Nov. 2011 SCOKY Month Case Summary Report from AOC

I apologize for this housekeeping chore.  I know they are late. In fact, very late.  However, they were overlooked, and now they are found.  So please rejoice in their discovery, and now their availability for on line search.  Mike.

Nov. 2011 SCOKY Monthly Case Summaries of Published Decisions

Click here for all posted monthly summaries from SCOKY.

I. CRIMINAL LAW

A. Kenneth Williams v. Commonwealth of Kentucky
2010-SC-000138-DG November 23, 2011

Opinion of the Court by Chief Justice Minton. All sitting; all concur. When
police detained Williams he was among a group of nine people, some of whom
the police observed openly engaging in illegal drug activity and some of whom
the police found in possession of handguns. Williams argued that the group’s
activities did not create reasonable suspicion of criminal activity particularized to
him to justify a Terry detention. Denying Williams’s motion to suppress the
handgun seized during the patdown that followed the detention, the trial court
found that Williams was part of a distinct group whose conduct aroused sufficient reasonable suspicion for the officers to detain Williams. The Court of Appeals affirmed the trial court’s order on appeal. We granted discretionary review and affirmed, finding that the seizure of Williams was a constitutional Terry stop.

The police had reasonable, articulable suspicion of drug use and the potentially
dangerous presence of concealed deadly weapons justifying an investigatory stop of all the persons in this group. Once the officer made the constitutional
investigatory stop, he had reason to believe that Williams was armed and
dangerous because the officer saw the bulge created by the handgun concealed in Williams’s clothing in the center of Williams’s back.

B. Lawrence Robert Stinnett v. Commonwealth of Kentucky
2010-SC-000347-MR November 23, 2011

Opinion of the Court by Justice Noble. All sitting; all concur. Stinnett was
convicted of murder and kidnapping. He argued that the trial court erred by failing to dismiss the kidnapping charge pursuant to the kidnapping exemption statute, KRS 509.050. The Court affirmed, on different grounds, the trial court’s decision that the kidnapping exemption did not apply. The trial court’s analysis focused on Stinnett’s intent during the criminal act, while the Court held that the
determinative factor was that Stinnett’s restraint of the victim exceeded that
ordinarily incident to the commission of murder.

The Court considered Stinnett’s several other claims regarding the intentional
murder instruction, the trial court’s refusal to replace appointed counsel when a
disagreement developed between Stinnett and his attorneys, the trial court’s
decision to allow Stinnett to represent himself, the trial court’s denial of Stinnett’s request for an out-of-state subpoena for an expert witness, an alleged violation of attorney-client privilege, and the admission of hearsay evidence. The Court held that there were no reversible errors and affirmed the conviction.
II. ETHICS

A. In Re: Jefferson District Court and Trial Commissioners v. Ethics Committee of the Kentucky Judiciary
2011-SC-000384-OA November 23, 2011

Opinion of the Court by Justice Cunningham. All sitting. Abramson, Schroder,
Scott and Venters, JJ., concur. Minton, C.J., and Noble, J., concur in result only.
Staff attorneys employed by the Family Court may serve as District Court Trial
Commissioners without violating the Judicial Code of Conduct, so long as certain
safeguards are put in place. The staff attorney may not conduct District Court
business during the Family Court’s normal business hours, and careful attention
must be paid to the specific types of duties assigned to the trial commissioner.
The trial commissioner should not be assigned duties that would potentially be the subject of, or pertinent to, a family court matter, such as the issuance of an
emergency custody order.

III. WORKERS’ COMPENSATION

A. Doctors’ Associates, Inc. v. Uninsured Employers’ Fund; Tonda Michelle Brown; UBC, D/B/A Subway; Honorable John B. Coleman, Administrative Law Judge; and Workers’ Compensation Board
2010-SC-000658-WC November 23, 2011

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Doctors’
Associates, Inc., (DAI) owns the “Subway” trademark and franchises the right to
operate Subway sandwich shops worldwide. In workers’ compensation
proceedings in Kentucky, the Administrative Law Judge (ALJ) dismissed the
Uninsured Employers’ Fund’s (UEF) claim against DAI for benefits to an
employee of an uninsured DAI franchisee located in Kentucky. The sole issue
submitted for a decision by the ALJ was whether DAI was a contractor and, thus, liable to the employee of its uninsured subcontractor. The ALJ ruled that
Kentucky Revised Statutes (KRS) 342.610(2), which creates up-the-ladder
liability for contractors, does not encompass a franchisor-franchisee relationship.
The Workers’ Compensation Board affirmed. The Supreme Court reversed the
opinion of the Court of Appeals and affirmed the Workers’ Compensation Board
opinion. The Court found that nothing in Chapter 342 precludes a franchisor who
meets the definition found in KRS 342.610(2) from also being considered a
contractor. And the ALJ’s legal conclusion to the contrary was erroneous. But
the ALJ properly found, under the particular facts of this case, that DAI was not a contractor.

IV. ATTORNEY DISCIPLINE
A. Jimmie Green Orr, Jr. v. Kentucky Bar Association
2011-SC-00607-KB November 23, 2011
Opinion and Order. All sitting; all concur. Supreme Court entered an order
accepting Orr’s Motion to Resign Under Terms of Permanent Disbarment. The
KBA made no objection to the motion. Orr was permanently disbarred from the
practice from the practice of law in the Commonwealth of Kentucky.

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