RANDALL COPE v. SARAH KIRK JACKSON; GOLDEN KIRK; AND CHARLES EDWARDS
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NOVEMBER 7, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002122-MR
RANDALL COPE
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 01-CI-00266
v.
SARAH KIRK JACKSON;
GOLDEN KIRK; AND
CHARLES EDWARDS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Randall Cope, pro se, has appealed from an
order entered by the Marshall Circuit Court on August 15, 2001,
which dismissed his complaint against the appellees, Sarah Kirk
Jackson, Golden Kirk, and Charles Edwards, with prejudice.
Having concluded that the allegations raised by Cope in his
complaint are barred by the doctrine of collateral estoppel and
that the appellees are entitled to a judgment as a matter of
law, we affirm.
This case presents an unfortunate and rather unique
set of facts.
Cope and Jackson were romantically involved,
until problems developed in their relationship.
On May 8, 1998,
Cope was arrested on federal charges stemming from a complaint
filed against him by Jackson.
on May 11, 1998.
Cope posted bond and was released
As a condition of his release, Cope was
ordered to avoid any contact with Jackson.1
On May 20, 1998,
Cope was indicted by a grand jury for the United States District
Court for the Eastern District of Kentucky on the charges filed
by Jackson.
In sum, the indictment alleged that between April
12 and April 14, 1998, Cope accessed Jackson’s Internet account
without her permission and sent several disparaging electronic
messages to her colleagues and friends.
The indictment charged
Cope with 15 counts of sending annoying and harassing electronic
messages in violation of 47 U.S.C. § 223(a)(1)(C).
On December 23, 1998, Charles Edwards found a nude
photograph of Jackson near the edge of Golden Kirk’s driveway in
Marshall County, Kentucky.2
Edwards took the photograph to Kirk
and told Kirk that he saw Cope drive Cope’s truck up to the edge
1
Cope was also ordered to refrain from committing any offenses in violation
of federal, state, or local law.
2
Kirk is Jackson’s father.
Edwards and Kirk are friends and neighbors.
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of Kirk’s driveway earlier that afternoon.
Edwards claimed that
he found the photograph after Cope drove away.
Later that
afternoon, Jackson found a second photograph near the edge of
her father’s driveway.
Jackson contacted the Marshall County
Sheriff’s office and accused Cope of leaving the pictures.
Cope
was arrested on December 26, 1998, and charged with harassing
communications.3
On December 28, 1998, Cope entered a plea of
not guilty in the Marshall District Court and he was released on
a $500.00 cash bond.
As a condition of Cope’s release, he was
ordered to avoid any contact with Jackson and her father.
Jackson informed the United States Attorney’s Office
for the Eastern District of Kentucky of the pending state charge
that had been filed against Cope in Marshall County.
On
December 30, 1998, the United States filed a motion in the
United States District Court for the Eastern District of
Kentucky requesting the Court to issue a show cause order.
Consequently, on January 4, 1999, a show cause hearing was held
for the purpose of determining whether Cope’s federal bond
should be revoked.
At the hearing, Edwards testified on behalf of the
United States.
Edwards claimed that he saw Cope pull Cope’s
truck up to the edge of Kirk’s driveway early in the afternoon
on December 23, 1998.
3
Edwards further claimed that he found a
Kentucky Revised Statutes (KRS) 525.080.
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nude photograph of Jackson lying on the ground near the edge of
Kirk’s driveway shortly after Cope drove away.
Marshall County
Sheriff Terry Anderson also testified on behalf of the United
States.
Sheriff Anderson stated that he met with Jackson on the
afternoon of December 23, 1998, and that Jackson had told him
that she believed Cope was the one who had left the photograph.
Sheriff Anderson also testified that Jackson called later that
afternoon and informed him that she had found a second
photograph.
Both Edwards and Sheriff Anderson were subject to
cross-examination by Cope’s counsel.
Cope did not testify at
the bond revocation hearing and he did not call any witnesses to
testify on his behalf.
Based on the aforementioned testimony, the Magistrate
Judge concluded that Cope had violated the terms of his bond.
The transcript of the show cause hearing reads, in relevant
part, as follows:
The Court: Mr. Cope, I’m afraid there is
not much leeway that I have in this case
from the testimony I just heard. [Your
attorney] makes a decent argument about the
communication factor, because there is no
testimony that you had communications with
Miss Jackson on December 23rd of this year.
But what bothers me is that this apparently
was an attempt to get around the Court order
that I imposed in this case, and
communications can take many different
forms, they don’t always have to be verbal.
And the reason I said that, I can see [your
attorney’s] argument. And the first issue
that he raised is that Mr. Edwards
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testified, and I have to accept his
testimony, that this picture was placed in
the driveway. I didn’t hear any testimony
about the second picture, but what really
bothers me is that this second picture was
apparently found by Miss Jackson, and it’s
similar to the first picture, and I think
that you have tried to make an end-around
way of avoiding the order that I imposed
that you not communicate with her. I
consider these photographs to be a form of
communication and I consider what happened
here to be a violation of an order of the
court. Normally, and this is not a normal
case, I wouldn’t revoke the bond except for
the fact that I did have an extensive, an
extensive bond hearing on this case and I
think I specifically warned you not to have
any communications.
. . .
So Mr. Cope, based on the testimony I have
heard, I find that you have violated the
terms of my release order, which could not
have been clearer, so I’m going to revoke
your bond.
Cope was then remanded to the custody of the United States
Marshal’s Office.
On January 22, 1999, ten days before Jackson was
scheduled to testify against Cope regarding the federal charges
pending against him in the Eastern District of Kentucky for
sending annoying and harassing electronic messages, there was a
shooting at Jackson’s residence in Florence, Kentucky.
Although
Cope was incarcerated at the time, he was immediately identified
as a suspect.
On March 1, 1999, Cope pled either guilty or nolo
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contendere to the various federal charges pending against him.4
The following colloquy took place in open court between Cope’s
attorney, Harry Hellings, and the trial judge:
The Court: . . . The court is satisfied the
plea is voluntary and there’s a factual
basis for the plea and will accept your plea
of guilty to the counts indicated and the
plea of nolo contendere to the counts
indicated and overrule the objection of the
United States to the nolo contendere plea.
Now, I believe you wanted to make a
motion for release on bond.
. . .
Mr. Hellings: Your honor, at this time, on
behalf of Mr. Cope, I would move the court
to admit him to bond. Depending on how the
guidelines are calculated and how many
victims there is, if there is just one
victim, the guidelines would be zero –
anywhere from 0 to 6 months to 8 to 14
months depending on any additional
departures the court may make. This matter,
he was admitted to bond, he violated a
condition of bond, was put in jail.
The Court:
Which was the condition of bond?
Mr. Hellings: The condition was no contact
with Miss Jackson, and actually there was no
contact with Miss Jackson, but there was a
communication through some pictures, not to
Miss Jackson but to Miss Jackson’s father.
Judge Wehrman found that that was a
violation and incarcerated him at that
time[.]
4
Cope pled guilty or nolo contendere to 13 counts of sending annoying and
harassing electronic messages in violation of 47 U.S.C. § 223(a)(1)(C).
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On April 24, 2000,5 the United States District Court
for the Eastern District of Kentucky entered its final judgment
and sentence on the 13 convictions for sending annoying and
harassing electronic messages.
The Court sentenced Cope to a
prison term of 24 months.
On May 3, 1999, a grand jury for the Eastern District
of Kentucky indicted Cope on several additional charges, all of
which stemmed from Cope’s alleged role in the January 22, 1999,
shooting that occurred at Jackson’s residence and a subsequent
murder for hire scheme targeting Jackson.6
Cope pled not guilty
to each count contained in the indictment.
The case proceeded
to trial and on February 3, 2000, the jury convicted Cope on all
but two of the counts contained in the indictment.7
On June 8,
2000, the Court entered its final judgment and sentenced Cope to
a prison term of 567 months.
Shortly thereafter, the harassing communications
charge that had been filed against Cope in Marshall County was
dismissed.
On June 18, 2001, Cope filed a pro se complaint
against Jackson, Kirk, and Edwards in the Marshall County
Circuit Court.
In sum, Cope alleged that Jackson, Kirk, and
5
It is unclear from the record if the sentencing was delayed for more than
one year because of the other pending charges.
6
For a more detailed description of the various federal charges filed against
Cope and the events leading up to those charges, see United States v. Cope,
312 F.3d 757 (6th Cir. 2002).
7
Jackson, Kirk, and Edwards all testified at Cope’s trial on behalf of the
United States.
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Edwards had conspired against him in an effort to get his
federal bond revoked by falsely accusing him of placing nude
photographs of Jackson in Kirk’s driveway.
Cope’s complaint
appears to set forth several theories of tort liability, namely,
intentional infliction of emotional distress, battery, assault,
defamation, invasion of privacy, malicious prosecution, and
abuse of process.
On July 16, 2001, the appellees filed a motion to
dismiss Cope’s complaint.
The appellees claimed the allegations
raised in Cope’s complaint were barred by the doctrine of
collateral estoppel as a result of the findings made by the
Magistrate Judge at Cope’s federal bond revocation hearing.
The
appellees further contended that the statements made by Cope’s
attorney at his plea hearing constituted a judicial admission.8
A hearing was held on August 6, 2001, after which the trial
court entered an order dismissing Cope’s complaint, with
prejudice.
On August 23, 2001, Cope filed a motion for
reconsideration, which was summarily denied on September 6,
2001.9
This appeal followed.
8
The appellees attached several exhibits to their motion to dismiss,
including a transcript of Cope’s federal bond revocation hearing, a
transcript of his plea hearing, a letter from a U.S. Probation Officer, and
the verdict from his federal trial.
9
The order denying Cope’s motion for reconsideration reads, in relevant part,
as follows:
The Court has reviewed the pleadings and is of the
opinion that defendant’s motion certainly has a legal
-8-
Cope raises three issues on appeal.
He contends (1)
the trial court erred as a matter of law by dismissing his
complaint; (2) the trial court violated his due process rights
by dismissing his complaint “without a jury determination on the
merits of the claim”; and (3) the trial court violated his Fifth
and Sixth Amendment rights by “refus[ing] to allow [ ] his
representatives to speak at the dismissal hearing.”
We begin by setting forth the proper standard of
review.
Since the trial court apparently considered matters
outside of the pleadings, i.e., the various exhibits attached to
the appellees’ motion to dismiss, in arriving at its decision to
dismiss Cope’s complaint, we must treat the motion as one for
summary judgment.10
The standard of review governing an appeal
of a summary judgment entered in this Commonwealth is wellsettled.
We must determine whether the trial court erred in
concluding that there was no genuine issue as to any material
fact and that the moving party was entitled to a judgment as a
basis under the theory
is of the opinion that
set out in defendant’s
motion to dismiss, the
action.
of res judicata, and the Court
based upon the legal arguments
memorandum in support of [its]
plaintiff has no cause of
10
See, e.g., Pearce v. Courier-Journal & Louisville Times Co., Ky.App., 683
S.W.2d 633, 635 (1985). See also 6 Kurt A. Philipps, Jr., Kentucky Practice,
CR 12.02, cmt. 9 (5th ed. 1995). “On a motion to dismiss on this ground the
Rule recognizes that matters outside the pleadings may be presented by
affidavit or otherwise. It is within the discretion of the court whether or
not this extraneous matter shall be considered, but if the court does not
exclude it, the motion shall be treated as one for summary judgment under
Rule 56.” Id.
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matter of law.11
Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”12
In Paintsville Hospital Co. v.
Rose,13 the Supreme Court of Kentucky held that for summary
judgment to be proper the movant must show that the adverse
party cannot prevail under any circumstances.
The Supreme Court
has also stated that “the proper function of summary judgment is
to terminate litigation when, as a matter of law, it appears
that it would be impossible for the respondent to produce
evidence at the trial warranting a judgment in his favor.”14
We will first address the issue of whether the
doctrine of collateral estoppel can be applied to a bond
revocation hearing.15
In Gossage v. Roberts,16 this Court stated
that “under proper circumstances a criminal conviction may be
11
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
12
Kentucky Rules of Civil Procedure (CR) 56.03.
13
Ky., 683 S.W.2d 255, 256 (1985).
14
Steelvest Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991).
15
The doctrine of collateral estoppel is frequently confused with its
counterpart, res judicata. It is important to distinguish the two concepts
because res judicata and collateral estoppel apply in different circumstances
with different consequences to the individual litigants involved. Collateral
estoppel, or issue preclusion as it is sometimes referred to, is viewed as a
subdivision of res judicata in Kentucky. The effect of collateral estoppel,
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used for purposes of collateral estoppel in later civil
proceedings[.]”17
The Gossage Court went on to hold that “to be
so utilized the criminal judgment must of necessity finally
dispose of the matters in controversy.”18
In Moore v.
Commonwealth, Cabinet for Human Resources,19 the Supreme Court of
Kentucky listed the essential elements of collateral estoppel as
follows: (1) identity of issues; (2) a final decision or
judgment on the merits; (3) a necessary issue with the estopped
party given a full and fair opportunity to litigate; and (4) a
as distinguished from res judicata, was recently explained by this Court in
Napier v. Jones By & Through Reynolds, Ky.App., 925 S.W.2d 193, 195-96
(1996):
Although collateral estoppel and res judicata are cut
from the same cloth, the effect of collateral
estoppel is different from that of res judicata:
The basic distinction between the doctrines of
res judicata and collateral estoppel, . . . has
frequently been emphasized. Thus, under the
doctrine of res judicata, a judgment “on the
merits” in a prior suit involving the same
parties or their privies bars a second suit on
the same cause of action. Under the doctrine of
collateral estoppel, on the other hand, such a
judgment precludes relitigation of issues
actually litigated and determined in the prior
suit, regardless of whether it was based on the
same cause of action as the second suit
[citations omitted].
16
Ky.App., 904 S.W.2d 246 (1995).
17
Id. at 248 (citing Roberts v. Wilcox, Ky.App., 805 S.W.2d 152 (1991)).
18
Id.
19
Ky., 954 S.W.2d 317 (1997).
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prior losing litigant.20
Since the courts of this Commonwealth
have not passed on the question of whether the disposition of a
bond revocation hearing constitutes a final decision or judgment
on the merits, we have reviewed the case law from other
jurisdictions for guidance.
In State v. Chase,21 the Supreme Court of Rhode Island
noted that “‘[t]he doctrine of collateral estoppel does not
require a judgment which ends the litigation and leaves nothing
for the court to do but execute the judgment, but includes many
dispositions which, though not final in that sense, have
nevertheless fully litigated the issue.’”22
In People v. Kondo,23
the Court stated that “[i]t is not the form that the prior
adjudication assumes, but the substance of the prior
adjudication which is determinative of whether collateral
estoppel may be properly applied.”
The Court continued by
stating that “[g]enerally, so long as an issue of ultimate fact
has been finally and conclusively determined on its merits,
collateral estoppel will bar the relitigation of that issue
20
Id. at 319. See also Yeoman v. Commonwealth of Kentucky, Health Policy
Board, Ky., 983 S.W.2d 459, 465 (1998).
21
588 A.2d 120 (R.I. 1991).
22
Id. at 122-23 (quoting 46 Am.Jur.2d Judgments § 457 (1969)).
23
366 N.E.2d 990, 992 (Ill. 1977).
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based on the same evidence.”24
In Trepanier v. Getting
Organized, Inc.,25 the Supreme Court of Vermont noted that “the
critical inquiry is whether the party to be bound has had a full
and fair opportunity to contest an issue resolved in an earlier
action so that it is fair and just to refuse to allow that party
to relitigate the same issue.”
In Kondo, the State elected to first prosecute the
defendant by way of a probation revocation hearing but failed to
convince the judge by a preponderance of the evidence that the
defendant had carried a weapon that properly functioned.
Since
the judge made a factual finding at the probation revocation
hearing as to the only disputed question of fact and found that
the weapon was in a non-functioning state, the State was barred
from relitigating at a criminal trial the issue that had been
conclusively determined on its merits.26
In the case sub judice,
the only disputed question of fact was whether Cope put, or
assisted in putting, pictures of Jackson in her father’s
driveway.
The Magistrate Judge found that he did and revoked
24
Id. (citing People v. Heil, 364 N.E.2d 966 (Ill. 1977)(motion for discharge
on speedy trial grounds); People v. Williams, 322 N.E.2d 461 (Ill. 1975)
(motion to suppress a confession); People v. Armstrong, 306 N.E.2d 14 (Ill.
1973)(cited in People v. Grayson, 319 N.E.2d 43 (Ill. 1974) and involving a
motion to suppress evidence)); People v. Taylor, 277 N.E.2d 878 (Ill.
1971)(involving a motion to suppress evidence); People v. Quintana, 223
N.E.2d 161 (motion for discharge on speedy trial grounds); and People ex rel.
MacMillian v. Napoli, 219 N.E.2d 489 (Ill. 1966)(involving motion to suppress
evidence)).
25
583 A.2d 583, 588 (Vt. 1990).
26
Id. at 992-93.
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his bond based on this finding.
Thus, after an evidentiary
hearing was held, this disputed factual question was found by
the judge adversely to Cope’s position.
This adverse factual
finding collaterally estops Cope from proving a required element
of his cause of action; he cannot demonstrate that he was not
responsible for the placement of the pictures of Jackson on her
father’s driveway.
Accordingly, summary judgment was properly
entered for the appellees.
Cope’s final claim is that the trial court denied him
due process by refusing to appoint him a guardian ad litem and
by refusing to allow his father and his sister, who had powers
of attorney, to speak for him at the hearing on the motion to
dismiss.
CR 17.04 provides for the appointment of a guardian ad
litem for an adult prisoner who is a defendant, but not a
plaintiff.
As to Cope’s claim that he had given his father and
his sister a general power of attorney to act on his behalf, the
record does not include any such document.
We will not
speculate as to what authority, if any, an absent document may
have given to Cope’s father and sister.
Based upon the foregoing reasons, the order of the
Marshall Circuit Court dismissing Cope’s complaint is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Randall Cope, Pro Se
Terre Haute, Indiana
Kerry B. Harvey
Benton, Kentucky
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