Opinion
NO. 2013-CA-000563-MR
04-18-2014
CHARLIE CARWILE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Charlie Carwile Pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 82-CR-00030
OPINION
AFFIRMING
BEFORE: JONES, MAZE, AND MOORE, JUDGES. MOORE, JUDGE: Charlie Carwile appeals the Breckinridge Circuit Court's order denying his CR 60.02 motion for relief from the court's judgment convicting him of murder. After a careful review of the record, we affirm because Carwile's claims could have and should have been brought on direct appeal or in a timely-filed RCr 11.42 proceeding.
Kentucky Rule of Civil Procedure.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1982, Carwile was convicted of the capital offense of murder and sentenced to life imprisonment. He moved for a new trial, arguing that he had submitted jury instructions to the court incorporating the language of KRS 507.020(1)(a) and KRS 507.030(b) "regarding [Carwile's] acting under the 'influence of extreme emotional disturbance' at the time he shot Danny Board and the effect this would have had upon his culpability for the offenses of Murder and Manslaughter in the First Degree." Carwile contended in his motion for a new trial that the circuit court refused to submit his instructions on this issue to the jury, or similar instructions.
Kentucky Revised Statute.
Although there is no order in the record before us specifically denying Carwile's motion for a new trial, we note that the motion was filed before the circuit court's final judgment was entered sentencing Carwile to life imprisonment. He then appealed that judgment.
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Carwile appealed, claiming inter alia that the circuit court erred in failing "to give an instruction under KRS 507.020, on extreme emotional disturbance." Carwile v. Commonwealth, 656 S.W.2d 722, 723 (Ky. 1983). The Kentucky Supreme Court noted, however, that Carwile cited "no testimony which would justify such an instruction and [the Supreme Court was] unable to find any of record." Carwile, 656 S.W.2d at 723. The Court then quoted its holding in a prior case: "'An instruction on murder need not require the jury to find that the defendant was not acting under the influence of extreme emotional disturbance unless there is something in the evidence to suggest that he was, thereby affording room for a reasonable doubt in that respect.'" Carwile, 656 S.W.2d at 723 (quoting Gall v. Commonwealth, 607 S.W.2d 97, 109 (1980)). The Supreme Court held that Carwile "relied on the defense of self-protection, on which the jury was instructed. Self-protection and emotional disturbance are separate defenses and the presence of the former does not automatically trigger the latter, although under certain circumstances and with certain evidence, both might well be justified." Carwile, 656 S.W.2d at 723. Thus, the judgment against Carwile was affirmed.
Twenty-nine years after Carwile's judgment became final, he filed his CR 60.02 motion in the circuit court. His motion was denied.
Carwile now appeals, contending that: (a) he was sentenced in violation of Kentucky statutes and due process of law when he was sentenced without a presentence investigation report having been completed; and (b) a psychological evaluation should have been conducted of Carwile because if it had, he would have been entitled to a jury instruction on extreme emotional disturbance.
II. STANDARD OF REVIEW
On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or RCr 11.42 proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks omitted). Civil Rule 60.02 "is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." Id.
III. ANALYSIS
A. PRESENTENCE INVESTIGATION REPORT
Carwile first alleges that he was sentenced in violation of Kentucky statutes and due process of law when he was sentenced without a presentence investigation report having been completed. However, this claim could have and should have been brought on direct appeal. Therefore, it is not properly before us in this CR 60.02 proceeding, and we will not consider it.
B. PSYCHOLOGICAL EVALUATION
Carwile next asserts that a psychological evaluation should have been conducted on him because if it had, he would have been entitled to a jury instruction on extreme emotional disturbance. He acknowledges that this claim is not preserved for our review, but he nevertheless asks us to review it for palpable error under RCr 10.26. "A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." RCr 10.26.
However, Carwile's claim that the trial court and defense counsel failed to "follow the process of law as required in 1982, to have [a] psychological evaluation done," is one that he could have and should have brought on direct appeal (in the case of the claim against the trial court) or in an RCr 11.42 motion (in the case of the claim against defense counsel). Therefore, it is not properly before us in this CR 60.02 proceeding.
Alternatively, to the extent Carwile alleges that if a psychological evaluation had been conducted, he would have been entitled to an instruction on extreme emotional disturbance, his claim is speculative and we will not consider it. Further, although Carwile claims that on direct appeal, the Supreme Court "held that both [extreme emotional disturbance] and [s]elf [d]efense could . . . be raised at trial," it is clear upon review of the Supreme Court's opinion that the Court was speaking about criminal cases in general, rather than specifically about this case. This is apparent because the Court specifically held that in Carwile's case, there was no evidence of record to support an instruction on extreme emotional disturbance. Carwile, 656 S.W.2d at 723.
Accordingly, the order of the Breckinridge Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Charlie Carwile
Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky