SCOKY: Feb. 21 , 2013 Supreme Court Minutes (Links to full text of published and nonpublished decisions)

Screen Shot 2013-02-10 at 4.20.58 PMPublished and Unpublished Decisions from the Supreme Court of Kentucky

February 21, 2013 Supreme Court Minutes
Nos. 1 – 28
28 Decisions with 15 Published
Click here for AOC page with current minutes and archived minutes links.


1.  TORT Defenses, Immunity in Defamation Case for Statement Made to AG Investigation
Dennis Stilger vs. Edward H. Flint
Questions Presented:
Immunity. Defamation. The issue is whether statements made in response to a request the Attorney General investigate a case are subject to an absolute or qualified privilege where a party alleges defamation.

2.  JUVENILES.  Youthful Offender and Violent Offender Statutes.
Anthony Edwards vs. Melissa Harrod, Administrator
Questions Presented:
Juvenile. Youthful Offenders. Violent Offender Statute. The question presented is whether Violent Offender Statute KRS 439.3401 applies to a “youthful offender” upon probation revocation so as to bar the requirement of serving 85% of a sentence prior to parole consideration.

3.  CRIMINAL LAW.  Joint trials.
Joshua Peacher vs.  Commonwealth of Kentucky
Questions Presented:
Joint trial in which both defendants were convicted of murder, first-degree assault and criminal abuse. No error arose from the joint trial or the introduction of defendant Allen’s redacted statement. There was sufficient evidence of complicity and to the extent the complicity definition instruction was in error, that error was harmless given the substantive offense instructions correctly identified the required mental states. Jury instructions adequately distinguished the alleged assault and abuse of the victim from the alleged murder. Trial court properly denied motion to suppress defendant’s statement.

4.  CRIMINAL LAW. Eyewitness Identification.
Darby Ashley Barnes vs.  Commonwealth of Kentucky
Questions Presented:
Criminal Law. Evidence. Issues include whether the admission of an eye-witness identification and evidence concerning a partial fingerprint denied the defendant due process.

5.  CRIMINAL LAW.  Insanity Defense not shift burden of proof.
Said Ali Biyad vs. Commonwealth of Kentucky
Questions Presented:
Four counts of murder and attempted murder. Insanity defense. Defendant’s presentation of evidence supporting an insanity defense does not shift the burden to the Commonwealth to disprove it.

6.  APPEALS. Indispensable parties in easement dispute.
Ben Browning vs. Jefferson Preece
Questions Presented:
Appellate Procedure. Indispensable Parties. In this dispute over the width and measurement of an easement across the property of neighboring landowners, the question is whether defendant landowners were indispensable parties on an appeal by the neighboring defendant landowner.

7.  CRIMINAL LAW.  Lay witness testimony re child victim’s behavior
Malcom Blount vs. Commonwealth of Kentucky
Questions Presented:
Two counts of first degree sodomy and two counts of first degree sexual abuse-20 years. Lay witnesses may not testify about a putative child victim’s behavior to imply that behavioral changes signify child sexual abuse.

8.  WRIT OF PROHIBITION. Not available when real party interest not included
Connie Robertson Adm’x of Estate vs. Hon. Jeffrey T. Burdette
Questions Presented:
Denial of a writ of prohibition. Writ not available where trial court properly disqualified appellant’s chosen counsel and law firm, who had previously represented the appellee real party in interest in several cases.

9.  CRIMINAL LAW.  Probation revocation. Sex Offender Treatment Program.
Elmer David Miller vs. Commonwealth of Kentucky
Questions Presented:
Criminal law. Probation Revocation. Sex Offender Treatment Program. Impossibility. The issue is the appropriate remedy where the trial court ordered the defendant to two years probation and probation and parole ordered the defendant to complete the Sex Offender Treatment Program; however, due to the length of the program, the defendant cannot complete the program prior to the expiration of his probation.

10. CRIMINAL LAW.  Motion to suppress arrest warrant etc.
Joseph Goncalves vs. Commonwealth of Kentucky
Questions Presented:
First degree robbery and PFO I -35 years.
Trial court did not err in denying the motion to suppress where a valid arrest warrant existed at time of defendant‟s arrest and evidence was seized pursuant to a valid search warrant. Complicity instruction. Prosecutor‟s argument did not improperly shift burden of proof. “Missing evidence” instruction cured any prejudice caused by failure to preserve computer hard drive. Speedy trial. Reverse and remand portion of judgment imposing the public defender fees and court costs

John Miller vs. Commonwealth of Kentucky
Questions Presented:
Multiple counts of incest, rape and sodomy- 70 years. Commonwealth’s questioning did not constitute prosecutorial misconduct. Application of the amended statute, KRS 530.020, to pre-amendment behavior violates ex post facto principles, impacts due process and requires resentencing for the incest conviction as to one of the victims. Trial court erred in levying costs and partial public defender fees on defendant who was indigent.

12.  CRIMINAL LAW. Burden of proof, criminal abuse.
Samantha Monahan Acosta vs. Commonwealth of Kentucky
Questions Presented:
Criminal law. Criminal abuse. Burden of proof. KRS 508.100. Issues include sufficiency of the evidence to support a guilty verdict under KRS 508.100.

MHC Kenworth-Knoxville/Nashville vs. M & H Trucking, LLC
Questions Presented:
Contracts. Arbitration. Issues involve the enforceability of an arbitration provision in a truck sales contract governed by the Federal Arbitration Act.

14.  CRIMINAL LAW.  Death Penalty.
Carlos Lamont Ordway vs. Commonwealth of Kentucky
Questions Presented:
Death penalty. Reversible error occurred: in the admission of police officer‟s testimony that defendant‟s behavior after the shooting was inconsistent with someone who had acted in self-defense, thereby implying that from his experienced observations that defendant had fabricated his self-defense claim; in the admission of evidence of defendant‟s post-arrest invocation of his right to remain silent; in the trial court‟s failure to strike for cause a potential juror who was the sibling of the victim‟s advocate directly connected with the case; and in the exclusion of evidence of the victim‟s statement immediately before the shooting.

15.  DAMAGES.  Contract forfeiture of earnest money.
Ramesh Patel vs. Tuttle Properties, LLC
Questions Presented:
Contracts. Damages. Issues involve the reasonableness of the forfeiture of the $125,000 earnest money deposit for the buyer‟s breach of a $450,000 contract for sale of a convenience store.

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