WEBB V. SHARP
CRIMINAL: Prison Discipline
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART (CUNNINGHAM WRITING OP.)
MINTON, NOBLE AND SCOTT, J.J., CONCUR IN THE RESULT REACHED BY THE MAJORITY BUT BELIEVE THAT THE M AJORITY ERRS BY CONSIDERING THE MERITS OF THE RELIABILITY OF THE FIELD TESTS. NEITHER THOMAS NOR SHARP QUESTIONED THE RELIABILITY OF THE FIELD TESTS DURING THE ADMINISTRATIVE DISCIPLINARY PROCESS. AS JUDGE KNOPF NOTED IN HIS SEPARATE OPINION, THE FAILURE TO RAISE AN ISSUE BEFORE AN ADMINISTRATIVE BODY PRECLUDES A LITIGANT FROM RAISING THAT ISSUE IN AN ACTION FOR JUDICIAL REVIEW OF THE AGENCY’S ACTION. O’DEA V. CLARK, 883 S.W.2D 888, 892 (KY.APP. 1994).
DATE RENDERED: 5/24/2007 (FROM MUHLENBERG CIR. CT)
This case presents the issue of sufficient evidence in a prison disciplinary hearing before the Department of Corrections. In particular, the parties have raised a question as to the evidentiary value of two field tests: the Duquenois-Levine Reagent test, used to detect the presence of components of marijuana ; and the Marquis Reagent test, used to screen for numerous substances, including amphetamines, heroin, and opium alkaloids. Having concluded the Appellants failed to present evidence as to either reliability or foundation, SC was unable to reach the issue of whether either of the field tests involved, standing alone, would satisfy the "some evidence" standard. The decision does not foreclose the admission of such tests in future cases where the proper evidentiary foundation is met. Having determined the field tests cannot serve to satisfy the "some evidence" standard under these circumstances, SC concluded the Court of Appeals and the circuit court did not err as it relates to the white powder discovered in Sharp’s cell and thus affirmed. However, the review of the record and the applicable law led SC to reverse as to the three incidents involving marijuana.
By Scott Byrd