Opinion
NO. 2016-CA-000443-MR
05-19-2017
CARLOS HARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Carlos Harris, Pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE KATHLEEN LAPE, JUDGE
ACTION NO. 99-CR-00365 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Carlos Harris appeals from an Order of the Kenton Circuit Court that denied his Motion for Relief filed pursuant to Kentucky Rule of Civil Procedure (CR) 60.02 and Kentucky Rule of Criminal Procedure (RCr) 10.02(1). We affirm.
Harris was indicted by a Kenton County Grand Jury on October 1, 1999, for the intentional murder of Jualana Kirtley. A jury trial was held on November 30 through December 3, 1999. The jury heard testimony from Harris; Leslie Ayers, a friend of Harris who was present on the night of Kirtley's murder; Dr. Charles Stephens, a forensic pathologist and expert for the Commonwealth; and Dr. Carl Parrott, the coroner from Hamilton County, Ohio, an expert for Harris. During the trial, the circuit court limited Dr. Parrott's testimony to the issue of Kirtley's cause of death because defense counsel had failed to identify Parrott as a possible expert witness. At the end of the trial, the jury convicted Harris of intentional murder. In February 2000, Harris filed a direct appeal to the Kentucky Supreme Court, which affirmed the conviction on April 22, 2002.
On July 9, 2004, Harris filed his first collateral post-judgment motion pursuant to RCr 11.42. In the motion, Harris alleged that his trial counsel was ineffective for failing to give proper notice of its intent to call Dr. Parrott to testify at the trial. On July 20, 2005, the trial court held an evidentiary hearing, and received testimony from Harris' lead trial counsel. She testified that her trial strategy was to conduct a cross-examination of Dr. Stephens in such a way that no further expert testimony would be necessary. During the hearing, Harris' counsel also challenged Dr. Stephens' testimony based on the fact that he had been cited in Ohio for allegedly falsifying autopsy findings. The trial court also considered Dr. Parrott's avowal testimony presented during the trial. After the hearing, the trial court denied Harris' RCr 11.42 motion, specifically finding there was not a reasonable probability that the result of Harris' trial would have been different had the jury been able to hear the testimony of Dr. Parrott in toto.
In his appeal to this Court, Harris contended he received ineffective assistance of counsel and was denied due process by virtue of: (1) his trial counsel's failure to comply with the trial court's reciprocal discovery order resulting in the limitation of testimony by an expert witness; (2) the trial court's disallowance of a certain portion of Harris' expert's testimony from being presented to the jury; and (3) the "unprofessional testimony" by the Commonwealth's medical expert. The Court held that Harris had waived the latter two arguments by failing to raise them before the circuit court, and agreed with the circuit court's decision that trial counsel had not rendered ineffective assistance. Thus, the circuit court's order denying the RCr 11.42 motion was affirmed.
Almost seven years later, on January 16, 2015, Harris filed the current second collateral post-judgment motion to vacate pursuant to CR 60.02(e) and RCr 10.02. In the motion Harris alleged "actual innocence," that Dr. Stephens fixed his autopsy results to support the Commonwealth's theory of the case, and that the evidence was otherwise insufficient to prove intent to support the conviction for intentional murder. On March 3, 2016, the circuit court denied the motion as untimely and as a successive motion. Harris filed a motion for additional findings, which the circuit court denied. This appeal followed.
The standard of review concerning a circuit court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996); White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "The test for abuse of discretion is whether the judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," we will affirm the circuit court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
The circuit court held that the grounds raised in the current motion were procedurally barred under the successive motion principle. CR 60.02 does not permit successive post-judgment motions, and the rule may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997); Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). That is, CR 60.02 is not intended merely as an additional opportunity to relitigate the same issues which were or reasonably could have been presented by direct appeal or an RCr 11.42 proceeding. Id. RCr 11.42(3) makes clear that the movant shall, in his RCr 11.42 petition, state all grounds for holding the sentence invalid of which the movant has knowledge. Thus, final disposition of a movant's RCr 11.42 motion shall conclude all issues which could reasonably have been presented in the same proceeding. Gross, 648 S.W.2d 853; see also Shepherd v. Commonwealth, 477 S.W.2d 798, 799 (Ky. 1972) ("this court will not review matters which have been or should have been raised and reviewed in prior motions to vacate."); Gross, 648 S.W.2d at 856 (CR 60.02 was never meant to be used as just another vehicle to revisit issues that should have been included or could have been included in prior requests for relief. Nor is it intended to be used as a method of gaining yet another chance to relitigate previously determined issues.).
As the circuit court noted, our Supreme Court addressed Harris' challenge to the sufficiency of the evidence in his direct appeal. The Supreme Court held that the limitation of Dr. Parrott's testimony did not prejudice Harris because his testimony would not have conflicted with that of Dr. Stephens and the proof on the element of intent. Similarly, the issue of Dr. Stephens' credibility based on the alleged fact that he had been cited for falsifying autopsy findings in Ohio was raised in the prior RCr 11.42 proceeding. Harris has not presented any issues that were not or could not have been raised in the direct appeal or prior RCr 11.42 proceedings, therefore they cannot now be raised by way of CR 60.02. The circuit court did not abuse its discretion in denying the motion with respect to these issues.
In addition, the circuit court held that the CR 60.02 motion was untimely. A motion to vacate under CR 60.02(e) and (f) must be made within a "reasonable time." Determining "[w]hat constitutes a reasonable time ... under CR 60.02 is a matter that addresses itself to the discretion of the trial court." Gross, 648 S.W.2d 858. A circuit court is not required to conduct an evidentiary hearing if it appears on the face of the record that the CR 60.02 motion was not filed within a "reasonable time." Id. Harris filed the underlying CR 60.02 motion over fifteen years after the judgment was entered. Under the circumstances, the trial court's finding that Harris failed to move for CR 60.02 relief within a "reasonable time" was not an abuse of its discretion. See Baze v. Commonwealth, 276 S.W.3d 761, 768 (Ky. 2008) (holding that defendant's CR 60.02 motion filed approximately fourteen years after trial was unreasonable); Gross, 648 S.W.2d at 858 (holding that the trial court did not abuse its discretion by finding that the passage of five years between the final judgment and the CR 60.02 motion exceeded a reasonable time); Ray v. Commonwealth, 633 S.W.2d 71, 73 (Ky. App. 1982) (holding that a CR 60.02 motion filed twelve years after defendant's conviction exceeded a reasonable time); Djoric v. Commonwealth, 487 S.W.3d 908, 910 (Ky. App. 2016) (holding delay of thirteen years to file CR 60.02 motion was unreasonable).
For the foregoing reasons, we affirm the order of the Kenton Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Carlos Harris, Pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky