Opinion
NO. 2017-CA-000495-MR NO. 2018-CA-001881-MR
01-31-2020
MARVIN T. PENNINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: J. Ryan Chailland Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 95-CR-00086 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. COMBS, JUDGE: Marvin Timothy Pennington appeals from orders of the Fayette Circuit Court denying two separate motions for relief that he filed pursuant to CR 60.02. After our review, we affirm.
Kentucky Rules of Civil Procedure.
In 1995, Pennington was charged with a number of offenses related to the rape and sodomy of his girlfriend, S.S., following a forcible entry into her home. At his jury trial, evidence against Pennington included testimony from S.S. and the investigating detective; lab results from S.S.'s sexual assault forensic examination; photographs of S.S.'s injuries; photographs of her door, which Pennington kicked in to gain entry to her home; and a videotape Pennington gave to S.S. This videotape contained angry and profane expressions of Pennington's hatred for S.S., a scene of Pennington and S.S. engaging in sexual intercourse, and scenes from a funeral procession. After executing a search warrant, police also found a loaded handgun inside a locked briefcase in Pennington's home. Although the handgun was not used in the commission of the charged offenses, S.S. testified that she was afraid of Pennington because she was aware that he possessed it. The trial court allowed evidence of the handgun for the sole purpose of demonstrating S.S.'s fear of Pennington.
Pennington testified at trial that he and S.S. had engaged in consensual intercourse as an act of reconciliation following a tumultuous period in their relationship. Through the testimony of his mother, Pennington also produced a microcassette with a message left on his family's answering machine -- allegedly from S.S. to Pennington after the offenses charged in the indictment:
Not going in, 'cause David and Kelly are leaving at five o'clock to go to Henderson to visit her folks. Um, I love
you. This is tearing me apart. These people are pissing me off so bad. Um. I know it will all blow over, it always does. But, I am ready to scream. (Laughter.) Give me a call when you get in. Okay. I love you so much, hon. Take care. Bye.Pennington and his mother both testified that the voice on the recording belonged to S.S.; however, S.S. repeatedly denied leaving the message. Despite questions about the authenticity of the message, the identity of the person leaving the message, and the date that the message was left on the answering machine, the trial court allowed the message into evidence for the jury to make its own factual determination. The jury heard the message on the microcassette twice, asking to hear the message once more during deliberation.
After its deliberation, the jury convicted Pennington of two counts of kidnapping, two counts of first-degree rape, two counts of first-degree sodomy, criminal trespass, and second-degree stalking. The trial court ordered the penalties for these convictions to run consecutively, sentencing Pennington to a total of one hundred five (105) years of incarceration. The Supreme Court of Kentucky affirmed the conviction and sentence on direct appeal in an unpublished memorandum opinion. Pennington v. Commonwealth, No. 95-SC-000537-MR (Ky. Sept. 3, 1998). The Supreme Court held that the trial court did not abuse its discretion in admitting the handgun for the purpose of showing that S.S. had reason to be afraid of Pennington. Id.
The Supreme Court's opinion is not available electronically on Westlaw, but it may be found in Volume II of the record on appeal at page 189.
Pennington subsequently moved the trial court for relief under RCr 11.42, alleging ineffective assistance of counsel. The trial court denied Pennington's motion, and we affirmed the trial court's denial of relief. Pennington v. Commonwealth, Nos. 2001-CA-000965-MR and 2001-CA-001465-MR (Ky. App. Nov. 1, 2002).
Kentucky Rules of Criminal Procedure.
This Court's opinion is not available on Westlaw, but it may be found electronically on the Court of Justice website, http://apps.courts.ky.gov/supreme/sc_opinions.shtm. It may also be found in Volume IV of the record on appeal at page 559. --------
In 2005, Pennington first moved to have the original microcassette exhibit released and sent to Thomas Owen, an expert in voice recognition analysis, who lives and works in New Jersey. Pennington wanted to prove that the recorded message was left by S.S. Mr. Owen wished to test the original recording against exemplars of S.S.'s voice to ensure the best result possible. Although the trial court was unwilling to release the original exhibit, it permitted Pennington to have a duplicate made and sent to Mr. Owen. Pennington then repeated his request to release the original microcassette, and the trial court again denied that motion on May 22, 2006.
Nothing further appears in the record regarding the microcassette until April 29, 2015, when Pennington again moved the trial court to release the microcassette. In paragraph eight of his memorandum supporting the motion, Pennington made the following assertions:
At the hearing on January 27, 2006, this Court refused to release the original microcassette tape from the record for fear that it would be damaged. This Court, however, did order that a copy could be made at Mr. Pennington's expense. . . . Unfortunately, technology didn't exist at that time to make a copy that could be verified as an authentic, exact copy of the original. So, Mr. Pennington was forced again to wait until technology was developed to make an authentic, testable copy. (Affidavit of Thomas J. Owen, Exhibit A). Said technology now exists.The trial court granted Pennington's motion to make a digital copy of the microcassette and send it to Mr. Owen. After his testing, Mr. Owen concluded to a ninety-five percent (95%) probability that the female voice on the microcassette was that of S.S.
Based on the results of Mr. Owen's testing, on September 7, 2016, Pennington filed his first CR 60.02 motion to vacate judgment and grant a new trial in his case. Pennington argued that the results of the testing constituted newly discovered evidence justifying relief under CR 60.02. Furthermore, he argued that the test results from the microcassette would have significantly undermined S.S.'s credibility at trial if such testing had been available in 1995.
After a hearing on the issue, the trial court denied Pennington's motion by its order dated March 2, 2017. The trial court acknowledged that advances in technology from 1995 gave Pennington "a very interesting argument," but it nonetheless ruled that the test results went toward impeachment of S.S.'s credibility and not to the crux of the Commonwealth's case. The trial court further found that the test results would not have changed the original outcome. Therefore, Pennington had not shown a sufficient basis for a new trial. Pennington filed his notice of appeal from this order on March 21, 2017.
While Pennington's motion surrounding the microcassette was pending, he discovered that the investigating detective in his case had tested the handgun found in the locked briefcase for fingerprints and that the results of the test showed that Pennington's fingerprints were not on the handgun. For unknown reasons, this fingerprint testing was not disclosed to the defense. Based on this discovery, on June 13, 2017, Pennington filed a second CR 60.02 motion with the trial court, asserting that the Commonwealth had withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Pennington claimed that this evidence would have corroborated his denial of ownership of the handgun at trial (he claimed it actually belonged to his mother).
In an order entered on December 12, 2018, the trial court denied Pennington's motion for CR 60.02 relief. The trial court held the motion was untimely and successive. Additionally, in considering the merits, the trial court found that the undisclosed fingerprint report did not violate Brady because it was not a material issue. Pennington filed his notice of appeal from this order on December 21, 2018. We subsequently ordered consolidation of Pennington's two appeals on both of his denied CR 60.02 motions. This appeal followed.
"We review the denial of a CR 60.02 motion for an abuse of discretion." Diaz v. Commonwealth, 479 S.W.3d 90, 92 (Ky. App. 2015) (citing Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The burden of proof in a CR 60.02 proceeding falls squarely on the movant to affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief." Foley v. Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014) (citations and internal quotation marks omitted). "[W]e will affirm the lower court's decision unless there is a showing of some 'flagrant miscarriage of justice.'" Id. at 886 (quoting Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983)).
Pennington presents two issues on appeal from his dual CR 60.02 motions. First, he asserts that the trial court abused its discretion when it denied relief based on the voice analysis of the microcassette. Second, Pennington contends that the trial court abused its discretion when it denied relief based on the Commonwealth's failure to disclose the fingerprint testing, contrary to the mandates of Brady. However, after our review, we conclude that neither argument warrants reversal.
In his first argument on appeal, Pennington contends the trial court should have granted his CR 60.02 motion because the result of the voice recognition analysis conducted by Mr. Owen constitutes newly discovered evidence of S.S.'s dishonest testimony.
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds . . . newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]CR 60.02(b).
However, the trial court correctly found that this evidence would merely amount to impeachment of S.S.'s credibility and that it would not warrant a new trial. "[N]ewly discovered evidence that merely impeaches the credibility of a witness or is cumulative is generally disfavored as grounds for granting a new trial." Foley v. Commonwealth, 55 S.W.3d 809, 814 (Ky. 2000). The Commonwealth had ample other evidence at Pennington's trial to support the allegations against him -- including photographs of S.S.'s injuries, photographs of the kicked-in door, and the videotaped threat to S.S. "[I]n order for newly discovered evidence to support a motion for new trial it must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted." Foley, 425 S.W.3d at 886 (citations and internal quotation marks omitted). Under these circumstances, the issue of whether S.S. falsely denied leaving a message on Pennington's answering machine amounts to an attack on her credibility and nothing more.
In addition, the trial court correctly questioned whether the microcassette recording issue was "newly discovered" at all. Although Mr. Owens's analysis was new, the parties had vigorously litigated issues surrounding the microcassette at trial -- among which was the purported identity of the individual on the recording. The jury had ample opportunity to consider whether S.S. was indeed that individual before convicting Pennington.
In a prior case involving an enhanced 911 call, the Supreme Court of Kentucky noted, "the jury needed no 'expert listener' to interpret the content of the 911 call. The jurors were capable of resolving for themselves any disputes concerning what was said by whom." Rowe v. Commonwealth, 355 S.W.3d 480, 486 (Ky. App. 2011) (emphasis added) (quoting Rowe v. Commonwealth, No. 2006-SC-000356-MR, 2007 WL 1532334, at *5 (Ky. May 24, 2007)). For these reasons, we conclude that there was no abuse of discretion by the trial court in denying CR 60.02 relief based on the voice-recognition testing.
For his second argument on appeal, Pennington contends that the trial court abused its discretion by denying his second CR 60.02 motion predicated on the alleged Brady violation. The United States Supreme Court has held: "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97 (emphasis added). The Supreme Court has extended Brady several times since it was rendered in 1963, creating a general duty for a prosecutor to disclose exculpatory information -- provided that such information is material:
We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id., at 682, 105 S. Ct. 3375; see also Kyles v. Whitley, 514
U.S. 419, 433-434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999).
In the case before us, the trial court directly considered the question of whether the undisclosed fingerprint testing amounted to a Brady violation and concluded that it did not, finding that the undisclosed testing was not material. We agree.
In considering materiality, the Supreme Court has held that a defendant demonstrates a Brady violation "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995) (footnote omitted). The trial court found that the fingerprint evidence was not material for Brady purposes because the Commonwealth never alleged that Pennington used the handgun to commit the crimes for which he was convicted.
This conclusion is supported by an examination of the record. In its opinion on direct appeal, which is part of the law of the case, our Supreme Court held that the handgun was properly admitted for the limited purpose of demonstrating S.S.'s fear of Pennington because of her knowledge that he had access to the handgun. The presence or absence of fingerprints on the handgun was of no consequence in showing that fear. As a result, the missing fingerprint report could not be said "to put the whole case in such a different light as to undermine confidence in the verdict." Id. The trial court did not abuse its discretion in denying relief on this basis.
We AFFIRM the orders of the Fayette Circuit Court denying Pennington's motions for relief under CR 60.02.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Ryan Chailland
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky