Opinion
NO. 2016-CA-001677-MR
06-08-2018
BECKHAM BARNES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brenda Popplewell Somerset, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 01-CR-00001 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Beckham Barnes stands convicted of the 1999 murder of Troy Miller following retrial in February 2004. He admits shooting and killing Miller, but claims he did so in self-defense after an intruder shot at him in the middle of the night. Barnes is serving a sentence of twenty-five years, consistent with the jury's recommendation. In this appeal he challenges the Wayne Circuit Court's denial of a successive CR 60.02 motion seeking a new trial due to newly discovered evidence. Barnes claims the Commonwealth deliberately concealed the name of a Kentucky State Police (KSP) crime lab analyst and her fingerprint analysis report of a pistol found near Miller's body. In denying the motion, the trial court expressed complete confidence in Barnes having received a fair trial, specifically finding: defense counsel was aware of the lab report long before the first trial because its results were divulged by the Commonwealth during discovery in 1999; the motion was time-barred under RCr 10.02(1), RCr 10.06(1), and CR 60.02(d) and (f); the allegation should have been raised on direct appeal and therefore, could not be raised on collateral attack; and, successive collateral attacks—like this one—are prohibited. Alternatively, the trial court found the KSP crime lab report was not pivotal; would not have kept the Commonwealth from arguing Barnes had wiped the gun clean of fingerprints to stage the scene; and, use of the report at trial would not have resulted in acquittal or a different verdict. After review of the record, the briefs and the law, we affirm.
Barnes was first tried in May 2001 when he was convicted of intentional murder and sentenced to serve twenty-two years. That conviction was reversed by the Supreme Court of Kentucky due to improper comments made by the prosecutor during closing argument. Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002) ("Barnes I"). Failure to discover fingerprint analysis of the pistol was not alleged in Barnes I.
Kentucky Rules of Civil Procedure.
Kentucky Rules of Criminal Procedure.
According to Barnes, Miller—whom Barnes had trained as a land surveyor and with whom he often worked on projects—entered Barnes' office unannounced late one night. A barking dog alerted Barnes to movement in the office, Barnes acquired a hunting rifle and shot and killed the intruder in self-defense after the intruder fired first. A pistol belonging to Miller's girlfriend was found near Miller's body. While Miller's hands were covered in blood, no signs of blood or body fluid on the pistol were visible to the naked eye. When Detective Ken Hill examined the pistol at the scene using a magnifying glass, he saw no evidence of blood or body fluid. Det. Hill performed no other tests, but sent the gun to the lab for analysis of any latent prints, blood and body fluids, and test firing for gunshot residue.
Ballistics expert Ronnie Freels testified his visual inspection of the pistol revealed no fingerprints. Freels also stated the gun was dusted, but no prints were found.
Based on lack of blood on the gun and details provided by Det. Hill and Freels, the Commonwealth developed its theory of the case—Miller's pistol had been wiped clean of prints and Barnes had staged the scene to appear as self-defense. Det. Hill had theorized the pistol was taken from Miller's truck and placed at the scene by Barnes or a member of Barnes' family, perhaps his father. The Commonwealth deemed it odd that while the pistol had been in Miller's possession for several months, it appeared to bear no fingerprints.
At the KSP crime lab, latent prints analyst Patricia Cox Barker examined the .38 caliber pistol, as well as three spent and three live .38 caliber cartridges submitted with the pistol. She testified during a subsequent deposition, "no latent prints of value for comparison were developed." A fingerprint lacking sufficient points for comparison is considered "of no value for comparison purposes." Cox Barker had no independent recollection of her analysis and could not tell from her report whether she found no prints or partial prints. Regardless, she would have phrased her report the same. She could say only there was nothing of sufficient value to compare with an unknown print. She further testified she could not determine whether an item had been wiped clean.
Cox Barker's written report, dated May 17, 1999, was not at issue before trial, at trial or on retrial. However, it has been the subject of numerous collateral attacks since Barnes was convicted the second time. The physical report was not given to the defense until November 2009 when the Commonwealth moved to supplement the record in a federal habeas proceeding. Delay in providing the physical report occurred despite the prosecutor's open file discovery policy. While provision of a physical copy of the report was delayed, the results of the fingerprint analysis were orally revealed to defense counsel during a pretrial hearing on November 30, 1999, when then-Commonwealth Attorney Robert Bertram stated he had not received a physical copy of the fingerprint analysis report, but it had been completed and yielded no significant results. During the pendency of this indictment, Larry Rogers succeeded Bertram as Commonwealth Attorney. Rogers represented the Commonwealth in both trials but explained he did not look for a written report assuming it had already been provided in discovery before he took office. Rogers deemed the actual report unnecessary to build his case because Det. Hill and Freels would testify there were no visible fingerprints on the pistol.
On September 6, 2013, the federal habeas proceeding was abated while Barnes pursues state remedies. Barnes v. Taylor, Case No.: 6:09-cv-00299-GFVT (E.D. Ky.). The report states five exhibits "were processed for the possible recovery of latent prints. Through this examination no latent prints of value for comparison were developed."
After the second trial, but before sentencing and long before Cox Barker's archived report was located for the federal proceeding, defense counsel submitted an open records request to KSP seeking any reports of fingerprint testing on the pistol found near Miller's body. No report was provided in response to the request, leading defense counsel to believe—erroneously—no testing had occurred. As a result, Barnes moved for a new trial under CR 60.02, arguing absence of a lab report contradicted the prosecutor's opening statement at the second trial in which he said the pistol found near Miller's body was "clean" of fingerprints—a fact echoed by both Det. Hill and Freels who testified their visual examinations of the weapon revealed no prints. The trial court denied the CR 60.02 motion, finding: information provided by KSP was consistent with representations made by the prosecutor at trial and the Commonwealth's proof at trial; Barnes had more than three years to review the discovery material provided by the Commonwealth and allege errors; and, Det. Hill and Freels had testified consistently at both trials and there was no claim their testimony had changed.
Appeal of the denial of Barnes' first CR 60.02 motion was transferred from this Court to the Supreme Court of Kentucky and consolidated with the direct appeal of the conviction on retrial. The Supreme Court affirmed, stating in relevant part for our purposes:
[t]he difference between the trial testimony of finding no fingerprints and the post-trial revelation that no laboratory examination was actually made is Appellant's basis for claiming a new trial under CR 60.02. This inconsistency between the testimony of the two officers and what actually occurred is, perhaps, the most troubling aspect of this appeal.
The trial court, however, addressed those concerns and found them as unworthy and even characterized them as speculative.
The Court does not find that the information the Defendant recently obtained from the Kentucky State Police is contrary to representations made by the Commonwealth Attorney or the evidence presented by the Commonwealth. Furthermore, the Defendant does not claim that the Commonwealth deliberately withheld information from the Defendant, and the Defendant had more than three years to review the discovery provided by the Commonwealth, [sic] Both Sgt. Ken Hill and Ronnie Frees [sic] testified at an earlier trial of the case and the Defendant does not claim their testimony changed substantially from the first trial. If the Defendant had questions about the exact type of analysis conducted on the pistol, based on the discovery provided by the Commonwealth and the earlier testimony of Sgt. Ken Hill and Mr. Ronnie Freels, the Defendant could have raised those concerns long before now. It is speculation at best to suggest that if further tests had been conducted on the pistol the victim's fingerprints would have been found on the pistol.
We agree that failure of the laboratory to test for fingerprints provides no basis for CR 60.02 relief. Our decision in Foley v. Commonwealth, [55 S.W.3d 809, 814 (Ky. 2001),] requires discovery of evidence of such a character that "it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted." This standard has not been met.Barnes v. Commonwealth, 2004-SC-000197-MR, 2006 WL 734006, at *6 (Ky. Mar. 23, 2006, unpublished) (footnotes omitted) ("Barnes II").
Barnes returned to the trial court on March 13, 2007, filing an RCr 11.42 motion alleging the pistol found beside Miller's body and bullets contained within it were not tested for fingerprints; Commonwealth witnesses lied when they testified the pistol had been analyzed for prints; and, trial counsel provided ineffective assistance by failing to obtain all available discovery about the fingerprint analysis of the pistol. In denying the motion, the trial court found the Supreme Court of Kentucky had already considered and rejected the claims on direct appeal (Barnes II), prohibiting a rehashing of the same claims under RCr 11.42. The trial court further stated even if considered again, the claims were meritless; Barnes had not alleged Miller's fingerprints were on the pistol; and, it would have been speculation to suggest Miller's fingerprints would have been found on the gun had further testing occurred. Ultimately, the trial court found Barnes did not satisfy the two-prong test for ineffective assistance of counsel—unreasonable attorney error resulting in prejudice. Strickland v. Washington, 466 U.S. 668, 670, 104 S. Ct. 2052, 2056, 80 L. Ed. 2d 674 (1984). This Court affirmed denial of the RCr 11.42 motion in Barnes v. Commonwealth, 2007-CA-001747-MR, 2008 WL 2468891 (Ky. App. June 20, 2008, unpublished) (Barnes III), noting the Supreme Court of Kentucky had already addressed and rejected the claim in Barnes II, stating:
[a]n issue raised and rejected on direct appeal may not be relitigated in an RCr 11.42 proceeding by simply claiming that it amounts to ineffective assistance of counsel. Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006).Barnes III, at *5.
Barnes next filed a federal habeas corpus petition claiming no fingerprint analysis had occurred because no report was produced in response to an open records request. Ultimately, an electronic copy of the lab report—which KSP had archived—was located and filed in federal court in 2009. With the AFIS-Latent Unit at Criminal Records and Identification report in hand, Barnes supplemented his habeas petition arguing his constitutional rights were violated when Det. Hill and Commonwealth Attorney Rogers withheld the report and Cox Barker's identity.
Automatic Fingerprint Identification Section.
Rogers took office on January 1, 2001, about eighteen months after Cox Barker completed her report. He did not discuss the case with Bertram, the Commonwealth Attorney who handled the case originally. Rogers was unaware of any discovery issues.
