SCOKY 2009 Minutes: August 27, 2009 (Nos. 174-207)

No Minutes for July 2009 as SCOKY was in recess for month.

August 27, 2009 Supreme Court Minutes

  • Decisions 174-207
  • 34 decisions with 18 published
  • 12 published disciplinary cases

Link to full text published decisions with opening paragraph from decision for idea of issues

174
Keith A. Owens v. Com.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON AFFIRMING APPELLANT

Questions Presented: Criminal Law. Evidence. Statement of Non-Testifying Co-Defendant. Issues include whether testimony revealing redacted portions of a nontestifying co-defendant's statement was properly admitted into evidence, where testimony did not identify or refer to defendant, but was factually inconsistent with defendant's claim of self-defense; whether redacting defendant's own statement to protect rights of co-defendants violated defendant's right to present a defense.

The United States Supreme Court has remanded this case to us for consideration in light of its recent opinion in Arizona v. Gant, 1 rendered after the issuance of our original opinion in this case . 2 This revised opinion contains our analysis of Gant, but we have concluded that Gant does not affect the ultimate outcome of this case. This appeal requires us to decide whether a police officer working a traffic stop may exercise discretion to conduct a pat-down search for weapons of a vehicle's passenger, who exited the vehicle to accommodate a search of the vehicle incident to the driver's arrest, even if the officer has no independent suspicion that the passenger is guilty of criminal conduct. Analyzing the automatic companion rule as a matter of first impression in Kentucky, we conclude that officer safety and public safety demand that the police officer have discretion to frisk the passenger under these circumstances. This conclusion leads us to hold that the trial court properly denied the passenger's motion to suppress evidence of contraband seized from him and to affirm his conviction.

175
Com. v. Michael Stone

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING

Appellee, Michael Stone, and four co-defendants, Matthew Deck, Jeremy Ursry, Eddie Ursry, and Richard Holbeck, were charged with the murder of Lamartez Griffin. Appellee was convicted of first-degree manslaughter and tampering with physical evidence' while the other defendants were acquitted. For these crimes, Appellee was sentenced to a term of eighteen years' imprisonment. The Court of Appeals reversed Appellee's manslaughter conviction on the grounds that the trial court had improperly admitted into evidence out-of-court statements from a non-testifying co-defendant, thereby violating Appellee's Sixth Amendment rights as enunciated in Bruton v. United States, 391 U.S . 123 (1968) and Richardson v. Marsh, 481 U.S . 200 (1987) . We 1 Holbeck was also convicted of tampering with physical evidence . granted the Commonwealth's motion for discretionary review of that issue . On cross-petition for discretionary review, Appellee presents two additional questions: first, whether the trial court erred by refusing to admit into evidence his entire out-of-court statement; second, whether the trial court should have granted his request for a "no duty to retreat" self-defense instruction.

We now affirm the decision of the Court of Appeals, although on different grounds .

Questions Presented: Statute of Frauds. Issues include whether an audio tape recording of an oral agreement is sufficient to satisfy the requirements of the Statute of Frauds, KRS 371.010.

176
Barbara Lucinda Sawyer v. Melbourne Mills, Jr.

Questions Presented: Statute of Frauds. Issues include whether an audio tape recording of an oral agreement is sufficient to satisfy the requirements of the Statute of Frauds, KRS 371.010.

OPINION OF THE COURT BY JUSTICE NOBLE AFFIRMING
Appellant Barbara Lucinda Sawyer appeals a decision affirming the circuit court's judgment notwithstanding the verdict ("JNOV") in favor of Appellee Melbourne Mills, Jr.,in a dispute over the validity of an alleged oral agreement . Because the oral agreement violated the Statute of Frauds, lacked consideration, and could not have induced Sawyer's action, itwas unenforceable, and the decision of the Court ofAppeals is affirmed.

177
Com. v. Richard Wayne Terry

OPINION OF THE COURT BY CHIEF JUSTICE MINTON AFFIRMING

The United States Supreme Court held more than thirty years ago that a criminal defendant could not be forced to accept representation by a stateappointed attorney so long as the defendant was "made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open."' Although later decisions have shown that trial courts need not use "magic words" or repeat a standardized litany before granting a defendant's request for selfrepresentation, 2 the requirement remains that a trial court must provide a Faretta v. California, 422 U.S. 806, 835 (1975) (quotation marks omitted) . See, e.g., Depp v. Commonwealth, 278 S.W.3d 615, 617 (Ky. 2009) ("Faretta did not require any specific form or magic words for there to be a knowing and voluntary choice to proceed pro se.") . defendant proposing selfrepresentation enough information to demonstrate that the defendant's waiver of counsel was done with "eyes open ."3 The trial court in this appeal, exasperated with Richard Wayne Terry's insistence on the day of trial that his counsel was not prepared for trial, permitted Terry to waive representation by counsel . But the trial court failed to take steps on the record to ensure that Terry's waiver of counsel was knowing, intelligent, and voluntary. The jury ultimately convicted Terry of possession of a controlled substance (cocaine) and possession of marijuana. On appeal, the Kentucky Court of Appeals reversed the judgment, holding that the trial court failed to follow Faretta. We granted discretionary review to re-emphasize, once again, that a trial court must comply with Faretta. Because the record does not reflect that the trial court held a meaningful Faretta hearing, we affirm the Court of Appeals.

Questions Presented: Criminal Law. Waiver of Counsel. Issues include whether Faretta requirements were met after defendant refused to allow appointed counsel to represent him.

178
Charles Lamar Johnson

OPINION OF THE COURT BY JUSTICE SCOTT AFFIRMING
On August 1, 2007, Appellant, Charles Lamar Johnson, was found guilty by a Jefferson Circuit Courtjury of five (5) counts of rape in the first degree, two (2) counts of incest, (2) two counts of sexual abuse in the first degree, rape in the second degree, rape in the third degree, criminal attempt to commit rape in the first degree, and sodomy in the first degree. For these crimes, Appellant was sentenced to life imprisonment. Appellant now appeals his conviction as a matter of right. Ky. Const. § 110(2)(b) .

Questions Presented: Jury selection. Requirements for prima facie violation of the fair cross-section requirement or prima facie case for purposeful discrimination. Motion for directed verdict-proof of age.

179
Timothy Shemwell v. Com.

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING APPELLANT
Appellant, Timothy Shemwell, was convicted by an Ohio Circuit Court jury of manufacturing methamphetamine under KRS 218A.14321432(1)(a), possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine, possession of a methamphetamine precursor, possession of marijuana, less than eight ounces, and possession of drug paraphernalia. For these crimes, Appe
llant received consecutive sentences totaling forty-five years' imprisonment. Appellant now appeals to this Court as a matter of right . Ky. Const. § 110. Appellant asserts five arguments on appeal: 1) that his convictions for manufacturing methamphetamine and possession of a methamphetamine precursor violated double jeopardy; 2) that his convictions for manufacturing methamphetamine and possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine violated double jeopardy; 3) that he was substantially prejudiced and denied due process by the admission of evidence indicating he owned a sawed-off shotgun; 4) that he was substantially prejudiced and denied due process by the admission of testimony that he had been suspected of drug activity for years; and 5) that the trial court erred by not declaring a mistrial and severing the trial after his codefendant was questioned about her prior drug use. For the reasons set forth herein, we affirm Appellant's conviction and sentence.

Questions Presented: Convictions for manufacturing methamphetamine and possession of a methamphetamine precursor or possession of anhydrous ammonia do not violate double jeopardy.

180
William Goldstein, Ex'or Estate of Layer v. Hon. Timothy Feeley

OPINION OF THE COURT BY JUSTICE VENTERS APPELLANT APPELLEES
Appellant, William Goldstein, executor of the estate of Robert James Layer, appeals to this Court from an Order of the Court of Appeals denying his "Petition for a Writ of Mandamus and Prohibition" and his "Motion For Intermediate Relief." For the reasons set forth below, we affirm the Order of the Court of Appeals .

Questions Presented: Petition for writ of mandamus and prohibition properly denied where there was an available remedy through an interlocutory appeal of an injunction via CR 65.07. Regardless of the question of in personam jurisdiction over the Executor, trial court retained subject matter jurisdiction over the marital property when one party died after the entry of the decree of marital dissolution but before resolution of the marital property issues.

181
Radco Asbestos Specialists v. Thomas B. Lyons

Questions Presented: KRS 342.125(3). Whether "during the period of an award" limits the period for a reopening seeking TTD to the period of income benefits or to the period of both income and medical benefits.

OPINION OF THE COURT AFFIRMING RENDERED : AUGUST 27, 2009 TO BE PUBLISHED
KRS 342.125(3) permits a worker seeking temporary total disability (TTD) benefits to reopen "during the period of an award." An Administrative Law Judge (ALJ) dismissed the claimant's motion to reopen to obtain TTD on the ground that the period for such a reopening expired when his award of income benefits expired. Affirming a decision by the Workers' Compensation Board, the Court of Appeals held that the AI J erred because the claimant's award included future medical benefits. We affirm. As used in KRS 342.125(3), the period of "an award" includes the period of any medical and income benefits awarded. The claimant's award included both income and future medical benefits . His motion to reopen seeking TTD was timely because although the period of partial disability benefits had expired, the period of medical benefits had not expired.

182
Jonathan Miller, Sec'y Fiance and Admin. Cab. v. Johnson Controls, Inc.

Questions Presented: Tax. At issue is the constitutionality of retroactive tax legislation prohibiting refunds to businesses filing unitary returns.

