SCOKY: Minutes of Decisions for March 2013

In its appeal to this Court, the Estate argues that the punitive damages award should be reinstated. Fuel Transport, in its cross-appeal, presents several additional issues for our review: (1) that the punitive damages award is unconstitutionally excessive; (2) that a new trial is warranted because the jury was inflamed by passion and prejudice; (3) that the pain and suffering award was unsupported by the evidence; (4) that the jury instructions were erroneous; (5) that a new trial should have been granted based on juror misconduct; and (6) that the trial court erred in refusing to transfer venue. Vanderpool did not appeal from the decision of the Court of Appeals. For the reasons set forth herein, we affirm the decision of the Court of Appeals.

30. CRIMINAL LAW.
Commonwealth of Kentucky vs. Donte Simmons
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
Madison County

Questions Presented:
First degree trafficking in a controlled substance and PFO II – 15 years. Fundamental right to a jury trial includes the fundamental right to a twelve-person jury. The right may be waived only if it appears on the record that the defendant personally opted to proceed with a depleted petit jury and did so knowingly and voluntarily; counsel’s stipulation to a depleted panel does not effectuate the waiver. This case is remanded for an evidentiary hearing to determine if the defendant’s apparent acquiescence to his counsel’s stipulation constitutes a valid knowing and voluntary waiver of the depleted jury issue.

31.  CRIMINAL LAW
Charles Nunley,  II  vs. Commonwealth of KentuckyMarion County
Affirming

Questions Presented:
Three counts of sodomy-20 years. Mid-trial discovery of victim’s counseling did not violate Brady nor did it entitle defendant to a mistrial. Trial court did not err in designating the questionable juror as an alternate and excusing him from deliberating in the case.

32. CRIMINAL LAW
Commonwealth of Kentucky vs Danny Lee Ousley
Fayette
Affirming
Questions Presented:
Criminal Law. Search and Seizure. Garbage. The issue is when a police officer may lawfully seize and search a suspect’s trash.

33.  CRIMINAL LAW
Newell Stacy vs. Commonwealth of Kentucky
Boyle
Affirming

Questions Presented:
First degree riot and PFO I – 20 years. Replaying witness testimony outside of the presence of the defendant did not constitute palpable error. Right to effective assistance of counsel was not violated. RCr 8.30. Right to speedy trial was not violated. The practice of forcing a criminal defendant’s witness to appear in prison garb can be an intrinsically prejudicial practice that infringes on the defendant’s right to a fair trial and necessitates a hearing by the trial court. In this case, concerning alleged prison crimes involving multiple witnesses, the defendant suffered no manifest injustice by his witnesses appearing in shackles and prison garb.

34.  CRIMINAL LAW
Gabriella Simone Allen v. Commonwealth of Kentucky
Reversing

Questions Presented:
Perjury-for lying in a criminal complaint-and Theft by Deception-for obtaining the discharge of a vehicle loan by lying to the finance company about whether her name had been forged on the loan documents. KRE 608(b)-cross-examination about prior convictions for dishonest acts.

35.  CRIMINAL LAW
Harlie Lewis vs. Commonwealth of Kentucky
Jefferson
Reversing and Remanding

Questions Presented:
Criminal Law. Burglary. Jury Instructions. Issues include interpretation of KRS 511.090(2) “entering or remaining unlawfully in a building” and whether the jury was properly instructed on the definition of “deadly weapon.”

36.  WORKERS COMPENSATION.  Loaned servant doctrine.
Uninsured Employers Fund vs. Matthew Stanford
From COA
Reversing and remanding

Questions Presented:
Workers’ Compensation. Issues presented in this case include whether an appeal filed after an improperly filed second petition for reconsideration is timely; and whether the loaned servant doctrine can be applied to a matter in which a statutorily created entity hired an employee for the purpose of working for a different entity.

37.  CRIMINAL LAW
Clayton Jackson vs. Commonwealth of Kentucky
Clay
Reversing, Vacating and Remanding

Questions Presented:
Three counts of murder and first degree arson-Life imprisonment without the possibility of parole. RCr 9.36. Challenge to juror impartiality. Case reversed for error in failing to remove a juror from the jury.