SCOKY: Supreme Court Minutes of Decisions for April 2013

The Supreme Court of Kentucky addressed no tort related decisions, but did issue a decision on appellate procedure and a Daubert issue was addressed in a criminal case.

In Flick v. Estate of Christina Wittich, Chief Justice Minton authored a decision which held that in filing a notice of appeal in a wrongful death action, the naming of “The Estate of Christina Wittich” as a party to the appeal was sufficient to confer appellate jurisdiciton over the co-administrators, to provide notice of the appeal, and to identify the proper party to the appeal.

Justice Scott wrote the decision in Timothy Scott Meskimen vs Commonwealth of Kentucky  in which one of the issues was hair comparison evidence and its admissibility per Daubert.  It was deemed admissible.

April 25, 2013 Supreme Court Minutes
Nos. 47-66
1820 Decisions with 6 Published
Click here for AOC page with current minutes and archived minutes links.
Click here for THIS month’s minutes with links to all decicision, published and not to be published.

PUBLISHED DECISIONS:

47.  CRIMINAL LAW
Newcomb vs. Commonwealth of Kentucky
Questions Presented:
Two counts of first degree rape, first degree criminal trespass and intimidating a participant in a legal proceeding-25years. Denial of severance of the two rape charges was proper. Modus operandi analysis. RCr 9.16. KRE 404(b). Forcible compulsion. Batson challenge.

48. ADMINISTRATIVE LAW.
Kentucky Southern Coal Corp. vs. Kentucky Energy and Environment Cabinet
Questions Presented:
Administrative Agency Law. Issues include whether the Cabinet acted arbitrarily in denying Kentucky Southern Coal Corporation’s application to renew a mining permit for certain land.

49.  SOVEREIGN IMMUNITY.
Commonwealth of Kentucky v. Kentucky Retirement Systems
Questions Presented:
Sovereign Immunity. Declaratory Judgment. State Employee Retirement Benefits. Sovereign immunity does not bar an action against the Commonwealth under the Declaratory Judgment Act, KRS Chapter 418.

50,  CRIMINAL LAW.
Jeffrey Hale vs. Commonwealth of Kentucky
Questions Presented:
Criminal Law. Sex Offenses. Unlawful Transaction with a Minor. The issues include whether a defendant who commits a sex offense with a minor can be convicted of Unlawful Transaction with a Minor rather than the substantive sexual offense. The Court is invited to re-visit its ruling in Young v. Commonwealth, 968 S.W.2d 670 (Ky. 1998).

51.  SCHOOL LAW.
Board of Education of Fayette County vs. Rosalind Hurley-Richards
Questions Presented:
School Law. Issues include whether KRS 161.790(1)(b) “conduct unbecoming a teacher” can include use of allegedly excessive physical force against a second-grader.

52.  CRIMINAL LAW.
Mark Stinson vs. Commonwealth of Kentucky
Questions Presented:
First degree sexual abuse-KRS 510.110(1)(d). “Lack of consent” is an element of the crime of first degree sexual abuse under KRS 510.110(1)(d), which was satisfied by the fact that the victim was under the age of eighteen and was subjected to sexual contact by the defendant, a person in a position of authority or special trust with whom she came into contact as a result of that position. Statute held not to be vague or overbroad.

53.  CRIMINAL LAW.
Timothy Scott Meskimen vs Commonwealth of Kentucky
Questions Presented:
First degree manslaughter, first degree tampering with physical evidence, third degree alcohol intoxication, and third degree criminal trespass-25 years. Trial court properly denied motion to suppress defendant’s statement obtained during his interrogation at police headquarters and his subsequent statements made during his hospitalization. Right to remain silent. Intoxication. Hair comparison evidence-Daubert hearing. Criminal contempt.

54. WORKERS COMPENSATION.
Kentucky Uninsured Employer’s Fund vs. Julian Hoskins
Questions Presented:
Workers’ Compensation. Issues presented in this case include whether an injured employee who was purportedly leased between several different entities is covered by a workers’ compensation insurance policy if that employee did not enter into a contract for hire with the entity who held the policy.

55.  WORKERS COMPENSATION
Commonwealth of Kentucky Uninsured Employer’s Fund vs. Christopher Allen
Questions Presented:
Workers’ Compensation. Issues presented in this case include whether the claimant presented sufficient evidence to make a prima facie case to reopen his claim; and whether the Uninsured Employers’ Fund could be joined as a party after it had been previously dismissed from the case.

56. CRIMINAL LAW.
Amanda Johnson vs. Commonwealth of Kentucky
Questions Presented:
Murder and first degree criminal abuse-45 years. Unanimous Verdict. Criminal abuse conviction reversed. With the evidence presented, the trial court did not err in denying the defendant’s motion for directed verdict on the criminal abuse charge. However, the defendant did not receive a unanimous verdict on the criminal abuse conviction because the jury instructions failed to specify what injury or abusive act the jury should consider. No reversible error in playing a recorded interview in which a police detective accused the defendant of being untruthful, nor in allowing that detective to testify that defendant’s story was inconsistent with other testimony.

57.  CRIMINAL LAW.
Troy Kingrey vs. Commonwealth of Kentucky
Questions Presented:
Use of a minor under the age of 16 in a sexual performance and six counts of use of a minor under the age of 18 in a sexual performance-25years. Unanimous verdict. Jury instruction on one count regarding an under 18 victim denied the defendant a unanimous verdict because it failed to distinguish factually two alleged criminal acts. Evidence of allegations of sexual abuse, while improper, was harmless

58.  APPELLATE PROCEDURE.
Michael Joseph Flick vs. The Estate of Christina Wittich
Questions Presented:
Appellate Procedure. Notice of Appeal. Issues include whether the Court of Appeals properly dismissed a notice of appeal that named only the decedent’s estate but was served on the co-executors.

59.  JUVENILE LAW.
N.C. A Child Under Eighteen vs. Commonwealth of Kentucky
Questions Presented:
Juvenile Law. Custody. Miranda Warnings. Incriminating statements elicited under the circumstances of this case, with a school official working with the police on a case involving a criminal offense, the police failing to give Miranda warnings, and the juvenile being in custody, are subject to suppression under the Unified Juvenile Code and the Fifth Amendment.

60.  COUNTY ROADS.  CIRCUIT COURT JURISDICTION.
Harold Whitley vs. Robertson County
Questions Presented:
County Roads. KRS Ch. 178. Issues include the authority of circuit courts to determine whether county roads were legally established and the correct procedure to make that determination.

61.  CRIMINAL LAW.
Garr Keith Hardin vs. Commonwealth of Kentucky
Questions Presented:
Post-conviction DNA testing in a non-capital case. Murder-life imprisonment. Defendants entitled to release of certain physical evidence recovered from the crime scene (unidentified hairs found in the victim’s hand) for DNA testing-testing which was unavailable at the time of defendants’ trial and which, they claim, will prove their innocence.

62.  CRIMINAL LAW.
Francisco Gilbertto Rodriguez vs. Commonwealth of Kentucky
Questions Presented:
Class A felony Incest-30 years. Unanimous verdict. Trial court’s jury instructions on the incest charge failed to require a unanimous determination beyond a reasonable doubt that the victim was under 12 years of age at the time of the offense. Model instructions included. Retrial is not barred by double jeopardy.

TORT REPORT:

53. EVIDENCE. DAUBERT ADMISSIBILITY OF HAIR COMPARISON.
TIMOTHY SCOTT MESKIMEN V. COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING
MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, AND VENTERS, JJ., SITTING. ALL CONCUR.

A Fayette Circuit Court jury found Appellant, Timothy Meskimen, guilty of first-degree manslaughter, first-degree tampering with physical evidence, third-degree alcohol intoxication, and third-degree criminal trespass. For these crimes, Appellant received a twenty-five-year prison sentence. He now appeals as a matter of right, Ky. Const. §110(2)(b), alleging that the trial court erred by: (1) allowing the use of Appellant’s coerced statements in violation of his constitutional rights, (2) failing to suppress the evidence of subsequent statements made during his hospitalization, (3) denying his motion to suppress evidence of hair comparisons, and (4) summarily imposing a consecutive six- month sentence for indirect contempt. For the reasons that follow, we affirm Appellant’s conviction and sentence.

Appellant next argues that the trial court erred to his substantial prejudice when it denied his motion to exclude physical evidence. Specifically, Appellant alleges the admission of hair comparisons was erroneous because the trial court failed to conduct a Dauberthearing.  We review a trial court’s evidentiary ruling for abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citing Woodward v. Commonwealth, 147 S.W.3d 63 (Ky. 2004)). “The test for an abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).

Two hair samples were of significance in this case: (1) one found on a piece of wood that the Commonwealth inferred was used to hit Hurst in the back of the head and (2) one found on the underside toe area of Appellant’s boot, which was used to create an inference that he had kicked Hurst in the head or stomped on his face. Appellant argued, before the trial, that hair comparison evidence was scientifically unreliable and, therefore, the evidence should not be admitted. The trial court denied Appellant’s motion on the basis that hair comparison evidence is scientifically reliable and admissible. Appellant now argues that the trial court erred by taking judicial notice that hair comparison evidence is scientifically reliable.

