LITTLE (TERRELL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001800-MR
TERRELL LITTLE
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 02-CR-00043
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND DIXON, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: Terrell Little appeals from an order of the
Pike Circuit Court denying his motion pursuant to Kentucky Rules of Civil
Procedure (CR) 60.02 for relief from a 20-year prison sentence. We affirm.
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Shortly after noon on March 3, 2002, Brian and Clara Meade drove in
Brian’s Ford F-150 pickup truck toward Huntington, West Virginia. While
rounding a dangerous curve, Little drove his Ford Ranger across the center line of
the road and collided head-on with the Meades’s truck. The collision caused the
Meades’s truck to spin counter-clockwise and to slide off the roadway into a
bottom.
Brian Meade died of internal bleeding as a result of the injuries he
suffered in the accident. The collision broke several bones in Clara Meade’s body,
and she will face a long recovery, including multiple surgeries and physical
therapy.
Rescue personnel cut Little out of his vehicle. The impact had pinned
Little’s foot under the brake pedal, although he did not complain about pain when
rescue personnel twisted his foot to remove him from the truck. When rescue
personnel asked Little questions while he sat in the driver’s seat of his truck, he
stared straight ahead and was unresponsive.
Little provided blood and urine samples as requested by police. The
tests revealed valium and cocaine in Little’s blood and urine, and he admitted to
police that he did not have a prescription for the valium. Dr. Christiana Rolf, a
Kentucky State Medical Examiner, testified at trial that the levels of cocaine and
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valium present in Little’s blood were at sufficient levels to impair his ability to
operate a motor vehicle.
A Pike County grand jury indicted Little for the murder of Brian
Meade and for the first-degree assault of Clara Meade. A jury convicted Little of
both charges and recommended a 20-year sentence of imprisonment for the murder
conviction and a 10-year sentence for the assault conviction, with the sentences to
run concurrently. Final judgment was entered on April 1, 2003.
Little appealed his convictions to the Kentucky Supreme Court. On
appeal, he attacked the qualifications and sufficiency of facts underlying the
testimony of the Commonwealth’s expert, Dr. Rolf, and he also argued that KRS
507.020(1)(b) was void for vagueness because the phrase “extreme indifference to
human life” is a “nebulous concept” incapable of certain grasp by the average
person. The Kentucky Supreme Court rejected Little’s arguments and affirmed his
convictions in a unanimous unpublished opinion rendered on March 18, 2004. See
Little v. Commonwealth, 2004 WL 537786 (Ky. 2004)(2003-SC-0276-MR).
On February 28, 2007, Little filed a motion in the circuit court to
vacate his convictions pursuant to Kentucky Rules of Criminal Procedure (RCr)
11.42. He claimed that he received ineffective assistance of trial counsel and that
insufficient evidence existed to convict him of wanton murder. The circuit court
denied the motion, and a panel of this court affirmed the circuit court’s decision.
See Little v. Commonwealth, 2008 WL 2065794 (Ky. App. 2008)(2007-CA000767-MR).
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On August 7, 2009, Little filed a motion in the circuit court to vacate,
set aside, or correct the judgment of conviction and sentence pursuant to CR
60.02(f). He contended that he was denied a fair trial as a result of the cumulative
effect of errors in his case and also that he was actually innocent. The circuit court
denied Little’s motion without conducting an evidentiary hearing. This appeal
followed.
The standard of review when a trial court declines to conduct an
evidentiary hearing on a CR 60.02 motion is whether the court abused its
discretion. “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.” Land
v. Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999).
An evidentiary hearing is not necessary to consider issues already
refuted by the trial court record. Haight v. Commonwealth, 41 S.W.3d 436, 442
(Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151, 157 (Ky. 2009); Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.
2001). We conclude that the trial court did not abuse its discretion by declining to
conduct an evidentiary hearing because the record sufficiently addressed the issues
raised by Little.
The record refutes Little’s claim of cumulative error because the
courts have already considered all of the errors raised by him in his direct appeal
and in the RCr 11.42 proceeding and found they lacked merit. Since each
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individual allegation of error was meritless, they can have no cumulative effect.
Epperson v. Commonwealth, 197 S.W.3d 46, 65-66 (Ky. 2006).
The record also refutes Little’s claim of actual innocence. In his brief,
Little focuses on an argument that he is entitled to an evidentiary hearing on his
motion because he is attacking the credibility of the Commonwealth’s expert
witness, Dr. Rolf. Little asserts that Dr. Rolf’s testimony was “incorrect and
prejudicially misleading to the jury.”
“[T]he credibility of witnesses are functions peculiarly within the
province of the jury, and the jury’s determination will not be disturbed.” Jones v.
Commonwealth, 281 S.W.2d 920, 922 (Ky. 1955). Here, the jury heard testimony
from expert witnesses of both the Commonwealth and Little. As in the Jones case,
“the jury believed the witnesses for the prosecution rather than the defendant and
his witnesses.” Id. Furthermore, the Kentucky Supreme Court discussed at length
and upheld the admissibility of Dr. Rolf’s testimony in its opinion affirming
Little’s conviction and sentence on direct appeal.
CR 60.02 is not intended merely as an additional opportunity to
relitigate the same issues which could have reasonably been presented on direct
appeal or in RCr 11.42 proceedings. Gross v. Commonwealth, 648 S.W.2d 853,
856 (Ky. 1983). “It is for relief that is not available by direct appeal and not
available under RCr 11.42.” Id. Further, “[b]efore the movant is entitled to an
evidentiary hearing, he must affirmatively allege facts which, if true, justify
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vacating the judgment and further allege special circumstances that justify CR
60.02 relief.” Id.
Little had the opportunity to attack the credibility of Dr. Rolf and the
admissibility of her testimony both at the trial court level and on direct appeal to
the Kentucky Supreme Court. In fact, he did so. Nevertheless, the jury considered
Dr. Rolf’s testimony along with the other evidence and found Little guilty, and the
Supreme Court upheld the admissibility of the testimony. In addition, the Supreme
Court examined the sufficiency of the evidence in its opinion affirming the
judgment.
We conclude that Little’s CR 60.02 motion failed to raise a new
argument that fits within the scope of CR 60.02. Accordingly, we affirm the order
of the Pike Circuit Court denying the motion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Terrell Little, pro se
Sandy Hook, Kentucky
Jack Conway
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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