RICKY L. BARNARD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 30, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000374-MR
RICKY L. BARNARD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 85-CR-000582
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND SCHRODER, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Ricky L. Barnard (Barnard), pro se,
brings this appeal from an opinion and order of the Jefferson
Circuit Court, entered June 1, 2004, summarily denying his pro
se motion for relief pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02(f), 2 motion for appointment of counsel, and
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
2
On motion a court may, upon such terms as are just, relieve a party or his
legal representative from its final judgment, order, or proceeding upon the
following grounds: . . . (f) any other reason of an extraordinary nature
motion for an evidentiary hearing.
Finding no abuse of
discretion by the circuit court, we affirm.
On April 9, 1985, a Jefferson County Grand Jury
returned Indictment Number 85-CR-000582, charging Barnard with
the capital offense of murder, a violation of Kentucky Revised
Statutes (KRS) 507.020, for "intentionally or wantonly causing
the death of Loriann Barnard" on March 30, 1985.
Shortly
thereafter the Commonwealth filed notice of intent to seek the
death penalty by relying on the aggravating circumstance of
murder for profit.
Due in part to the inability of the
Commonwealth to produce the life insurance policy that formed
the basis of this aggravator, the circuit court excluded the
death penalty.
The case proceeded to trial after numerous pretrial
motions and hearings, including motions to suppress evidence.
The jury, instructed only on intentional murder, found Barnard
guilty and recommended the maximum punishment of life
imprisonment.
Post-trial motions were denied and on May 15,
1987, the circuit court entered a final judgment sentencing
Barnard pursuant to the jury's recommendation.
Barnard, with the assistance of counsel, initially
sought direct appeal of the judgment and sentence in the
Kentucky Supreme Court.
justifying relief.
On Barnard's motion the appeal was
The motion shall be made within a reasonable time . . . .
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dismissed with prejudice.
Barnard v. Commonwealth, Number 87-
SC-000549.
Ten years later, on August 11, 1997, Barnard's pro se
petition for writ of habeas corpus, 3 filed in the United States
District Court, was dismissed without prejudice for failure to
exhaust state court remedies.
See Barnard v. Conley, 36
Fed.Appx. 813 (6th Cir. 2002).
On September 24, 1997, Barnard's
motion in the Kentucky Supreme Court to reinstate his direct
appeal was denied.
Barnard v. Commonwealth, Number 97-SC-
000531.
One year later, Barnard's subsequent pro se habeas
corpus motion, filed in the United States District Court, was
dismissed with prejudice.
On April 9, 2002, the Sixth Circuit
Court of Appeals affirmed that order.
Barnard v. Conley, supra.
On March 5, 2004, Barnard filed the pro se CR 60.02(f)
motion that forms the basis for this appeal, asking that his
nearly seventeen year-old judgment and sentence be vacated and
remanded for discharge, resentencing, or a new trial.
He argued
that alleged inconsistencies between police officers' testimony
and investigative reports were extraordinary or unusual
circumstances justifying relief as to 1) which officer actually
advised Barnard of his rights pursuant to Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); 2) at what
3
28 United States Code Annotated ยง 2254.
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point Barnard's driver's license was obtained, while he was
initially in the police car or during a search of the residence;
and 3) which officer retrieved Barnard from his initial location
at the police station in the "youth bureau office" and brought
him to the homicide offices.
More specifically, he alleged that
the inconsistencies amounted to perjury which ultimately
affected the introduction of evidence and statements obtained
while he was detained.
He also requested appointment of counsel
and an evidentiary hearing.
On June 1, 2004, the circuit court entered an opinion
and order summarily denying Barnard's motions as not filed
within a reasonable time, concluding 1) that he was not entitled
to appointed counsel for CR 60.02 relief under Gross v.
Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983); 2) that he was not
entitled to an evidentiary hearing on the perjury allegation
because the record refuted the allegation, citing Gross, supra;
and 3) that he was not entitled to CR 60.02 relief because the
perjury allegations a) were an attempt to relitigate issues
which could have been brought on direct appeal, citing McQueen
v. Commonwealth, 948 S.W.2d [415, 416 (Ky. 1997)]; or
alternatively, b) would not have affected the outcome of the
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trial, citing Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky.
1996). 4
This appeal followed.
In McQueen, supra at 416, the Kentucky Supreme Court
stated:
The interrelationship between CR 60.02 and
RCr 11.42 was carefully delineated in Gross
v. Commonwealth, Ky., 648 S.W.2d 853 (1983).
In a criminal case, these rules are not
overlapping, but separate and distinct. A
defendant who is in custody under sentence
or on probation, parole or conditional
discharge, is required to avail himself of
RCr 11.42 as to any ground of which he is
aware, or should be aware, during the period
when the remedy is available to him. Civil
Rule 60.02 is not intended merely as an
additional opportunity to relitigate the
same issues which could "reasonably have
been presented" by direct appeal or RCr
11.42 proceedings. RCr 11.42(3); Gross v.
Commonwealth, supra, at 855, 856. The
obvious purpose of this principle is to
prevent the relitigation of issues which
either were or could have been litigated in
a similar proceeding.
Barnard took a direct appeal to the Kentucky Supreme Court,
which was dismissed on his motion.
4
He never sought relief
The circuit court originally denied Barnard's CR 60.02 motion by opinion and
order entered April 16, 2004. On April 23, 2004, Barnard, pro se, filed a CR
59.05 motion to alter, amend, or vacate the April 16, 2004, opinion and
order, reiterating his perjury allegation with more specificity as it
pertained to an unconstitutional arrest and search and the fruits thereof.
While this motion was pending, Barnard tendered a notice of appeal of the
April 16, 2004, opinion and order and a motion to proceed in forma pauperis.
On June 1, 2004, the circuit court denied the pauper motion, effectively
delaying the filing of the notice of appeal until the payment of a filing
fee. Also on June 1, 2004, the circuit court re-entered the April 16, 2004,
opinion and order. Barnard then tendered a new notice of appeal as to the
later opinion and order, along with a motion to proceed in forma pauperis.
In February, 2005, while waiting for the ruling on his pauper motion, Barnard
paid the filing fee for the appeal, and the notice of appeal herein was filed
February 16, 2005.
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pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.
The alleged perjury issues raised herein were issues that were
required to be raised, if at all, by direct appeal or RCr 11.42
motion.
As indicated above, CR 60.02 is not a separate avenue
of appeal but is only available to raise issues which cannot be
raised in other proceedings, as a mechanism to increase judicial
economy and bring finality to the proceedings.
948 S.W.2d at 416.
McQueen, supra,
As the issues that Barnard now raises could
have been raised more than a decade ago on direct appeal or via
RCr 11.42, the circuit court properly denied his motion for CR
60.02 relief.
In denying Barnard's motion, the circuit court
alternatively concluded that any alleged perjury would not have
affected the outcome of the trial.
As stated in Brown, supra at
362:
Rule 60.02(f) "may be invoked only under the
most unusual circumstances...." Howard v.
Commonwealth, 364 S.W.2d 809, 810 (1963);
see also, Cawood v. Cawood, 329 S.W.2d 569
(1959) and relief should not be granted,
pursuant to Rule 60.02(f), unless the new
evidence, if presented originally, would
have, with reasonable certainty, changed the
result. See, Wallace v. Commonwealth, 327
S.W.2d 17 (1959).
According to Commonwealth v. Spaulding, 991 S.W.2d 651, 654 (Ky.
1999):
Th(e) use of perjured testimony is treated
like newly discovered evidence for the
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purposes of CR 60.02. Cf. Mullins v.
Commonwealth, Ky., 375 S.W.2d 832, 834
(1964); see also North Dakota v. Thiel, 515
N.W.2d 186, 188 (N.D.1994). "[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 729, 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).
Barnard argues that he agreed to a search of the
residence while illegally detained, thus tainting the evidence
obtained as a result of that search.
To support this claim,
Barnard contends that Louisville Police Detective Eugene
Sherrard perjured himself to sanitize the detention and search.
These arguments fail on two levels.
First, pursuant to Spaulding and Anderson, supra,
Barnard has failed to meet the dual burden under CR 60.02(f) of
establishing 1) that perjured testimony was introduced against
him, and 2) that without the perjured testimony the outcome
would have been different.
Specifically, Barnard alleges
perjury in the following inconsistencies:
1. Between Detective Sherrard's testimony
that he read Barnard his Miranda rights, and
Detective Sherrard's investigative report
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stating that Detective Bernie Burden read
Barnard his Miranda rights;
2. Between Detective Sherrard's testimony
that he asked for and received Barnard's
driver's license from Barnard at the scene
when Barnard exited the police car, and
Detective John Tartar's investigative report
stating that he found Barnard's
'identification' in a wallet in a pair of
pants in Barnard's residence; and
3. Between Detective Sherrard's testimony
that he did not know whether he or Detective
Burden brought Barnard from the "youth
bureau offices" to the homicide offices, and
Detective Burden's trial testimony that he
was the one who brought Barnard from the
"youth bureau offices" to the homicide
offices.
According to Anderson, supra, at 53, to establish perjury "it is
not enough merely to show that a prosecuting witness has
subsequently made contradictory statements."
First or second-
degree perjury 5 requires a showing that the statements made were
material.
It is difficult to see how the above inconsistencies
were material herein given that Barnard does not dispute that he
received the Miranda warnings in a timely fashion nor does he
dispute that he signed the waiver form; he also does not dispute
that he signed the waiver to search form.
As such, it is also
difficult to see how these inconsistencies would have affected
the outcome of the trial.
Thus, Barnard has failed to meet the
dual burden.
5
Kentucky Revised Statutes 523.020 and .030.
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Also, prior to trial, these issues were the subject of
a suppression hearing.
In denying the motion, the circuit court
rendered the following findings and order:
(T)he Court hereby enters its findings
relating to Defendant Barnard's motion to
suppress Defendant's consent, subsequent
search of his residence and oral statements
to the police.
1. On March 30, 1985, Defendant placed
a call to the Jefferson County Police
Department. Upon determining that the
address was located within the City of
Louisville the county dispatcher transferred
the call to the Louisville Division of
Police.
2. Shortly after 5:00 a.m. on said
date officers of the Louisville Police
Department arrived at the scene and met two
white males, one of which was the Defendant
Barnard.
3.
Defendant Barnard informed the
beat officers that "she's inside" whereupon
they went inside and discovered her body.
4.
Detective Sherrard, Louisville
Police Department, arrived at the scene and
asked Defendant for permission to search the
premises. Sherrard presented the Defendant
with a consent form which was executed and
witnessed.
5.
Defendant had been drinking prior
to executing this form, however, the
evidence does not establish that he was
lacking sufficient capacity to perform a
voluntary act.
6.
At the police station the
Defendant became a target of the
investigation and at that point was advised
by Detective Sherrard of his Miranda Rights.
The interrogation continued after Defendant
waived his right to remain silent.
Subsequently he chose to remain silent and
sought counsel at which point the
questioning ceased.
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The Court having considered the
testimony at the hearing finds specifically
that the Defendant voluntarily consented to
the search of the apartment and the motor
vehicles and voluntarily made statements to
the law enforcement officials after being
duly advised of his Miranda Rights.
Pursuant to RCr 9.78, these findings are conclusive if supported
by substantial evidence.
Barnard's arguments essentially
concede that substantial evidence supported these findings
because a basis for his inconsistent testimony argument is that
Detective Sherrard did testify in the manner that forms the
basis for the above findings.
We cannot conclude how raising
issues for the first time pertaining to these findings, almost
seventeen years after their initial rendering, demonstrates a
"reason of an extraordinary nature justifying (CR 60.02(f))
relief."
McQueen, supra.
The circuit court concluded that Barnard's CR 60.02(f)
motion was not filed within a reasonable time, also denying his
motion for an evidentiary hearing and appointment of counsel.
A
motion pursuant to CR 60.02(f) is to be made within a
"reasonable time," the definition of which is a "matter that
addresses itself to the discretion of the trial court. . ." and
that may be done based on the record without a hearing.
supra at 858.
Gross,
Also, the right to appointed counsel does not
extend to a CR 60.02 motion.
Gross, supra at 857.
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We review trial court decisions on CR 60.02 motions
under an abuse of discretion standard:
(A)ctions under CR 60.02 are addressed to
the "sound discretion of the court and the
exercise of that discretion will not be
disturbed on appeal except for abuse."
Richardson v. Brunner, 327 S.W.2d 572, 574
(1959).
Brown, supra at 362.
After waiving his direct appeal and
failing to file an RCr 11.42 motion, Barnard waited almost
seventeen years to file this CR 60.02 motion, the basis for
which was available in the record from the time of the original
proceedings, and thus not "extraordinary" under CR 60.02(f).
As
stated in Gross, supra at 858:
Absent some flagrant miscarriage of justice
an appellant (sic) court should respect the
trial court's exercise of discretion in
these circumstances.
We find no abuse of discretion by the circuit court in denying
the motion as 1) an improper attempt to relitigate; 2) not
affecting the outcome; and 3) not brought within a reasonable
time.
Furthermore, there was no abuse of discretion in failing
to hold an evidentiary hearing or appointing counsel.
For the foregoing reasons, the opinion and order of
the Jefferson Circuit Court is affirmed.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Ricky L. Barnard, pro se
LaGrange, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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