Daubert recognized that some scientific methods, techniques, and theories are so firmly established as to be proper subjects of judicial notice. Johnson v. Commonwealth, 12 S.W.3d 258, 261 (Ky. 1999) (citing Daubert, 509 U.S. at 592) See also, Murphy v. Commonwealth, 2008 WL 1850626, Ky., April 24, 2008 (NO. 2007-SC-000176-MR). “[O]nce an appropriate appellate court holds that the Daubert test of reliability is satisfied, lower courts can take judicial notice of the reliability and validity of the scientific method, technique or theory at issue.” Id. “Courts are right to admit or exclude much evidence without reinventing the wheel every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status.” Id. (internal quotations omitted). “This Court holds that Kentucky trial judges may take judicial notice of those scientific methods or techniques that have achieved the status of scientific reliability, and thus a Daubert hearing is not required.” Id. at 262. Indeed, leividence of hair analysis by microscopic comparison has been admissible in this Commonwealth for many years.” Id.

In this case, the Commonwealth offered evidence that has been admissible in the state of Kentucky for many years. Microscopic hair analysis is a scientifically reliable method, and we, therefore, do not require that a Daubert hearing be held with regard to the admittance of such evidence. We will not disturb the decisions of the trial court without a clear showing of abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996). In this case, there is no indication that the trial court abused its discretion in admitting the evidence. Thus, Appellant’s argument is without merit.

With that being said, the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stone,” and is subject to change with scientific discovery.  It is up to the trial courts to stay abreast of currently accepted scientific methods, as they are the gatekeepers for the admissibility of evidence. Therefore, even though case law may be in acceptance of a certain method of analysis, it is the trial court’s duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings,’ before taking judicial notice of its aceptability. That of course was not the case here, thus, we find no error.

58. APPEALS.
MICHAEL JOSPEH FLICK V. THE ESTATE OF CHRISTINA  WITTICH
TO BE PUBLISHED
2010-SC-000664-DG FAYETTE
OPINION OF THE COURT BY JUSTICE ABRAMSON – REVERSING AND REMANDING
MINTON, C.J.; CUNNINGHAM, SCOTT, VENTERS, JJ., FRANK H. MCCARTNEY, SPECIAL JUSTICE, AND THOMAS W. MILLER, SPECIAL JUSTICE, CONCUR. KELLER AND NOBLE, JJ., NOT SITTING.

Michael Flick was sentenced to life imprisonment for the murder of Christina Wittich. Wittich’s parents, Judith and Frederick Wittich, brought a wrongful death action against Flick on behalf of their daughter’s Estate and obtained a multi-million dollar jury verdict. After Flick appealed the judgment naming only “The Estate of Christina Wittich” as a party to the appeal, the Court of Appeals dismissed the appeal for failure to name the co- administrators of the Estate. Having granted discretionary review, we conclude that naming “The Estate of Christina Wittich” was sufficient to confer appellate jurisdiction over the co-administrators, to provide fair notice of the appeal, and to identify the proper party to the appeal. Accordingly, we reverse and remand.

Returning to the instant case, naming “The Estate of Christina Wittich” as the party to the appeal did not deprive the Court of Appeals of its ability to grant complete relief to the prevailing party, as any decision by an appellate court that would bind the Estate would be binding upon and effectuated by the co-administrators. Unlike the three distinct parties in Braden, the Estate could not defend against an appeal of the wrongful judgment (of which it was entitled to certain proceeds) without being represented by the co-administrators (who are vested with the statutory right to pursue the appeal). In essence, the Estate and its co-administrators are one and the same party. Therefore, requiring separate and distinct naming of the co-administrators as parties here would serve no rational purpose. See Lassiter, 308 S.W.3d at 719. As recognized by the Court in Blackburn v. Blackburn, the principal objective of a pleading is to give fair notice to the opposing party. 810 S.W.2d at 56, (citing Lee v. Stamper, 300 S.W.2d 251 (Ky. 1957)). Here, the co-administrators received notice of the appeal of the judgment against the Estate and thus, the Blackburn principle was achieved despite Flick’s omission of the names of the co-administrators. In our view, this constitutes substantial compliance with CR 73.03.

Flick’s error in the notice of appeal was not fatal to the appeal, as naming “The Estate of Christina Wittich” substantially complied with CR 73.03 by providing sufficient notice to and conferring jurisdiction over the co- administrators of the Wittich Estate. Accordingly, we reverse the Order of the Court of Appeals dismissing the appeal and remand this matter to that Court for further proceedings.

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