EDWIN CHANDLER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 5, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: November 24, 1999; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001389-MR
EDWIN CHANDLER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN B. EWING, JUDGE
ACTION NO. 1993-CR-02193
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Edwin Chandler appeals from the summary denial
of his Ky. R. Crim. Proc. (RCr) 10.06 motion for a new trial based
upon newly discovered evidence. In denying the motion, the circuit
court adopted as the basis for its denial “the reasoning set forth
in the [Commonwealth’s] memorandum filed in opposition to the
motion.”
Although the Commonwealth’s memorandum addresses the
merits of Chandler’s motion, its primary focus is on Chandler’s
failure to timely move for a new trial; and that is the issue we
shall address as its resolution is determinative of this appeal.
In September 1993, Brenda Whitfield, a cashier at a
Chevron Convenience Mart in Louisville was shot during a robbery of
the store.
The incident was recorded on the store’s surveillance
camera. While reviewing a videotape of the occurrence, a detective
inadvertently erased portions of the tape that had recorded the
image of the perpetrator of the crimes.
Other detectives had
earlier viewed the videotape and had made still photographs of the
events
depicted
thereon,
but
the
images
were
not
useful
for
identification purposes.
Following
a
trial
and
some
sixteen
hours
of
jury
deliberation, Chandler was convicted of first-degree robbery and
second-degree manslaughter.
sentenced
in
conformity
On March 10, 1995, Chandler was
with
the
jury’s
consecutive sentences totaling thirty years.
recommendation
to
On August 29, 1996,
in an unpublished memorandum opinion, the Supreme Court affirmed
the judgment of conviction, rejecting Chandler’s assertion that his
pre-trial confession was involuntary.
On August 4, 1997, Chandler moved for a new trial based
on newly discovered evidence, and he sought an evidentiary hearing.
The Commonwealth responded that, amongst other things, the motion
was untimely and thus subject to summary dismissal.
RCr 10.06,
upon which the Commonwealth relied, provides, in pertinent part,
that:
A motion for a new trial based upon the ground of newly
discovered evidence shall be made within one (1) year
after the entry of the judgment or at a later date if the
court for good cause so permits.
-2-
As it is obvious that Chandler’s motion for a new trial
was not filed within one year following entry of judgment, we must
decide whether the circuit court abused its discretion when it
determined that Chandler had failed to establish good cause for the
delay in filing the motion, and, in doing so, we must bear in mind
that the circuit court has broad discretion to decide whether a RCr
10.06 motion for a new trial based on newly discovered evidence
should
granted.1
be
In
reviewing
the
court’s
exercise
of
discretion, we look to the circumstances that led to the late
filing of the motion.
The “newly discovered” evidence before the circuit court
by way of affidavits is as follows:
In June 1996, John Gray,
Chandler’s fellow inmate at the Green River Correctional Complex,
who Chandler had never before met, told Chandler that he had
personal knowledge of the incident that precipitated Chandler’s
indictment, trial and convictions. On July 17, 1996, at Chandler’s
request, an investigator for the Department of Public Advocacy
interviewed
Gray
who
signed
an
affidavit
stating
that
while
incarcerated in the Louisville jail in November 1995, he wrote a
letter to the Louisville police concerning the crimes committed at
the
Chevron
store.
Soon
thereafter,
a
Louisville
homicide
detective, Julius Clark, interviewed Gray who told Clark that as he
was pumping gas at the Chevron store he saw a black male, bald,
about five feet eight inches tall,2 run out of the store, throw
1
2
Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1990).
Chandler is over six feet tall.
-3-
A witness at Chandler’s
(continued...)
something into the bushes, stop to talk to two white men in a
parking lot behind Waterson Towers and then run toward the Turtle
Creek Apartments.
Gray also told Clark that he later met this man
who said that he “did it,” and he gave the man’s name to Clark.
Clark purportedly informed Gray that someone else had already
pleaded guilty to the crimes, a statement that, if made, was not
true.
John Palombi, an attorney for the Department of Public
Advocacy, stated in an affidavit submitted to the circuit court
that Clark admitted to having interviewed Gray and to having taken
extensive notes which he could not locate. Clark acknowledged that
Gray furnished him the name of someone other than Chandler who
allegedly committed the crimes with which Chandler was charged.
On January 9, 1998, the circuit court heard arguments
addressing
the
issue
of
whether
Chandler
was
entitled
to
an
evidentiary hearing, and on March 3, 1998, the court denied the
motion.
On May 20, 1998, the circuit court denied Chandler’s
motion for a new trial.
This appeal followed.
Turning to the issue at hand, that is, whether the
circuit
court
abused
its
discretion
when
it
determined
that
Chandler had failed to establish good cause for the late filing of
his new trial motion, we first note that Chandler confessed to the
crimes of which he was convicted.
Although Chandler claims that
his confession came only after he was misled by a police officer
2
(...continued)
trial testified that the man he identified as the perpetrator of
the crime was about five feet eight inches tall and a bit heavier
than Chandler.
-4-
into believing that the evidence against him was strong, when, in
fact, there was only inconclusive circumstantial evidence linking
him to the crimes, the Supreme Court has rejected Chandler’s
contention that his confession was not voluntary.
Second, it is undoubtedly true that Chandler learned that
John Gray was prepared to swear that he saw another man exiting the
Chevron store just after the offenses had been committed as early
as
June
1996,
and
that
no
later
than
September
1996,
an
investigator from the Department of Public Advocacy interviewed
Gray and took an affidavit from him that implicated the other man.
By September 12, 1996, Gray had informed Chandler that the other
man’s name was “Percy,” and by January 23, 1997, Chandler learned
the name of the detective who had interviewed Gray in December 1995
and taken extensive notes.
Chandler claims that investigators’
attempts to verify whether Gray was credible were inhibited by gang
violence in the neighborhood where Gray purportedly lived and by
the fact that the investigators were shown a gun as they were
leaving one neighborhood residence.
Chandler filed his RCr 10.06 motion on August 4, 1997,
thirteen
months
after
Gray
first
approached
Chandler.
The
Commonwealth points out that “[b]y January 1997, [Gray] had in his
possession the names and all information pertinent to [his] claim.”
Chandler responds that his counsel waited to file a RCr 10.06
motion for a new trial because she wanted to be certain that Gray
“was credible and that the information he provided was verifiable.”
Whether this is a valid excuse for the delay in filing the motion
-5-
is a matter that addresses itself to the sound discretion of the
circuit court.
A motion for a new trial based on newly discovered
evidence should be granted when the new evidence is such that it
would, with reasonable certainty, change the verdict upon retrial.3
Gray’s
evidence
that
he
saw
“Percy”
exit
the
Chevron
store
immediately after the crimes were committed and that “Percy” later
admitted
that
he
“did
Chandler’s defense.
it,”
would
undoubtedly
have
bolstered
On the other hand, Chandler’s confession,
which the Supreme Court has determined was voluntary, leads us to
believe, as apparently did the circuit court, that the verdict upon
retrial would not “with reasonable certainty” be different if Gray
testified.4
Accordingly, we conclude that the circuit court did
not abuse its discretion when it found that Chandler had not shown
good cause for a delay of more than two years and five months
following entry of judgment in filing his motion for a new trial.
The
order
denying
Chandler’s
RCr
10.06
motion
is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
3
Carwile v. Commonwealth, Ky. App., 694 S.W.2d 469, 470
(1985).
4
Apparently, "Percy" has not been located.
-6-
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