Opinion
NO. 2011-CA-000215-MR NO. 2011-CA-000449-MR
06-07-2013
JAMES RANDALL MAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: James Randall May Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 09-CR-00049
OPINION
AFFIRMING
BEFORE: COMBS, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: James Randall May appeals the Mercer Circuit Court's orders denying his RCr 11.42/CR 60.02 motion to vacate his sentence and his motion to supplement his RCr 11.42/CR 60.02 motion to vacate. After a careful review of the record, we affirm.
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial, May was convicted of third-degree sodomy and two counts of first-degree unlawful transaction with a minor. He was sentenced to serve five years of imprisonment for his third-degree sodomy conviction and twelve years of imprisonment for each of his convictions for first-degree unlawful transaction with a minor. May's convictions for unlawful transaction with a minor were ordered to be served consecutively to each other, and his sentence for sodomy was ordered to be served concurrently with the other two sentences.
May proceeded pro se during his jury trial although the circuit court appointed "standby counsel" to assist him.
May moved for a new trial pursuant to RCr 10.02, claiming, inter alia, that he had received the ineffective assistance of standby counsel and of the Department of Public Advocacy investigator. The circuit court denied his motion. May appealed from the judgment against him, and was represented by counsel on appeal. The Kentucky Supreme Court affirmed the circuit court's judgment. See May v. Commonwealth, No. 2010-SC-000052-MR, 2011 WL 5316761, *1 (Ky. Oct. 27, 2011) (unpublished).
Even when the accused represents himself at trial, a trial court may appoint "standby counsel" to assist the accused "if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta v. California, 422 U.S. 806, 834 n.46, 95 S.Ct. 2525, 2541 n.46, 45 L.Ed.2d 562 (1975).
May moved thereafter to vacate his sentence, pursuant to RCr 11.42 and CR 60.02. The circuit court denied his motion, noting that although May argued
that his appointed counsel interfered with his tactical decision, the defendant was in fact not appointed counsel, and represented himself at trial. The role played by [counsel from the Department of Public Advocacy] was essentially limited to answering legal questions put forth by the defendant. She did not sit at counsel table with the defendant during the trial, but instead sat in general seating.The court held that May's ineffective assistance of counsel claim could not be considered due to the fact that he represented himself during trial.
Furthermore, regarding May's claims of "newly discovered evidence," the circuit court stated as follows:
In his . . . motion for relief, the defendant alleges misidentification by the victim, refusal by the Commonwealth to allow access to certain witnesses, and the withholding of information needed for trial. At trial, there was no question of misidentification; the victim was well acquainted with the defendant and on the stand even referred to him by his nickname. Defendant claims that the Commonwealth denied him access to certain witnesses prior to trial; however, he announced ready for trial on October 21, 2009, with no mention made to the Court of said denial. The alleged missing information, witnesses, and "newly discovered" evidence he references in his motions were either addressed at the trial or of insufficient relevance and significance to convince this Court that same would have led to a different outcome at trial. The jury had an opportunity to hear the witnesses presented by both the plaintiff and defense and to judge the credibility of those witnesses. Relief cannot be granted, as any evidence referred to byThus, May's RCr 11.42/CR 60.02 motion was denied.
defendant in his motion would not have, with reasonable certainty, changed the result.
May subsequently filed a motion to supplement his RCr 11.42/CR 60.02 motion, in which he claimed that the Commonwealth violated his right to compulsory process by ordering two witnesses "to not visit or have contact with Mr. May prior to trial." These witnesses were the victim's friend, K. C., and K. C.'s mother, J. C. Because of this, May contended that he was "denied access to witness [A. C.] who is the daughter of [R. C.] and the step[-]daughter of [J. C.]." May attached A. C.'s affidavit to his motion to supplement. In her affidavit, A. C. primarily attested that: She had visited her father, R. C.'s, home multiple times during 2008; the property housed a 4-wheeler, two dogs, and a fenced-in dog lot behind the house; access to the dog lot was obtained by walking down the deck steps from K. C.'s bedroom and the gate for the dog lot was at the bottom of the deck stairs; occasionally when she visited her father's house, she would spend the night at May's trailer which he rented from R. C.; the trailer was on a hill behind R. C.'s house; and May treated her like a daughter by giving her money and buying her clothes.
Because minors are involved, we will refer to them using initials.
May contended that A. C. could have refuted the victim's testimony because the victim had stated that there was no 4-wheeler, only one dog, and no fenced-in dog lot behind the house. In her affidavit, A. C. further stated the names of various people who could have been called as witnesses to testify to these same facts, which she alleged could have impeached the victim. May also alleged that if Gary Osborne had been called as a witness, he would have attested to the same facts as A. C. regarding the 4-wheeler, number of dogs, and dog lot. Gary Osborne's affidavit attesting this was attached to May's motion to supplement his RCr 11.42/CR 60.02 motion. In his motion to supplement, May also alleged that the Boyle County Detention Center failed to give him his mail while he was incarcerated; therefore, he did not receive photographs of R. C. and J. C.'s residence, which J. C. had mailed to him.
The circuit court denied May's motion to supplement his RCr 11.42/CR 60.02 motion. In doing so, the court noted that the affidavits May attached to his motion to supplement were "an attempt to discredit the testimony of the Commonwealth's primary witness." The court found that
the information contained within the affidavits does nothing more than mirror the testimony provided by other defense witnesses at trial regarding the physical layout of the property. The jury in the instant case was presented the opportunity to observe both the Commonwealth and defense witnesses and to judge the credibility of those witnesses. The defendant has failed to convince this Court that the information contained within the affidavits would have altered the outcome of the trial.
May now appeals from both the denial of his RCr 11.42/CR 60.02 motion and from the denial of his motion to supplement. These two appeals were consolidated for purposes of briefing. May contends on appeal that: (a) the circuit court erred in failing to vacate the judgment due to prosecutorial misconduct; (b) his rights under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were violated when standby counsel interfered with the questioning of witnesses; (c) he was denied a fair trial when the Boyle County Detention Center interfered with the delivery and receipt of his mail; (d) he is entitled to an evidentiary hearing based upon his claims of newly discovered evidence; (e) he was denied due process when the circuit court failed to appoint post-conviction counsel to represent him during his RCr 11.42/CR 60.02 proceedings; and (f) he was denied due process and the right to a meaningful appeal due to missing trial records that would show he was entitled to a reversal of his conviction.
In Faretta, the United States Supreme Court held that a criminal defendant is entitled to represent himself at trial if, after conducting a hearing, the circuit court finds that the few exceptions to this rule of law do not apply.
II. STANDARD OF REVIEW
May moved to vacate the judgment against him pursuant to RCr 11.42. In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
May also filed his motion to vacate in the circuit court pursuant to CR 60.02. On appeal, we review the denial of a CR 60.02 motion for an abuse of discretion. See White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate 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) (internal quotation marks omitted). Civil Rule 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." Id. "A movant is not entitled to a hearing on a CR 60.02 motion unless he affirmatively alleges facts which, if true, justify vacating the judgment and further alleges special circumstances that justify CR 60.02 relief." White, 32 S.W.3d at 86 (internal quotation marks and citation omitted).
III. ANALYSIS
A. PROSECUTORIAL MISCONDUCT
May first contends that the circuit court erred in failing to vacate the judgment due to prosecutorial misconduct when the prosecution interfered with his compulsory process by ordering defense witnesses not to speak with May prior to trial. The witnesses who were allegedly ordered not to speak with him were J. C. and K. C.
May filed a "motion to dismiss [the] indictment for prosecutorial misconduct and fraud," two weeks prior to trial. Therein he stated that he had spoken on the telephone with J. C. and K. C. on more than one occasion about his defense since he had been in jail. In that motion, May asserted that "any [telephone] call made by Defendant May to interview any witness in his defense is privileged." May alleged in his motion to dismiss the indictment that his telephone conversations with J. C. and K. C. had been improperly recorded by jail staff. He asserted that this caused his "entire defense" to be "placed in jeopardy. Every witness name, their testimony and every piece of evidence that is to be offered by Mr. May is on the conversations."
He does not make this allegation in the present appeal. Rather, we note this simply to explain May's purpose for filing the motion to dismiss the indictment in which he acknowledged that he had spoken with J. C. and K. C. on the telephone about their testimony and his defense.
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According to his motion to dismiss the indictment, May already knew all of the evidence he intended to introduce at trial two weeks before trial began. The testimony of the witnesses he intended to call during trial had been discussed during those telephone conversations with J. C. and K. C. May does not explain why he could not have obtained the information that J. C. and K. C. claimed in their affidavits that they would have provided him, including the names of other witnesses he could subpoena to testify, during those telephone conversations.
Furthermore, both J. C. and K. C. were subpoenaed by May to testify on his behalf at trial. The subpoenas were served by an investigator for the Department of Public Advocacy, who was assisting May prior to trial. J. C. testified during trial but, according to the Commonwealth, May decided not to call K. C. as a witness, although she had been subpoenaed.
Therefore, any error in the Commonwealth instructing J. C. and K. C. not to talk to May was negligible. In fact, J. C. attested in her affidavit that even though she had been told not to speak with May, she visited him at the jail once more. Thus, May cannot show he was prejudiced by J. C. and K. C. being told not to visit him when he had already spoken with them on the telephone multiple times about the testimony they planned to offer during trial; J. C. still came to the jail to speak with him even after being told not to do so; J. C. testified on his behalf at trial; and May could have called K. C. to testify but he chose otherwise.
Furthermore J. C. attested in her affidavit that if she had been able to speak with May more before trial, she could have given him the names of people who could have attested based on personal knowledge to the appearance of the property during 2008. However, it would have been unnecessary for others to testify because J. C. - who resided at the property - testified. Thus, testimony from others regarding the appearance of the property would have been cumulative. Consequently, this claim lacks merit.
Moreover, this is a claim that May could have brought on direct appeal. Accordingly, it was not properly raised in a RCr 11.42/CR 60.02 motion. Consequently, the circuit court did not err in denying relief based upon this claim.
B. STANDBY COUNSEL INTERFERED WITH WITNESS QUESTIONING
May next claims that his rights under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were violated when standby counsel interfered with the questioning of witnesses. Specifically, he contends that standby counsel asked the court on the morning of trial to release the investigator from the Department of Public Advocacy. He also alleges that standby counsel refused to call the victim to be cross-examined.
However, these are claims that could have and should have been brought on direct appeal. Therefore, they were not properly brought in this RCr 11.42/CR 60.02 proceeding.
C. INTERFERENCE WITH DELIVERY AND RECEIPT OF MAIL
May next contends that he was denied a fair trial when the Boyle County Detention Center interfered with the delivery and receipt of his mail. May asserts that he asked J. C. to help him investigate his case and to take photographs of the property where she lived during 2008. J. C. told him several months before trial that she had taken the photographs he requested and mailed them to him at the Boyle County Detention Center. May claims that he informed the circuit court during his Faretta hearing that "he was not receiving his mail and he believed the jail was withholding his mail." May alleges that he was transferred to the Taylor County Jail after his trial, "and when he arrived at the jail the jail staff informed Mr. May that he had several pictures and three DVD disk[s] of some kind of statements." May asserts that the photographs were of the property where the victim claimed the crimes occurred, and he needed the photographs to assist in his defense. He further contends that one of the DVDs contained a statement made by the victim that he had not received in discovery. In that statement, the victim allegedly described a fight she had with K. C. May contends that he was unable to cross-examine the victim about the fight as a possible motive for the victim to make up the charges against May.
We first note that it is undisputed that May was aware at the time he filed his direct appeal that he had not been receiving his mail. Thus, he should have asserted this claim on direct appeal; it was not properly brought in his motion to vacate.
Even if May had not been aware at the time of his direct appeal that he had not received all of his mail, the photographs were taken sometime after his indictment in June 2009. Likely, the photographs would not have been relevant as to how the property where the crimes occurred appeared in 2008. Additionally, May has not shown how the DVD containing the statement from the victim would have been relevant to the present case; he vaguely states that the victim mentioned in her statement that she and K. C. had an argument at some point. However, May does not contend what the argument was about; if it occurred close in time to when the victim accused May of his crimes; or why the victim would have fabricated the charges against May when her argument was with K. C.
Therefore, May has failed to show that the alleged "evidence" that he did not receive in the mail prior to trial was relevant and that it would have been admissible at trial. Consequently, he is not entitled to a new trial based upon this claim.
D. EVIDENTIARY HEARING
May next asserts that he is entitled to an evidentiary hearing based upon his claims of newly discovered evidence. Specifically, he alleges that it is likely the victim mistakenly identified him as the perpetrator of the crimes. May claims another man who resembled him moved out of the trailer May rented on the property one week before May moved into it. May contends that he looks like that other man; he wears glasses like the other man; and he bought the truck that had been owned by the other man. May asserts that the description of the property where the trailer was located that was provided by the victim matched the appearance of the property in 2007, when the other man lived there. Furthermore, May contends that K. C. had newly discovered evidence concerning telephone calls the victim made to K. C. the night of the victim's birthday party, which was one of the nights that the crimes allegedly occurred. May asserts that the evidence of the telephone calls would have shown that the victim was not at the property on the night in question.
As noted by the circuit court, there was no question of misidentification: The victim knew May and even referred to him by his nickname when she was testifying during trial. May does not refute this finding on appeal. Consequently, the circuit court did not err in failing to hold an evidentiary hearing concerning this "newly discovered evidence."
If May had called K. C. to testify during trial, she could have testified regarding this allegedly "newly discovered evidence." K.C. resided at the property where the other man rented the trailer behind the house, and she was the person who had spoken with the victim via telephone on the night of the victim's birthday party. However, May chose not to call K. C. to testify. Thus, this evidence could have been discovered prior to or during trial. May is not entitled to relief at this time based upon it.
E. FAILURE TO APPOINT POST-CONVICTION COUNSEL
May also asserts that he was denied due process when the circuit court failed to appoint post-conviction counsel to represent him during his RCr 11.42/CR 60.02 proceedings. The Kentucky Supreme Court has held that there is no constitutional right to counsel in RCr 11.42 proceedings, and we are bound by that ruling. See Moore v. Commonwealth, 199 S.W.3d 132, 140 (Ky. 2006). Additionally, the Kentucky Supreme Court has held that a CR 60.02 movant is not entitled to appointed counsel. See Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Therefore, the circuit court did not err in failing to appoint counsel for May in his RCr 11.42/CR 60.02 proceedings.
F. MISSING TRIAL RECORD
Finally, May alleges that he was denied due process and the right to a meaningful appeal due to missing trial records that would show he was entitled to a reversal of his conviction. He claims there are two important matters missing from the trial record. First, May asserts that the investigator from the Department of Public Advocacy was supposed to subpoena defense witness Bret Chamberlain but failed to do so. He contends that missing from the trial record was a hearing during which May complained to the circuit court of the investigator "not getting the subpoenas served and [standby counsel] releasing [the investigator]."
Second, May asserts that an in-chambers discussion is missing from the record. During that discussion, May states that he told the court standby counsel refused to call the victim back to the witness stand so that counsel could ask certain questions May wanted counsel to ask the victim. The court allegedly stated that standby counsel was appointed, following a hearing, to cross-examine the victim. Standby counsel did not want to ask the victim May's questions because counsel did not want the jury to get angry with counsel. May contends the court held that because standby counsel was appointed, it was counsel's decision to make. May asserts that the failure to include this in-chambers discussion in the trial record denied him due process of law and a meaningful appeal.
These claims about the allegedly missing record are claims that May could have brought on direct appeal. Therefore, they were not properly brought in his RCr 11.42/CR 60.02 motion, and we will not consider them.
Accordingly, the order of the Mercer Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James Randall May
Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky