Opinion
NO. 2014-CA-000897-MR
02-19-2016
JAMES R. THOMAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, KY BRIEF FOR APPELLEE: Jack Conway Frankfort, KY Taylor Payne Frankfort, KY
NOT TO BE PUBLISHED APPEAL FROM OWEN CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 2013-CR-00054 OPINION
AFFIRMING BEFORE: D. LAMBERT, MAZE AND THOMPSON; JUDGES. D. LAMBERT, JUDGE: This matter is before the Court on appeal from a conviction following a jury trial before the Owen Circuit Court. The Appellant and Defendant below, James R. Thomas, makes three assignment of error against the trial court. Having reviewed the record and finding no error, we affirm.
I. Factual and Procedural History
Thomas was arrested on April 24, 2012, pursuant to a warrant issued by the Owen Circuit Court, upon his indictment by the Grand Jury. He was released from custody on a surety bond and placed on monitored conditional release the next day. Later, having failed a drug screen, Thomas was remanded to custody on June 19, 2012. His wife, Brenda Thomas (hereinafter, "Brenda"), then posted a property bond securing his release a second time. This second release occurred on June 20, 2012.
Thomas appeared without counsel before the Owen Circuit Court on July 24, 2012. Thomas' co-defendant also appeared, with counsel, on that date. During that appearance, the co-defendant was given his next report date. Thomas also asked the trial court for his own report date. The trial court told him to reappear on September 11, 2012, and further instructed him to maintain contact with his attorney. The trial court also set a trial date of September 17, 2012 for Thomas, with a back-up trial date of September 28, 2012.
When Thomas failed to appear on September 11, 2012, the trial court issued an arrest warrant. Thomas remained a fugitive through the September 17 and September 28 trial dates; consequently court was not held on those dates in Thomas' case.
Thomas and Brenda were arrested in Covington on November 28, 2012. The indictment in this action was entered on October15, 2013. The indictment consisted of four counts. Counts I-III of the indictment were for the offense of bail jumping in the first degree, for Thomas' failure to appear before the trial court on September 11, on September 17, and September 28, 2012, respectively. The remaining count charged Thomas with being a persistent felony offender in the first degree.
At his arraignment, Thomas, acting through counsel, notified the presiding judge that he could potentially be a witness at trial on this new indictment, and moved the judge recuse himself and seek appointment of a special judge. The court denied this motion. Thomas later filed a motion in limine seeking to exclude the video recording of the pre-trial conference from July 24, 2012, and the written order reflecting the trial court's oral ruling. The trial court also denied the motion in limine, noting that the judge's testimony was unnecessary, given the clarity of the ruling, and the fact that a trial court may take judicial notice of its own rulings. On November 7, 2013, the morning of trial, Thomas attempted to serve a subpoena on the presiding judge, who refused to comply, noting the issue had already been adjudicated. Thomas then sought to take the judge's testimony for avowal purposes, which the court also denied.
During trial, the Commonwealth called Brenda to testify. Thomas attempted to preclude her testimony by asserting the spousal and martial privileges as set for the Rule 504 of the Kentucky Rules of Evidence ("KRE"). The trial court found that the requisite elements for an exception to those privileges were present in the record, and denied the objection. Brenda went on to testify that Thomas knew he was missing court appearances and that he knew law enforcement was actively searching for him. She testified that she and Thomas, during a portion of that time period, were traveling together through six states, despite that knowledge.
The jury convicted Thomas on counts I and II of the indictment (for missing his appearances on September 11, 2012 and September 17, 2012), but acquitted him on counts III and IV (for missing the September 28, 2012 back-up trial date and the PFO charge). The jury recommended a sentence of 5 years on count I and four years on count II, and further recommended those sentences be served consecutively.
In the time period between the trial and Thomas' sentencing date, Thomas learned of a recorded statement Brenda had given in 2012 to police in Kenton County following an arrest unrelated to either of Thomas' Owen County indictments. After having listened to the recording, defense counsel concluded it was exculpatory in that Brenda referred to Thomas as a methamphetamine user rather than a manufacturer, plus a number of other inconsistencies "from the co-defendant Commonwealth witness which would have provided significant impact during the Defendant's cross-examination." Thomas moved for a directed verdict of acquittal, and also sought alternative relief in the form of an evidentiary hearing. The trial court summarily denied this motion, and denied it a second time when defense counsel so moved again at sentencing.
The trial court entered its Final Judgment and Sentence of Imprisonment on April 25, 2014. The trial court departed from the jury's sentencing recommendation and ordered that Thomas' sentences on counts I and II be served concurrently. The trial court also imposed a fine in the amount of $1,000.00 and directed that Thomas should have to pay court costs.
Thomas filed a pro se Notice of Appeal on May 19, 2014. Thereafter, he was granted leave to proceed in forma pauperis and appointed appellate counsel. This appeal presents three issues for the Court to review. The first is whether the trial court erred when it denied the motion to recuse and seek appointment of a special judge. The second is whether the trial court erred in permitting Brenda Thomas to testify despite Thomas' invocation of the spousal and marital privileges. The third and final question is whether the trial court erred in denying Thomas' post-trial motion for verdict of acquittal, with the alternative request for an evidentiary hearing to determine whether a previously undisclosed police interview with Brenda contained exculpatory information.
II. Analysis
A. The Circuit Judge Did Not Err in Refusing to Recuse
Appellate courts apply an abuse of discretion standard when reviewing a trial court judge's denial of a motion to recuse. Minks v. Commonwealth, 427 S.W.3d 802, 806 (Ky. 2014). An appellate court must reverse a trial court's ruling as an abuse of discretion if it was "...arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Thomas made his motion below based on KRE 605, which states that "[t]he judge presiding at the trial may not testify in that trial as a witness." The Commonwealth argues that because Thomas bases his argument on KRS 26A.015 on appeal, the issue is not properly before this Court. This Court agrees, as it is "without authority to review issues not raised in, or decided by the trial court." Regional Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
The motion actually cited KRE 608, but the Kentucky Rules of Evidence were amended as of September 1, 2015, and the content of the cited provision is now found in KRE 605.
Though the provisions are similar, the trial court's ruling was based on the Kentucky Rules of Evidence, not the provisions of KRS 26A, which Thomas now asserts. We therefore lack the authority to decide this issue on appeal, pursuant to Tackett, because the application of KRS 26A.015 was not raised before the trial court.
Thomas, however, also requested this Court review the issue pursuant to RCr 10.26 for palpable error in the event this Court finds the issue improperly preserved. For an error to rise to the level of palpable, it must be "easily perceptible, plain, obvious, and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218 (Ky. 1997)). A palpable error is one which is "so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings." Brewer, at 349. We will therefore review the merits of the issue as well.
Thomas contends that the presiding judge had personal knowledge of a disputed material fact in the case, a refusal to seek appointment of a special judge was in violation of KRS 26A.015. The Commonwealth's case-in-chief would have relied heavily on the video record of the July 24, 2012, proceedings in which the trial court advised Thomas, specifically, of his next court date. From there, Thomas immediately leapt to the conclusion that the presiding judge's testimony was essential, as he possessed personal knowledge of the matter, and therefore he must recuse himself.
Though not mentioned by Thomas' counsel, the same legal principle set forth in KRS 26A.015 is also found Supreme Court Rule 4.300. --------
Judges of this Commonwealth have a "duty to sit" absent valid reasons for recusal. Commonwealth of Kentucky, Revenue Cab. v. Smith, 875 S.W.2d 873, 879 (Ky. 1994). Appellate courts have repeatedly held that "personal knowledge" stemming solely from the presiding judge's involvement in a case—that is, knowledge from a judicial source—is not sufficient to mandate the judge's recusal. In Marlowe v. Commonwealth, the trial court was found to have acted properly when declining to recuse when the judge acquired knowledge of the case as the result of an aborted guilty plea. 709 S.W.2d 424 (Ky. 1986). In Minks, the fact that a judge had signed the warrant authorizing the collection of the evidence which was the subject of a suppression motion was not a sufficient basis to force the judge to recuse. Minks, supra. Likewise, the Sixth Circuit has held that judges who sign wiretap warrants may preside over hearings on motions to suppress the evidence collected as a consequence. U.S. v. Lawson, 780 F.2d 535 (6th Cir. 1985); U.S. v. Murray, 762 F.2d 1013 (6th Cir. 1985). Finally, and most conclusively, the Supreme Court of the United States has also previously ruled that "opinions held by judges as a result of what they learned in earlier proceedings" are not sufficient to merit recusal. Liteky v U.S., 510 U.S. 540, 551 (1994).
In sum, a vast landscape of decisional authority at every conceivable level of jurisdiction refutes the position adopted by Thomas on this issue on appeal. The trial court did not abuse its discretion. There is no palpable error.
B. The Trial Court Did Not Err in Denying Thomas' Request to Invoke the Spousal and Martial Privileges
Admissibility of evidence is entirely within the discretion of the trial court. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky. 2001). Therefore, evidentiary rulings of a trial court are reviewed for abuse of discretion. Dunlap v. Commonwealth, 435 S.W.3d 537, 553 (Ky. 2013).
The spousal and marital communication privileges are governed by KRE 504(a) and 504(b), respectively. The issue before this Court is whether the trial court correctly ruled that the exception to the spousal privilege applies to negate Thomas' invocation thereof. There is no privilege when the testifying spouse and charged spouse "conspired or acted jointly in the commission of the crime charged[.]" KRE 504(c)(1).
Thomas argued that because Brenda was not indicted as a co-defendant with him, she was merely a witness to his own criminal behavior and not a co-conspirator or accomplice as contemplated in the rule. Both parties cited the factually analogous case of Pate v. Commonwealth, 243 S.W.3d 327 (Ky. 2007). In Pate, both spouses were initially indicted as co-defendants for the same offenses, but the wife entered a guilty plea to a lesser-included offense. The Court ultimately ruled, based on the totality of the circumstances rather than the indictment, that the evidence supported a finding that she was indeed, engaged in a "joint action in the commission of the crime" and for that reason the privilege could not apply. Id. at 334.
In St. Clair v. Commonwealth, another factually similar case, the defendant's wife provided him with "money, clothing, and other items" after his escape from custody in Oklahoma. 174 S.W.3d 474, 477 (Ky. 2005). However, the defendant in that case was not charged with escape in Kentucky; rather he was charged with a series of offenses not causally related to his escape. The Supreme Court held that the spousal privilege precluded her testimony as her role in the escape did not relate to any of the offenses for which he was charged (including attempted murder, capital kidnapping, receiving stolen property, and second degree arson).
The situation before this Court differs from these two precedents. Brenda was indicted and entered a guilty plea to her role in Thomas' bail jumping in another case from August of 2012, but not the September offenses for which he was indicted in this matter. However, her testimony indicated that she had been with Thomas during the entirety of his time on the run, with full knowledge that he had missed multiple court dates and that law enforcement was actively searching for him.
In taking into account the totality of these circumstances, the trial court based its decision below on the sound legal principles set forth in Pate. It was therefore not an abuse of discretion for the trial court to have denied Thomas' request to invoke either privilege.
C. The Trial Court Did Not Err in Summarily Denying Thomas' Motion for New Trial
On November 15, 2013, Thomas filed a motion which sought alternative forms of relief from the conviction: a judgment of acquittal pursuant to Rule of Criminal Procedure ("RCr") 10.24, a new trial pursuant to RCr 10.02. The motion was later supplemented with a request for an evidentiary hearing. Thomas so moved, based on the revelation of new evidence. Specifically, this evidence consisted of a recorded statement given by Brenda to law enforcement officer in Kenton County following her arrest on drug charges. Thomas argued in his motion that this statement was exculpatory in that Brenda referred to him therein as a meth user rather than a manufacturer. Thomas also alleged, without highlighting any specifics, that "inconsistencies" were presented in the statement which would have been useful to him on cross-examination of Brenda.
Also noteworthy in this situation is that Thomas apparently obtained this statement directly from authorities in Kenton County, rather than the Commonwealth through the discovery process in this action in Owen County. In its response to Thomas' motion, the Commonwealth pointed out that even it had not been provided with a copy of the statement until after the motion had been filed.
Regarding this statement, two issues arise. The first is whether this newly discovered evidence merits a new trial under RCr 10.02. The second is whether the absence of this evidence for trial amounts to a violation of Brady v. Maryland, 373 U.S. 83 (1963).
1. Thomas is Not Entitled to a New Trial Based on Newly Discovered Evidence
Precedent places the decision of whether to grant a new trial in the discretion of the trial court. Collins v. Commonwealth, 951 S.W.2d 569, 575 (Ky. 1997). As such, this Court reviews the denial for abuse of that discretion. Foley v. Commonwealth, 55 S.W.3d 809, 814 (Ky. 2000) (citing Collins, at 576). Prior courts have also held that granting a new trial is inappropriate when the newly discovered evidence is impeaching in nature or cumulative. Id. The new evidence must have been "of such decisive force or value that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted." Coots v. Commonwealth, 418 S.W.2d 752, 754 (1967).
Given that Thomas argued in his brief to this Court that the statement is exculpatory in that it tends to impeach a witness, this Court must agree with the trial court's conclusion that the statement is insufficient to justify granting a new trial. 2. No Brady Violation Occurred
When a violation of Brady is alleged, the appropriate standard of review is de novo. Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007). However, in order to determine that a Brady violation has occurred, the new evidence must be Brady material. "Brady concerns those cases where the government possesses information that the defense does not, and the government's failure to disclose the information deprives the defendant of a fair trial." Bowling v Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002).
In the instant situation, the information is a statement made by Brenda following an event where both she and Thomas were arrested in another county on charges unrelated to those he faced here. Even ignoring the unresolved questions of the relevance of such a statement to this case, the information was clearly available to Thomas, as he was able to obtain it before the Commonwealth Attorney prosecuting his case did. Moreover, given the factual circumstances in which it was obtained, Thomas was in the better position to know of the statement than the Commonwealth. Conspicuously absent from the record is any indication from Thomas that the information was not obtainable through the exercise of reasonable diligence.
This Court cannot conclude that Thomas lacked knowledge the Commonwealth possessed. Therefore it must conclude Brenda's statement was not Brady material, thus Brady was not violated.
III. Conclusion
This Court, having reviewed the record and finding no error, hereby AFFIRMS the Owen Circuit Court.
THOMPSON, JUDGE CONCURS.
MAZE, JUDGE CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT:
Steven J. Buck
Frankfort, KY BRIEF FOR APPELLEE:
Jack Conway
Frankfort, KY Taylor Payne
Frankfort, KY