KEVIN BARKER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 19, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000786-MR
KEVIN BARKER
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 97-CR-00155
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Kevin Barker has appealed from an order entered
by the McCracken Circuit Court on March 25, 2002, which denied
his CR1 60.02(d) motion for relief from his conviction for sexual
abuse in the first degree.2
Having concluded that the trial
court properly denied Barker’s CR 60.02(d) motion, we affirm.
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes (KRS) 510.110.
On May 16, 1997, a McCracken County grand jury
returned an indictment against Barker charging him with one
count of sexual abuse in the first degree.
The indictment
alleged that Barker subjected his daughter, P.B., to sexual
contact “[b]efore and during December, 1996[.]”
On June 23,
1997, Barker entered a plea of not guilty and the case proceeded
to trial.3
At the jury trial, P.B., who was five-years old at
the time, testified during the Commonwealth’s case-in-chief that
her father had sexually abused her on more than one occasion.
More specifically, P.B. testified that on one occasion in
particular, her father held her down and made her watch
pornographic movies while he placed his fingers in her genital
area.
Based on observations by the trial judge that P.B.
appeared to be nervous and confused, the trial judge, sua
sponte, decided to question P.B. outside of the presence of the
jury.
The trial judge asked P.B. if anyone in the audience was
bothering her as it appeared to him that she kept looking in the
same place each time she was asked a question.
that she was looking at Kim and Lameta.
P.B. explained
The trial judge then
asked P.B. who Kim and Lameta were and P.B. explained that Kim
3
A mistrial was granted on October 31, 1997, due to certain improper comments
made by the trial court during voir dire. Shortly thereafter, the case was
reset for trial.
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was her aunt and Lameta was her cousin.4
In closing, the trial
judge asked P.B. if anyone in the audience was attempting to
help her answer the questions posed by the attorneys, to which
P.B. responded in the negative.
P.B. was subsequently excused
and the Commonwealth proceeded with its case-in-chief.5
The Commonwealth’s evidence also included testimony
from several witnesses who testified concerning statements that
P.B. had made to them regarding Barker’s alleged acts of sexual
abuse.
Barker, who was not present during any portion of P.B.’s
testimony, testified in his own defense and denied sexually
abusing his daughter.6
On January 7, 1998, the jury found Barker guilty of
sexual abuse in the first degree.
The jury recommended a prison
sentence of one year; however, the jury further recommended that
Barker’s sentence “be suspended in lieu of his receiving
intensive counseling.”
On February 20, 1998, the trial court
sentenced Barker to a prison term of one year, but it ordered
the sentence to be probated for a period of five years.
Barker
did not file a direct appeal.
4
As it turns out, Lameta is in fact Barker’s ex-wife and of no relation to
P.B.
5
Barker’s trial counsel did not raise any objection to P.B.’s testimony
during or immediately following the trial.
6
Barker was not excluded from the courtroom pursuant to any court order; he
chose not to be present during P.B.’s testimony based on the advice of his
counsel.
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On February 21, 2002, four years after Barker had been
sentenced by the trial court, he filed a motion for relief from
judgment pursuant to CR 60.02(d).
Barker claimed his conviction
was obtained by “fraud affecting the proceedings.”
More
specifically, Barker claimed that P.B. had been coached or
influenced while on the witness stand by his ex-wife, Lameta.
In support of his motion, Barker attached several affidavits
signed by courtroom spectators who were present during P.B.’s
testimony.
All of the affidavits suggested that while P.B. was
on the witness stand, she had been somehow coached or influenced
by Lameta.
The Commonwealth claimed that Barker’s CR 60.02
motion was time-barred as it was predicated upon an allegation
of perjured or falsified evidence which is subject to a one-year
time limitation.
On March 25, 2002, the trial court summarily
denied Barker’s CR 60.02 motion.
This appeal followed.
Barker argues on appeal that his CR 60.02 motion is
not time-barred as the one-year limitation applicable to motions
filed pursuant to CR 60.02(a), (b), and (c) does not apply to
claims brought under CR 60.02(d).
CR 60.02 provides as follows:
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: (a) mistake, inadvertence, surprise
or excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
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falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or
a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief. The motion shall be made
within a reasonable time, and on grounds
(a), (b), and (c) not more than one year
after the judgment, order, or proceeding was
entered or taken. A motion under this rule
does not affect the finality of a judgment
or suspend its operation.
As noted above, a motion alleging “fraud affecting the
proceedings, other than perjury or falsified evidence” must be
brought “within a reasonable time.”7
Consequently, Barker
insists that he is alleging “fraud affecting the proceedings”
and that he is not seeking relief on the issue of whether P.B.
committed perjury or falsified evidence.
Barker cites
Terwilliger v. Terwilliger,8 in primary support of this
contention.
In Terwilliger, the Supreme Court of Kentucky held
that “fraud on a party is, in fact, ‘fraud affecting the
proceedings.’”9
The case arose out of a settlement agreement
entered into between Thomas and Judith Terwilliger, which, among
7
CR 60.02.
8
Ky., 64 S.W.3d 816 (2002).
9
Id. at 818.
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other things, divided the couple’s marital property and debts.10
The Terwilligers owned several closely-held corporations which
were subject to division as marital property.
Thomas
represented to Judith that those corporations, including
TransAmerica Cable, were experiencing financial difficulties and
that TransAmerica was nearly bankrupt.
Based upon Thomas’s
representations, Judith entered into a property settlement
agreement, whereby she agreed to accept unencumbered stock
equaling 10% of the value of the companies owned by the couple.
Thomas valued this 10% interest at $11,000.00.
Thomas was to
receive stock equaling 90% of the value of the companies owned
by the couple, which he valued at $100,000.00.
assumed the corporate debt.
Thomas also
The final decree of dissolution,
which incorporated the marital settlement agreement by
reference, was entered on January 6, 1994.
Less than one month
after the divorce decree was entered, Thomas entered into an
agreement to sell TransAmerica for approximately $1,600,000.00.
Consequently, on December 8, 1994, Judith moved to reopen the
decree of dissolution pursuant to CR 60.02(d), arguing that the
settlement agreement had been procured through “fraud,
10
The settlement agreement also sought to provide for custody, visitation,
and support of the couple’s two minor children. Id. at 817.
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misrepresentation, lack of full disclosure, and overreaching on
the part of Mr. Terwilliger.”11
The family court granted Judith’s CR 60.02 motion and
modified the property division, awarding Judith $384,166.50.
Thomas appealed the modification to this Court, arguing, inter
alia, that his actions did not amount to “fraud affecting the
proceedings” as contemplated by CR 60.02(d).12
This Court
reversed the family court’s order modifying the property
settlement, holding that Thomas’s “conduct did not constitute
‘fraud affecting the proceeding[s]’ within the meaning of CR
60.02(d), and therefore, the reopening was improper.”13
This
Court cited Rasnick v. Rasnick,14 in primary support of its
holding.
The Supreme Court reversed, holding that “the
definition of ‘fraud affecting the proceedings’ utilized by the
Court in Rasnick is an overly restrictive conception of CR
60.02(d).”15
The Court went on to conclude that “by filing a
settlement agreement with knowingly undervalued marital assets,
Mr. Terwilliger used the proceedings as a tool to defraud his
11
Id.
12
Id.
13
Id. at 818.
14
Ky.App., 982 S.W.2d 218 (1998) (holding that CR 60.02(d) applies only to
extrinsic fraud, i.e., fraud committed outside the court proceedings).
15
Terwilliger, 64 S.W.3d at 818.
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wife.”16
In discussing the distinction between CR 60.02(c) and
(d), the Supreme Court made the following observation, which is
particularly relevant here:
[CR 60.02], however, does distinguish
between fraud affecting the proceedings . .
. and the presentation of perjury or
falsified evidence, which is clearly a fraud
upon the court. This distinction is
important because the latter can be raised
only “not more than one year after the
[judgment],” [ ], while the former must be
“made within a reasonable time.” Thus, it
appears that fraud perpetrated in the
courtroom or through testimony under oath is
subject to a one-year limitation while fraud
occurring outside the courtroom that
interferes with presentation of the losing
party’s evidence to the extent that he or
she is “prevented from appearing or
presenting fully and fairly his side of the
case” is not subject to that limitation
[emphasis added].17
While we agree with Barker that Terwilliger expanded
the grounds for relief contained in CR 60.02(d) by construing
the phrase “fraud affecting the proceedings” to include “fraud
on a party,” we agree with the Commonwealth that the gist of
Barker’s CR 60.02 motion concerns allegations of “fraud
perpetrated in the courtroom or through testimony under
16
Id.
17
Id. at 818-19 (citing 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02,
cmt. 6, (5th ed. 1995)). In the same comment, however, Philipps notes that
“[i]t may be said the language specifying this ground is quite broad and
allows for flexibility in the determination of what constitutes fraud
affecting the proceedings.” Id. Nevertheless, we are of the opinion that
certain outer limits, however broad they may be, must be said to exist;
otherwise the distinction between CR 60.02(c) and (d) would cease to have any
practical application whatsoever.
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oath[.]”18
Thus, Terwilliger provides little analytical support
for the contentions raised by Barker on appeal.
The allegations
raised by Barker in his CR 60.02 motion are procedurally barred
as they are subject to the one-year time limitation applicable
to motions brought pursuant to CR 60.02(a),(b), and (c).
Even if we were to construe the allegations raised by
Barker in his CR 60.02 motion as falling within the definition
of “fraud affecting the proceedings,” his motion is still
procedurally barred as he has failed to establish precisely why
this issue could not have been raised on direct appeal.
As the
Supreme Court explained in McQueen v. Commonwealth,19 “CR 60.02
is not a separate avenue of appeal to be pursued in addition to
other remedies, but is available only to raise issues which
cannot be raised in other proceedings.”20
60.02 is not an appellate vehicle.”21
Stated otherwise, “CR
CR 60.02 is limited to
relief that is not available by direct appeal.22
18
Id. Barker attempts to place himself within the ambit of CR 60.02(d) by
claiming that “[t]he gravamen of his motion is that the trial court, acting
sua sponte to what it perceived as problems with the victim’s demeanor under
examination, was misled as to the child victim’s relationship with a
courtroom spectator.” We fail to see the relevancy of this contention;
however, as we do not believe the identity of the individual who allegedly
influenced P.B. while she was on the witness stand is critical.
19
Ky., 948 S.W.2d 415 (1997).
20
Id. at 416.
21
Faris v. Stone, 103 S.W.3d 1, 4 (2003)(citing McQueen, supra at 416).
22
See, e.g., Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
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Barker seeks to bypass this procedural impediment by
claiming that he “was only made aware of the issue upon viewing
the videotape [of his trial],” which was obtained by his CR
60.02 counsel prior to the filing of his CR 60.02 motion.23
Underlying this contention is the implicit assumption that the
videotape of Barker’s trial was not “available to him” until it
is was obtained by his CR 60.02 counsel.
However, we cannot
accept this assumption, since Barker has failed to explain
precisely why the videotape of his trial was made “available to
him” only upon the directive of his CR 60.02 counsel.
Barker
clearly could have obtained a copy of the proceedings for the
purpose of filing a timely direct appeal had he so desired.
There is nothing to indicate that Barker was precluded from
raising this issue on direct appeal, other than through his own
inaction.24
Based upon the foregoing reasons, the order of the
McCracken Circuit Court denying Barker’s CR 60.02 motion is
affirmed.
ALL CONCUR.
23
As previously discussed, Barker chose not be present in the courtroom
during any portion of P.B.’s testimony based on the advice of his counsel.
24
While Barker may also seek to allege that his trial counsel was ineffective
by failing to file a motion for a new trial or a direct appeal, under
Kentucky Rules of Criminal Procedure 11.42(10) such a motion would also be
time-barred.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Delbert K. Pruitt
Paducah, Kentucky
Albert B. Chandler III
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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