April 22, 2012 SCOKY Minutes

Decisions: 23 through 41
19 decisions with 13 published

Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)

Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS
(Number, NAME, ISSUE AND LINK TO FULL TEXT):

42.  CRIMINAL LAW
FREDERICK DAVIS V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY
CHIEF JUSTICE MINTON –
AFFIRMING
ALL SITTING. ALL CONCUR.
KENTON
2010-SC-000108-MR TO BE PUBLISHED
Questions Presented:
First-degree manslaughter and first-degree attempted manslaughter-30 year sentence. Trial court did not abuse its discretion by empanelling a new jury, before entering a final judgment of conviction, to decide the limited issue of whether to run the defendant’s sentences concurrently or consecutively, in whole or in part. Trial court appropriately offered to play the entire guilt phase of the trial for the jury when the parties failed to provide a summary of the evidence.

43.    GOVERNMENT.  WHISTLEBLOWER ACT.
CHARLES L. WILSON, JR. V. CITY OF CENTRAL CITY, KENTUCKY
OPINION OF THE COURT BY
JUSTICE SCOTT –
AFFIRMING
ALL SITTING. ALL CONCUR.
2010-SC-000394-DG TO BE PUBLISHED
MUHLENBERG
Questions Presented:
“Whistleblower Act, KRS 61.102. Issues include whether municipalities and their employees are subject to the provisions of the Whistleblower Act.

44.    CRIMINAL LAW
KENNETH MALONE V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY
JUSTICE ABRAMSON –
AFFIRMING
ALL SITTING. ALL CONCUR.
JEFFERSON
2010-SC-000491-MR TO BE PUBLISHED
Questions Presented:
Murder-32 year sentence. Trial court did not err by denying the motion for directed verdict or by instructing the jury on alternative theories of murder. Defendant was not denied his right to present a complete defense or his right to be present when the court responded to the deliberating jury’s request for additional information.

45.    CRIMINAL LAW
RAYMOND CLUTTER V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY
JUSTICE ABRAMSON –
AFFIRMING
ALL SITTING. ALL CONCUR.
BOONE
2010-SC-000630-MR TO BE PUBLISHED
Questions Presented:
Murder, tampering with physical evidence and PFO l-Life imprisonment. Pre-trial discussions with a law enforcement agent were not inadmissible “plea discussions” under KRE 410(4), as the statements were not made “with an attorney for the prosecuting authority.”

46.    WORKERS COMPENSATION
SIDNEY COAL COMPANY, INC. V. PAUL KIRK; HONORABLE LAWRENCE
F. SMITH, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD
OPINION OF THE COURT
AFFIRMING
ALL SITTING. ALL CONCUR.
FROM COURT OF APPEALS
2011-SC-000175-WC TO BE PUBLISHED
Questions Presented:
Workers’ Compensation. Whether the Workers’ Compensation Board exceeded its authority under KRS 342.285(2)(c) by reversing an award sua sponte and remanding the claim with directions to correct a patent legal error with respect to the maximum weekly benefit allowed by KRS 342.730(1 )(d).

47.    DENIALS OF WRITS OF MANDAMUS.
COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET V.

HONORABLE PHILLIP J. SHEPHERD, JUDGE, FRANKLIN CIRCUIT COURT, FRASURE CREEK MINING, LLC; ICG HAZARD, LLC; ICG KNOTT COUNTY, LLC; ICG EAST KENTUCKY, LLC; AND POWELL MOUNTAIN ENERGY, LLC

AND

APPALACHIAN VOICES, INC., ET AL. AND FRASURE CREEK MINING, LLC V. HONORABLE PHILLIP J. SHEPHERD, JUDGE, FRANKLIN CIRCUIT COURT; COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET; ICG HAZARD, LLC; ICG KNOTT COUNTY, LLC; ICG EAST KENTUCKY, LLC; AND
POWELL MOUNTAIN ENERGY, LLC

OPINION OF THE COURT BY JUSTICE ABRAMSON -AFFIRMING ALL SITTING. ALL CONCUR.
2011-SC-000482-MR TO BE PUBLISHED
2011-SC-000485-MR TO BE PUBLISHED
Questions Presented:
Denial of writs of mandamus and prohibition affirmed. Citizens permitted to intervene in agency’s enforcement action to give them an opportunity to comment upon the proposed consent judgment.

48.  ELECTIONS.  REPRESENTATATION AND DISTRICT BOUNDARY REDISTRICTING.

LEGISLATIVE RESEARCH COMMISSION V. JOSEPH M. FISCHER; JEFF HOOVER; KIM KING; FREYTODD; ANTHONY GAYDOS; ALISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS KENTUCKY SECRETARY OF STATE; KENTUCKY STATE BOARD OF ELECTIONS; MARYELLEN ALLEN, IN HER OFFICIAL CAPACITY AS INTERIM ACTING EXECUTIVE DIRECTOR OF THE KENTUCKY STATE BOARD OF ELECTIONS; DAVID B. STEVENS, M.D.; DAVID O’NEILL; JACK STEPHENSON; MARCUS MCGRAW; AND KATHY STEIN
FRANKLIN
2012-SC-000091-TG
2012-SC-000092-TG TO BE PUBLISHED

OPINION OF THE COURT BY CHIEF JUSTICE MINTON -AFFIRMING
MINTON, C.J., ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, AND VENTERS, JJ., SITTING. CUNNINGHAM, NOBLE, SCHRODER, AND VENTERS, JJ., CONCUR. ABRAMSON, J., CONCURS WITH STATEMENT. SCOTT, J., NOT SITTING.

Questions Presented:
House Bill 1 violates Section 33 of the Kentucky Constitution in two ways: (1) it fails to achieve sufficient population equality and (2) it fails to preserve county integrity. Trial court’s decision affirmed and case remanded to the trial court to enjoin permanently the conduct of any election under the district boundaries of House Bill 1.

49.    CRIMINAL LAW
DERRYL D. BLANE V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY
JUSTICE SCOTT –
AFFIRMING IN PART. REVERSING
AND VACATING IN PART. AND
REMANDING.
ALL SITTING. ALL CONCUR.
CHRISTIAN
2010-SC-000713-MR TO BE PUBLISHED
Questions Presented:
Two counts of first-degree trafficking in a controlled substance; trafficking in marijuana, 8 ounces or more; possession of drug paraphernalia, second or subsequent offense; and PFO I-30 year sentence. RCr 6.16. Trial court may not permit the amendment of an indictment after it grants a directed verdict on a count. Introduction of the original charges of defendant’s prior convictions constituted palpable error in that it affected a substantial right to due process, resulting in a manifest injustice. RCr 10.26. Erroneous PFO instruction as to Count 1 of the indictment constituted palpable error; maximum allowable sentence under KRS 532.110(1)(e) is twenty years. PFO conviction vacated and remanded.

50.    TERMINATION OF PARENTAL RIGHTS.
D.G.R.; ANDT.B.H. V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES
OPINION OF THE COURT BY
JUSTICE NOBLE –
REVERSING
MINTON, C.J.; ABRAMSON AND
VENTERS, JJ., CONCUR. SCHRODER,
J., DISSENTS BY SEPARATE
OPINION IN WHICH SCOTT, J., JOINS.
CUNNINGHAM, J., NOT SITTING.
CALDWELL
2010-SC-000100-DGE TO BE PUBLISHED
Questions Presented:
Termination of Parental Rights. Evidentiary Sufficiency. In a case in which the circuit court denied termination of parental rights, did clear and convincing evidence require the opposite result?

51.  WORKERS COMPENSATION
COMMONWEALTH OF KENTUCKY, UNINSURED EMPLOYERS’ FUND V. JESSIE ROGERS D/B/A QUALITY EXTERIORS; WILLIAM WILLIS BALLARD; HONORABLE EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD

OPINION OF THE COURT REVERSING ALL SITTING. ALL CONCUR.
FROM COURT OF APPEALS
2011-SC-000335-WC TO BE PUBLISHED
Questions Presented:
Workers’ Compensation. Whether, having found that the record contained insufficient evidence to determine the claimant’s average weekly wage, the Workers’ Compensation Board exceeded its authority under KRS 342.285(2)(c) by remanding the claim with instructions to permit the parties to submit additional proof and then reconsider the matter.

52.  WARRANTLESS SEARCH AND EXIGENT CIRCUMSTANCES.
HOLLIS DESHAUN KING V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE SCHRODER-REVERSING AND REMANDING MINTON, C.J.; NOBLE, AND VENTERS, JJ., CONCUR. ABRAMSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE OPINION. CUNNINGHAM, J., DISSENTS SIMPLY BECAUSE HE BELIEVES THE OFFICERS INVOLVED WERE ACTING UNDER EXIGENT CIRCUMSTANCES. SCOTT, J., JOINS.
FAYETTE
2008-SC-000274-DG TO BE PUBLISHED
Questions Presented:
Exigent circumstances did not exist when the police made a warrantless entry into an apartment occupied by the defendant. The trial court’s denial of the motion to suppress is reversed and the judgment is reversed.

53. SEARCH AND SEIZURE.
JOSEPH A. SINGLETON V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS -REVERSING AND REMANDING ALL SITTING. ALL CONCUR.
CASEY
2010-SC-000078-DG TO BE PUBLISHED
Questions Presented:
Criminal Law. Search and Seizure. Vehicle Checkpoint. Issues include the constitutionality of vehicle checkpoint established to check compliance with city ordinance that required all residents of the city and all those working in the city to display a sticker on their vehicles.

54.    CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY V. PATRICK O’CONNER
OPINION OF THE COURT BY JUSTICE CUNNINGHAM -REVERSING AND REMANDING MINTON, C.J.; ABRAMSON, NOBLE, SCHRODER AND VENTERS, JJ., CONCUR. SCOTT, J., DISSENTS BY SEPARATE OPINION.
PULASKI
2010-SC-000343-DG TO BE PUBLISHED
Questions Presented:
Criminal law. First-Degree Criminal Abuse. The issue is whether the Commonwealth presented sufficient evidence to support a verdict for intentional abuse where the defendant argued the acts toward the children were the result of poverty and poor parenting skills.

55.    REVENUE AND TAXATION CHARITABLE ORGANIZATIONS. TAX EXEMPTION
CONNIE HANCOCK, FLOYD COUNTY PROPERTY VALUATION ADMINISTRATOR, ET AL. V. PRESTONBURG INDUSTRIAL CORPORATION, ETAL.
OPINION OF THE COURT BY JUSTICE SCHRODER-REVERSING AND REMANDING MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, AND VENTERS, JJ., CONCUR. SCOTT, J., DISSENTS BY SEPARATE OPINION.
FLOYD
2010-SC-000376-DG TO BE PUBLISHED
Questions Presented:
Charitable Organizations. Tax Exemptions. The issue is whether Prestonsburg Industrial Corporation (“PIC”) is a charitable organization under Kentucky Constitution § 170 and thus exempt from ad valorem taxes.

56.    GOVERNMENT EMPLOYMENT.  WRONGFUL TERMINATION.  UNIVERSITY POLICY.
MICHAEL MITCHELL V. UNIVERSITY OF KENTUCKY, ET AL.
OPINION OF THE COURT BY JUSTICE SCHRODER -REVERSING AND REMANDING CUNNINGHAM, NOBLE, AND VENTERS, JJ., CONCUR. SCOTT, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE OPINION. ABRAMSON, J., CONCURS IN RESULT ONLY BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS.
FAYETTE
2010-SC-000762-TG TO BE PUBLISHED
Questions Presented:
Wrongful termination. KRS 527.020(8). Validity of termination from employment for violation of University policy, by storing a gun in a glove compartment of a car parked in a campus parking lot. Case reversed and remanded for further proceedings.

57.  CONDITIONAL GUILTY PLEA AND MIRANDA.
PATRICIA BUSTER V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE -VACATING AND REMANDING. ALL SITTING. ALL CONCUR.
HART
2011-SC-000002-MR
2011-SC-000005-MR TO BE PUBLISHED
Questions Presented:
Conditional guilty plea to four counts of complicity to first-degree rape. Trial court’s denial of the motion to suppress is reversed because the defendant did not voluntarily waive her Miranda rights before giving a written confession. Conviction is vacated and remanded for withdrawal of guilty plea and further proceedings.

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