LAWREADER PRAISES KENTUCKY SUPREME COURT – THIS COURT IS AMAZING….end result fairness prevails

 This week the Ky. Supreme Court issued 58 decisions.  A synopsis of all Kentucky Appellate decisions is published by LawReader shortly after they are released by the court.   We have been publishing a weekly synopsis of all Ky. Appellate decisions since 2003.

 Over that time the makeup of the Sup. Ct. has drastically changed.  We call the current court the “YOUNG COURT”.  

 We continue to find examples of the fine work they are producing.  We note that there is not one Justice on the current court who is doctrinaire.   The pre 2007 makeup of the court had several justices that were highly predicable….they would rarely ever rule in favor of a criminal defendant.   We can’t say that about the current court.   As it should be, each decision is weighed on its merits.    

 When I read a case, I cannot predict how the court will rule until I have read the whole case.   Before 2007, one was always certain that two or three justices would vote against any criminal defendant, and were highly likely to find new exceptions to constitutional rights.

 But the times they are a changin’….this YOUNG COURT, has demonstrated a willingness to apply the Bill of Rights more in line with the intent of the authors of the Bill of Rights.  Once again a defendant is treated with respect, and his rights are appropriately protected.

 Every attorney should be aware of what a great job this YOUNG COURT is doing.  We should rejoice that every Justice is actually reading the briefs…and their bias against criminal defendants is not predictable .

 The current decisions for March 2010 released on March 18, included a number of cases in which a sense of fairness and reasonableness has been demonstrated by the court.

 The court reversed prior law regarding the definition of a gun as being a dangerous weapon.  Prior law allowed criminal sentences to be enhanced if the defendant had put his finger in his pocket and gave the impression it was a gun.   Several rulings this month have reversed prior law and now requires an actual gun to be used.   A minority of the court quite reasonable dissented and said the new law should go further and consider whether the gun was actually operational, but the majority at least required a gun to be used before the sentence could be used to enhance the sentence under the deadly weapon rule.   So now before the sentence can be enhanced, the def. must actually have used a deadly weapon.   And another case ruled that the trial judge would not make the determination if a weapon was deadly, this fact finding was restored to the province of the jury.  Great stuff if you believe a statute ought to be interpreted according to its actual language.

 Another ruling held that an attorney hired by a next friend or a guardian actually has an attorney=-client relationship with the minor.   A malpractice claim which was dismissed by the trial judge was reversed and the claim allowed to be given a trial.   In that case the guardian withheld the minors money.  End result….fairness done.

 Condemnation rights of a telephone company were limited and an abuse of process claim allowed to proceed when the court reversed the Ct. of Appeals.  The Supreme Court held that the statute does not allow a telephone company to condemn an entire piece of property and threaten “costly litigation” to coerce a settlement from the landowner.  End result….fairness done.

 In a self dense case a new statute was not applied to a defendant who did not withdraw, and instead under a new statute which states that there is no duty to withdraw before defending yourself was not retrospective, but still the court found a way to apply the current policy created by the legislature.  End result….fairness done.

 A case where the Commonwealth and trial court allowed instructions on robbery was thrown out when the defendant stole nothing and instead fled the scene.

 An appeal which was dismissed by the Ct. of Appeals due to the fact the local circuit clerk closed their office early for a local holiday, was reinstated.  End result…fairness done.

 On one case, the court set aside a summary judgment when the judge dismissed a medical malpractice claim in a hearing the plaintiff was unable to attend, and the court made no inquiry about the reasons the plaintiff had not identified the proposed expert witness.  End result…fairness done.

 Use of 404B evidence was disallowed when the court failed to conduct an in camera review.   End result…fairness done.

 A case was reversed when the police crashed into a home, handcuffed the defendant, and failed to give Miranda warning before questioning the defendant.  They ruled the defendant was clearly in custody and thus Miranda applied.    .   End result…fairness done.

 Other cases granted relief when the trial court disallowed proper cross-examination by the defense.  911 tape transcripts disallowed when they were found inaudible.  Kaspar records were allowed to be discovered by court…they held that a statute granting confidentiality did not override constitutional rights of defendant to obtain exculpatory evidence.  The court threw out PFO sentence where the Commonwealth did not properly provide certified proof of prior convictions.  Photocopies were found not adequate. End result…fairness done.

  In one case a Trial Court denied proper Faretta hearing on right of defendant to defend himself was corrected and such hearings were upheld.  A case was reversed where the prosecutor defined the law for the jury, and did so improperly.    They held that the judge not the prosecutor should define the law…and that law read to the jury must be correct.  The Supreme Court reversed the trial court which held that settlement of civil case by a government agency was not subject to disclose.  The Court held that agencies settling civil claims are not immune from Open Records disclosure.  End result…fairness done.

 There was one decision which appears to have created a loophole for the Commonwealth to mention the defendants silence….but this was limited…I hope this is not expanded.

 I don’t mean to imply that the Commonwealth is in any way detrimentally effected by this YOUNG COURT, they are plenty tough when the facts of the case and the correct law requires it.  But truly meritorious claims are being heard.

 I would suggest that if you have a meritorious claim, you should protect the record, and appeal all errors.   These people will actually read your brief!!!

 SELECTED KEYNOTES FROM THE MARCH DECISIONS OF THE KY. SUP. CT. - 

  TELEPHONE COMPANY MAY NOT CONDEMN ENTIRE PROPERTY ONLY AN EASEMENT- ABUSE OF PROCESS DISCUSSION – DAMAGES ALLOWED – ABUSE NEED NOT BE SUBSEQUENT TO FILING OF CIVIL PROCESS

 DETERMINATION IF INSTRUMENT DANGEROUS WEAPON SHOULD BE LEFT TO THE JURY – DOUBLE JEOPARDY- NO CULPABLE MENTAL STATE REQUIRED FOR BURGLARY

 DETERMINATION IF INSTRUMENT DANGEROUS WEAPON SHOULD BE LEFT TO THE JURY –

ATTORNEY CLIENT RELATIONSHIP WITH MINOR- GUARDIAN FAILED TO PAY MINOR-NEXT FRIEND-LEGAL MALPRACTICE-STATUTE OF LIMITATIONS

 GUN THAT WOULDN’T FIRE STILL DEADLY WEAPON-JURY INSTRUCTION- SINGLE PERSON IDENTIFICATION STANDARDS   

 PRIOR LAW OVERRULED-  DEADLY WEAPON -GUN- TO BE DEFINED AS A CLASS OF WEAPON WHICH CAN FIRE A SHOT- UNLOADED GUN IS DEADLY- TOY GUN, STICK OR FINGER IN POCKET IS NOT

 NO DUTY TO WITHDRAW – SELF-PROTECTION- VOIR DIRE-CLOSING ARGUMENT-PROSECUTORIAL MISCONDUCT -NO RETROSPECTIVE APPLICATION OF NEW STATUTES REGARDING DUTY TO WITHDRAW

 POSSESSION OF CONTROLLED SUBSTANCE VS. PROMOTION CONTRABAND-DOUBLE JEOPARDY-INTERVENING LEGAL ACT-INSTRUCTIONS

 SUMMARY JUDGMENT DUE TO FAILURE TO NAME MEDICAL EXPERT IN MED MALPRACTICE CASE PREMATURE

 IDENTIFICATION OF PERPETRATOR TO MEDICAL PERSONNEL IS IMPROPER HEARSAY – EDWARDS CASE OVERRULED-

 ROBBERY IN THE FIRST DEGREE REQUIRES PHYSICAL VIOLENCE DURING THE ROBBERY AND MERE ESCAPE AFTER ABANDONMENT OF ATTEMPT TO STEAL DOES NOT JUSTIFY FIRST DEGREE ROBBERY INSTRUCTION

 COURT ERRED IN ADMITTING PARTIALLY INAUDIBLE 911 TAPE – PROCEDURES FOR REVIEWING AUDIO TAPES

 EVIDENCE OF PRIOR ACCUSATIONS SHOULD BE REVIEWED BY COURT IN CAMERA- CABINET DID NOT PROVIDE RECORDS ORDERED BY COURT AND COURT ERRED IN NOT OBTAINING SUCH RECORDS FOR HIS REVIEW

 MIRANDA WARNING REQUIRED WHEN DEFENDANT HANDCUFFED, POLICE HAD FORCED THEIR WAY INTO HOME, AND DEF. CLEARLY NOT FREE TO LEAVE

 MEDICAL MALPRACTICE – NOTICE OF EXPERT BASIS FOR DISMISSAL BUT TRIAL COURT SHOULD HAVE HELD STATUS CONFERENCE BEFORE GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF -  DEFENDANT NOT REQUIRED TO PROVE THAT PLAINTIFF COULD NEVER PROVE THEIR CASE

 ADVERSE POSSESSION -HUNTING AND FISHING ON CONTESTED PROPERTY NOT SUFFICIENT TO ESTABLISH ADVERSE POSSESSION

 SOME PROVISIONS OF KRS CHAPTER 17 PERMIT DNA SAMPLING OF JUVENILE PUBLIC OFFENDERSSOME OFFENSES LISTED IN CHAPTER 17 DO NOT …

 EVIDENCE OF CLASS HABIT NOT ALLOWED – BOLSTERING OF WITNESS- VINDICTIVENESS OF PROSECUTOR

 CONFRONTATION CLAUSE VIOLATED- SPEEDY TRIAL- EVIDENCE OF FLIGHT- PROSECUTORS FAILURE TO INTRODUCED PROOF MENTIONED IN OPENING STATEMENT NOT ERROR

 CT. OF APPEALS OVERRULED- FAULTY CONSTRUCTION IS NOT OCCURENCE COVERED BY PROPERTY INSURANCE

 APPEAL WAS UNABLE TO BE FILED DUE TO CLOSING OF CLERK’S OFFICE FOR LOCAL EVENT, APPELLATE GIVEN ANOTHER DAY, CT. OF APPEALS OVERRULED

 DVO PETITION EVIDENCE NOT RELATED TO CRIME PROPERLY EXCLUDED

 WRIT SEEKING TO DENY DISCOVERY OF KASPAR DRUG PURCHASE RECORDS DENIED- CONSTITUTIONAL RIGHT OF DEFENDANT TO OBTAIN EXCULPATORY EVIDENCE SUPERCEDES KY. STATUTE MAKING KASPAR RECORDS CONFIDENTIAL

 HEARING REQUIRED IF DEF. WISHES TO CHANGE COUNSEL- HYBRID REPRESENTATION- GIBBS RULE- COMMENTS OF PROSECUTOR NOT MISCONDUCT

IMPROPER EXCLUSION OF CROSS-EXAMINATION- DEF. NOT ALLOWED TO CROSS-EXAMINE WITNESSES WHO COULD NOT REMEMBER PRIOR (RECORDED) STATEMENTS FOUND TO BE ERROR 

 COURT RECORDS OF PRIOR CRIMES MUST BE CERTIFIED- CHARACTER EVIDENCE OF SPECIFIC INSTANCES–INITIAL AGGRESSOR INSTRUCTIONS

 NEW LAW re: FARETTA HEARING- RIGHT OF DEF. TO REPRESENT HIMSELF MAY NOT BE ADVANCED TO DELAY OR INTERFERE WITH TRIAL -LEGAL SKILL OF DEF. NOT APPROPIATE BASIS TO DENY SELF-REPRESENTATION

 PHOTO COPIES OF CONVICTION NOT PROPER TO PROVE PRIOR CONVICTION FOR PFO CONVICTION – DOUBLE JEOPARDY  

 WITNESS MAY NOT DEFINE THE LAW, ONLY COURT SHOULD DO THIS, AND MISTATEMENT OF LAW MAKES ERROR WORSE, BUT IN THIS CASE IT WAS HARMLESS

 OPEN RECORDS ACT – CONFIDENTIAL SETTLEMENT AGREEMENTS BY PUBLIC AGENCY NOT PROTECTED FROM DISCOVERY AND DISCLOSURE

 INTERNET DOMAIN NAMES LACK STANDING TO SEEK WRIT OF PROHIBITION

  COMMENT ON RIGHT TO REMAIN SILENT EXPANDED

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