Opinion
NO. 2012-CA-001824-MR
03-28-2014
DEBORAH HUIETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Rachel G. Cohen Euva D. May Department of Public Advocacy LaGrange, Kentucky Randall Wheeler Kentucky Innocence Project Frankfort, Kentucky ORAL ARGUMENT FOR APPELLANT: Euva Blandford LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 02-CR-00280
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Appellant, Deborah Huiett appeals from the order of the Boone Circuit Court, entered on August 2, 2012, denying her motions for relief under RCr 11.42, and CR 60.02, and for post-conviction testing of DNA evidence. We affirm as to the denial of relief pursuant to RCr 11.42 and CR 60.02, but reverse and remand the case to the trial court to consider Huiett's motion for DNA testing in light of the recently amended KRS 422.285 and this Court's interpretation of the amended statute in Virgil v. Commonwealth, 403 S.W.3d 577 (Ky. App. 2013).
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
Kentucky Revised Statutes
I. Factual and Procedural Background
In April 2000, Detective Todd Kenner investigated the discovery of human skeletal remains lying at the bottom of Mile Hill in Boone County, Kentucky. The remains were placed in a blue garment bag manufactured between 1993 and 1995 by the High Sierra clothing company and only available for sale in the area at one department store - Lazarus.
Forensic analysis determined the remains were of a Caucasian female with blonde hair. Using dental records, police identified the remains as Tina Rae Stevens, who had disappeared during the summer of 1999. Stevens' death was ruled a homicide due to knife wounds to the right clavicle. The body was missing its skull, a piece of spinal cord, and nine fingertips. While Detective Kenner had no initial suspects, investigators found three brown hairs inside the garment bag that were not a match to Stevens.
During the investigation, Detective Kenner developed two separate theories about Stevens' murder: either (1) Stevens was murdered by her former boyfriend, Thomas Jansen, or (2) Stevens was murdered by Huiett and Huiett's boyfriend, Leonard Day.
Jansen became a suspect early in the case after Detective Kenner received a tip from Stevens' daughter. Jansen dated Stevens near in time to her disappearance; their relationship was violent and tumultuous. In subsequent interviews, Jansen's other former girlfriends alleged that Jansen owned knives, often spoke of killing people, and had a penchant for violent sex. Jansen had also recently abandoned his car, a 1985 Lincoln Continental, said to contain a set of women's clothing that may have belonged to Stevens.
Detective Kenner traced Jansen's car to a local garage and discovered blood on the driver's side door jamb. Forensic investigators took seven samples of blood from the car. Detective Kenner later confronted Jansen with these details in an interview. Jansen denied any involvement, claiming that the blood "probably was [Stevens'], but he was being set up." Later DNA testing of two of the seven blood samples confirmed it was not Stevens' blood.
Still hoping to elicit an incriminating response from Jansen, Detective Kenner employed a police interrogation tactic - he told Jansen he had traced the garment bag containing Stevens' remains back to Jansen; in fact, he had not. Detective Kenner only had information that Jansen's mother may have owned that type of garment bag in the past. Jansen responded that the bag was "probably the garment bag his mom had given him for Christmas."
While Detective Kenner was investigating Stevens' last known whereabouts, a second theory emerged: Huiett murdered Stevens in a jealous rage after discovering that Stevens was having an affair with Day. Acquaintances characterized Huiett as extremely possessive of Day; she had threatened other romantic rivals and was also known to carry a knife. Day's coworker, Robert Walker, told Detective Kenner that Day, Huiett, and Stevens had all stayed at the Suburban Lodge - a local hotel - sometime around May 28, 1999, while Day worked a construction site near Mile Hill. Walker also said that Stevens and Day had dated in the past and that the two still had feelings for one another. According to Walker, Stevens and Day went to a room together at the Suburban Lodge for several hours, unbeknownst to Huiett. That night, Day and Huiett were evicted from the Suburban Lodge after other lodge residents reported a loud disturbance from a nearby room; they had heard Huiett screaming and making loud threats to kill Day. Day's coworker, Paul Gabbard, later told Detective Kenner that he encountered Huiett that night and remembered her saying that "she knew Leonard was there with Tina and when she found him, she was going to kill Tina and make Leonard watch."
After Huiett and Day's eviction, housekeepers discovered their room filthy and damaged, but while it "appeared that there had been a good fight in there," the bed was relatively neat and had been made using sheets that did not belong to the hotel. When housekeepers stripped the bed, they discovered a large stain on the mattress they believed was a blood stain, prompting them to throw it out. Housekeepers also recalled that, before Huiett and Day were evicted, they had seen a "dark blue, almost black" garment bag hanging in the closet in that room.
Detective Kenner later uncovered a bevy of witnesses - ranging from former lovers to jailhouse acquaintances - who heard Huiett and Day admit to the murder. Witnesses said Huiett openly bragged about killing Stevens, claiming Stevens "got everything she deserved" and that Huiett wished she had saved Stevens' skull to use as a candle holder. Day allegedly told a former girlfriend, Pam Hendrix, that he and Huiett had "cut Tina's head and fingers off." According to Hendrix, when she told Day she heard rumors that Day and Hueitt "threw [Stevens] in a plastic bag and threw her in the river," he corrected her, saying it "was a dark blue suit bag and it was about a mile from where they worked."
On April 24, 2002, Detective Kenner arrested Huiett at her workplace for the murder of Tina Rae Stevens; as he handcuffed her, she "told her employer she was being arrested for killing that bitch."
These are only a few of several similar statements attributed to Huiett and Day.
Police submitted hair samples obtained from Hueitt, Day, and Jansen for microscopic comparison with the brown hairs found in the garment bag. Experts determined one hair was microscopically similar to Day's hair, but DNA testing confirmed it was not. None of the hairs were determined microscopically similar to Jansen or Hueitt so they did not undergo DNA testing.
Hueitt and Day were charged with Stevens' murder and convicted in separate jury trials. Rhonda Lause, a trial attorney with the Kentucky Department of Public Advocacy, represented Huiett at trial. Lause's defense strategy focused on attacking the Commonwealth's lack of physical evidence implicating Huiett, and challenging the Commonwealth's timetable of events leading up to and following the murder. Lause argued that it was impossible for Huiett to kill, dismember, and dispose of Stevens within the timeframe alleged by the Commonwealth. A jury convicted Huiett of murder and tampering with physical evidence in 2005; on appeal, the Kentucky Supreme Court affirmed the judgment in 2007. Huiett v. Commonwealth, 2007 WL 4793688, No. 2005-SC-000643-MR (Ky. June 21, 2007, as modified January 24, 2008).
Huiett timely sought post-conviction relief from her judgment of conviction under RCr. 11.42 and CR. 60.02; Huiett also moved for additional DNA testing of hair samples and blood swabs taken from the garment bag and Jansen's car. The Boone Circuit Court held a two-day evidentiary hearing on the motions. On August 1, 2012, the Court denied all Huiett's motions. Huiett now appeals that denial. We address each of Huiett's claims in turn.
In its August 1, 2012 order denying Huiett's motions, the trial court omitted its ruling on an alleged Brady violation. The trial court timely amended its ruling to include denial of this claim on August 28, 2012.
III. Analysis
A. Ineffective Assistance of Counsel
Huiett alleges her Sixth Amendment rights were violated due to deficiencies in her counsel's trial strategy, preparation, and performance. Specifically, Huiett asserts three errors: (1) counsel failed to present sufficient evidence at trial that Thomas Jansen was an alternate suspect, (2) counsel failed to investigate potential witnesses before trial, and (3) counsel failed to impeach police testimony that linked her to the murder. We review de novo whether counsel was ineffective. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
The Sixth Amendment guarantees a defendant "the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court has interpreted the Sixth Amendment to include "the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S. Ct.1441, 1449, n. 14, 25 L. Ed. 2d 763 (1970)); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). To prove her counsel ineffective, Huiett must establish "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Counsel's performance is deficient if it falls "below an objective standard of reasonableness" measured "under prevailing professional norms." Id. at 688, 104 S. Ct. at 2064-65. However, in evaluating counsel's alleged deficiency, we "must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065; Premo v. Moore, 131 S. Ct. 733, 739, 178 L. Ed. 2d 649 (2011); Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009). We must also resist "the distorting effects of hindsight" and, instead "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct at 2066.
If we deem counsel's performance deficient, we must then determine whether a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. Strickland defines a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id.
1. Thomas Jansen as an Alternate Suspect
Huiett argues that Lause's assistance was deficient because Lause failed to present sufficient evidence to the jury concerning Thomas Jansen as an alternate suspect. Huiett now maintains the theory that Jansen committed the murder ("Jansen theory") was so compelling that Lause's decision not to present that evidence was objectively unreasonable. Decisions regarding trial strategy are not immune from review, but will only be determined deficient if they are objectively unreasonable. See Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007). We do not find this trial strategy objectively unreasonable. Rather, the record indicates that Lause made a reasonable strategic choice - to focus her attack on the Commonwealth's timeline of events and lack of physical evidence in the case.
Lause considered presenting Jansen as an alternate suspect. Months before trial, Lause received Detective Kenner 's case report, including his interviews with Jansen and Jansen's former girlfriends and acquaintances. She knew of Jansen's inculpatory statements, and his tumultuous relationship with Stevens. Before trial, Lause interviewed Jansen to assess him as a potential witness for the defense. Deciding which witnesses to call is a strategic matter. Boykin v. Webb, 541 F.3d 638, 649 (6th Cir. 2008). Lause recalled that, in the interview, Jansen denied any involvement in the killing, but was surprisingly forthcoming and his affection for Tina seemed sincere. In Lause's judgment, Jansen's sincerity and apparent credibility would have made him both a poor witness for her case and a problematic scapegoat for the murder.
Lause also knew that at the previously conducted trial of Day for Tina's murder, another jury had already rejected the Jansen theory. Day's attorneys had based their defense on the unsuccessful theory that Jansen committed the murder. Despite Lause's reservations about Jansen as a witness, Lause still placed him under subpoena on the chance that she might ultimately conclude, as the trial progressed, that Jansen's testimony would be useful in Huiett's defense.
But instead of putting Jansen on the stand, Lause strategically chose to implicate Jansen in the crime by cross-examining the Commonwealth's witnesses; she believed the strategy would be more effective in her overall defense. Lause referred to Jansen in opening statements and cross-examined Detective Kenner thoroughly about his investigation of Jansen. Moreover, Lause adduced evidence of other suspects in an attempt to cast suspicion elsewhere. Lause cross-examined Detective Kenner regarding Stevens' activities as a drug-user and prostitute to infer that she may have been murdered by her clients. Lause also questioned Detective Kenner regarding a man named "Gary" who may have been violent with Stevens in the past. So while Lause did not focus solely on the Jansen theory, she did present Jansen, and others, as possible suspects to the jury to infer that Stevens could have been killed by several different people.
Lause's decision to forgo a more forceful pursuit of the Jansen theory was not objectively unreasonable because in her judgment (1) Jansen would credibly deny his involvement if called as a witness, (2) a jury had already rejected that same theory in Day's trial, and (3) she could refer to Jansen, as well as others, as potential suspects to bolster her attack on the Commonwealth's timeline.
Moreover, when we heed Strickland's admonition to "resist the distorting effects of hindsight" and consider Lause's perspective at the time she was preparing her case, we recognize that she was faced with a serious obstacle: Huiett's numerous incriminating statements. Given the substantial evidence of her client's propensity for bragging about killing and dismembering Stevens, it was not unreasonable for Lause to conclude the defense Huiett now urges would likely fail to persuade a jury; it was reasonable for her to conclude that focusing on how Huiett could not have committed the murder was a superior strategy. Certainly, Lause's choice of strategy forced her to forgo proffering every piece of evidence incriminating Jansen, but "[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that [s]he did so for tactical reasons rather than through sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003).
The fact that the merits of competing strategic choices are subject to reasonable debate demonstrates that Lause's decision was not objectively unreasonable, but well within the "wide range of reasonable professional assistance" that the Sixth Amendment requires. Strickland, 466 U.S. 668, 669, 104 S. Ct. 2052, 2055. In light of Strickland's deference, we find Lause's performance sufficient. Therefore, we need not consider whether those choices prejudiced Huiett.
2. Counsel's Pretrial Investigation
Next, Huiett alleges her counsel failed to conduct reasonable pretrial investigation that would have uncovered two exculpatory witnesses: Marnell McRae and Julio Serrano. Serrano was Day's coworker, and Serrano's girlfriend, McRae, worked at the local Lazarus. Both Serrano and McRae were living in the Suburban Lodge prior to Stevens' disappearance. Had they been located, asserts Huiett, Serrano would have testified to dropping Stevens off at a bus station on May 20, 1999, and McRae would have denied the Commonwealth's assertion that McRae could have provided Huiett and Day with the garment bag from Lazarus. According to Huiett, this testimony was critical to her defense, and could have changed the entire complexion of the trial.
While Strickland requires counsel to make a thorough pretrial investigation, the Supreme Court recognized that counsel's failure to pursue every conceivable line of inquiry is neither realistic, nor required by the Sixth Amendment.
[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitationsStrickland, 466 U.S. 668 at 691, 104 S. Ct. at 2066.
on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."
However, the record indicates Lause did conduct a reasonable pretrial investigation, because: (1) Lause tried to locate McRae and Serrano, (2) Lause was unable to locate them, largely due to Serrano's and McRae's efforts to avoid discovery, and (3) Lause determined, in her professional judgment, that neither witness's testimony would be helpful to the defense. Given Lause's inability to locate the witnesses despite her reasonable effort to do so, we cannot say that her decision to focus her resources elsewhere was unreasonable.
Lause testified that she dispatched her investigator, Paul Flinker, to locate the couple. Flinker was an experienced investigator with extensive law enforcement experience, previously serving as a Covington Police officer from 1972 until 1996. Flinker attempted to trace Serrano's and McRae's locations using old addresses, phone numbers, and rental applications, but he was unsuccessful. At the evidentiary hearing, Flinker testified to performing comprehensive searches on databases for criminal records, property records, and financial records that he later cross-referenced. Describing his investigative efforts, Flinker said that he had "watched every video at least twice" and "read every document at least twice" over the period of a year, and that he had spent "hundreds of hours" investigating leads in Huiett's defense.
Despite Flinker's efforts, Lause was unable to locate Serrano and McRae, due in part to their efforts to conceal their identities. Flinker traced McRae's and Serrano's old phone numbers and addresses, discovering that the phone numbers were either disconnected or reassigned and that the addresses were not current. Flinker also discovered that Serrano had used several aliases, fake social security numbers, and birthdays to conceal his identity. McRae had also listed several different birthdays on documents. Both McRae and Serrano had good reason to conceal their identities: Serrano was a convicted felon on the run from felony drug charges for several years, and McRae had a bench warrant in Boone County that had been outstanding since 1999.
Even if the witnesses had been located, Lause did not believe their testimony would have been helpful to the defense. Flinker testified that he and Lause often discussed investigative strategy and that Lause would direct his inquiries to support her overall defense. Eventually, Lause told Flinker to focus on other leads.
Lause testified that she did not believe Serrano's testimony would be helpful to the defense because there was substantial evidence that the murder took place about a week after Serrano saw Stevens, and there was other evidence that placed Stevens at the Suburban Lodge at a date later than Serrano saw her. Nor would McRae's testimony have been pivotal in Hueitt's defense. Lause said that she did not spend much time tracing all the possible sources of the garment bag because many alternative theories regarding the bag's origin existed, including that it belonged to Jansen, and that the bag containing Stevens' remains was the same "dark blue, almost black" bag that housekeepers witnessed hanging in Huiett's room at the Suburban Lodge. Given Lause's strategy to attack the Commonwealth's timeline, details regarding the bag were ancillary, and expending further resources to locate a witness who could only refute one possible theory of the bag's origin was not critical to her defense. Therefore it was reasonable for Lause to decide to focus her and her investigator's efforts elsewhere once initial efforts to find the witnesses had failed.
Lause did not perform deficiently by failing to interview McRae and Serrano because she conducted a reasonable pretrial investigation. A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001).
3. Counsel's Trial Performance
Finally, Huiett claims Lause's failure to impeach Detective Kenner's testimony regarding the garment bag rendered her assistance ineffective. Specifically, Huiett claims her counsel should have impeached Detective Kenner's testimony with his interview with Jansen during which Jansen allegedly admitted to owning the garment bag that contained Stevens' remains. Huiett now argues that had Lause impeached Detective Kenner by cross-examining him about that interview, it would have presented the jury with additional evidence of an alternate suspect, as well as refuted the theory that Hueitt and Day may have obtained a garment bag from McRae.
Even in hindsight, it is difficult to see how not impeaching Detective Kenner was error. Detective Kenner stated he lied to Jansen during that interview by telling him he had traced that exact bag back to Jansen. However, in reality, Detective Kenner had only discovered that the type of bag was made by High Sierra and sold at Lazarus between 1993 and 1995. Detective Kenner stated both at trial and at the evidentiary hearing that his statement to Jansen was false and a mere ploy to trap Jansen. Had Lause impeached Detective Kenner on this point, the detective could have further explained that his statements were merely an interrogation tool, and thus damaged Lause's ability to infer that Jansen was a possible killer. Further, impeaching Detective Kenner with that evidence may have made Lause appear overly contentious or unfamiliar with the case report, thus impairing her credibility with the jury. Lause's decision regarding what questions to ask a witness is matter of trial strategy which is entitled to deference under Strickland because given the circumstances, it was not objectively unreasonable.
B. Brady Violation
Hueitt alleges the Commonwealth violated her right to due process by failing to disclose exculpatory information required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Hueitt claims the Commonwealth failed to disclose that Detective Kenner interviewed Serrano and McRae during his investigation. However, this claim is meritless because the Commonwealth did disclose this information.
Under Brady, "a convicted defendant must make each of three showings: (1) the evidence at issue is 'favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the State suppressed the evidence, 'either willfully or inadvertently'; and (3) 'prejudice . . . ensued.'" Skinner v. Switzer, 131 S. Ct. 1289, 1300, 179 L. Ed. 2d 233 (2011) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). We review the legal questions de novo. Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007). However, we will not disturb factual findings of the trial court unless they are clearly erroneous. Strange v. Commonwealth, 269 S.W.3d 847, 849 (Ky. 2008).
At the evidentiary hearing, Detective Kenner did not recall having spoken with Serrano and McRae about the case. However, Huiett's counsel confronted him with a copy of a telephone conversation between Detective Kenner and Robert Walker in which Detective Kenner told Walker that he had spoken with both McRae and Serrano during his investigation. While Detective Kenner's investigative report contained records of many witness interviews, Detective Kenner apparently failed to document his discussions with either McRae or Serrano. Detective Kenner stated at the evidentiary hearing that he did not always record his interviews, and Huiett adduced no proof that any records of these interviews with McRae and Serrano ever existed. In order to be considered "Brady material," there must be actual "material" for the prosecution to disclose. See Bell v. Bell, 512 F.3d 223, 234 (6th Cir. 2008) (en banc) (quoting Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)).
Regardless of whether actual recordings of these interviews existed, the Commonwealth did fulfill the obligations imposed by Brady. Prior to trial, the Commonwealth provided the defense with Detective Kenner 's entire report as well as recordings of the phone conversations in which Detective Kenner told Walker that he had interviewed McRae and Serrano. This disclosure identified McRae and Serrano - a fact made more evident because Detective Kenner listed McRae's and Serrano's names under the heading marked "Witnesses" in his case report. Further, it communicated the nature of their potential testimony because Detective Kenner described to Walker his interviews with McRae and Serrano. By listening to those tapes, the defense had information that McRae and Serrano denied loaning Huiett a garment bag.
By handing over the tapes, the Commonwealth provided counsel with the same knowledge that would have been provided if Detective Kenner had created a summary of his interviews, albeit that knowledge was disclosed in a different form. While Brady requires the prosecution disclose exculpatory information, it does not constitutionalize a carte blanche pretrial discovery right. Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (U.S.S.C. 1977). Here, to hold that the Commonwealth violated Brady, we would necessarily say the violation did not stem from the Commonwealth's failure to disclose information but instead from Detective Kenner's failure to affirmatively document information in a manner the defense would deem acceptable. Such a holding would extend the Commonwealth's Brady responsibilities beyond disclosure and, instead, dictate the form by which a detective must document his reports, thus creating the type of discovery requirement explicitly rejected by the United States Supreme Court. The Commonwealth did not violate Brady because there was no failure to disclose information to Huiett. We need not consider whether the evidence in question is material.
C. Motion for DNA Testing
The trial court denied Huiett's motion for additional DNA testing of the other blood samples taken from Jansen's car and the hairs found in the garment bag. Now, Huiett argues this denial violated her rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. We review the trial court's denial of additional DNA testing for an abuse of discretion. Moore v. Commonwealth, 357 S.W.3d 470, 487 (Ky. 2011).
As a predicate to our analysis, recent case law requires us to consider whether Huiett, a person sentenced to a term of years, is afforded a right to post-conviction DNA testing and, if so, from whence does that right originate? The United States Supreme Court has explicitly declined to interpret the Due Process clause to include a substantive right to post-conviction DNA testing, deferring instead to state legislatures to develop their own statutes governing access to such tests. Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009). Our General Assembly has done so. KRS 422.285.
As originally enacted, KRS 422.285 allowed inmates facing the death penalty access to post-conviction DNA testing. In Taylor v. Commonwealth, our Supreme Court first struck down this statute as the legislature's unconstitutional encroachment upon powers reserved to the judicial branch. 175 S.W.3d 68, 70 (Ky. 2005). However, the Court then went on to "extend comity to the statute and will enforce its provisions." Id. The reason given for doing so was that "DNA testing furthers the interest of justice by better ensuring that the Commonwealth does not follow through with putting an innocent man to death." Id. at 77. Comity was applied because the "statute [as originally enacted] furthers the 'orderly functioning of the courts' and is a 'statutorily acceptable substitute for current judicially mandated procedures.'" Id.
Because Huiett was not sentenced to death, the original version of the statute to which comity applied would have been inapplicable. However, in 2013, the General Assembly amended KRS 422.285 to include offenders convicted of a "capital offense, a Class A felony, a Class B felony, or any offense designated a violent offense under KRS 439.3401." 2013 Ky. Acts ch. 77. When this Court addressed the effectiveness of the amended version of the statute in Virgil v. Commonwealth, we said the amendment "does nothing to change the reasoning applied by the court in Taylor." 403 S.W.3d 577, 579 (Ky. App. 2013). As did the Supreme Court in Taylor with regard to the original statute, we found, in effect, that the amended statute was unconstitutional, but also that the statute was enforceable as a matter of comity. Virgil, 403 S.W.3d at 580 ("the statute reflects a public policy vested in extending the right to seek post-trial DNA testing to noncapital felons and is enforceable by way of comity").
We here say "in effect" because Virgil does not explicitly find the amended statute unconstitutional; however, lack of constitutionality is implicit in the fact that we applied comity to save the statute. Even with the amendment, KRS 422.285 remains "a procedural enactment, which in no way modifies any elements necessary to convict or penalties to be imposed upon conviction." Taylor, 175 S.W.3d at 77. The amendment did not eliminate the legislative encroachment upon "a constitutional power properly belonging to the Supreme Court." Id. Therefore, the statute remains unconstitutional.
In hindsight, we note that Virgil applied comity despite the Supreme Court's reservation of that prerogative exclusively to itself. As the Court said in O'Bryan v. Hedgespeth:
[W]hether to give life through comity to a statute otherwise unconstitutional because it violates separation of powers doctrine is one of institutional policy reserved for the Supreme Court level. SCR[ ] 1.010; 1.020(1)(a). The responsibility of lower courts, including the Court of Appeals, is to follow the law, which includes constitutional separation of powers doctrine, and to correct error accordingly, even if to do so means declaring a legislative enactment unconstitutional.892 S.W.2d 571, 577 (Ky. 1995). We did not follow O'Bryan when we applied the doctrine of comity in Virgil, thereby unintentionally and yet unmistakably usurping the authority of the Supreme Court.
Kentucky Supreme Court Rules.
However, Virgil is a published decision of this Court, and no party sought the Supreme Court's discretionary review of that case. In the absence of Supreme Court precedent, a published opinion by this Court is binding and constitutes the law of Kentucky. See SCR 1.040(5)("On all questions of law the circuit and district courts are bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court and, when there are no such precedents, those established in the opinions of the Court of Appeals"). Furthermore, this Court must itself deal with the doctrine of stare decisis and its urgings that we follow our own precedent.
We here quote and consider a recent Supreme Court case regarding stare decisis and such a situation as this panel of the Court of Appeals now faces:
[W]hile the author of this decision joined the majority in that [prior] case,[ ] we are also mindful that "the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy." Matheney v. Commonwealth, 191 S.W.3d 599, 604 (Ky. 2006) (quoting Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002)). As we noted in Morrow, "respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis." 77 S.W.3d at 559.Allen v. Commonwealth, 395 S.W.3d 451, 463 (Ky. 2013). After this quote, the Supreme Court set aside stare decisis and the precedent of a three-year-old case. But this Court must address additional considerations - considerations inapplicable to the Supreme Court - before we can do the same.
Just as Justice Noble joined the majority in Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010), with regard to which stare decisis was overcome in Allen v. Commonwealth, the author of this opinion voted with the unanimous panel in Virgil.
First, to overrule the holding in Virgil, this Court would have to go en banc. Taylor v. King, 345 S.W.3d 237, 242 (Ky. App. 2010) (citing SCR 1.030(7)(d)). Going en banc is a prerogative granted by the Supreme Court to the chief judge of the Court of Appeals. SCR 1.030(7)(d) ("If prior to the time the decision of a panel is announced it appears that the proposed decision is in conflict with the decision of another panel on the same question, the chief judge may reassign the case to the entire court"; emphasis added).
Second, although the vast majority of cases decided by this Court do not receive further appellate review, this is not the court of last resort in Kentucky. While the Supreme Court never had the opportunity to further review Virgil, it may have that opportunity with this case. And while we may have failed in Virgil to consider that comity is the exclusive purview of the Supreme Court, we have no way of knowing with certainty whether the Supreme Court would conclude there are "sound legal reasons to question the correctness of our prior analysis [in Virgil.]" Allen, 395 S.W.3d at 463 (citation and internal quotation marks omitted).
Therefore, while we believe there is good reason to criticize Virgil, there is equally good reason for following it. We hold that Virgil is controlling precedent and adopt its analysis in the following regard:
In Taylor, the Supreme Court's reason for applying comity to save an unconstitutional version of KRS 422.285 was stated as follows:
A statute allowing a death-row inmate to obtain DNA testing furthers the interest of justice by better ensuring that the Commonwealth does not follow through with putting an innocent man to death. In the words of our precedent, such a statute furthers the "orderly functioning of the courts" and is a "statutorily acceptable substitute for current judicially mandated procedures." Therefore, we uphold, under principles of comity, KRS 422.285 until superseded or modified by this Court.Taylor, 175 S.W.3d at 77 (emphasis added). The death penalty was not at stake in Virgil. While the interest of justice would be served best by not imprisoning the innocent, "unquestionably 'death is different[.]'" Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 481 (Ky. 2009). Under the circumstances, it could be said this Court was a bit presumptuous in Virgil when we stated: "The recently enacted amendment to KRS 422.285 does nothing to change the reasoning applied by the court in Taylor." Virgil, 403 S.W.3d at 579.
[T]he general rule is that "where the amendment [of a statute] represents a procedural or remedial change only . . . 'legislation has been applied to causes of action which arose before its effective date[.]'" Schmidt v. S. Cent. Bell, 340 S.W.3d 591, 595 (Ky. App. 2011) (quoting Spurlin v. Adkins, 940 S.W.2d 900, 901 (Ky. 1997)). Legislation is remedial if it seeks to reform or extend existing rights aimed at the "promotion of justice and the advancement of the public welfare and of important and beneficial public objects." Kentucky Ins. Guar. Ass'n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 610 (Ky. 2000) (quoting 73 AmJur.2d Statutes § 11 (1974)). In fact, the term remedial applies to statutes which give a party a remedy where he previously had none. Id. Because the statute reflects a public policy vested in extending the right to seek post-trial DNA testing to noncapital felons and is enforceable by way of comity, no good reason exists for not applying the statute on remand to the trial court. . . . We remand this matter to the trial court with directions to apply the amended statute, KRS 422.285 to [Huiett's] motion, and enter an appropriate order.Virgil, 403 S.W.3d at 580.
IV. Conclusion
For the foregoing reasons, we hold that the trial court properly denied Huiett's motions for relief under RCr 11.42 and CR 60.02; however, the denial of her motion for additional DNA testing must be reversed and the case remanded for consideration in light of Virgil and the newly amended KRS 422.285.
We recognize that the circuit court, in the order from which this appeal is taken, specifically stated: "Even if Kentucky law contemplated the availability of a right to post-conviction DNA testing, the Defendant does not satisfy the first level of proof that the DNA evidence would either exonerate the defendant, lead to a more favorable verdict or would be otherwise exculpatory." (Order, entered August 2, 2012, p. 7). However, because the amended statute did not exist when the circuit court made this statement, we are remanding the case so the circuit court's analysis may be more fully informed by the actual statute, as amended.
ALL CONCUR. BRIEFS FOR APPELLANT: Rachel G. Cohen
Euva D. May
Department of Public Advocacy
LaGrange, Kentucky
Randall Wheeler
Kentucky Innocence Project
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Euva Blandford
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky