Opinion
NO. 2015-CA-000841-MR
04-07-2017
BRENNAN J. ROUSE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brennan J. Rouse, pro se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear 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NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT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. 01-CR-00024 OPINION
AFFIRMING
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BEFORE: ACREE, STUMBO AND TAYLOR, JUDGES. ACREE, JUDGE: The issue presented is whether the McCracken Circuit Court erred when it denied Appellant Brennan Rouse's motion to compel his former trial counsel to release his case file along with transcripts of grand jury proceedings from 2001. We find no error and affirm.
In 2001, Rouse was charged with murder. Rouse retained attorney Charlotte Scott to represent him. Rouse was convicted in April 2002 and sentenced to life in prison. Scott, upon filing a notice of appeal, ceased representation of Rouse.
The record indicates attorney Christopher Lasch handled Rouse's direct appeal. The vast majority of all subsequent proceedings have been conducted by Rouse pro se.
The Kentucky Supreme Court affirmed Rouse's conviction the next year. Rouse v. Commonwealth, 2002-SC-0298-MR, 2003 WL 22971279, at *1 (Ky. Dec. 18, 2003). In July 2004, Rouse moved, pro se, for relief from his conviction under RCr 11.42. This post-conviction phase lasted for several years, culminating in a 2007 opinion issued by this Court affirming the trial court's denial of Rouse's RCr 11.42 motion. Rouse v. Commonwealth, 2006-CA-002308-MR, 2007 WL 4277901 (Ky. App. Dec. 7, 2007).
Kentucky Rules of Criminal Procedure.
In March 2014, Rouse filed with the Green River Correctional Complex a request to inspect public records, namely "a copy of the January 19th 2001 Indictment Hearing Tape on case number 01-CR-00024 Brennan J. Rouse." (R. 66). Green River responded that it did not have possession of the grand jury proceedings and directed Rouse to contact the McCracken County Commonwealth's Attorney. The Commonwealth's Attorney, upon inquiry by Rouse, informed him that the Office of the Commonwealth's Attorney did not provide transcripts of grand jury hearings and advised Rouse to obtain a copy from the defense attorney who represented him during the original proceeding - Charlotte Scott.
Rouse attempted to contact Scott by letter dated September 22, 2014, but his submission went unanswered. On January 22, 2015, Rouse moved to compel Scott to produce and surrender Rouse's case file. Scott responded she no longer has any pleadings or notes related to Rouse's case, which originated in 2001, because his "file was destroyed quite some time ago." (R. 90).
Rouse claims he tried to contact Scott on numerous other occasions, but that is not born out in this record.
The circuit court, by order entered May 5, 2015, denied Rouse's motion to compel, finding Scott cannot produce something she does not have. This appeal followed. Additional facts will be discussed as needed.
Rouse argues, under RCr 5.16, he is entitled to a transcript of the grand jury proceedings related to his case for post-conviction purposes. He contends he has diligently, but fruitlessly, sought the transcript from his trial attorney, his appellate attorney, the trial court, the circuit court clerk, and the Commonwealth's Attorney. To support his position, Rouse cites to this Court's unpublished opinion in Morton v. Commonwealth, 2005-CA-00087-MR, 2006 WL 1867933 (Ky. App. 2006), wherein we held that the appellant was entitled to a copy of the grand jury transcript based on "the clear mandate of RCr 5.16(3)[.]" Id. at *2.
RCr 5.16(3) authorizes "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." In relying on Morton, an unpublished opinion, Rouse overlooks Wagner v. Commonwealth, 247 S.W.3d 540 (Ky. App. 2008), a published opinion on this subject. The appellant in Wagner, like Rouse in this case, argued he was entitled to a copy of the grand jury transcripts pursuant to RCr 5.16(3) to perfect a post-conviction motion. This Court found: "[Appellant] 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." Wagner, 247 S.W.3d at 542.
Rouse, like the appellant in Wagner, is similarly not entitled to a copy of the grand jury proceedings for post-conviction purposes under the auspices of RCr 5.16(3). Perhaps more importantly, as it relates to this case, nothing in RCr 5.16(3) compels a defendant's trial counsel to procure the grand jury transcript. After all, we are focused here on Rouse's motion to compel his trial counsel to act, not another person or entity. Even Morton, upon which Rouse relies, remanded for the circuit to enter an order directing the Commonwealth , not defense counsel, to make a transcript of the grand jury testimony available to appellant. Morton, 2006 WL 1867933, at *2.
Rouse also argues that, under Hiatt v. Clark, 194 S.W.3d 324 (Ky. 2006), he is entitled to obtain from his trial counsel a copy of his case file which, in Rouse's estimate, should contain a copy of the grand jury proceeding. In Hiatt, our Supreme Court declared that a former criminal client, upon request, is entitled to the entirety of his own file from his former attorney. 194 S.W.3d at 329; see also SCR 3.130-1.16(d). As already noted, Rouse's trial counsel, Scott, is no longer in possession of Rouse's records. After representing Rouse in 2001 and 2002, she maintained his file for five years, a reasonable period of time, but ultimately disposed of it in the ordinary course of business. (R. 90). There is no evidence she did so maliciously or to thwart Rouse's post-conviction efforts. Despite his other efforts to obtain the grand jury transcript, Rouse did not request his own file from Scott until 2014, twelve years after Scott's representation of Rouse terminated. It is evident to this Court, and should be likewise evident to Rouse, that we can do little to compel Scott to turn over a file she no longer possesses.
Supreme Court Rule
SCR 3.130-1.16(d) provides, in part, that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as . . . surrendering papers and property to which the client is entitled[.]" --------
We sympathize with Rouse's difficulties. He has made numerous attempts - including a 2002 request to appellate counsel (not Scott) and a 2007 request to the then McCracken County Commonwealth's Attorney, in addition to those efforts previously described - to obtain the grand jury minutes from 2001. He achieved little, if any success. But we cannot say the circuit court abused its discretion or in any manner erred when it denied Rouse's motion to compel his former trial counsel to procure a file she no longer has in her possession.
Accordingly, we affirm the McCracken Circuit Court's May 5, 2015 Order denying Rouse's motion to compel.
ALL CONCUR. BRIEFS FOR APPELLANT: Brennan J. Rouse, pro se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky