Opinion
NO. 2011-CA-000805-MR NO. 2012-CA-000511-MR
03-22-2013
ROBERT YELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Rachel G. Cohen Assistant Public Advocate LaGrange, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 04-CR-00232
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KELLER, JUDGES. CLAYTON, JUDGE: This is the appeal of motions pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 which were denied by the trial court. After a careful review of the record and applicable law, we affirm the decision of the trial court in denying both the CR 60.02 and RCr 11.42 motions.
BACKGROUND INFORMATION
The facts, as set forth by the Kentucky Supreme Court in Yell v. Commonwealth, 242 S.W.3d 331 (Ky. 2007), are as follows:
In 2004, Robert Yell was living in a trailer in Russellville with his girlfriend, April Carpenter, their two children, Saralynn Yell, eleven months old, and Cameron Yell, two years old, and April's two children from a prior relationship, Zachary Carpenter and Nicholas Carpenter. On September 11, 2004, Robert, April, Saralynn, Cameron, Zachary and Nicholas went to a neighbor's house for the afternoon. The children played outside with the children of the neighbors, Lindsey Bromm and Donald Powell, while Robert and April proceeded to drink a large amount of alcohol and smoke marijuana. April and Robert became very intoxicated, and at some point, Robert became belligerent with Donald Powell and they began arguing. Robert tried to get April to leave, but April did not want to go home. April and Robert then began arguing. Sometime before 5:00 p.m., Robert, April, and all four children went home to their trailer.Id. at 333-34.
According to April, once they got back to the trailer, she and Robert got into an argument. April testified that she and Robert fought frequently because she recently had an affair with another man when Robert was in jail. The fight escalated and Robert began choking her. April ultimately freed herself and ran back to Lindsey Bromm's house with Zachary and Nicholas following behind her. April arrived at Bromm's house at approximately 7:00 p.m. After staying there for twenty to forty minutes, April wanted to go back to her trailer to get the other two children. When April began walking back to the trailer, she noticed smoke and realized the trailer was on fire. She ran into the burning trailer and retrieved Saralynn from the front room and handed her off to Officer Ron Mills of the Russellville Police Department. April attempted to go back into the burning trailer to get Cameron, but the smoke and fire were too bad. The police refused to let April go back into the trailer again.
Ultimately, Cameron was pulled from the blazing trailer by firefighters, but, by that time, he had already died of smoke inhalation. Saralynn sustained third-degree burns to 50% of her body and extensive respiratory damage as a result of smoke inhalation. The evidence established that Saralynn suffered permanent, painful injuries as a result of the fire that have necessitated protracted hospitalization and numerous surgeries.
As a result of the events of September 11, 2004, Robert was indicted on October 28, 2004, on one count each of First-Degree Arson, Capital Murder, Attempted Murder, Fourth-Degree Assault, Resisting Arrest, Menacing, Third-Degree Terroristic Threatening, Public Intoxication, Third-Degree Assault, Second-Degree Disorderly Conduct, and for being a First-Degree Persistent Felony Offender (PFO I). On February 8, 2006, Robert attempted to enter a guilty plea pursuant to a plea bargain with the Commonwealth whereby he agreed to plead guilty to Third-Degree Arson, two counts of First-Degree Assault, one count of Third-Degree Assault, and PFO II in exchange for a recommendation of a twenty-five year sentence. After determining that the plea was actually an Alford plea, the court refused to accept the plea because it did not usually accept Alford pleas. Consequently, a jury trial was held from February 10, 2006, through February 22, 2006. Robert was found guilty of First-Degree Arson, First-Degree Assault, Second-Degree Manslaughter, and PFO II. Robert was also convicted of two misdemeanors, Fourth-Degree Assault and Disorderly Conduct. Robert was sentenced to: 26 years on the Arson conviction; 20 years (10 years enhanced to 20 years by the PFO II) on the Manslaughter conviction; 26 years (20 years enhanced to 26 years by the PFO II) on the First-Degree Assault; 12 months on the Fourth-Degree Assault; and 90 days on the Disorderly Conduct. The sentences for the Arson and First-Degree Assault convictions were to run consecutively, with the remaining sentences to run concurrently, for a total of 52 years imprisonment.
On direct appeal, the Kentucky Supreme Court rejected Yell's arguments and on April 7, 2008, Yell filed an RCr 11.42 motion with the trial court. On March 18, 2011, the trial court denied Yell's motion for relief, but set forth its opinion regarding the jury verdict:
After the jury was served supper, the court discussed with counsel that if no verdict was reached, and unless both the Commonwealth and defense agreed not to sequester the jury, that the criminal rules required that the jury be sequestered. Defense counsel would not agree not to sequester the jury and the jury was informed that they would be put into a local motel for the night at 11:00 pm. This judge recalls, that the jury was informed of this decision sometime between 9 and 10:30 pm. No mention of the possibility of sequestration had been made previously in the trial process and it was understood that this news would be a shock to the jurors. This is a rural community. It is likely that some of the jurors were not accustomed to being away from their families or in a motel overnight for any reason.Order Denying RCr 11.42 Motion at 2-3.
The verdicts were returned only minutes before the jury was scheduled to be taken to the motel. Several jurors appeared visibly shaken during the process of returning the verdicts and the polling of the jurors. The decision of defense counsel not to agree that the jury not
be sequestered is clearly a matter of strategy and not a question of ineffective assistance of counsel.
On December 6, 2011, Yell filed a motion pursuant to CR 60.02 asserting that the Commonwealth's experts presented false testimony and that it was grounds for reversal under Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999). The trial court also denied Yell's CR 60.02, holding as follows:
This Judge disagreed with the jury the (sic) verdict as to arson and has repeatedly stated since it was rendered that he would set that verdict aside if he could find any legitimate legal basis to do so. The testimony of certain expert witnesses at trial, in the opinion of this Judge, was practically baseless and the jury should not have accepted it. Other evidence contradicted the expert testimony concerning arson. It is the jury's role to determine the weight and credibility of witnesses. Juries can and do make mistakes that cannot be fixed by the Judge.Oder Denying Motion to Vacate Judgment of Conviction Pursuant to CR 60.02(f) entered February 7, 2012 at 2.
This Judge has no reason to think that the witnesses did not subjectively believe their own testimony. Defense counsel made a brave effort but there simply are no facts which could support a finding that any testimony at trial was perjured. Regrettably, the motion must be denied.
Yell then filed this appeal of the denial of both his motions.
STANDARD OF REVIEW
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 "motion is limited to [the] issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 674 (1984). Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Pursuant to the holding in Strickland, supra, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. 2068.
We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Therefore, we affirm the lower court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). With these standards in mind, we examine the decisions of the trial court.
DISCUSSION
I. RCr 11.42.
In his RCr 11.42 motion, Yell contends that his counsel was ineffective in failing to understand the science of fire in order to effectively cross-examine the Commonwealth's expert witness; that the trial court erred in concluding that counsel's performance would not have altered the outcome of his case; and, that counsel's deficient performance prejudiced him as it permitted the jury to believe the infallibility of the Commonwealth's experts and left the jury without a reasonable alternative explanation for the fire.
At trial, defense counsel hired Dr. Stephen Spies as an arson expert. It was Dr. Spies's testimony that he could not find beyond a reasonable doubt that the fire had been arson. The Commonwealth presented evidence in the form of testimony from Deputy Fire Marshall Alan Gregory, David West of the Kentucky State Police and Buster Canon of the Georgetown Fire Department. In discussing the sufficiency of the evidence of arson in Yell's direct appeal, the Kentucky Supreme Court found as follows:
Robert argues that there was insufficient circumstantial evidence that he intentionally started the fire in this case [Kentucky Revised Statutes] (KRS 513.020), which was the basis for the Manslaughter and First-Degree Assault convictions for causing the death of Cameron and serious physical injury to Saralynn in the fire. Thus, he maintains that the trial court erred in denying his motion for directed verdict on those three charges. KRS 513.020(1) provides:Yell, 242 S.W.3d at 337-339.
A person is guilty of arson in the first degree when, with the intent to destroy or damage a building, he starts a fire or causes an explosion, and;
(a) The building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; orOur standard of review on a motion for directed verdict is set forth in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), as follows:
(b) Any other person sustains serious physical injury as a result of the fire or explosion or the firefighting as a result thereof.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. . . ."The test is the same when the only evidence of guilt is circumstantial." Ratliff v. Commonwealth, 194 S.W.3d 258, 267 (Ky. 2006) (citing Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994), and Nugent v. Commonwealth, 639 S.W.2d 761, 763-64 (Ky. 1982)).
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
As to the evidence that the fire was intentionally set, besides the dog's alerts to the presence of accelerants, David West (a fire investigator for KSP), Al Gregory (Assistant Fire Marshall), Samual Flowers (Kentucky Fire Marshall), and Buster Cannon all testified that the burn pattern of the fire pointed to Arson. They testified that the low, deep (all the way through the floor), v-shaped burn patterns and the fact that these
areas of deep burn were not connected were indicative of a fire that was intentionally set. Flowers explained that fires usually burn upward, but when an accelerant is used, a fire burns low and deep. Flowers and West both testified that their investigation of the fire scene revealed that there were three separate fire origins in the trailer that were not connected at floor level. This coupled with the fact that there was no evidence of any electrical fire, fire from the stove, or act of God led them to the conclusion that the fire was intentionally set with a combustible liquid. Cannon also testified that there was a shiny coating in the areas of deep burn, which is consistent with an accelerant being used. Finally, West testified that charcoal lighter fluid was found in the trailer, which could have been used to start the fire, and a lighter was found in the yard behind the trailer the day after the fire.
As to the evidence that Robert was the one who started the fire, there was evidence that Robert was angry at April on the day in question and was at the trailer with Cameron and Saralynn at the time of the fire. April testified that she and Robert had gotten into a fight that afternoon about her affair that culminated in Robert choking her. When she left with Zachary and Nicholas, Robert was at the trailer with Cameron and Saralynn.
Kay Lyons, who had taken Robert to the liquor store before the fire, also testified that April and Robert were fighting on the day of the fire. Lyons testified that after she brought Robert back to his house, Robert asked her to take Zachary and Nicholas with her. Lyons replied that she would take all four children. Robert indicated that the other two children were taken care of and were in the house asleep. When she refused to only take Zachary and Nicholas, Robert got angry and took out a knife and said, "you don't know what I can do to you." At that point, Lyons went to the police station to report Robert's threat.
Robert's own testimony was consistent with the evidence that he was at the trailer at the time of the fire and had the means to start the fire. Robert testified that
after Lyons dropped him off, he went and got the children from the house of Charlotte Bellor, a neighbor who was friends with April. The last thing he remembered was coming back to the trailer with more alcohol and sitting in his chair in the trailer. After that, Robert maintains that he blacked out and remembers nothing until he was at the sally port at the jail later that night. Robert also testified that he usually carried a lighter on his person and that he likely had one on the night of the fire.
The first police report regarding the events of that evening was made by Charlotte Bellor. Bellor called 911 to report that Robert was drunk and trying to kick her door in. In that call, Bellor also reported that she could see smoke and fire coming out of Robert's trailer.
The next time Robert was seen was at the home of Tina Maskin, another neighbor of Robert's. Maskin testified that Robert came to her home in a very intoxicated state. Maskin allowed him to come in the house and, while seated on her couch, she observed that he kept flicking a lighter and playing with a pocket knife. Maskin told her children to lock themselves in the bathroom. Maskin then noticed that the police were at Robert's home and advised Robert of this. Robert went into Maskin's bedroom and tried to hide under her bed. When Maskin told him that his trailer appeared to be on fire, Robert responded that April had better have gotten Cameron and Saralynn out.
When Officer Ronald Mills of the Russellville Police Department responded to the fire, Robert was at the scene. According to Mills, Robert kept repeating the statement, "The bitch better have gotten Cameron and Saralynn out." And, when Robert was taken into custody, he made the statement multiple times to Officer Chad Eggleston and Officer Ed Higgins, "If that bitch had done to you what she did to me, you would have done the same fucking thing."
From our review of the evidence in the light most favorable to the Commonwealth, there was more than
sufficient evidence to induce a reasonable juror to believe beyond a reasonable doubt that Robert intentionally set the fire in the trailer. The Commonwealth presented evidence that the fire was intentionally set, that Robert was at the trailer at the time of the fire, had a motive to start the fire (anger at April), had the means to start the fire (lighter and lighter fluid), and that the trailer was occupied by other persons who sustained serious physical injury in the fire. Additionally, there was the evidence of the statement made by Robert to police after the fire that could be viewed as a confession—"If that bitch had done to you what she did to me, you would have done the same fucking thing." And contrary to Robert's assertion that finding him guilty of arson required a pyramiding of inferences in violation of Pengleton v. Commonwealth, 294 Ky. 484, 172 S.W.2d 52 (1943), the inference that the fire was intentionally set and the inference that Robert set the fire were not dependent on one another. As can be seen from our analysis above, there was a completely separate body of evidence supporting the reasonable inferences that the fire was the result of arson and that Robert was the one who set the fire.
In his RCr 11.42 motion, Yell contends that it was the canine's hits coupled with three unconnected burn-throughs that were relied upon by the jury in convicting him. He alleges his counsel was ineffective in using his expert, Dr. Spies, and learning about the issues of fire science which would have enabled trial counsel to efficiently cross-examine the witnesses and poke holes in the Commonwealth's case against him. He contends that the court, in reviewing a failure to learn forensic science relating to the case, must examine under a failure to investigate standard pursuant to Richey v. Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007). Thus, he argues, the question is not whether counsel presented some evidence, but whether counsel "adequately followed up on the leads presented to them."
Yell has set forth specific issues with the cross-examination of the witnesses; however, the trial court did not specifically address those issues. The trial court was aware of Yell's arguments and even adopted Yell's statement of facts and summary evidentiary hearing testimony. The trial court found "[t]he illogical nature of the conclusions of the experts who testified for the Commonwealth were in fact brought out at trial both on cross and in closing argument by defense counsel in this case." Order Denying RCr 11.42 Motion entered May 18, 2011 at 1. The experts have been noted in the record as having strong personalities. It is also evident that they were experts in their field. With such, there is only speculation that more knowledge of the science of fire would have changed either the experts' testimony or the end result of the trial. Thus, we affirm the trial court's decision on the RCr 11.42 motion. II. CR 60.02 Motion.
In his motion brought pursuant to CR 60.02, Yell asserts that he is entitled to relief for the following reasons:
1. In light of the grounds raised in both his RCr 11.42 motion and his CR 60.02 motion; andThe Commonwealth, however, contends that Yell's argument is specious at best and that the experts provided conflicting testimony which the jury appropriately weighed.
2. The gross misstatement of the validity of the forensic science relied upon by the Commonwealth's experts.
Yell begins by stating that this Court must examine his CR 60.02 motion as complementary to his RCr 11.42 motion. As set forth above, we have affirmed the decision of the trial court regarding the RCr 11.42 motion and found Yell had effective assistance of counsel at trial. Thus, we will discuss the CR 60.02 standing alone.
Yell argues that the trial court's finding that an injustice occurred indicates he is entitled to relief. Specifically, he contends that the trial court, in its denial of his motions, has stated that:
[t]he strong weight of the circumstantial evidence was against any finding that the fire involved was intentionally set by Yell. . . there was also circumstantial evidence which, in this judge's opinion, showed that the fire was most likely the result of accident.Order Denying RCr 11.42 Motion entered March 18, 2011, at 2.
The trial court also stated that "[e]veryone was aware that the community was outraged at the thought that anyone would intentionally burn children to death." Id. In denying the CR 60.02 motion, the trial court opined as follows:
This Judge disagreed with the jury verdict as to arson and has repeatedly stated since it was rendered that he would set that verdict aside if he could find any legitimate legal basis to do so. The testimony of certain expert witnesses at trial, in the opinion of this Judge, was practically baseless and the jury should not have accepted it. Other evidence contradicted the expert testimonyOrder Denying Motion to Vacate Judgment of Conviction Pursuant to CR 60.02(f) entered February 7, 2012 at 2.
concerning arson. It is the jury's role to determine the weight and credibility of witnesses. Juries can and do make mistakes that cannot be fixed by the judge.
Based upon the trial judge's thoughts on his innocence, Yell contends that we are required to defer to its findings of fact pursuant to Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007), and Henson v. Commonwealth, 20 S.W.3d 466 (Ky. 1999). The trial judge did not, however, make findings of fact in the original trial. As to the evidentiary hearings he held on the two motions before us, the trial judge found that there was no avenue for relief for Yell under either RCr 11.42 or CR 60.02.
Yell next argues that he is entitled to a new trial due to the gross misstatement of the validity of the forensic science relied upon by the Commonwealth's experts. He contends that it went so far that the Commonwealth unwittingly introduced false testimony at the trial. We do not, however, find this to be a valid argument.
In Commonwealth v. Spaulding , 991 S.W.2d 651, 654 (Ky. 1999), the case involved the reasonable certainty of perjured testimony being introduced at trial. The Supreme Court in Spaulding, determined:
This use of perjured testimony is treated like newly discovered evidence for the purposes of CR 60.02. Cf. Mullins v. Commonwealth, Ky., 375 S.W.2d 832, 834 (1964); see also North Dakota v. Thiel, 515 N.W.2d_186, 188 (N.D.1994). "[I]n order for newly discoveredId. at 654. Additionally, Spaulding also held:
evidence to support a motion for new trial it must be 'of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.' " Jennings v. Commonwealth,_Ky., 380 S.W.2d 284, 285-86 (1964), quoting Ferguson v. Commonwealth, Ky., 373 S.W.2d 729, 730 (1963). And, of course, the defendant has the additional burden of showing within a reasonable certainty that perjured testimony was in fact introduced against him at trial. Anderson v. Buchanan, Ky., 292 Ky. 810, 168 S.W.2d 48, 54 (1943).
Thus, we conclude that in the appropriate case the introduction of perjured testimony, which is not known as such by the prosecutor, can result in a violation of the right to due course of law and the right to due process of law as provided by the Kentucky and United States Constitutions. Thus, we hold that a criminal conviction based on perjured testimony can be a reason of an extraordinary nature justifying relief pursuant to CR 60.02(f) and subject to the reasonable time limitation of the rule. Of course, the burden remains on the defendant to show both that a reasonable certainty exists as to the falsity of the testimony and that the conviction probably would not have resulted had the truth been known before he can be entitled to such relief.Id. at 657. (Footnote omitted).
In the current case, Yell asserts disagreement about the forensics of arson. This issue would have been better discussed at a Daubert hearing. The expert witnesses called by the Commonwealth have not been proven unreliable. The defense counsel did cross-examine the Commonwealth experts and presented his own expert. The differing theories were heard and presumably considered by the jury. This is not the same scenario as discussed in Spaulding.
Yell also asserts that three areas of involvement and burn-through do not mean three points of origin. He asserts that the testimony of West and Gregory at his RCr 11.42 evidentiary hearing indicates the opposite of what they testified to at trial. The testimony at an evidentiary hearing, however, was under a completely different set of circumstances and should not be used to second guess the verdict.
On direct appeal, the Kentucky Supreme Court summed up the sufficiency of the evidence in this case as follows:
[T]here was more than sufficient evidence to induce a reasonable juror to believe beyond a reasonable doubt that Robert intentionally set the fire in the trailer. The Commonwealth presented evidence that the fire was intentionally set, that Robert was at the trailer at the time of the fire, had a motive to start the fire (anger at April), had the means to start the fire (lighter and lighter fluid), and that the trailer was occupied by other persons who sustained serious physical injury in the fire. Additionally, there was the evidence of the statement made by Robert to police after the fire that could be viewed as a confession—"If that bitch had done to you what she did to me, you would have done the same fucking thing." And contrary to Robert's assertion that finding him guilty of arson required a pyramiding of inferences in violation of Pengleton v. Commonwealth, 294 Ky. 484, 172 S.W.2d 52 (1943), the inference that the fire was intentionally set and the inference that Robert set the fire were not dependent on one another. As can be seen from our analysis above, there was a completely separate body of evidence supporting the reasonable inferences that the fire was the result of arson and that Robert was the one who set the fire.Yell, 242 S.W.3d at 339.
We agree, and nothing from the evidentiary hearing would change the outcome of the case at trial. Thus, for the above reasons, we affirm the decision of the trial court in denying both the CR 60.02 and RCr 11.42 motions.
ALL CONCUR. BRIEFS FOR APPELLANT: Rachel G. Cohen
Assistant Public Advocate
LaGrange, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky