Opinion
NO. 2014-CA-000715-MR
01-29-2016
MICHAEL ELLIOTT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Michael Elliott Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 91-CR-00167 OPINION
AFFIRMING BEFORE: COMBS, D. LAMBERT, AND TAYLOR, JUDGES. D. LAMBERT, JUDGE: Appellant seeks review of his most recent motions to vacate, correct or set aside his 1997 conviction. On February 18, 2014, the Laurel Circuit Court denied, without hearing, Appellant's (hereinafter, "Elliott") motion to vacate, correct or set aside conviction and sentences of imprisonment pursuant to RCr 11.42, CR 60.02(f), and CR 60.03. After review, we affirm.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
Elliott was convicted in October of 1997 of murder, robbery, burglary and wanton endangerment. He was sentenced to life without possibility of parole for twenty-five years for murder, twenty years each for burglary and robbery, and five years for wanton endangerment. Elliott directly appealed his conviction to the Kentucky Supreme Court, which affirmed on January 20, 2000.
On March 5, 2001, Elliott brought a collateral challenge pursuant to RCr 11.42. The trial court denied that challenge, and this Court upheld the decision on June 7, 2002. See 2001-CA-000751-MR. Elliot also filed a second RCr 11.42 challenge in 2003. This Court affirmed the trial court's denial of that motion in 2004-CA-000065-MR (Ky. App. 2006).
On January 8, 2014, Elliott filed the motion sub judice pursuant to RCr 11.42, CR 60.02(f), and CR 60.03. In that motion, Elliott contested the results of a DNA test performed in 1991 on blood found at the crime scene. He further disputed the reliability of multiple eyewitnesses, most notably Ted Proffitt and Willie Mae Cowden.
The trial court ultimately found that there was no merit to Elliott's request for an additional DNA test because the blood was previously tested and was shown to have been the victim's. See Elliott v. Commonwealth, 2004-CA- 000065-MR, 2005 WL 3441361, (Ky. App. Dec. 16, 2005). The trial court also determined that the reliability of the eyewitnesses who testified against Elliott during his trial had already been litigated. This appeal followed.
In Kentucky, appellate review of motions for post-conviction relief is limited to those claims that were not and could not be raised on a direct appeal. Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972). In other words, issues previously raised and rejected on direct appeal cannot be rebranded as ineffective assistance of counsel and relitigated in a post-conviction motion. Bowling v. Commonwealth.981 S.W.2d 545 (Ky. 1998); see also Wilson v. Commonwealth, 975 S.W.2d 901 (Ky. 1998). This effectuates the intent of RCr 11.42, which provides that "the motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding." RCr 11.42(3).
A motion under CR 60.02 similarly prohibits a defendant from "relitigat[ing] 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). Rather, the purpose of CR 60.02 is
to bring before the court . . . errors . . . of fact which (1) had not been put into issue or passed on, (2) were unknown and could not have been known to the party by the exercise of reasonable diligence and in time to have been otherwise presented to the court, or (3) which the party was prevented from so presenting by duress, fear, or other sufficient cause.Gross, 648 S.W.2d at 856. However,
[CR] 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.CR 60.03. Hence, a CR 60.03 action must be both "timely and state equitable ground for relief." Huffaker v. Twyford, 445 S.W.2d 124 (Ky. 1969).
Here, the trial court properly found that Elliott cannot raise any further issue with respect to Ted Proffitt's trial testimony or Willie Mae Cowden's identification of Elliott as the perpetrator. This Court discussed Elliott's attempt to impeach Proffitt's and Cowden's identification in Elliott v. Commonwealth, 2004-CA-000065-MR, 2005 WL 3441361, at *1 (Ky. App. Dec. 16, 2005). That same case also acknowledged the strength of the testimony offered against Elliott by a former jail cellmate that Elliot committed the crimes. Thus, any issue with the testimony should have been raised at that time, and equity does not require additional consideration.
With respect to Elliott's request for a DNA test, we once again agree with the trial court. KRS 422.285 addresses the rights of convicted persons to request DNA testing of evidence and provides the analytical framework for post- conviction demands for DNA testing. Subsection (5) of that statute reads, in pertinent part, as follows:
Kentucky Revised Statutes.
After due consideration of the request and any supplements and responses thereto, the court shall order DNA testing and analysis if the court finds that all of the following apply:
. . . .
(c) The evidence was not previously subjected to DNA testing and analysis or was not subjected to the testing and analysis that is now requested and may resolve an issue not previously resolved by the previous testing and analysis [emphasis added].
Moreover, KRS 422.285(6), through virtually identical language save for the permissive term may as a predicate to subsections (a) through (f), also contains the requirement that the DNA testing had not been previously completed.
Here, Elliott is requesting a DNA test on blood that has already been tested. See Elliott v. Commonwealth, 2005 WL 3441361, at *4 (Ky. App) (DNA evidence revealed that the blood found on the door was that of the victim). This is prohibited under KRS 422.285, as the sample cannot have previously been subjected to testing and analysis. There is no authority that either gives Elliott a right to have the blood retested or grants the trial judge discretion to retest the blood at Elliott's request. Therefore, the trial court did not err in declining Elliott's request to perform a DNA test on the blood found at the crime scene.
This case arose out of Elliott's second 11.42 motion. According to Elliott's 2005 appeal, Elliott v. Commonwealth, 2005 WL 3441362, there was litigation on both the state and federal levels regarding testing the DNA from the crime scene. --------
Finding no error, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Michael Elliott
Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky