COA 2009 Minutes: October 23, 2009 (Nos. 1074-1099)

COA 2009 Minutes: October 23, 2009 (Nos. 1074-1099)

• 26 decisions
• 3 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1080
WILLIAMS V. COMMONWEALTH
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE: Denver Ray Williams appeals from a judgment of the Grayson Circuit Court wherein he was convicted and sentenced to 18 years in prison for first-degree possession of a forged instrument and for being a second-degree persistent felony offender. We affirm in part and reverse in part and remand.

At trial, Williams moved for a directed verdict, and the court denied the motions. After the verdict, Williams moved for a judgment notwithstanding the verdict on the charge for which he had been convicted and for a dismissal of the charges upon which the jury had failed to reach a verdict. The court likewise denied these motions.

Williams raises various arguments on appeal, including that the court erred in not granting directed verdicts on all charges due to insufficiency of the evidence. We agree with Williams that the court erred by failing to grant a directed verdict on the charge of possession of a forged instrument relating to the ripped-up copy of a $20 bill. We disagree, however, that the court erred in not dismissing the possession of a forgery device and bail jumping charges.

1083 – CRIMINAL PROCEDURE, SEARCH AND SEIZURE, TRASH CANS
SMITH V. COMMONWEALTH
OPINION AFFIRMING
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BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
CAPERTON, JUDGE: Byron Dewayne Smith entered a conditional plea of guilty on April 21, 2008, 2 reserving the right to appeal from the Fayette Circuit Court’s  adverse determination on his suppression motion entered January 7, 2008. At the heart of Smith’s appeal is whether the Kentucky Constitution affords greater protection for its citizens than its federal counterpart when the police perform a search of one’s trash cans left for collection and then subsequently use the information gathered therefrom to obtain a search warrant. After a review of the arguments presented by the parties, the record, and the applicable law, we affirm the Fayette Circuit Court.

[2 Smith conditionally pleaded guilty to trafficking in a controlled
substance, first degree; possession of drug paraphernalia, first
offense; and being a persistent felony offender (PFO), first degree.]

1098 – CRIMINAL LAW – SENTENCING CREDIT
HILL V. THOMPSON
BEFORE: CAPERTON, CLAYTON, AND DIXON, JUDGES.
OPINION AFFIRMING
CAPERTON, JUDGE: Appellant, Kent Frank Hill, appeals the Franklin Circuit Court’s December 12, 2008, order denying three petitions filed by Hill for declaration of rights1 under House Bill 406 and the rules of policy and procedure of Appellee, the Kentucky Department of Corrections (DOC). After a thorough review of the record, the arguments of the parties, and the applicable law, we affirm. 

[1 We note that Hill filed three cases seeking declaration of his rights, which were docketed as 08- CI-1126, 08-CI-1734, and 08-CI-1740. In two of those cases, Hill sought a declaration of rights under House Bill 406, which gives parolees credit for street time against the remaining sentence to be served when returned to jail. In the case docketed 08-CI-1740, Hill sought a declaration of his rights under the DOC Policy and Procedure 15.3, which sets forth the process by which inmates are awarded meritorious good time. The court below disposed of all three cases in a single December 12, 2008 order.]

TORT REPORT

1075 – CIVIL PROCEDURE (DIRECTED VERDICT; JOINDER); MEDICAL NEGLIGENCE; REVIVAL
PEYTON V. ARCHER
OPINION AFFIRMING
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL JUDGE.
NICKELL, JUDGE: Hollie Peyton (Peyton) has appealed from an amended agreed order granting a directed verdict in favor of Dawn Archer, Elizabeth Bogs, Melissa McDaniel, Tamara Porter, and Marian S. Williams (collectively Archer defendants), entered on January 8, 2007, by the Fayette Circuit Court. Peyton has also appealed from the March 12, 2007, order dismissing his claims against Jed Taylor, Administrator of the Estate of Nadi Rue Taylor, deceased (Taylor). We affirm. * * *

Approximately four days before the scheduled trial date, the trial court was notified that Taylor had passed away following an extended illness. Peyton promptly requested the trial date be continued as it would be legally impossible to revive the matter against Taylor’s estate prior to trial. Peyton also argued the trial court had lost jurisdiction over Taylor which could not be regained until an estate Had been created and joined as a party to the pending lawsuit. The trial court denied the request for continuance and proceeded to trial on the scheduled date.

1096 POST JUDGMENT INTEREST
DLX, INC. V. FOX TROT PROPERTIES, LLC
OPINION AND ORDER DISMISSING
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APPELLEE
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR JUDGE.
MOORE, JUDGE: DLX, Inc., appeals a judgment of the Fayette County Circuit Court specifying the nature of interest to be assessed on a prior, final judgment it rendered in 1998. For the reasons herein stated, we dismiss this appeal.