Bart entered a conditional guilty plea to one count of first degree sodomy and one count of use of a minor in a sexual performance. The indictment charged a total of twenty-one offenses, all against the same victim, the fifteen year old daughter of Bart's girlfriend. The offenses were alleged to have occurred over a seven year period.

The issue of the victim's competency to testify as a witness was first raised prior to trial, not by the defendant, but by a licensed clinical social worker from whom the victim was receiving counseling. As a result, Bart moved for a pretrial competency hearing and, in the alternative, an independent mental evaluation, as well as subpoenaing the victim's mental health records. The trial court denied access to the mental health records, but granted the motion for a competency hearing.

At the competency hearing, the victim and the social worker testified. The trial court found the victim competent to testify, and denied Bart's motion for an independent psychological evaluation.

The issue on appeal is whether Bart was entitled to an independent psychological evaluation of the victim to determine her competency to testify as a witness against Bart at his trial.

The Court held the trial court had the opportunity to observe the demeanor of the victim and the social worker, and thus the trial court did not abuse its discretion in finding the victim competent to testify.

The Court distinguished the cases of Mack v. Commonwealth, Ky., 860 S.W.2d 275 (1993) and Turner v. Commonwealth, Ky., 767 S.W.2d 557 (1988), on the ground that neither case dealt with the competency of the witness (victim) to testify, but rather the elements and substance of the charges against the defendant. The Court also clearly stated CR 35.01 does not expressly provide for an examination of a non-party prosecuting witness.

The Court concluded a defendant is not entitled to an independent evaluation of a non-party witness to enhance his position in a competency hearing. Such determinations are best left to the trial court and there is no compelling reason to disturb that approach since the trial court is in the best position to make such a decision.

Owens was charged with first degree assault as a result of a stabbing incident. He was also charged with being a second degree PFO. After a trial, Owens was convicted of both offenses.

The only issue raised on appeal was whether the admission of hearsay testimony by two police officers, that bolstered the victim's testimony and invaded the province of the jury, was proper.

Relying on KRE 801A(a)(3), which states the prior statement of a witness is not excluded by the hearsay rule when the statement is one of identification of a person made after perceiving the person, the Court held the introduction of the police officers' testimony was proper. The Court further held the testimony was admissible under Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966) which is a pre-KRE case.

Thus, after the victim testified he had made the out-of court identification of Owens, the two police officers were permitted to testify, as corroboration, that the victim had made such an identification. Although the Court stated the jury must rely on the identifying witness to determine whether the underlying facts are as asserted, one wonders how it can be established the jury relied on the victim's testimony to make that decision and then used the polices officers' testimony only as corroboration.

Owens' convictions were affirmed.

Estep was charged with and convicted of wanton murder and first degree assault as a result of a fatal automobile accident on a two lane road in Pike County. The accident occurred in the morning when Estep was on her way to a doctor's appointment. Estep's pickup truck was driving at a high rate of speed when she passed a car in a no passing zone and collided head on with an oncoming car. Estep had five different prescription drugs in her system, all within proper therapeutic levels. She raised four issues on appeal.

The first issue was whether the evidence was sufficient to convict Estep of wanton murder. Estep's main argument was there was no evidence she was aware of and consciously disregarded the risk that taking the various drugs in combination with one another would impair her ability to drive. However, Estep admitted she would not take Elavil when she was by herself because it produced too deep a sleep and she feared someone would break into her house and she wouldn't realize it. She also admitted she wouldn't take Dilantin when she was by herself. In addition, Estep had a handful of Soma and Xanax tablets in her pocket, as well as fifty-eight xanax in her purse. When Estep was taken to the hospital after the accident, she kept passing out and appeared "pretty zonked." The Court held the evidence was sufficient to sustain a conviction for wanton murder.

The second issue was the denial of Estep's request for a continuance. The basis for this claim was that she was not provided the scientific "meat" of the Commonwealth's case prior to Dr. Hunsaker's trial testimony. However, Estep was present at Dr. Hunsaker's pretrial deposition and heard him list the drugs found in her system and describe the effects of the various drugs. Thus, there was no abuse of discretion when the trial court refused Estep's request for a continuance.

The third issue related to the introduction of Dr. Hunsaker's videotaped deposition. However, the record revealed there was an agreed order stating the deposition would be read and used as evidence at the trial.

The fourth issue related to the introduction of a urinalysis report which indicated Estep had marijuana in her system at the time of the accident. The Commonwealth's theory was that Estep constantly took drugs to feel good and the effect of these various drugs impaired her ability to drive which resulted in the fatal accident. Estep admitted she sat around the house and smoked marijuana. Thus, the trial court did not abuse its discretion in admitting the urinalysis report.

Estep's convictions were affirmed.

Butts was convicted of first degree burglary, fourth degree assault and first degree PFO. Butts raised five issues on appeal.

The first issue was that Butts' prior conviction for contempt for violating an emergency protective order barred his subsequent prosecution for charges arising from the same incident. This same issue was recently addressed by the Court in Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1997), which controls the fact situation in this case. Thus, the Court found no violation of double jeopardy principles.

The second issue was that Butts' convictions for first degree burglary and fourth degree assault violate double jeopardy principles because the physical injury that was used as an element of the first degree burglary charge was the sole element of the assault conviction. The Court expressed concern that this issue was not preserved, but addressed its merits anyway. The facts showed that in the course of committing burglary, Butts committed an assault which resulted in physical injury to the victim. The Court held the assault was used as a necessary element to achieve a first degree burglary conviction and under Burge, supra, Butts' conviction must be vacated.

The third issue was the trial court's failure to strike for cause a juror who had been raped at her home three months prior to trial, and the individual had yet to be caught. The Court found no abuse of discretion by the trial court in failing to excuse the prospective juror for cause because of the factual differences between the prospective juror's situation and the facts of the case at bar.

The fourth issue was the trial court's failure to give Butts' requested reasonable doubt instruction. The Court held the instruction given, which was identical to RCr 9.56, was sufficient. The fifth issue was whether it was proper to charge Butts with being a PFO in a separate indictment from the indictment charging the substantive burglary and assault charges. The Court cited Price v. Commonwealth, Ky., 666 S.W.2d 749 (1984) as controlling and found no error.

Butts' fourth degree assault conviction was vacated and his burglary and PFO convictions were affirmed.

This case involves the proper method of challenging the validity of prior convictions which are used as the basis for PFO charges. More specifically, the question is whether Howard v. Commonwealth, Ky., 777 S.W.2d 888 (1989), should be overturned or modified in light of McQuire v. Commonwealth, Ky., 885 S.W.2d 931 (1994) and Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995) which adopt the holding of Custis v. U.S., 114 S.Ct. 1732 (1994).

In 1983 Graham was convicted of trafficking in narcotics and trafficking in a nonnarcotic. In 1987 and 1992 Graham entered guilty pleas to PFO II and I, respectively. The 1983 conviction was used as a basis for the PFO charges.

In 1993, Graham moved for relief pursuant to RCr 10.26, RCr 11.42, CR 60.02 and CR 60.03. The trial court denied relief on all grounds because all of the arguments Graham made could have been presented in the direct appeal of the 1983 convictions, and Graham's subsequent guilty pleas to PFO charges precluded any later review of the 1983 convictions on constitutional grounds. The trial court held Graham waived his right to RCr 11.42 relief on the 1983 conviction because he did not challenge the validity of that conviction at the time he entered guilty pleas to PFO II and PFO I in 1987 and 1992 respectively. The Court of Appeals affirmed the trial court's ruling and the Supreme Court granted discretionary review.

The Supreme Court held Howard is still viable in light of McQuire and Webb insofar as it deals with guilty pleas to PFO charges. The Court also held Howard applies to the facts in Graham's case. The Court made it clear that when a defendant is charged with being a PFO, the defendant must challenge the validity of the prior conviction within the PFO proceeding. If the defendant fails to do so, the validity of the prior conviction is final and cannot be challenged in a subsequent RCr 11.42 proceeding.

The Court affirmed the opinion of the Court of Appeals.

Robert Parker was tried and convicted of the murder of his 22-month-old stepson and sentenced to life in prison.

Parker raised seven issues on appeal, all of which were rejected by the Court.

First, Parker argued the trial court erred when it refused to instruct the jury on the lesser included offenses of second degree manslaughter and reckless homicide. At trial, the Commonwealth's medical evidence supported a finding that the child's injuries were the result of an intentional act to cause the child's death. Parker denied ever hitting his stepson or disciplining or harming him in any way. Parker testified he did not know how the child received his fatal injuries. If the jury believed Parker, he was entitled to a not guilty verdict. If the jury believed the Commonwealth's evidence, the only conclusion to be drawn was the child's death was the result of an intentional act. Thus, the Court held there was no evidence in the record to support Parker's request for instructions on the lesser included offenses of second degree manslaughter and reckless homicide.

Second, Parker argued the trial court's definition of "intentionally" did not follow the statutory definition. The Court found this issue was not properly preserved for review. Even if it had been preserved, Parker's argument has no merit because the definition "substantially follow[ed] the statutory pattern," and was identical to the model instruction set out in Cooper, Kentucky Instructions to Juries, §3.01 (Anderson 1993).

Third, Parker argued the trial court erred when it allowed the Commonwealth to introduce photographs of the child from the autopsy and the hospital. The Court held the trial court did not abuse its discretion in allowing the autopsy photographs to be introduced because they were relevant in that they supplemented Dr. Nichols' testimony and their probative value outweighed their prejudicial effect. The hospital photographs were relevant to support Dr. Smock's opinion that the fatal blows were inflicted and not accidental. The Court also found the CHR photograph of the victim was admissible pursuant to KRE 803(6) because the co-defendant, the child's mother, authenticated the photo.

Fourth, Parker argued the trial court erred when it allowed the Commonwealth to introduce evidence of prior injuries to the child because there was no evidence that linked him to being the cause of those prior injuries. The Court stated "the probative link between evidence of prior bad acts and a particular defendant does not have to be established by direct evidence." The Court held there was other evidence from which the jury could infer Parker was the perpetrator of the prior injuries: the injuries did not begin to occur until Parker moved into the home with the child's mother; the injuries stopped for a few months when the child was removed from the home; the child cried excessively when he was in Parker's custody and appeared to be afraid of Parker. Since Parker testified he did not know how the child had been injured, the prior bad acts evidence was relevant to show the injuries were not the result of an accident or mistake.

Fifth, Parker argued a member of the grand jury was improperly removed from the grand jury and transferred to the petit jury prior to the indictment being returned against him. The Court found no merit to this argument because "Parker had no assertible interest in having any particular person serve on the grand jury." Moreover, Parker cannot show prejudice since an indictment may be returned by the grand jury without a unanimous vote and there is no evidence the grand jury would have voted against returning an indictment.

Sixth, Parker argued that since his attorney and the attorney for his co-defendant wife were both assistant public advocates, they were laboring under an actual conflict of interest. The Court disagreed. Early in the trial proceedings, the Commonwealth moved to disqualify either Parker's or his wife's counsel based on a potential conflict of interest because both attorneys were assistant public advocates. Parker opposed the motion and signed a waiver of dual representation. Also, Parker's wife's testimony was favorable to Parker.

Seventh, Parker argued the Commonwealth's cross-examination of him and closing argument improperly shifted the burden of proof to him and violated his presumption of innocence when it repeatedly suggested and argued that Parker was required to offer a satisfactory explanation for the child's injuries. The Court noted the trial court "generally sustained the objections of defense counsel and admonished the jury not to consider the questions and/or remarks of the prosecutor," so there was no error. Moreover, the trial court instructed the jury that the defendant was presumed innocent and the Commonwealth had the burden to prove his guilt beyond a reasonable doubt.

Eighth, Parker argued he was prejudiced by being tried jointly with his wife because certain evidence of uncharged injuries was admitted against him, but not against his wife. The Court held the joint trial was proper because "[t]he charges were intimately related and the proof of each charge necessarily overlapped the other." Moreover, all the evidence, except the evidence of the prior injuries, was admitted against both defendants and the jury was repeatedly admonished how to use the complained of evidence.

Parker's conviction was affirmed.

Estes was cited under KRS 304.99-060 for operating a motor vehicle which was not covered by insurance. Estes was not the owner of the car. Estes entered a conditional guilty plea to the no insurance charge.

Estes appealed to the circuit court which reversed his conviction. The Commonwealth's motion for discretionary review was granted by the Court of Appeals which reversed the circuit court and reinstated Estes' conviction.

The Kentucky Supreme Court granted Estes' motion for discretionary and framed the issue as follows: May a non-owner, operator of a motor vehicle be assessed criminal penalties because the motor vehicle being driven is uninsured? The Court concluded the operator may not.

The substantive section of Subtitle 39, KRS 304.080(5), specifically states the owner of a motor vehicle registered or operated in Kentucky by him or with his permission shall be responsible for insuring said motor vehicle. However, the penalty section of Subtitle 39, KRS 304.99-060(1) was amended in July, 1994, to provide that the owner or operator of any motor vehicle who fails to have the insurance required by Subtitle 39 shall be fined or sentenced to jail or both.

The Court held the amended penalties in KRS 304.99-060 cannot apply to non-owner operators. The Court concluded the amendment of a penalty provision cannot create a substantive offense when one did not previously exist. The Court noted that while the legislature may have intended to criminalize the conduct of a non-owner operator of a motor vehicle not covered by insurance, it failed to draft the statute clearly enough for the Court to find such an interpretation. The Court further noted that Kentucky's mandatory insurance scheme requires every automobile to be covered by insurance, not every individual who drives an automobile.

The Court reversed the Court of Appeals and reinstated the opinion of the circuit court dismissing Estes' conviction.

Luttrell was found guilty of murder by a jury and sentenced to twenty years imprisonment. The Kentucky Supreme Court reversed his conviction and remanded for a new trial. Luttrell was again found guilty of murder, but this time the jury fixed his sentence at life imprisonment. Luttrell raised four issues in his appeal.

First, Luttrell claimed he was entitled to a directed verdict of acquittal based on his defense of self-protection or protection of another. The evidence showed that Luttrell and the victim were longtime acquaintances. The shooting occurred in the victim's apartment. Luttrell testified he shot the victim with a pistol after "he heard the victim say something to the effect that he was going to kill both his girlfriend and Luttrell." Luttrell saw the victim pull the bolt on the rifle back and begin to insert a shell into the rifle. It was later determined the rifle was not loaded. Other evidence showed the victim was shot three times and two of the three wounds were contact wounds. The victim was highly intoxicated.

The Court held Luttrell was not entitled to a directed verdict of acquittal on his defense of self-protection or protection of another because the evidence to support Luttrell's defense was not "conclusively demonstrated." The majority also noted that Luttrell's directed verdict motion, which stated the Commonwealth did not prove every element of the offense beyond a reasonable doubt, did not preserve the issue because it did not specifically mention the defenses of justification, self-protection or protection of another and these defenses "are not elements of the offense of murder." The concurring opinion pointed out that although self-protection is not an element of murder, the absence of self-protection was an element of murder under the facts in the case at bar, and the Commonwealth was required to prove that element beyond a reasonable doubt. Thus, the directed verdict motion, on the grounds that the Commonwealth did not prove every element beyond a reasonable doubt, did preserve the issue.

Second, Luttrell argued the trial court erred when it stated within the hearing of the jury that a Kentucky State Police Forensic Firearms examiner could "render an expert opinion." Luttrell argued the trial court's comment unfairly bolstered the witness' credibility. The Court held that if any error occurred, it was not prejudicial and thus not reversible error. The firearms examiner testified the bullets that killed the victim could have been fired by Luttrell's gun, but Luttrell did not challenge said fact. The examiner also testified a spent cartridge had been fired from the victim's rifle, which supported Luttrell's self-defense argument. The Court stated all rulings on whether a witness is qualified to give expert testimony should be made outside the hearing of the jury and there should be no declaration in front of the jury that a witness is an expert.

Third, the Court rejected Luttrell's argument that the prosecutor's reference to the testimony of a witness as a "story" denied Luttrell a fundamentally fair trial. The Court noted the issue was not properly preserved because Luttrell never received a ruling on his motion for an admonition and he never moved for a mistrial.

Finally, Luttrell argued the trial court erred by imposing a more severe sentence following his retrial than that which was imposed at his first trial. The Court rejected this argument. The Court noted that since the prosecutor did not urge the jury to impose a life sentence at Luttrell's retrial, no presumption of vindictiveness should apply. Also, the Court noted that "[t]he double jeopardy clause does not preclude a more severe sentence upon retrial when state law does not require any particular findings of fact to justify the increased sentence."

Luttrell's conviction was affirmed.

Lienhart was convicted of first degree burglary and second degree persistent felony offender. The sole issue on appeal was the sufficiency of the evidence to support his second degree persistent felony offender conviction.

To prove Lienhart was a PFO II, the Commonwealth introduced three prior felony convictions. On January 13, 1987, Lienhart was convicted of receiving stolen property over $100.00 and burglary II and was sentenced to concurrent five year prison terms. Lienhart was under the age of eighteen when these two offenses occurred. On October 31, 1989, while Lienhart was incarcerated on the receiving stolen property and burglary charges, he was convicted of first degree promoting contraband and sentenced to imprisonment for one year. Lienhart was over eighteen years old when this offense occurred. Lienhart was released from prison on September 15, 1991.

Lienhart argued the Commonwealth failed to prove he met the statutory requirements of KRS 532.00(2) necessary to support a PFO II conviction. Lienhart's receiving stolen property and burglary convictions did not qualify because he was not over eighteen when said offenses occurred. Lienhart's promoting contraband conviction did not qualify because he completed service of the sentence imposed for that offense more than five years prior to the date of the commission of the present first degree burglary charge. [It should be noted the Court's opinion fails to state the date the first degree burglary offense occurred, although it states the indictment was returned in September, 1995.]

To determine whether Lienhart's promoting contraband conviction met the statutory criteria, the Court discussed when Lienhart's sentence for the promoting contraband offense began and when it ended. Since the judgment on the promoting contraband offense was silent as to whether the one year sentence was to run concurrently or consecutively to the five year sentences on the receiving stolen property and burglary II charges, KRS 532.110(2) requires the sentence to run concurrently.

Under Brock v. Sowders, Ky., 610 S.W.2d 591, 592 (1980) and KRS 197.035(2), "[i]f the additional sentence is designated to be served concurrently . . . [a confined prisoner] shall be considered as having started to serve said sentence on the day he was committed on the first sentence." Thus, Lienhart must be considered as having started to serve his promoting contraband sentence at the same time he started to serve his receiving stolen property and second degree burglary sentences which was in 1987. The one year sentence would have then expired in 1988, which is outside the five year requirement of KRS 532.080(2)(c)(1).

Accordingly, the Commonwealth failed to prove Lienhart met the criteria for being a PFO II, and the Court reversed his PFO II conviction.

The Kentucky Supreme Court granted discretionary review in these consolidated driving under the influence cases to answer the following two questions: first, whether Section Eleven of the Kentucky Constitution requires Miranda warnings to be given to a DUI suspect prior to the administration of field sobriety tests requiring verbal statements by the suspect; and second, whether the pre-arrest suspension of the suspect's driver's license constitutes punishment, thus prohibiting the subsequent imposition of punishment for the conviction of a second offense DUI on double jeopardy grounds.

First, the Court held Miranda warnings are not required. The Court relied on the U.S. Supreme Court cases of Berkemer v. McCarty, 104 S.Ct 3138 (1984), Pennsylvania v. Bruder, 109 S.Ct. 205 (1988) and Pennsylvania v. Muniz, 110 S.Ct. 2638 (1990). These cases stand for the proposition that administering field sobriety tests, including recitation of the alphabet following a traffic stop, does not involve custody for purposes of Miranda. The Court also relied on the Kentucky case of Commonwealth v. Cooper, Ky., 899 S.W.2d 75 (1995), which cited the U.S. Supreme Court cases and pointed out that Section 11 of the Kentucky Constitution is co-extensive with the Fifth Amendment to the U.S. Constitution and provides identical protections against self-incrimination.

Second, the Court held there was no double jeopardy violation because the pretrial suspension of the defendants' licenses under KRS 189A.200 is not punishment, per se. The Court pointed out that under Commonwealth v. Steiber, Ky., 697 S.W.2d 135, 136 (1985), "[l]icense revocation is not a punishment but a cautionary measure to protect the safety of the public." Moreover, the statutory elements of KRS 189A.010(1), which prohibits operating a motor vehicle while under the influence of alcohol or with a blood or breath alcohol concentration of 0.10 or more, are different from the statutory elements of KRS 189A.200, which requires pre-trial suspension of the driver's license of a person charged with a violation of KRS 189A.010 who has been convicted of one or more prior offenses within five years immediately preceding his arrest or who has refused to take an alcohol concentration test. Thus, each offense contains elements not required by the other, and under this Court's recent holding in Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1997), the double jeopardy clause does not apply.

The issue in this case is whether double jeopardy principles prevent Grimes from being retried for murder after the trial court granted, over Grimes' objection, the Commonwealth's motion for a mistrial.

Grimes was charged with murdering her husband. During voir dire and opening statement defense counsel told the jury Grimes' defense was the shooting was an accident. Grimes testified in her own behalf. During her testimony, Grimes told the jury about the numerous acts of abuse her husband had inflicted upon her and her children over a fifteen to twenty year period. The admission of this testimony was conditionally predicated upon a showing that Grimes had acted in self-defense. At the conclusion of Grimes' direct testimony the Commonwealth moved for a mistrial, and, over Grimes' objection, it was granted.

In a written order, the trial court explained there was a manifest necessity to discharge the jury because Grimes testified the shooting was an accident and thus "the entire offer of proof of specific bad acts of domestic violence" was irrelevant and inflammatory. The trial court found that Grimes' offer of proof in support of a self-defense claim "was a subterfuge to avoid the restriction on character evidence." It found the admission of the evidence was prejudicial to the Commonwealth and no remedy other than a mistrial was adequate.

Relying on principles of double jeopardy, Grimes sought a petition for a writ of prohibition from the Court of Appeals to prevent a retrial. The Court of Appeals denied Grimes' petition. Grimes appealed to the Kentucky Supreme Court which, in a four to three opinion, affirmed the decision of the Court of Appeals.

In its opinion, the Kentucky Supreme Court noted the trial court must have a measure of discretion in declaring a mistrial. The Court also noted a manifest necessity for a mistrial has been found to exist when the defendant introduces improper evidence that prejudices the Commonwealth's right to a fair trial.

In deciding whether a manifest necessity existed for granting a mistrial in the case at bar, the Court framed the issue as being whether the defendant would have been entitled to an instruction on the defense of self-protection. Grimes argued that under Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978), she would have been so entitled. However, the Supreme Court disagreed. It stated that since Grimes' testimony did not support a claim that she acted in self-defense, which requires an intentional mental state, Grimes would not have been entitled to such an instruction. Thus, the introduction of the evidence of domestic abuse was irrelevant and highly prejudicial to the Commonwealth. The only way for the trial court to remedy the improper introduction of the evidence was to grant a mistrial. Thus, there was a manifest necessity for the mistrial and principles of double jeopardy do not prevent Grimes from being retried.

Part and parcel of the Court's opinion was its overruling of Pace, supra. The Court held "[a] defendant who affirmatively asserts the defense of accident cannot also claim self-protection." "[T]he defenses of self-defense and accident are 'mutually exclusive,' the former contemplating an intentional act leading to death while the latter negatives such intention. A defendant cannot assert accident yet alternatively claim an intentional act done in self-defense, without affirmatively presenting evidence of self-defense."

Accordingly, Grimes may be retried by the Jefferson Circuit Court.

Day was indicted for two counts of first degree trafficking in a controlled substance (cocaine) but convicted on only one count. On appeal he argued the trial court erred when it failed to instruct the jury on the defense of entrapment and the lesser included offenses of possession of a controlled substance and criminal facilitation.

The evidence at trial showed that on March 20, 1993, a confidential informant contacted Day in an effort to buy cocaine. Day testified that on the following day he and a friend met the informant in the K-Mart parking lot at which time Day's friend gave him a bag of cocaine which Day then gave to the informant. The informant then gave Day $350.00 which Day gave to his friend. Day also testified that on March 25, 1993, he again met the informant and sold her an additional amount of cocaine for $900.00.

As to the March 21st offense, the trial court instructed the jury on entrapment and the jury found Day not guilty. However, the trial court refused to give an entrapment instruction on the March 25th offense because it reasoned Day was predisposed to commit the crime because he had participated in the same offense just four days previously. The court also refused to instruct the jury on any lesser included offenses.

Relying on Farris v. Commonwealth, Ky.App., 836 S.W.2d 451 (1992), the Court of Appeals held Day was entitled to an entrapment instruction because if his actions in the first transaction were the result of entrapment, his conduct from that transaction could not subsequently condemn him as having a predisposition. Also relying on Farris, supra, the Court of Appeals held Day was entitled to instructions on the lesser included offenses of possession of a controlled substance and criminal facilitation.

Day's conviction was reversed for a new trial.

Anderson filed a petition for declaratory judgment pursuant to KRS 418.040 seeking award of "improperly withheld good time" under Corrections Policies and Procedures (CAP) 15.3, which he claimed was unconstitutionally vague and ambiguous and thus violated his equal protection and due process rights. Anderson also sought an evidentiary hearing on his claim.

The Department of Corrections responded that the Commissioner of Corrections had statutory and regulatory discretion in awarding meritorious good time credit and urged dismissal for failure to state a claim.

The circuit court denied Anderson's petition.

Anderson appealed the denial to the Court of Appeals.

CAP 15.3 was adopted pursuant to KRS 197.045(3). It authorizes the award of meritorious good time which is defined as "a good time credit that may be awarded for performing duties of outstanding importance in connection with institutional operations and programs." The award of good time credit is clearly up to the discretion of the prison administrators. "No inmate has a right to meritorious good time under CAP 15.3, it is a privilege bestowed at the discretion of the Commissioner." The Court of Appeals held inmates "have no protected liberty interest at stake in its' denial." Moreover, Anderson failed to present a single factual allegation of "duties of outstanding importance" which might have qualified him for consideration of the credit. Thus, the circuit court correctly dismissed Anderson's petition.

The Court of Appeals also found Anderson lacked standing to claim CAP 15.3 was vague and ambiguous because he failed to present any facts upon which a reasonable person could argue he was entitled to any good time credit. In addition, the Court of Appeals held the circuit correctly refused Anderson's request for an evidentiary hearing on the claims in his petition.

A jury found Jackson guilty of fraudulent use of a credit card and being a second degree persistent felony offender.

The evidence showed that Jackson and two friends went to Biggs department store where Jackson attempted to purchase $754.90 worth of merchandise with a credit card that was not his own. When the store clerk ran the credit card through the electronic scanner, a message indicated the card needed to be taken if it was safe to do so. The clerk told Jackson authorization was needed for the card. When the clerk stepped away from the register to call security, Jackson took the credit card and left, but he was detained before he was able to exit the store. Jackson was arrested and taken to jail.

On appeal, Jackson argued the trial court erred when it failed to instruct the jury on the lesser included offense of attempted fraudulent use of a credit card because he took a substantial step toward committing the crime but no property was obtained.

The Court of Appeals agreed and reversed Jackson's conviction and remanded his case for a new trial.

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