Archive for the ‘Monthly Decisions of Ky. Supreme Court w/synopsis’ Category

LawReader posts 47 Ky Supreme Court cases for month of June with synopsis

Friday, June 16th, 2006

The following Decisions of the Ky. Supreme Court were posted within 24 hours of their release with a synopsis of each important case. LawReader subscribers may access the complete synopsis and full text of each decision.  Stay current with the law in your area of the practice, subscribe to LawRreader for only $34.95 per month.

 Important cases:

1 waiver of rights constitutionally permissible

2 unpublished fact based case

3 The United States Supreme Court has rejected the idea that a jury is only required to decide the factual components of essential elements .

4 that the trial court erred in admitting expert testimony

5 the techniques used by police overbore defendant’s will in making a confession will

6 The partnership agreement was in operation, and Richard could not rightly dissolve

it under KRS 362.300(1)(b)

7 if the injury was caused by an unsecured person, the injured party’s reparation obligor may obtain BRB reimbursement directly from the unsecured person ; but if the injury was caused by a secured person, the injured party’s reparation obligor may obtain BRB reimbursement only from the secured person’s reparation obligor.

8 the interrogation during which Lucas confessed was noncustodial-and therefore did not require a Miranda warning

9 the General Assembly has provided a legal definition of the term “restrain” in the penal code chapter pertaining to kidnapping and related offenses, the definition should have been included in the instructions as a part of the whole law of the case – but omission was harmless under the facts of this case

10 only statements made during custodial interrogation are subject to suppression

11 no clear error in the trial court’s reliability determination allowing “homicide by heart attackâ€? theory by expert medical witness

12 the trial court properly required Appellant to “present evidence sufficient to support a reasonable belief that in camera review of counseling records may yield evidence that establishes the exception’s applicability.”

13 statements of identity are not pertinent to diagnosis or treatment, and are inadmissible under KRE 803(4).

14 the consent to operate form was indisputable evidence that Appellant gave Appellees consent to perform the procedures.

15 The arrest was proper because a reasonable officer could conclude from all the facts and circumstances that a violation was being committed in his presence

16 Under RCr 9.16, “a defendant must prove that joinder would be so prejudicial as to be

‘unfair’ or’unnecessarily or unreasonably hurtful .”‘

17 it would appear quite a stretch of the hearsay exception to consider many of B .P.’s statements in the interview as “medical history,” or reasonably pertinent to medical treatment or diagnosis

18 there is an absence of any proof that the insured intended his written notice of a change in beneficiary to be delivered to the company.

19 the crimes for which Davis has been charged, including first offense DUI, are “petty offenses … (However) a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of `petty.”‘  But when def. requested a jury trial, later request for bench trial should not have been granted….

20 trial court’s decision to overrule Appellant’s motion to excuse these two jurors (who had been victims of crime)  was appropriate because there was nothing shown that “would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths

21 the imposition of court costs are “mandatory” and shall not be subject to any form of ” nonimposition in the terms of a plea bargain or otherwise.”

22″[t]he purpose of the kidnapping exemption statute is to prevent misuse of the kidnapping statute to secure greater punitive sanction for rape, robbery and other offenses which have as an essential or incidental element a restriction of another’s liberty.”

23 The burden of proof rests on the defendant to prove she is not competent.

24 The prosecutor then asked if she knew where the men were going. She responded “to rob the trailer park”. Held: not hearsy

25 A pleading is sufficient if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations

26 When a sum certain is appropriated (here for state worker’s annual 5% increment pay raise) there can be no legitimate contention that more spending was intended

27″the danger of confusing the issues and/or misleading the jury is so great in this case as to outweigh whatever value this evidence has to offer”

28 fact based case unpublished

29 same sex adoption:   B.F.’s only avenue for obtaining standing to claim custody was to prove that she was a de facto custodian and in this respect, her proof failed.

