LACY BEDINGFIELD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 12, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000971-MR
LACY BEDINGFIELD
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 95-CR-00866
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI1 AND JOHNSON,2 JUDGES.
JOHNSON, JUDGE:
Lacy Bedingfield has appealed from an order
entered by the Fayette Circuit Court on April 6, 2005, which
denied his motion to vacate judgment and to grant him a new
trial.
Having concluded that the trial court did not abuse its
discretion in refusing to grant Bedingfield a new trial based
upon newly discovered evidence, we affirm.
1
Judge Daniel T. Guidugli concurred in this opinion prior to the expiration
of his term of office on December 31, 2006. Release of the opinion was
delayed by administrative handling.
2
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
On October 2, 1995, Bedingfield was indicted by a
Fayette County grand jury for two counts of rape in the first
degree,3 and three counts of sodomy in the first degree.4
A
separate indictment was issued charging Bedingfield with being a
persistent felony offender in the first degree (PFO I).5
The two
indictments were consolidated and a jury trial was held on April
1 and 2, 1996.
Evidence at trial showed that on the night of June 2,
1995, two Lexington Police officers were approached by a young
girl6 wearing only a t-shirt, who told them she had just been
raped by a man at a certain residence and she was afraid that
her friend7 was also being raped.
The police followed the girl
to the residence, and the girl identified Bedingfield as the
person who had raped her.
Bedingfield was apprehended as he was
leaving the residence and arrested.
Bedingfield, who was 39
years old, was the victim’s friend’s former step-father, but he
still lived with his ex-wife and her daughter, the victim’s
friend, at the suspect residence.
Physical samples were taken from the girl and pursuant
to a court order samples were also taken from Bedingfield.
3
Kentucky Revised Statutes (KRS) 510.040.
4
KRS 510.070.
5
KRS 532.080(3).
6
The victim was 13 years old.
7
Her friend was 11 years old.
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The
victim’s blood type is B and Bedingfield’s blood is type O.
Edward Taylor, a forensic serologist from the Kentucky State
Police crime laboratory, testified that he found traces of semen
on the t-shirt the girl had been wearing, on some pants she had
been given to put on, as well as on a vaginal swab.
However, he
stated that it was not possible to perform DNA testing on those
small samples.
However, Taylor did testify that he was able to
determine through blood-type secretions in the bodily fluids
that there were group B factors present in the semen samples,
and that he could not rule out type O factors.
He stated that
about 80% of people are secretors, i.e., a person who secretes
their blood type in other bodily fluids.
The victim was
determined to be a type B secretor and Bedingfield was
determined to be a type O secretor.
Taylor also testified that
if a bodily fluid contains a mixture of the bodily fluids of two
people, with one of the two being a type O secretor and the
other person having type A, B, or AB factors, the type O factors
would be masked by either the A, B, or AB factors.
Thus,
Bedingfield’s type O factors could have been present in the
bodily fluids which were tested because if the victim’s type B
factors were mixed with Bedingfield’s type O factors, the type B
factors would have masked the type O factors.
Further, since
the victim was a type B secretor, Taylor stated that he could
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not be certain that the victim had not had sexual intercourse
with a type B secretor, although the victim testified that she
had not had consensual intercourse with anyone else on that day.8
The jury found Bedingfield guilty of one count of rape
in the first degree, and being a PFO I, and recommended a prison
sentence of 25 years, which the trial court ordered.
Bedingfield directly appealed his convictions to the Supreme
Court of Kentucky,9 which affirmed the convictions in a nonpublished Opinion rendered on September 4, 1997.
During the time his appeal was pending, Bedingfield
filed a motion pursuant to RCr10 11.42, claiming various elements
of ineffective assistance of trial counsel.
denied the motion on June 16, 1997.
The trial court
This Court affirmed the
denial on July 17, 1998.11
On July 6, 2004, Bedingfield filed a motion for
release of evidence consisting of the victim’s rape kit.
He
sought forensic testing of the semen which was not available at
the time of trial in 1996.
The Commonwealth did not oppose the
release of the evidence for testing.
The trial court granted
the motion on September 7, 2004, and the forensic evidence was
8
The victim was not asked if she had had sexual intercourse with anyone else
previously that week. Bedingfield asserts in his brief that an assumption
was made during trial that a 13-year-old female is not sexually active.
9
1996-SC-0508-MR.
10
Kentucky Rules of Criminal Procedure.
11
Case No. 1997-CA-1597-MR, not-to-be-published.
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sent for testing to Reliagene Technologies in New Orleans,
Louisiana.
On January 26, 2005, Bedingfield filed a motion to
vacate judgment and to grant new trial pursuant to CR12 60.02 (e)
and (f), RCr 10.02 and RCr 10.06.
Bedingfield claimed that the
results of the DNA testing performed by Reliagene excluded him
as the source of the semen recovered from the victim and
requested a new trial based upon the newly discovered evidence.
The Commonwealth responded that Bedingfield was not entitled to
a new trial because “there was a wealth of evidence pointing to
[Bedingfield’s] guilt at trial aside from the presence of
unknown semen on the vaginal smear.”
The trial court entered its opinion and order on April
6, 2005, denying the motion, and stated as follows:
The central inquiry, as stated above, is
would the exclusion of [Bedingfield] as the
source of the semen be significant enough to
change the outcome of the trial within a
reasonable certainty. This Court is of the
opinion that the DNA evidence in this case
was limited from the beginning and
recognizes the possible confusion
surrounding the testimony dealing with said
evidence.
Given the entirety of the proof, the
Court is not convinced the newly discovered
evidence would change the outcome of the
jury’s decision. The testimony from those
finding the two girls after the incident in
question supports the determination that a
12
Kentucky Rules of Civil Procedure.
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rape occurred. The condition of the home
where the events occurred as well as the
torn bathing suit affords credence to the
conclusion of guilt. The statement made by
[Bedingfield] at the hospital in addition to
the clump of hair found in the home further
support the jury’s conclusion. The
testimony of the minor witness and the
victim designate [Bedingfield] as the
attacker. The account of events as given by
the two girls was relatively consistent.
Both were subjected to zealous crossexamination by the competent trial counsel
and upon review of the trial tape, flaws in
the testimonies were exposed.
The exclusion of [Bedingfield] as the
source of semen does not negate any of the
forgoing evidence nor does it tend to prove,
considering the entire case, that
[Bedingfield] did not commit rape. The
evidence of the exclusion, in this Court’s
opinion, is not of such significance that
the verdict would change or be likely to
change.
This appeal followed.
“Whether to grant a new trial on the basis of newly
discovered evidence is largely within the discretion of the
trial court, and the standard of review is whether there has
been an abuse of that discretion” [citations omitted].13
“[N]ewly discovered evidence that merely impeaches the
credibility of a witness or is cumulative is generally
disfavored as grounds for granting a new trial.”14
The evidence
“‘must be of such decisive value or force that it would, with
13
Foley v. Commonwealth, 55 S.W.3d 809, 814 (Ky. 2000).
14
Id.
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reasonable certainty, change the verdict or that it would
probably change the result if a new trial should be granted.’”15
Bedingfield summarizes the significance of the DNA
tests performed in 2004 in his reply brief as follows:
The Commonwealth first downplays the
importance that the blood-type secretion
evidence played in the Commonwealth’s case.
They further argue the jury convicted the
Appellant “despite the discrepancy between
his blood type and the type found in the
secretions from the pants [the victim] had
put on.” The [b]lood-type secretion
testimony did not create a discrepancy
between the Appellant’s blood type and the
type found on the secretion from the pants
as the Commonwealth now claims. In fact,
the secretion testimony fully supported the
Commonwealth’s theory that the semen
belonged to the Appellant. Specifically,
semen and Group B factors were found on the
pants that [the victim] was wearing. The
Appellant is a Group O blood type secretor
and [the victim] is a Group B blood type
secretor. Group B blood type secretions
mask Group O blood type secretions.
Consequently, in the instant case the semen
either came from a Group B or a Group O
secretor, which included the Appellant.
Given the testimony that [the victim] did
not have sex with anyone else that day, that
she had been in and out of the pool all day,
and in consideration of her age of 13, the
jury had no option except to attribute the
semen to the Appellant, a Group O blood type
secretor [citations to record omitted].
The Commonwealth next argues that the
newly discovered evidence “merely indicated
that someone else had engaged in sexual
intercourse with [the victim] sometime prior
to the rape.” This evidence, however, does
15
Collins v. Commonwealth, 951 S.W.2d 569, 576 (Ky. 1997) (quoting Coots v.
Commonwealth, 418 S.W.2d 752, 754 (Ky. 1967)).
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much more. As previously mentioned, given
the evidence at trial, there was no other
explanation for the semen other than
attributing it to the Appellant. As such,
it supported the allegation that a rape had
occurred despite the problems with the other
testimony at trial [citations to record
omitted].
While the DNA evidence certainly constitutes
impeaching evidence, we cannot conclude that this evidence with
reasonable certainty would change the result at a new trial.
Thus, the trial court did not abuse its discretion in denying
Bedingfield’s motion for a new trial.
More specifically, while the DNA evidence excluded
Bedingfield as a source of the semen, the testimony at trial was
that Bedingfield may or may not have been the source of the
semen because of the difference in the typing of blood
secretions in the semen.
The fact that further DNA testing
proved that Bedingfield was not the source of the semen found on
the victim’s vaginal swab does not mean that he did not rape the
victim.
It merely established that she had had sex with another
man in the recent past.
At trial, the jury was made aware of the discrepancies
in the witnesses’ testimonies.
In its brief the Commonwealth
summarizes the other evidence in support of Bedingfield’s guilt
as follows:
1.
Physical evidence corroborated [the
victim’s] and [her friend’s] testimony
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that Appellant assaulted [the victim]
by striking her with his fists. Nurse
LeAnn Wright and Dr. Joseph Stapczynski
described contusions and swelling to
[the victim’s] face and a scrape on her
arm [citation to record omitted].
2.
[The victim] and [her friend] both
testified that Appellant grabbed [the
victim] by the hair and threw her onto
[her friend’s] bed. A clump of hair
was photographed and collected from the
bed [citations to record omitted].
3.
Both [the victim] and [her friend]
testified that Appellant ripped [the
victim’s] bathing suit off of her. The
torn bathing suit was collected by
police from the floor beside [her
friend’s] bed and introduced at trial
[citations to record omitted].
4.
[The victim] testified that Appellant
was wearing blue shorts when they were
in the den watching television. [The
victim] testified that while they were
there Appellant took her black shorts
off of her. Police found the black
shorts in the family room floor in
front of the television. Both [the
victim] and [her friend] testified that
they went to [the friend’s] room and
locked the door. They further stated
that Appellant forced his way through
the door and was completely naked.
Appellant’s blue shorts and boxer
shorts were also found in the den
[citations to record omitted].
5.
[The victim] testified that when
Appellant’s penis touched her anus, it
felt slimy. [The friend] testified
that Appellant brought a bottle of hair
conditioner in the room and [rubbed] it
on his penis before raping [the
victim]. Police located and collected
a bottle of hair conditioner from the
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dresser in [the friend’s] bedroom
[citations to record omitted].
6.
[The victim] testified when Appellant
was finished raping her, he told her to
“[g]et up and get out.” She fled the
room, but then Appellant changed his
mind and told her, “I’m not through. I
want it again.” He dragged her into
another bedroom and raped her again.
[Her friend] testified that at this
opportunity, she jumped out the window
and ran to a friend’s house. Caroline
Hufstedler testified that [the friend]
ran to her house, upset and crying that
“[h]e raped my friend and tried to rape
me[ ]” [citations to record omitted].
7.
[The victim] testified that after
Appellant raped her again in the second
bedroom he went to get something and
she fled with nothing but her t-shirt
on her. She further stated that
Appellant chased her through the house,
knocking over a lamp along the way.
Police located and photographed a
turned-over lamp [citation to record
omitted].
8.
Lexington police officers were on foot
patrol when they encountered [the
victim] semi-hysterical, crying that
she had been raped, clothed in only a
t-shirt [citation to record omitted].
9.
Police took [the victim] back to the
house where she was raped and the
officers saw Appellant coming out of
the kitchen door wearing only blue
jeans and shoes, and “perspiring
profusely [citation to record omitted].
10.
The girls testified that Appellant was
drinking MD 20/20 before raping [the
victim], and Officer Phil Taylor, who
participated in Appellant’s arrest,
confirmed that Appellant smelled of
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alcoholic beverages [citations to
record omitted].
11.
While Appellant was at the hospital to
submit physical samples for forensic
purposes, Nurse Brian Howard cleaned
and bandaged a laceration on
Appellant’s left big toe. Appellant
told Howard several different stories
about how he had cut it. At trial
Appellant claimed that he had cut it
earlier that day while replacing the
blade of a meat-cutting band saw at the
restaurant where he was employed.
However, he could not produce the shoes
that the blade had purportedly cut
through [citations to record omitted].
12.
Finally, Appellant confessed at the
hospital on the night of the crime. He
said that he had sex with the girl but
didn’t know she was underage.
Appellant recanted this confession at
trial, claming that he only admitted to
the serious crime because he didn’t
want his penis swabbed.
Given the magnitude of the evidence
against Appellant, it is not possible to
find that if the jury had learned the victim
had sex with someone other than Appellant at
some time prior to the rape, there is a
reasonably certainty that the verdict would
have been different.
We agree with the Commonwealth that the trial court
did not abuse its discretion in denying Bedingfield a new trial.
As stated in Foley:
“While [this] result may at first blush
seem harsh, [it] is based on the principle that a defendant is
entitled to one fair trial and not to a series of trials based
on newly discovered evidence unless that evidence is
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sufficiently compelling as to create a reasonable certainty that
the verdict would have been different had the evidence been
available at the former trial[.]”
We cannot conclude that there
is a reasonable certainty that the newly discovered evidence
would bring about a different result at a new trial.
Accordingly, the order of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
James Havey
Assistant Attorney General
Frankfort, Kentucky
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