STANLEY JACKSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001327-MR
STANLEY JACKSON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 98-CR-01084
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Stanley Jackson (Jackson) appeals from an
order denying his CR 60.02(c) motion to void his conviction.
We
affirm.
Jackson was tried by a jury and convicted of two counts
of complicity to commit first-degree robbery, three counts of
first-degree robbery, and one count of being a persistent felony
offender (PFO) in the first degree.
total of 52 years’ imprisonment.
Jackson was sentenced to a
While his direct appeal to our
Supreme Court was pending,1 Jackson filed a motion to void his
1
Our Supreme Court affirmed Jackson’s conviction in a
not-to-be-published opinion rendered September 28, 2000 (No.
(continued...)
conviction pursuant to CR 60.02(c).
On May 8, 2000, the Fayette
Circuit Court denied his motion without an evidentiary hearing.
This appeal followed.
In his CR 60.02(c) motion, Jackson argued that his
conviction should be voided based “on false testimony given at
trial.”
He attached a copy of a statement from Paul Douthitt and
an affidavit of Troy Cloyd, each of whom were charged in the same
series of robberies as Jackson and each had testified against him
at trial.
Without an evidentiary hearing, the trial court denied
Jackson’s motion finding that “a mere retraction of testimony by
a witness is not proof of prejury or falsified evidence
sufficient to invoke application of the rule [CR 60.02(c)].
Absent other independent evidence of perjury with a sufficient
indicia of reliability, the motion must fail.”
(Court order
entered May 8, 2000, at page 15 of the trial record).
Relying
upon Commonwealth v. Spalding, Ky., 991 S.W.2d 651 (1999),
Jackson contends that at a minimum he is entitled to a hearing to
determine if the “recantations by Cloyd and Douthitt are
credible, and whether the new testimony would “probably” change
the result if a new trial were (sic) granted.”
Jackson then
argues that the two witnesses’ trial testimony may have been
tainted by the favorable treatment they were to receive from the
Commonwealth for their incriminating testimony against Jackson,
and that after viewing the other evidence presented at trial,
that there is a “probability” that the end result could have been
1
(...continued)
1999-SC-0688-MR).
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different.
That is, that without Douthitt’s and Cloyd’s
testimony Jackson would not have been found guilty of the
multiple charges against him.
We disagree with Jackson as to
each of his contentions.
In Land v. Commonwealth, Ky., 986 S.W.2d 440 (1999),
the Court, addressing the issue of whether or not an evidentiary
hearing is required following the filing of a CR 60.02 motion,
held:
However, contrary to Appellant’s assertion,
the opinion did not hold that a hearing must
be held upon a subsequent CR 60.02 motion.
Rather, this Court merely suggested that the
defendants might benefit by requesting a more
formal hearing “considering that this will
give them an opportunity to bolster the
sketchy proof they provided and by which they
ask extraordinary relief.” Id. We are of
the opinion that this language should have
put Appellant on notice to specifically
request an evidentiary hearing. The decision
to hold an evidentiary hearing is within the
trial court’s discretion and we will not
disturb such absent any abuse of that
discretion. Cf. Wheeler v. Commonwealth,
Ky., 395 S.W.2d 569 (1965).
Id. at 442.
The trial court determined from the record that the
retractions made by the two co-defendant witnesses were neither
reliable nor credible.
The witnesses had made several statements
to police authorities prior to giving their trial testimony and
the trial testimony was consistent with both the prior statements
and other evidence gathered by the investigating authorities.
Furthermore, there were numerous other individuals who were
victims/witnesses to the robberies and their statements to the
police and testimony at trial corroborated the trial testimony of
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Douthitt and Cloyd.
The trial judge heard all the evidence
presented during the initial trial and was in the best position
to determine the credibility of all the witnesses and the
sufficiency of the evidence.
During the trial itself, Jackson
aggressively challenged the credibility of these two witnesses
based primarily upon the favorable treatment they were to receive
for their testimony.
The jury heard all the evidence and was
convinced beyond a reasonable doubt of Jackson’s guilt on most
but not all of the many charges against him.
He received a fair
trial and his conviction was affirmed on appeal to the Kentucky
Supreme Court.
As stated in Spalding, supra:
“[I]n order for newly discovered evidence to
support a motion for new trial it must be ‘of
such decisive value or force that it would,
with reasonable certainty, have changed the
verdict or that it would probably change the
result if a new trial should be granted.”
Jennings v. Commonwealth, Ky., 380 S.W.2d
284, 285-86 (1964), quoting Ferguson v.
Commonwealth, Ky., 373 S.W.2d 29, 730 (1963).
And, of course, the defendant has the
additional burden of showing within a
reasonable certainty that perjured testimony
was in fact introduced against him at trial.
Anderson v. Buchanan, Ky., 292 Ky. 810, 168
S.W.2d 48, 54 (1943).
Id. 991 S.W.2d at 654.
The trial court found that Jackson had failed in his
burden to present sufficient credible evidence that Douthitt or
Cloyd had committed perjury during the trial on the criminal
charges or that the alleged “new evidence” was “of such a
decisive value or force that it would, with reasonable certainty,
have changed the verdict.”
Spalding, Id.
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Having thoroughly
reviewed this matter, we agree with the trial court and find no
basis to tamper with the court’s ruling in this matter.
For the foregoing reasons, the order of the Fayette
Circuit Court denying Jackson’s CR 60.02(c) motion is affirmed.
MILLER, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
SCHRODER, JUDGE, DISSENTING.
RCr 12.02 and Section 110
of the Kentucky Constitution provide that an appeal from a
judgment imposing a sentence of death, life imprisonment, or
imprisonment for twenty years or more shall be taken directly to
the Supreme Court.
imprisonment.
Here, Jackson was sentenced to 52 years’
Hence, any appeal from that sentence should have
been addressed to our Supreme Court.
See also Williams v.
Venters, Ky., 550 S.W.2d 547 (1977), a mandamus action seeking a
transcript to be used in attacking a life sentence.
Therein the
Supreme Court held the Court of Appeals could hear the denial of
the mandamus because it did not affect the conviction.
The Court
reasoned: “[a] judgment or order denying a postconviction motion,
however, is not a judgment ‘imposing a sentence.’”
Id. at 548.
I understand that to mean if the conviction and sentence itself
are being attacked directly or collaterally - like in RCr 11.42
or CR 60.02 motions, where the sentence is 20 years or more, the
conviction shall be appealed directly to the Supreme Court.
Williams v. Venters, 550 S.W.2d 547, was a mandamus action
seeking records to prepare for an attack on the final sentence.
It was not an RCr 11.42 or CR 60.02 motion which seeks to attack
the judgment imposing a sentence.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
V. Gene Lewter
Lexington, KY
A. B. Chandler, III
Attorney General
Tami Allen Stetler
Assistant Attorney General
Frankfort, KY
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