OCTOBER 5, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:48)
PUBLISHED (COA).
CAM I, INC. V. LOUISVILLE/JEFFERSON COUNTY METRO GOV'TCA upheld the constitutionality of the Louisville/Metro
"nude dancing" ordinance. The right to associate for expressive purposes, however, is not absolute. 'Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.'”
Local governments are permitted to “rely, in part, on 'appeal to common sense,'” in enacting regulations governing adult entertainment businesses.
Local government “may regulate speech when necessary to advance legitimate state interests, but the First Amendment prohibits the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others.”
For example, “[s]ix feet is sufficiently close for a person to view and appreciate an artistic dance performance.
Digested by Michael Stevens
POWELL V. COM.
CRIMINAL: SPEEDY TRIAL
2006-CA-000522
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; KELLER, GUIDUGLI CONCUR
COUNTY: KENTON
DATE RENDERED: 10/05/2007
CA affirmed Powell's conviction and 13 year sentence for complicity to commit first-degree robbery and being a first-degree persistent felony offender (PFO). Defendant's right to a speedy trial was not violated by TC's order granting the Commonwealth's motion to continue. Here, eleven months lapsed from the time Powell was initially arrested until trial; less than eight months lapsed from the time he was indicted until trial. Regardless of whether his right to a speedy trial attached when he was initially arrested or when he was indicted, even the eleven-month delay between Powell’s initial arrest and trial was not “presumptively prejudicial” given the complexity of this case, and his right to a speedy trial was not violated. Any error in the admission of investigative hearsay testimony was harmless.
Digested by Scott C. Byrd
Olgin and Byrd
On discretionary review, CA reversed Jefferson Circuit Court and Jefferson District Court's orders dismissing without prejudice the charges against Defendant for DUI and various traffic offenses. The issue was preserved for review by the Commonwealth's statements to the trial court. Pursuant to RCr 9.64 and Commonwealth v. Isham, 98 S.W.3d 59 (Ky. 2003), the TC overstepped its authority by dismissing the case due to the police officer's failure to appear in court on two occasions. The rule states "The attorney for the Commonwealth, with the permission of the court, may dismiss the indictment, information, complaint or uniform citation prior to the swearing of the jury or, in a non-jury case, prior to the swearing of the first witness. CA stated "we appreciate the high volume of cases routinely handled in district court and we are mindful of the court's need to manage what is often an unwieldy caseload and dockets peppered with missing witnesses. However, the trial court must manage its docket while adhering to the local and state rules of court. That did not happen in this case. The district court abused its discretion and therefore we must reverse."
Note: This case highlights the Jefferson County District Court's informal practice of dismissing cases when the prosecuting witness has repeatedly failed to appear in court. Evidently, the County Attorney has had enough of this practice, and accordingly, has been sending a message to trial courts that continue to follow it. In reality, this decision is a hollow victory for prosecutors as dockets grow and more cases get set for trial.
Digested by Scott C. Byrd
Olgin and Byrd
PERKINS V. COM.
CRIMINAL: THIRD PARTY CONSENT TO SEARCH
2006-CA-000934
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; ACREE AND HENRY CONCUR
COUNTY: KNOTT
DATE RENDERED: 10/05/2007
TC properly denied Perkin's motion to suppress evidence resulting from the KSP’s knock and talk and from the subsequent warrantless search at his residence. The police had the consent of Defendant's son to enter the house and it was made voluntarily. It was reasonable for the officers to believe that the son had the apparent authority to consent to their entry into the residence. An exception to the warrant requirement exists if valid consent has been obtained from a third party, generally one who shares common authority over the premises to be searched. The court also found that Perkins voluntarily admitted to the officers that he possessed illegal substances and that he then voluntarily consented to a search of his person and of his bedroom. Defendant waived the chain of custody issue by failing to raise same at trial.
Digested by Scott C. Byrd
Olgin and Byrd
DEAN V. COM.
CRIMINAL: INEFFECTIVE ASSISTANCE OF COUNSEL
2006-CA-001422
PUBLISHED: REVERSING AND REMANDING
DATE RENDERED: 10/05/2007
CA found Defendant was entitled to new trial based upon ineffective assistance of counsel. Counsel's failure to request a mistrial or an admonition after the prosecutor made comments of a testamentary nature and further failure to object to improper comments during the prosecutor's closing argument constituted ineffective assistance of counsel. Although these issues were previously considered on direct appeal, they failed to rise to the level of palpable error.
Note: This case is nothing more than two panels of the CA disagreeing on whether Dean received a fair trial. The first panel obviously did, affirming the convictions and considering the same issues that ultimately led to the reversal pursuant to RCr 11.42. The second panel, in a 2-1 split, must have disliked the prosecutor trying to interject himself into the trial as a sworn witness.
Digested by Scott C. Byrd
Olgin and Byrd
BISHOP V. COM.
CRIMINAL: EXIGENT CIRCUMSTANCES
2006-CA-001636
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; KELLER GUIDUGLI CONCUR
COUNTY: MADISON
DATE RENDERED: 10/05/2007
TC did not err by denying Bishop's motion to suppress evidence seized from the trunk of his vehicle. TC did not clearly err by finding that a search was justified by the exigent circumstances created when an active methamphetamine lab was found in the trunk of a car parked in an apartment complex lot next to an elementary school. Defendant's convictions and 10 year sentence affirmed.
Digested by Scott C. Byrd
Olgin and Byrd
TC properly rejected Shearer's argument that he was unable to consent to an interrogation by the police because the combination of his intoxication and mental defects rendered him unable to voluntarily waive his due process rights. Defendant identified no coercive activity on the part of the police. He instead asserted that the act of interrogation in and of itself was impermissibly coercive because of his alleged mental illness and intoxication. However, “. . .a defendant's mental condition, by itself and apart from its relation to official coercion, should [n]ever dispose of the inquiry into constitutional 'voluntariness'. . . .” See Colorado v. Connelly, 479 U.S. at 164. Additionally, the rejection of “flashbacks” as preventing a voluntary confession is in line with similar authority involving the use of hallucinogenic drugs at a time much more proximate to the confession than that proposed in this case. See e.g., U.S. v. Taylor, 508 F.2d 761, 763 (5th Cir. 1975); U.S. v. Wilkins, 477 F.2d 323, 325 (8th Cir. 1973).
The three criteria the trial court uses to assess voluntariness are: “1) whether the police activity was 'objectively coercive'; 2) whether the coercion overbore the will of the defendant; and 3) whether the defendant showed that the coercive police activity was the 'crucial motivating factor' behind the defendant's confession.” See Henson, at 469; Morgan v. Commonwealth, 809 S.W.2d 704, 707 (Ky. 1991) (adopting federal due process standards of McCall v. Dutton, 863 F.2d 454 (6th Cir. 1988)).
Digested by Scott C. Byrd
Olgin and Byrd
CA affirmed TC's exclusion under the Rape Shield Law (KRE 412) of evidence of rape victim's prior accusations against two other men. Defendant's convictions and 15 year sentence for 5 counts of second degree rape and 5 counts of second degree sodomy affirmed.
[T]he general rule which has emerged in cases involving sexual offenses, is that the admissibility of evidence of similar accusations made by the victim depends on whether they have been proven to be demonstrably false. To comport with the defense theory of a fabrication scheme, there must be proof of the falsity of the unrelated allegations. Hall v. Commonwealth, 956 S.W.2d 224, 227 (Ky. App. 1997). To determine whether unrelated accusations should be permitted into evidence, the Hall Court relied on a resolution fashioned by other jurisdictions, holding that [i]f the unrelated accusations are true, or reasonably true, then evidence of such is clearly inadmissible primarily because of its irrelevance to the instant proceeding. Additionally, unrelated allegations which have neither been proven nor admitted to be false are properly excluded. If demonstrably false, the evidence still must survive a balancing test, i.e., the probative value must outweigh the prejudicial effect. This approach eliminates the risk of circumventing evidentiary rules designed to protect the legitimate interests of the victim as well as the risk of obfuscating the real issues; it preserves the integrity of the trial process. Ky. R. Evid. (KRE) 403, 404, 412, and 608. While the Hall Court fashioned a test to apply in cases where prior accusations have been made, it failed to set forth what factors or facts would be sufficient to meet the “demonstrably false” test. A review of case law from our sister jurisdictions relied upon by the Hall Court reveals that “demonstrably false” is self explanatory: “[p]rior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved.” Accordingly, we surmise from our review of case law from sister jurisdictions that false means that the prior allegations must be proved to be false before they are admissible. In the case at hand, three individuals testified during the in camera hearing, two of whom T.T. had made accusations against, and both, as would be expected, denied the allegations under oath. This is insufficient to meet the Hall test.
CA noted that the trial court in this matter did not make an actual finding that the prior allegations were false. CA went on to suggest that trial courts should make a factual finding regarding the truth or falsity of prior accusations and would require such in future cases. Having found no error by the trial court, CA did not believe, however, they needed to remand this case for a finding of truth or falsity of the accusations, particularly in light of the detailed in camera hearing held.
Note: The rule created by this decision makes it virtually impossible to meet the "demonstrably false" test unless the prosecuting witness recants the prior accusation. Here, defense counsel presented in camera testimony from the prior accused denying the allegations. It seems fundamentally unfair to be prohibited from introducing evidence of an alleged victim's similar allegations against others. The trial court has the power to limit any inquiry on cross-examination. Unfortunately, the Rape Shield Law continues to expand with its foundation rooted in the presumption of guilt. Nonetheless, the ruling in this case was harmless given the DNA evidence and Capshaw's ridiculous explanation for the existence of same.
Digested by Scott C. Byrd
Olgin and Byrd
Mr. Wilkins moved for reconsideration of the Franklin Circuit Court's order that his appeal was untimely, arguing that pursuant to Kentucky Revised Statutes (KRS) 2.110(1), October 10, 2005, was a legal holiday because it was Columbus Day and therefore, pursuant to KRS 446.030 and CR 6.01, he had until the following day, Tuesday, October 11, 2005, to file his petition for appeal. Tthe circuit court reiterated its conclusion that the appeal was untimely filed, reasoning that pursuant to Section 3.03 of the Local Rules of Practice, Franklin Circuit Court was not closed on Columbus Day. Therefore, Mr. Wilkins's petition for review was dismissed as untimely. He appeals that dismissal.
Per KRS 2.110, Columbus Day may be a legal holiday for purposes. Although under KRS 446.010(20), when interpreting statutes, the term “may” is permissive, the days listed in KRS 2.110 are not required legal holidays and may be designated as legal holidays. However, the Chief Justice has determined what are to be legal holidays for the Court of Justice, from the list of permissible holidays included in KRS 2.111(1) and Columbus Day is not included as a legal holiday in the Court of Justice. Affirmed dismissal as petition was filed untimely.
Digested by Mike Stevens
COA affirmed holding that Foster was
eligible to purchase service credit for the time she was employed as a
professor at
Digested
by Mike Stevens
CA affirms judgment against driver in this single vehicle MVA case. CA holds that defendant's conduct rose to the level of gross negligence warranting a punitive damage instruction and that appellant failed to preserve an objection to the pain and suffering instruction.
High school student Maxwell Gersh, travelling with fellow students Samantha Bowman and Michael McLaurine, attempting to negotiate a sharp 15 mph curve in the dark traveling at approximately 49 mph, despite McLaurine's warning. Bowman suffered extensive facial and cervical injuries resulting in 7 surgeries with at least 2 more to follow. Prior to trial, Gersh's motion for summary judgment precluding punitive damages was denied. At trial, Gersh objected generally to the jury instructions and specifically to the punitive instruction. The jury awarded all medicals, $250K in wage; pain & suffering of $2 million; and punitives of $100K.
On appeal, Gersh argued error in denying his motion for summary judgment precluding punitives and argued that the pain & suffering verdict was excessive. CA holds that Gersh's gross negligence merited the punitive damage instruction and that his general objection failed to preserve his objection to the pain & suffering instruction, which was capped at $2 million, the figure the jury awarded.
Digested by John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
Henson appeals judgment entered in Klein's favor following a jury trial on her personal injury claim stemming from a jet ski accident, arguing that the TC erred by permitting a sudden emergency instruction and for failing to instruct the jury that she had the right-of-way at the time of her watercraft's impact with another one being driven by her then boyfriend while at Lake Cumberland. Not surprisingly, the parties' testimony on the events leading up to the collision were at odds, with Klein testifying that while trailing behind and to the left of Henson's jet ski, she suddenly looked over her shoulder and him and yelled his name and veered 90 degrees to the left directly into his path. In response, Klein attempted to veer left but could not avoid hitting Henson. The testimony of an eyewitness substantially supported Klein's testimony, and importantly confirmed that Klein leaned his body and turn his jet ski promptly to the left in an attempt to avoid the collision. Following the defense verdict, Henson moved for a new trial on the argument that there was no sudden emergency since Klein had failed to exercise ordinary care by following her too closely, which was denied and led to this appeal.
In this opinion, the COA provides a good summary of the major appellate decisions on the sudden emergency doctrine over the last 40 years and the distinctions between the facts of the respective cases and how each set of facts compares to those in the present case. Described by the COA as a deceptively simple concept whose application by the courts has not been so simple, the sudden emergency doctrine is meant to define the conduct that one would expect from a ordinarily prudent person to take when faced with an atypical emergency situation that leaves the party with no time to carefully consider the situation. It applies in cases where a defendant takes evasive action that could be perceived as the safest course at that point in time but that may otherwise be considered a violation of some applicable statute or regulation (e.g., where a vehicle veers across the center line into oncoming traffic in order to avoid a vehicle pulling out in front of it ahead, the act itself being a traffic violation even though it could be considered reasonable under the circumstances). In those situations, it is necessary to qualify the defendant's typical duties as a driver when the evasive maneuver is in response to some emergency that often stems from some act of the claimant. The COA also compares sudden emergency to a mere sudden occurrence where the defendant takes no evasive action (the best examples of this being the fact scenarios in City of Louisville v. Maresz and Robinson v. Lansford where the respective defendants took no evasive action and instead rear-ended the plaintiffs who were stopped or decelerating ahead in the same lane). When the situation is merely considered a sudden occurrence, no qualifying instruction regarding the defendant's duties should be given, and the jury should apply the customary comparative fault principles. In the subject case, the COA felt that the evidence was more than sufficient to establish Klein took evasive action in direct response to the abrupt act of Henson turning into his path, thereby warranting the sudden emergency instruction given by the TC.
Turning to the second argument, the COA did not agree with Henson's assertion that the jury should have been instructed that she had the right-of-way at the time of the accident. Henson's position hinged on 301 KAR 6:030 s. 6 that deems a lead vessel to always have the right-of-way with respect to a trailing vessel. The COA noted that Henson's own expert testified that the accident was not a situation where Klein was attempting to overtake Henson's jet ski, which justified the TC's refusal to instruct the jury on the regulation. The COA therefore affirmed the judgment for Klein and the TC's denial of Henson's motion for a new trial.
Digested by James R.
Chadword Kessinger
Schiller, Osbourn, Barnes &
Maloney
Post applied for a conditional use permit to operate a “tourist home” on his property. Post had filed an earlier such application in which the Planning Director supplied a definition for “tourist home” from a development definition book, because it was not defined in the Woodford County zoning ordinances. The Board of Adjustments (“Board”) conducted a hearing on the new application in which the Planning Director recommended the same “tourist home” definition. The Board voted unanimously to grant the conditional use permit.
Two neighboring property owners appealed (the “Neighbors”). The circuit court affirmed. On appeal, the Neighbors argued that the Planning Director exceeded her authority by providing a definition for “tourist home” and that the Board exceeded its authority in accepting the definition. The court disagreed, stating that the zoning ordinance’s scheme for granting conditional use permits provides a sufficient framework for the Planning Director to interpret the ordinance to clarify the intent of the fiscal court. The court also stated that because the Planning Director recommended a definition synonymous with “bed and breakfast,” the court concluded that the decision was not clearly erroneous.
The Neighbors also argued that the Board’s decision was arbitrary because Post’s proposed use of his property did not fit the definition of “tourist home.” The court agreed, stating that since “tourist home” was to be synonymous with “bed and breakfast,” and Post’s proposed use was for 12 bedrooms with the owner not living on the property, the proposed use did not meet the bed and breakfast definition of less than 9 bedrooms with the owner residing on the property. The court reversed and ordered that the conditional use permit be set aside.
Digest by Samuel Hinkle
NOT PUBLISHED (COA)
KIM V. COM.LONGWORTH V.
BIRD
TORTS: DEFAMATION
2006-CA-000167
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/05/2007
DEAN V. COM.
CRIMINAL: PROBATION VIOLATIONS
2006-CA-000640
NOT TO BE PUBLISHED: 73
DATE RENDERED: 10/05/2007
TERRY V. COM.
CRIMINAL: PRO SE DEFENSE
2006-CA-000940
NOT TO BE PUBLISHED: 87
DATE RENDERED: 10/05/2007
BUTCHER V.
COM.
CRIMINAL: JOINDER; DOUBLE JEOPARDY
2006-CA-000989
NOT TO BE PUBLISHED: 102
DATE RENDERED: 10/05/2007
WOLEJSZA V.
WOLEJSZA
FAMILY LAW: CIVIL VS. CRIMINAL CONTEMPT; HEARING
2006-CA-001211
NOT TO BE PUBLISHED: 85
DATE RENDERED: 10/05/2007
BROWN V. DEPT.
OF CORRECTIONS
CRIMINAL: PRISON DISCIPLINE
2006-CA-001256
NOT TO BE PUBLISHED: 84
DATE RENDERED: 10/05/2007
RATLIFF V.
PIONEER CLEANING SERVICES
CIVIL PROCEDURE: DEMAND FOR JURY TRIAL MUST BE PROPER
2006-CA-001564
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/05/2007
COWLES V.
COWLES
FAMILY LAW: SEPARATION AGREEMENT AND UNCONSCIONABILITY
2006-CA-001832
NOT TO BE PUBLISHED: 91
DATE RENDERED: 10/05/2007
LEE V.
MITCHELL
CRIMINAL: PRISON DISCIPLINE
2006-CA-002128
NOT TO BE PUBLISHED: 93
DATE RENDERED: 10/05/2007
A.G. V. COM.
OF KY.
FAMILY LAW: NEGLECT FINDING
2006-CA-002351
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/05/2007
Contributors: