent to support a finding of reasonable suspicion (and in some cases, probable cause) whereas the same tip from a truly anonymous source would likely not have supported such a finding." While the tip from the man on the bike enjoyed greater indicia of reliability as to its content than a purely anonymous tip, absent other information, its content alone would have been insufficient to allow police to perform an investigative stop of Defendant. The police, however, had other information that justified their stop of Defendant when combined with the tip.
In light of the circumstances, the police did not exceed their lawful authority by opening the car door before asking Defendant to exit the car. Further, Defendant's consent to the search of his person was not involuntary and coerced because he was in pain from the handcuffs at the time.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: SC upheld death sentence in denying Halvoren's RCr 11.42 motion to vacate alleging ineffective assistance of counsel.
Halvorsen's death sentence affirmed following RCr 11.42 motion to vacate based upon ineffective assistance of counsel. SC upheld sentence following previous convictions for murder and affirmation on direct appeal. Defendant has failed to show that any omitted investigation would have probably changed the result.
Digested by Scott C. Byrd
www.olginandbyrd.com
SC upheld Defendant's death sentence following remand for new sentencing hearing. Because the parties agreed to the narrative of facts that was read to the second sentencing jury, a narrative that included the aggravating circumstances previously found, there was no need to require another factual finding of aggravating circumstances.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: Trial Court erred by prohibiting evidence from two of alleged victim's elementary school teachers on girl's reputation for untruthfulness based upon pre-2003 version of KRE 608.
On discretionary review from the CA, SC reversed and remanded Defendant's conviction and 10 year sentence for attempted Sodomy in the first degree. Vaughn's only issue on appeal is whether a grade school setting can satisfy the community requirement in the version of KRE 608 in effect prior to July 1, 2003. Recognizing that a school setting is probably the largest environment a young child will spend time in, other than its home, we now hold that a school can satisfy the community requirement. Since the trial judge ruled that evidence from two of B.D .'s elementary school teachers on B .D.'s reputation for untruthfulness was inadmissible because a school is not an adequate community, error occurred. It is quite possible that omitting B .D .'s alleged reputation had an effect on the verdict, and thus it cannot be harmless error.
Prior to 2003, KRE 608 stated "The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to the limitation that the evidence may refer only to general reputation in the community." It has since been amended to read:
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. The may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:
(1) concerning the witness’ character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to credibility.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: A defendant may lawfully enter into a plea agreement to forgo a jury trial and sentencing and volunteer for the death penalty.
SC affirmed Chapman's death sentence and answered several questions concerning the death penalty in Kentucky. SC held a defendant may enter into a plea agreement to forgo a jury trial and sentencing and volunteer for the death penalty.
In affirming, the SC addressed the following issues:
1) The death penalty is unconstitutional ; 2) Lethal injection and electrocution violate the Eighth Amendment to the United States Constitution's prohibition against the imposition of cruel and unusual punishments; 3) This Court's method of conducting a proportionality review of death sentences is unconstitutional; 4) Chapman's death sentence is arbitrary and disproportionate; 5) Residual doubt bars Chapman from receiving the death penalty; 6) Chapman's due process rights were violated when the aggravators that made him death-eligible were not set forth in the indictment; 7) The trial court erred by requiring the same attorneys Chapman had already fired to serve as standby counsel since those attorneys disagreed with his stated goal of seeking the death penalty; 8) The trial court erred by refusing to consider certain mitigating evidence (i.e., a psychologist's report detailing Chapman's history of mental health-related issues, including a history of physical and substance abuse) tendered by his standby counsel; 9) The Commonwealth's Attorney acted improperly by negotiating a plea agreement with Chapman himself during the time period when Chapman was still represented by counsel; 10) The trial court should have used a more stringent competency standard in light of Chapman's history of abuse and of mental health-related issues; 11) This Court should not permit Chapman to commit "suicide by court"; and 12) Chapman's convictions and sentence should be reversed under the cumulative error doctrine.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: Defendant was entitled to introduce moral justification and extenuation mitigating evidence during sentencing hearing for murder conviction pursuant to KRS 532(2)(b)(4).
SC affirmed the Defendant's conviction for murder in the Jefferson Circuit Court but vacated the sentence and remanded to conduct a new penalty phase allowing for consideration of extenuation in sentencing pursuant to KRS 532(2)(b)(4). A mitigation instruction was given in this case. However, the judge declined to specifically include the moral justification and extenuation mitigating factor as he was required to do under the statute. This was an abuse of his discretion and resulted in prejudice to Emerson. Although Defendant did not receive the death penalty, the jury still could have sentenced him to less, and he was entitled to have the jury consider the full penalty range with extenuation mitigation in mind.
This Court has previously stated that although parole eligibility information is fully admissible in a truth-in-sentencing hearing, it has no place in a death penalty hearing. Perdue v. Commonwealth, 916 S.W.2d 148, 164 (Ky. 1996). Here, the prosecutor's comment regarding parole was improper. However, the error is harmless. The purpose of the rule regarding references to parole in sentencing where the death penalty may be given is to avoid a result where a jury gives the death penalty because they are concerned that the convicted person may be released on parole and be out on the street. In this instance, the comment has no reasonable possibility that it affected the verdict because Defendant was given a sentence allowing exactly what the prosecutor was arguing against, not the death penalty.
Other claims of error affirmed by SC: (1) rial court's rulings on cause challenges; (2) that Jefferson County's jury selection procedure is not compliant with administrative procedures; (3) that certain statements made by Defendant were improperly obtained by police and should have been suppressed by the trial court; (4) that the prosecution improperly bolstered testimony; (5) that parts of the testimony of witness were irrelevant.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: Defendant's conviction and 25 year sentence for manslaughter in the first degree and tampering with physical evidence upheld despite numerous allegations of error.
SC affirmed Defendant's conviction and 25 year sentence for manslaughter in the first degree and tampering with physical evidence. There was no error regarding victim "propaganda," emotional reactions from spectators, or evidence regarding victim impact / background. The trial court did not err regarding the introduction of photographs. The trial court did not err when it overruled Defendant's motion for a missing evidence instruction. Opinion evidence was properly admitted. There were no violations of constitutional rights.
Digested by Scott C. Byrd
www.olginandbyrd.com
SYNOPSIS: Engineering and Land Surveying (as a part of the engineering services) are professional services under KRS 413.245 and although damages were not EXACT they did not
toll the statute of limitations.
Gardiner hired Matherly to design sewers and roads for a subdivision. Gardiner alleged that Matherly's work was incorrect and hired other companies to finish the subdivision project. Gardiner also alleged that their attorneys committed malpractice by allowing the statute of limitations to run. The trial court granted the Matherly's motion for summary judgment on the grounds that Gardiner's claims were barred by KRS 403.245, Kentucky's one-year professional services statute of limitations. The Trial court reasoned that Matherly performed engineering services that were supervised by a professional--the engineer. The Court of Appeals reversed on the grounds that Matherly also performed land surveying, which it opined was NOT a professional service and under KRS 413.245. Kentucky Supreme Court disagreed and held that Matherly held itself out as a professional engineering firm and had a professional engineer overseeing work on the ENTIRE project--even the land surveying. In addition, Gardiner believed Matherly was going to perform engineering services. The Supreme Court held that both the engineering and land surveying by Matherly were "professional" and subject to KRS 413.245. The court also held that Gardiner's action was time barred and even if the exact damages may not have been known. Lastly the court rules that KRS 413.120 does not apply because this action is not an indemnity action.
Digested by Paul O'Bryan
O'Bryan & Denbow
SC affirmed CA’s opinion denying Mother’s motion to amend an Agreed Order transferring jurisdiction over child custody and visitation from Kansas to Kentucky so that the Order also transferred child support jurisdiction to Kentucky. CA and TC both held that such an amendment could not be made due to lack of personal and subject matter jurisdiction. SC held that even this was not necessary, as jurisdictional problem was more fundamental: Mother did not move the Court to register and enforce or modify the child support decree, providing no justiciable controversy; and without a justiciable controversy, a court cannot obtain jurisdiction in the first instance.
On discretionary review, SC considered Mother’s appeal of CA’s denial of her motion to amend an Agreed Order transferring jurisdiction over issues of child custody and visitation to Kentucky, so that the Agreed Order also transferred jurisdiction of child support to Kentucky. For reasons other than those given by TC or CA, SC affirmed the opinion of CA.
After a long history of child-related disputes, and after both Father and Mother relocated from Kansas to other states, they entered an Agreed Order transferring jurisdiction of child custody and visitation to Kentucky. Mother moved KY TC to amend the Agreed Order to state that jurisdiction over all issues of child support were transferred to KY, claiming that child support was mistakenly not included in the Agreed Order. TC denied Mother’s motion, noting that it had not accepted jurisdiction over child support matters and lacked jurisdiction to do so per the Uniform Interstate Family Support Act, because it did not have personal jurisdiction over Father, who lived in Colorado. On appeal, CA noted the different statutory schemes necessary for modification of custody and support, and finding generally that both personal jurisdiction over Father and subject matter jurisdiction over child support matters were lacking.
SC affirmed opinion of CA and TC, but on different grounds. SC noted that the case presented a jurisdictional problem, but it was not the type of jurisdictional problem contemplated by TC or CA. Rather, jurisdiction was not available in this case due to a procedural misstep by Mother: she never moved the court to register or modify the Kansas child support order, so there was no justiciable controversy. Essentially, Mother’s motion asked TC only to declare that it had jurisdiction over child support, so Mother could at some time in the future ask that support be modified. However, without a request by a party to take some action in a case, a court can never have jurisdiction over that particular matter. Because of the limitations of the UIFSA, only two actions could have been taken by TC at Mother’s request: register and enforce a child support decree; or register and modify a child support decree. In both situations, the petitioner must ask the court to do something with the decree by actively seeking registration and either enforcement or modification of it. There is no provision that allows a party—prior to seeking to register and then enforce or modify a decree—to ask the court to declare whether the requirements of either set of statutes has been met. A court would be required to address those specific requirements before reaching the merits of the motion for registration and enforcement or modification. But the question of the court's authority to modify child support does not arise until it is actually put in dispute by the motion. Such a determination is not ripe absent a motion to modify.
SC also explained why Mother’s motion to amend could not be treated as a Motion for a Declaratory Judgment: “There is a temptation in this case to suggest that [Mother]’s motion was analogous to a Declaratory Judgment action, in that she sought to have jurisdiction declared before she proceeded. However, such a suit still requires that ‘an actual controversy exists . . . .’ The question of a court's jurisdiction by itself, much like any dispute over a pure question of law not grounded in an actual claim, simply is not ‘a present actual controversy.’ Jurisdiction can only be addressed within an action itself, whether initiated through a complaint or a motion requesting relief, neither of which has been made in this case.”
As digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates.
Dept of Revenue appeals COA decision barring Dept from collecting unpaid sales taxes from Appellee due to inadequate notification of tax deficiency within the applicable 4-year statute of limitation. SC granted review to consider 2 main issues: 1) whether Dept's initial notice of tax deficiency was timely sent; and 2) whether notice was sufficient.
Relevant facts are that Dept determined that Appellee owed more than $370,000 in sales taxes for 2-year period ending in late 2003. Dept and Appellee both agreed that the notice of deficiency deadline under KRS 139.620(1) was October 20, 1997. Appellee argued that neither the assessment letter nor notice of tax due was mailed before this deadline. Dept had to agree with respect to the notice of tax due, but argued that the assessment letter was timely. KY Bd of Tax Appeals sided with Appellee on this issue (based solely on testimony of Appellee's auditor that the letter did not land in his hands until October 27th) while TC found a lack of substantial evidence to support this conclusion and reversed the Bd's decision, which was affirmed by the COA.
SC affirmed TC and COA, noting there was no question Appellee received the assessment letter dated October 16, 2007. SC ruled that the burden is then on Appellee to offer evidence indicating the letter was not postmarked until after the deadline. SC put great weight on the fact that Appellee had been able to produce the original postmarked envelope for the notice of tax due as well as the two notification letters sent by the Dept concerning additional back taxes for an earlier time period (that Dept was barred from collecting due to untimeliness of the notices), but somehow could not produce the original envelope for the assessment letter. SC offered the following rule of law: "Where correspondence bearing a date has been received, a party who disputes the timely mailing of the correspondence bears the burden of proof with respect to the issue."
Second issue was whether the assessment letter contained the required information as set forth in KRS 131.081(8), with Appellee making a strict construction argument that the tax deficiency notice must specifically contain all 5 items of information as referenced therein AND that the notice containing all this information must be given within the limitation period. It was undisputed that the only piece of information missing from the initial assessment letter was the Dept's notice of interest and penalties (which was provided shortly thereafter in the notice of tax due). The COA agreed with Appellee and barred the Dept from collecting any of the unpaid taxes for the subject period.
SC found that this result was not compelled by the relevant statutes, particularly KRS 139.620(1) containing the 4-year SOL that only requires the Dept to provide Appellee with the amount of excess tax being sought within the limitation period. SC notes that within the context of lawsuits while a party is entitled to formal notice of the claim within the limitations period, that party is not entitled to all of the theories or proof supporting that claim prior to the deadline. SC saw no reason the same logic should not compel a similar result where a taxpayer has been given timely notice that the Dept is making a claim for tax deficiencies. Thus, SC reversed the COA on this issue and ultimately held that the Dept was entitled to seek recovery for the $370,000+ in unpaid taxes.
By Chad Kessinger
Shiller, Osbourn,
Barnes & Maloney
When the employer decided to reduce its payments of a claimant’s award due to its previous overpayment, the claimant’s remedy was to file a circuit court enforcement action, not go back to the work comp ALJ for clarification.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The Supreme Court determined that the Circuit Court could not proceed with a civil suit against the workers' compensation insurance company for what were found to be bad faith refusals to allow medical treatment and pay for medications required by a work related in jury. The Administrative Law Judge found in favor of the injured worker and awarded sanctions against the workers' compensation insurance carrier in the form of attorneys fees and costs. The case was also referred to the Executive Director of the Office of Workers' Claims for imposition of fines for unfair settlement practices. The Executive Director fined the insurance company $9,000, which has been appealed. The claimant filed a bad faith action against the carrier, which the carrier sought to dismiss on the grounds of lack of jurisdiction, relying on the exclusive remedy provisions of the work comp act. The Circuit Court denied the motion, and the carrier then sought a writ of prohibition against the Circuit Court, which was denied. The Supreme Court reversed, holding that the workers' compensation insurance company was immune from a civil tort action because of the exclusive remedy of the workers' compensation act. A dissenting opinion by Justice Scott points out that this violates the jural rights of workers guaranteed by the Kentucky Constitution, and that a tortious act of an insurance company, such as sending private investigators to harass the injured worker or inflicting harm upon the worker by denying necessary medical treatment, are separate non-work related injuries. Granting immunity for even the most contemptible acts will allow workers' compensation insurers to act with impunity while suffering only minor sanctions under the workers' compensation act.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The claimant agreed to work for Hubbard on a trial basis with no pay for two days. He was severely injured and theefore, never hired. THe ALJ dismissed the workers’ comp claim finding the was no employee-employer relationship, but the Worker’s Comp Board reversed, and the Court of Appeals and Supreme Court affirmed, citing the statute sating that there does not need to be an express contract of hire.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
In this set of civil cases regarding the immunity of contractors from civil suits, the Supreme Court explored the definition of “contractor” set forth in KRS 342.610(2). These were asbestos exposure cases, where there were multiple defendants. Each defendant’s business was analyzed to determine whether the work of the subcontractor, for whom the plaintiff worked, performed work which was a “regular and recurrent” part of the work of the defendant. The Supreme Court found that if the defendant had employees who would regularly perform the work that the subcontractor performed, the exclusive remedy provisions of the workers’ comp act would apply. If the subcontractors work was not a regular part of defendant’s business, as in the case where the work would be subcontracted out, the defendant would remain liable to the subcontractor’s employees. The case also discussed the ‘jural rights’ doctrine, but finds the exclusivity provision of the workers’ compensation act constitutional in that regard.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
ATTORNEY DISCIPLINARY MATTERS
JACQUELINE L. CHAUVIN V. KBAKARI M. MORTON V. KBA:
ATTORNEYS: 30 DAY SUSPENSION
2007-SC-000407-KB.pdf
PUBLISHED: 362
DATE RENDERED: 08/23/2007
NOT PUBLISHED (SCOKY)
TOWE V. COM.ADKINS V. COM.
CRIMINAL: AMENDMENTS; INTENTIONAL AND WANTON MURDER; EXTREME EMOTIONAL
DISTURBANCE DEFENSE
2005-SC-000132-MR.pdf
NOT
PUBLISHED:
DATE RENDERED: 08/23/2007
BURSE V. COM.
CRIMINAL: CRIME OF TRAFFICKING AND CASH ON HAND
2005-SC-000387-MR.pdf
NOT
PUBLISHED:
DATE RENDERED: 08/23/2007
DALTON V. COM.
CRIMINAL: MISTRIAL (JUROR OVERHEARING MOM SAY THAT'S WHAT DRUGS WILL DO TO YOU)
2005-SC-000728-MR.pdf
NOT
PUBLISHED: 480
DATE RENDERED: 08/23/2007
NELLUM V. COM.
CRIMINAL: WRONG DATE ON INDICTMENT OT FAILURE; AMENDING INDICTMENT PER RCR
6.16
2005-SC-000986-MR.pdf
NOT
PUBLISHED: 761
DATE RENDERED: 08/23/2007
VAUGHN V. COM.
EVIDENCE: REPUTATION AND SCHOOL COMMUNITY
2006-SC-000002-MR.pdf
NOT
PUBLISHED: 1428
DATE RENDERED: 08/23/2007
WILLOUGHBY V. COM.
CRIMINAL: 20 YEAR DELAY FILING CR 60.02
2006-SC-000071-MR.pdf
NOT
PUBLISHED: 503
DATE RENDERED: 08/23/2007
KIRK V. COM.
CRIMINAL: PALPABLE ERROR AND MANIFEST INJUSTICE
2006-SC-000157-MR.pdf
NOT
PUBLISHED: 326
DATE RENDERED: 08/23/2007
HAIGHT V. COM.
CRIMINAL: APPEALS AND CR 59.05 MOTION, TIMELINESS
2006-SC-000344-MR.pdf
NOT
PUBLISHED: 489
DATE RENDERED: 08/23/2007
COLLINS V. COM.
CRIMINAL: KIDNAPPING
2006-SC-000418-MR.pdf
NOT
PUBLISHED: 687
DATE RENDERED: 08/23/2007
WALKER V. COM.
CRIMINAL: COLD CASE
2006-SC-000480-MR.pdf
NOT
PUBLISHED: 1451
DATE RENDERED: 08/23/2007
SMITH V. TWIN PINES, INC.
WORKERS COMP: MEDICAL TREATMENT AND CAUSATION BY WORK INJURY
2006-SC-000774-WC.pdf
NOT
PUBLISHED: 465
DATE RENDERED: 08/23/2007
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.