Opinion
NO. 2013-CA-001996-MR
05-15-2015
WILLIAM STAR, a.k.a. WILLIAM SARTIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Meredith Krause Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 07-CR-00103
OPINION
AFFIRMING
BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES. KRAMER, JUDGE: William Star, a.k.a William Sartin, appeals the Johnson Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Star's claims either were raised previously on direct appeal, or they could have been; alternatively, we affirm because his claims lack merit.
Kentucky Rules of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial, Star was twice found to be Guilty But Mentally Ill of the offense of Murder; once found to be Guilty But Mentally Ill of the offense of Kidnapping; and once found to be Guilty But Mentally Ill of the offense of First-Degree Assault. He was sentenced to thirty years of imprisonment for each of the two capital murder convictions; ten years of imprisonment for the kidnapping conviction; and ten years of imprisonment for the first-degree assault conviction.
Star moved for a new trial, claiming, inter alia, that his sentences for the Guilty But Mentally Ill (GBMI) convictions were unconstitutional. Specifically, he contended that the option for the jury to find him GBMI violated his right to present an insanity defense, and that the jury "was mislead as to the true nature of what would happen to Mr. Star." Star argued that the jury thought he would get treatment if it returned the GBMI verdict rather than a verdict of not guilty by reason of insanity. The circuit court denied Star's motion for a new trial.
Star appealed and again claimed, inter alia, that the circuit court should have declared that the verdict of GBMI was unconstitutional. Specifically, he alleged that the "promise of treatment lured the jury into returning a [GBMI] verdict rather than a not guilty by reason of insanity verdict," and he contended that "such a verdict does not necessarily guarantee that a defendant will receive treatment while in prison." The Kentucky Supreme Court affirmed the circuit court's judgment. See Star v. Commonwealth, 313 S.W.3d 30, 40 (Ky. 2010).
Star then filed his RCr 11.42 motion in the circuit court. In his motion, Star again argued that the verdict of GBMI was unconstitutional, and this time, he contended that he had evidence, after speaking with one of the jurors, that the "false belief that [Star] would automatically receive treatment in prison was a huge consideration for the jury." Star asserted that the juror "did not want [Star] in prison but thought he needed lock down and would receive more intensive care that he required." Star also contended that the juror's lack of frankness during voir dire entitled him to a new trial, and he requested an evidentiary hearing concerning his claims. The circuit court held an evidentiary hearing and ultimately denied Star's RCr 11.42 motion.
Star now appeals, contending that: (a) the circuit court erred in determining that the GBMI instruction did not deprive him of his constitutional rights; and (b) the circuit court erred when it found that he was not entitled to a new trial despite a juror's lack of frankness during voir dire.
II. STANDARD OF REVIEW
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. . . ."
III. ANALYSIS
A. GBMI INSTRUCTION
Star first asserts that the circuit court erred in determining that the GBMI instruction did not deprive him of his rights under the United States Constitution and under the Kentucky Constitution to due process of law and to be free from cruel and unusual punishment. We note that Star previously alleged on direct appeal that the GBMI instruction deprived him of his constitutional rights to due process and against cruel and unusual punishment. The Kentucky Supreme Court denied relief based upon these claims. Because Star previously raised this claim on direct appeal, it is not properly before us in this RCr 11.42 proceeding. See Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159.
Moreover, even if we were to review this claim, it lacks merit. Star's attorney interviewed one of the female jurors after trial, and that juror testified during the RCr 11.42 evidentiary hearing. Star alleges that the juror thought Star was incapable of conforming his actions to the law, i.e., "insane," but that the juror voted to find him GBMI because she thought it would ensure that he received treatment. Thus, this is the basis for Star's claim that the GBMI jury instruction deprived him of his rights to due process and against cruel and unusual punishment. However, Star's argument is misplaced. The juror attested during the evidentiary hearing that the entire jury believed that Star knew what he was doing when he committed the crimes, and that he could have conformed himself to the law if he had chosen to do so. Therefore, she testified that the jury did not believe that Star was "criminally insane." Consequently because the jury believed that Star had the ability to conform his conduct to the law, he was not entitled to be found not guilty by reason of insanity, and Star's arguments about the violation of his constitutional rights lack merit. B. VOIR DIRE
We note that RCr 10.04 provides that a "juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot." However, the circuit court permitted one juror to testify regarding the jury's verdict, and we mention her testimony only because, contrary to Star's assertions that he should have been found not guilty by reason of insanity, the juror attested that the jury found that Star was not entitled to the insanity defense.
Star also asserts that the circuit court erred when it found he was not entitled to a new trial despite a juror's lack of frankness during voir dire. This is a claim that could have and should have been brought on direct appeal. Therefore, it is not properly before us in this RCr 11.42 proceeding. See Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159.
Regardless even if we were to review it, the claim lacks merit. Star contends that one juror allegedly was not honest in her voir dire answers, i.e., she remained silent when defense counsel asked specific questions to which she should have responded. For example, Star contends that defense counsel asked, "How many people believe if you did the crime, you do the time?" The juror remained silent, but during the RCr 11.42 evidentiary hearing, she testified that "When you do a crime, you have to pay. You have to pay." Star also states that defense counsel asked the jurors, "Can you imagine yourself returning a not guilty by reason of insanity verdict in a case with two murders and a severely wounded woman?" He asserts that the juror remained silent, but in the evidentiary hearing, she testified that the "crime he [did] puts him over the edge" and "the heinousness of the crime [that is] what completely just sent him over." Star contends that defense counsel asked the jury, "Understand if you sit on [the] jury you are taking [an] oath that [your] decision will be based on facts and evidence?" He asserts that the juror was silent, but that she testified during the evidentiary hearing that her decision was based in part on the notion of putting Star in prison so that he could get help there. She also attested that the jurors considered the risk to their children if Star was released and committed another crime due to his delusions. Finally, Star states that defense counsel asked the jury, "Does everyone understand that you can[not] make up your mind until [you have] heard all the evidence? Until you're in the jury room?" The juror was again silent, but Star alleges she later told his prior post-conviction counsel during an interview that she said the following:
[H]e had to have obviously, to me, for him to think that this person was a snake and this person was this . . . when he got up on the trial or on the stand, I thought yeah, [you are] gone, you know, [you have] done something somewhere. I [do not] care how crazy you are, [you have] added something to this. I mean, to me, I think something was added. I think he abused drugs. I think he done too much of something in addition. . . .Although this last quote from the juror was not made during the evidentiary hearing, Star contends that the juror testified upon reading the transcript of her interview with prior counsel that she recalled having thought the information that was transcribed. He is correct to the extent that she attested that she recalled having thought the information that was transcribed, but in making this statement, she did not specify to what information she was referring at that time, because neither the juror nor counsel read it into the record at the evidentiary hearing. Therefore, we will not consider the last quote attributed to the juror above because it was not authenticated as a statement actually made by the juror. See KRE 901(a).
Kentucky Rules of Evidence.
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Star argues that if the juror had responded to the remaining aforementioned questions frankly, counsel would have stricken her for cause. "To obtain a new trial because of juror mendacity, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (internal quotation marks and citations omitted). "The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984).
Star first asserts that he is entitled to a new trial based upon the juror's act of remaining silent when defense counsel asked, "How many people believe if you did the crime, you do the time," despite the juror actually believing that "[w]hen you do a crime, you have to pay." Star claims that he should have been found not guilty by reason of insanity, and if the juror had answered this question honestly, he would have had cause to strike the juror. However, the juror testified during the RCr 11.42 evidentiary hearing that she may have voted for a verdict of not guilty by reason of insanity. But in her opinion, the evidence presented did not prove that Star was incapable of conforming his conduct to the law, as required to find someone not guilty by reason of insanity. Therefore, Star has not shown that the juror failed to answer defense counsel's question honestly, and this claim lacks merit.
Next, Star states that the juror remained silent when defense counsel asked the jurors, "Can you imagine yourself returning a not guilty by reason of insanity verdict in a case with two murders and a severely wounded woman," despite the fact that the juror ultimately decided that the "crime he [did] puts him over the edge" and "the heinousness of the crime [that is] what completely just sent him over." However, the juror testified during the RCr 11.42 evidentiary hearing that she did not find that Star qualified for the insanity defense because she believed that Star was able to conform his conduct to the law, but he chose not to do so. She attested that if evidence had been presented to show that Star was not able to conform his conduct to the law, she may have voted for a verdict of not guilty by reason of insanity. But, the evidence presented did not show this in her opinion. Therefore, that was why she voted for the verdict of GBMI, as opposed to a verdict of not guilty by reason of insanity. Consequently, Star has not shown that the juror failed to answer defense counsel's question at hand honestly, rendering this claim meritless.
Finally, Star contends that the juror was silent when defense counsel asked the jury members if they understood that if they sat on the jury, they were taking an oath that their decision would "be based on facts and evidence." Star asserts the juror was dishonest because she actually based her decision in part on the notion of putting Star in prison so that he could get help there and on her consideration of the risk to her children and others if Star was released and committed another crime due to his delusions. However, during the evidentiary hearing, the juror testified that although she and the rest of the jury were afraid of Star, the jury (including herself) reached its verdict based upon the evidence and upon the "guidelines" given to the jury -- not upon their own emotions. In fact, she attested that if the verdict had been based upon their emotions about the case, Star would have received a much harsher verdict. Therefore, Star has not shown that the juror failed to answer defense counsel's question at hand honestly, and this claim lacks merit.
Accordingly, the order of the Johnson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky