Opinion
NO. 2014-CA-000650-MR
05-13-2016
JOHNNY PHILLIPS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Krista A. Dolan LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE THOMAS L. JENSEN, JUDGE
ACTION NO. 07-CR-00266 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Johnny Phillips appeals from the Laurel Circuit Court's denial of his motion pursuant to CR 60.02 to vacate his 2009 conviction and sentence for wanton murder. Phillips argues that his motion raised questions about his conviction in light of newly discovered evidence, including evidence which he contends the Commonwealth improperly withheld prior to trial.
Kentucky Rules of Civil Procedure.
We observe no error in the trial court's orders denying Phillips's CR 60.02 motion and his motion to reconsider and for further findings of fact and conclusions of law. Therefore, we affirm.
Background
On October 18, 2007, Phillips and a friend, Phil Glodo, got into an extended and heated argument. The Supreme Court's 2009 rendition of the facts in this case best explains the events that ensued:
A few minutes before 10:00 p.m., Glodo arrived at the residence and [continued] to argue with Phillips. Because [a friend's] children were home, Phillips suggested that they take their argument elsewhere.Phillips v. Commonwealth, No. 2009-SC-000633-MR, 2010 WL 2471669, at *1 (Ky. June 17, 2010).
Phillips and Glodo both got into their trucks to leave. As Phillips prepared to pull away Glodo yelled "I'll ram your ass." The two then drove off in the direction of Phillips's residence.
As Phillips drove down the narrow road he came upon a truck pulling a horse trailer coming in the opposite direction. In order to let the truck by, Phillips pulled over into a church parking lot. Glodo pulled in behind him. The two men got out of their vehicles, and, ultimately, Phillips shot Glodo in the back of the head with a twelve-gauge shotgun.
As further discussed below, following the shooting Phillips gave a statement to the police in which he claimed, inconsistently, that the shooting was both accidental and done in self-defense. On November 16, 2007, Phillips was indicted for Glodo's murder. Following a jury trial, Phillips was convicted of wanton murder, and the jury recommended a sentence of thirty years' imprisonment. On September 28, 2009, the trial court entered final judgment consistent with the jury's verdict and sentencing recommendation.
In Phillips's aforementioned direct appeal, the Supreme Court affirmed the conviction. Soon thereafter, Phillips filed an RCr 11.42 motion which the trial court denied, and this Court affirmed. Phillips v. Commonwealth, No. 2011-CA-002169-MR, 2012 WL 5457645 (Ky. App. Nov. 9, 2012).
Kentucky Rules of Criminal Procedure.
On February 21, 2014, Phillips filed the motion which is the subject of the instant appeal. Pursuant to CR 60.02(b) and (f), Phillips sought to vacate his conviction based upon various items of what he portrays as "newly discovered evidence." Pertinent to this appeal, Phillips contended that the Commonwealth wrongfully suppressed seven pages of an investigator's field notes taken during an interview of Phillips at the scene on the night of Glodo's death. Phillips argued that the field notes contradicted the Commonwealth's theory that Phillips shot Glodo intentionally, instead supporting his assertion of self-defense. Phillips's motion also asserted that the Commonwealth intentionally withheld an x-ray held by the Kentucky Medical Examiner which, according to Phillips, contradicted the conclusion that Glodo was shot squarely in the head. Rather, Phillips contended that the x-ray demonstrated that the shooting was accidental.
In an order entered February 12, 2014, the trial court denied Phillips's CR 60.02 motion without the benefit of an evidentiary hearing. The trial court concluded that the field notes were either not discoverable or inadmissible, and therefore not wrongfully suppressed. The court also held that Phillips failed to establish bad faith on the part of the Commonwealth in failing to disclose the x-ray. Therefore, the trial court held that the x-ray would not have changed the outcome of Phillips's trial.
Phillips filed a Motion for Findings of Fact and Conclusions of Law as to the order denying CR 60.02 relief. In addition to his request that the trial court reconsider its ruling, this motion asserted that the trial court had neglected to resolve another of Phillips's arguments: that the Commonwealth withheld a Request for Evidence Examination form containing an investigator's handwritten notes. In a lengthy order dated November 14, 2014, the trial court denied Phillips's motion. Phillips now appeals from both orders.
Standard of Review
"Given the high standard for granting a CR 60.02 motion, a trial court's ruling on the motion receives great deference on appeal...." Roberts v. Roberts, No. 2010-CA-000653-MR, 2012 WL 3764719 (Ky. App. 2012) (quoting Barnett v. Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998)) (internal citations omitted). Therefore, on the appeal of a denial of a CR 60.02 motion, the trial court's ruling will not be overturned except for an abuse of discretion. Id.; see also 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).
Analysis
The law favors the finality of judgments. "Therefore, relief may be granted under CR 60.02 only with extreme caution and only under the most unusual and compelling circumstances." Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011), citing Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). CR 60.02 itself states:
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.
Phillips brings his appeal on the basis of CR 60.02(b) and (f). To the extent that his motion is based upon the former provision, it is untimely, as the trial court entered the Judgment of Conviction and Sentence in 2009. To the extent Phillips raises these issues under CR 60.02(f), we now address the merits of his claims, remembering that to be successful under subsection (f), Phillips must show that the evidence to which he points "if presented originally [at trial] would have, with reasonable certainty, changed the result." Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996). To this end, Phillips must "specifically present facts which render the 'original trial tantamount to none at all.'" Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009) (quoting Brown at 361).
I. The Alleged Suppression of Exculpatory Evidence
Phillips contends that he only recently confirmed that the Commonwealth failed to disclose the x-ray of Glodo's head, the investigator's field notes, and a form requesting evidence examination prior to trial. He characterizes these items as exculpatory and contrary to the Commonwealth's theory of the case; hence, he argues that the Commonwealth withheld them in violation of Brady v. Maryland, 373 U.S 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that his conviction must be vacated.
In Brady, the United States Supreme Court famously declared that, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S. Ct. at 1196-97. Subsequent courts have emphasized that such evidence must be material. "[F]ailure to disclose [such evidence] constitutes reversible error only when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 681, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985). With this well-established authority in mind, we turn to the items of evidence to which Phillips points on appeal.
A. The X-Ray
The Commonwealth counters Phillips's allegations concerning the x-ray of Glodo's head with its assertion that he raised, or should have raised, these allegations in prior appeals, including one before this Court rendered in 2012. Phillips contends that, notwithstanding prior appeals, the affidavit he obtained since our 2012 decision makes the x-ray "newly discovered evidence" and compels our decision on the merits of the Brady issue. We disagree.
In our 2012 decision on Phillips's RCr 11.42 claim, we ruled that Phillips's Brady claim concerning the x-ray "should have been raised on direct appeal; consequently, we decline to address it." Phillips, No. 2011-CA-002169-MR, 2012 WL 5457645, at *9, citing Martin v. Commonwealth, 203 S.W.3d 173, 175 (Ky. App. 2006). Our ruling is the same today. That Phillips now has an affidavit to accompany his Brady claim does not render his allegation concerning the x-ray a new issue warranting post-conviction relief. On the contrary, it is now a tired claim which is also likely barred by the law of the case. See Brown v. Commonwealth, 313 S.W.3d 577, 610-11 (Ky. 2010); see also Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 244 S.W.3d 747, 751 (Ky. App. 2007) (citation omitted). Hence, we address it no further, and we need not conduct a Brady analysis.
B. Field Notes and Request for Evidence Examination
In his CR 60.02 motion, Phillips argued that the he was entitled to post-conviction relief based upon seven pages of field notes from Detective Loomis's interview with him the night of the incident which he contends the Commonwealth suppressed in violation of Brady. Phillips also alleges that the Commonwealth suppressed a document requesting fingerprint examination of the shotgun and knife found at the scene.
Phillips alleges that the trial court's orders failed to address his argument regarding the evidence examination form. We disagree. The trial court's November 14, 2014 order specifically cited RCr 7.24(2) and addressed Phillips's requests for "the handwritten notes of law enforcement officers." Thus, the trial court addressed this issue, and we can review its conclusions. --------
Following his interview with Phillips, Detective Loomis completed a request for physical examination - specifically, latent fingerprinting - upon which he wrote, "[b]e sure to check the area toward the end of the barrel of [the shotgun]." Phillips's defense at trial presented the theory that Glodo reached for the barrel of the shotgun during a struggle, causing it to discharge. However, Detective Loomis testified that Phillips told him during their interview that the shotgun discharged when Phillips twice shoved Glodo off of him using the shotgun. Phillips contends that the Commonwealth's suppression of Detective Loomis's field notes and request form hampered his ability to impeach Detective Loomis, cross-examine the fingerprint examiner, and generally prove his version of events to the jury. We are unpersuaded.
RCr 7.24(2) states:
On motion of a defendant the court may order the attorney for the Commonwealth to permit the defendant
to inspect and copy or photograph books, papers, documents or tangible objects, or copies or portions thereof, that are in the possession, custody or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable. This provision authorizes pretrial discovery and inspection of official police reports, but not of memoranda, or other documents made by police officers and agents of the Commonwealth in connection with the investigation or prosecution of the case, or of statements made to them by witnesses or by prospective witnesses (other than the defendant).Citing this rule, the Kentucky Supreme Court held in Cavender v. Miller, 984 S.W.2d 848, 849 (Ky. 1998), that a defendant was entitled only to a copy of his statement to police, not the "the mental impressions or other ideas of the officer." The Supreme Court has also denied a defendant's request for "all investigative reports of police and statements of witnesses." Moore v. Commonwealth, 634 S.W.2d 426, 431 (Ky. 1982).
The field notes and evidence form Phillips now claims the Commonwealth wrongfully withheld fit squarely within the evidence excluded under RCr 7.24(2). The field notes clearly constitute Detective Loomis's thoughts, impressions, and documentation of his investigation. Similarly, Phillips seeks the evidence form specifically because of Detective Loomis's handwritten instruction regarding which items, and which parts of those items, should be examined. Both documents were clearly excepted from pretrial discovery under RCr 7.24(2).
We acknowledge that the restrictions of RCr 7.24 cannot, by themselves, excuse a violation of the important constitutional protections extolled in Brady. A criminal defendant is properly "protected from overreaching discovery orders by the Fifth, Sixth, and Fourteenth Amendments to our U.S. Constitution and Section Eleven of our state constitution." Commonwealth v. Nichols, 280 S.W.3d 39, 44 (Ky. 2009). However, even if we were to come to the conclusion that the trial court's application of RCr 7.24 was improper, or that the rule must yield to Brady considerations, Phillips's motion would still lack the necessary prerequisites for vacation.
Brady requires a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 681, 105 S. Ct. at 3383. However, the allegations in Phillips's motion concerning both the field notes and the evidence examination form fall short of raising "probability sufficient to undermine confidence in the outcome." Id. Detective Loomis's field notes contained statements from Phillips, Glodo's wife, and one other witness, as well as Detective Loomis's general notes. Nothing in the record indicates that Phillips was unaware of these witnesses, what he or they had said, or that they may be called at trial. Furthermore, Glodo's wife and the other witness did not testify at trial. Therefore, we cannot agree with Phillips that the result of his trial would have differed had the Commonwealth disclosed the seven pages of field notes prior to trial.
Regarding the evidence examination form, Phillips's argument as to its materiality and likely effect on the outcome of his trial is speculative, at best. He argues that had the evidence examination form been available to his defense, he could have cross-examined the finger print examiner using the form or "it might have jogged Loomis'[s] memory about what Phillips'[s] demonstration actually showed, or at the very least, been used for cross-examination." However, Phillips was aware prior to trial that the end of the shotgun barrel showed fingerprint smudges, and he cross-examined the fingerprint examiner at trial. Given these facts, that he did not have the evidence examination form in question is insufficient to undermine our confidence in the result of Phillips's trial.
Finally, Phillips has argued that the trial court erred in not conducting an evidentiary hearing concerning the "material issues" he claims he has raised. Indeed, Kentucky law mandates that a trial court hold an evidentiary hearing on a CR 60.02 motion when that motion "affirmatively allege[s] facts which, if true, justify vacating the judgment and further allege[s] special circumstances that justify CR 60.02 relief." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). As we have held that, for various reasons, Phillips's motion fails to allege such special circumstances, a hearing was not required.
Conclusion
For various reasons, Phillips's motion for post-conviction relief must fail. Therefore, the Laurel Circuit Court's February 12, 2014 and November 14, 2014 orders are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Krista A. Dolan
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky