Nov. 2, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:53)
PUBLISHED (COA).
RUSSELL V. COM.A jury found Russell guilty of theft of identity and recommended a one-year term of imprisonment. The trial court entered judgment accordingly. The trial court also entered an order requiring Russell to pay restitution in the amount of $2,157, i.e., the amount necessary to repair the damage to the truck.
Russell conceded that pursuant to KRS 514.160(6), he was required to forfeit his right to the
truck but argued the trial court erred by concluding that Anderson Auto Sales was entitled to restitution under KRS 532.034 because it is neither the person whose identity was stolen for purposes of KRS 532.034(1), nor a
person or entity as listed in KRS 532.034(2).
COA disagreed and held a defendant who is found guilty of theft of identity
shall forfeit any lawful claim to the identifying information, property, or other realized benefit of the other person as a result of such violation. KRS 514.160(6). Further, KRS 532.034 specifies that a person who is found guilty of theft of identity shall, in addition to any other punishment, be ordered to make restitution for financial loss sustained by a
victim. These persons or entities may include a financial institution, insurance company, or bonding association that suffers direct financial loss as a result of the
violation, and the language of the statute indicates a clear legislative intent to permit the expansion of the list of possible victims.
By Michael Stevens
COA affirmed ten-year sentence following conditional plea of
guilty rejecting Defendant Jones' contention the trial court erred in failing to grant his motion to suppress evidence that was found in his vehicle during a search following his inability to produce a valid driver's license at a
roadblock and relying upon the "fruit of the poisonous tree".
COA concluded the defendant failed to preserve this issue on appeal
This safety checkpoint was authorized by the Kentucky State Police and was being conducted in a non-discriminatory manner with every vehicle passing through the checkpoint being subject to a safety check. Jones was stopped at or by the safety checkpoint and was
approached by Trooper Jason Woodside. Trooper Woodside asked Jones to produce his driver's license, but Jones was unable to do so.
Trooper Woodside proceeded to ask Jones for permission to search his person and such permission was granted. Jones was found to have approximately nine grams of marijuana in his front pocket.
At trial, Jones moved the court to suppress the evidence obtained through the search, alleging that the initial search went beyond the scope of a Terry safety pat down and thus everything that followed was a fruit from the forbidden tree. The trial court held a hearing on this issue and found that Jones consented to the search of his person which produced contraband thus giving Trooper Woodside probable cause to arrest him. Furthermore, since Jones consented to the search of his person and vehicle, the trial court reasoned, it did not have to determine whether or not they were otherwise authorized.
Jones then raised a different argument on appeal arguing the Fourth Amendment requires that all checkpoints be of a specific and limiting nature with a limiting plan of action and authorization and that failure to so limit the roadblock in this case resulted in the seized evidence being
fruits of the poisonous tree requiring reversal of conviction. This issue
was unpreserved and not palpable error.
During his entry of the conditional guilty plea, the court insured that Jones was preserving the
single issue but now, however, Jones would have the Court address an issue not ruled on by the trial court through any trial or pretrial motion as required by RCr 8.09.
Kentucky has long held an issue not raised in the circuit court may not be presented for the first time on appeal. Gabow v. Commonwealth, 34 S.W.3d 63, 75 (Ky.
2000).
Digested by Michael Stevens
Trial court found defendant indigent and appointed him
counsel. Defendant later moved to represent himself, and motion was
granted following a hearing. COA affirmed conviction of defendant who
represented himself on charges of drug trafficking and persistent felony
offender in the second degree.
Goods claims that the trial court failed to sufficiently ascertain that his waiver of his right to counsel was knowingly, intelligently and voluntarily made. Goods
conceded that the issue was not properly preserved for review.
However, the Kentucky Supreme Court has recognized that the sufficiency of a defendants waiver of counsel is a structural issue which goes to the fundamental fairness of the proceedings. Therefore, the
issue is not subject to harmless error analysis.
The right to counsel contained in the Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution is accompanied by a concomitant right to waive counsel and represent oneself.
But, when a defendant unambiguously indicates his desire to exercise this right, the trial court has a
duty to establish on the record that the defendant is waiving or limiting his right to counsel voluntarily, knowingly and intelligently.
In this case, the trial court met all of these requirements. Goods made an unequivocal request to dismiss his trial counsel and proceed pro se. The trial court then conducted a hearing during which it extensively questioned Goods about his desire to represent himself.
The court strenuously warned Goods of the hazards of representing himself, and made it clear that Goods would be subject to all applicable rules of evidence and
procedure. In addition, the trial court informed Goods that it would make sure that his counsel was ready by the time of trial. Nevertheless, Goods insisted that he wanted to
represent himself. Thereafter, the trial court made oral and written findings that Goods had made a knowing, voluntary and intelligent waiver of his right to counsel.
Goods complains that the trial court never explicitly determined the depth of his legal knowledge. However, a defendant's lack of legal expertise is irrelevant to this inquiry.
Finally, Goods points to his statements at the hearing and at other pretrial hearings that he wanted to employ private counsel but could not afford to do so. Goods
sought to recover money which had been posted or seized in another case. He contends that his inability to recover this money forced him to proceed pro se. However,
the COA agreed with the trial court that the motion was not properly raised in this action. Consequently, the trial court was not obligated to pursue the matter itself or to direct standby counsel to take up the issue in the other action.
AFFIRMED.
Digested by Michael Stevens
The defendant appealed the circuit court's denial of his
motion for additional jail time credit for the six months he served for his
misdemeanor convictions while his felony charge was diverted. COA affirmed
holding he was not entitle to a credit because Prather had already served the
six-month sentence by the time he was convicted and sentenced on the felony
charge, we hold that he was not entitled to a credit.
Because Prather was not actually incarcerated for the felony conviction until
after he had served out the misdemeanor sentence, the six months cannot be
credited against his felony sentence.
The provisions of KRS 532.110(1)(a) do not apply to Prather, and the circuit
court properly denied his motion for a six-month credit to his two-year felony
sentence.
Digested by Michael Stevens
Wife appealed an order dividing marital property, denying maintenance, and restoring non-marital property. First, Wife argued that the TC erred in finding that the marital residence was Husband’s non-marital property. CA agreed with Wife and reversed and remanded on this issue. Husband purchased the house and adjoining lot before the couple was married. However, the mortgage was paid off after the marriage, with marital funds. CA reasoned that the TC should have acknowledged this fact and apportioned some of the value of the property as marital. Also, the couple made several, post marriage, improvements to the house. Therefore, Wife claimed the increase in value should be considered marital property. Husband argued that the improvements were just regular maintenance and “were not substantial enough to warrant an increase in value.” CA opined that a TC needs only to determine that the increase in value was due to improvements and not just economic conditions in order for the property to qualify as marital property. Absent clear and convincing evidence that the increased value was due to economic conditions alone the property should be considered marital.
Next, Wife argued it was error for the TC to deny her claim for permanent maintenance. TC held that considering the length of the marriage ( the parties were married in 1997) and the division of property maintenance was not appropriate. CA held that the TC’s decision was not an abuse of discretion because it was supported by substantial evidence.
Finally, Wife argued that the TC erred because it did not divide the property proportionately. CA held that the TC did not err in its division of property. CA opined that husband had presented sufficient evidence that certain items in his possession were his non-marital property. Additionally, wife provided no evidence that any of that property was marital.
Digested by Linda
Dixon Bullock
Diana L. Skaggs +
Associates
DAVIS V. 3
BAR F RODEO
SETTLEMENTS AND RELEASE: RELEASE OF FUTURE ACTS
CIVIL PROCEDURE: GENUINE ISSUE OF MATERIAL FACT
2006-CA-002212
PUBLISHED; REVERSING AND REMANDING
PANEL: WINE PRESIDING; LAMBERT, TAYLOR CONCUR
COUNTY: GRANT
DATE RENDERED: 11/02/2007
COA reversed and remanded summary judgment order dismissing the claims by Susan Davis and the estate against the Grant County Fair, Inc. (GCF), 3 Bar F Rodeo (3-BFR), Marcus Fannin and Bobby Ray Fannin for the injuries and wrongful death of the administratrix's husband, Charles.
Specifically, Susan argues the trial court erred by denying her motion for summary judgment based upon the Appellees alleged failure to give her husband the mandatory warning pursuant to KRS 247.4027, which resulted in Charles' severe internal bodily injuries which ultimately led to his death.
Summary judgment was not appropriate and the case remanded.
The facts are thus: the announcer for the rodeo, Aaron Platt (Platt), called for participants for a game called the Ring of
Fear whereby audience members participate by entering the rodeo ring and standing in marked circles on the
ground, at which time, Kenny, the bull, was then released into the ring. The last person standing, without stepping outside of the circle, won the grand prize of $50.00. Charles proceeded
to the ring to try his luck in the Ring of Fear. Susan alleges the bull was angered by someone jabbing him with a wooden object and beating sticks against his cage prior to
his release. Once released, the bull proceeded to drive his head into Charles' abdomen, lifting him off the
ground which caused Charles' liver to burst and he was bleeding internally. Charles faded into temporary unconsciousness next to his wife in the stands. Charles died the next morning
with the cause of death ruled blunt trauma to torso and internal bleeding.
Susan then brought a wrongful death action against alleging that their negligence had caused her husbands death. GCF
and the other defendants all moved for summary judgment based upon a release signed by Charles prior to his participation in the Ring of Fear.
Susan filed a cross-motion for summary judgment, asserting that the Appellees failed to properly warn of the dangers of the Ring of Fear as required by KRS 247.4027. Susan alleged the Appellees failure to warn was a substantial factor in causing the injuries that led to her husbands death. The trial court granted summary judgment to the Appellees, finding that the release was sufficient to exempt them from liability in light of Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). The trial court denied Susans cross-motion for summary judgment.
This appeal followed.
Susan argues the Appellees breached their duty to warn pursuant to the Farm Animals Activities Act (FAAA), found in KRS 247.401 through KRS
247.4029 which represents a statutory plan designed to outline the duties and responsibilities of both participants and sponsors conducting animal activities.
Although COA agreed with Susan that the statute applies to this
case, the COA noted KRS 247.4027(2)(a) allows for a waiver of liability if the participant signs a release waiving his right to bring an action against the farm animal event
sponsor. If a sponsor of an animal activity does post the suggested warnings found in KRS Chapter 247, he is granted immunity from liability if someone gets hurt. If, as in this case, the warnings are not posted, the sponsor loses the immunity and may be held responsible for the injury in accordance with other applicable law. KRS 247.4013.
Although KRS 247.402 requires farm animal activity sponsors to warn of the inherent risks, there is no duty to reduce or eliminate the inherent risks. However, to intentionally mistreat or aggravate a farm animal would be the antithesis of this duty.
While it is clear that the Appellees did not have warning signs posted at the ring entrance, it is undisputed that Charles signed a release just prior to his participation
in the Ring of Fear. Therefore, the central issue in this case is the validity of the release Charles signed.
While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon
them. The COA disagreed with the trial court that the release form signed by Charles satisfies all of the factors in
Hargis v. Baize, 168 S.W.3d 36 (Ky.2005). The release uses the word negligence. The release
does specifically and explicitly release the Appellees from liability for any and all claims and liability arising out of strict liability or ordinary negligence of Releases [Appellees] which causes the undersigned [Charles] injury
or death .
The language of the release is specific as to its purpose to exonerate the sponsors from ordinary negligence liability.
However, there is no language that releases Appellees from conduct that would constitute gross negligence. Susan contends that Appellees provoked Kenny by prodding him and beating on his cage prior to his release into the ring.
The intentional provocation of the bull by Appellees to attack the participants is clearly not contemplated by the release.
While the Appellees dispute the allegations of intentionally mistreating Kenny, if true, it would at the very least constitute gross negligence. The release contemplates getting into the ring with a bull and even mentions that rodeo animals are unpredictable. However, the release does not contemplate a bull that has been infuriated by the Appellees prior to its release into the ring.
This material issue of fact as disputed by the parties can only be resolved by a trier of fact and is not appropriately resolved by summary judgment.
Accordingly, COA reversed and remanded this case to the Grant Circuit Court for a jury trial.
Digested by Michael Stevens
COA denied movants motion for discretionary review of an Opinion and Order of the Washington Circuit Court affirming an order of the Washington District Court, which
removed Hugh Donat Hall as co-guardian for his mother, Amelia Jane Hall.
The circuit court determined that the matter at bench did not involve probate and that the district court's jurisdiction was provided by KRS 387.520(1).
The circuit court found additional support in KRS 24A.120(3), which provides that
matters not provided for by statute to be commenced in Circuit Court shall be deemed to be nonadversarial within the meaning of subsection (2) of this section and therefore are
within the jurisdiction of the District Court.
COA agreed with the circuit court that, even if KRS 24A.120(2) applied, the removal of a guardian would be construed as nonadversarial under KRS 24A.120(3) since no statute grants a circuit court jurisdiction to remove a guardian.
The district court's subject matter jurisdiction was then
briefly reviewed by the COA which noted that pursuant to Section 113 of the Constitution of Kentucky, a district court has jurisdiction as provided by the General Assembly. In the case of guardianship
proceedings, which are entirely separate from probate proceedings and are controlled by their own separate statutes, the General Assembly has clearly provided jurisdiction to district courts. The statute that is relevant to this discussion is KRS 387.520(1), which
provides the District Courts shall have exclusive jurisdiction over all proceedings involving a determination of partial disability or disability, the modification of orders,
the appointment and removal of guardians and conservators, and the management and settlement of their accounts.
Given this plain language, the Washington Circuit Court correctly determined that the Washington District Court had
subject matter jurisdiction over the motion to remove Hugh Donat Hall as co-guardian for his mother. Further, since the General Assembly has vested district courts with exclusive original jurisdiction in those removal matters, it is immaterial whether the removal proceedings below could have been construed as adversarial within the meaning of KRS 24A.120.
In view of the foregoing, COA concluded that movants have shown no entitlement to a second appeal on those issues.
Digested by Michael Stevens
NOT PUBLISHED (COA)
WILLIAMS V. COM.ELM STREE/
MCCRACKEN PRESERVATION ALLIANCE, INC. V . SIEGELMAN
ZONING: JUDICIAL REVIEW
2005-CA-002079
PUBLISHED; 116
DATE RENDERED: 11/02/2007
EAGLER V. COM.
CRIMINAL: 11.42
2005-CA-002578
PUBLISHED; 80
DATE RENDERED: 11/02/2007
JONES V. COM.
CRIMINAL: PALPABLE ERROR
2006-CA-000281
PUBLISHED; 93
DATE RENDERED: 11/02/2007
HICKS V. FLOYD
COUNTY BOARD OF EDUCATION
2006-CA-000499
PUBLISHED; 82
DATE RENDERED: 11/02/2007
LOVING V. COM.
CRIMINAL: APPELLATE REVIEW OF TRIAL STIPULATIONS
2006-CA-000572
PUBLISHED; 121
DATE RENDERED: 11/02/2007
COLLINS V.
FEDERAL NATIONAL MORTGAGE ASSOCIATION
APPEALS: APPELLATE COURT AFFIRMED UNABLE TO DISCERN THE ISSUES AND
ARGUMENTS
2006-CA-000867
PUBLISHED; 70
DATE RENDERED: 11/02/2007
SCOTT V. COM.
CRIMINAL: GUILTY PLEA, MENTAL STANDARD
2006-CA-001151
PUBLISHED; 77
DATE RENDERED: 11/02/2007
CARROLL V.
COM.
CRIMINAL: 11.42 COUNSEL
2006-CA-001347
PUBLISHED; 76
DATE RENDERED: 11/02/2007
COM. V.
PHILLIP MORRIS USA
APPEALS: FINAL AND APPEALABLE ORDER; ORDER COMPELLING ARBITRATION
2006-CA-001425
PUBLISHED; 104
DATE RENDERED: 11/02/2007
RICE V.
RICE
FAMILY LAW: MIANTENANCE AND APPROPRIATE EMPLOYMENT; PRESUMPTION ON MARITAL
DEBTS; ATTORNEYS FEE ESCALATING IN RESPONSE TO OTHER SIDE'S CONDUCT; PROPERTY
DIVISION
2006-CA-001514
PUBLISHED; 146
DATE RENDERED: 11/02/2007
BAKER, JR. V.
COM.
CRIMINAL: INEFFECTIVENESS OF COUNSEL AND GUILTY PLEA
2006-CA-001620
PUBLISHED; 85
DATE RENDERED: 11/02/2007
W (J) V.
COM.
CRIMINAL: EXTRAJUDICIAL CONFESSIONS AND RCR 9L=.60
2006-CA-002047
PUBLISHED; 79
DATE RENDERED: 11/02/2007
HABLER V. COM.
CRIMINAL: TERRY STOP
2006-CA-002072
PUBLISHED; 87
DATE RENDERED: 11/02/2007
NORTHCUTT V .
COM.
CRIMINAL: PROBATION REVOCATION AND DUE PROCESS; PRESENTENCE CONDUCT
ABUSE OF DISCRETION
2006-CA-002196
PUBLISHED; 85
DATE RENDERED: 11/02/2007
TALLMAN V.
CITY OF ELIZABETHTOWN, KY
CIVIL PROCEDURE: KRS 413.270 TOLLING AND SAVINGS STATUTE; SUPPLEMENTAL
JURISDICTION
2006-CA-002542
PUBLISHED; 110
DATE RENDERED: 11/02/2007
BRANCH V. COM.
CRIMINAL: ILLEGALLY PARKED CAR AND INVESTIGATORY STOP IN BAD
NEIGHBORHOOD
2006-CA-002558
PUBLISHED; 94
DATE RENDERED: 11/02/2007
GOMEZ V. GOMEZ
FAMILY LAW: NATURE OF DEBT AND RECEIPT OF BENEFITS
2006-CA-002585
PUBLISHED; 95
DATE RENDERED: 11/02/2007
EGBERT V. COM.
CRIMINAL: PAROLE
2007-CA-000135
PUBLISHED; 76
DATE RENDERED: 11/02/2007
SMITH V. COM.
CRIMINAL: PROBATION REVOCATION
2007-CA-000156
PUBLISHED; 121
DATE RENDERED: 11/02/2007
LOWE'S HOME
CENTER V. PASSMORE
WORKERS COMP: REMAND TO ALJ FOR MORE SPECIFIC FINDINGS
2007-CA-000345
PUBLISHED; 127
DATE RENDERED: 11/02/2007
CHANEY V.
CHANEY
FAMILY LAW: REVIEW OF CUSTODY AWARD AND ABUSE OF DISCRFETION
2007-CA-000502
PUBLISHED; 87
DATE RENDERED: 11/02/2007
JONES V. COM.
CRIMINAL: DOUBLE JEOPARDY
2007-CA-000551
PUBLISHED; 71
DATE RENDERED: 11/02/2007
SHAW V. JANE
TODD CRAWFORD HOSP.
WORKERS COMP: REMAND FOR KRS 342.730(1)(c)2 AND 4 IN CTS CLAIM
2007-CA-000981
PUBLISHED; 102
DATE RENDERED: 11/02/2007
Contributors: