JAN. 11, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:02)
Effective 2008, the weekly lawwire compilation of appellate decisions will only be digesting the published SCOKY & COAKY decisions. The non-published decisions will no longer be listed by name, keyword, and link to full text. You can find the non-published decisions in the minutes, and the names and lower courts should give you an "idea" of the general nature of each case. A list of the nonpublished SCOKY decisions will continue to be provided as before with names, case no., topic, and link to full text.
PUBLISHED (COA).
LEEDY V. THACKERThe CA reverses and remands entry of default judgment in two trespass cases for failure to notify the defendant/appellant, who had filed a pro se answer. Defendant had failed to provide his return address on his answer, but his subsequent counsel placed it in the court file on a motion to withdraw. CA holds that under CR 55.01, if a party has "appeared," as here, the 3-day notice of hearing requirement is triggered.
Plaintiff/appellees made no good faith effort to notify defendant, even though his address was in the file and he was a neighbor of theirs for many years.
John Hamlet
Sitlinger, McGlincy, Theiler
& Karem
CA reversed TC's dismissal of the indictment against Cochran for wanton endangerment following birth of her child with cocaine in her system. TC improperly relied upon Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993) as binding precedent. Applying the definition of “person” as set forth in Commonwealth v. Morris, 142 S.W.3d 654 (Ky. 2004) and KRS 500.080(12), the child is a person under KRS 508.060(1). Neither KRS 500.080(12) nor KRS 508.060(1) carves out an exception for a pregnant woman, or anyone for that matter. Accordingly, the term “person” at the beginning of KRS 508.060(1) included Cochran as a pregnant woman. Therefore, Cochran was properly charged and indicted with wanton endangerment.
Note: Interestingly, CA questioned the viability of continued prosecution. Specifically, KRS 214.160(5) prohibits prenatal screenings or positive toxicology findings, if they are administered under KRS 214.160(2) or (3), from being used as prosecutorial evidence. Here, the only evidence against Cochran appears to have come from that source. Accordingly, CA suggested this case might not make it to the jury.
Digested by Scott C. Byrd
www.OlginandByrd.com
TC did not err by admitting evidence of marijuana and drug paraphernia seized following trash pulls and obtained subsequent to the videotaped surveillance of Laterza's residence. The surveillance videotapes were not obtained illegally and, thus, cannot be the basis for a “fruit of the poisonous tree” claim. Rather than being ruled constitutionally inadmissible, the trial court ruled the videotapes inadmissible under its broad discretion to control discovery.
Digested by Scott C. Byrd
www.OlginandByrd.com
Smith had been identified per a "Crime
Stoppers" tip as the assailant who accosted the woman in the parking lot. After being arrested on an unrelated warrant and during questioning, Smith allegedly told police that he grabbed the victim and may have killed or harmed her if he had not been stopped.
He further stated that he had fled the scene and disposed of his hat and coat to avoid detection after his crime.
At the suppression hearing, the court ordered that Smith be evaluated for his competency to stand trial and for his mental capacity (sanity) to commit the charged crimes.
It was clear that the trial court did not order the psychiatric examination due to a belief that Smith's competency to stand trial or sanity at the time of the offense were in doubt. Rather, the trial court's order provided that the order was based on Smith's request for an examination.
Smith’s counsel then withdrew the motion for an examination and stated that Smith had a clear understanding of the proceedings and was competent to
stand trial. Smith's counsel further stated that the conditional guilty plea reserved Smith's right to appeal the court’s pre-trial ruling on his suppression motion. Notwithstanding this reservation, the trial court never ruled on the motion to suppress his statements to police.
Because our precedents have clearly established that a failure to obtain a ruling from a trial court operates as a waiver of the issue for purposes of appellate review,
the COA concluded that the merits of Smith's suppression motion regarding the voluntariness of his statements
were not preserved for review.
Although Smith had previously put forth an allegation that he was incompetent, there was sufficient evidence that demonstrated that he possessed the capacity to appreciate the nature and consequences of the proceedings against him and could participate rationally in his own defense.
At the hearing, the trial court and Smith engaged in a lengthy colloquy regarding his criminal case. From this colloquy, Smith's representations did not present the court with a reasonable doubt of his mental competency to plead guilty.
The trial court's decision not to conduct an evidentiary hearing regarding Smith's competency to enter a guilty plea was not palpable error. The trial court had ample evidence of Smith's competency to accept his guilty plea.
Finally, the defendant has the burden to prove insanity if he is to receive the benefit of the defense at trial. However, when a defendant pleads guilty to an offense, he waives this defense.
Although Smith did request a psychiatric examination regarding his mental capacity to commit an offense, he withdrew this motion and never insisted on nor
obtained a ruling as to his mental condition at the time of the commission of his crimes.
Therefore, because he pled guilty without preserving this issue for review, Smith has waived his insanity and intoxication defenses for purposes of appellate review.
Affirmed.
NOT PUBLISHED (COA)
From the COA opinion:
REDWINE V. CITY OF HOPKINSVILLE
In order for a BRB payment to restart the running of the two-year statute of limitations for a tort claim in KRS 304.39-230(6), the claim or action for recovery of the BRB payment must have been submitted or commenced within two years of the last BRB payment made under KRS 304.39-230(1). Milby v. Wright, 952 S.W.2d 202 (Ky. 1997). And, the timely submission of a claim for BRB payment effectively “tolls” the limitation period found in KRS 304.39-230(1).
In the case sub judice, it is uncontroverted that a BRB payment was made by Safeco on September 27, 2003, and that within two years therefrom, Poole's submitted another claim for BRB payment that Safeco received on December 18, 2003. Thereafter, Safeco failed to timely reject the BRB claim or to timely make a payment thereupon. Rather, it was not until Safeco was again contacted about the December 18, 2003, BRB claim that Safeco finally made the BRB payment on February 25, 2006.
Under the authority of Milby, 952 S.W.2d 202, we conclude that the December 18, 2003, BRB claim was timely submitted for payment and operated to “toll” the statute of limitations contained in KRS 304.39-230(1). When Safeco finally made the BRB payment on February 25, 2006, the two-year limitation period for a BRB claim under KRS 304.39-230(1) was again restarted and began to run anew upon that date
JONES V. HAUT
Abandoning county roads vs. public roads
2007-CA-000478
NOT PUBLISHED: 80
DATE RENDERED: 01/11/2008
CENTERS V. COM
2005-CA-002139
NOT PUBLISHED:
DATE RENDERED: 01/11/2008
MCCORMICK V. COM
2006-CA-000903
NOT PUBLISHED: 134
DATE RENDERED: 01/11/2008
BRANTLEY V. COM
2006-CA-001356
NOT PUBLISHED: 88
DATE RENDERED: 01/11/2008
HINES V. COM
2006-CA-001815
NOT PUBLISHED: 71
DATE RENDERED: 01/11/2008
TENNYSON V. COM
2007-CA-000158
NOT PUBLISHED: 76
DATE RENDERED: 01/11/2008
LEWIS V. COM
2007-CA-000414
NOT PUBLISHED: 132
DATE RENDERED: 01/11/2008
UPS V. JERNIGAN
WORKERS COMP
2007-CA-001478
NOT PUBLISHED: 85
DATE RENDERED: 01/11/2008
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] contain all decisions rendered with links to the full text of the nonpublished cases.
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