OPINION OF THE COURT BY JUSTICE NOBLE REVERSING RENDERED : AUGUST 27, 2009 TO BE PUBLISHED APPELLANTS/ CROSS-APPELLEES APPELLEES /CROSS-APPELLANTS
This appeal addresses the constitutionality and application of certain amendments to the corporate tax statutes passed by the General Assembly in 2000 that barred the filing of combined tax returns under the unitary business concept and the issuance of tax refunds related to such a filing, even if by amended return, for the years prior to 1995 . The Appellants (and CrossAppellees) Jonathan Miller, et al., collectively on behalf of the Commonwealth of Kentucky, assert that the amended tax statutes satisfy all constitutional requirements, and that they were economic legislation enacted for a legitimate purpose, even though they disallow filing combined returns or collecting a refund thereon for the years before 1995. The Appellants also argue that the legislature effectively withdrew its consent to be sued for such refunds. Appellees (and Cross-Appellants) Johnson Controls, et al ., argue that their due process rights will be violated if the 2000 amendments to the tax statutes are allowed to prevent them from getting a refund . They also claim denial of equal protection under the law and violation of other Kentucky Constitutional rights. Because we find that the tax statute amendments were enacted for the legitimate governmental purpose of regulating revenue, and that the amendments are rationally related to that purpose, there is no due process or other constitutional violation .

183
MITCHELL METZINGER V. KENTUCKY RETIREMENT SYSTEMS

Questions Presented: Disability Retirement. Benefit Calculation. Issues include whether annuity payments, received by employee as result of global settlement involving employee's workers' compensation and civil claims, were erroneously considered in calculation of employee's disability-retirement benefit; and, if annuity payments were proper to consider, whether it was arbitrary to apply full amount of payments in calculation.

OPINION OF THE COURT BY JUSTICE SCOTT REVERSING
This is an appeal from a Court of Appeals' opinion affirming the decision of the Kentucky Retirement Systems, both of which are based on the underlying premise that KRS 61 .607 allows the agency to consider annuity payments received as a result of a global settlement of workers' compensation and civil claims in calculating maximum disability retirement benefits . Because such an interpretation of KRS 61 .607 exceeds the plain statutory language, we reverse the decision of the Court of Appeals and remand this matter to the Kentucky Retirement Systems for further proceedings consistent with this opinion.

184
Com. V. Lennie G. House

Questions Presented: Criminal Law. DUI. Pre-trial Discovery. Trade Secret. Issue is the propriety of ordering disclosure of the computer "source code" of the Intoxylizer 5000 where the manufacturer claims that it is a trade secret and the defendant urges that failure to disclose it violates his confrontation rights.

OPINION OF THE COURT BY JUSTICE ABRAMSON REVERSING
The Commonwealth seeks discretionary review of a Court of Appeals' opinion reversing an agreed order of conviction entered following Lennie House's conditional guilty plea to a charge of driving under the influence (DUI) . The Court of Appeals remanded the matter to the Fayette District Court for additional proceedings including the enforcement of a subpoena duces tecum pursuant to which House seeks to discover the computer code embedded in the Intoxilyzer 5000 EN . The Intoxilyzer, manufactured by CMI, Inc ., of Owensboro, Kentucky, is the device adopted in Kentucky for measuring the alcohol concentration in a DUI suspect's blood . The Court of Appeals ruled that House was entitled to inspect the Intoxilyzer's computer code on the off chance that he might discover problems in the code calling the device's accuracy into question . Because we agree with the Commonwealth that this case raises an important question concerning t
he scope of a criminal defendant's right to subpoena and inspect evidence prior to trial, we accepted review, and now, having concluded that House is not entitled to the computer code on the facts presented, we reverse .

185
Com. v. Tommy Lopez

Questions Presented: Criminal Law. Probation Revocation. Uniform Code of Military Justice. The primary issue concerns the weight that courts should give to violations of the UCMJ which do not necessarily constitute an independent offense under Kentucky law.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON REVERSING
While serving in the United States Army in Iraq, the Army charged Tommy Lopez with violating the Uniform Code of Military Justice (UCMJ) by viewing child pornography on a computer. At that time, Lopez was also on probation imposed by a Kentucky circuit court for the offense of criminal attempt to commit first-degree sexual abuse. In lieu of trial by court-martial for the child pornography charge, Lopez sought and received a voluntary discharge from the Army. Following the voluntary discharge and his return to Kentucky, the circuit court revoked Lopez's probation for the pornography charges. The main question before us, which is a matter of first impression in Kentucky, is whether a violation of the UCMJ is an "offense" for which a Kentucky court may revoke probation . We hold that revocation is permissible if the violation of military law subjects the violator to a fine or imprisonment.

186
George Mauldin v. Rebecca Bearden

Questions Presented: Child Custody and Visitation. Issues include whether Kentucky retained jurisdiction over visitation under KRS 403.824, a UCCJEA provision adopted in 2004.

OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING
Appellants, George and Joyce Mauldin, are the paternal grandparents of O.M ., who is a minor. The Appellee, Rebecca Bearden, is the birth mother of O.M. Through a series of events which will be discussed more fully hereafter, the Appellants were given permanent custody of O.M . Subsequently, Appellee moved to have that order set aside pursuant to CR 60.02(d) and (0, alleging fraud in the earlier proceedings. The Court of Appeals reversed and remanded, finding that the Appellee had made sufficient allegations of fraud and that the trial court had improperly declined to exercise jurisdiction over the matter. Because we believe the trial court properly exercised its discretion as to both matters, the Court of Appeals is reversed, and the judgment of the trial court is
reinstated

187
Mark Lee Crossland v . Com.

Questions Presented: While trial court lacks authority to order post-submission substitution of juror, such action is subject to harmless error analysis. Substitution error was not harmless where trial court failed to ascertain on the record that the replacement juror had not been tainted by outside contacts since being discharged and failed to order the reconstituted jury to start their deliberations over after the replacement joined them.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
Shortly after submitting this case to the jury, the trial court excused one of the jurors and replaced him with a discharged alternate juror, who was apparently located and returned to the courthouse . Such a post-submission substitution ofjurors is reversible error under current Kentucky precedent if the error is preserved. ) By contrast, we held in an unpublished case that such a post-submission substitution did not require reversal if the error is unpreserved.2 Having re-examined the post-submission juror substitution Thurman v. Commonwealth, 611 S.W.2d 803, 804 (Ky.App. 1980) ; Woods v. Commonwealth, 287 Ky. 312, 152 S .W .2d 997, 999 (1941) . Holland v. Commonwealth, No. 2004-SC-0111-MR, 2005 WL 2045375 at *3-4 (Ky. Aug. 25, 2005 . issue in this appeal, we remain convinced that a trial court lacks the authority to order post-submission substitution of a juror. But we now also hold that a post-submission substitution error is subject to harmless error analysis. The substitution error is not harmless in this case because the trial court failed (1) to ascertain by a colloquy on the record that the replacement juror had not been tainted by outside contacts after being discharged and (2) to order the reconstituted jury to start their deliberations over after the replacement joined them.

188
Frankie Covington v. Com.

Questions Presented: Kidnapping, first-degree sexual abuse and first-degree persistent felony offender (PFO). After plea agreement was rejected, trial court erred in denying motion to withdraw guilty plea.

OPINION OF THE COURT BY JUSTICE VENTERS
REVERSING AND REMANDING
Appellant, Frankie Covington, was indicted by the Bourbon County Grand Jury, and charged with one count of kidnapping, one count of firstdegree sexual abuse, one count of resisting arrest, and for being a persistent felony offender (PFO) in the first-degree . After pleading guilty to all charges, the trial court fixed his sentences as follows: twenty years for kidnapping, enhanced to life imprisonment under the PFO charge ; five years' imprisonment for sexual abuse; and twelve months for resisting arrest. Claiming that the trial court erred when it denied his motions to withdraw his guilty plea, he appeals to this Court as a matter of right. Ky. Const. § 110(2)(b) . We reverse the final judgment and remand for further proceedings consistent with RCr 5.10 .

189
Breathitt County Board of Ed. v. Dot Prater

Questions Presented: Interlocutory Appeals. Sovereign Immunity. Issues include whether interlocutory order denying claim of immunity is immediately appealable and, if so, whether school's provision of a residence on school property to house night watchman is a governmental function.

190
Jimmy L. Epps v. Com.

Questions Presented: Criminal Law. Search. At issue is whether the duration (approximately fifteen minutes) of a valid traffic stop was unreasonably prolonged to allow time for the arrival of a narcotics-detection dog.

OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING, VACATING, AND REMANDING
Appellant Jimmy Epps appeals a Court of Appeals decision approving an extended traffic stop for a minor traffic offense during which a narcoticsdetection dog was brought in and used to search the vehicle in which Epps was traveling. Because the traffic stop was unreasonably prolonged, it violated the Fourth Amendment, and the decision of the Court of Appeals is reversed .

191
Melissa Helton v. Com.

Questions Presented: Warrantless blood testing of an unconscious suspect under the statutory implied consent provisions requires a finding of probable cause.

OPINION OF THE COURT BY JUSTICE NOBLE
VACATING AND REMANDING
Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol. The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident . She claims that this practice violates KRS 189A. 105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A.103 . She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects i
n general are unconstitutional .

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.