Sept. 22, 2011 SCOKY Minutes posted at AOC Web Site

Sept. 22, 2011 SCOKY Minutes posted at AOC Web Site.  Click on this to access PDF.

Decisions:  140-168
19 decisions with 11 published
Click here for this month's minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)
Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS (NO. NAME, ISSUE AND LINK TO FULL TEXT)

140.  CRIMINAL LAW.
SCOTT RICHARD STANTON V. COMM. OF KY
Questions Presented:
Guilty Plea. First degree rape and first degree sodomy-20 years. Trial court correctly found from the totality of the circumstances that investigators did not coerce defendant’s confession by representing that his children could be removed from the home if he failed to cooperate with the investigation.

141. CRIMINAL.
THOMAS YORK, SR. V. COMM. OF KY
Questions Presented:
First degree burglary, first degree robbery and second degree PFO-30 years. Voice Identification. Defendant’s fifth amendment rights were not violated by being required to recite a neutral phrase before the jury so that the victim could make an in-court identification of his voice. Where proper admonitions were given, the defendant was not entitled to a mistrial because of a reference to DNA testing or misstatements about his prior criminal record.

142. CRIMINAL.
RONNY D. WALKER V. COMM. OF KY

Questions Presented:
Murder, first degree burglary, tampering with physical evidence, intimidating a participant in the legal process, tampering with a witness and PFO II-Life without parole for 25 years. Trial court did not err in admitting interrogation tape containing detective’s personal remarks. Trial court’s opening remarks concerning the assessment of witness credibility were not palpably erroneous. Burglary instruction did not allow for a non-unanimous verdict.

143.  CRIMINAL.
LINVIL CURTIS TURPIN V. COMM OF KY
Questions Presented:
Possession of a firearm by a convicted felon and first degree PFO-20 years. Twenty year recidivist sentence cannot be characterized as grossly disproportionate and therefore did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

144.  CRIMINAL. MANDATORY MEDIATION OF COUNTY ATTORNEY.
MARCUS S. MINIX, SR. V. FAYETTE COUNTY ATTORNEY
Questions Presented:
Action to contest county attorney’s mandatory mediation program dismissed because it was improperly filed in the Court of Appeals. Relief may be properly sought in the circuit court.

145.  FAMILY LAW.  BROCKMAN V . CRAIG OVERRULED.  TIMESHARING.
SAEID SHAFIZADEH V. JUDGE BOWLES
Questions Presented:
Family law. Overruling Brockman v. Craig, 205 S.W.3d 244 (Ky.App.2006). A parent seeking to become a primary residential parent in a joint custody arrangement is seeking a change in timesharing, not custody. Modification of custody is only necessary when the parties are seeking a change of custody from sole to joint or vice versa.

146.  CRIMINAL.
LARRY ORDWAY V. COMM OF KY
Questions Presented:
Three counts of first degree robbery, ten counts of third degree burglary, six counts of TBUT over $300, receiving stolen property and PFO I-70 years. Collateral estoppel did not bar prosecution for robbery. No standing was established to contest search. Identical jury instructions on nine counts of third degree burglary were improper, requiring reversal of those.

147.  CRIMINAL.
REGINALD LAMONT WHITTLE V. COMM OF KY
Questions Presented:
Possession of marijuana, trafficking in cocaine, tampering with physical evidence and PFO I-30 years. Finding a Confrontation Clause violation, his trafficking and tampering convictions are reversed; his conviction for possession of marijuana is affirmed.

148.  CRIMINAL.
JAMES DEMETRIUS MULLINS V. COMM OF KY
Questions Presented:
Murder, tampering with physical evidence and PFOI-35 years. Defendant waived his right to claim entitlement to an EED instruction on appeal. Prosecutor’s statements in closing argument, while concerning, were not flagrant and did not require reversal where the evidence of guilt was overwhelming. Handgun testimony was properly admitted where it met the relevancy test of KRE 401 and had a sufficient nexus to the offense. Because there was insufficient evidence of defendant’s intent to conceal the gun, the conviction for tampering with physical evidence is reversed.

149.  BOARD OF CLAIMS.
PATRICIA GREEN ET AL V. COMM OF KY, ADMINISTRATIVE OFFICE OF THE COURTS (AOC)
Questions Presented:
Jurisdiction of the Board of Claims. Board of Claims established to consider negligent acts by the Commonwealth or its employees, not intentional torts. AOC improper party to Board action. Judge’s actions herein are grounds for a claim in the Board of Claims based upon alleged negligence in the performance of a ministerial duty by an officer of the state.

150.  CRIMINAL.
COMM OF KY V. ANGELA PETERS
Questions Presented:
Criminal Law. Discovery. Judicial Discretion. Issues include whether trial court has authority to compel the attendance of a witness at a pretrial

151. MATERIALMAN'S LIENS.
THE DREAMERS, LLC V. DON'S LUMBER & HARDWARE
Questions Presented:
Materialman’s Lien. Appellate Procedure. The issue is whether an appeal is properly dismissed when the defendant pays in full the amount owed under the final judgment instead of getting a supersedeas bond.

152.  CRIMINAL.
KENNETH JONES V. COMM OF KY
Questions Presented:
Murder-Guilty but Mentally Ill. KRS 503.055 (3) -“No Duty to Retreat” Instruction. KRS 503.055 (3) was not intended to apply to a victim’s conduct, but only to a defendant’s conduct relative to his or her claim of self- defense

153.  FAMILY LAW
SUZANNE ANDERSO V. JOSEPH JOHNSON
Questions Presented:
Child Custody. Modification. Issues include whether factual findings are required in ruling upon post-dissolution motions to modify parental timesharing to accommodate relocation of one joint custodian.

DISCIPLINARY MATTERS:

  • DAVID L. HELMERS.
    ORDER PERMANENTLY DISBARRED RESPONDENT FROM THE PRACTICE OF LAW.
  • FIELDING E. BALLARD, III
    ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 120 DAYS.
  • TERENCE K. MULLIKEN
    ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 5 YEARS WITH
    CONDITIONS.
  • DAVID R. SCHOTT
    ORDER PERMANENTLY DISBARRED RESPONDENT FROM THE PRACTICE OF LAW.
  • RUTH ANN SEBASTIAN
    ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 270 DAYS.
  • SABINE M. KUDMANI
    NOT TO BE PUBLISHED
    ORDER RESTORED MOVANT TO THE PRACTICE OF LAW.
  • MICHAEL RAY MCDONNER
    ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 60 DAYS.
  • DONALD L. RICHARDSON
    ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 5 YEARS.
  • LARRY A. TEMIN 
    NOT TO BE PUBLISHED
    ORDER RESTORED MOVANT TO THE PRACTICE OF LAW.
  • ERIC THOMAS EBERWINE
    NOT TO BE PUBLISHED COURT ORDER RESTORED MOVANT TO THE PRACTICE OF LAW WITH CONDITIONS.

ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW SEPT. 14, 2011

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ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW SEPT. 15, 2011

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