SCOKY: Oct. 20, 2012 Ky 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Screen Shot 2013-02-10 at 4.20.58 PMPublished and Unpublished Decisions from the Supreme Court of Kentucky

October 20, 2012 Supreme Court Minutes
Nos. 77-95:  19 decisions;  3 Cases To Be Published

Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT:

145. INSURANCE.  POLICY CONSTRUCTION. ASSIGNMENT OF CLAIM.
IN RE: WEHR CONSTRUCTORS, INC. VS. ASSURANCE COMPANY OF AMERICA
Questions Presented:
Under Kentucky law, a clause in an insurance policy that requires the insured to obtain the insurer’s prior written consent before assigning a claim for an insured loss under the policy is not enforceable or applicable to the assignment of a claim under the policy where the covered loss occurs before the assignment and such clause would, under those circumstances, be void against public policy.

146.  CRIMINAL LAW. INEFFECTIVE ASSISTANCE OF COUNSEL.
DAVID STIGER V. COMMONWEALTH
Questions Presented:
Criminal Law. Ineffective Assistance of Counsel. Issues include whether erroneous advice concerning parole eligibility may constitute ineffective assistance of counsel under Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

147.  CRIMINAL LAW. COMPETENCY OF DEFENDANT.
DEREK KEELING V. COMMONWEALTH
Questions Presented:
Guilty but mentally ill-Murder and assault-Life. Prosecution of a criminal defendant originally found incompetent to stand trial for his crimes was permissible upon a subsequent finding of competency to stand trial and no violation of defendant’s constitutional rights. Trial court’s earlier dismissal of an indictment based on a finding that defendant was incompetent to stand trial was not a dismissal “with prejudice”, barring retrial, because it was not so designated with the consent of the Commonwealth’s attorney. Overruling Taber and Hicks insofar as they erroneously apply CR 41.02(3) to criminal cases. Preponderance of the evidence supported trial judge’s finding that defendant was competent. Trial court properly instructed the jury that “treatment shall be provided” to a GBMI defendant and refused to instruct on EED.

148.  MEDICAL MALPRACTICE. EXCLUDING EXPERT TESTIMONY.
CHRISTOPHER TUCKER, ADM’R EST. OF MINDI TUCKER VS. WOMEN’S CARE PHYSICIANS OF LOUISVILLE, PSC AND SUSAN BUNCH, M.D.
Questions Presented:
Medical malpractice. Evidence. Issue is whether the trial court abused its discretion in excluding certain expert testimony as irrelevant.

149   EVIDENCE. SPOUSAL TESTIMONY PRIVILEGE.
KEITH EDWARD MEYERS V. COMMONWEALTH
Questions Presented:
Spousal testimony privilege. KRE 504(c)(2)(a). Possession of a firearm by a convicted felon and second-degree PFO.

150.  CRIMINAL.  INEFFECTIVE ASSISTANCE OF COUNSEL.
COMMONWEALTH V. RUSSEL TIM PRIDHAM, JR.
Questions Presented:
Criminal Law. Ineffective Assistance of Counsel. Issues include whether erroneous advice concerning parole eligibility and/or impact of the sex offender treatment program upon parole eligibility may constitute ineffective assistance of counsel under Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

151.  UNEMPLOYMENT BENEFITS.
TONY C. TAYLOR V. KENTUCKY UNEMPLOYMENT INS. COMMISSION
Questions Presented:
Unemployment Benefits. Procedure. The issue is whether the Court should permit a party to file an Amended Complaint in order to satisfy the verification requirement in KRS 341.450.

152.  CRIMINAL LAW.  SLOW MOVING VEHICLE ON HORSE DRAWN BUGGIES
JACOB GINERICH VS. COMMONWEALTH
Questions Presented:
Criminal Law. State Constitutional Law. In cases involving failure to display a KRS 189.820 “slow moving vehicle” emblem on Old Order Swartzentruber horse-drawn buggies, issues involve whether KY. CONST. §§ 1 & 5 provide greater religious protection than does the First Amendment to the United States Constitution.

153.   CRIMINAL.  VICTIM’S FAILURE TO APPEAR, CONTINUANCE AND CROSS-EXAMINATION ON FAILURE
WILLIAM D. SLONE V. COMMONWEALTH
Questions Presented:
First degree rape, first degree sodomy and first degree PFO-30 years. Trial court properly granted a continuance of the trial when the victim failed to appear. Cross examination of the victim regarding her failure to appear on the first trial date. Evidence of victim’s fear of contracting an STD. Failure to disclose SANE nurse’s final report. Competency evaluation.

154.  CRIMINAL LAW.
FRED M. JONES V. HON. ROBERT CONSTANZO
Questions Presented:
RCr 11.42-Ineffective assistance of counsel
Denial of funds for witnesses pursuant to KRS 31.185. Appellant failed to satisfy the threshold requirement of showing a lack of adequate remedy by appeal or otherwise necessary for the issuance of a writ.

155.  CRIMINAL LAW
JAMES E. WRIGHT VS. COMMONWEALTH
Questions Presented:
First degree fleeing or evading police, fourth degree assault, possession of marijuana and first degree PFO-20 years. Jury was not properly instructed as to the domestic violence element on the fleeing or evading charge because the trial court failed to include a definition of an “unmarried couple.” Model instruction included to be used on retrial. Because the trial court found appellant to be indigent, it erred when it included fines in its sentencing order.

156.    CRIMINAL LAW
HAROLD BUSTER V. COMMONWEALTH
Questions Presented:
Multiple counts of first degree sexual abuse-20 years. Adequacy of notice of charges. Adequacy of bill of particulars. Testimony and recall of young victims. Trial court erred in attempting to retain jurisdiction to impose court costs and a partial public defender fee at the time of defendant’s release from prison.

157.  FAMILY LAW. MARRIAGE DISSOLUTION. PROPERTY DIVISION.
RACHEL FORD VS. KEITH PERKINS
Questions Presented:
Multiple counts of first degree sexual abuse-20 years. Adequacy of notice of charges. Adequacy of bill of particulars. Testimony and recall of young victims. Trial court erred in attempting to retain jurisdiction to impose court costs and a partial public defender fee at the time of defendant’s release from prison.

158.  MEDICAL MALPRACTICE. JURY QUESTION AND SURGICAL SPONGE.
SOPHIA SAVAGE VS. THREE RIVERS MEDICAL CENTER
Questions Presented:
Torts. Medical Malpractice. Issues include whether the evidence sufficed to create a jury question relating to a surgical sponge left in a patient’s abdomen when the patient had undergone multiple previous surgeries in that area of the body.

159.  CRIMINAL LAW. MURDER. FLEEING SCENE.  FIFTH AMENDMENT.
TOBY RAY LASURE VS. COMMONWEALTH
Questions Presented:
Murder, first degree fleeing or evading the police and leaving the scene of an accident-Life. Defendant’s Fifth Amendment right against self-incrimination was violated by the trial court’s ruling, which forced him to testify before his medical expert was permitted to testify regarding alleged EED.

160.  EVIDENCE. ATTORNEY CLIENT PRIVILEGE. WRIT ERRONEOUSLY GRANTED.
VANDA COLLINS, IND. & EXEC. ESTATE OF ROY COLLINS VS. HON. PAUL BRADEN, JUDGE
Questions Presented:
Attorney-client privilege asserted as to various documents. Writ of prohibition was erroneously granted where the Medical Center had not yet shown entitlement to the attorney-client privilege.

161.  UNEMPLOYMENT INSURANCE.
KENTUCKY UNEMPLOYMENT COMM. VS. DIANA CECIL
Questions Presented:
Unemployment Benefits. KRS 341.370(6). The issues are: 1. Whether the “willful and wanton” standard still applies to specific misconduct enumerated under KRS 341.370(6), and 2. Whether the Water Company’s instruction to Cecil to sign a “last chance” employment agreement was reasonable.

162.  NEGLIGENCE. STATUTORY IMMUNITY FOR HOSPITAL PER KRS 620.030;.050
NORTON HOSPITALS, INC. VS.  BRANDI PAYTON
Questions Presented:
Statutory Immunity. Negligence. The primary issue is whether a hospital and its employees have statutory immunity under KRS 620.030 and 620.050 where a mother’s blood alcohol level may have been misreported to Child Protective Services.

163.  CRIMINAL LAW. INDEPENDENT EVALUATION OF WITNESS.
BOBBY PERRY VS. COMMONWEALTH
Questions Presented:
First degree sodomy-45 years. Defendant was entitled to an independent evaluation of a witness whose psychological condition might have affected his memory or ability to tell the truth. Trial court to review supplemented record to determine if witness may be impeached by prior claims of sexual conduct.

164.  CRIMINAL.  CRIMES. TRAFFICKING
PERRY GRAVES VS. COMMONWEALTH
Questions Presented:
First degree trafficking in a controlled substance, second or subsequent offense-20 years. Evidence alleging appellant had committed other acts of trafficking was erroneously admitted in violation of KRE 404(b).

165. FAMILY LAW. GRANDPARENT VISITATION.
MICHELLE L. WALKER VS. DONNA S. BLAIR
Questions Presented:
Grandparent Visitation. Issues involve evidentiary sufficiency and application of cases including Troxel v. Granville, 530 U.S. 57 (2000) and Vibbert v. Vibbert, 144 S.W.3d 292 (Ky. App. 2004).

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