TRIAL PROCEDURE & EVIDENCE: Proffer of expected testimony found by SCOKY to be too vague to preserve error on appeal (Eric Henderson vs. Commonwealth of Kentucky SC Published 8/21/2014)

From the former practice of preserving testimony with an avowal to the KRE 103 proffer of expected testimony, a trap is laid  for the need for specificity and clarity  falling short of the actual avowal of the testimony of yesteryear being abandoned for the cause of convenience and time.  Here the judge made a clearly erroneous trial ruling excluding testimony but for want of a good enough proffer of the expected testimony the error remains.  Practitioners be forewarned, and do not let time and inconvenience thwart your efforts to preserve the error, even in the midst of the trial because after the trial there is the appeal.

Historical marker for the "Great Dissenter", Justice John  Harlan, outside the Boyle County Court House in Danville, KY.

Historical marker for the “Great Dissenter”, Justice John Harlan, outside the Boyle County Court House in Danville, KY.

Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs.  Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming
Questions Presented:  Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.

Appealing to the Court of Appeals, Henderson challenged the trial court’s exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals—while acknowledging the trial court erred by excluding the evidence—concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically, the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court’s ruling excluding Harris’s hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment. 

We accepted discretionary review of this case primarily to consider whether, in light of the trial court’s adverse evidentiary ruling excluding proposed testimony, Henderson’s counsel’s use of imprecise, general language satisfied KRE 103(a)(2)’s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.

Before this Court, Henderson raises two allegations of error: (1) the trial court erroneously excluded testimony of Henderson’s prior altercation withHarris and, additionally, the Court of Appeals improperly held the issue was unpreserved for review under KRE 103(a)(2); and (2) the trial court improperly excluded Harris’s hearsay testimony regarding turning Henderson in to thepolice. Because of these errors, Henderson argues he was denied the opportunity to present a complete defense. Of course, the Commonwealth agrees with the holding of the Court of Appeals that the initial issue wa sunpreserved and, moreover, argues any error associated with Harris’s excluded hearsay testimony was harmless. For the reasons stated below, we agree withthe Commonwealth and affirm the Court of Appeals.

At trial, Henderson attempted to testify about an altercation he had with Harris approximately two weeks before the club incident. The Commonwealth timely objected, and the trial court excluded the evidence because Henderson had not provided notice of the prior-bad-acts evidence to the Commonwealth as required by KRE 404(c). At the outset, we should be clear: this ruling was erroneous. By its plain language, KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense.3 Our caselaw’s mandate that only the Commonwealth provide notice is manifest. 4That being said, we are unable to determine the extent of the trial court’s error because of Henderson’s vague characterization of the excluded testimony.

Historically, to preserve for review a trial court’s ruling excluding evidence, a party was required to present avowal testimony. 5From the stand, outside the presence of the jury, the witness would provide the testimony he would have given had the trial court allowed it. Of course, this provided a clear record for review; but perhaps more importantly, as much as the practice was justified for sake of clarity, it was equally cumbersome and time-consuming. nd the practice of presenting avowal testimony was out of step with both the federal courts and the vast majority of state courts.

In 2007, this Court amended several of our evidentiary rules, 6with the explicit purpose of bringing the rules into uniformity with their federal counterparts. The case before us today revolves around the alteration made to KRE 103(a)(2). In its current state, the entirety of KRE 103 reads:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Read as a whole, to preserve a trial court’s ruling for appeal, a substantial right7of the party must be affected and, relevant to the present case, the substance of the excluded testimony must be provided to the trial court. Notably, KRE 103(a)(2) now allows an offer of proof rather than requiring “the witness [] make a specific offer of his answer to the question.” An offer of proof, generally described as a lawyer “adducing what that lawyer expects to be able to prove through a witness’s testimony[, ]” 8serves dual purposes. First, the offer of proof provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence. And, of equal importance, an offer of proof gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.

The problem with Henderson’s offer of proof and his reliance on Weaver is the absence of any meaningful description of the content of the excluded testimony. 14By name, an offer of proof must contain some modicum of proof Here, Henderson’s counsel simply made vague references to the general theory of defense but did not highlight what Henderson would actually say if given the chance to testify.

Generally speaking, an offer of proof must not be “too vague, general, or conclusory.” Typically, the context of questioning adequately indicates the substance of the excluded testimony in situations where the answer to the question is known, e.g. defense asks the defendant whether he was at the scene of the crime on a particular night, or where testimony has been received, but subsequently stricken.

In its current form, KRE 103(a)(2) is intended to be flexible but that flexibility does not diminish the fact that its compliance is mandatory. A proper offer of proof is vital, not only to the trial court, but also in providing the opportunity for sound appellate review. To this end, Henderson’s offer of proof highlights why KRE 103(a)(2) requires what it does. As we stated before, the trial court undoubtedly erred in excluding the testimony on the specified grounds. Sympathetic as we may be to Henderson’s plight, we are left with little indication of how this error affected Henderson’s trial because the recordfails to show what the other-altercation evidence would have been. As a result,we are simply unable to determine if the error is reversible, harmless, orotherwise.

SC: August 21, 2014 Supreme Court of Ky Decisions (Minutes 113-144): federal plea agreements with waivers of ineffective assistance of counsel fatal for conflicts of interest; preserving argument for appeal with offers of proof under KRE 103; SC takes a bite out of Patient Safety and Quality Improvement Act of 2005 (“PSQIA”) privilege; estate recovers for death of confidential informant when state police use him knowing his cover was blown

The  Supreme Court of Kentucky announced a  32 decisions on August 21, 2014, with 14 of the Kentucky Supreme Court cases designated for publication addressing:  federal plea agreements with waivers of ineffective assistance of counsel fatal for conflicts of interest; preserving argument for appeal with offers of proof under KRE 103;  SC takes a bite out of Patient Safety and Quality Improvement Act of 2005 (“PSQIA”) privilege; estate recovers for death of confidential informant when state police use him knowing his cover was blown.

2014.08.Boyle.View of Circle of Firsts and Court House.IMG_9934

View of the Boyle County Court House and the circle of stones announcing the “firsts” of Danville. Diane and I enjoyed our walk through the history and beauty of this lovely college town, architecture, the people and the sites.

Each of the cases, whether published and not to be published, can be found in the official “minutes” below organized by number, parties, county, and links to the full text of each (with the published decisions’ issue noted as “questions presented.”   I have highlighted in yellow those cases of interest to Kentucky and Louisville injury attorneys. 

Click here for links to all the archived Supreme Court of Kentucky minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law.

COA: August 22, 2014 Court of Appeals Decisions (Minutes 763-783): affirmed trial judge’s order permitting expert witnesses not to be sequestered after party requested invocation of the “Rule”; malicious prosecution dismissed prematurely; landlord owes no duty to tenant over known hazards

The Kentucky Court of Appeals announced 21 decisions  on Aug. 22, 2014, three published).  I have extracted the following decisions involving torts, insurance and civil procedure which might interest injury and accident lawyers: landlord owed no duty to tenants to protect against or repair hazard conditions which were know to the tenants (Ward vs. Wells, COA NPO);   summary judgment dismissing malicious prosecution claim held prematurely granted (Lickteig vs. Schwab COA NPO);  claims arising over power of attorney and whether granted or not (Est. of Chester Hill vs. Burris COA NPO); medical negligence claim  and trial dispute over the separation of expert witnesses aka “the rule” (McAbee vs. Darren Chapman M.D. COA Published).

Log Court House in Boyle County, Danville. Photo by Mike Stevens.

Log Court House in Boyle County, Danville. Photo by Mike Stevens.

To save time for those busy lawyers who like to jump straight into the published decisions, here they are:

767.  Affirmed trial court’s denial of defendant child’s motion for new trial.
(M)J. A Child vs. Commonwealth of Kentucky
COA 8/22/14; PJ Vanmeter Affirming;  Jefferson County

775.  Granted motion to dismiss appeal of arbitration award and remanded for new hearing
Stephen D. Prater Builder,Inc. vs. Larmar Lodging Corp.
COA 8/22/2014; PJ Combs Dismissing; Lawrence County

780.  Trial Procedure.  Affirmed trial court’s order not to separate expert witnesses after party requested “the rule” to sequester the witnesses
McAbee vs. Darren Chapman M.D.
COA 8/22/2014; PJ Combs Affirming; Hopkins County 

“Continue reading” for a complete copy of this week’s minutes of ALL decisions with links to their full text.

COA: August 15, 2014 Court of Appeals Decisions (Minutes 745-762): taking prosecutor’s lap top back into jury during deliberations to view video statement in criminal case; SOL for UIM accrues upon denial of claim; business lawyer in business deal sued over conflict of interest; another Post-Shelton slip and fall easily affirmed verdict against property owner

The Kentucky Court of Appeals announced 18 decisions  on Aug. 15, 2014, four published).  Some general issues include:   taking prosecutor’s lap top back into jury during deliberations to view video statement in criminal case (Napier v. Com.);  SOL for UIM accrues upon denial of claim (Hensley v. State Farm); business lawyer in business deal sued over conflict of interest ( J&B Energy vs. Caldwell); another Post-Shelton slip and fall easily affirmed verdict against property owner (Holbrook v. Dollar General).

Boyle County Court House, another view.

Boyle County Court House, another view.

The four published decisions for August 15, 2014.  The name, link to full text, and key issue for each decision are:

750.  Criminal Law. Taking prosecutor’s lap top back into jury during deliberations to view video statement.
Tracy Napier vs. Commonwealth of Kentucky
COA, Published, Judge Thompson, Reversing and Rmanding, Perry County

Based on our Supreme Court’s most recent decisions cited, we reach three conclusions. First, a trial court commits error when it permits the jury to review testimonial evidence in the privacy of the jury deliberation room. Second, the trial court commits error when it permits the jury to review testimonial evidence after it has retired for deliberation without the presence of the defendant. Third, the trial court’s use of an unclean laptop to review non-testimonial or testimonial evidence during deliberations is error. Here, all three errors occurred: The jury viewed testimonial evidence in the jury deliberation room without the presence of defense counsel or Napier and was provided the Commonwealth’s unclean laptop.

754.  Underinsured motorist benefits, Statute of Limitations Accrual
Hensley vs. State Farm Mutual Ins. Co.
COA, Published 8/15/2015; Judge Jones Reversing and Remanding, Jefferson County
Held  the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.

755.  Retroactive Application of  Unclaimed Life Insurance Benefits Act
United Ins. Co. of America vs. Commonwealth of Kentucky
COA Published 8/15/2014; Judge Maze Reversing, Franklin County

758.  Criminal Law. Competency to stand trial
Cox vs. Commonwealth of Kentucky
COA Published 8/15/2014; Judge Jones Affirming

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

 The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

INSURANCE & STATUTE OF LIMITATIONS: Second Panel of COA holds statute of limitations for UIM underinsured motorist benefits ACCRUES from date insurer denies the claim and not based upon date of accident of last PIP payment (Hensley v. State Farm, COA Published 8/15/2014)

Court of Appeals has now held in a second published decision that  the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.  I have addressed this issue of accrual multiple times over the years in this blog and my earlier blog the Kentucky Law Review, all to no avail.  Click here for my most recent commentary which addresses some additional practical reasons in support of the decisions in Riggs and Hensley below.

When applying the statute of limitations to a contract action sounding in tort you are presented with a hybrid  of analytical frameworks, neither of which seem to look at it from the insured’s perspective – eg. tort law for car collisions (2 years from date of accident or date of last pip payment, whichever is later) vs. contract (written contracts are 15  years) coupled with the fuzzy standard that an insurance company can unilaterally shorten the period if it is reasonable and not a violation of public policy.  We  now have the Court of Appeals taking a look at the rules and conditions behind the statute of limitations and applying both common sense and legal analysis.

Supreme Court Justice John Marshall Harlan, born in Boyle County.  Marker outside of court house in Danville, Kentucky.

Supreme Court Justice John Marshall Harlan, born in Boyle County. Marker outside of court house in Danville, Kentucky.

In order to be time barred, you need a start date and and end date.  The end date is clear – suit filed, yes or no?  Start date until now has been applied illogically since the start date for a tort action is not the same as a contractual action, especially a contractual action premised upon an accrual date that has no reasonable relationship with the underlying tort.

Two panels and four Court of Appeals judges get it.  The first panel held  that the the contractual provisions of an insurance policy requiring any action for UIM benefits must be brought within 2 years of accident or last PIP payment paid was unreasonable (see, Riggs v. State Farm Mut. Ins. Co. , COA Published 7/19/2014 (Judges Acree writing the majority joined by Judge Taylor, with Judge Vanmeter dissenting), pending discretionary review 2013-SC-000555).  Counsel for Mr. Riggs is Louisville personal injury attorney Timothy McCarthy; counsel for State Farm at the Supreme Court is David Klapheke.

Photos, Photos, Photos, and I did not get a single one to post.

Boyle County named after Judge John Boyle.  Marker from Court House.  Photo by me.

Boyle County named after Judge John Boyle. Marker from Court House. Photo by me.

I have had a grabber headline at the top of my blog for the past two weeks soliciting some photos from pholks to post.  Vintage photos of lawyers, courts, downtown scenes of another era.  I was hoping for pictures accompanied by a little history and local color from those in the know and maybe with a little first-hand knowledge of events and people.  Even images of the old picture postcards that were so common place at one time.

While waiting, I even shared a few photos of downtown Louisville that were taken either by Diane or myself – mostly around a beautiful spring day when we went about town enjoying  the fresh air, the beautiful blue skys over Louisville, and discussing the grandkids, watching people, and planning on what we will be doing away from the demands of the legal profession for me and the medical profession for her.

Well, no pics, no stories.   So, this Monday, I will follow up my photo series with more pictures from Danville and Boyle County.

But alas,  it is not too late.  If you have a contribution, please share.  I will share a link to your firm web page, and you will share a bit of local lore.   The link will help your web site’s visibility with the search engines, and the simple act of sharing will help raise the image of the bar, the profession, and, of course,  you.

 

SC: March 2014 Summaries of Published Decisions for Ky Supreme Court – trial judge changing mind on previous order compelling arbitration; “newly discovered” evidence and “new” trial in criminal case; and “inference upon inference” rule

The Supreme Court of Kentucky released its summary of published decisions for March 2014.  This month you will find issues covered that include trial judge’s authority to set aside his earlier order compelling arbitration; annexation; five attorney disciplinary decisions.  Criminal law cases included new trial request for “newly discovered evidence”; the “inference upon inference” rule.  No civil negligence, torts, insurance or civil decisons this month; so Kentucky’s personal injury and auto accident lawyers can take a pass from the Supremes (not the Court of Appeals) on cases and updates.

There is "fly fishing" and "fish flying".  For the latter (or ladder), then here is a picture from the Louisville Waterfront.  My idea of "shark week" is a little tamer that that of the discovery channel.   Photo by Michael Stevens, 4/2013.

There is “fly fishing” and “fish flying”. For the latter (or ladder), then here is a picture from the Louisville Waterfront. My idea of “shark week” is a little tamer that that of the discovery channel.
Photo by Michael Stevens, 4/2013.

Here is the arbitration decision:

Bluegrass Powerboats; and James D. Taylor 

2011-SC-000668-DG March 20, 2014 

Opinion of the Court by Justice Noble. Minton, C.J.; Cunningham, Keller, and Venters, JJ., concur. Abramson, J., concurs in result only without separate opinion. Scott, J., not sitting.

Appellant, Taylor, sued Chase Bank, Appellee, after a check for the purchase of Appellant’s business was initially credited to his account, and then subsequently returned for insufficient funds. Appellant’s account was debited the amount of the check, and as a result Appellant’s account was overdrawn.

Chase argued that the suit was subject to an arbitration agreement. The trial court agreed after a hearing on the existence of an arbitration agreement and ordered the case to arbitration. In arbitration, Taylor’s claim was dismissed. Then, in light of this Court’s ruling in Ally Cat, LLC v. Chauvin, Taylor moved the trial court to set aside its previous order compelling arbitration because there had never been any proof of the arbitration agreement. 274 S.W.3d 451 (Ky. 2009). At the same time, Chase filed a motion to confirm the arbitrator’s award. The trial court found that its previous ruling had been in error and denied Chase’s motion to confirm the arbitrator’s award. Chase then took an immediate interlocutory appeal of the order denying its motion to confirm the arbitration order and argued that the trial court was bound to confirm the arbitrator’s decision and could not set aside the earlier order compelling arbitration. The Court of Appeals disagreed and affirmed the trial court.

The issue addressed by the Court was whether a trial court has the authority to set aside an earlier order compelling arbitration, and thus void the arbitration, or instead must be compelled to confirm the arbitration order. The Court held that the trial court did not err in finding that there was no arbitration agreement, and that the trial court had the power to correct its prior ruling, albeit late in the case, and there was effectively no pertinent arbitration to review. The Court did not reach any other issues on appeal about the arbitration process, such as whether a dismissal for timeliness is an “award” for purposes of confirmation or vacation of an award. The Court of Appeals’ decision affirming the trial court was affirmed.

For a complete list of this month’s summary of published decisions from the Supreme Court, then continue reading.

A complete archive of monthly summaries can be found by clicking here.

SC: February 12, 2014 Grants of Discretionary Review – Eg. restrictive covenants and association dues; PFO sentencing; premises liability and outdoor hazards; retaliatory discharge

Diane shoots Mike on the Bridge.  Yes, headlines can be misleading. Picture by Diane Stevens in spring of 2013.

Diane shoots Mike on the Bridge. Yes, headlines can be misleading.
Picture by Diane Stevens in spring of 2013.

Six motions for discretionary review were granted by the Supreme Court of Kentucky on 2/21/2014.  Criminal, family law, real estate, premises liability, and retaliatory discharge.  Looks like all bases covered, including another “open and obvious” slip and fall case which seems to flood the appellate courts lately and keep Louisville and Kentucky personal injury lawyers scratching their heads since the McIntosh decision “obviously” changed the rule (as confirmed by Shelton and  others).

They are as follows:

Commonwealth of Kentucky vs. Gary Gamble, Sr.
2013-SC-000141-DG JOHNSON
PFO Sentencing
SC Case Info
Decision from COA being appealed

YOUR COMMUNITY BANK, INC. V. WOODLAWN SPRINGS HOMEOWNERS ASSOCIATION, INC. 
2013SC000234-DG NELSON
Restrictive covenants exemption of association fees
SC Case Info
Decision from COA being appealed

Commonwealth of Kentucky vs. Gary Gamble, Sr.
2013-SC-000141-DG JOHNSON
PFO Sentencing
SC Case Info
Decision from COA being appealed

YOUR COMMUNITY BANK, INC. V. WOODLAWN SPRINGS HOMEOWNERS ASSOCIATION, INC. 
2013SC000234-DG NELSON
Restrictive covenants exemption of association fees
SC Case Info
Decision from COA being appealed

THEODORE MARAS V. COMMONWEALTH OF KENTUCKY 
2013SC000267-DG JEFFERSON
DVO, JNOV, Stalking
SC Case Info
Decision from COA being appealed

JAMES CARTER V.  BULLITT HOST, LLC, D/B/A HOLIDAY INN EXPRESS
2013-SC-000325-DG JEFFERSON
Premises liability issue; outdoor hazard
Related SC Case
SC Case Info
Decision from COA being appealed

UNIVERSITY OF LOUISVILLE ATHLETIC  ASSOCIATION, INC. V.  MARY BANKER AND BRYAN CASSIS 
2013-SC-000778-DG JEFFERSON
Retaliatory Discharge
SC Case Info
Decision from COA being appealed

CHRISTOPHER J. MCGORMAN, JR. V. COMMONWEALTH OF KENTUCKY 
KELLER, J., NOT SITTING.
2013-SC-000818-DG MADISON
RCr 11.42 ineffective assistance of counsel; competency to stand trial
SC Case Info
Decision from COA being appealed

 

 

SC: February 2014 Attorney Discipline – denial of motion for reinstatement

February 2014 was a quiet month for disciplinary actions – one, just one.  And it addressed reinstatement.

No beach but plenty of Sidewalk Surfers on the Big Four shooting the curl!   For some tips on how to surf in Louisville ,  then copy this link in your browser - http://www.wikihow.com/Sidewalk-Surf. It was a sunny spring day in 2013, and as the Bobby Vee song said "It's as good as walkin' on a cloud, When I'm walkin', walkin' with my angel

No beach but plenty of Sidewalk Surfers on the Big Four shooting the curl!
For some tips on how to surf in Louisville , then copy this link in your browser – http://www.wikihow.com/Sidewalk-Surf.
Diane and I were hand in hand having a great spring day in 2013, until I started singing lines from a Bobby Vee song — “It’s as good as walkin’ on a cloud, When I’m walkin’, walkin’ with my angel.” Who said there are no stairs/stares on this bridge.  ;)

David William Doan vs. Kentucky Bar Association
SC 2/2014

Opinion of the Court. All sitting. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Keller, J., concurs in result only. Doan was admitted to the bar in October 1986. He moved to resign under terms of disbarment in 1992. The Supreme Court granted his motion and ordered him disbarred until such time as an order granting his reinstatement was entered. Doan later applied for reinstatement under SCR 3.510. The Character and Fitness Committee recommended approval of his application for reinstatement, but the Board of Governors recommended disapproval. Doan moved the Court to adopt the recommendation of the Character and Fitness Committee. After reviewing the record and the recommendations, the Court agreed with the Board of Governors that Doan failed to meet his burden of proof. The Court further noted that the record indicated that Doan had failed to acknowledge publicly his role in the misconduct, which has been held sufficient to bar reinstatement. Accordingly, the motion for reinstatement was denied.