30 Bowling procedurally defaulted his mental retardation claim (as defense to death penalty) applies with equal force to support a finding that his current claim, even if viable, would have been procedurally defaulted as well

31 the trial court had not abused its discretion allowing the discovery of items in the personnel files of Hamilton employees who were connected with the adjustment of a related claim.

32 the trial court erroneously declared a mistrial without the “manifest necessity” necessary to do so, subjecting him to retrial after jeopardy had already attached, thus violating his constitutional right not be tried twice for the same offense under the Fifth Amendment

33 misnumbered by AOC 34 misnumbered by AOC 35  misnumbered by AOC

36 Kevin M. Callihan, is suspended from the practice of law in Kentucky for a period of 181 days

37 KENNETH E . DANIELS is suspended from the practice of law in the Commonwealth of Kentucky

38 Rodney McDaniel, is suspended from the practice of law in the Commonwealth of Kentucky for a period of two (2) years

39misnumbered by AOC

40 he failed to sustain his burden of proving a work-related injury and failed to give due and timely notice of such an injury

41 the physical exertion of performing CPR and first aid on an individual with multiple gunshot wounds is a physically traumatic event.

42 wc case affirmed 43 wc case affirmed 44 wc case affirmed 45 wc case affirmed 46 We affirm, but we do so because the physical exertion of performing CPR and first aid on an individual with multiple gunshot wounds is a physically traumatic event.

47 failure of the administrator of the worker’s estate to list the employer’s correct address on the application for benefits did not deny the employer due process under the circumstances


Friday, May 19th, 2006

Members of can read a synopsis and the full text of these cases.  To sign up go to  -  This feature is included in your monthly subscription fee.
Important cases:

1 2 Where failure or a defect cause injury to the plaintiff, a jury instruction permitting the jurors to assign liability is proper.
3 pursuant to KRS 527.060, a conviction is required before property can be forfeited to the state.
4 TO BE PUBLISHED: The doctrine of contributory negligence does not apply to claims against highway authorities in Kentucky before the Board of Claims….
5 6 Fact that husband had affair and is seeing new friend after divorce is not sufficient to deny joint custody
7 failure to name an indispensable party in the notice of appeal results in dismissal of the appeal
8 9 10 11 policeman by ignoring department policy regarding chasing motorist, did not forfeit his right to arrest fleeing defendant…such arrest provided no defense to said defendant
13 TO BE PUBLISHED: inmate appeals:  inmates do not have the right either to retained or to appointed counsel for disciplinary actions
14 15 The law imposes lifetime registration requirements for sex offenders who had a prior conviction, or whose victims were minors. KRS 17.510. 
16 17 defendant has a duty to be honest and forthright with the plaintiffs and with the trial court – on discovery of failure to do so court was correct to reinstate civil action previously dismissed for lack of prosecution
18 the twenty-one-year sentence exceeded the maximum sentence of twenty years
19 school Board was entitled to immunity under the Recreational Use Statute

20 allocation of court costs and an award of an attorney’s fee are entirely within the discretion of the court
21 it is not in the province of this Court to substitute our judgment for that of the fact-finding circuit court
22 the Cabinet failed to prove the statutory requirements for termination of parental rights by clear and convincing evidence

23 24 25
26 TO BE PUBLISHED: we reverse the circuit court because we believe that the circuit
court erred by substituting its judgment as to the credibility of witnesses and by misapplying the law.
27 the trial court’s revocation order failed to make the requisite written factual findings concerning the conditions of release
28 this Court has no authority to review issues that were never raised before nor ruled upon by a lower court or the ALJ.
29 Defendant’s motion is DENIED for lack of jurisdiction as waived as, untimely raised and for failure to set forth any special circumstances justifying C.R. 60.02 relief.
30 We agree with the Board, however, that the evidence does not compel the result Thomas seeks.

Important cases:
1 Fletcher v. Stumbo- it is the prerogative of the grand jury to issue a general report of its investigation, so long as pardoned or unindicted individuals are not specifically identified – acceptance of a pardon is presumed – blanket pardons upheld
2 3
4 The “good faith” exception will not save an improperly executed search warrant
5 Dissent: peremptory challenges in both civil and criminal trials can be allocated at the whim of trial judges,
7 Future Medical Expenses windfall should be awarded to the injured party, not the UIM insurer who stands in the shoes of the tortfeasor.
8 evidence of the Appellant’s past affair with Ms. Baumgardener is admissible
9″[O]ne may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made
10 11
12 we find it unreasonable to presume that unallocated portions of a tort settlement were meant to pay for attorney fees and expenses.
13 while evidence of an insurer’s litigation conduct may, in some rare instances, be admissible on the issue of bad faith, such evidence will generally be inadmissible
15 the incorrect notation as to manner of service as a clerical mistake under RCr 10 .10, correctable (if need be) nunc pro tunc
16 17 18 19 20
21 the statement, “I don’t want to talk about it” to be an unequivocal assertion of the right to remain silent
22 Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to authorities
23 24
25 the right of an arresting officer to search the passenger compartment of a vehicle(does not)  terminate when the arrestee cannot access the vehicle to destroy evidence or access a weapon
26 27 28 when CR 35.02(1) is triggered by the examined party’s request for production of the independent medical examiner’s report, that party has a reciprocal obligation to produce a like report of all similar examinations .
29 30 31 32 33 34 35 36 37 38


Ky. Supreme Court decisions for April, 2006 posted on Lawreader

Friday, April 21st, 2006



1 Reinstatement of Tim Futrell denied.
2 to complete the offense (of unlawful transaction with a minor), the minor must consent to and actively participate in the activity.”
3 The trial court did not err in denying directed verdict
4 the trial court erred in admitting certain portions of Dr. Spevak’s (expert) testimony, as its prejudicial effect was far outweighed by its probative value
5 Retailer who sold gun to l8 year old in violation of Federal Law not protected by intervening criminal act of the l8 year old in shooting a friend. “ this Court has rejected “any all-inclusive general rule that . . . criminal acts of third parties . . . relieve the original negligent party from liability .”
6 evidence of another allegedly similar incident of sexual abuse by Appellee against his niece, S .B., was error.
7 requested instruction on fourth degree assault was properly denied .
8 where a .statute both declares the unlawful act and specifies the civil remedy available, the aggrieved party is limited to the remedy provided by the statute. General damages are not available when a specific remedy is provided such as in this case

9 We decline to hold that whenever one or more convictions of multiple jointly-tried offenses are reversed, every other conviction of a jointly-tried offense must also be reversed for resentencing.
10 Harry D . Williams is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of one hundred eighty-one (181) days

11 a Bruton problem may be cured by an appropriate redaction of the co-defendant’s confession, so long as “the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence .”

12 we conclude that the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings.
13 error unpreserved

14 the jury could have also believed that he did not steal the firearms. Without stealing the firearms, he would have only committed the offense of criminal trespass .
16 the denial of Appellant’s motion to withdraw his guilty plea was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles
 17 18 Each case presents differing facts and the trial judge must always be prepared to craft a set of instructions that are determined by those facts – It was error for the trial judge to overrule the motion for a continuance because it denied Grimes the opportunity to present a defense
19 no error in the trial court’s application of KRS 532.080
20 DUI -Can a certified copy of a breath-alcohol machine’s maintenance and test records be admitted into evidence to show compliance with 500 KAR 8:020 § 2(1) without in-court testimony by the breath-alcohol technician who performed the maintenance and tests?  Ans. Yes.  (Crawford v. Washington does not apply to the issue of admission of Breath Test Machine operating records.)
21 To succeed on a claim under RCr 10.26 the error must be so profound as to approach denial of due process rights.
22 We know of no rule which allows an issue to be partially preserved – an issue is either preserved or it is not.   
“[t]he appellant could not sit by and see the juror sleeping, without asking the court to arouse him from his slumbers, and then complain about it after the trial was over.

23 the trial court did not abuse its discretion or commit any errors, either individually or collectively, which rise to the level of reversible or palpable error.
24. (It was not error for) a state police detective testified as both a fact witness and an expert witness .
25 ALJ did not err by considering a medical report that the employer submitted pursuant to an order to which the claimant failed to object
26 evidence did not relate to
the scalp lacerations or their effects; therefore, it did not warrant reopening that portion of the claim on any ground
27 28 The evidence in this case clearly did not rise to the level of that in Fawbush, supra , and would not have compelled a decision in the claimant’s favor had
one not been made.
29 Having concluded that the function of CR 76 .25(4)(a) is not to make the Board an indispensable party to a petition for review, we reverse and remand
30the statements made by N.E .G. to both Griffey and Blackerby were admissible under KRE 803(4), the hearsay exception for statements made for purposes of medical treatment or diagnosis, even though Griffey was not a physician
31) Kevin Lee Nesbitt is publicly reprimanded
32, Mark Blair Geller, is hereby suspended from the practice of law
33 We hold that a party may appeal the decision of a trial court, which implicates any of the enumerated items in KRS 417.220(1), utilizing either a motion for interlocutory relief pursuant to CR 65.07, or a notice of appeal pursuant to CR 73, as long as that party fulfills the requirements and meets the burdens in so making the appeal
34 Kenneth Eugene Rylee, Jr., shall be and is hereby Permanently Disbarred from the practice of law in the Commonwealth of Kentucky.

March Decisions of Ky Supreme Court by LawReader

Tuesday, April 11th, 2006

 Go to Lawreaders Monthly Decisions of Ky Supreme Court to read synopsis and full text of  all decisions issued by Supreme Court.   LawReader posts these decisions each month to keep you current on the status of the law.


 Case No.

3 4 continuing treatment Appellant received from Appellee tolled the applicable statute of limitations
5 the trial court abused its discretion in limiting the cross-examination
6 Crawford v. Washington re: testimonial hearsay cited: its ruling applies to pending cases on appeal
7 DOCTOR WHO REFUSED TO SETTLE MUST PAY EXCESS VERDICT OF $200,000 – There was ample evidence to support the jury’s finding that, Dr. Tabler did not consent to a compromise settlement prior to the return of the excess liability verdict. The Court of Appeals erred in usurping the fact-finding authority of the jury on this issue . Editor’s note: Pride cometh before the fall.
8 trial courts have broad discretion over change of venue questions and their decision will be overturned only on a showing of an abuse of discretion
9 10 11 A licensed motor vehicle dealer is not the owner of a vehicle when he “transfers physical possession of a motor vehicle to a purchaser pursuant to a bona
fide sale, and complies with the requirements of KRS 186A.220 .”
12 13 the trial court failed to make the factual findings required by KRS 403 .250 to allow a deviation from the standard practice of a face-to-face confrontation
14 There are methods other than a formal written waiver that confirm a defendant has knowingly, voluntarily and intelligently waived a jury trial
15“In defining reasonable limitations on cross-examination, this Court has cautioned : ‘a connection must be established between the cross-examination proposed
to be undertaken and the facts in evidence .”
16“[s]o long as a reasonably complete picture of the witness’ veracity, bias, and motivation is developed, the judge enjoys power and discretion to set appropriate
17 KRS 342 .125(3) permits (reopening of award) to be sought during the period of an award
18 the incident did not appear to be “anything more than a temporary exacerbation of the plaintiffs preexisting non work-related condition
19 20 A worker seeking to resist rehabilitation has the burden to show that the evaluator’s recommendations or the available options are impractical or inappropriate .
21 Caroline Griffith is suspended from the practice of law in Kentucky for a period of one year pursuant to SCR 3 .380 . This suspension is to be served consecutive to Respondent’s current five-year suspension and shall commence on the expiration of that period .
22 we adopt the finding by the KBA regarding the appropriate discipline in this matter and order Mr. Robert W. Stevens be publicly reprimanded for his violation of SCR 3 .130-1 .7(b) .
23 An Unnamed Attorney, is hereby privately reprimanded for violations of SCR 3.130-1 .4(b) and SCR 3.130-1 .7(2)(b) .