DONALD N. WALL v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 2, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1621-MR
DONALD N. WALL
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
CRIMINAL ACTION NO. 91-CR-000099
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
DYCHE, GUIDUGLI and MILLER, Judges.
GUIDUGLI, JUDGE.
Appellant, Donald N. Wall (Wall), an inmate at
the Kentucky State Reformatory in LaGrange, Kentucky, appeals pro
se from the May 23, 1996, order of the Fayette Circuit Court
granting the Commonwealth's CR 60.02 motion for relief from a
prior order of the court requiring the Commonwealth to return
certain property to Wall.
Wall also appeals that part of the
order which denied his motion to hold the Commonwealth in
contempt for failing to return the property to him.
In 1991 Wall was convicted by a Fayette County jury of
two counts of murder and one count of second-degree assault
(91-CR-99).
He was sentenced to two life terms without
possibility of parole for 25 years for the two murders and ten
years for the second-degree assault.
Wall murdered his
ex-girlfriend, Carolyn Shaw, and her male companion, Bobby Gray,
by shooting them both at point-blank range.
Wall's conviction
was upheld by the September 24, 1992, opinion and order of the
Kentucky Supreme Court (91-SC-840-MR).
At the time of his arrest, items of Wall's property
were seized for evidence.
work locker.
Additional items were seized from his
On February 17, 1994, Wall wrote the Fayette
Circuit Clerk a letter requesting a copy of the video tape of his
trial including jury selection and post-trial proceedings.
Wall
also asked:
Would you please prepare a copy of all documented items on the
Defendants [sic] Criminal Docket Sheet and Exhibits, including
specifically a copy of all photo's [sic] and papers in the red
tool box of the Defendants [sic]. All test [sic] of Ballistics,
recept [sic] of Defendants [sic] gun.
The Fayette Circuit Court treated the letter as a
motion and denied the request.
Wall responded with an open
records request wherein he repeated his request and offered to
pay the cost of providing the items to him.
Wall eventually paid
one hundred twenty ($120.00) dollars and received copies of the
videotapes.
On January 26, 1995, Wall filed a second open records
request asking for, inter alia, "Photocopies of all items
contained TOOL BOX [sic] introduced as evidence PHOTOGRAPHS of
SPENT BULLETS and Photocopies of Commonwealth's Exhibits #7, 8,
9, 10, 11, & 15..." (emphasis in original).
Wall was advised on
February 15, 1995, that his request had been turned over to the
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Fayette County Commonwealth Attorney's office.
On February 21,
1995, Wall filed a "Motion for Return of Property."
On June 8,
1995, the Commonwealth requested a two week continuance to
respond to the motion which was granted by order of June 20,
1995.
On July 17, 1995, Wall filed a "Demand For Judgment
Pursuant to CR 54.03" claiming the Commonwealth was in default by
failing to respond.
On August 29, 1995, Wall filed a Petition for Writ of
Mandamus in the Court of Appeals (95-CA-2312) seeking a writ
requiring the Fayette Circuit Court to rule on his pending
motions.
By order entered August 31, 1995, the Fayette Circuit
Court granted Wall's motion and ordered the Commonwealth to
return the property.
On September 6, 1995, the Commonwealth filed a motion
requesting the court review the property which was the subject of
the order to determine whether the property was contraband.
The
Commonwealth informed the court that the property included a
bottle of liquor, several bottles of pills, photographs of
Barbara Shaw (one of Wall's murder victims) engaged in sexual
acts with Wall which the Commonwealth deemed "pornographic" and
therefore inappropriate for an inmate at a penal institution.
On September 12, 1995, the Commonwealth filed a "Motion
To Reconsider" the order for return of Wall's property.
On
September 19, 1995, Wall filed his response arguing the
Commonwealth's motion to reconsider was not filed within ten days
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as required by CR 59.05.
By order of September 25, 1995, the
Commonwealth's motion to reconsider was overruled as out of time.
On April 3, 1996, Wall filed a "Motion for Show Cause"
requesting the court to conduct a hearing to determine why the
Commonwealth should not be held in contempt for failing to return
his property as previously ordered.
By order of April 9, 1996,
the Commonwealth was ordered to respond to the motion within
thirty days.
On May 8, 1996, the Commonwealth responded to the
show cause motion with an explanation of the circumstances
surrounding the handling of Wall's motions.
The Commonwealth
also filed a motion under CR 60.02 requesting relief from the
August 31, 1995, order.
By order of May 23, 1995, the court
granted the motion to reconsider, set aside the August 31, 1995,
order and declined to return the property to Wall.
The court
also denied Wall's motion to hold the Commonwealth in contempt.
This appeal followed.
Appellant contends that the trial court erred to his
substantial prejudice by granting the Commonwealth's CR 60.02
motion.
Appellant does not, however, demonstrate the substantial
prejudice he claims to suffer.
Appellant claims that the
Commonwealth should have filed a direct appeal from the
August 31, 1995, order of the court rather than a CR 60.02 motion
to reconsider.
We disagree.
The standard for reviewing an order granting or denying
relief under CR 60.02 is whether the trial court abused its
discretion.
Bethlehem Minerals v. Church & Mullins, Ky., 887
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S.W.2d 327 (1994).
Absent an abuse of discretion, the ruling
will not be reversed.
Id.
With this standard in mind, we turn
to the opinion and order appealed from which states, inter alia:
On August 31, 1995, this court entered an
order for the Commonwealth to return to the
defendant items which were entered by the
defendant as evidence in his trial. Through
no fault of its own, the Commonwealth was
unable to verify the nature of the property
at that time. Now the Commonwealth has in
fact verified that said items would
constitute contraband if delivered to the
incarcerated defendant. We decline to order
the Commonwealth to violate the facility's
rules, and therefore grant the relief
requested.
Because the delays were due first to the unavailability of the
evidence and second to a medical condition of the Assistant
Commonwealth's Attorney assigned to this case, we find that the
Commonwealth has shown good cause for failing to comply with the
order dated August 31, 1995.
We note from the Exhibit list attached to
the Commonwealth's motion that although the
August 31, 1995 order did not encompass any
photographs (because the defendant did not
enter any photographs), we would not be
inclined to order the photographs returned in
the future. Given the nature of the
photographs, their return to the defendant
would be a gross miscarriage of justice in
which this Court declines to participate.
(Emphasis in original).
CR 60.02 exists to provide a party with a means to gain
relief from a final judgment which is unwarranted, onerous or
otherwise erroneous.
The August 31, 1995, order at issue was, in
essence, a default judgment.
The trial court indicated in the
August 31, 1995, order that the requested relief was granted
because the Commonwealth did not respond.
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CR 55.02 states that for good cause shown, the court
may set aside a judgment by default in accordance with CR 60.02,
however, the moving party must show:
(1) a valid excuse for
default; (2) a meritorious defense to the claim; and, (3) absence
of prejudice to the non-defaulting party.
must be present to set aside the judgment.
All three elements
S.R. Blanton
Development v. Investors Realty, Ky. App., 819 S.W.2d 727 (1991).
The Commonwealth had a valid excuse for failing to
respond to Wall's motion for return of property.
Because of the
amount of time that had passed since Wall's initial prosecution,
responsibility for Wall's case had been transferred several
times.
The Assistant Commonwealth's Attorney to whom the case
was assigned during the relevant time period had medical problems
which prevented her from responding to the motion.
these facts amount to excusable neglect.
We hold that
CR 60.02(a).
The Commonwealth had a meritorious defense to the
motion for return of property.
Upon examining the items
requested, the Commonwealth was concerned that all or most of the
items were contraband which should not be provided to a prison
inmate.
It appears to this Court that Wall's efforts to obtain
transcripts and then evidence was nothing more than a subterfuge
to secure return of the confiscated photographs.
The photographs
depicted Wall engaged in explicit sexual acts with Barbara Shaw,
one of his murder victims.
Other items of property included a
bottle of liquor, several bottles of pills, and gun parts.
We
agree that none of these items should be returned to Wall while
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incarcerated.
We further agree with the trial court that, given
the nature of the photographs, their return to the defendant, at
any time, would be a "gross miscarriage of justice."
The third element necessary to set aside a judgment by
default in accordance with CR 60.02, is satisfied by Wall's
failure to demonstrate any prejudice to him by entry of the order
granting CR 60.02 relief.
The order granting the Commonwealth
relief under CR 60.02 was proper in all respects.
Implicit in the trial court's finding that the
Commonwealth had shown "good cause" for not providing the
property to Wall, is that the Commonwealth was not in contempt of
the court.
The trial court's powers of contempt are left to its
sound discretion which was not abused in this case by declining
to hold the Commonwealth in contempt.
For the foregoing reasons, we affirm the judgment of
the Fayette Circuit Court in all respects.
DYCHE, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Donald N. Wall
LaGrange, KY
A. B. Chandler, III
Attorney General
Carol C. Ullerich
Assistant Attorney General
Frankfort, KY
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