September 20, 2012 Supreme Court Minutes
Nos. 125-144: 19 decisions; 13 Cases To Be Published
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PUBLISHED DECISIONS WITH LINKS TO FULL TEXT:
125. CRIMINAL LAW. EX PARTE MOTION TO VACATE.
COMMONWEALTH V. MICHAEL WILSON
Kentucky law does not authorize an ex parte motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard.
126.CRIMINAL LAW. PROBATION REVOCATION.
GERALD BARKER V. COMMONWEALTH
Probation Revocation. Trial court may hold a probation revocation hearing when the grounds for revocation or modification are new, unresolved charges against the probationer. Probationer must be advised that testimony at the hearing cannot be used as substantive evidence in the trial of the new charges but can be used for impeachment purposes or as rebuttal evidence.
127. CRIMINAL LAW. MURDER. ADMISSIBILITY OF EVIDENCE.
DARIUS HARRIS V. COMMONWEALTH
Murder-40 years. Admission into evidence of two guns not used in the crime and admission of hearsay testimony of the victim’s request to borrow money from his wife were harmless error. Defendant properly not permitted to inform the jury that he had been tried twice before for the same offense and both prior juries had deadlocked.
128. CRIMINAL LAW. RCR11.42
TERRY W. ROACH V. COMMONWEALTH
Criminal Law. RCr 11.42. Time for Filing. The issue is whether appointed post conviction counsel must file their supplement to the defendant’s original pro se pleading within three years after the judgment becomes final.
129. ESTATES. ADULTEROUS SPOUSE AND STANDARD FOR PARTICIPATING IN ESTATE.
JACKIE GRIFFIN, IND. & ADM’S EST. OF CURTIS RICE V. KATHY RICE
Under KRS 392.090(2), a spouse cannot participate in his or her deceased spouse’s estate if they leave and “live in adultery.” The phrase “lives in adultery” requires a showing of more than one instance of adultery and, while adulterous activity need not be with the same man or woman, it must be periodic or recurring, a sustained or notorious activity.
130. STANDING OF MORTGAGE LIENHOLDER TO OBJECT TO AGREED JUDGMENT
TAX EASE LIEN INVESTMENTS 1 LLC V. COMMONWEALTH BANK AND TRUST
Mortgage lienholder has standing to object to an agreed judgment between the property owner and the purchaser of the property owner’s delinquent property tax liens.
131. MEDICAL MALPRACTICE. EXPERTS AND WITNESS DISCLOSURES.
RAZA HASHMI MC V. LINDA KELLY, ADMX OF ESTATE OF ROSALIE STAMPER
Medical Malpractice. Expert Witnesses. Witness Disclosure. Issues include the admissibility of expert witness testimony by the defendant where the plaintiff took expert’s deposition but defendant failed to disclose his intent to utilize deposition as expert testimony.
132,. CRIMINAL LAW
COMMONWEALTH V. SHAWN MORSEMAN
Criminal Law. Restitution. Fraudulent Insurance Acts. The issue is whether a trial court may order a defendant to pay restitution in an amount greater than the amount of actual loss incurred from the defendant’s illegal conduct for which he was convicted.
133. COMMON LAW NEGLIGENCE. EXPERT TESTIMONY.
BENJAMIN WRIGHT JR. V. HOUSE OF IMPORTS, DBA IN STYLE
law negligence. Court of Appeals’ prehearing statement. Trial court did not commit palpable error in permitting expert testimony of building code violations without instructing the jury as to the applicability of the code.
134, EDUCATION. SCHOOL SELECTION. JEFFERSON COUNTY PLAN.
JEFFERSON COUNTY BOARD OF ED. V. CHRIS FELL, FATHER NEXT FROM OF L.F.
Kentucky public school students have no statutory right to attend a particular school. Student assignment within a school district in Kentucky is a matter that the legislature has committed to the sound discretion of the local school board.
135. REAL PROPERTY. EASEMENTS.
JOHN SAWYERS V. ARTHUR BELLER
Use and maintenance of an access road across appellees’ property could not be restricted because appellants had an express easement to the access road, without any reservations or restrictions as to their use of the road.
136. CRIMINAL LAW. JUROR MISCONDUCT. VOIR DIRE. FACEBOOK.
ROSS BRANDON SLUSS V. COMMONWEALTH
Criminal Law. Juror Misconduct. Use of social media. Allegation that jurors may have lied during voir dire and of juror bias due to the use of social media websites, namely Facebook.
137. EMPLOYMENT LAW. TERMINATION. STATE GOV’T PRE-TERMINATION HEARING.
DEPT OF REVENUE V. WANDA FAYE WADE
Employment Law. Termination. The issue is whether a state employee who requested a pre-termination hearing after receiving notice of termination waives said hearing by repeatedly engaging in conduct that delays the hearing