author: ANNABELLE CLINTON IMBER, Justice. JIM HANNAH, Chief Justice,

text:
    2009 Ark. 298
    Nathan GILCREASE, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1058.
    Supreme Court of Arkansas.
    May 21, 2009.

      Bill Luppen, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Deputy Att’y Gen., for appel-lee.
   ANNABELLE CLINTON IMBER, Justice.

| ,A Pulaski County jury convicted Appellant Nathan Gilcrease of two counts of capital murder and two counts of kidnapping for the assault, abduction and murder of two young men, Sean Johnson and Monte Johnson. He was sentenced to life imprisonment without parole. Thus, we have jurisdiction over the instant case pursuant to Ark. Sup.Ct. R. l-2(a)(2) (2008). Appellant raises eight arguments for reversal. Because of double-jeopardy concerns, his fifth point, challenging the sufficiency of the evidence, will be addressed first. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

I. Sufficiency of the Evidence

At the close of the State’s evidence, Appellant moved for a directed verdict on grounds that the State failed to present sufficient evidence to support convictions on the ^capital murder and kidnapping charges. Specifically, he argued that Albert Reed and Mariah Powell, the two witnesses who testified against Appellant, were accomplices as a matter of law. The trial court ruled that Albert Reed was an accomplice as a matter of law but submitted the question of whether Mariah Powell was an accomplice to the jury. Appellant argued that the testimony of the accomplices had not been corroborated by independent evidence linking Appellant to the crimes. The circuit court denied Appellant’s directed-verdict motion. Following deliberations, the jury found Appellant guilty of two counts of kidnapping and two counts of capital murder.

On appeal, Appellant renews his challenge to the sufficiency of the evidence. Specifically, he asserts that the circuit court erred in denying his motion for directed verdict because his conviction was based upon uncorroborated accomplice testimony. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

As stated earlier, Appellant was convicted of two counts of kidnapping and two counts of capital murder. Under Arkansas law, a person commits kidnapping if, “without | ^consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the purpose of ... (3) Facilitating the commission of any felony or flight after the felony; (4) Inflicting physical injury upon the other person.” Ark.Code Ann. § 5-ll-102(a) (Repl.2006). A person commits capital murder if “(4) [w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl.2006).

When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16-89-lll(e)(l)(A) (Repl. 2005). Furthermore, “corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark.Code Ann. § 16-89-111(e)(1)(B) (Repl.2005). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. The 14corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Id.

The trial court concluded that Albert Reed was an accomplice as a matter of law. Albert Reed testified that he wanted to “beat up” Monte Johnson because Monte happened to be an ex-boyfriend of Reed’s girlfriend Mariah Powell and he suspected them of seeing each other again. Reed further testified that he knew Mari-ah was taking Monte Johnson and his cousin Sean Johnson to a house on Reck Road where Reed was waiting in the backyard. When he saw Mariah, Sean and Monte drive up to the house in Monte’s white Chevrolet and enter the house, Reed went inside the house and walked into the bedroom where Mariah stayed periodically. At that point, he saw Appellant emerge from a bathroom and another man, Cameron Williams, jump out of a closet. Both Appellant and Williams were wearing masks. Appellant was armed with a .22-caliber rifle and Williams had a .38-caliber revolver. As soon as both men appeared, Mariah ran out of the house. According to Reed, he complied when Appellant directed him to call Mariah and tell her not to call the police. Appellant then started questioning Monte about some rims that Monte allegedly possessed. When Reed called out Appellant’s name, Appellant became enraged and decided to kill Monte and Sean Johnson. Appellant and Williams ordered both men to strip down. After being duct taped, the victims were placed inside the trunk of Monte’s car. Reed then drove Monte’s car to Hindman Park while Appellant and Williams followed in Appellant’s | f,maro on SUV, which had been parked near the Reck Road house. When they arrived at the park, Reed untaped the victims. As Monte and Sean tried to escape, Appellant and Williams fired several shots at them, killing both men. After the shooting, Reed called Tim Mathis and asked to meet him at a nearby carwash. Reed wanted Mathis to help him wash Monte’s car and then hide it. When Reed and Mathis were at the carwash, both men saw Appellant’s maroon SUV leaving the same carwash.

Mariah Powell’s testimony largely corroborated Reed’s testimony except that she testified it was Reed who told her to take Monte and Sean Johnson to the Reck Road house. Appellant argued below that Mariah Powell was also an accomplice as a matter of law. The trial court did not declare her an accomplice as a matter of law, but submitted the question to the jury. For an individual to be an accomplice, he or she must engage in one of the activities articulated in Ark.Code Ann. § 5-2-403 (Repl.2006). It is Appellant’s burden to prove that a witness is an accomplice whose testimony must be corroborated. Bush v. State, 374 Ark. 506, 288 S.W.3d 658 (2008). In this case, the instruction given to the jury allowed it to determine whether Mariah was an accomplice, but we have no knowledge of whether the jury did in fact make such a determination.

When the evidence is viewed in a light most favorable to the State, Mariah’s testimony alone was enough to corroborate Reed’s testimony. She testified that, upon her arrival at the Reck Road house with Monte and Sean Johnson, she saw Reed, Appellant, and Williams waiting in the bedroom. According to Mariah, Appellant and Williams were 16both armed with guns.

Other evidence presented by the State showed that the victims’ bodies were discovered in Hindman Park and that the bullets found near the bodies were fired from a .22-caliber rifle and a .38-caliber revolver. Latifah Johnson, who also rode to the Reck Road house with Mariah, Sean and Monte, testified that, after the homicides, she overheard a conversation between Appellant and Williams. According to Latifah, Williams wanted to buy a .38-caliber revolver from Appellant. She further testified about seeing Appellant’s maroon SUV parked near the Reck Road house on the night she went to the house with Mariah, Sean and Monte. Likewise, around midnight that same night, Tim Mathis received a call from Reed to meet him at a carwash located close to Hindman Park. When Mathis drove to the carwash, he saw a maroon SUV pull out of the carwash. The State also elicited testimony from two police officers who had seen Appellant driving a maroon SUV on numerous occasions after the homicides in June 2006. In sum, when all of this evidence is viewed in the light most favorable to the State, it tends to connect Appellant to the commission of the crimes. Based upon the foregoing, we conclude that the circuit court did not err in denying Appellant’s directed-verdict motion.

II. Cross-Examination About Prior Plea Offer

For his second point on appeal, Appellant argues that the circuit court erred in not allowing him to cross-examine Albert Reed about the history of a plea offer made by the State in exchange for Reed’s testimony. Pursuant to a plea offer by the State, Reed had pled Lguilty to two counts of first-degree murder with a recommended sentence of sixty years in exchange for his testimony against Appellant and Cameron Williams. The case against Williams went to trial first, and Reed testified against him. Reed, however, refused to testify against Appellant at his trial and sought to withdraw his guilty plea. The circuit court denied the request and sentenced him to two life sentences. Shortly thereafter, Reed changed his mind and offered to cooperate with the State and testify against Appellant. At that point, there was no deal with the State, but Reed was hoping that his testimony against Appellant would result in a reduced sentence. He testified at Appellant’s trial and then petitioned the circuit court for a reduced sentence. The court ultimately denied his petition.

Following voir dire but before opening statements, the State argued that Appellant should not be able to tell the jury about the history of Reed’s guilty-plea deal. The circuit court directed Appellant not to mention the prior deal between Reed and the State on grounds of lack of relevancy as he had already been sentenced to life in prison. The State commented in its opening statement that Reed had no incentive to lie because he had gotten two life sentences and had nothing to gain from his testimony and had no deal with the State. Appellant cross-examined Reed as directed by the circuit court, asking only whether Reed was hoping for a reduced sentence from the circuit court. On redirect by the State, Reed acknowledged that there was a sentence and no promise had been made by the circuit court to revisit his sentence. Finally, in its closing statement, the State again argued |sthat, with the court’s imposition of two life sentences, Reed had nothing to gain from his testimony. When Appellant gave his closing argument, he argued that Reed was hoping to a get a reduced sentence from the circuit court.

Appellant argues on appeal that he should have been allowed a wide latitude in his cross-examination of an adverse witness, especially in the case of an accomplice. He asserts that the circuit court’s ruling and the State’s continued argument that Reed had no incentive to lie gave a false and misleading impression, which was extremely prejudicial and violated Appellant’s Sixth Amendment right to confrontation.

Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that discretion. Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001). An accused should be accorded a wide latitude in cross-examination to impeach the credibility of a witness against him. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976). The latitude of this right of cross-examination is even broader and the court’s discretion to limit it is somewhat narrower than in other instances. Id. This is particularly so when the witness is, or may be found to be, an accomplice. Id. It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Id. This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities. Id. The test is the expectation of the witness and not the actuality of a promise. Id. The right of a defendant to show the bias of a witness does not lie within the court’s discretion. Id.

|9In the instant appeal, Reed was cross-examined about his motive and desire to have his sentence reduced as a result of his testimony against Appellant. Therefore, Appellant was allowed to show Reed’s possible bias or prejudice. Once the main circumstances showing bias have been admitted, the trial court may impose reasonable limits on cross-examination based upon concerns about harassment, prejudice, waste of time, unnecessary duplication of testimony, confusion of issues, or interrogation that is repetitive or only marginally relevant. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). Moreover, at the time Reed gave his testimony, there was no offer by the State to reduce his sentence, which Reed understood. In contrast, when the admitted accomplice in Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), took the stand, he had a plea deal with the State. Appellant’s reliance on the Henderson case is therefore misplaced. Accordingly, we conclude that the circuit court did not abuse its discretion in imposing a limit on Appellant’s cross-examination of Reed about the history of his prior guilty-plea deal.

III. Mariah Powell’s Status as an Accomplice

For his next point on appeal, Appellant claims that the circuit court erred in refusing to declare Mariah Powell an accomplice as a matter of law. In support of this claim, he asserts that the evidence conclusively shows that Mariah Powell was an accomplice to the kidnapping and murder of Monte and Sean Johnson. Specifically, Appellant points to the following facts: (1) Mariah knew that Reed wanted to “beat up” Monte Johnson and she |10aided Reed by taking Monte and Sean Johnson to the Reck Road house without telling them that Reed would be there; (2) Mariah further aided Reed by leading the two men into the house where the defendants were waiting to attack them; (3) Mariah was present when the crime occurred and her opportunity and association with Reed were relevant facts in determining her connection with the crime; (4) when Mariah was first questioned by the police, she denied any involvement in the kidnapping and murder of the Johnsons; and (5) Mariah fled with Reed to avoid arrest.

Appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Bush v. State, supra. A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. Price v. State, 365 Ark. 25, 223 S.W.3d 817 (2006). The law is well settled that a witness’s status as an accomplice is a mixed question of law and fact. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002). However, when the facts show conclusively that the witness is an accomplice, the issue may be decided as a matter of law. Id. When the accomplice status instead presents issues of facts, the question is submitted to the jury. Id.

According to Ark.Code Ann. § 5-2-403, an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(1)Solicits, advises, encourages, or coerces the other person to commit the offense;
In(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or
(3) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to prevent the commission of the offense.
(b) When causing a particular result is an element of an offense, a person is an accomplice of another person in the commission of that offense if, acting with respect to that particular result with the kind of culpable mental state sufficient for the commission of the offense, the person:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the particular result;
(2) Aids, agrees to aid, or attempts to aid the other person to engage in the conduct causing the particular result;
(3) Having a legal duty to prevent the conduct causing the particular result, fails to make a proper effort to prevent the conduct causing the particular result.

Ark.Code Ann. § 5-2-403 (Repl.2006). The term “accomplice” cannot be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002). To constitute one an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Id. Mere presence, acquiescence, or silence, in the absence of a duty to act, is not enough, however reprehensible it may be, to constitute one an accomplice. Id. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the | ^commission of a crime. Id. Presence at the crime scene does not make one an accomplice as a matter of law. Id. Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Id. A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that defendant was not present at the murder scene and did not directly commit the murder. Id.

As stated earlier, “kidnapping” is defined in Ark.Code Ann. § 5-11-102 as follows: “A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the purpose of ... (3) Facilitating the commission of any felony or flight after the felony; (4) Inflicting physical injury upon the other person_” Ark.Code Ann. § 5-11-102 (Repl.2006). “Capital murder” is defined in Ark.Code Ann. § 5-10-101 as follows: “A person commits capital murder if ... (4) With the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person ....” Ark.Code Ann. § 5-10-101 (Repl.2006). The particular result of the offense of kidnapping— “interfering substantially” with another person’s liberty — is an element of that offense. Similarly, an element of the offense of capital murder is “causing the death” of another person. An accomplice must have acted with respect to those particular results with the kind of culpable mental state sufficient for the commission of the offenses. Arkji.gCode Ann. § 5-2-403(b). Based upon the record before us, we cannot say the evidence conclusively shows that Mariah Powell had the culpable mental state sufficient to commit the offenses of capital murder and kidnapping. Both parties agree that Mariah knew Reed was going to “beat up” Monte Johnson. However, the evidence does not conclusively show that Mariah intended to cause the kidnapping and death of Monte Johnson or Sean Johnson. According to Mariah’s testimony, she only thought Reed would “beat up” Monte Johnson, and she did not intend to cause the death of anyone. She further testified that she was shocked and frightened by the sudden appearance of two armed men in her bedroom at the Reck Road house. The testimony of Latifah Johnson and Tiffany Hammonds corroborated Mariah’s state of fear and panic immediately following the confrontation inside the house. Tiffany stated that she had never heard Mariah sound so frightened. Reed also testified that the plan to kidnap and murder the Johnsons arose after Mariah left the house. Moreover, the evidence that Reed and the other defendants repeatedly called Mariah and told her not to call the police belies Appellant’s contention that she was an accomplice as |14a matter of law. Lastly, Mariah’s presence at the Reck Road house and her association with Reed are relevant but not conclusive facts in determining the issue of her status as an accomplice. The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The weight to be given to the testimony and all reasonable inferences to be drawn therefrom were questions for the jury to determine. Reynolds v. State, 211 Ark. 383, 200 S.W.2d 806 (1947). We therefore cannot say that the circuit court erred in submitting the issue of Mariah Powell’s status as an accomplice to the jury.

IV. Mere Presence Jury Instruction— AMI Criminal 2d Wh

The circuit court instructed the jury in accordance with AMI Criminal 2d 404: “Mere presence, acquiescence, silence or knowledge that a crime is being committed in the absence of a legal duty to act is not sufficient to make one an accomplice. Therefore if you find that Mariah Powell was only present while a crime was being committed and did not have a legal duty to act then she is not an accomplice.” Appellant objected to the court’s decision to give the “mere presence” instruction and now challenges that ruling.

A trial court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In reviewing the propriety of giving a jury instruction, the issue is not one of sufficiency, but rather, the issue is whether the slightest evidence supports the instruction. Id.

Appellant alleges that Mariah was not just an innocent bystander; rather, she was an 11fiactive participant who lured the Johnsons to the Reck Road house knowing that Reed was going to beat up the John-sons and that Appellant and Williams had guns. The record does not reflect that Mariah knew the men would be armed. Mariah and Reed both testified that she did not know Appellant and Williams would be at the house. As noted earlier, she was shocked and frightened when they appeared and both men were carrying guns. The record thus reflects evidence supporting the conclusion that Mariah was not an active participant in the kidnapping and murder of Monte Johnson and Sean Johnson. The circuit court’s ruling on this point was not an abuse of discretion.

V. Latifah Johnson’s Status as an Accomplice

The circuit court declined to submit the question of Latifah Johnson’s status as an accomplice to the jury. On appeal, Appellant contends that Latifah’s status as an accomplice was an issue of fact that should have been submitted to the jury pursuant to AMI Criminal 2d 403.

This court has repeatedly stated that if there is some evidentiary basis for a jury instruction, giving the same is appropriate. Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008). A party is entitled to an instruction if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Id. There is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Id. In determining whether the circuit court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such 11fithat the resulting conviction violates due process. Id.

Appellant claims that the following evidence supports the giving of a jury instruction on Latifah Johnson’s status as an accomplice: (1) Latifah’s fabrication of evidence when questioned by the police; (2) Latifah’s close proximity to the victims, Albert Reed, Mariah Powell, and Cameron Williams; and (3) her improbable explanation as to why she did not enter the Reck Road house that night. We disagree. The cited evidence would not support a finding that Latifah was an accomplice. Indeed, no such finding could be made without engaging in pure speculation. The record is devoid of any evidence indicating that Latifah knew about the reason for bringing Monte Johnson and Sean Johnson to the Reck Road house. Likewise, there is no evidence suggesting that she knew anything about a plan to commit the offenses of kidnapping and murder. The circuit court’s ruling on this point is affirmed.

VI. Admissibility of Police Officers’ Testimony

At trial, Appellant objected to the introduction of testimony by the police officers who had stopped Appellant several times after the homicides. On each occasion, Appellant was driving a maroon SUV. The circuit court overruled his objection. Appellant now urges this court to reverse the circuit court’s ruling on grounds that evidence of other crimes was not admissible under Ark. R. Evid. 404(b), and the State failed to demonstrate the relevance of the subsequent traffic stops.

Relevancy of evidence is within the trial court’s discretion, subject to reversal only |17if an abuse of discretion is demonstrated. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401 (2008). Evidence may be relevant even though it is somewhat remote in time from the occurrence of the crime. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

The record here reflects that Latifah Johnson saw Appellant’s maroon SUV parked near the Reck Road house on the night of the murders. That same night, around midnight, Tim Mathis saw a maroon SUV at a carwash close to Hindman Park. The victims’ bodies were discovered the next day in Hindman Park. The State contends, and we agree, that the police officers’ testimony linking Appellant to the maroon SUV did not violate Rule 404(b) because it was not offered for the purpose of showing that he was a bad character, nor was it offered to show a pattern of behavior; rather, it was offered to demonstrate Appellant’s identity as the driver of a vehicle that was seen near both crime scenes. The evidence was relevant and not too remote in time from the commission of the crimes. Accordingly, we cannot say that the circuit court abused its discretion in admitting the testimony of the | ^police officers.

VII. Cross-Examination of Latifah Johnson

Prior to Appellant’s trial, Appellant requested that he be allowed to review Lati-fah Johnson’s mental health evaluation that was done after she pled not guilty by reason of mental disease or defect in a juvenile proceeding. The State objected and argued that Ark.Code Ann. § 9-27-352 (Repl.2008) prohibited releasing the medical records of a juvenile. The circuit court sustained the State’s objection. The circuit court also sustained the State’s objection when Appellant sought to question Latifah about her statement to the detective that she was bipolar.

On appeal, Appellant alleges that, under Rules 401, 402, and 403 of Arkansas Rules of Evidence, Appellant has a wide latitude to impeach the credibility of Latifah Johnson; and within that latitude are questions as to whether she believed that she was suffering from a mental illness and what medications she was taking for that illness. Appellant argues that these questions go to the heart of Latifah’s credibility as a witness and the circuit court erred in refusing to allow cross-examination about her mental health.

With regard to the disclosure of Latifah’s mental health evaluation, Arkansas Code Annotated § 9-27-352(a)(4) provides, in relevant part, that “[mjedical records, psychiatric records, psychological records, and information related thereto shall remain confidential unless the juvenile’s parents or legal guardian waives confidentiality in writing specifically describing the records to be disclosed between the persons listed in subdivision (c)(1) of this | ^section and the purpose for the disclosure.” Ark.Code Ann. § 9-27-352(a)(4) (Repl.2008). Appellant does not dispute Latifah’s status as a juvenile. It is therefore clear that section 9-27-352 precludes the release of the mental evaluation.

In ruling that Appellant could not question Latifah about her statement that she was bipolar, the circuit court concluded that her competency was not at issue. In other words, the court determined that Latifah was competent to testify as a witness. A decision about the competency of a witness lies within the sound discretion of the trial court. Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003). This is so because the competency issue is one in which the trial judge’s evaluation is particularly important due to the opportunity he or she is afforded to observe the witness and the testimony. Id. This court will not find an abuse of discretion in allowing a witness to testify as long as the record in the case is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember and relate facts. Id.

The credibility of a witness may be challenged by proving that he or she is subject to insane delusions, or that her mind and memory have become impaired by disease or other causes. Lomax v. State, 248 Ark. 534, 452 S.W.2d 646 (1970). In this case, Appellant presented no evidence showing that Latifah was subject to insane delusions or that her ability to perceive and remember was impaired. Thus, we conclude that the circuit court’s |2nCompetency ruling was not an abuse of discretion.

VIII. Admissibility — Out-of-Court Conversation

At trial, Latifah Johnson testified about hearing a conversation between Appellant and Cameron Williams sometime after the murder. According to Latifah, Appellant had bought a .38-caliber revolver from Albert Reed, and Cameron Williams wanted to buy the gun but Appellant would not sell it to him. Appellant objected to the testimony, arguing that it violated Ark. R. Evid. 404(b).

Appellant contends on appeal that, because Latifah Johnson did not identify who said what, her testimony was hearsay in violation of Rule 801 of the Arkansas Rules of Evidence. We decline to address this argument because Appellant raises it for the first time on appeal. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

With regard to Appellant’s Rule 404(b) argument, evidence that Appellant possessed a gun similar to that used in the murder was independently relevant proof on the issue of Appellant’s identity. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). Moreover, its probative value was not substantially outweighed by the danger of unfair prejudice. We affirm the circuit court on this point.

The record in this case has been reviewed for other reversible error pursuant to Arkansas Supreme Court Rule 4-3(h), and none has been found.

Affirmed.

HANNAH, C.J., dissents.

JIM HANNAH, Chief Justice,

dissenting.

12|I respectfully dissent. Gilcrease was denied his constitutional right to confrontation when the circuit court refused to permit examination of witness Albert Reed for bias. The State openly argued and presented testimony from Reed that he was unbiased because he had “no deal” with the State and testified only to “square the balance sheet.” Gilcrease credibly argued to the circuit court that Reed believed that by belatedly testifying against Gilcrease, Reed might yet receive the reduced sentence he lost when he violated his plea agreement. The circuit court erred in denying Gilcrease the opportunity to cross-examine Reed for bias based on his subjective belief that he might salvage his plea agreement.

The State negotiated a deal with Reed prior to the trial of accomplice Cameron Williams. The State informed Reed that if he would testify against Williams and Gil-crease, his criminal charges would be reduced from capital to first-degree murder, and the State would recommend a single sixty-year sentence to be served on the two convictions for first-degree murder. Reed agreed and testified at trial against Williams, but on February 19, 2008, at a pretrial hearing in the Gilcrease case, Reed announced he would not testify against Gilcrease. In that same hearing, the circuit court found the plea agreement breached, refused to allow Reed to withdraw his guilty pleas, and imposed two life sentences on the capital murder charges. However, Reed called the prosecution three days later, apparently recognizing the folly of his actions, and said he would testify against Gilcrease.

Reed was a critical witness. He was the only witness to the kidnapping, the transport |22to Hindman Park, and the murders of Monte and Sean. Prior to trial, the prosecutor stated, “We cannot go forward without Mr. Reed.” Reed was the witness that provided the crucial information convicting Gilcrease. Reed testified to the following critical facts:

1. Gilcrease was the person who introduced the idea of killing Monte and Sean Johnson;
2. Gilcrease ordered Monte and Sean to remove their clothes;
3. Gilcrease bound Monte and Sean with duct tape and ordered them outside;
4. Gilcrease ordered Monte and Sean into the trunk of a car;
5. Gilcrease ordered Reed to drive Monte and Sean to Hindman Park;
6. Gilcrease followed Reed as he drove Monte and Sean to their deaths;
7. At the park, Gilcrease stated, “It’s got to be done”;
8. Gilcrease shot Monte Johnson as he attempted to flee; and
9. Once Monte was on the ground, Gil-crease walked to him and fired multiple rounds into Monte’s body.

Through Reed’s testimony, Williams’s role was reduced to being present, holding a gun on Monte and Sean while Gilcrease duct taped them, and shooting Sean at the park. Gilcrease was left as the planner and primary actor in the kidnapping and murders. Reed provided the only direct evidence of these critical facts. Reed’s testimony may well be true, but Gilcrease had a right that the jury know of the possible bias before judging Reed’s testimony.

Reed was presented to the jury as a man who had nothing to lose or gain by testifying, a man who only testified because he wanted to atone for his wrongs. The prosecution told l^the jury in opening statement that Reed, although a criminal, had done all he could do to set things right. To reinforce this assertion of Reed’s credibility, the prosecution told the jury that trial and sentencing were in the past for Reed, a done deal, that he had nothing to gain or lose by testifying “because his life for the most part is over. He’s serving two life sentences in the Arkansas Department of Correction because he pled guilty.” The jury was also told that Reed had “stepped up” and “taken responsibility.”

The prosecution also told the jury that there were “no deals ... none.” Reed was presented to the jury as a man who had openly acknowledged his crimes, accepted a just punishment, and who only testified to try and make things right. The jury was told that Gilcrease’s “problem” in the trial was that “Albert Reed stands to lose and gain nothing, that he’s doing as much as any man can do in his situation.” Reed was asked if he had any reason to lie against Gilcrease, and Reed responded, “No.” Reed testified that he was testifying “so the families of Sean and Monte would know the truth about how they died.” Further examination of Reed by the State reveals the extent to which the State emphasized Reed’s believability because he had no hope of a deal with the State:

Q: I want to be clear that you have no deal with this judge, do you?
A: No sir, I mean, no ma’am.
Q: He sentenced you to two life sentences.
A. Two life sentences.
Q: Right. And he’s never said that he’s ever going to change that?
I24A: Haven’t said that.
Q: You knew that coming in?
A: I knew that coming in.
When you talked — I mean, you have an attorney, right? <o
Yes. í>
Did your attorney make it clear to you that— <©
Made it clear to me. t>
—the judge never said he was going to change it? <©
Made it clear to me. t>
Q: You knew that when you came in today?
A: I knowed that.
Q: I mean, it be great if he did—
A: Yeah.
Q: You know there is no promise.
A: No promise. No deal.
Q: Right now you’ve been sentenced and you’re done. You know that don’t you?
A: Yes.
1 afiQ: Do you have any reason to lie against this guy here?
R: No.
Q: Is there anything out there?
R: No.

While Reed’s hope that the circuit court might reinstate his plea agreement may seem quite unlikely, to a man who was facing two life sentences, it was likely the only hope he had. “The test is the expectation of the witness and not the actuality of a promise.” Klimas v. State, 259 Ark. 301, 305-06, 534 S.W.2d 202, 205 (1976) (citing State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960)); see also Henderson v. State, 279 Ark. 435, 438, 652 S.W.2d 16, 18 (1983). To deny Gilcrease the opportunity to cross-examine Reed on the issue was to deny him the right to confrontation provided by both the United States Constitution and the Arkansas Constitution.

The Sixth Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination.

Ridling v. State, 348 Ark. 213, 221, 72 S.W.3d 466, 470 (2002) (quoting Bowden v. State, 301 Ark. 303, 308, 783 S.W.2d 842, 844 (1990)). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The partiality of a witness is always relevant and subject to exploration at trial. Id. The denial of the right of effective cross-examination is a “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Davis, 415 U.S. at 318, 94 S.Ct. 1105 (quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) (quoting Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966))); see also Watson v. State, 818 Ark. 603, 606, 887 S.W.2d 518, 519 (1994) (quoting Klimas v. State, 259 Ark. 301, 306, 534 S.W.2d 202, 205 (1976)) (citing Davis, supra); Swinford v. State, 85 Ark.App. 326, 331, 154 S.W.3d 262, 265 (2004). Reasonable limits may be placed on the right to cross-examine based on concerns such as “harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is only marginally relevant.” Bowden v. State, 301 Ark. 303, 309, 783 S.W.2d 842, 844 (1990) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). None of these factors, nor any other factors, are present in this case that would justify limiting cross-examination on Reed’s expectations of the resurrection of his plea agreement, no matter how unlikely that might be. Gil-crease had a right to full cross-examination in order to show bias. Henderson, 279 Ark. at 488, 652 S.W.2d at 18. “This is especially true in the case of an accomplice since his testimony is the direct evidentia-ry link between the defendant and the crime.” Id., 652 S.W.2d at 18. As noted, in this case, Reed provided the only direct evidence of the critical facts. The testimony elicited from Reed was that he had no deal and had no hope of a reduction in sentence. He agreed with the prosecutor that he would like a reduction, but that in no way revealed to the jury his hope that his plea | ^agreement might be honored after the fact. It is quite reasonable to assume that Reed believed keeping quiet about his hope, and assuring in his testimony that there was no deal, was something he needed to do to bolster his credibility and increase the likelihood of his success.

The circuit court errantly excluded evidence of bias in the most crucial witness in the case. The exclusion of evidence of bias or possible prejudice by an accomplice is sufficient cause to reverse. Henderson, 279 Ark. at 440, 652 S.W.2d at 19. Gil-crease made no proffer, but “[a] proffer was not necessary.” Id., 652 S.W.2d at 19. Justice and the credibility of our criminal law requires that this case be reversed and remanded.

      . In refuting the State's argument that Mari-ah only contemplated that her actions would result in Monte being beaten up by Reed, Appellant cites the cases of Henry v. State, 151 Ark. 620, 237 S.W. 454 (1922); Clark v. State, 169 Ark. 717, 276 S.W. 849 (1925); and Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970), for the proposition that "[e]ach person is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences.” Those cases, however, involved felony-murder charges where the common purpose was related to the underlying felony. At issue here is whether Mariah had the kind of culpable mental state sufficient for the commission of the offenses of kidnapping and murder.

      . The circumstances under which disclosure is permitted under Ark.Code Ann. § 9-27-352(c)(1) are not pertinent here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 305
    Antonio DANIELS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-370.
    Supreme Court of Arkansas.
    May 21, 2009.
   MOTION FOR RULE ON CLERK

PER CURIAM.

11 Antonio Daniels, by and through his attorney Dale West, has resubmitted a motion for rule on clerk following our per curiam dated April 30, 2009. See Daniels v. State, 2009 Ark. 243, 308 S.W.3d 131. Pursuant to the April 30, 2009 per curiam, the December 11, 2008 circuit court order granting the extension of time was remanded for failure to state that all parties consent to the extension and because it did not state the length of the extension granted as required by Arkansas Rule of Appellate Procedure — Criminal 4. We are now presented with a May 6, 2009 order; however, again, the length of time of the extension is not stated in the order. Pursuant to Arkansas Rule of Appellate Procedure — Criminal 4(c), the circuit court may enter an order granting an extension. The May 6, 2009 order presented complies with Arkansas Rule of Appellate Procedure — Criminal 4(c)(l)(A)-(E) in that it shows the requirements for an extension are met; however, while it amends the earlier December 11, 2008 order that granted an extension, neither order states the length of time and date on which the extension expires. We remand the matter to the circuit court for | .¿compliance with Rule 4(c)(1).


text:
    2009 Ark. 307
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. J.D., Appellee.
    No. 09-254.
    Supreme Court of Arkansas.
    May 21, 2009.
   MOTION FOR RULE ON CLERK

PER CURIAM.

|, Appellant, the Arkansas Department of Human Services (ADHS), by and through its attorney, Tabitha McNulty, has resubmitted a motion for rule on clerk to file the record and have its appeal docketed. ADHS had previously filed a motion for rule on clerk after the clerk refused to docket its appeal and would not accept the record due to a failure to comply with Arkansas Rule of Appellate Procedure-Civil 5(b)(1). On April 16, 2009, we remanded the case to the trial court for compliance with Rule 5(b)(1). See Ark Dep’t of Human Servs. v. J.D., 2009 Ark. 209, 307 S.W.3d 585 (per curiam).

On May 7, 2009, the trial court issued an order for the purposes of strictly complying with the requirements of Rule 5(b)(1). The circuit court’s order reflects the reasons for ADHS’s motion for extension of time; states that the time to lodge the record had not yet | ¡¿expired when the motion was filed; states that all parties had an opportunity to be heard on the motion; and that ADHS had made financial arrangements with the clerk and reporter and has paid both. As the extension order is now in compliance with Rule 5(b)(1), the motion is granted. Our clerk is directed to accept the record and docket the appeal.

Motion for rule on clerk granted.


text:
    2009 Ark. 304
    Robert MEYER d/b/a Meyer Excavators Contractors, Appellant, v. CDI CONTRACTORS, LLC, Appellee.
    No. 08-654.
    Supreme Court of Arkansas.
    May 21, 2009.
    Cyril Eugene Hollingsworth, Little Rock, for appellant.
    Friday, Eldredge & Clark, LLP, Little Rock, by: James Carl Baker, Jr. and Kimberly Dickerson Young, for appellee.
   PER CURIAM.

11 In a per curiam opinion dated March 5, 2009, we declined to address the' merits of the appeal in this case because of appellant Meyer’s briefing deficiencies, stating as follows:

Meyer failed to abstract depositions that provided a substantial amount of evidence to support CDI’s motion for summary judgment. Further, on July 6, 2005, Meyer filed a response to CDI’s motion for summary judgment that stated: “[Meyer] has controverted the facts alleged by [CDI] as detailed in [Meyer’s] Brief in Support of this Response. [Meyer] incorporates by reference his Brief in Support of this Response.” (Emphasis added.) CDI’s reply brief indicates that Meyer filed his brief in support of his July 6, 2005 response, but it is not included, in the addendum or the record. Thus, the record is incomplete.

Meyer v. CDI Contractors, LLC, 2009 Ark. 115, 313 S.W.3d 519 (second emphasis added).

Under Ark. Sup.Ct. R. 4-2 and Ark. R.App. P.-Civ. 6(c), this court ordered Meyer “to file a substituted abstract, addendum, and brief, and to file a certified, supplemental record that includes the omitted brief in support within fifteen days from the date of entry 12of this order.” Id. at 2-3, (emphasis added). Further, we stated that if Meyer failed to comply with the order “within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2.” Id. at 2.

In response, Meyer submitted a substituted abstract, brief, and addendum that includes abstracts of the depositions. He also submitted a supplemental record with the missing brief in support (“Brief in Support of Plaintiffs Response to CDI’s Second Motion for Summary Judgment”). However, Meyer again failed to include the brief in support in the substituted addendum.

This case was decided by the trial court on a motion for summary judgment. The burden was on appellant to provide us a record, abstract, addendum, and brief that allows this court to understand and address the issues presented to us. After we ordered rebriefing in this case — with directions — Meyer failed to comply with our order and our briefing rules under Ark. Sup. Ct. R. 4-2. Accordingly, we affirm the trial court’s grant of summary judgment.

Affirmed for noncompliance with Rule 4-2.


author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Melbourne MILLS, Respondent.
    No. 2010-SC-000148-KB.
    Supreme Court of Kentucky.
    May 20, 2010.
    As Modified Aug. 26, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended to this Court that Respondent, Melbourne Mills, Jr., KB A Member No. 48720, be permanently disbarred as a result of numerous violations of our Rules of Professional Conduct. Mills was admitted to practice law in Kentucky on April, 18, 1958, and his last known bar roster address is Barrister Hall, 163 E. Main Street, Ste. 103, Lexington, KY 40507. We agree with and adopt the Board’s recommendation.

The original twenty-three charges against Mills stem from his actions in two cases. One of the charges comes from his failure to properly answer interrogatories in William H. Tucker v. Adrian Park. His failure to properly respond led to the case’s dismissal. The twenty-two other charges stem from his actions during Darla Guard, et al. or Jonetta Moore, et al. v. A.H. Robins Company, et al. Most of these charges are related to a series of dishonest and fraudulent acts in the handling of a $200,450,000 aggregate settlement of the claims of 440 clients. Mills’s co-counsel in this case have already been permanently disbarred. See Cunningham v. Kentucky Bar Association, 266 S.W.3d 808 (Ky.2008); Gallion v. Kentucky Bar Association, 266 S.W.3d 802 (Ky.2008).

After initial investigations by the Inquiry Commission, the twenty-three charges against Mills were presented to Trial Commissioner Marcia Ridings. She entered findings of fact and conclusions of law which found Mills guilty of seventeen of the twenty-three charges, and recommended that Mills be permanently disbarred.

Pursuant to SCR 3.370(6), the Board of Governors decided, by a vote of fourteen to one, that the findings and conclusions of the Trial Commissioner were supported by substantial evidence and not clearly erroneous, and that the punishment of permanent disbarment was appropriate. We will now outline each of the charges the Board of Governors found Mills guilty of:

1. Mills violated SCR 3.130-1.3 during his representation of William Tucker by failing to comply with the Fayette Circuit Court’s pretrial orders, by failing to supplement his prior responses to discovery requests, and by failing to properly manage his client’s case.
2. Mills violated SCR 3.130-1.4(a) by failing to adequately communicate with the clients he represented in the Guard case. He never informed his clients that he certified the case as a class action, or that he subsequently had the class action decertified. He also never informed them of the true nature of the settlement that had been reached with the defendants.
3. Mills violated SCR 3.130-1.4(b) by delegating most of the responsibility of dealing with his clients in the Guard case to his secretary/paralegal. He also knew that the people to whom he delegated authority were not fully informing his clients of their rights under the settlement agreement.
4. Mills violated SCR 3.130-1.5(a) by taking in excess of $100,000,000 of the total settlement amount as attorney’s fees for himself and his co-counsel. This amount represented a far greater percentage of the settlement amount than the actual contingency fee agreed to by the clients.
5. Mills violated SCR 3.130-1.5(c) by failing to provide his clients with a written statement explaining the outcome of the matter; to provide each of his clients with an accounting stating how the client’s settlement, the attorney’s fees, and reimbursement for costs were calculated; and to provide correct information as to the method of determination of the client’s portion of the settlement.
6. Mills violated SCR 3.130~1.5(e) by dividing the attorney’s fees amongst himself and his co-counsel by a method not in proportion to the services performed; by not giving his clients the opportunity to approve or object to the participation of all of the attorneys in the case; and by retaining an unreasonable amount of the settlement for attorney’s fees.
7. Mills violated SCR 3.130-1.8(a) by acquiring an ownership interest in the settlement funds beyond his written fee agreement. This was accomplished when he and his co-counsel devised or participated in a method of distribution which made their attorney’s fees greater by convincing their clients to accept less then their allotted settlement amount. The attorneys then pocketed the difference between the settlement amount the client was to receive and the amount the attorneys convinced them to receive.
8. Mills violated SCR 3.130-1.8(g) by failing to explain to his clients that the defendant made a lump sum settlement offer to the entire group of clients and that the attorneys would be responsible for determining the amount of money each client would receive from the total settlement amount.
9. Mills violated SCR 3.130-1.80') by acquiring a proprietary interest in the litigation created by his co-counsel’s unethical and dishonest scheme which vested Mills with a financial interest directly in opposition to that of their clients. This interest existed because by convincing their clients to accept less money for their settlement, the amount which the attorneys got to keep increased.
10. Mills violated SCR 3.130-1.15(b) by failing to turn over to his clients funds to which they were entitled and by failing to provide his clients a requested accounting of the distribution of the total settlement as well as the individual client’s settlement distribution.
11. Mills violated SCR 3.130-2.1 by failing to exercise professional judgment independent of his co-counsel regarding the distribution of the settlement funds to clients. Mills was aware of and had misgivings about the propriety of the settlement distribution to his clients but took no immediate steps to stop it.
12. Mills violated SCR 3.130-5.4(a) by sharing his fees in this case with a paralegal he employed at his law firm and a non-lawyer consultant.
13. Mills violated SCR 3.130-S.3(c) by deceiving his clients into accepting the individual settlement amounts devised by a fraudulent method; misrepresenting to the Boone Circuit Court that his clients had agreed to donate a substantial portion of the total settlement received to charity; failing to inform the Boone Circuit Court that he had contingent fee contracts with all of his clients which set a specific fee; providing, or assisting in providing, false or misleading information to the Boone Circuit Court about the fees and expenses, as well as the manner in which the settlement had been reached by each of his clients; and misappropriating, or participating in the misappropriation of, his clients’ funds and the subsequent coverup.
14. Mills violated SCR 3.130-5.3(a) by failing to have in effect policies and procedures to ensure that his non-lawyer employees were acting in accordance with the lawyer’s ethical duties in their dealings with clients and discussions about settlement matters.
15. Mills violated SCR 3.130-5.3(b) by failing to appropriately supervise his non-lawyer employees in order to ensure that their conduct was compatible with his ethical duties in their dealings with the clients and discussions about their cases, their settlement, and the creation of the charity.
16. Mills violated SCR 3.130-5.3(c) by being professionally responsible for any and all of the misconduct of his non-lawyer staff in this case.
17. Mills violated SCR 3.130-5.1(c) by being professionally responsible for any and all of the misconduct of his co-counsel in the Guard litigation that he ratified with knowledge. Two of his co-counsel, Cunningham and Gallion, were disbarred for their conduct and he is responsible for their actions since he knew of their actions, but took no steps to prevent them.

CONCLUSION

Upon a review of the record, we agree with the Board of Governor’s findings and in light of the numerous ethical violations adopt their recommendation to permanently disbar Mills.

ACCORDINGLY, IT IS HEREBY ORDERED that:

1) Mills is found guilty of violating SCR 3.130-1.3, SCR 3.130-1.4(a), SCR 3.130-1.4(b), SCR 3.130-1.5(a), SCR 3.130-1.5(c), SCR 3.130-1.5(e), SCR 3.130-1.8(a), SCR 5.130-1.8(g), SCR 3.130-1.80'), SCR 3.130-1.15(b), SCR 3.130-2.1, SCR 3.130-5.4(a), SCR 3.130r8.3(c), SCR 3.130-5.3(a), SCR 3.130-5.3(b), SCR 3.130-5.3(c), and SCR 3.130-5.1(c)(l);

2) For these violations Mills is hereby permanently disbarred from the Kentucky Bar Association. Mills may never apply for reinstatement to the Bar under the current rules;

3) Mills, in accordance with SCR 3.890, shall notify all Courts in which he has matters pending and all clients for whom he is actively involved in litigation and similar matters, of his inability to continue representation;

4) Mills shall immediately cancel and cease any advertising activities in accordance with SCR 3.390;

5) In accordance with SCR 3.450, Mills is directed to pay all costs associated with these disciplinary proceedings in the amount of $35,773.97 for which execution may issue from this Court upon finality of this Order.

All sitting. All concur.

ENTERED: May 20, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Fayette Circuit Court, Case No. 98-CI-3185.

      . Boone Circuit Court, Case No. 98-CI-795

      . Now SCR 3.130-8.4(c).


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. James B. GRAY, Respondent.
    No. 2010-SC-000381-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

The Board of Governors for the Kentucky Bar Association (KBA) has recommended that Respondent, James Basil Gray, be suspended from the practice of law for five years (with two years to serve followed by probation for the remaining three years) conditioned upon his compli-anee with a KYLAP monitoring program. Gray’s KBA Member No. is 88427, and his last known bar roster address is 1244 Constitution Drive, Independence, Kentucky 41051. We agree with the Board’s rulings and adopt its recommendations.

Background

The parties stipulated to the underlying facts. In February 2004, Gray met with Robert P. Butts. Butts had been indicted on federal charges and Gray agreed to represent him for a fee of $10,000, advising that he would be willing to accept monthly payments of $500.00 toward the agreed fee. Butts was later hospitalized for a heart condition and returned home in June 2004. Gray asked whether he could come to Butts’ home and pick up his monthly payments and talk to him about his case. Several such meetings ensued and Butts began to suspect that Gray was stealing his pain medications from his home. Butts contacted the Northern Kentucky Drug Strike Force regarding the matter and a surveillance camera was installed.

On March 22, 2005, Gray was caught on camera stealing Butts’ medication. Gray was arrested soon thereafter and later indicted. On October 27, 2005, he pled guilty to theft of a controlled substance, a Class D felony, and was granted pretrial diversion. In accordance with SCR 3.166, this Court entered an Order temporarily suspending his license to practice law as of October 29, 2005. See Kentucky Bar Ass’n v. Gray, 183 S.W.3d 179 (Ky.2006). He remains temporarily suspended and has participated in the KYLAP program since April 2005. Gray began taking random drug and alcohol screening tests in April 2009. Since that time, he has failed to report for testing on eight occasions and of the six tests he has taken, four were positive for alcohol.

KBA File 13337

In the course of investigating a Bar Complaint Butts filed against Gray, the Office of Bar Counsel discovered that Gray had also been previously convicted on May 19, 2004 of a Class A misdemeanor (resisting arrest) in Jefferson County, Kentucky. Despite his obligation to report such a conviction to the KBA pursuant to SCR 3.320, he failed to do so and the conviction went undetected by the KBA until the filing of the Complaint underlying this charge.

The Inquiry Commission charged Gray with violating SCR 3.130-8.4(b) for committing a Class D felony (theft of a controlled substance) and by committing a Class A misdemeanor (resisting arrest), as both constitute criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer. SCR 3.130-8.4(b) states that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

The Inquiry Commission also charged Gray with violating SCR 3.130-8.4(c) for stealing medications from his client, representing the Class D felony conviction. SCR 3.130-8.4(c) states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Gray stipulated that his misconduct in these matters constituted a violation of SCR 3.130-8.40») and SCR 3.130-8.4(c). The matter came before the Board of Governors of the KBA as an issue of law pursuant to SCR 3.210(2) and oral arguments were heard from the parties. The twenty-one members of the Board accepted the stipulations as to guilt and unanimously voted to accept the recommended discipline proposed by the KBA Bar Counsel and accepted by Respondent. The Board recommends that Gray be found guilty of the ethical violations described above, be suspended from the practice of law for five years, with two years to serve followed by probation for the remaining three years, conditioned on participation in the KYLAP program with entry into a five year KYLAP monitoring agreement that requires testing and monitoring, and that he pay all costs associated with the disciplinary proceedings.

Neither party has filed notice, pursuant to SCR 3.370(8), for this Court to review the Board’s decision nor do we elect to review the decision of the Board pursuant to SCR 3.370(9). Therefore, we adopt the decision of the Board pursuant to SCR 3.370(10).

Accordingly, it is hereby ORDERED that:

1. Respondent, James Basil Gray, is found guilty of the ethical violations described above;
2. Gray is suspended from the practice of law in Kentucky for five years from the date of this order, with two years to serve followed by probation for the remaining three years, conditioned upon participation in the KY-LAP program, with entry into a five year KYLAP monitoring agreement that requires testing and monitoring;
3. In accordance with SCR 3.450, Gray is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $395.04, $37.29 of which has already been paid, leaving a balance of $357.75, for which execution may issue from this Court upon finality of this Opinion and Order;
4. Pursuant to SCR 3.390, Gray shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Gray shall immediately cancel and cease any advertising activities in which he is engaged; and
5.If Gray fails to comply with any of the terms of discipline as set forth herein, upon motion of the Office of Bar Counsel, the Court may impose further discipline in this matter. All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Marc Ashley BRYANT, Respondent.
    No. 2010-SC-000258-KB.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended to this Court that Marc Ashley Bryant, who was admitted to the practice of law in 2004 and whose bar roster address is 521 Highland Avenue, Suite B, P.O. Box 277, Car-rollton, KY 41008, be suspended from the practice of law for sixty days. We adopt the Board’s recommendation.

Bryant represented Ronald Korne-wald in three separate actions — a worker’s compensation claim, a Social Security disability appeal, and a personal injury action. Only the worker’s compensation claim was satisfactorily resolved. Kornewald alleged, and the Board ultimately found, that Bryant (1) failed to contact Kornewald or keep him advised of deadlines or court events; (2) failed to return paperwork to Kornewald; (3) failed to file paperwork timely in the Social Security disability appeal, which led to that appeal’s dismissal; and (4) failed to respond to discovery in the personal injury case, which caused the circuit court to dismiss that case with prejudice.

The Inquiry Commission issued a four-count charge against Bryant. Count I charged Bryant with violating Rules of the Supreme Court (SCR) 3.130(1.3), which requires a lawyer to “act with reasonable diligence and promptness in representing a client.” Count II charged Bryant with violating SCR 3.130(1.4)(a), which generally requires a lawyer to keep his or her client reasonably informed about the status of pertinent matters. Count III charged Bryant with violating SCR 3.130(1.16)(d), which generally requires a lawyer to return client file materials, by failing to return to Kornewald materials when Bryant’s representation of Korne-wald in the Social Security disability case was terminated. Count IV charged Bryant with violating SCR 3.130(8.1)(b) by failing to respond to the bar complaint.

Bryant did not answer the charges, and the case was submitted to the Board as a default case. The Board unanimously found Bryant guilty on all four counts. After reviewing Bryant’s substantial disciplinary history consisting of two private admonitions in 2009 and a 2008 suspension for nonpayment of bar dues, the Board voted unanimously to recommend that Bryant be suspended for sixty days and be required to complete the remedial Ethics and Professionalism Enhancement Program (EPEP) offered by the KBA.

Bryant has not filed a notice of review under SCR 3.370(8), nor do we independently elect to review the decision of the Board under SCR 3.370(9). So the decision of the Board is hereby adopted pursuant to SCR 3.370(10).

Accordingly, the Court ORDERS:

1) Marc Ashley Bryant’s motion for enlargement of time to file a response is denied;

2) Bryant is guilty of the four charges detailed earlier in this Opinion and Order for which he is suspended from the practice of law for sixty days from the date of this Opinion and Order;

3) In accordance with SCR 3.450, Bryant is directed to pay all costs associated with these disciplinary proceedings, $253.01, for which execution may issue from this Court upon finality of this Opinion and Order; and

4) Bryant, at his own expense, must attend the next scheduled Ethics and Professionalism Enhancement Program and pass any test given at the end of the program. Bryant must not apply for CLE credit of any kind for attendance at the EPEP and must furnish a release and waiver to the Office of Bar Counsel to review his records with the CLE Commission for one year from the completion of said EPEP to verify that Bryant has not reported any hours to the CLE Commission based on his EPEP attendance.

All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Although the Carrollton address appears in the Board’s findings of facts, conclusions of law, and recommendations, we note that the KBA’s website lists Bryant’s address as 511 Lauren Avenue, Smiths Grove, KY 42171.

      . The Board’s findings do not indicate whether Bryant's 2008 suspension for nonpayment of dues is ongoing, but the KBA’s website lists Bryant as still being under suspension for nonpayment of dues.


author: STUMBO, Judge.

text:
    CURTIS GREEN & CLAY GREEN, INC.; Paul Miller Ford, Inc.; G.F. Vaughan Tobacco Co., Inc.; Buckram Oak Holdings, N.V.; Hill ‘N’ Dale Kentucky, Inc.; Southeast Properties, Inc.; Peninsula Farm, Inc.; Denali Stud, Inc.; Groves Horse Services, LLC; Andrade Farm, Inc.; Eastern Kentucky Pipeline, Inc.; Valley Pipelines, Inc.; Grayco Rentals, Inc.; and Glenn Buick-GMC Trucks, Inc., Appellants, v. Sharon P. CLARK, in her capacity as executive director of the Kentucky Office of Insurance and Rehabilitator of AIK Comp; and other interested parties as listed on the Notice of Appeals, Appellees.
    No. 2006-CA-000086-MR.
    Court of Appeals of Kentucky.
    May 21, 2010.

      Carroll M. Redford, III, Lexington, KY, for appellants.
    Waiter L. Sales, Justin D. Clark, Louisville, KY, Paul C. Harnice, Frankfort, KY, for appellee, Sharon P: Clark, in her capacity as Executive Director of the Kentucky Office of Insurance and Rehabili-tator of AIK Comp.
    Charles G. Middleton, III, Charles D. Greenwell, Louisville, KY, for appellee, AIK Comp Trustees.
    Greg E. Mitchell, Jan de Beer, Lexington, KY, for appellee, Certain Group Members.
    Before KELLER, LAMBERT, and STUMBO, Judges.
   OPINION

STUMBO, Judge.

This appeal concerns the intersect between workers’ compensation coverage and insurance regulation. A group of 3,800 employers banded together to create a workers’ compensation self-insurance group called AIK Comp, as permitted by 803 Kentucky Administrative Regulations (KAR) 25:026, Section 3. The regulation permits a group of employers to pool their workers’ compensation risk. Under the plan, the employers agree to become jointly and severally liable for any claims raised against the group. Due to alleged mismanagement by the AIK Comp trustees, the group began losing money. The group was having difficulty covering the actual and expected future workers’ compensation risks.

On August 5, 2004, AIK Comp was placed into rehabilitation by the Franklin Circuit Court. Kentucky Revised Statutes (KRS) 304.33. The AIK trustees agreed to the rehabilitation action. Two days pri- or to the filing of the petition for rehabilitation, Governor Ernie Fletcher entered an Executive Order which purported to transfer authority over group self-insurers to the Office of Insurance, thereby allowing the Insurance Code to be utilized. Rehabilitation is a remedy based on the Insurance Code that the courts can impose to resurrect a failing insurance company.

The Rehabilitator appointed by the Franklin Circuit Court began making plans to assess members to cover the group’s shortfall of approximately $58.5 million. Each group member would be assessed its proportional share and be forced to pay by court order.

Certain group members challenged the action contending that AIK Comp was not covered under the insurance statutes which permitted a rehabilitator to intervene in an insurance company’s operation. This group was granted the status of intervening parties in the litigation. In 2005, after the action for rehabilitation had been filed, the Senate passed Senate Bill 86 as emergency legislation, thereby ratifying Governor Fletcher’s Executive Order, transferring the regulation of group self-insurers to the Office of Insurance and specifically defining these self-insured groups as insurers. The parties agree that the effect of S.B. 86 is to now, unquestionably, subject group self-insurers to the provisions of the Insurance Code.

S.B. 86 also contained a provision designating it as retroactive to August 4, 2004, the day the original petition for rehabilitation of AIK was filed. On March 7, 2005, shortly after S.B. 86 was enacted, the Re-habilitator filed a motion to file an amended petition for rehabilitation, citing S.B. 86 as authority for proceeding under the Insurance Code. The trial court granted the motion without objection from the intervening parties and the petition was deemed filed on that day. Appellants emphasize that this was simply an amended petition, not served on the individual members of the self-insured pool, and contend that the amendment of the petition is insufficient to give the trial court jurisdiction over the various members of AIK. The Appellants also challenge the constitutionality of S.B. 86 as prohibited retroactive legislation and as special legislation affecting only AIK Comp.

In addition to the jurisdictional and constitutional issues (whether the court had jurisdiction prior to the enactment of S.B. 86, whether the bill is constitutional and whether an amended complaint, rather than a new complaint, is sufficient to grant the court jurisdiction) Appellants challenge the summary judgment granted by the circuit court declaring that the members of AIK Comp are jointly and severally liable for all claims against the fund (as opposed to those of only their own employees) and wish to prohibit any assessment of further contributions in order to stabilize the finances of the group.

Additionally, Appellants also argue that the joint and several liability provisions in the Application for Membership for AIK Comp and Indemnity Agreement are unenforceable for reasons that will be detailed later in this opinion.

JURISDICTION

The primary argument in regard to the jurisdictional issue involves whether the enactment of S.B. 86 impaired vested rights and defenses available to Appellants and whether it constitutes special legislation prohibited by the Kentucky Constitution because Appellants are the only entity affected by the governor’s ratified Executive Order and by the retroactive application of the statute. We will address the latter argument first.

Section 59 (29) of the Kentucky Constitution states that: “[t]he General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes ... [i]n all other cases where a general law can be made applicable, no special law shall be enacted.” Special legislation is that which favors a special interest to the detriment of the rest of society; it is not legislation which is merely designed to further a specific purpose. Yeoman v. Commonwealth, Health Policy Board, 98B S.W.2d 459 (Ky.1998). If the effect of the legislation is uniform upon the class to which it applies, it is not invalid special legislation. As our Supreme Court noted, “[a]ll acts must deal with a special subject.... We are not impressed with the argument that the legislature cannot deal with one particular item separately because of the fact that it has dealt with a general subject.” Ky. Milk Marketing and Anti-Monopoly Comm’n v. Borden Co., 456 S.W.2d 831, 835 (Ky.1969).

A classification renders a statute a special law where a general law can be made applicable within the meaning of the constitution, where it is made to depend, not on any real, natural or substantial distinction, but on artificial, arbitrary, illusory or fictitious conditions so as to make the classification unreasonable or unjust. Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900 (Ky.1947). If the classification rests upon a distinctive and natural reason rather than an arbitrary one, it is a valid law and is general in the constitutional sense. Allison v. Borders, 299 Ky. 806, 187 S.W.2d 728 (Ky.1945). An example of the application of this rule is found in Winston v. Stone, 102 Ky. 423, 43 S.W. 397 (Ky.App.1897), wherein the court held that a statute which applies in general terms to all counties that have a population in excess of a certain number is not special legislation in violation of the Kentucky Constitution because only one county falls into that category. In Schoo v. Rose, 270 S.W.2d 940, 941 (Ky.1954), our Supreme Court reaffirmed this principal stating that to satisfy Section 59, “(1) [the legislation] must apply to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification.” We believe that S.B. 86 passed the test and is therefore constitutional.

As stated in the introduction to S.B. 86, it was intended “to establish minimum financial standards for workers’ compensation self-insured groups to ensure that self-insured groups are providing adequate coverage for member employers’ risks and liabilities under KRS Chapter 342 for injured employees of the member employers.” KRS 304.50-005. We believe that this language clearly defines the class as required by Schoo and provides that it is applicable to all members of the class. The second Schoo requirement, that there be distinctive and natural reasons supporting the classification, is met by the nature of self-insured groups, the similarity of such groups and the legitimate legislative interest in regulating the risks and liabilities of injured employees and their members. We therefore hold that S.B. 86 does pass constitutional muster and meets the requirements to avoid the designation of special legislation.

We next consider Appellants’ argument that because only one entity (AIK Comp) was impacted by the retroactive part of S.B. 86, it is special legislation. While there is little easelaw on this point, we note that in the past, our Supreme Court held that a statute permitting the collection of retroactive taxes by a newly formed city of the first class was not unconstitutional just because there was only one city to which it applied. The court noted that the statute would apply equally to other cities, if there were any other first class cities. In the case at bar, there is no indication that S.B. 86 would apply only to AIK if there were other workers’ compensation self-insured groups. Further, we believe that the retroactive effect of S.B. 86 is consistent with its purpose as a remedial statute.

Our Supreme Court has cited with approval the following language in regard to remedial legislation:

Legislation which has been regarded as remedial in its nature includes statutes which abridge superfluities of former laws, remedying defects therein, or mis-chiefs thereof, whether the previous difficulties were'statutory or a part of the common law. Remedial legislation implies an intention to reform or extend existing rights, and has for its purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects. The term applies to a statute giving a party a remedy where he had none, or a different one, before. Another common use of the term “remedial statute” is to distinguish it from a statute conferring a substantive right.

Kentucky Ins. Guaranty Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 610 (Ky.2000)(citing 73 Am.Jur.2d Statutes § 11 (1974)).

When determining whether S.B. 86 is remedial, we look to the Legislature’s reason for enacting the legislation in the first place. As we noted before, the purpose of the legislation was to provide a tool by which both the right to compensation for the injured worker was assured along with the right of the insured employer to the coverage for which it had paid. Given that self-insured groups like AIK Comp were not subject to regulation under the Insurance Code before the legislation, enactment of S.B. 86 rectified a defect in the previous law and extended the right of the state and the insured to seek protection of the Insurance Code, thereby protecting the injured worker’s benefits. Surely this extension of the Insurance Code promotes “the advancement of public welfare and of important and beneficial public objects.” Kentucky Ins. Guaranty Ass’n, supra. We, therefore, find that the application of S.B. 86 is not unconstitutional, special, or retroactive legislation.

Appellants also argue that in applying S.B. 86, their vested right to be governed by the Workers’ Compensation law rather than the Insurance Code has been violated. We disagree. We need only point to the fact that workers’ compensation is a “creature of statute,” dependent on the legislature for its continuing existence. See, e.g., Williams v. Eastern Coal Corp., 952 S.W.2d 696 (Ky.1997). The definition of a vested right is found in Louisville Shopping Center, Inc. v. City of St. Matthews, 635 S.W.2d 307, 310 (Ky.1982), wherein the Supreme Court said: “[a] right, in order to be vested (in the constitutional sense) must be more than a mere expectation of future benefits or an interest founded upon an anticipated continuance of existing general laws.” In that case, the court held that application of a legislative change that occurred six days before a trial was to occur, after substantial litigation had already taken place, did not impair the vested rights of the parties, even though the new enactment repealed the provision upon which the litigation rested. “[T]he state may change or take away rights which were created by it[.]” Id. There has been no constitutional violation.

The next jurisdictional argument is that the Franklin Circuit Court had no jurisdiction over the rehabilitation petition when it was originally filed because self-insured workers’ compensation groups were not covered by the Insurance Code and that the filing of the amended petition was ineffective in endowing the court with jurisdiction. The federal courts have held that the filing of an amended complaint is the equivalent of filing a new lawsuit and those issues of subject matter jurisdiction must be resolved by examining the amended complaint. Morían v. Universal Guaranty Life Insurance Co., 298 F.3d 609, 617 (7th Cir.2002); In re Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928-29 (8th Cir. 2005). Our CR 15 is identical to its federal counterpart, Fed.R.Civ.P. 15, except for the manner in which they are numbered. Schwindel v. Meade County, 113 S.W.3d 159, 169 (Ky.2003). It is well established that Kentucky courts rely upon Federal caselaw when interpreting a Kentucky rule of procedure that is similar to its federal counterpart. See, e.g., New-some By and Through Newsome v. Lowe, 699 S.W.2d 748 (Ky.App.1985). We see no reason not to apply this reasoning to the instant case and therefore hold that the Franklin Circuit Court had jurisdiction over the rehabilitation.

Finally, Appellants claim that their due process rights were violated because neither the petition seeking rehabilitation nor a summons was served on the individual members of AIK Comp. A rehabilitation proceeding is a special statutory proceeding under the Insurance Code which provides for more flexible procedural rules and permits the court to fashion the rules in a way that the particular situation may demand. Kentucky Central Life Ins. Co. v. Stephens, 897 S.W.2d 583 (Ky.1995). As long as sufficient notice as to satisfy due process is given, all of the procedural niceties are not necessarily required. Once the Rehabilitator took over the group from the trustees, he began providing notice of all important events to the members through first-class mail, posting on the AIK Comp website, and publication through state-wide newspapers of all the hearings, rulings, and other court proceedings. If the rehabilitation was properly instituted pursuant to the Insurance Code, then the Rehabilitator’s actions once he assumed the trustees’ duties would be enough to put the members of the group on notice as to all relevant actions. Rehabilitation is not an adversarial process; it is designed to save the group from financial ruin and to protect the insured as best and as quickly as possible. The Kentucky Central case clearly provides that relaxed procedural rules are proper, and we believe that sufficient notice was given in this case.

JOINT AND SEVERAL LIABILITY

KRS 342.350(4) permitted employers to pool their liabilities to qualify as a self-insured group. The regulations that support the statute require that when a self-insured group is formed, there must be “an executed copy of the indemnity agreement by which group members jointly and severally bind themselves to pay their workers’ compensation liability.” 803 EAR 25:026, Section 3(2)(f). When AIK Comp was formed, an indemnity agreement was executed and Appellants do not deny signing an application for membership which adopts by reference the indemnity agreement entered into by the group trustees and requiring all members to be jointly and severally liable for all workers’ compensation claims raised against the group. Appellants do claim, however, that this provision is not enforceable because the agreement was breached.

The indemnity agreement provided that “[t]he Trustees are authorized and direet-ed to take all reasonable precaution to protect the members from losses and shall provide for excess insurance coverage designed to protect said members against excess losses.” Appellants claim that the trustees did not obtain adequate aggregate excess insurance to protect the group. The trustees admit that they did not have aggregate excess insurance but state that they did have specific excess insurance. Aggregate excess insurance means “an insurance policy written on a claims incurred basis which insures claims to a stated limit in excess of a specified percentage of the earned premium.” 808 KAR 25:026, Section 1(2). Specific excess insurance means “an insurance policy which insures the amount of a claim from one (1) occurrence involving one (1) or more employees or employers in the same occurrence or incident of exposure in excess of a specified dollar amount.” 803 KAR 25:026, Section 1(16).

Appellants contend that because AIK Comp did not have aggregate excess insurance, it breached its agreement with its members and therefore cannot enforce the joint and several provisions. The Rehabil-itators state that by procuring specific excess insurance, the trustees upheld their end of the agreement. The Indemnity Agreement merely states that the trustees are to procure excess insurance; it does not specify what kind. There are some statutory requirements a self-insured group must follow when it comes to excess insurance. Regulation 803 KAR 25:026, Section 7 states that a self-insurance group must acquire aggregate excess insurance unless a waiver is obtained, from the Office of Workers’ Claims. AIK Comp obtained such a waiver each year it was in existence. By obtaining the waiver for aggregate excess insurance, but still maintaining specific excess insurance, the trustees fulfilled both their statutory requirements and contractual obligations. Therefore, there was no breach of the Indemnity Agreement which would allow Appellants to rescind the joint and several provisions.

In regard to these two arguments, we find that the Appellants remain jointly and severally liable under the Indemnity Agreement. For the reasons set forth herein, the judgment of the Franklin Circuit Court is hereby affirmed.

ALL CONCUR.

      . The administrative regulation, 803 KAR 25:026, has been withdrawn pursuant to Senate Bill 86 discussed herein. This regulation is still applicable to the underlying case.

      . Kentucky Rules of Civil Procedure.

      . Federal Rules of Civil Procedure, Rule 15.