Opinion
NO. 2013-CA-001808-MR
05-15-2015
ROBERT ALLEN EDMONDS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Dennis J. Burke La Grange, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Gregory C. Fuchs Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC J. COWAN, JUDGE
ACTION NO. 09-CR-002040
OPINION
AFFIRMING
BEFORE: COMBS, JONES AND MAZE, JUDGES. JONES, JUDGE: Appellant, Robert Edmonds, appeals from an order of the Jefferson Circuit Court summarily denying his RCr 11.42 and CR 60.02 motions seeking post-judgment relief. For the reasons more fully set forth below, we AFFIRM.
Kentucky Rules of Criminal Procedure
Kentucky Rules of Civil Procedure
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2010, Edmonds was tried in Jefferson Circuit Court on two counts of rape in the first degree and two counts of sodomy in the first degree and for being a persistent felony offender. The charges related to sexual activity with two different women, E.V. and H.N. Edmonds did not deny having sexual activity with the women. Rather, his defense was that he could not specifically recall having sex with the women, but that he regularly engaged in sexual activities with prostitutes. He maintained that any sexual activity between him and the alleged victims was consensual.
Several months prior to his scheduled criminal trial, Edmonds mailed a letter to the trial court expressing his desire to represent himself. On May 11, 2010, and May 19, 2010, the trial court held a Faretta hearing to determine whether Edmonds was making a knowing and intelligent complete waiver of counsel. Ultimately, the trial court found the complete waiver of counsel to be knowing, intelligent, and voluntary, and allowed Edmonds to represent himself at trial, but ordered standby counsel for him.
See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
At trial, E.V. testified that on November 21, 2005, she was living with her boyfriend in a residence off of Crums Lane. She testified that she left the residence that day to stay with a friend after a fight with her boyfriend. The friend lived at 26th and Jefferson. E.V. recounted that during the early morning hours of November 22nd, she decided to return home. She testified that her friend arranged for a man to drive her home. She testified that shortly after she got into the man's car, he stopped the car, put a hard object up to hear head, told her to pull her pants down, placed a condemn on his penis, and proceeded to penetrate her vaginally. Afterwards, she alleges that he forced her to perform oral sex on him. She testified that he ejaculated into her mouth and that after he was finished she spit the ejaculate into a napkin. E.V. later gave the napkin to a police detective. E.V. denied that the sex was consensual and indicated that she told the man no several times, but that she did not fight him because she was afraid to do so.
H.N. testified that on June 19, 2007, between 6:00 and 7:00 in the evening she was walking on Market Street towards her mother's home 20 blocks away when a truck passed her with an individual that she thought she knew and when the individual passed her a second time, the driver, a male, asked her if she needed a ride. She testified that she accepted the offer for a ride. During the course of the drive, H.N. testified that the man stopped the car, jumped on top of her, ordered her to take her clothes off, held her down, and forced her to perform oral sex on him. She testified that he ejaculated in her mouth. Afterwards, she testified that he vaginally penetrated her with his penis and then ejaculated inside of her. H.N. testified that she did not consent to any of the sexual activity that occurred with the man.
The testimony at trial indicated that in 2008 DNA testing was performed on the napkin collected from E.V. and was found to match Edmonds after being run through the Commonwealth's Combined DNA Index System. However, further DNA analysis conducted by the Commonwealth revealed that a DNA profile made from a cutting of E.V.'s underwear excluded Edmonds as a contributor but was consistent with a mixture of E.V.'s DNA and three other untested individuals. The jury was unaware of the underwear cutting DNA test results from E.V. even though Edmonds was excluded. E.V. was unable to identify Edmonds in a line-up.
As for H.N., DNA evidence recovered from a vaginal swab collected confirmed that she and Edmonds had engaged in sexual intercourse. She too failed to identify Edmonds in a line-up. Like E.V., H.N.'s clothes were also not torn, nor were there any cuts, bruises, or marks upon her when she was examined at the hospital.
On September 2, 2010, the jury convicted Edmonds of rape in the first degree and sodomy in the first degree of E.V., and rape in the first degree and sodomy in the first degree of H.N. The jury also found Edmonds guilty of being a persistent felony offender in the second degree. He was sentenced to a total of sixty years in prison.
With the assistance of counsel, Edmonds filed a direct appeal as a matter of right to the Kentucky Supreme Court. The Kentucky Supreme Court found no error by the trial court and affirmed Edmonds's conviction. Edmonds v. Commonwealth, No. 2011-SC-000059-MR, 2012 WL 2362429 (Ky. June 21, 2012).
Next, on August 7, 2013, Edmonds moved for relief pursuant to RCr 11.42/CR 60.02. He sought to vacate his convictions and sentence or, in the alternative, for the court to grant an evidentiary hearing at which he could more fully pursue his claims. The motion was overruled in a written order entered on September 16, 2013. It is from that order that Edmonds appeals.
On appeal, Edmonds asserts that the circuit court erred by denying post-conviction relief on claims of (1) ineffective assistance of counsel regarding Edmonds' state constitutional right to hybrid counsel; (2) a recent change in the law which should be retroactively applied to Edmonds' case as strong equities exist requiring such application; and (3) a Due Process exception to the law of the case doctrine in which the Kentucky Supreme Court erroneously decided a claim that Edmonds was denied a right to meaningfully present a complete defense and an opportunity to subject the prosecutor's case to meaningful adversarial testing.
I. ANALYSIS
Where an appellant's post conviction allegations would entitle him to relief, he is to be afforded an opportunity to prove the truth of the matter asserted at an evidentiary hearing. Barnes v. Commonwealth, 454 S.W.2d 352, 354 (Ky. 1970). Under Kentucky rules of criminal procedure, a hearing on a motion for post conviction relief "is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
On an appeal from an order overruling an RCr 11.42 motion without an evidentiary hearing, "[o]ur review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). Thus, a hearing is only required if an RCr 11.42 motion raises an issue that cannot be determined on the face of the record. RCr 11.42 (5); Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). A trial court's findings will not be disturbed absent a finding of clear error. Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky. 1997).
A. Hybrid Counsel
First, Edmonds argues that it was an error for the circuit court to reject his claim that counsel was ineffective in failing to advise him of his state constitutional right to hybrid counsel when he had filed a motion to proceed pro se. Edmonds argues that at no time during the hearing was he advised of his state constitutional right to hybrid counsel under Section 11 of the Kentucky Constitution. Nor was he advised, he argues, of his right to hybrid counsel by his trial counsel before waiving his right to counsel.
As a preliminary matter, we note that in his brief Edmonds refers to counsel's failure, and at times, to the trial court's failure. We limit our review to counsel's duty as any claim related to the trial court's failure to inform Edmonds of a right to hybrid counsel could have been raised as part of his direct appeal. Accordingly, Edmonds has waived any claim related to the trial court's failure to afford him a fair trial in this regard.
When analyzing an ineffective assistance of counsel claim, we use the two-prong test announced in Strickland v. Washington, 466 U.S. 468, 104 S.CT.2052, 80 L.E.2d 674 (1984). This test requires the defendant to show: (1) that counsel made errors so serious that he was not functioning as "counsel" guaranteed by the Sixth Amendment, and (2) that counsel's deficient performance prejudiced the defendant. Id.; Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). Throughout this analysis, we strongly presume trial counsel's performance to have been reasonable. Commonwealth v. Pelphrey, 998 S.W.2d 460, 463 (Ky. 1999).
Edmonds argues that trial counsel's failure to advise him of his right to hybrid representation was ineffective assistance such that counsel's performance "fell below an objective standard of reasonableness." Strickland, at 687-88. Edmonds argues that, had he been properly advised, he would have invoked his state constitutional right and proceeded to trial with hybrid counsel instead of completely waiving counsel.
A proper understanding of this claim requires some understanding of the distinction between hybrid counsel and standby counsel. "Hybrid representation consists of the concurrent representation by counsel for an accused and the accused appearing pro se. In other words, in a case of hybrid representation, the accused and an attorney essentially function as 'co-counsel.'" Allen v. Commonwealth, 410 S.W.3d 125, 139 (Ky. 2013). In contrast, a standby usually takes a more limited role. It is defined as "[a]n attorney who is appointed to be prepared to represent a pro se criminal defendant if the defendant's self-representation ends. . . . The standby counsel may also provide some advice and guidance to the defendant during the self-representation.—Also termed advisory counsel." Id.
Despite strong warnings by the court, Edmonds insisted upon exercising his right to represent himself. The Commonwealth correctly points out that "[t]he reasonableness of counsel's actions may be determined or be substantially influenced by the defendant's own statements or actions." Strickland at 687-88. In spite of many warnings by the trial court, Edmonds insisted upon exercising his right to represent himself. Indeed, it is clear from the record that even when advised by the trial court on whether he wished to have standby counsel, Edmonds was clear that he desired to undertake the entire defense himself. He stated: "[n]o I'll go solo and I'm not being cocky, I am being confident."
Given that the trial court had advised Edmonds that he could have standby counsel to assist him, and his unequivocal refusal of such in the face of the trial court's warnings, we do not believe that Edmonds' prior counsel was required to instruct him that he had a right to have hybrid counsel, an even more involved approach than the standby counsel Edmonds had rejected. In fact, to date, there is no case which requires even a trial court to sua sponte inform a defendant of his right to hybrid counsel. Padgett v. Commonwealth, 312 S.W.3d 336, 343-44 (Ky. 2010). Moreover, Edmonds has not made a compelling argument with respect to how any alleged error worked to his prejudice.
We likewise agree with the trial court that a hearing was not required to decide this claim. The record was clear with respect to Edmonds' claim in this regard. A hearing would not have added any facts of consequence. Accordingly, we believe the trial court correctly denied this claim on the face of the petition.
B. Retroactivity of Allen v. Commonwealth
Next, Edmonds argues that the trial court erred in denying his application for retroactive application of Allen v. Commonwealth, 395 S.W.3d 451 (Ky. 2013). Edmonds asserts that under the rule announced in Allen, he should be afforded a retrial where he is able to question H.N. regarding her "long history of behavior reflecting upon her character for dishonesty including some thirty counts of theft by deception and theft unlawful taking spanning fifteen years."
In Allen, the defendant was convicted of first-degree perjury for swearing out a false complaint against Weaver and theft by deception over $300 for supplying false information to Oxmoor Toyota, indicating that she did not co-sign Weaver's loan to purchase a truck. On appeal, Allen argued that the trial court erred in not allowing her to present evidence of the specific nature of Weaver's prior convictions, which consisted of multiple instances of felony, criminal possession of a forged instrument and misdemeanor giving a false name to a peace officer. Specifically, Allen wanted to ask about conduct underlying the convictions related to an incident in which Weaver was found with counterfeit money in his car and gave a false name to the arresting officer twice. Because of this incident, Weaver was charged with, and in 2002 pleaded guilty to, 25 felony counts of first-degree criminal possession of a forged instrument (KRS 516.050), and two misdemeanor counts of giving a false name to a peace officer (KRS 523.110). Allen claimed that proof of Weaver's conduct in this regard was admissible as impeaching character evidence. She specifically argued that she should at least have been allowed to ask about Weaver's criminal acts on cross-examination under KRE 608(b).
KRE 608(b) provides:
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
Relying on Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010), the trial court refused to allow Allen to question Weaver regarding the conduct because that conduct led to a conviction, and therefore, was governed solely by KRE 609. Because KRE 609 covers only felonies, under Chapman, a criminal, like Allen, was precluded from introducing proof that a "witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty." Allen, 395 S.W.3d at 463.
KRE 409 provides:
(a) General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
On direct appeal of Allen's convictions, the Kentucky Supreme Court concluded that Childers produced an "absurd result" because it rendered "misdemeanor-level dishonest conduct [] admissible under KRE 608(b) if a person were simply lucky enough not to have been convicted (whether because the crime was never charged or the charge was dismissed), but that a person who has actually been convicted of a misdemeanor involving a crime of dishonesty could avoid impeachment." Id. Ultimately, the Kentucky Supreme Court overruled Chapman and established a new rule allowing a criminal defendant, like Allen, to inquire pursuant to KRE 608(b) about conduct giving rise to such misdemeanor charges. The Court was clear, however, that while the conduct or acts giving rise to the charges were fair game, actual proof of the conviction was still off limits under KRE 608 and 609. Id. Thus, while Allen "could not ask about or otherwise show that this conduct led to a conviction," the Supreme Court determined that "she should have been permitted to ask Weaver if he had previously lied to police." Id.
Any notion that Allen has retroactive effect to convictions, like Edmonds's conviction, which were final before the new rule was announced by the Kentucky Supreme Court in 2013, is misplaced. First, to be clear, Allen was decided only on issues of state law. Allen, 395 S.W.3d at 462. The Allen court explicitly held that it was not considering the constitutional law challenges. Id. "[O]nce a conviction becomes final, that is, it has gone through the direct appeal process and been affirmed, the new rule is not applicable, even if the collateral attack is pending when, or has begun after, the new decision is rendered." Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (adopting the standard laid out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether new rules of criminal procedure announced by the Kentucky Supreme Court have retroactive effect). Having carefully reviewed Allen, we find no basis on which to conclude that its adoption of a new rule of criminal procedure intended to be applied retroactively to cases, which were already final following direct review.
Nevertheless, Edmonds argues that even if Allen is not applied retroactively in all cases, it should give rise to CR 60.02 relief in his particular case. Our courts have recognized the possibility of reopening of a judgment under CR 60.02 based on a change in the law. Reed v. Reed, 484 S.W.2d 844, 847 (Ky. 1972). However, a change in law can only serve as the basis to reopen a judgment "in aggravated cases where there are strong equities." Id.
"Given the high standard for granting a CR 60.02 motion, a trial court's ruling on the motion receives great deference on appeal. . . ." Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky.1998) (citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996)). Therefore, on the appeal of a denial of a CR 60.02 motion, the trial court's ruling will not be overturned except for abuse of discretion. Id.; Lawson v. Lawson, 290 S.W.3d 691, 693-94 (Ky. App. 2009). To amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). In considering whether the denial of a CR 60.02 was an abuse of discretion, the two factors to be considered are whether the movant had a fair opportunity to present his claim and whether the granting of the relief sought would be inequitable to the other parties. Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky. 1957).
Having reviewed the record, we are unconvinced that Edmonds has presented a compelling case to reopen his judgment and conviction based on Allen. The convictions at issue were quite old, most being over twenty years old. Additionally, the two more recent convictions were for shoplifting. While a propensity for stealing certainly could indicate one's lack of trustworthiness, it cannot be said to be as probative of one's honesty as the conduct of lying to police officer, which was at issue in Allen. Moreover, it does not appear from the record that Edmonds actually ever attempted to question H.N. about her past dishonest and/or untrustworthy conduct at trial.
We find that 60.02 relief is for extraordinary cases and not available under these circumstances. The equities are not strongly in Edmonds's favor with respect to reopening based on Allen's change in the law. Thus, the trial court properly denied the motion.
C. DNA CONTRIBUTORS
Lastly, Edmonds claims he is entitled to post-conviction relief because the trial court wrongly denied him the opportunity to present evidence that the DNA found on E.V.'s underwear contained the DNA of three different unidentified males. This claim was raised and rejected by our Supreme Court as part of Edmonds' direct appeal:
Besides general references to the women as prostitutes, Appellant also specifically sought to introduce evidence that, in addition to his DNA, the semen sample from EV's panties contained the DNA of three other men. The trial court properly excluded this evidence, as the presence of other men's semen had no bearing on whether EV consented to engage in sexual intercourse and sodomy with Appellant. The evidence Appellant sought to introduce failed to fit into any of KRE 412's exceptions and therefore was properly excluded.
Appellant also claims that the trial court foreclosed his right to present a defense in violation of his due process rights by excluding this evidence. We disagree. While we follow the United States Supreme Court's pronouncement that "the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense," Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (internal quotations omitted), we also note that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials" because a "defendant's right to present relevant evidence is not unlimited." U.S. v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (emphasis added). When an accused's right to present a defense "is abridged by evidence rules that infring[e] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve," this "broad latitude" is impermissibly exceeded. Holmes, 547 U.S. at 324 (internal quotation marks omitted) (emphasis added).
Appellant argues that his theory of the case was that EV and HN were prostitutes with whom he had consensual sex, but did not pay. He wanted to use this theory to make otherwise inadmissible evidence regarding the victims' past sexual encounters admissible. However, he fails to argue that our rape shield rule is either "arbitrary or disproportionate to the purposes [it is] designed to serve" as required by Holmes. Furthermore, as we noted in Mills v. Commonwealth, 996 S.W.2d 473, 489 (Ky.1999), "Chambers [v. Mississippi, 410 U.S. 284, 93
S.Ct. 1038, 35 L.Ed.2d 297 (1973) ] ... does not hold that evidentiary rules cannot be applied so as to properly channel the avenues available for presenting a defense." As a result, we cannot say that the trial court's ruling violated Appellant's right to present a defense.
Edmonds recognizes that the Supreme Court's holding in his direct appeal is the law of the case. Nevertheless, citing Brown v. Commonwealth, 313 S.W.3d 755, 610 (Ky. 2010), Edmonds ask us to deviate from the law of the case doctrine. Id. He indicates that we are permitted to do so in cases where there has been an intervening change in the law or where the previous decision was clearly erroneous and would work a manifest injustice. Id. He claims we should deviate from the law of the case rule in this circumstance because excluding the evidence denied him a "federal constitutional right to a meaningful opportunity to present a complete defense and meaningful adversarial testing."
Edmonds cites us to no new case law from the Kentucky Supreme Court indicating that it now believes that its ruling in Edmonds' direct appeal was incorrect. And, having reviewed the opinion, we are confident that the Supreme Court fully analyzed Edmonds' challenges, including his claim that his federal constitutional rights were violated, during its direct review. We find no basis to reopen with respect to this claim.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the Jefferson Circuit Court.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Dennis J. Burke
La Grange, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Gregory C. Fuchs
Frankfort, Kentucky