author: PALMORE, Chief Justice.

text:
    Willie Thomas RUDOLPH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 14, 1977.
    Rehearing Denied May 2, 1978.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.

      Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appel-lee.
   PALMORE, Chief Justice.

The appellant, Willie Thomas Rudolph, was tried by a jury and found guilty under all three counts of an indictment charging him with (1) trafficking in a Schedule I narcotic drug on August 4, 1976, (2) trafficking in a Schedule I narcotic drug on August 9, 1976, and (3) being a persistent felony offender by virtue of four previous felony convictions, three of which were for illegal possession of narcotics and the other for distributing heroin in violation of a federal statute. He appeals from a judgment sentencing him to 10 years in prison on Count 1, 10 years on Count 2, and 21 years on Count 3.

Though other arguments are presented, we shall confine this opinion to the points we consider needful of discussion.

By agreement of the parties the trial was not bifurcated as required by KRS 532.080(1). As an awkward result, two sets of instructions were given to the jury, one covering the principal offenses charged in Counts 1 and 2 and the other covering the persistent-offender status charged in Count 3 of the indictment.

The case is unusual in that quite apart from KRS 532.080, the persistent-offender statute, KRS 218A.990(1), under which the principal offenses were prosecuted, also prescribes an enhanced penalty for subsequent offenses, as follows:

“(1) Any person who knowingly and unlawfully traffics in or transfers a controlled substance classified in Schedules I or II which is a narcotic drug shall, for the first offense, be confined in the penitentiary for not less than 5 years nor more than 10 years or be fined not less than $5,000 nor more than $10,000, or both, and for each subsequent offense shall be confined in the penitentiary for not less than 10 years nor more than 20 years or be fined not less than $10,000 nor more than $20,000, or both.”

Similarly, the ensuing subsections of KRS 218A.990 provide enhanced punishment for less serious drug offenses that are committed subsequent to a first conviction. One of these less serious offenses is that of unlawfully possessing (vis-a-vis trafficking in) a narcotic drug classified in Schedule I or II. As to it, KRS 218A.990(5) prescribes a penalty of one to five years in prison or a fine of $3,000 to $5,000, or both, for a first offense and five to 10 years in prison or a fine of $5,000 to $10,000, or both, for a subsequent offense.

The three previous drug-possession convictions of Rudolph were for violating KRS 218.020, a section of the Uniform Narcotic Drug Act which was repealed with the enactment of KRS Chapter 218A in 1972. KRS 218.020 prohibited the manufacture, possession or sale of any narcotic drug, but KRS 218.210, the penalty section, provided a lesser punishment for possession than for the other offenses, including manufacture or sale. The penalty for possession was two to 10 years in prison (and a fine) for a first offense and five to 20 years (and fine) for a subsequent offense, whereas the corresponding penalties for manufacture or sale were five to 10 years (and fine) for a first offense and 10 to 40 years (and fine) for a subsequent offense.

The point of all this is raised by Rudolph’s contention that a prior conviction for possession cannot serve to enhance the punishment for a first conviction of trafficking, the two being different offenses. Except for one circumstance, admittedly puzzling, we might agree. That circumstance is subsection (6)(i) of KRS 218A.990, which says:

“(i) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to the substances classified as controlled substances.”

For the sake of clarity, if this paragraph (i) of KRS 218A.990, subsection (6), was intended to apply to the entire statutory section rather than to subsection (6) alone, it should have been made the subject of a separate subsection. As it happens, however, there it is, tucked away in an obscure cranny of subsection (6), which otherwise is devoted entirely to the treatment or punishment of persons found guilty of unlawfully possessing Schedule IV or V controlled substances or other controlled substances (Schedules I, II or III), excepting marijuana, that are not narcotic drugs.

Though it might be suspected that the word “section” (in the original Act, Acts of 1972, Ch. 226, § 31, it is capitalized) was intended to read “subsection,” a perusal of KRS 218A.990 as a whole, in which the word “subsection” appears several times and is accurately used, suggests that this use of “section” (or “Section”) was deliberate, and not an inadvertent aberration.

The way in which this apparent anomaly developed is revealed by the history of KRS Chapter 218A.990. The final draft of the Kentucky Penal Code included a chapter covering controlled substances offenses. See Kentucky Penal Code, Pinal Draft, November 1971, Chapter 29, “Controlled Substances Offenses.” Prior to its submission to the General Assembly in the form of a bill, however, Chapter 29 was deleted in favor of a separate bill that was drafted and enacted independently of the Penal Code. This separate legislation was Chapter 226, Acts of 1972, now KRS Chapter 218A. In the drafting of this separate bill, which we shall refer to as KRS Chapter 218A, much of the language was lifted bodily from the defunct Chapter 29 of the Penal Code draft. What is now KRS 218A.99Q(6) was taken almost entirely from Sec. 2911 of the Penal Code draft, which provided for an offense called possession of controlled substances in the second degree. KRS 218A.990(6)(i) was Sec. 2911(11) of the Penal Code draft. In the Penal Code draft the term “subsequent offense” could not have included any offense but possession of controlled substances in the second degree, because Sec. 2911 was the only section of Chapter 29 that made any provision for or reference to a subsequent offense. See Sec. 2911(9) of the draft, the substance of which was carried into KRS Chapter 218A as KRS 218A.990(6)(g).

If the story ended here, obviously we could say that KRS 218A.990(6)(i) applies only to the crime that is the subject of KRS 218A.990(6), because the “subsequent offense” mentioned in its source, Sec. 2911(11) of the Penal Code, applied only to the crime that was the subject of Penal Code Sec. 2911. But there, is more.

As KRS Chapter 218A was originally introduced, the only provision made in the entire chapter with respect to a “subsequent offense” was contained in KRS 218A.990(6), the subsection discussed in the preceding paragraph of this opinion. Subsections (1), (2), (3), (4) and (5) of KRS 218A.990 as first introduced made no mention of subsequent offenses, but were later amended to provide for them, as they now do. When these amendments were offered, considered and adopted, what is now paragraph (i) of KRS 218A.990(6) was in the bill. It said that for purposes of the “section” an offense would be considered a subsequent offense if it was preceded by a conviction for any drug-related offense. We cannot assume that in voting on the amendments the members of the legislative body understood the word “section” to mean “subsection.” It seems more reasonable to assume that if they had, they would have included with the amendments some similar definition of what was meant by the words “subsequent offense” in subsections (1), (2), (3), (4) and (5) as well.

We have no alternative here but to say that the word “section” as used in KRS 218A.990(6)(i) means what it says, which in turn means that each and all of Rudolph’s prior convictions of drug-related crimes exposed him to conviction of a higher offense under KRS 218A.990(1) than the one specified for a first offender.

The principal crimes of which Rudolph was convicted in this case, having been committed in August of 1976, occurred during the time KRS 532.080(3) was in the anomalous state described in Newton v. Commonwealth, Ky., 558 S.W.2d 167 (1977); that, is, in order to support a conviction under that statute it was necessary for the Commonwealth to prove that the defendant had been discharged from probation or parole within five years after commission of the felony for which he was last convicted. There was a failure of proof in this respect, but also a failure by Rudolph to test its sufficiency by objection to the instructions authorizing the jury to find him guilty of being a persistent felony offender. We have held consistently that insufficiency of the evidence to support a verdict must be timely raised in the trial court — ordinarily by a motion for a directed verdict or, as would have been appropriate in this instance, an objection to the instruction or instructions that are not sufficiently supported by the evidence — in order for the question to be reviewable on appeal. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974), cited by Rudolph for the proposition that a conviction without any relevant evidence on a crucial element of the offense charged is a violation of due process, does not fit this case, because, among other differences, in that proceeding the defendant had challenged the sufficiency of the evidence in the trial court. It is settled that except in the most flagrant of circumstances even constitutional rights may be waived by nonassertion. Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Futrell v. Commonwealth, Ky., 437 S.W.2d 487, 488 (1969); Newell v. Commonwealth, Ky., 549 S.W.2d 89, 91 (1977).

Before leaving the persistent-offender aspect of the case we are moved to point out the potential for abuse that inheres in the use of KRS 532.080, the persistent-offender statute, on top of the subsequent-offender enhancement provisions of KRS 218A.990. It is doubtful that this was ever intended, yet literally KRS 532.080 suggests no impediment. A first violation of KRS 218A.990(1) carries a penalty of five to 10 years’ imprisonment and thus is defined by KRS 532.020(l)(b) as a Class C felony. A subsequent violation of the same statutory subsection calls for a penalty of 10 to 20 years’ imprisonment and thus becomes a Class B felony. KRS 532.020(l)(c). For a first-degree (third felony) persistent offender, if his last offense is a Class C felony the maximum penalty is between 10 and 20 years’ imprisonment, but if his last offense is a Class B felony the maximum penalty is between 20 years and life imprisonment. KRS 532.080(6). Thus if the third felony happens to be a “subsequent offense” under KRS 218A.990(1), the punishment is doubly enhanced, once through elevation from a Class C to a Class B felony by virtue of KRS 218A.990(1) itself and then through the greater penalty invoked by KRS 532.-080(6) for a Class B felony.

For one who has proved himself to be an inveterate dopehandler, as in this particular instance, it is doubtful that any amount of enhancement in punishment would result in an injustice. Certainly, however, the relationship between the various subsections of KRS 218A.990 and KRS 532.080, the persistent-offender statute, appears to be an appropriate subject of legislative review.

Our conclusion that each of Rudolph’s previous drug-related convictions serves as a proper basis for finding him guilty of an aggravated offense under KRS 218A.990(1) reduces the significance of the way in which the proof of his federal heroin conviction was handled. We see no real prejudice in that respect. We are of the opinion also that the prosecutor’s comments characterizing Rudolph as a professional trafficker in drugs were not unreasonable. The jury could hardly have been so naive as not to realize it anyway.

The actions of the trial judge in handling the voir dire were not an abuse of his discretion.

Rudolph’s contention that his sentence should be modified to impose only one punishment, which is 21 years in prison under the persistent-offender statute, is correct, as the Commonwealth concedes. Cf. Newcomb v. Commonwealth, Ky., 531 S.W.2d 489 (1975).

The trial court is directed to modify the judgment by deleting the 10-year sentences imposed under Counts 1 and 2 of the indictment. As so modified, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Hershell Belmont MURRAY, Movant, v. Florence MURRAY et al., Respondents.
    Supreme Court of Kentucky.
    Jan. 31, 1978.

      William L. Montague, Stoll, Keenon & Park, Lexington, for movant.
    William A. Johnson, Johnson & Johnson, Stephen H. Johnson, Paintsville, for respondents.
   CLAYTON, Justice.

This appeal represents the culmination of nearly 10 years of litigation over the right of Hershell Belmont Murray, the natural but illegitimate son of the late Dr. Hershell B. Murray, to share in his father’s estate by virtue of either KRS 394.400 or 394.410, two of the so-called anti-lapse statutes.

The setting within which this controversy arose is as follows. Dr. Murray, a Morgan County physician, was killed in a boating accident on May 21, 1967. On April 22, 1968, Dr. Murray’s last will and testament was admitted to probate in the Morgan County Court. The will, dated December 26, 1944, reads in its entirety as follows:

All of my estate I devise and bequeath One-Half to Fred Murray and Lula B. Murray (Father & Mother), the other Half to Mrs. Florence B. Murray (Wife) for their own use and benefit forever, and I hereby appoint them my executors without bond, with full power to sell, mortgage, lease, or in any other way dispose of the whole or any part of my estate.

Fred Murray predeceased his son in 1955, leaving Dr. Murray as his sole surviving child. Dr. Murray was in turn survived at his death by three children — Jane Duncan Murray and Judith Ann Murray, his adopted daughters, and Hershell.

On July 26, 1968, Hershell instituted this action in the Morgan Circuit Court against Florence Murray (named individually, as administratrix, and as guardian of the two adopted children), Lula Murray, Jane, and Judith, asserting that he is entitled to participate in the distribution of Dr. Murray’s estate under the provisions of either KRS 394.400 or 394.410, which read, at the time of Dr. Murray’s death, as follows:

KRS 394.400:
If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.
KRS 394.410:
(1) When a devise is made to several as a class or as tenants in common, or as joint tenants, and one or more of the devisees die before the testator, and another or others survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devi-sor.
(2) A devise to children embraces grandchildren when there are no children, and no other construction will give effect to the devise.

After some six years of procedural sparring, the trial court eventually determined that Hershell is an illegitimate child and is thereby precluded from sharing in Dr. Murray’s estate by KRS 391.090(2), which provides that “a bastard shall inherit only from his mother and his mother’s kindred.” On February 28, 1974, judgment was entered dismissing the suit.

Hershell appealed to this court on March 26, 1976; on October 8 of that year we transferred the case to the then newly created Court of Appeals, which subsequently affirmed the judgment of the trial court in an opinion reported at 549 S.W.2d 839 (1977). We granted discretionary review on May 17, 1977, to determine the issues raised. We reverse.

The determination by the Court of Appeals that Hershell is not entitled to share in Dr. Murray’s estate was based on two grounds, the first being that KRS 391.-090(2) prohibits an illegitimate from taking under KRS 394.400 or 394.410 a devise which was originally made to his father or his father’s kindred. At the time the court rendered its opinion, this was certainly a correct interpretation of the law; for it has long been the rule in this jurisdiction that whether or not an illegitimate is eligible to take under the anti-lapse statutes does indeed depend on whether or not that illegitimate would be eligible to inherit under the laws of intestate succession. Cherry v. Mitchell, 108 Ky. 1, 55 S.W. 689 (1900). On April 26, 1977, barely two months after the Court of Appeals rendered its decision, however, the United States Supreme Court handed down Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), in which an Illinois bastardy statute similar to KRS 391.090 was struck down as violative of the Equal Protection Clause of the Fourteenth Amendment. On October 7, we followed suit and declared KRS 391.090(2) to be unconstitutional, Pendleton v. Pendleton, Ky., 560 S.W.2d 538, rev’g 531 S.W.2d 507 (1977), applying our ruling to all cases in which the issue had been raised and a final mandate had not been issued as of the date of the Trimble decision. Pendleton, 560 S.W.2d 538, as modified on rehearing (Jan. 10, 1978). Inasmuch as the specific constitutional issue had been raised in this case and it was still in litigation on April 26, 1977, it is clear that Hershell can no longer be precluded from sharing in his father’s estate solely because of his status as an illegitimate.

The second ground upon which the Court of Appeals relied in denying Hershell the right to recover under the anti-lapse statutes was that Dr. Murray made a “different disposition” of that part of his estate originally devised to Fred: not in the usual sense of naming someone to take Fred’s share in the event that Fred should predecease him, but rather in the most unusual sense of specifying that regardless of who else might be designated by statute to take Fred’s portion of the estate, he did not want Hershell to recover. The court found this intention to disinherit Hershell in Dr. Murray’s failure to name Hershell as a devi-see in his will when the will was written, apparently reasoning that if Dr. Murray did not want Hershell to take at that time, he likewise would not have wanted Hershell to take in the event that the devise to Fred became incapable of taking effect.

Respondents endorse this reasoning and point to Dr. Murray’s failure either to change his will or to legitimize Hershell upon Fred’s death as additional proof of Dr. Murray’s intention to disinherit Hershell. They argue that Dr. Murray must be presumed to have known the manner in which Kentucky law would dispose, at his own death, of that portion of his estate originally devised to Fred — including the fact that KRS 391.090(2) would prohibit Hershell from taking — and that Dr. Murray’s failure to change his will or to legitimize Hershell upon Fred’s death demonstrates his approval of such a disposition.

While we do not question the fact that a negative “different disposition” of the kind suggested above would be, if properly manifested, every bit as valid as the affirmative type ordinarily utilized, we cannot agree that the cited instances of inaction on Dr. Murray’s part qualify as such in the instant case. It is our opinion that in order to constitute a “different disposition” as that term is used in the anti-lapse statutes, the intention of the testator must be expressed in the will itself. This is clearly the case with respect to KRS 394.400, which states that the statutory distribution controls “unless a different disposition thereof is made or required by the will.” (Emphasis added.) See Nance’s Ex’rs v. Akers, 165 Ky. 461, 177 S.W. 235, 236 (1915). And although KRS 394.410 provides only that a different disposition must be made “by the devisor,” we think this clause also contemplates an expression of contrary intent in the will. Any other construction would destroy the harmony of the anti-lapse scheme as a whole by creating inconsistencies in cases like the present one.

It should be noted that even if we were.willing to consider matters outside the four corners of the will as indicative of Dr. Murray’s intent, we simply do not agree with either the Court of Appeals or respondents that the cited inactions on Dr. Murray’s part point unerringly to the conclusion that Dr. Murray intended to disinherit Her-shell in the event that the devise to Fred became incapable of taking effect. We fail to understand how Dr. Murray’s failure to name Hershell as a devisee at the time the will was written has any probative value whatsoever in determining whom Dr. Murray did or did not desire to take Fred’s share upon Fred’s death. Nor do we think it necessarily safe to assume either that Dr. Murray was aware of, or that he approved of, the anti-lapse and bastardy statutes. As stated by the United States Supreme Court, “[e]ven if one assumed that a majority of the citizens of the state preferred to discriminate against their illegitimate children, the sentiment hardly would be unanimous. With respect to any individual, the argument of knowledge and approval of the state law is sheer fiction.” Trimble, supra, 97 S.Ct. at 1467, n. 16 (emphasis added). Perhaps Dr. Murray was familiar with the law and purposely did not change his will or legitimize Hershell because he intended only for Jane and Judith to recover the devise to Fred; but perhaps he knew nothing of the law and simply did not bother to change his will or legitimize Hershell because he assumed Fred’s share would go to Lula. The plain fact is, we simply do not know.

In the absence of a “different disposition” in Dr. Murray’s will, the property originally devised to Fred must pass under KRS 394.400 or 394.410 to Fred’s “issue” or “descendants.” Hershell, as Fred’s natural grandson, and Jane and Judith, as Fred’s adoptive granddaughters, see KRS 199.520, all clearly qualify under either statute and are accordingly each entitled to one-third of the share devised to Fred, or one-twelfth of Dr. Murray’s estate.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

All concur except STEPHENSON, J., who dissents.

      . Originally an appeal from the order of the Morgan County Court admitting the will to probate, the suit was converted by Stipulation of all parties concerned into a declaratory judgment action (KRS 418.040) in March of 1972.

      . Hershell asserts, and we think properly so, that both KRS 394.400 and 394.410 are equally applicable in the case at bar. The terms “issue” and “descendants” as used in the respective statutes both refer to lineal descendants of the devisee or legatee only, and do not encompass collateral or ascending relations. Compare Schmidt v. Halpin, Ky., 351 S.W.2d 57 (1961), with Holloway v. Brown, 181 Ky. 716, 205 S.W. 925 (1918).

      .The words “or as joint tenants” have since been deleted from subsection (1), and a new subsection (3) has since been added, by amendment effective March 25, 1972. See Ky.Acts, . 1972, Ch. 168, § 14, p. 711.

      . See also KRS 394.500 (1976 Supp.), which provides that “[u]nless a contrary intention appears from the will, real or personal estate, comprised in a devise or bequest incapable of taking effect, shall be included in the residuary devise contained in the will.” (Emphasis added.)


author: STERNBERG, Justice.

text:
    Edward L. TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 14, 1978.
    Rehearing Denied May 2, 1978.

      Jack E. Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

On this appeal the appellant challenges the judgment of the Fayette Circuit Court finding him guilty of the strangulation death of Barbara Byrd (KRS 507.020) and fixing his penalty at 30 years’ imprisonment. Barbara’s frozen body was found on Race Street, near 3rd Street, in Lexington, Kentucky, on January 1,1977, wrapped in a greenish bedspread. She had been strangled with an electric cord wrapped several times around her neck. The appellant cites four grounds for reversal.

First, the appellant argues that he was entitled to a directed verdict of acquittal. During a two-day trial 27 witnesses testified, 22 being called by the Commonwealth and 5 by the appellant. The scenario of this case is comparable to one of our current murder-mystery novels.

Six or eight months prior to her death Barbara, who usually made her home in Lexington with her mother, and the appellant lived together as common-law husband and wife in a tenant house located in an isolated section of Jessamine County, Kentucky. During this same period of time the appellant was married to, but not living with, Anna May Taylor, who lived in Fay-ette County. On or about December 10, 1976, the appellant drove his concubine, who was a retarded 20-year-old female, to her mother’s house in Lexington, where he gave her $25 to have her hair fixed. He then returned to Jessamine County. Between the time the appellant took Barbara home and Christmas, he made many telephone calls and personal visits to her home in Lexington in an unsuccessful endeavor to get her to return with him to Jessamine County. On December 13, the appellant was seen alone drinking beer and dancing at Tommy’s Place in Versailles. On December 17, he and Barbara were seen together at the Cozy Corner restaurant in Nicholas-ville between the hours of 7:30 p.m. and 8:00 p.m., and on the same night the two of them were seen together at the Spiderweb Lounge in Lexington. Also, on December 23, they were seen together at the Cozy Corner.

The greenish bedspread in which Barbara’s body was wrapped was identified as being similar to one the appellant had in his home. The electric cord used to strangle Barbara was identified as being similar to other electric cords taken from the appellant’s home.

The appellant denied that he had been with Barbara at the Cozy Corner restaurant, or that he and Barbara had been at the Spiderweb Lounge, or that the greenish bedspread was his or came from his home, or that the electric cord used to strangle Barbara was his or came from his home. The appellant testified that he had been at Barbara’s home in Lexington on December 17. However, he was confronted with a written statement which he made on January 1,1977, in which he said to the contrary. On direct examination the appellant testified that he had never harmed Barbara in any way. The testimony of Officer Jim Sparks rebuts this statement.

This court, in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), said:

“If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. * * *”

There was ample evidence of sufficient probative value to justify the submission of this case to the jury and to support its verdict.

Next, the appellant contends that after he had concluded his case the trial judge erred in permitting the Commonwealth to introduce a statement alleged to have been made by the appellant. The record does not disclose what statements were to be furnished to appellant. The statement was in rebuttal to direct evidence given by the appellant, and the trial judge so held: It was in no way direct testimony. On direct examination the appellant testified that he had never harmed Barbara in any way. The testimony of Officer Sparks quotes the appellant as saying to him that on one occasion he caught Barbara with two boys, and that he chased the boys, slapped Barbara and choked her into unconsciousness, but stopped short of killing her.

Under these facts, we cannot characterize the action of the trial judge as being an abuse of discretion.

The appellant further maintains that it was improper for the trial judge to permit a photograph of the victim which allegedly was duplicative, gruesome and inflammatory. The death of Barbara was brought about by strangulation by the use of an electric-wire extension cord. Commonwealth exhibits # 6 and # 10 each delineate the victim with a white cord of some kind about her neck. However, it is only exhibit # 10 that clearly and explicitly shows the cord to be a white electric extension cord.

In Woods v. Commonwealth, Ky., 305 S.W.2d 935 (1957), we said:

“ * * * The control of the amount of evidence produced on a particular point would seem to continue as a matter within the inherent power of the court. An abuse of discretion in this respect if shown to be prejudicial should be reviewable. * * *”

The trial judge did not, nor does this court, consider the photograph as being du-plicative. As to the photograph’s being gruesome and inflammatory, in Brown v. Commonwealth, Ky., 558 S.W.2d 599 (1977), we said that in this jurisdiction all photographs of the scene of the crime are admissible, no matter how heinous the crime, to the extent that the photograph that is otherwise admissible does not become inadmissible simply because it is gruesome and the crime heinous. This, we reaffirmed in Sharp v. Commonwealth, Ky., 559 S.W.2d 727 (1977). The trial court did not err in admitting exhibit # 10.

Lastly, it is argued that the Commonwealth’s Attorney committed errors of such proportions that the appellant was substantially prejudiced thereby. First, the Commonwealth’s Attorney is criticized for his comparison of the death cord to similar electric extension cords found in the appellant’s home. This was nothing more or less than a comparison of the similarity of the two extension cords, each of which was properly admitted into evidence, accompanied by the request by the Commonwealth’s Attorney for the jurors to consider the similarity. This comparison on the part of the Commonwealth’s Attorney and his request to the jury to make a similar comparison were not improper.

Secondly, the Commonwealth’s Attorney is charged with telling the jury that it could find the appellant guilty even though the offense was committed in Jessamine County. The trial judge instructed the jury properly. The appellant could be found guilty only if the offense was committed in Fayette County. The portion of the concluding argument of the Commonwealth’s Attorney, to which the appellant refers, is more beneficial than detrimental to the appellant. The argument presents a word picture of facilities at appellant’s home in Jessamine County which were conducive to the commission of such a crime. If the jury had believed this argument, it would have, under the instructions of the court, had no choice but to find the appellant not guilty. At the conclusion of all of the argument of the Commonwealth’s Attorney, counsel for appellant requested that an oral instruction be given to the jury to the effect that if it believes that the crime was committed in the cabin in Jessamine County it would find the appellant not guilty of the commission of the crime in Fayette County. That instruction was rightly refused. It was for the jury to decide whether the crime was committed in Fayette County where the body was found or at some other place. An instruction negating the requirement for a finding that the offense had been committed in Fayette County was not necessary.

The trial court did not err either in admitting the argument of the Commonwealth’s Attorney with reference to the electric extension cords or in refusing to give an oral instruction negating the requirement that the offense must have been committed in Fayette County.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. William A. LaBACH, Respondent.
    Supreme Court of Kentucky.
    March 14, 1978.

      Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    William A. LaBach, pro se.
   PER CURIAM.

This disciplinary action has arrived here on a recommendation by the bar association’s Board of Governors that LaBach be permanently disbarred.

The proceedings against LaBach began on June 8, 1976, with the filing by the bar association of a charge alleging three counts of unethical and unprofessional conduct, each of which revolves around an ongoing dispute between LaBach and another Lexington attorney, David C. Graves. On November 5, 1976, a three-man trial committee considered the charge in a hearing in which LaBach actively participated. The trial committee determined that there was insufficient evidence to support the second count, but sustained the other two counts and recommended that LaBach be publicly reprimanded and suspended from the practice of law for three months. On November 17, 1976, the Board of Governors unanimously found LaBach guilty, apparently of all three counts, with a majority of ten board members recommending total disbarment. Other recommended punishments were one member for a three-year suspension and three members for a one-year suspension.

The charges against LaBach, and our conclusions with respect to each, are as follows:

Count 1 alleges that LaBach removed from Graves’ office work product belonging to Graves without his permission. In mid-October of 1975 — just a few weeks after LaBach’s graduation from law school and while he was still awaiting the results of the summer bar examination — Graves hired LaBach as a law clerk under an agreement whereby LaBach was to receive ten percent of any attorney’s fees accepted by Graves in cases on which LaBach had worked. During the next two months, LaBach assisted Graves in several cases, doing research, writing memoranda, and even drafting some motions and pleadings. According to LaBach, some of those cases were settled during this period, generating attorney’s fees his portion of which totaled a little over $1,000. All he ever received from Graves, however, was $50.

On October 16, 1975, LaBach became a full-fledged attorney and was admitted to practice in Kentucky. Two days later, following an incident in which Graves lambasted LaBach for counseling one of Graves’ clients in his absence, LaBach cleaned out his desk and left Graves’ office, taking with him some research material which had not yet been incorporated into Graves’ client files. Shortly thereafter, Graves received a letter from LaBach stating that “when and if I am tendered the legal fees owed ... I will be willing to cooperate in furnishing work product for research done prior to my departure from your office.”

Insofar as the merits of this charge are concerned, we must confess that we are somewhat surprised it was ever instituted in the first place. The bar association’s entire case with respect to this matter was founded solely upon LaBach’s letter to Graves plus some rather vague testimony regarding a shortness in Graves’ supply of photocopying paper of some 1,000 sheets. Graves himself admitted that he had no idea “what he took or how much he took.” Had it not been for LaBach’s own testimony, given after the bar association had closed its case, that he removed from his desk photocopies of eight or ten appellate decisions in which Graves had apparently shown no interest, it is doubtful that the bar association would have been able to sustain its burden of proof on the charge. As it is, it is our considered opinion that the facts involved are not such as warrant disciplinary action. While we certainly do not intend to deter the bar association from the continuance of — indeed commend it for — its constant vigil to maintain a high level of competence and integrity throughout the legal profession, neither are we in the business of settling private disputes between attorneys.

Count 2 asserts that LaBach pirated clients away from Graves and is based on the fact that soon after LaBach vacated Graves’ office, three of Graves’ clients discharged him as counsel and eventually hired LaBach to replace him. Because we agree with the trial committee that there was not enough evidence to support this allegation, we similarly hold that it does not justify disciplinary action. The record clearly reveals that all three clients dismissed Graves not as a result of any solicitation on LaBach’s part, but rather simply because they were dissatisfied with the manner in which Graves had represented them.

Count 3 is that LaBach made several false and improper statements about Graves in a motion filed with a public agency. Among the clients who discharged Graves in favor of LaBach was one Bobbie Hampton, who at the time she did so had a claim pending before the Workmen’s Compensation Board. Upon being notified of his dismissal from the case, Graves promptly filed a motion with the board asking that the defendant, Standard Products Company, be ordered to pay Graves the maximum allowable attorney’s fee of $6,500 for work performed by him up to that point. La-Bach responded to Graves’ motion, purportedly at the insistence of Miss Hampton, with a sworn “Response to Motions Concerning Attorney’s Fees,” in which he stated, among other things, that: (1) Graves had not negotiated a lump-sum settlement for Miss Hampton in the workmen’s compensation case as alleged by Graves in his motion for attorney’s fees; (2) Graves had not entered into a contract with Miss Hampton with respect to her workmen’s compensation claim; (3) Graves was not entitled to be paid for the taking of two of the depositions filed in the workmen’s compensation case, since they were in fact taken by another attorney; (4) Graves was not entitled to be paid for the taking of various other depositions which, although they were used in the workmen’s compensation case, were actually taken for use in, and dealt primarily with the issues in, a related civil action against Standard Products Company; (5) it was LaBach’s belief that in any event these latter depositions had never been properly filed with the Workmen’s Compensation Board; (6) Graves had attempted to sell copies of these latter depositions to another Lexington attorney; (7) Graves was not entitled to be paid for the taking of 22 affidavits which were actually taken for use in yet another related ease — a class action suit against Standard Products Company in which Graves did no work other than taking the affidavits — since Graves had already been paid for this work by the clients in the class action suit; (8) it was LaBach’s belief that in any event those affidavits had never been filed with the Workmen’s Compensation Board; (9) in August of 1974, Graves had withdrawn from the class action suit without notice to his clients; and (10) as a result of his withdrawal from the class action suit, a “complaint” had been filed against Graves in October of 1974 for defrauding and misrepresenting his clients. LaBach concluded the response by stating that Graves was at most entitled to only $500 for the work he had performed. The response was subsequently stricken from the record by the board as being inappropriate.

It is contended by the bar association that the inclusion by LaBach of the first nine of these statements in his response constituted a violation of the code of professional responsibility in force in this jurisdiction, see RAP 3.130 (now SCR 3.130), for the simple reason that all nine are completely false. We disagree. To begin with, we are not at all convinced after reading the record that statements (1), (4), (5), (7), (8) and (9) are necessarily incorrect, the evidence showing some to be clearly true and being inconclusive as to the others. And while statements (2), (3) and (6) are plainly false, we are similarly not convinced that LaBach knew them to be so at the time he filed his response, as required by Disciplinary Rule 7-102(A)(4). See also Ethical Consideration 7-26, Code of Professional Responsibility.

We do agree, however, that the tenth statement in LaBach’s response was improper. For although we do not believe that this statement violated the requirements of RAP 3.150 (now SCR 3.150), which is designed to prevent disclosure of disciplinary matters by the parties to a disciplinary action, inasmuch as it was in no way relevant to the issue of whether Graves was entitled to attorney’s fees in the workmen’s compensation case, we do think that the insertion of this statement in the response constituted a direct violation of DR 7-102(A)(1), which provides that:

In his representation of a client, a lawyer shall not . . . file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

See also EC 7-10 and EC 7-37. For this reason, it is our opinion that LaBach should be, and he is, sternly reprimanded and ordered to pay the costs of this action.

All concur.

      . DR 7-102(A)(4) provides that “In his representation of a client a lawyer shall not . knowingly use perjured testimony or false evidence.”


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF REVENUE, Appellant, v. KUHLMAN CORPORATION and Kentucky Board of Tax Appeals, Appellees.
    Supreme Court of Kentucky.
    March 14, 1978.
    Rehearing Denied May 2, 1978.

      William S. Riley, Asst. Atty. Gen., The Kentucky Dept, of Revenue, Frankfort, Glenn McDonald, Louisville, for appellant.
    Edward M. Steutermann, Wood, Goldberg, Pedley & Stansbury, Louisville, for appellees.
   PER CURIAM.

Kuhlman Corporation was engaged in the manufacturing of transformers. The issue is whether a computer utilized by Kuhlman was “machinery for new and expanded industry,” as provided by KRS 139.480, and therefore exempt from sales tax. The trial court upheld the Kentucky Board of Tax Appeals’ decision that the computer met the requirements of the statute and was exempt from sales tax. We reverse.

KRS 139.170 provides that “ ‘Machinery for new and expanded industry’ shall mean that machinery used directly in the manufacturing process . . . ” Portions of testimony given by George Clark and Robert Heister, controller and processing manager, respectively, of Kuhlman were as follows:

“Q. And now, the system you said was designed to receive feedback from the manufacturing facility, how would this be done?
A. In the form of cards. The laborer, each laborer is required to write on his labor ticket as he works the specific shop order he is working on, the work center he is working in, and the operation he is performing. He reports that on the cards and feeds that back to the computer. That tells me where at any time where this item is and the stage of production.” * * * * * *
“Q. Are these the labor tickets you were talking about?
A. No sir, these are material cards, punch cards.
Q. The system is designed to receive feedback cards. What do they tell you?
A. That card has pre-punched information in it as well as hand written information. The card is furnished by our department with a shop order, part number, quantity, start date and due date for a particular component completion. That information is pre-punched and printed on the card for this shop. Upon completion of that component, the particular individual writes the number completed and whether it is complete or partial, returns it to us and that transaction becomes data to release material.”
* * * * * *
“Q. Now, you mentioned paragraph 5 of your summary, that completion of component parts is recorded on feedback cards.
A. That’s correct.”
* * ⅜ ⅜ * ⅛
“Q. Now, does he fill this labor ticket out as he finishes the job in question?
A. Yes.
Q. What does he do with that labor ticket?
A. At the end of the day he turns this labor ticket in for our hourly report.
Q. So it goes back to your area for—
A. Data processing, yes.
Q. So, is this information ultimately fed into the computer?
A. Yes, it is.”
******
“Q. Let me ask you in summary, what output is the computer designed to have with instructions to manufacturers?
A. Overall it would be the facilitating the production cycles to the extent of providing information to each department within the plant on a timely and accurate basis upon which the operators and men in the shop can perform their particular jobs.”
‡ ⅜ sf: ⅜ ⅜ ‡
“Q. So there is no real direct contact between the processing area and the data processing area, directly?
A. You mean from the standpoint of personally going into the room?
Q. No, in other words, the computer is not connected by wires to certain manufacturing equipment?
A. No.
Q. In other words, the computer doesn’t feed information to manufacturing component and it is manufactured. There has to be a laborer there, doesn’t there?
A. That is correct. It is not impossible to do that.”
* * * * * *
“Q. Where is it situated in the plant.
A. It is sitting in the office adjacent to the plant.
Q. It is not in the manufacturing area per se?
A. No.”

The main function of the computer as we see it was to receive data placed on pre-punched cards by the workmen, process the data and release information and instructions designed to assist the plant personnel in performing their duties. It remained in the office with no wires connecting it with the production machinery, and it did not participate in the physical production of the transformers. No doubt it expedited the means of production but it was not “ . . . machinery used directly in the manufacturing process, . . ” In arriving at this conclusion we adhere to KRS 446.080(4) which provides in part, “All words and phrases shall be construed according to the common and approved usage of language, . . . ”

The judgment is reversed and the case is remanded with directions that the board hold that the computer was not machinery used directly in the manufacturing process.

All concur.


author: HOWERTON, Judge.

text:
    DRAVO CORPORATION, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS and Charles Pryor, Jr., Kentucky Commissioner of Highways, Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1977.
    Discretionary Review Denied April 25, 1978.

      James G. Apple, Stites, McElwain & Fowler, Louisville, for appellant.
    Dandridge F. Walton, Robert C. Fields, Dept, of Transportation, Frankfort, for ap-pellees.
    Before HOWERTON, GANT and WHITE, JJ.
   HOWERTON, Judge.

This appeal arises from a suit by appellant Dravo Corporation, a bridge construction company, against the Commonwealth of Kentucky which resulted in a judgment dismissing the plaintiff’s complaint after a lengthy trial by the court and extensive findings of fact and conclusions of law. On this appeal, Dravo Corporation cites numerous errors in those findings and conclusions.

