*1 STEPHENS, Appeals C.J., The of Court decided that the and and GANT Agreement 30, 1985, WHITE, JJ., terminated on June concur. pursuant Thus to its own terms. the Court STEPHENSON, J., by separate dissents Appeals preliminary ques- of decided this opinion in which and VANCE WINTER-
tion, yet which the trial not court had decid- SHEIMER, JJ., join. ed. Justice, STEPHENSON, dissenting. Appeals’ If this Court of decision issue is appeal The sole on this correct, August the court’s trial whether order of sale entered 1985 order of sale also be correct. appealable trial court is a final and order. However, it was error for the Court of opinion majority decides af- The the issue Appeals issue, to undertake to decide this firmatively and proceeds then to decide the which was fundamental to the merits of matter on its merits. case. This is a decision must be agree I that an order of sale can be a considering made at the trial level both appealable or not final and order. Whether regarding evidence withdrawal or breach justified depends is on circumstances Agree and the terms of the Joint Venture Appeals of of order the case. The Court ment. appeal; majority opinion dismissed Preston Farms claims in its Brief that of finds the this court dismissal operation “the continued of the Joint Ven- error, by setting the case aside but decides depend ownership of ture does not on the the order of sale. The horses have been that, specific thoroughbreds,” certain and sold; posted by Preston. bond been correct, the Murty if Brothers are “ulti- though unique, Even horses mately” they will “entitled the assets is cover loss should bond sufficient to judgment, of the Joint Venture Murty prevail. and those assets continue [can utilize] issue should confine ourselves to the We But, the business of the Venture.” Joint the case to the Court appeal remand just buy- than Agreement covers more merits, on the Appeals a decision ing selling language The horses. argued here or there. which have raising, training and Agreement covers racing acquiring dis- horses as well as Accordingly, I dissent.
posing. WINTERSHEIMER, JJ., VANCE of, disposed horses it is Once the are join in this dissent. impossible to make a decision to what amount of cash would cover their future raising, training racing.
value after
For this reason trial court erred
entering an order of sale before determin-
ing by Mur- underlying issue raised
tys, right which was whether operate thus TODD,
continue to the business and Appellant, Edward Charles value horses. enhance the Appeals is decision the Court COMMONWEALTH The trial order of sale of reversed. court’s Kentucky, Appellee. aside,
August 29,1985 and the set within Kentucky. Supreme Court remanded the trial court case is proceedings further consistent with 4, 1986. Sept. of the Joint Opinion. property Whatever of the date of Venture remains unsold as pending a shall sold decision not be
final decision on merits. *2 Todd
ward was convicted of mur- wanton imprisonment. der and life sentenced to May 27, 1983, summoned ambulance the resi- for his mother from aunt, dence of his Grace McKee. *3 McKee was whom an arthritic invalid with Appellant frequently stayed. Mrs. Todd occasionally also tended to her sister and evidently May in the had been home since 21. arrived,
When the he ambulance driver Mrs. floor living found Todd on room a and was told that she had fallen over thought footstool. The sus- driver this was in- picious inasmuch as the on her bruise leg indicating a trau- jured yellowish, old; furthermore, days three to ma four parts had she additional bruises other body. her he asked about Mrs. When McKee, he was told Todd that she the am- day in her bedroom. Later dispatcher attempt- unsuccessfully bulance ed to contact the McKee home to advise Having Mrs. where been taken. also noticed a foul odor when home, subsequently driver within for indicated concern Mrs. McKee Beattyville Department. Police police went to the home When investigate, response, McKee be seen Mrs. could not depu- bedroom window. officer and pried door ty thereupon open sheriff entry entered. After a search of the house, Mrs. beaten level of McKee’s body was discovered at the foot steps. According to the Lee basement County was called to the Coroner who scene, indicated the condition of been dead several that Mrs. McKee had days. Wheeler, Advo- Public Randall L. Asst. Ken- The local authorities notified Frankfort, cate, appellant. They tucky Police of situation. State Gen., Armstrong, Atty. Carl T. David L. shortly thereafter and conducted arrived Frankfort, Miller, Jr., Gen., Atty. Asst. As a thorough investigation of the scene. appellee. search, evidentiary many result among blood which were items seized WHITE, Justice. pants pair of scrapings, a blood-stained bedroom, and Cir- from the floor of appeal from the Estill This is taken found a kitch- Ed- within a hammer blood Charles cuit Court which en cabinet drawer. Defense moved below the relationship between Mr. Todd and these and all other items seized be McKee; however, specific instances suppressed as the result of a warrantless were not to mentioned. Subsequently, search. sheriff, policeman, deputy and the sheriff concerning prior testified reports relating days
Three later a search warrant to Mrs. McKee. Included in obtained, this informa- and some bed linens and a cedar tion were the facts that Suppression block of wood were taken. Mrs. McKee had beaten, sought upon allegations these was apparent- based been found that food had supporting affidavit the warrant ly walls, against been thrown her bedroom was insufficient. that bullet holes were seen those walls mattress, shotgun and in her that a with a The Circuit Court ruled a broad broken stock was found the McKee However, sup- exclusion. it concluded that home, and that on one occasion a warrant pression pieces of individual of evidence *4 for Mr. Todd’s arrest had could be been executed. during raised and considered course of trial. Cross-examination revealed that Mrs. posted McKee had been the one to have Todd, At trial Mrs. Hazel bond after this An arrest. admonition cov- mother, by was called the Commonwealth. ering sought granted: this was In attempt an eye- establish as an crime, witness to the she was asked if she testimony concerning 2. The reports of push had not seen Mr. Todd down and beat previous difficulties between Charles up Mrs. McKee. When Mrs. Todd denied McKee, Todd and by Grace if believed this, she was asked whether she also de- you, may by you any not be considered having nied told the detectives that. Her extent whatever as evidence of his inno- response was, have; might “I I don’t case, guilt cence or in this may but be A prosecu- know.” recurrent theme of the only may considered insofar as it tend to tion’s examination was that hospital- while feeling show his state of toward Grace ized, she had described an assault Mr. McKee, so, if it does at the time of the upon Todd his aunt which had led to her alleged being offense for which he is death; however, in each instance Mrs. Todd tried. just asserted that she couldn’t recall what part investigation autopsy As she had told. respect With to this testimo- procedures, photographs over five dozen ny defense counsel asked body the nude and battered of Grace admonished that any prior evidence of in- McKee were offered into evidence consistent only statements be considered objected Commonwealth. Defense to all as impeachment purposes and not as sub- unnecessarily inflammatory probative proof: stantive nothing proven which would also be 1. If the witness Hazel Todd was heard Further, testimony. urged oral it was to make a statement at another time and suggestion rape a sexual abuse or place which contradicts or is inconsistent hearing A was inherent one. was held trial, testimony with her at that state- which the lower Court concluded that all (if ment made out of court she did make except were admissible those either reveal- it) is not to you be considered ing by autopsy suggest- or altered degree whatever as evidence of the de- ing rape. sexual abuse guilt, fendant’s innocence or bearing, if insofar as it have a it pictures through in were sorted so, upon does the truthfulness of the chambers; however, sexually indicative testimony. witness’ erroneously amongst included one was rejected. This was subsequently was in- admissible and Appel- troduced the Commonwealth. During the trial the Court ruled that the objected lant and asked for a mistrial. police Commonwealth could ask of local denied; however, of- officers whether were familiar with This the Court give fered admonition which was We would first note accepted. murder, 507.- was indicted wanton KRS 020(1)(b). Particularly point is the defi Additionally, relating.to as- the sexual “wantonly” nition the mental state of pect part of which was not to have been a found within KRS 501.020which concludes: case, developed Commonwealth person “A a who creates such risk sub [a given test “perk” that Mr. Todd had unjustifiable stantial and risk result that a rape to aid in determining whether a solely by will but is thereof unaware occur] pubic occurred and hairs identi- introduced voluntary reason of intoxication acts also de- having fied as been taken from wantonly respect Accord thereto.” part Todd as ceased and Charles ingly, irrespective of psychiatric examina general investigation Ob- into the death. tion, intoxication would not have been jections refer- and motions for mistrial with factor Mr. Todd’s defense. ence to both overruled. sought psychiatric trial Prior to Mr. The Penal Code also addresses the He was to aid in his defense. evaluation question of extreme emotional disturbance. Psy- Kentucky referred to the Correctional 507.020(1)(a) KRS a miti establishes reported that all chiatric Center which (to gating negated by element the Com competent probability medical upon production by monwealth the defend stand and that this was his condi- trial “[i]f ant) specifically to murder day alleged then in tion on the crime However, dis intended. extreme emotional patient probably a substantial *5 in statutorily plays turbance no role the appreciate criminality of his capacity to the charged, crime with which Mr. Todd was or to his conduct conduct have conformed 507.020(1)(b). under wanton murder KRS day of requirement of the law on the Extreme our emotional disturbance under alleged for the crime.” motion specific code one’s formation of the affects appointment independent psychiatric of an murder, KRS intent but as 507.020 intoxication, insanity, examiner to consider drafted, application carry-over it has as de- and extreme emotional disturbance creating grave in one’s wanton behavior mitigation fenses or was overruled. Thus, Appellant risk of death. cannot Also, for prior moved trial complain heard to that he was unable jury panel inas- petit the dismissal of the develop independent psy such an much allegedly as it constituted chiatric examination. 29A.050(4)(b). with Were accordance KRS aside, insanity, the of That followed, argued, that statute defense, 31.185 which is an actual KRS names there have a total of 669 would provides: wheel; be- in the instead there were juror operating Any defending attorney under argued tween and 610. It was further 608 provisions chapter of this is entitled the underrep- demonstrably that women same facilities for to use the state petit jury violation resented in of evidence as are available evaluation Amendments, U.S. Sixth and Fourteenth representing the attorney Common- Constitution. imprac- their wealth. If he considers use facts, we the relevant Having identified tical, may court concerned authorize Mr. Todd. by issues turn to the addressed for paid to be private the use of facilities denied by asserting that he was begins He county. on court order process equal protection when due and that Appellant has not established motion evalua- denied his for lower Court its lower Court abused discretion He independent psychiatrist. tion In denying payment private for facilities. aided in urges such that original he for motion asked evaluation mitigation through his presenting a defense or the time of the his condition at intoxication, mental or extreme emotional insanity, might independent offense disturbance.
247 facility. press presentation in no performed hearing at a state Such at way challenges practicability avail- indicates that thereon his issue has been able state addi- facilities rather seeks appeal. for reframed In the motion it was tional services before state exam alleged that: performed. questioned even been It is not (1) 27, May agents of the Lee Mr. indigent but that an defendant such as County Sherrif entry made forced necessary Todd reasonably is entitled to dwelling occupied jointly by into the expert assistance; however, ag- he McKee; Charles and Grace grieved when state facilities were available (2) in the While residence officers actually to and used him? the body discovered McKee Grace Thereafter, Appellant his re- renewed other items and material which the Com- examination, quest private citing monwealth intends to introduce evidence report fact that the state had not addressed trial; of at intoxication, questions insanity, (3) This warrantless of the defend- entry extreme emotional disturbance. Several upon prob- ant’s residence not based there- response comments be made justified exigent able cause nor cir- First, nothing Appel- to: had been filed cumstances, and violated therefore lant to indicate raise intended to prohibitions against constitutional unrea- 504.070(1). insanity as a defense. KRS sonable searches and seizures. Oklahoma,
Ake v.
470 U.S.
105 S.Ct.
(1985). Second,
Mr.
L.Ed.2d
hearing
argued:
At the
counsel
history
Todd had a
mental
treatment for
entry
...
there’s warrantless
into the
problems.
health
He could have submitted
of Mr.
residence
Todd and
McKee in
those records to have established before
fact,
In
which her
was discovered.
proclivity
lower
Court a definite
to-
entry,
breaking
had to
was a
possible insanity; however,
wards
instead
in,
get
say,
break door to
as I
there
request
own
these were
on a
filed
that,
I
was no warrant on
and think there
basis,
opened
appel-
sealed
to be
pre-
or a
pretty
is a
strict rule
Nevertheless,
late review.
we cannot
*6
against
of
sumption
legality
the
a war-
view these
records
make a determina-
house,
in-
rant
search a
this
to
on the
tion
matter of Mr. Todd’s
factual
allegation
it is our
there was nei-
stance
history when the trial court has not had the
exigent
probable
ther
cause nor
circum-
prior opportunity;
similar
this is axiomatic
stances,
showing
and there has to
a
of
be
appellate practice. Thirdly, appellant
of
be.entitled to
a warrantless
both to
make
Although
was
without recourse.
it is
search, so that’s a
we need to
matter
report
Kentucky
true that
the
from the
on.
take evidence
Psychiatric
Correctional
Center did not
specific finding
question
Clearly
pitched
reach a
on the
of
Defendant below
sanity
Mr. Todd’s
at
the
Mrs.
alleged
time of
this
the
argument on
matter to
death,
nothing
pre-
McKee’s
there was
probable
exigent
to
cause and
cir
absence of
seeking
re-
clude
from
permitted
which
have
cumstances
would
port
expanded
to include
mat-
very
this
County
Department
to
Sheriff’s
Lee
of
ter. The absence
does
information
premises
of Grace McKee.
have entered
trigger
not in and of
automatically
itself
above, however,
Under the facts outlined
the need for a
an
second evaluation
challenge could have been raised
no serious
independent agency.
exigent
emergency
circum
time,
particular
that there
stances at
questions
of
next
the matter
response
home and
at the McKee
was no
seizure of
items
of
several
as a result
McKee,
invalid,
total
virtually
Kentucky
warrantless search
officers looked
was not in
bed when the
premises
Police after the McKee
State
Mincey
windows. As stated
ex-
been secured
local authorities. An
392,
Arizona,
98
sup-
2408, 2413,
(1978):
290
L.Ed.2d
“We do
and didn’t set forth sufficient facts from
right
police
magistrate
to
independent
which
or
an
spond
emergency
Numerous
judge
situations.
could
determined whether
recognized
state and federal cases have
probable
cause to believe what
that the Fourth Amendment does not bar
Detective McIntosh had sworn
was
making
police
from
en-
officers
warrantless
not,
and I
think that needs
true
don’t
reasonably
and searches when
tries
evidence....
is in need of
person
believe that a
within
noted,
on
As
no evidence was taken
immediate aid.”
aspect,
suppress
the motion to
was
allegation
suppres-
Mr. Todd’s second
for
denied.
suppress
sion in his written motion to
presented
in de
We have
the above
(4)
28, 1983,
May
Trooper
J.
Robert
sharp
its
tail to reflect
contrast with
Kentucky
sub-
Fauste of the
State Police
presently being
we
asked to con
which
are
application
an
for a
mitted
affidavit
sider,
entry
that the initial
wit not
warrant,
led to the
search
which
issuance
exigent
without
circumstances or that the
premises
to search the
on
a warrant
subsequently
supporting
affidavit
ob
30, 1983;
May
inadequate
tained warrant was
rather
(5) Trooper Fauste’s affidavit asserted
“Appellant
process
due
was denied
investigating
that he was the
officer
testimony and
law
the admission of
“verily
and that he
believes” that materi-
items obtained as a result of warrantless
premises;
on
al
It
evidence
search of
residence after the
did not disclose
facts or observations
residence had been secured.”
support
the affiant’s asser-
never
This latter concern was
presence
tion of the ultimate fact of
thus,
ruling;
accord-
to the trial court for
evidence,
and was therefore not suffi-
appel-
for
ingly there was
action thereon
permit
independent judicial
cient to
“
policy
late
of RCr 9.22
review.
...
cause;
probable
determination of
require
and 10.12
a defendant in a
(6)
execu
Evidence seized incident to the
present
the trial court
criminal case to
upon a conclu-
tion of a warrant issued
questions
become
of law which
sary (sic)
insufficient
must
affidavit
appeal. The
court re-
appellate
issues
product
of a viola
suppressed
errors,
nonruling
is not
views
tion
the Fourth Amendment and Sec
has not been
renewable when the issue
Commonwealth,
tion
Johnson v.
presented to the trial court
decision.”
(Ky.App.1969)
23-24
Henson
S.W.2d
Commonwealth, Ky., Turner
v.
Commonwealth,
(Ky.
251 petit (1980), directed. are confident that the by offered the Common- We 107 statutorily cor- jury involved therein will be stated: wealth which was rect. say to that defense coun- It is no answer facts stipulate sel offered to the essential Court judgment The of the Estill Circuit pathologist illustrated
proved by the
and
case remanded for a
is reversed and the
by
photographs,
hence
were un-
opinion.
trial consistent with this
new
necessary.
has a
The Commonwealth
WINTERSHEIMER,
except
All concur
right
prove
jury
its case to the
even
J.,
dissenting opinion.
files a
who
pleads guilty.
defendant
The
when the
erase the
defendant
is not entitled to
Justice,
WINTERSHEIMER,
dissenting.
ugly
picture
and
parts of
substitute
I believe
respectfully
I
dissent because
place.
jury
In
for a
words in their
order
majority
did not
the errors noted
fairly and
up
to be able to size
a case
trial for the accused.
result
an unfair
gain
a rea-
wisely it must be allowed
require
a defendant
The law does not
perspective, and that can best be
sonable
trial,
perfect
a fair trial.
receive
unadul-
by permitting
done
it to see an
ramification Inasmuch as
need not be discussed. the introduction error attaches to
versible testimony about the concerns and
of sexual shotgun, must retrial
bullet holes