Opinion
NO. 2013-CA-000101-MR
06-06-2014
TROY SCHWEIKERT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Troy Schweikert, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Bryan D. Morrow Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 06-CR-00322
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: This matter is on appeal from the Kenton Circuit Court's denial of appellant Troy Schweikert's Kentucky Rule of Civil Procedure (CR) 60.02 motion. For the reasons more fully explained below, we AFFIRM.
I. BACKGROUND
Following a jury trial, Schweikert was found guilty of rape in the first degree, unlawful imprisonment in the first degree, and terroristic threatening. On June 25, 2007, the Kenton Circuit Court entered a judgment against Schweikert sentencing him to twenty years imprisonment.
On direct appeal, the Kentucky Supreme Court affirmed Schweikert's conviction. Schweikert v. Commonwealth, No. 2007-SC-000733-MR, 2009 WL 1451933 (Ky. May 21, 2009). Thereafter, Schweikert filed a Kentucky Rule of Criminal Procedure (RCr) 11.42 motion before the trial court. The trial court denied the motion and Schweikert appealed to this Court. By opinion rendered January 27, 2012, we affirmed the trial court. See Schweikert v. Commonwealth, No. 2010-CA-001936-MR, (Ky. App. Jan. 27, 2012). The Kentucky Supreme Court denied Schweikert's motion for discretionary review on October 17, 2012.
Thereafter, on November 9, 2012, Schweikert filed the underlying CR 60.02 motion in Kenton Circuit Court. In short, Schweikert alleged that during the RCr 11.42 proceedings the Commonwealth provided him a copy of a compact disc (CD) that was played to his jury during their deliberations. Schweikert maintains that the entire CD was played to jury in violation of the rules of evidence and his Sixth Amendment right to confrontation because it contained an interrogation between him and Police Captain Tony Lucas (the Lucas interview) that was not introduced as evidence during his trial.
The parties do not dispute that the CD contained two interviews with Schweikert. The first interview between Schweikert and Detective Schworer was introduced during trial through Schworer's testimony. Captain Lucas did not testify at trial, and therefore, the second interview was not introduced.
The trial court denied Schweikert's motion as well as his request for an evidentiary hearing by order entered December 14, 2012, after finding that Schweikert's claims were not appropriate under CR 60.02 as they could have been pursued on direct review. Alternatively, the trial court determined that Schweikert had not demonstrated that the challenged portion of the video was ever played to the jury. This appeal followed.
II. STANDARD OF REVIEW
We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky.1996). "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). Therefore, we affirm the lower court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983).
III. ANALYSIS
It is well-established that CR 60.02 is an extraordinary remedy, and the movant must make a substantial showing to be entitled to relief. Ringo v. Commonwealth, 455 S.W.2d 49 (Ky. 1970). Additionally, CR 60.02 "is for relief that is not available by direct appeal and not available under RCr 11.42." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). Issues that could have been raised in a direct appeal or as part of an RCr 11.42 motion will not be considered under CR 60.02 as grounds for relief. Id.
Schweikert characterizes his claim as one involving newly discovered evidence. He asserts that he first became aware of the possibility that the jury may have viewed the Lucas interview when the Commonwealth provided him a copy of the CD in question as the parties were litigating his RCr 11.42 appeal. As such, he maintains that he could not have pursued the Lucas interview issue during either his direct appeal or when he filed his RCr 11.42 with the trial court. We cannot agree.
While Schweikert may not have had a copy of the CD in his physical possession prior to his RCr 11.42 appeal, the Commonwealth provided Schweikert's counsel with a copy of the CD on July 27, 2006, prior to trial; the CD and its contents were referred to during trial at which Schweikert was undoubtedly present. Moreover, as Schweikert indicates in his brief, there was some conversation between the trial court and counsel regarding the logistics of replaying the Schworer interview to the jury as they requested.
"Each party is deemed bound by the acts of his lawyer-agent and is considered to have "notice of all facts, notice of which can be charged upon the attorney." Vanhook v. Stanford-Lincoln County Rescue Squad, Inc., 678 S.W.2d 797, 800 (Ky. App. 1984) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)). The Commonwealth produced the CD in question to the defense as part of discovery in July 2006. Counsel knew that the CD contained the Lucas interview, which was not introduced at trial. Counsel also knew that the bailiff played the CD to the jury outside of counsel's presence creating the possibility that the jury could have inadvertently watched all or a portion of the Lucas interview. Given these facts, it is impossible for Schweikert to maintain that the CD is "newly discovered" evidence.
Counsel could have sought redaction at trial or asked the trial court to provide further assurances that the jury did not watch the Lucas interview during their deliberations. Furthermore, even though this alleged error was not preserved at trial, Schweikert could have raised the issue as a palpable error under RCr 10.26 as part of his direct appeal. Additionally, Schweikert could have, but did not, assert that his counsel was ineffective for failing to have the CD redacted or for allowing it to be played before the jury as part of his RCr 11.42 motion.
This is not to imply that counsel was ineffective. We note simply that these were possible arguments available for Schweikert to raise in his motion.
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IV. CONCLUSION
Because Schweikert's claim could have been pursued as part of his direct appeal or by way of RCr 11.42, the trial court did not abuse its discretion in denying his CR 60.02 motion and we affirm its decision.
ALL CONCUR. BRIEF FOR APPELLANT: Troy Schweikert, Pro Se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Bryan D. Morrow
Frankfort, Kentucky