The Department of Highways of the Commonwealth of Kentucky entered into a contract with Dravo Corporation in August 1970, for the construction of the substructure and approaches for the 1-24 Interstate bridges across the Tennessee River in Marshall and Livingston Counties, near Padu-cah, Kentucky. The total estimated cost of the contract, based upon unit prices, was six million, two hundred twenty three thousand, four hundred ninety eight dollars and fifty six cents ($6,223,498.56). During the construction, five change orders were approved totalling $296,539.51. This increase, along with unit price payments paid on piles actually furnished and driven, brought the total construction cost to $6,520,038.07. This amount, in large part, reflected the cost of “furnishing” and “driving” piles to support the approach abutments on each end of the bridges, and the intermediate “ land and river piers.

After requesting compensation for extra work and exhausting subsequent administrative remedies, Dravo Corporation brought suit in October 1972, pursuant to the provisions of the contract claim statute, KRS 44.310 (subsequently amended).

Dravo’s complaint alleged damages as a result of changes in the contract drawings, plans, requirements and specifications relating to bearing pilework for the substructure after work had begun on the project. Further, it was alleged that Dravo encountered conditions in the rock and subsurface conditions at the project site which were different from the representations and drawings promulgated by the Highway Department and which constituted changed conditions resulting in additional expenses and extra work for which the contractor was entitled to compensation. The Highway Department admitted that it had changed the design in the contract drawings, but denied that the changes constituted changes in the contract requirement for which Dravo would be entitled to compensation beyond the unit prices paid for the work under the terms of the contract. Appellees additionally argued that the cost of the performance after the changes and alterations in the plans did not exceed the cost of the performance prior to such changes. Finally, the appellee argued that the character of the work had not been changed, and denied that subsurface conditions were different from those shown on the design drawings.

After preliminary hearings, motions, and discovery, a trial before the court was held in December 1973, lasting over a period of two weeks. The testimony of each party consisted entirely of engineering witnesses. A transcript of over 800 pages in eight volumes was compiled. Over 60 exhibits were introduced either jointly or by one of the parties. From this mass of information, the trial court entered a judgment dismissing appellant’s complaint, based upon 31 separate findings of fact and 30 conclusions of law.

The briefs on this appeal are extensive and exhaustive. In the main, the argument of the appellant is that the trial court made several errors in its findings of fact and had these errors not been made, the conclusions of the trial court would have been counter to the conclusions and judgment rendered. The appellant argues that the trial court erred in concluding 1) that the subsurface conditions in the area of construction were not materially different from the representations of the substructure condition on the design plans and drawings for the bridge project, 2) that there were no misrepresentations on the design plans concerning the subsurface conditions and bearing pilework, 3) that there was no withholding of material information to the plaintiff and other prospective bidders concerning the subsurface conditions, and 4) that the change by the Department of Highways in the design of the substructure, after construction commenced, did not result in extra work for the appellant, and did not change the character of the work required of the contractor. It is argued that findings contra to these would have necessitated the awarding of damages to Dravo Corporation.

We affirm the decision of the circuit court. It is our conclusion that the judge correctly followed the law of this commonwealth, based upon his findings of fact. Of course, as to the findings of fact, we are controlled by CR 52.01 which states in part — “Findings of fact shall not be set aside unless dearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” (Emphasis ours) On reviewing the great wealth of argument and evidence in this case, we cannot say that any of the findings of the trial court are manifestly against the weight of the evidence. While neither the parties nor the court had benefit of the opinion during the trial of this case, we believe that the judgment reached is in conformity with a recent opinion of this court. See Codell Construction Company v. Commonwealth of Kentucky, Ky.App., 566 S.W.2d 161 (1977).

It was stated by this court in Codell, supra, that:

Generally, government agencies can provide bidders with estimates and other related information without incurring a risk of liability as to the accuracy of such information and estimates, only so long as their intent to do so is made clear by an express and unqualified disclaimer as to the accuracy of the information.

The plan sheets, numbers 28 and 29, provided boring logs with related boring data, together with an “estimated pile tip” elevation. On the second of these sheets, a disclaimer was given, stating “These data are furnished for information only, and may or may not represent the actual conditions which will be found when work is executed.” The court buttressed its understanding of this disclaimer with additional facts concerning the entire concept of “test piles”. The court determined that the entire concept of running test piles was to determine the length of piles required in the construction. Section 11 of the special notes in the contract proposal even provided that if the test results indicated the structure foundation required re-design to achieve safety standards, no claim would be made against the Department for costs or construction delays required by the redesign.

Upon driving the first test pile, it was found that the pile would not act as a friction-type pile to achieve the required 80-ton minimum bearing capacity. The pile was thereafter driven deeper until the desired bearing capacity was met and subsequently, the pile was driven even deeper until it met “refusal” or founded on solid rock.

The trial court concluded that there was no material misrepresentation to the plaintiffs in the plans or specifications, nor was there a withholding of any material or significant information from prospective bidders. The court held that the representations were intended to be “suggestive” of construction conditions, but that they were not to have been relied upon with exactness. The representations, especially in light of the disclaimer, could not be taken as positive representations. See Christie v. United States, 237 U.S. 234, 35 S.Ct. 565, 59 L.Ed. 933 (1915).

We believe that the soundness and logic of the circuit court’s thinking is particularly well represented in one of its conclusions of law:

18. The Court concludes no “positive” representations were made on the boring logs in face of the numerous other provisions of the contract which strongly “suggest” that the subsurface conditions would be “erratic” when the pile driving began. Secondly, the plaintiff’s alleged reliance upon the alleged “positive” representations cited above cannot be justified. The plans and specifications themselves alert prospective bidders that test pile lengths would vary somewhat due to “erratic” conditions of the subsurface and plaintiff should not have relied, with exactitude, upon such lengths in making his bid. Uncertainty flows even from the word designation, “test” piles. Other designations on the boring logs strongly suggest that it can be expected that the lengths of piles required would vary. These designations appear repeatedly on each of the 17 boring logs at pages 28 and 29 of the contract plans. Such designations were “estimated pile tip” elevations. The word “estimated” itself implies an opinion or judgment which is not conclusive until tested. Section 1.5.5 of the contract specifications provides: these specifications, the supplementary documents . . . are intended to be complementary and to describe and provide for a complete work. . . . Section 402.3.6H Test Piles. The contractor shall drive test piles of a length and at the location described on plans or determined by the Engineer. These piles shall be of greater length than the length assumed in the design in order to provide for any variation in soil conditions. (Emphasis added by trial court.)

As to the boring logs which were indicative of the subsoil in this area, the evidence was conflicting as to whether or not they were sufficient to alert a prospective bidder that subsurface conditions at the project site would be erratic. The trial court was apparently impressed by the testimony of appellee’s witness, Lennertz. On the basis of his testimony, the trial court reasonably found that by plotting the number of “blow counts” required to penetrate the soil testing device a unit distance into the subsurface on a vertical and horizontal graph sheet, one could easily determine the “erratic” nature of the various layers of subsurface strata. The court found that even one of appellant’s own witnesses agreed that such a graph would reveal erratic conditions.

When there is no express provision to the contrary, a contractor is assumed to have considered the risk of unforeseen events occurring during the course of his work. See Codell, supra, citing O’Neill Construction Company v. City of Philadelphia, 335 Pa. 359, 6 A.2d 525 (1939). Certainly that would be true here based upon the information provided in the contract as quoted above, especially in light of the specific disclaimer as to positive representations of the subsurface strata. As was held in Codell, supra:

In a situation where the information and representations are intended to be suggestive of construction conditions, or the contract provides that they are to be taken as estimates only, then the governmental agency is not to be held accountable for variances which may be encountered on the job when there is no deliberate misrepresentation or fraud involved. (See the numerous out-of-state citations therein cited.)

We do not think this burden on the contractor is too great. It would seem that in contracts of this size, and there is no evidence to the contrary, that the bidding contractors are indeed experts in the type of construction required. The contractors are not compelled to bid on the project. If it is the contractor’s opinion that he does not have sufficient time to make needed investigations, he should ask for more time or simply refuse to bid. There is no claim in this case that the actual boring log made available to the bidders was in error, much less that the appellees provided it knowing it to be erroneous. We find fraudulent misrepresentation to be the key to numerous decisions cited by the appellant.

Appellant’s major argument concerning the withholding of material evidence focuses upon information and knowledge which may have been- possessed by former U. S. government employees in their work on the construction of Kentucky Dam on the Tennessee River, approximately one mile from the site of the bridge construction. The evidence was conflicting as to whether or not information gathered for purposes of the dam would have been helpful in the construction of the bridge. The court found that little proof was introduced specifying the nature of this supposedly withheld information. Based upon the evidence given to the court, we do not think it was incorrect to determine that the information would have been of little use. Additionally, we agree that the Department of Highways would be put in an untenable position if a duty was imposed upon it to check with each of its employees to determine if there is possibly related information to a proposed bid.

Two bid items of work relating to this case were the furnishing and driving of 14BP 73 steel piles. The estimated quantities established in the contract for these items of work were 89,354 lineal feet of furnishing and a like quantity of driving. Final quantities were 111,641 lineal feet of furnished piles, with 98,966 lineal feet being driven. A unit price was established in the contract for the piles. Six dollars and fifty cents ($6.50) per lineal foot of piling furnished, and $6.50 per lineal foot for piling subsequently driven and accepted in place was paid. Additionally, a unit price was established for each splice ordered by the Department engineers to lengthen a pile so that it might be driven to the required penetration. After the initial test piles were driven, the Department of Highways and the Federal Highway Administration met and it was determined that the original design of the bridge would be modified. The re-design required the deleting of some piles, the use of steel reinforcing on the pier footers at certain locations where piles had been deleted, and the subsequent installation of “add-back piles”, piles placed near other piles which were determined short of their required bearing capacity. Dravo was compensated at the contract unit price for furnishing and driving the add-back piles. The contract provided, as the court determined, that the Department of Highways had a right to alter the plans or change the details of the work as it did. It appears that the contractor was compensated through the unit price provision for additional work not initially anticipated. It would appear that it was for such a situation that the unit price provision was initially written. The contract document stated “In consideration whereof, the Department agrees to pay the party of the second part for all services actually performed in accordance with the unit price set forth in the bid proposal. . . . ”

The court carefully considered appellant’s attempt to establish damages. The court was unconvinced that there were damages resulting from the delay in the work. The plaintiff used what was termed “the critical path method” in attempting to show its damages. The court concluded that the method itself was susceptible to producing many different and inconsistent results which were insufficiently conclusive to meet the legal burden of proof for damages. Such a determination was clearly within the evidence presented to the court.

The sum and substance of the trial court’s holding with which we agree is that the appellant assumed certain risks as to unforeseen conditions in the subsoil strata at the bridge construction site, encompassing the risk that the Commonwealth would be required to make changes in the construction specifications. Such a situation was anticipated by the contract between the parties, and extra work that was required of the contractor was compensated under the unit price provisions of the contract.

The judgment of the trial court is affirmed.

All concur.


author: REYNOLDS, Judge.

text:
    Robert Lee BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.
    Discretionary Review Denied April 25,1978.

      Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., George M. Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before WILHOIT, HOWARD and REYNOLDS, JJ.
   REYNOLDS, Judge.

This is an appeal from an order revoking a suspended sentence entered by the Jefferson Circuit Court.

In 1974 the Jefferson County Grand Jury returned two indictments, Numbers 151391 and 151687, charging Robert Lee Brown, appellant, with two separate crimes of armed robbery. On June 10, 1974 appellant entered a plea of guilty to both charges. Sentencing was passed on the motion for probation until July 25,1974 when the court entered an order sentencing appellant to five years imprisonment as to Indictment Number 151391. The court also entered an order withholding rendition of judgment on Indictment Number 151687 for a period of five years after his release from the sentence to be served on Indictment Number 151391.

Appellant escaped from custody, committed another crime for which he was charged and convicted under Indictment Number 156219. On February 7, 1977 the Commonwealth Attorney filed a motion, and served it on appellant’s counsel, to revoke the prior suspended sentence. At a hearing held on March 3, 1977 counsel for appellant objected to the revocation because appellant had not yet begun serving his probationary period. At the conclusion of the hearing the court entered an order revoking the suspended sentence that appellant had received under Indictment Number 151687.

Appellant maintains that the action of the court in revoking a suspended sentence before the commencement of its stated term was in excess of the court’s jurisdiction and that appellant was thereby deprived of his constitutional protection against ex post facto laws and his right to due process of law. We do not agree.

At the time the court entered the order awarding appellant probation on Indictment Number 151687, K.R.S. 439.260 provided that the court “may postpone the entering of a judgment and the imposing of sentence and place the defendant on probation . . .” K.R.S. 439.270 provided that the period of probation fixed by the court “shall not exceed five years . Appellant cites Curtsinger v. Commonwealth, Ky., 549 S.W.2d 515 (1977) to support his contention that the order of the court had the effect of extending the probationary period beyond the five year maximum. Curtsinger, Id., does not apply. There the court tried to extend the probationary period beyond the statutory maximum. The court did not have jurisdiction to revoke probation once it was completed. Here, the court placed appellant on probation for five years but the probationary period was not to begin until he completed serving a five year sentence received on another conviction of armed robbery.

Appellant relies upon K.R.S. 439.300 and asserts that only “during probation” can revocation of probation properly occur. The United States Court of Appeals was confronted with a similar argument in United States v. Ross, 503 F.2d 940, 943 (5th Cir. 1974). Therein it was asserted that since Title 18, U.S.C. § 3653 provides for termination, alteration, or suspension of probation for a violation occurring “at any time within the probationary period” that revocation of probation before the time the probation actually begins is an abuse of discretion. The court found this contention groundless and that it had only superficial, if semantic, appeal. The opinion went on to state that:

[t]he appellant would have us read this provision as exclusive; only if an individual is “on probation” may probation be revoked. Otherwise, he asserts, there are no conditions of probation which a potential probationer could violate and hence he would have no notice as to a course of conduct by which he could avoid revocation.
Aside from the fact that Section 3653 is not by its terms exclusive, case law and sound policy reject Ross’s contentions.
Sound policy requires that courts should be able to revoke probation for a defendant’s offense committed before the sentence commences; an immediate return to criminal activity is more reprehensive than one which occurs at a later date.

Davis v. Parker, 293 F.Supp. 1388 (D.Del. 1968) states that:

[probation may be revoked for cause if a court is satisfied after a hearing that a defendant’s conduct has been such that the ends of justice and the interest of society and the defendant will be served by revocation. It is not a prerequisite to such a revocation that the conditions of probation be actually operative at the time .

The 6th Circuit has referred to both Ross, supra, and Davis, supra, in Tiitsman v. Black, 536 F.2d 678 (6th Cir. 1976), where it was stated that the “courts have often sustained the revocation of probation for criminal activity committed prior to defendant’s going on probation even though the defendant, not yet being on probation, could not technically violate a condition of probation.” In this case we find the revocation of probation was proper.

Appellant’s contention that revocation amounted to an ex post facto law as it “increased the consequences of escape retrospectively” is also without merit. The appellant was on notice that commission of any crimes would be a violation of probation conditions. The revocation did not amount to a sentence imposed for the crime of escape or the conviction of armed robbery committed prior to the commencement of the probationary period, but rather was an imposition of the sentence which appellant had already received for conviction of another crime. Probation is recognized as a privilege rather than a right. It is entirely within the trial court’s discretion whether a defendant is given his liberty conditionally. Ridley v. Commonwealth, Ky., 287 S.W.2d 156 (1956). Since the revocation of probation did not increase the sentence on any of appellant’s convictions and only imposed a sentence which he had previously received, there was no violation of the prohibition of ex post facto law. Calder v. Bull, 3 Dallas 386, 1 L.Ed. 648 (1798). Unlike Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), cited by appellant, there was no attempt to enlarge a criminal statute retroactively in this case.

Appellant relies upon Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973) to support his contention that the revocation changed the term of probation without prior notice and therefore he was deprived of due process of law. We do not agree since appellant was on notice that the commission of an additional crime was in violation of the conditions for probation, and it can in no way be said that he was denied due process of law. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

The order of the Jefferson Circuit Court revoking appellant’s probation is affirmed.

All concur.


author: PARK, Judge.

text:
    Robert Lee BROWN and Kenneth Lloyd Hill, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.

      Terrence R. Fitzgerald, Deputy Public Defender, Commonwealth of Kentucky, Louisville, for appellants.
    Robert F. Stephens, Atty. Gen., Commonwealth of Kentucky, Mark F. Armstrong, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellee.
    Before COOPER, HOWARD and PARK, Judges.
   PARK, Judge.

The appellants, Robert Lee Brown and Kenneth Lloyd Hill, were both convicted by a jury of robbery in the first degree (KRS 515.020), and each received a sentence of ten years imprisonment. Their appeal is based principally upon the trial court’s failure to grant an evidentiary hearing on their motion to suppress evidence of eyewitness identification and evidence of incriminating statements made following their arrest. The Commonwealth concedes that the trial court’s failure to conduct an evidentiary hearing on the suppression motions constituted error. The crucial questions on appeal are: (1) whether the judgments of convictions must be reversed, rather than remanded to the trial court with directions to conduct an evidentiary hearing on the issues raised by the suppression motions; and (2) what procedures should be followed on reversal or remand.

FACTUAL BACKGROUND

On the evening of November 17, 1975, two young black men robbed the McDonald’s Restaurant on Dixie Highway in southern Jefferson County. One of the men threatened an employee, Rosalie Franklin, with a pistol. After clearing out the cash register, the two men fled on foot across an open field toward an apartment complex. As the two robbers fled from the restaurant, they were observed by five girls who were seated in an automobile parked in the McDonald’s parking lot. Suspecting that there had been a robbery, the girls drove toward the apartment complex. As the girls were entering the apartment complex, they saw the two young black men in an automobile leaving the apartment complex. The girls turned around and followed the automobile several miles to the Leslie Motel. The girls then telephoned the police, giving them the license number and description of the automobile which was parked at the Leslie Motel.

Approximately twenty minutes after the robbery, the police arrived at the Leslie Motel. Brown and Hill were arrested in a room at the Leslie Motel opposite the automobile followed by the girls.

PHOTOGRAPH IDENTIFICATION ISSUE

On October 1, 1976, two of the girls who had followed the automobile to the Leslie Motel were interviewed in the office of the Commonwealth’s Attorney. The two girls, Sherry Lineberry and Susan Scott, were both shown a group of seven mug shots of young black men. Both girls identified photographs of Brown and Hill as the two men whom they had seen fleeing the McDonald’s Restaurant and whom they had observed leaving the apartment complex in the automobile which they followed to the Leslie Motel. At the trial of the case, both Lineberry and Scott again identified Brown and Hill as the two robbers. In addition, the Commonwealth introduced evidence of the identification made by the two girls on October 1, 1976, from the group of photographs.

The seven photographs shown Lineberry and Scott were mug shots from the files of the Jefferson County Police Department. In each photograph a board was suspended from around the neck of the individual. Each board contained information for identification purposes. In the case of Brown and Hill, each board contained the abbreviation “ROB” and the date “November 17, 1975.” In the other five photographs, the boards did not contain the robbery date of November 17, 1975, nor were any two dates the same. Only one of the other five photographs contained the abbreviation “ROB.” This court recently found that such information made a photograph “impermissibly suggestive” for identification purposes. Jones v. Commonwealth, Ky.App., 556 S.W.2d 918, 921 (1977). However, this court held that the photograph in question should not have been admitted into evidence because it was obtained as a direct result of an arrest which was patently illegal. That argument is not made concerning the photographs of Brown and Hill. Consequently, the Jones case is not directly in point, and we must consider the admissibility of evidence of the photographic identification of the two accused by Lineberry and Scott.

In recent years, it has been the vogue of both bench and bar to consider the admissibility of evidence of out-of-court identification solely as a question of federal constitutional law. Little or no consideration is given to whether evidence of an out-of-court identification would be admissible as a matter of state law. Unless an out-of-court identification is admissible under state law, it is unnecessary to reach the federal constitutional question. Therefore, we first consider whether evidence of the out-of-court photographic identification was admissible as a matter of Kentucky law.

For many years, it was the general rule in Kentucky that evidence of out-of-court identification of the accused was inadmissible at the subsequent trial of the accused. E. g. Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594 (1933). However, this line of eases was overruled in Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 71 A.L.R.2d 442 (1957). In the Colbert case, the court held that a witness could testify that he had made a prior out-of-court identification of the accused. Nevertheless, the court in the Colbert case held that it was error to permit a third person to testify that he heard or observed the witness make the out-of-court identification of the accused. In Preston v. Commonwealth, Ky., 406 S.W.2d 398, 29 A.L.R.3d 1387 (1966), cert. denied, 386 U.S. 920, 87 S.Ct. 886, 17 L.Ed.2d 792 (1967), the court extended the Colbert opinion. The court held that once a witness has testified that he made a prior out-of-court identification of the accused, the Commonwealth may introduce the testimony of other witnesses to corroborate the fact that the witness did make the prior out-of-court identification.

Evidence of a prior out-of-court identification is usually introduced for the purpose of corroborating the in-court identification of the accused by the witness. Preston v. Commonwealth, supra, 406 S.W.2d at 403; 4 Wigmore on Evidence, § 1130 (Chadbourn rev. 1972). Cf. Summitt v. Commonwealth, Ky., 550 S.W.2d 548, 550 (1977). Because of the courtroom setting itself and the influence of intervening events, an in-eourt identification of the accused may not have great testimonial force. On the other hand, a prior out-of-court identification may be much more reliable if made under circumstances reasonably free of improper influence at a time when the witness’s memory is fresher. However, before a pre-trial identification may be admitted into evidence, the conditions and circumstances of the identification “should be fair and be free of influences and suggestions calculated to induce a fancied recognition.” Colbert v. Commonwealth, supra, 306 S.W.2d at 828. If the circumstances surrounding the out-of-court identification are so suggestive that it possesses fewer indicia of reliability than the witness’s in-court identification, evidence of the prior out-of-court identification has little value for the purpose of corroborating the in-court identification. As a corollary to the rule enunciated in the Colbert case, a witness is not competent to testify to his own prior out-of-court identification of the accused made under circumstances calculated to induce a fancied recognition of the accused. If the witness is not competent to testify to his own prior identification, the rule in the Preston case would not permit other persons to testify that the witness had made the prior out-of-court identification.

Evidence of a prior out-of-court identification is usually admitted for purposes of corroboration. Such evidence is not generally admissible under the doctrine enunciated in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). The Jett rule permits the introduction of evidence of out-of-court statements which are inconsistent with the testimony of the witness at trial. The Jett rule does not permit the introduction of evidence of statements which are consistent with the testimony of the witness at trial. Lynch v. Commonwealth, Ky., 472 S.W.2d 263 (1971).

The identification of the photographs of Brown and Hill by the witnesses, Lineberry and Scott, was made on October 1, 1976, almost a year after the robbery. Lineberry and Scott testified at trial on February 2, 1977. Consequently, it is difficult to believe that the witnesses’ recollection of the robbers was much fresher on the date of the photographic identification than it was at the date of trial. Even more important, the photographs of Brown and Hill both bore the date of the robbery, November 17, 1975, and both photographs bore the legend “ROB.” Any person of ordinary intelligence would conclude that the persons in these two photographs had been arrested for robbery on the very date of the McDonald’s Restaurant robbery. None of the other five photographs shown Lineberry and Scott contained a date close to November 17, 1975, and only one of the other photographs contained the legend “ROB.” The photographs clearly suggested that Brown and Hill should be identified as the persons committing the McDonald’s restaurant robbery.

There was absolutely no necessity for using such suggestive photographs. If no other photographs were available, then the identification material on each photograph could have been obscured by tape or simply cut off. Because the identification legends on the photographs of Brown and Hill were unnecessarily and unduly suggestive, and because the identification of the photographs was made by Lineberry and Scott so many months after the robbery, we con-elude that the pre-trial identification was no more reliable than the witnesses’ in-court identification of Brown and Hill. When Lineberry and Scott identified the photographs of Brown and Hill, they displayed no more familiarity with the identity of the robbers than they exhibited by their in-court identification of the two accused. Consequently, the evidence of the prior identification had no value for the purpose of corroborating the in-court identification of Brown and Hill. The trial court should have sustained the motion to suppress evidence of the out-of-court identification of the photographs of Brown and Hill.

Although evidence of the out-of-court identification of the two accused by Lineberry and Scott should have been suppressed, it does not follow that they were barred from identifying Brown and Hill in court as a matter of federal constitutional law. The in-eourt identification by Line-berry and Scott would deny Brown and Hill due process of law only if the “photographic identification procedure was so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Simmons v. United States, 390 U.S. 377, at 385, 88 S.Ct. 967, at 971, 19 L.Ed.2d 1247 (1967). See also Coleman v. Alabama, 399 U.S. 1, at 5, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). There would be a denial of due process if the suggestive elements on the photographs made it all but inevitable that Lineberry and Scott would identify Brown and Hill in court whether or not they were in fact the robbers. See Foster v. California, 394 U.S. 440, at 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). A finding that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of “irreparable misidentification” means, in effect, that no one now or hereafter can believe Lineberry’s and Scott’s identification of the two accused as the robbers. Foster v. California, supra, 394 U.S. at 446, 89 S.Ct. 1127 (dissenting opinion, Black, J.).

Before Lineberry and Scott can be permitted to make an in-court identification of Brown and Hill, the trial court must conduct an evidentiary hearing outside of the presence of the jury. Following such a hearing, the trial court should make findings of fact. In determining whether Line-berry’s and Scott’s in-court identification of the two accused is reliable, the trial court should consider the opportunity of the witnesses to view the robbers at the time of the crime, their degree of attention, the accuracy of their prior description of the robbers, the level of certainty the witnesses demonstrate at the time of the in-court identification, and the length of time between the crime and the in-court identification. Jones v. Commonwealth, supra, 556 S.W.2d at 921. See also Neil v. Biggers, 409 U.S. 188 at 200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

SHOW-UP IDENTIFICATION

Two employees of the McDonald’s Restaurant, Rosalee Franklin and David Appleby, observed the two men who committed the robbery. Shortly after Brown and Hill were taken into custody at the Leslie Motel, Franklin and Appleby were taken by the police to the motel. Both witnesses were told by police officers that “they thought they had the two guys,” and they wanted to see if Appleby and Franklin could identify them as the robbers. At the motel, Brown and Hill were placed handcuffed in the beam of the headlights of the car in which Franklin and Appleby were seated. At trial, Appleby testified that he identified both Hill and Brown at the motel. He also identified them in court. Franklin testified that she could recall seeing only one man at the motel and that she identified him as one of the two robbers. She could not recall which accused she identified. However, Franklin testified at trial that she could identify both Brown and Hill in the courtroom.

Both witnesses had an opportunity to observe the robbers clearly for at least a minute inside the well lighted restaurant. The “show-up” identification of Brown and Hill occurred approximately 45 minutes after the robbery. The circumstances surrounding the identification of Brown and Hill by Franklin and Appleby required an evidentiary hearing uut of the presence of the jury, but they were not, as a matter of law, so impermissibly suggestive as to deny Brown and Hill due process of law.

In Stidham v. Commonwealth, Ky., 444 S.W.2d 110 (1969), the court upheld a show-up identification under circumstances very similar to those in this case. The two accused were stopped and arrested for a traffic violation. Receiving information over the radio concerning an armed robbery of a liquor store, the police held the two men at the point of arrest until the victim of the robbery could be transported there for identification purposes. In upholding the robbery victim’s identification of the two men, the court stated:

The police needed to know immediately whether to hold these two suspects or to release them. They needed to know whether to continue the search for the guilty. The victim of the crime had within an hour faced the guilty parties in a lighted room. We believe it good that he could again face them within such a short time while his memory was still fresh concerning the details.

Id. at 111-112 (emphasis added). The suggestiveness of the circumstances surrounding the identification at the motel is counterbalanced by the proximity in time of the identification to the robbery. Because their memory of the events surrounding the robbery was still fresh, it was less likely that Franklin and Appleby would be influenced by any suggestive circumstances surrounding the motel identification. The admission of evidence of a show-up identification does not, without more, violate due process. The central question is whether, under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. Neil v. Biggers, supra, 409 U.S. at 198-99, 93 S.Ct. 375; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 at 2248-49, 53 L.Ed.2d 140 (1977).

The fact that the accused were handcuffed does not alone require suppression of the show-up identification. U. S. v. Lee, 158 U.S.App.D.C. 296, 485 F.2d 1075 (1973); United States v. Hines, 158 U.S.App.D.C. 296, 455 F.2d 1317 (1972), cert. denied 406 U.S. 969, 92 S.Ct. 2427, 32 L.Ed.2d 669 (1972). Nor does the fact that Franklin was exceedingly nervous compel suppression of her identification. United States v. Hines, supra. The lapse of 45 minutes between the robbery and the encounter at the motel was not so impermissibly long that any show-up identification must be suppressed. United States ex rel. Penachio v. Kropp, 448 F.2d 110 (6th Cir. 1971). The statement by the police that they thought they had captured the robbers and wanted to see if they could be identified was not necessarily impermissible. As the court stated in United States v. Yates, 173 U.S. App.D.C. 308, 310, 524 F.2d 1282, 1284 (1975), “the officer was articulating only that which is ‘apparent’ in any show-up

Prior to admitting evidence of the motel identification upon a retrial of the case, the trial court must conduct an evidentiary hearing out of the presence of the jury and make findings of fact respecting the reliability of the out-of-court show-up identification by Franklin and Appleby. We do not hold that such evidence was admissible, only that it is not inadmissible as a matter of law. In determining whether evidence of the motel show-up identification is admissible, the trial court shall consider the factors outlined by this court in the Jones opinion and outlined by the Supreme Court in Neil v. Biggers, supra, and Manson v. Brathwaite, supra.

CONFESSIONS

The trial court erred in failing to conduct an evidentiary hearing on the motion to suppress incriminating statements made by Brown and Hill following their arrest at the Leslie Motel. Brown and Hill contend that the statements were made without their having received the Miranda warnings. An evidentiary hearing out of the presence of the jury and findings of fact by the trial judge are required before evidence of a custodial confession or other incriminating statement may be introduced into evidence before the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Jones v. Commonwealth, Ky., 560 S.W.2d 810, 24 Ky.L. Summ. 16 (1977); Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974). See also Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969); Lee v. Commonwealth, Ky.App., 547 S.W.2d 792 (1977). Upon a retrial of the case, the trial court shall comply with the provisions of RCr 9.78, which now requires that “the trial court shall conduct an evi-dentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling.”

ILLEGAL SEARCH

The police arrested Brown and Hill inside a room at the Leslie Motel. At the same time, the police seized a gun and a quantity of money. Brown and Hill filed a motion to suppress all evidence seized at the motel room on the grounds that they constituted the fruits of an illegal search and seizure without a warrant. The trial court failed to hold a full scale evidentiary hearing on this motion. A conference was held out of the presence of the jury at which police officers were permitted to discuss with the court their action at the motel. However, none of the police was ever placed under oath. The only witness who did testify under oath was a woman occupant of the motel room. The record clearly indicates that the informal nature of the hearing on the motion to suppress was not with the consent or agreement of trial counsel for Brown and Hill. Although the trial court did not make any findings of fact or give any explanation for its ruling, the trial court did sustain the motion to the extent of suppressing any evidence of the gun and money seized in the motel room.

On appeal, Brown and Hill make the following contentions:

All testimony concerning the entry of the police officers into that motel room, all statements made therein, the show-up conducted minutes thereafter, facts concerning whether the appellants were actually arrested at that motel, should have been excluded by the trial judge as fruits of the original illegal entry.

In support of this argument, Brown and Hill rely upon decisions in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Jones v. Commonwealth, Ky.App., supra.

In the absence of a full evidentiary hearing and findings of fact by the trial court, it is impossible for this court to determine whether the entry into the motel room was illegal. There are two possible grounds which would justify entry by the police into the motel room without a warrant. First, the contention is made that the woman occupant of the motel room consented to the entry. Of course, the trial court was not required to accept this explanation by the police officers, and the trial court was free to believe the testimony of the woman that she did not voluntarily consent to the entry by the police into the motel room. Unfortunately, we have neither any finding of fact nor a full hearing on this issue.

Second, it is possible that the entry into the motel room was justified in the absence of a warrant because of exigent circumstances. The suspected robbers had been trailed from the restaurant to the motel by the girls who had then called the police. The police arrived at the motel minutes later. They had every reason to believe that the robbers were present in the motel and that the men were armed. Consequently, the police may have been justified in entering the motel room without a warrant-for the purpose of searching for the robbery suspects and weapons. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Styles v. Commonwealth, Ky., 507 S.W.2d 487 (1974). Whether the search could be justified on the grounds of exigent circumstances could be determined only upon the record after a full scale evidentiary hearing. If Brown and Hill renew their motion to suppress the fruits of the search conducted at the motel, the trial court must conduct an evidentiary hearing outside the presence of the jury and enter into the record findings resolving the essential issues of fact raised by the motion. RCr 9.78.

Even if the entry into the motel room without a warrant were not justified, we doubt that this was the type of egregious police misconduct condemned in Brown v. Illinois, supra. Compare the decision of this court in Jones v. Commonwealth, Ky.App., supra, with the opinion Hebert v. Commonwealth, Ky.App., 566 S.W.2d 798 (this day decided). However, in the absence of a full record on the issue of the legality of the search of the motel room, we do not need to make a final ruling whether the incriminating statements by Brown and Hill and show-up identification by Franklin and Ap-pleby should be suppressed as the fruits of an illegal entry into the motel room.

OTHER ISSUES

The other issues raised by this appeal are not likely to occur upon a retrial of the case; therefore, we need not decide those issues.

The judgment of the circuit court is reversed with directions to grant Brown and Hill a new trial.

ALL CONCUR.

      . RCr 9.78 requires the trial court to make findings of fact supporting its decision to grant or deny a motion to suppress evidence of a confession or other incriminating statements or evidence of fruits of a search. To afford meaningful appellate review, the trial court should also make findings following hearings on motions to suppress identification evidence as well.


author: HOWARD, Judge.

text:
    Carl TYREE, Appellant, v. Lloyd BROWN, d/b/a Big 3 Coal Company, Lloyd Brown d/b/a Pole Coal Company, George R. Wagoner, Acting Commissioner of Labor of the Commonwealth of Kentucky, and Custodian of the Special Fund, and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 17, 1978.

      Ronald G. Polly, Polly, Craft & Asher, Whitesburg, for appellant.
    Forrest E. Cook, Whitesburg, for Lloyd Brown, d/b/a Big 3 Coal Co. & d/b/a Pole Coal Co.
    Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for George R. Wagoner, Special Fund.
    Before COOPER, HOWARD and PARK, JJ.
   HOWARD, Judge.

This is an appeal from the Letcher Circuit Court which affirmed the Order of the Kentucky Workmen’s Compensation Board dismissing the claim of appellant, Carl Tyree (hereinafter referred to as Tyree).

Tyree raises as errors on this appeal: 1) That the Board erred in finding that Tyree was not an employee, but rather a partner of the Big 3 Coal Company, 2) that the Board erred in finding that Tyree failed to give sufficient notice; and 3) that the Board erred in failing to find that Tyree was not disabled by reason of being afflicted with pneumonoconiosis or silicosis.

Tyree, Lloyd Brown, and James Lucas were in a partnership d/b/a Big 3 Coal Company. The profit from the operation of the mine was split three ways between them. The other men who worked at the mine were paid on a salary basis. The evidence was to the effect that Brown was in charge of the operation. He owned the equipment and received and paid out the money. Brown had previously owned and operated the Pole Coal Company and Tyree had worked some 12-13 years for Brown d/b/a Pole Coal.

We feel there is substantial evidence of probative value to support the finding of the Board that Tyree was a partner and not an employee of the Big 3 Coal Company. CR 52.01. Holman Enterprise Tobacco Warehouse v. Carter, Ky., 536 S.W.2d 461 (1976).

As to the notice requirement, KRS 342.316(2)(a) provides in part as follows:

. [NJotice of claim shall be given to the employer as soon as practicable after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.

Tyree filed his claim application on July 17, 1973. In 1970, he had applied for black lung benefits with the Social Security Administration. In October of 1972, he started to receive benefits, and in November of 1972, he informed Brown that he had pneu-monoeoniosis. However, Tyree also testified that he last worked for the Big 3 Coal Company on July 28, 1971, because he “just got disabled to work” due to his chest and breathing.

In Yocom v. Karst, Ky., 528 S.W.2d 697, 699 (1975), the court states that the controlling consideration in a notice of claim issue in an occupational disease case is the time when the claimant sustained disability for which a claim could be asserted.

We feel that Tyree was aware of his condition no later than 1971, when he was no longer able to work. We further find that the notice given was not timely.

One of the doctors diagnosed Tyree as suffering from °/i pneumonoconiosis, which in effect says there is no definite pneumonoconiosis. He also testified that no disability resulted with this classification. Other doctors testified that Tyree did have that disease and was disabled from it.

The conflicting medical testimony is not so much in Tyree’s favor that the Board’s finding against him was unreasonable. Yo com v. Hamilton, Ky., 494 S.W.2d 731 (1973).

After reviewing the errors raised by Tyree, we feel that the dismissal of his claim by the Workmen’s Compensation Board was proper.

The judgment of the trial court is affirmed.

All concur.