On June 5, 2014, Barnes filed a lengthy motion to vacate and grant new trial pursuant to RCr 10.02(1), RCr 10.06(1), CR 60.02(f) and CR 60.02(d)—the heart of this appeal. After holding hearings on two separate days, the trial court found the motion was barred both procedurally and factually. Barnes disagreed, claiming he had good cause for not filing a timely motion—the Commonwealth had not provided the fingerprint analysis report during discovery and counsel did not demand it. We review the trial court's order denying the motion for an abuse of discretion. St. Clair v. Commonwealth, 451 S.W.3d 597, 617 (Ky. 2014) (citing Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008)).
Barnes argues a new trial is justified because the fingerprint analysis report is newly discovered evidence. We disagree and begin with a review of the rules governing new trial requests based on newly discovered evidence. RCr 10.06(1) mandates a new trial motion be:
served not later than five (5) days after return of the verdict. A motion for a new trial based upon the ground of newly discovered evidence shall be made within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits.Barnes was first tried and convicted in 2001. He was retried and convicted again in 2004. Both convictions were reviewed by the Supreme Court of Kentucky on direct appeal. The current claims were not raised on either direct appeal. The CR 60.02 motion currently under review was filed in 2014, clearly outside the one-year window established by RCr 10.06(1).
Barnes contends the late timing was justified by good cause. As mentioned previously, the fingerprint analysis report was not provided to the defense before trial or retrial, but defense counsel knew in 1999—well before the first trial got underway in 2001—analysis had been performed and completed. As of November 30, 1999, he knew the results of the analysis, he just lacked the physical report. The trial court found defense counsel could have easily acquired the actual report directly from AFIS by making a simple telephonic request. The trial court concluded no good cause justified consideration of a motion filed outside the one-year window.
We agree with the trial court. Counsel knew well in advance of the first trial fingerprint analysis had occurred and knew the testing "produced no significant results." Counsel also knew it did not have the physical report confirming those results. Furthermore, when ultimately produced, albeit not until 2009, Cox Barker's report stated, "no latent prints of value for comparison were developed[,]" supporting Bertram's 1999 summary of the lab analysis. Thus, the physical report added no new information. Had counsel desired a complete file, he could have requested the report from AFIS or simply reminded the Commonwealth the report had not been provided in discovery. Trial counsel did neither. But, inaction is not always ineffective assistance of counsel. "It is not ineffective assistance of counsel to fail to perform a futile act." Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002). Barnes has not persuaded us the actual report would have changed the outcome of the retrial. Based on the record, we have no grounds on which to conclude the trial court abused its discretion.
We move next to CR 60.02 which reads in its entirety:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.CR 60.02 (d) and (f), the two provisions relied on by Barnes, require the request for relief be filed "within a reasonable time[.]" This motion was filed fifteen years after Cox Barker completed her report in 1999—the same year defense counsel learned fingerprint analysis had been completed and yielded nothing of consequence. The motion was also filed thirteen years after Barnes was first convicted in 2001. As noted by the trial court, the current claim was in default years ago because it was not raised on direct appeal in 2001.
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating
the judgment and further allege special circumstances that justify CR 60.02 relief.Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).
Barnes alleges counsel was ineffective for failing to demand a copy of the actual report. This alleged error was known at the time of two direct appeals, the filing of an RCr 11.42 motion, and the filing of the first CR 60.02 motion. Gross dictates CR 60.02 is limited to issues that cannot be raised on direct appeal or RCr 11.42. This claim was known, and therefore, could have, and indeed should have, been raised during one of those initial attacks—most particularly, the first direct appeal, and if not then, the RCr 11.42 motion. RCr 11.42 specifies in part:
[t]he motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.RCr 11.42(3). The purpose of the quoted provision is to prohibit piecemeal litigation. This case is a perfect example of what the rule seeks to avoid. Because the claims could have been included in the direct appeals or the RCr 11.42 motion, this latest CR 60.02 motion is a successive collateral attack and as such is prohibited. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citing Gross, 648 S.W.2d at 856). The trial court correctly found the current CR 60.02 claim is barred both by time and procedure. There was no abuse of discretion.
Finally, Barnes' claims do not justify granting a new trial under RCr 10.02(1). This rule authorizes a trial court to order a new trial "for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice." Granting a new trial is entirely discretionary and frowned upon when newly discovered evidence "is merely cumulative or impeaching in nature." Foley v. Commonwealth, 425 S.W.3d 880, 888-89 (Ky. 2014) (citing Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1990)). Here, the physical lab report merely confirmed information given to the defense orally in 1999. Thus, it was not truly new, and it was "merely cumulative." Furthermore, it would not have caused the Commonwealth to change its theory of the case, and we cannot say with "reasonable certainty" it "would probably change the result if a new trial should be granted." Jennings v. Commonwealth, 380 S.W.2d 284, 285-86 (Ky. 1964) (quoting Ferguson v. Commonwealth, 373 S.W.2d 729, 730 (Ky. 1963)).
For the foregoing reasons, we affirm the order of the Wayne Circuit Court denying relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Brenda Popplewell
Somerset, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky