B.W. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 15, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001252-MR
B.W.1
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 89-CR-00829
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND MINTON, JUDGES.
JOHNSON, JUDGE:
B.W. appeals pro se from an order of the Warren
Circuit Court entered on May 19, 2003, denying his motion to
vacate judgment or for reduction of sentence filed pursuant to
CR2 60.02(f), and his motion for a new trial filed pursuant to
1
The parties will be referred to by initials to protect the interests of the
minor children.
2
Kentucky Rules of Civil Procedure.
RCr3 10.06 and RCr 10.26.
Having concluded that the trial court
did not err in denying the motions, we affirm.
In November 1989 B.W. was indicted on three counts of
sodomy in the first degree,4 two counts of sexual abuse in the
first degree,5 one count of rape in the first degree,6 two counts
of criminal abuse in the first degree,7 one count of incest,8 and
being a persistent felony offender in the first degree (PFO I).9
The charges arose from alleged sexual activity with B.W.’s fiveyear-old daughter, M.W., and his four-year-old son, J.W., and
the infliction of burns on the two children.
Following a trial
held on January 23-24, 1990, a jury found B.W. guilty of one
count of sodomy in the first degree, rape in the first degree,
two counts of sexual abuse in the first degree, and two counts
of criminal abuse in the first degree.10
The jury recommended
sentences of 40 years on each the sodomy and rape convictions,
3
Kentucky Rules of Criminal Procedure.
4
Kentucky Revised Statutes (KRS) 510.070.
5
KRS 510.110.
6
KRS 510.040.
7
KRS 508.100.
8
KRS 530.020.
9
KRS 532.080(2).
10
At the close of the Commonwealth’s case, the trial court directed a verdict
of acquittal on two counts of sodomy in the first degree. At the close of
the guilt phase and prior to the sentencing phase, the trial court granted
the Commonwealth’s motion to dismiss the PFO I count. The trial court
instructed the jury that the incest count was an alternative to the rape
offense.
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and five years on each of the remaining convictions to run
concurrently with each other for a total sentence of 40 years.
On March 3, 1990, the trial court sentenced B.W. to serve 40
years in prison consistent with the jury’s recommendation.
On
direct appeal, the Supreme Court of Kentucky reversed the two
convictions for sexual abuse in the first degree but affirmed
all of the other convictions.11
On July 18, 1994, B.W. filed a pro se motion to vacate
judgment pursuant to RCr 11.42 alleging ineffective assistance
of counsel due to counsel’s alleged failure to move for
severance of the charges and a separate trial on each of the
offenses, counsel’s allegedly providing incorrect parole
eligibility information in connection with explaining the
Commonwealth’s offer on a plea of guilty, and counsel’s alleged
failure to procure a medical expert witness for the defense to
examine the children in order to provide possible testimony to
rebut the Commonwealth’s medical expert witness.
On January 3,
1995, private counsel filed a supplemental motion to B.W.’s
original pro se RCr 11.42 motion raising several other claims of
ineffective assistance of counsel such as counsel’s alleged
failure to effectively cross-examine the Commonwealth’s
witnesses, to subpoena witnesses requested by B.W., to
11
B.W. v. Commonwealth, 90-SC-0237-MR, rendered June 6, 1991 (not-to-bepublished opinion).
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sufficiently discuss the case with B.W., to prepare for trial,
and to file a motion for change of venue.
Following a response
by the Commonwealth, the trial court conducted evidentiary
hearings on the motion on March 15, March 21, and April 12,
1995.
On May 17, 1995, B.W.’s attorney filed a combined
memorandum in support of the RCr 11.42 motion and motion for a
new trial pursuant to CR 10.06 based on newly discovered
evidence, which involved witnesses and information concerning
alleged sexual contact between M.W. and other persons associated
with and romantically linked to B.W.’s wife.
The Commonwealth
filed a response and B.W. filed a reply to the response.
On
April 10, 1996, the trial court entered an order denying both
the RCr 11.42 and RCr 10.06 motions, which was appealed.
On May 10, 1996, while the order denying the RCr 11.42
and RCr 10.06 motions was pending on appeal, B.W. filed a pro se
motion to vacate or correct sentence pursuant to CR 60.02(f) and
RCr 10.26 concerning testimony in the penalty phase of his trial
dealing with his parole eligibility.
On July 11, 1996, the
trial court denied the CR 60.02/RCr 10.26 motion to vacate based
on an absence of prejudice, which was appealed.
On July 1,
1998, B.W. filed a second CR 60.02(f)/RCr 10.26 motion to vacate
based on a lack of evidence to support venue in Warren County.
On November 5, 1998, the trial court denied this second CR 60.02
motion, which was appealed.
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On July 31, 1998, this Court rendered an Opinion
affirming the trial court’s denial of B.W.’s RCr 11.42 motion
and first CR 60.02 motion.12
This Court held that B.W. failed to
establish ineffective assistance of counsel or prejudice from
the parole eligibility testimony.
On January 28, 2000, this
Court issued another opinion affirming the trial court’s denial
of the second CR 60.02 motion because a conviction is not
subject to post-conviction attack on the ground of insufficiency
of proof of venue and the issue could have been raised in the
RCr 11.42 motion.13
On January 28, 2003, B.W. filed the pro se motion to
vacate or reduce sentence pursuant to CR 60.02(f) and motion for
a new trial pursuant to RCr 10.06 and RCr 10.26 involved in the
current appeal.
B.W. challenged his rape conviction based on
alleged newly-discovered evidence consisting of statements in a
four-page letter dated May 13, 2002, written by M.W. to B.W., in
which she said, “[a]nd no you didn’t rape me but you did malist
[sic] me which is the same.
There is physical evidence of what
happened because I have scares [sic].”
On May 19, 2003, the
trial court denied the motion noting the numerous previous postjudgment motions B.W. had already filed.
B.W. filed a motion
12
B.W. v. Commonwealth, 1996-CA-000167-MR and 1996-CA-002076-MR (not-to-bepublished opinion).
13
B.W. v. Commonwealth, 1998-CA-002877-MR (not-to-be-published opinion).
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for rehearing, which the trial court summarily denied on May 6,
2003.
This appeal followed.
As an initial matter, the trial court implied, and the
Commonwealth argues, that B.W.’s motions were subject to
dismissal as repetitive.
The Commonwealth cites Lycans v.
Commonwealth,14 which is distinguishable because it deals with
multiple RCr 11.42 motions.
The Supreme Court of Kentucky has
indicated that a CR 60.02 motion is not available under waiver
principles for issues that could or should have been raised on
direct appeal or by way of an RCr 11.42 motion.15
However,
B.W.’s current motions are predicated on statements made by the
victim, M.W., in a May 2002 letter that she wrote to B.W.
The
Commonwealth has not shown and the record does not reveal that
the existence and ramifications of these statements have been or
could have been raised in the earlier motions.
We conclude that
B.W.’s request for relief is more appropriately subject to
treatment as newly-discovered evidence and is not barred as a
successive motion.16
Accordingly, although B.W.’s CR 60.02
motion refers to subsection (f), his motion actually falls under
14
Ky., 511 S.W.2d 232 (1974).
15
See Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983); McQueen v.
Commonwealth, Ky., 948 S.W.2d 415, 418 (1997); and Barnett v. Commonwealth,
Ky., 979 S.W.2d 98, 101 (1998).
16
See also Commonwealth v. Spalding, Ky., 991 S.W.2d 651, 654-55 (1999)
(holding second CR 60.02 motion not barred by issue preclusion aspect of res
judicata where issue was not determined in prior proceeding).
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subsection (b) because subsection (f), the catchall provision,
can apply only if none of the specific provisions apply to the
situation.17
This approach is underscored by the fact that B.W.
also cited RCr 10.06 and stated his grounds for relief as newlydiscovered evidence.
Generally, a motion for relief under CR 60.02(b) or
RCr 10.06(1) must be made within one year after entry of the
While the time limit in CR 60.02(b) is absolute,18 RCr
judgment.
10.06 allows the trial court to extend the period for filing a
new trial motion based on newly-discovered evidence “if the
court for good cause so permits.”
B.W. did not ask the trial
court to make such a ruling despite the nearly 13-year period
since the trial and the trial court did not sua sponte address
the issue.
The movant has the burden of showing that the motion
for a new trial was filed timely.19
Thus, B.W.’s motions
arguably are procedurally barred as untimely.
In addition to the timeliness question, B.W.’s claim
is unpersuasive on the merits.
Whether to grant a new trial is
within the discretion of the trial court and the standard of
review on appeal is whether the trial court abused its
17
See Alliant Hospitals, Inc. v. Benham, Ky.App., 105 S.W.3d 473, 478 (2003)
(applying subsection (b) rather than subsection (f))(citing Spalding, 991
S.W.2d at 651).
18
See Meredith v. Commonwealth, Ky., 312 S.W.2d 460 (1958).
19
See Perkins v. Commonwealth, Ky., 442 S.W.2d 310, 311 (1969).
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discretion.20
In order to justify a new trial the defendant must
rebut the presumption that the verdict is correct and also show
that based on newly-discovered evidence, the new or additional
evidence “is of such decisive or conclusive nature that it
would, with reasonable certainty, have changed the verdict or
that it would probably change the result if a new trial should
be granted.”21
The granting of a new trial is disfavored when
the newly-discovered evidence is merely cumulative or impeaching
unless it impeaches the only material witness in the case.22
Hearsay evidence that a trial witness made a statement following
trial that was inconsistent with his trial testimony usually is
insufficient.23
Even statements by witnesses recanting their
trial testimony are viewed with suspicion and rarely will
justify a new trial.24
20
See Caldwell v. Commonwealth, Ky., 133 S.W.3d 445, 454 (2004); and Carwile
v. Commonwealth, Ky.App., 694 S.W.2d 469, 470 (1985).
21
Gilbert v. Commonwealth, Ky., 317 S.W.2d 175, 176 (1958); Commonwealth v.
Tamme, Ky., 83 S.W.3d 465, 468 (2002) (citing Collins v. Commonwealth, Ky.,
951 S.W.2d 569, 576 (1997)); Caldwell, 133 S.W.3d at 454.
22
Foley v. Commonwealth, Ky., 55 S.W.3d 809, 814 (2000). See also Epperson
v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1991); and Collins, supra.
23
See Caldwell, 133 S.W.3d at 455; Coots v. Commonwealth, Ky., 418 S.W.2d
752, 754 (1967) (stating that a post-trial statement by the prosecutrix to a
police officer that defendant had not molested her, which contradicted her
trial testimony of forcible sexual intercourse, was insufficient for new
trial because it was merely impeaching); and Alford v. Commonwealth, 244 Ky.
27, 50 S.W.2d 1, 2 (1932) (stating that alleged post-trial statements of
prosecution witnesses contradicting trial testimony that deceased victim was
not armed was insufficient for new trial as merely impeaching).
24
See Carwile, 694 S.W.2d at 470 (citing Hensley v. Commonwealth, Ky., 488
S.W.2d 338 (1972)).
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In this case M.W. testified at trial that B.W. “played
nasty with her.”
She described and demonstrated with
anatomically correct dolls one specific incident where B.W.
placed her on his lap as he was sitting on the toilet, held her
around the waist, and lifted her up and down.
M.W. and B.W. were naked and facing each other.
At the time, both
When asked by
the prosecutor if this act hurt her, M.W. said no and “it
wouldn’t fit,” pointing to the penis on the male doll.
In
response to the prosecutor’s question what she meant by “it
wouldn’t fit,” M.W. indicated that her father’s penis “couldn’t
stay” in her “private part.”
During the trial, a videotaped
interview of M.W. with a social worker in which M.W. stated that
her father put his “weenie” in her “booty,” pointing to her
vagina, was also introduced.
She further demonstrated the act
with two anatomically correct dolls.
In addition, Dr. Sowell testified that M.W.’s hymen or
vaginal opening was abnormally enlarged, and that she had a
small tear of her posterior fourchette, which is discrete skin
tissue just inside the vagina.
Dr. Sowell also testified that
when she asked M.W. about this condition, M.W. stated that her
“daddy” did it with his “weenie.”
Dr. Sowell stated that the
vaginal injuries to M.W. were consistent with penetration by a
penis.
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B.W. contends that the newly-discovered evidence
consisting of M.W.’s statement in her May 2002 letter that B.W.
did not rape her undermines the validity of his rape conviction.
He also maintains that M.W.’s trial statements that “it wouldn’t
fit” and that it did not hurt in describing the bathroom
incident are inconsistent with his having raped her.
While M.W.’s trial testimony may have been somewhat
oblique, her statements “it wouldn’t fit” and it “could not
stay” in her “private part” imply an attempt at sexual
intercourse and are not inconsistent with some penetration.
Moreover, in the videotaped interview with the social worker,
M.W. clearly stated and demonstrated with the dolls that B.W.
inserted his penis into her vagina.
The offense of rape
requires only “slight” penetration,25 which is often not
understood by the layperson.
M.W.’s description of the bathroom
incident more clearly demonstrates an act of sexual contact
consistent with rape.
Indeed, M.W. did not recant her trial
testimony in her recent letter and restated that B.W. had
molested her.
M.W.’s statement that B.W. did not rape her was
at best useful for impeachment, and she was not the sole
material witness.
Dr. Sowell provided unrefuted testimony of
the existence of vaginal trauma, which M.W. identified was
25
See KRS 510.040 and KRS 510.010(8) (stating “sexual intercourse occurs upon
any penetration, however slight. . .”).
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caused by B.W., that the doctor opined was consistent with
penile penetration.
The jury obviously relied heavily on Dr.
Sowell’s testimony.
Viewing the record as a whole, we conclude
that B.W. has not shown that the newly-discovered evidence was
so decisive or so forceful that it would, with reasonable
certainty, have changed the original verdict or probably would
change the result if a new trial were granted.
B.W. has failed
in his attempt to gain a new trial to satisfy his burden of
overcoming the policy favoring finality of judgments.26
As a
result, although for different reasons, we hold that the trial
court did not err in denying B.W.’s motion to vacate and motion
for a new trial.
For the foregoing reasons, the order of the Warren
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
B.W., Pro Se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
26
B.W. also cites RCr 10.26, the palpable or substantial error rule, as a
part of his motion for a new trial. It would appear that the rule may not be
applicable because B.W.’s claim concerns newly-discovered evidence not
available at the time of trial. He has not identified any alleged error that
occurred during the trial but merely claims the original verdict is
unreliable given the new evidence. Nevertheless, for the same reasons
discussed with reference to RCr 10.06, B.W. has not shown manifest injustice
affecting his substantial rights as required by RCr 10.26.
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