26 Aug August 2026 KY Supreme Court Round Up
No family law cases this month in the Supreme Court Round Up. Notwithstanding that, there are a trio of cases for our criminal defense friends and we are even making them available for the prosecutors – at no charge. So, dig in.
Shelly Damron v. Commonwealth of Kentucky, 2024-SC-0300
Criminal defendants don’t collect many wins at the Kentucky Supreme Court. Shelly Damron just collected one—and DUI lawyers should put this case in the file marked “read, save, and cite.”
The case arose from a horrific two-vehicle crash in Letcher County. Shelly crossed the center line and struck another vehicle, injuring the driver and killing his son. She was ultimately indicted for second-degree manslaughter, second-degree assault, DUI with aggravating circumstances, and other offenses. The issue before the Supreme Court, however, was much narrower: Did Shelly Damron voluntarily consent to the warrantless blood draw?
At the accident scene, a state trooper told her that when a fatality occurs, KSP policy is to obtain blood from the drivers. Shelly agreed to go to the hospital, but she did not simply wander over at her leisure. A constable escorted her and her boyfriend to the hospital and watched them along the way. The testimony established that, had she tried to leave or avoid the blood draw, she would have been detained while police sought a warrant.
At the hospital, another trooper read Shelly the then-existing implied-consent warning, including enhanced criminal consequences for refusing the test, and explained that KSP procedure “required” blood from drivers involved in a fatality. She then submitted to the draw. Curiously, the hospital consent form even stated that Shelly Damron was under arrest, although the trooper testified that this statement was false.
The Letcher Circuit Court suppressed the blood evidence, finding that the totality of the circumstances showed that Damron’s consent was not voluntary. The Court of Appeals reversed. The Supreme Court, in turn, reversed the Court of Appeals and reinstated suppression. Justice Goodwine’s majority opinion makes two points worth remembering.
First, appellate courts are not supposed to retry suppression hearings. If the trial court’s factual findings are supported by substantial evidence, they are conclusive. Here, there was conflicting testimony, but that was precisely the point: weighing conflicting testimony and assessing credibility belonged to the trial judge, not the Court of Appeals. The Supreme Court concluded that the Court of Appeals had improperly reweighed the evidence.
Second—and more important for DUI practitioners—consent is judged by the whole encounter, not by locating the word “yes” somewhere in the record. Shelly remained in law enforcement’s presence from the accident scene through the blood draw; she was escorted to the hospital to prevent her from leaving; officers described the blood draw as required by KSP policy; she was never told she was free to leave; and she ultimately received an implied-consent warning that threatened enhanced penalties.
Put those facts together, the Court held, and the Commonwealth failed to prove voluntary consent by a preponderance of the evidence. The blood results stay suppressed.
The Supremes were not in total agreement on the Opinion. There was a vigorous dissent from Justice Keller, joined by Chief Justice Lambert and Justice Bisig. The dissent viewed Shelly’s original consent at the accident scene as voluntary and thought too much weight was placed on what police would have done had she refused, i.e. facts never communicated to her.
Round Up Take
Damron is more than another implied-consent case. It reminds defense lawyers not to examine a blood draw as a single moment in time. Start when the blue lights arrive and keep going until the needle comes out. Who said what? Was the motorist told the test was “required” or “mandatory”? Was she followed or escorted? Could she actually leave? Was a warrant mentioned? What penalties were threatened? And what did the trial judge find about all of it?
The Commonwealth cannot convert submission to police authority into voluntary consent simply by pointing to the defendant’s eventual “yes.” For Kentucky DUI lawyers, the Damron case is one to remember.
To be published. http://opinions.kycourts.net/sc/2024-SC-0300-DG.pdf
Victor Gardner v. Commonwealth of Kentucky, 2025-SC-0175
Victor Gardner drew a tough hand in Logan Circuit Court: convictions for first-degree rape, several counts of unlawful transaction with a minor, PFO I—and a life sentence. On appeal, he raised five issues. None got him home.
But the mistrial issue is worth a look, particularly for trial lawyers. There were actually two significant jury problems.
The first came before voir dire. The lead detective spotted a former teacher in the jury pool. They spoke. And hugged. In front of other prospective jurors. The trial judge correctly called the interaction improper, questioned the panel, and excused the prospective jurors who had witnessed it, along with the detective’s former teacher. Problem contained. No mistrial.
The second problem was considerably more interesting. On the final day of trial, a juror alerted the judge that some jurors had been discussing the testimony before deliberations. According to him, three to five jurors participated in a conversation lasting a minute or two, in front of the rest of the jury. No verdict was expressly discussed, but the juror thought their comments strongly implied a conclusion about the evidence.
That will get everyone’s attention.
Gardner moved for a mistrial. Instead of immediately granting one, the trial judge questioned every juror individually. A few remembered stray comments: one about the emotional impact of the victim’s testimony, another about inconsistencies among witnesses, and another questioning a witness’s memory. But nobody reported an agreement about guilt, a discussion of the verdict, or a fixed opinion that could not be put aside. The judge denied the mistrial.
The Supreme Court affirmed.
Justice Conley made clear that the jurors had committed misconduct. Jurors aren’t supposed to discuss the evidence before the case is submitted. When a trial court receives credible information that meaningful premature discussions may have occurred, moreover, the judge has an affirmative duty to investigate.
And the trial judge did not handle everything perfectly.
During the initial questioning, the judge specifically told the reporting juror not to reveal the conclusion he believed the other jurors’ comments implied. The Supreme Court said that was a mistake. A judge investigating possible juror misconduct cannot deliberately avoid learning the very information needed to determine whether the misconduct was prejudicial:
“The court must assemble a record that allows it to get to the bottom of what the misconduct was, how serious it was, and its likely effect on the jury.”
That is probably the sentence from Gardner worth saving.
The mistake wasn’t fatal because the judge thereafter did the important thing: he questioned every juror separately and developed a sufficient record. Those interviews show scattered comments about testimony, but no agreement on guilt, no fixed conclusions, no outside information, and no indication that any juror could no longer be impartial.
The Court contrasted that situation with Lawless v. Commonwealth, where extrajudicial information reached the jury, conveyed the trial judge’s own adverse assessment of a key witness, and resulted in a juror admitting an inability to decide the case solely on the evidence. That was structural error. Gardner wasn’t close enough.
The opinion also contains a smaller practice pointer involving Snapchat evidence. The Commonwealth’s authentication was less than pristine. The detective wasn’t particularly familiar with the records, the Snapchat certificate wasn’t introduced, only some messages were authenticated by the witness—just to make things easier—the messages were presented in reverse chronological order. But defense counsel didn’t object. The Supreme Court essentially said that a timely objection might have forced the Commonwealth to clean up the foundation. Without one, there was no palpable error. [Practice Pointer: when in doubt, always object. Preservation on appeal is typically the deciding factor.]
Round Up Take
No reversal here, but Gardner provides a useful roadmap when somebody reports that the jury has been talking when it shouldn’t.
For the defense lawyer: object, move for a mistrial, and insist upon a real investigation. What exactly was said? Who said it? Who heard it? How many jurors participated? Were opinions expressed about credibility? Had anyone reached a conclusion about guilt? And can each juror still decide the case based solely on the evidence?
For the trial judge, the lesson is equally straightforward: don’t investigate juror misconduct by carefully avoiding the potentially bad part. Find out what happened, build the record, and then decide whether the bell can still be unrung.
Gardner gets a life sentence. The conviction stands. But the Supreme Court gives trial lawyers a pretty useful checklist for the next time the jury starts deliberating before anyone told them to.
Unreported, but worth the time. http://opinions.kycourts.net/sc/2025-SC-0175-MR.pdf
Joseph Young v. Commonwealth of Kentucky, 2025-SC-0487
Joseph Young set fire to the front porch of a Louisville home while three people were sleeping inside. He was convicted of first-degree arson, three counts of first-degree wanton endangerment, and PFO I. Jefferson Circuit Judge Jennifer Wilcox ultimately sentenced him to 32 years. The Supreme Court affirmed.
The facts left Young with little room to maneuver. Surveillance video showed him buying a dollar’s worth of gasoline at Thorntons, carrying the container back to the house, entering the porch, and then—minutes later—bursting through the door with an orange glow and sparks behind him. Inside were a woman, her elderly grandmother, and her autistic minor sister.
The more interesting question was legal: Can the Commonwealth punish the same act as both first-degree arson and first-degree wanton endangerment?
Young said no. His argument was straightforward. There was one act—setting one house on fire. The danger to the occupants that supported the three wanton-endangerment convictions was already baked into first-degree arson, which requires an inhabited or occupied building, or reason to believe the building may be inhabited or occupied. Convicting him of both, he argued, punished the same conduct twice. The Supreme Court described the question as apparently one of first impression.
The Court rejected the argument.
Justice Nickell returned to the familiar Blockburger/Burge elements test. Double jeopardy does not prohibit two convictions merely because they arise from the same course of conduct. The question is whether each offense requires proof of an element the other does not. Young urged the Court to look instead at legislative intent and the underlying harm. The Court declined the invitation. [Editor’s Note: The Blockburger test has never made a lick of sense to us. The appellate and trial courts typically find that any small issue will subject someone to multiple punishments, but I digress…]
And when the statutes are put side by side, the distinction is fairly easy to see—at least for the Supremes.
First-degree arson requires an intent to destroy or damage a building by fire or explosion. Wanton endangerment, on the other hand, requires wanton conduct manifesting extreme indifference to human life and creating a substantial danger of death or serious physical injury. The first-degree arson statute does not require anyone actually to be inside the building if the defendant has reason to believe that it may be occupied. As the Supreme Court boiled it down: arson is a crime against property; wanton endangerment is in the nature of a crime against a person. Some of the proof may overlap, but overlapping proof is not the same thing as identical offenses.
The result is an important one:
“They are separate offenses subject to multiple punishments, even when a single discrete act forms the factual basis for both crimes.”
That sentence is the whole case.
A couple of secondary issues are worth noting. Young complained that the trial court did not adequately address his request for a different appointed lawyer. No luck. An indigent defendant has a right to counsel, but not to the appointed lawyer of his choosing. Mere dissatisfaction isn’t enough; Young showed no conflict, breakdown in communication, or other good cause requiring substitution.
The Court also approved testimony from arson investigators that the fire was intentionally set. Kentucky has abandoned the old “ultimate issue” rule for expert testimony. The investigators did not testify that Young was guilty; they gave expert opinions about the origin and cause of the fire, subjects outside ordinary juror knowledge. That was permissible.
Round Up Take
The takeaway is simple but consequential: one act does not necessarily mean one crime. Kentucky remains firmly in the Blockburger/Burge camp. Compare statutory elements, not merely conduct. If each offense contains an element the other does not, multiple convictions can survive even though everything arose from a single act.
Here, Young lit one fire. But that fire damaged the house and endangered three people. Kentucky law permits the Commonwealth to punish both harms.
One match. Four convictions. No double-jeopardy violation.
Unreported. http://opinions.kycourts.net/sc/2025-SC-0487-MR.pdf
Thanks for reading! Click here to read June’s Supreme Court Round Up and click here to read the previous Round Up.