Opinion
NO. 2011-CA-001169-MR
01-18-2013
CLINTON BREWER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Clinton Brewer, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 00-CR-00282-001
OPINION
AFFIRMING
BEFORE: KELLER, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: Clinton Brewer, proceeding pro se, has appealed from the order of the McCracken Circuit Court denying his motion for the Commonwealth to produce the grand jury testimony in his case. Because we agree with the circuit court and the Commonwealth that Brewer is not entitled to post-conviction discovery, we affirm the order on appeal.
For our recitation of the facts underlying this appeal and because the record on appeal is sparse, we shall rely upon this Court's statement of the factual background of Brewer's case as set forth in a previous opinion from an earlier appeal:
In 2002, Brewer was convicted of murder, two counts of robbery in the first degree, and burglary in the first degree. Brewer entered into a plea agreement with the Commonwealth after the guilt phase of trial. Pursuant to the Commonwealth's recommendation, he was sentenced to life imprisonment.Brewer v. Commonwealth, 2012 WL 3060496 (Ky. App. 2012)(2011-CA-000760-MR). This Court agreed with Brewer that he was entitled to obtain a copy of his case file pursuant to Hiatt v. Commonwealth, 194 S.W.3d 324 (Ky. 2006), and that the trial court had jurisdiction to compel Brewer's trial attorney to turn over the file as an ineffective assistance of counsel claim had already been made. The Court ultimately remanded the case to the trial court for findings regarding whether his attorney had been given the opportunity to comply with Brewer's request. Because the record in the present appeal was certified prior to the rendition of the above-referenced opinion in July 2012, it does not reflect the current status of Brewer's attempt to obtain his case file.
After filing numerous post-conviction motions over a course of years following his conviction, Brewer filed a motion with the trial court to compel the circuit court clerk to provide him with copies of the entire trial court record, including all discovery, motions, trial tapes, etc. The court denied the motion.
Brewer then moved for a writ of mandamus ordering the trial court to compel counsel to turn his case file over to him. This court denied the writ on the grounds that there was no motion before the trial court to turn the case file over. It is unclear to this Court why Brewer's original motion sought the trial court record and the writ sought to compel the attorney file, but we recognize that Brewer was proceeding pro se. We denied the writ by motion, noting that no motion to compel trial counsel to produce the file had been before the trial court.
Thereafter, Brewer filed a motion in circuit court to compel his trial counsel, Vincent P. Yustas, to produce his case file. The trial court denied the motion. Brewer now appeals to this Court.
On January 31, 2011, shortly after the trial court ruled on Brewer's motion to compel that was addressed in the earlier appeal, Brewer filed a motion requesting the court to order the Commonwealth Attorney's office to release the grand jury minutes of his indictment to him. The Commonwealth objected to Brewer's motion, arguing that defendants are not entitled to discovery from the Commonwealth in post-conviction proceedings. The trial court denied Brewer's motion on February 11, 2011, and this appeal followed. The sole issue raised in the appeal is whether the trial court properly denied Brewer's motion.
In his brief, Brewer references seeking both the minutes of the grand jury as well as the transcript or mechanical recording of the proceedings before the grand jury that resulted in his indictment.
The filing of Brewer's notice of appeal was delayed while he contested the trial court's imposition of a partial filing fee pursuant to Gabbard v. Lair, 528 S.W.2d 675 (Ky. 1975). In an order entered May 18, 2011, this Court affirmed the trial court's order requiring Brewer to pay a $75.00 filing fee. Brewer paid the filing fee, and his notice of appeal was filed on June 30, 2011.
In his brief, Brewer claims that he is entitled to a copy of the grand jury proceedings pursuant to Kentucky Rules of Criminal Procedure (RCr) 5.16(3), which provides that "any person indicted by the grand jury shall have a right to procure a transcript of any stenographic report or a duplicate of any mechanical recording relating to his or her indictment or any part thereof upon payment of its reasonable cost." He contends that he had diligently, but unsuccessfully, sought these items from his trial attorney, the trial court, and the Attorney General. Brewer further cites to this Court's unpublished opinion of Morton v. Commonwealth, 2006 WL 1867933 (Ky. App. 2006)(2005-CA-000087-MR), which held that the appellant was entitled to a copy of the grand jury transcript based on "the clear mandate of RCr 5.13(3)[.]" Id. at *2. We note that the appellant in Morton had already had his conviction affirmed by the Supreme Court of Kentucky on direct appeal and his post-conviction RCr 11.42 appeal affirmed by this Court.
In its response brief, the Commonwealth argues that the trial court did not abuse its discretion in denying Brewer's motion because he was not entitled to post-conviction discovery. The Commonwealth cites to several cases upholding this statement of the law, including Sanders v. Commonwealth, 89 S.W.3d 380, 394 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) ("This Court has repeatedly held that post-conviction discovery is not authorized."); Foley v. Commonwealth, 17 S.W.3d 878, 889 (Ky. 2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005) (holding that RCr 11.42 proceedings are limited in purpose and scope, that pretrial rules of discovery do not apply, and that the defendant "is not permitted to fish through official records in hopes that something may turn up to his benefit."); and Sanborn v. Commonwealth, 975 S.W.2d 905, 910 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (holding that "RCr 7.24 relates to pretrial discovery, not discovery in a post-conviction situation.")
While this Court's decision in Morton, supra, appears to support Brewer's position, we hold that subsequent reported case law negates this argument. In Wagner v. Commonwealth, 247 S.W.3d 540 (Ky. App. 2008), a reported case rendered by this Court nearly two years after Morton was rendered, we addressed the application of RCr 5.16 and discovery in a post-conviction situation as follows:
Appellant now seeks these grand jury transcripts to, in his words, "perfect a proper post-conviction motion." We find that the circuit court's denial of his motion was correct. Appellant argues that according to case law and RCr 5.16, he is entitled to a copy of the grand jury transcripts. He is correct in that he is entitled to these records, but not solely for use in preparation of post-conviction proceedings. The case law and criminal rule cited by Appellant deal primarily with providing these transcripts during pre-trial preparation. Appellant is not entitled to post-conviction discovery. Sanders v. Commonwealth, 89 S.W.3d 380, 394 (Ky. 2002); Haight v. Commonwealth, 41 S.W.3d 436, 445 (Ky. 2001).Wagner, 247 S.W.3d at 542. We find the holding in Wagner to be directly on point in the instant case. Brewer's case is far past even post-trial proceedings, as he has already filed multiple post-conviction motions and appeals. Accordingly, we hold that the trial court did not abuse its discretion in denying Brewer's motion for the grand jury minutes or testimony.
Motions for post-conviction relief are to provide a forum for known grievances, not to conduct a fishing expedition. Haight at 441. Our Supreme Court has repeatedly held that post-conviction discovery for unspecified reasons is not favored. Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007); Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005).
Further, Appellant has not alleged that he was not provided with these transcripts during his pre-trial stage. In its brief, the Commonwealth states that Appellant was previously provided with this evidence. In fact, the record contains a video on which Appellant's trial counsel states that she provided Appellant with all discoverable materials she had in her possession.
Furthermore, and while we recognized the speculative nature of this comment, we note that the Court did not render its opinion in the earlier appeal related to the production of his attorney's case file until after Brewer filed his brief in the instant case. Therefore, the possibility exists that Brewer has already received the material he is seeking.
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For the foregoing reasons, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Clinton Brewer, Pro Se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky