Opinion
NO. 2011-CA-001577-MR
05-03-2013
GERALD YOUNG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Matthew Boyd Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL JR, JUDGE
ACTION NO. 97-CR-01069
OPINION
AFFIRMING
BEFORE: MAZE, CAPERTON AND VANMETER, JUDGES. MAZE, JUDGE: In June of 1998, Gerald Young and two co-defendants were tried for crimes arising from the murder of Osama Shalash on June 13, 1997, in Fayette County. Young was convicted of Complicity to Murder and sentenced to death. On direct appeal, the Kentucky Supreme Court reversed the sentence, finding that there was no aggravating circumstance applicable to his participation in the murder of Shalash. Young v. Commonwealth, 50 S.W.3d 148 (Ky. 2001). On remand, Young received a sentence of life imprisonment, which the Kentucky Supreme Court affirmed. Young v. Commonwealth, 129 S.W.3d 343 (Ky. 2004).
Thereafter, Young filed a motion to alter, amend or vacate his conviction and sentence pursuant to Kentucky Rule of Criminal Procedure ("RCr") 11.42, alleging ineffective assistance of counsel. The trial court denied the motion. On appeal, this Court reversed on one issue. However, the Kentucky Supreme Court ultimately reinstated the trial court's denial of the motion. Commonwealth v. Young, 212 S.W.3d 117 (Ky. 2006).
On April 19, 2010, Young filed the current motion to set aside the judgment pursuant to Kentucky Rule of Civil Procedure ("CR") 60.02(f). He alleged that he was denied due process when the prosecuting attorney knowingly presented false testimony and when the trial court failed to instruct on the lesser-included offense of Solicitation to Murder. The trial court found that the first issue was untimely and that all issues should have been raised either on direct appeal or in the RCr 11.42 motion. Consequently, the trial court denied the motion without conducting an evidentiary hearing. This appeal followed.
On appeal, this Court reviews a CR 60.02 motion for abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). When a defendant avails upon CR 60.02, it is not merely an opportunity to re-litigate the same issues which could "reasonably have been presented" on direct appeal or in prior RCr 11.42 proceedings, but as a substitute for the common-law writ of coram nobis. RCr 11.42(3); Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983). "CR 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." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). "Final disposition of [the RCr 11.42] motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. Gross, supra at 857.
Young first alleges that the Commonwealth knowingly presented the false testimony of Danny Ray Craddock, who testified that Young confessed to him his involvement in the murder while they were incarcerated together. Along similar lines, Young argues that the trial court should have excluded the testimony or granted a mistrial after it was made known that Craddock's testimony was false.
Young brought these claims under CR 60.02(f), which allows for relief for "any other reason of an extraordinary nature ..." and requires only that the motion be brought "within a reasonable time." However, we agree with the trial court that it more properly belongs under CR 60.02(b), which allows for relief for newly discovered evidence, or CR 60.02(c), which allows for relief based upon perjury or falsified evidence. Such motions must be made within one year from entry of the judgment. And even if the issue was properly brought under CR 60.02(f), he makes no substantive attempt to argue that that he raised these claims within a reasonable time. Under any set of circumstances, Young's current motion is untimely.
Moreover, when claims involving the introduction of perjured testimony are raised in a CR 60.02 motion, the defendant has the burden to 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. Commonwealth v. Spaulding, 991 S.W.2d 651, 657 (Ky. 1999). Young has not made either showing.
Craddock's credibility was put squarely at issue at trial and he was subject to vigorous cross-examination by Young's counsel. While the evidence of Craddock's credibility was conflicting, Young fails to establish the falsity of Craddock's testimony with any reasonable certainty. Furthermore, he presents no basis, other than mere speculation, that the prosecutor knowingly presented perjured testimony. Thus, we agree with the trial court that the issue of Craddock's credibility was properly submitted to the jury. Finally, even if there were a factual basis for these unsupported allegations, this information was known to Young during his prior appeals and motions.
Likewise, we agree with the trial court that Young should have raised any objections to the instructions in his direct appeal, or as part of his ineffective assistance claim in his RCr 11.42 motion. Young has shown no reason for his failure to do so until now. In addition, unlike in Beck v. Alabama, 447 U.S. 625 (1980), Young was not prohibited from seeking an instruction on a lesser-included offense; his trial counsel simply never requested such an instruction.
The trial court further noted that there was no evidence to support an instruction on Solicitation to Murder as a lesser-included offense of Complicity to Murder. Even if a request had been made, a trial court has no duty to give an instruction on a lesser-included offense which is not supported by the evidence. Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). Young fails to establish that the trial court was obligated to give an instruction for Solicitation to Murder on its own motion.
Accordingly, the order of the Fayette Circuit Court denying Young's motion for relief from his judgment of conviction pursuant to CR 60.02 is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Matthew Boyd
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky