TURLEY (JAMES RICHARD) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES RICHARD TURLEY
APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 04-CR-01509
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
CAPERTON, JUDGE: James R. Turley (Turley) appeals the judgment of the
Fayette Circuit Court, the Honorable Pamela Goodwine, presiding, denying his CR
60.02 Motion for Relief From Final Judgment. Turley also appeals the denial of
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
his Motion for Reconsideration of the denial of the CR 60.02 motion. Turley was
convicted of two counts of Sodomy First Degree, and one count of Sexual Abuse
First Degree. After careful review of the record, we affirm on all counts.
In the Fall of 2004, Turley resided in Fayette County with his wife
LeeAnn, his natural daughter, R.T. (then age eleven), his wife’s niece, Serena Hill
(then age fourteen), and an infant daughter. During the course of the weekend
prior to R.T.’s birthday, which was on September 28, 2004, R.T. had a friend,
Vanity Cooper, stay with her on Friday night. R.T. reported that on that evening,
while she was asleep in her room, her father entered the room and sat on her bed.
R.T. awakened, but did not act as if she were awake. R.T. testified that as Turley
sat on the bed, he touched her vaginal area with his hand and mouth.
Cooper confirmed that she was staying with R.T. at her house on the
Friday night before her birthday. Cooper testified that on that evening, R.T. told
her that Turley had been touching her “for awhile.” As Cooper was staying in the
same room as R.T., she remained awake throughout the night. Cooper testified
that at one point in the evening, she heard Turley come into the bedroom, and at
that time, he asked her if she wanted him to wash some of her clothes.
In addition to the events which allegedly took place on that particular
weekend, Hill also testified that she was uncomfortable around Turley because of
his actions. Specifically, Hill testified that on one occasion, she was asleep on the
couch and awoke because she believed she felt someone playing with the zipper of
her jeans. Hill testified that upon awakening, she jumped up and noticed Turley
standing over her.
Further, both R.T. and Hill testified that on at least one occasion, they
had been using Turley’s computer, looking for music, when they encountered a
video of young girls and an older man involved in sexual activity.
After staying the night with R.T. in late September 2004, Cooper told
her grandmother what R.T. had said. School counselors were notified the
following Monday, and shortly thereafter, the police and social service agencies
became involved. After the school counselor was advised of R.T.’s report, the
police commenced an investigation on or about October 4, 2004. At that time,
Detective David Hestor (Hestor), of the Lexington Metro Police Department
Crimes Against Children Unit responded to the counselor’s request.
After interviewing Hill and R.T., Hestor obtained a search warrant for
Turley’s home and computers. There is some dispute as to precisely what occurred
immediately prior to the execution of the search warrant. While the
Commonwealth asserts that Turley was given his Miranda rights, Turley asserts
that he was simply advised that he did not have to talk to the officers. Regardless,
during the execution of that warrant, Turley stated that he might have looked at
some questionable videos on the internet, but “only out of curiosity.” In addition,
while the search was in progress, Turley showed the officers a small amount of
marijuana that was in the home, which Turley claims was his son’s.
Turley was then taken to the police station, and was again advised of
his rights. Turley now asserts that the warnings, both at his home and at the police
station, were less than adequate. A recorded statement was then taken. During the
course of the interview, Turley admitted having sexual contact with his daughter
both by touching her and by placing his mouth on her vagina. Turley further
admitted that such acts had taken place twice. Turley claims that these confessions
were coerced, and alleges that he was told he would receive a stiffer punishment if
he did not cooperate by confessing.
Trial in this matter was held on November 15 and 16, 2005.
Testimony was given by R.T, Hill, and Cooper. R.T.’s examining physician also
testified, as well as a computer forensics police officer, and Turley’s wife. Turley
also testified, at which time he again expressed his claim that the sexual contact
occurred as a result of his concerns that his daughter was sexually active. At the
conclusion of trial, Turley was convicted of two counts of sodomy in the first
degree, and one count of sexual abuse in the first degree, the sentences to run
concurrently for a total of twenty years of incarceration.
Thereafter, a direct appeal was filed with the Kentucky Supreme
Court on Turley’s behalf as a matter of right. In that appeal, Turley raised issues
concerning the admissibility of a letter written to him by R.T., as well as with
respect to the aforementioned incident occurring between Turley and Hill, which
he asserted was not admissible under KRE 404(b). Turley’s conviction was
ultimately affirmed in an unpublished opinion rendered January 25, 2007.
In affirming that conviction, the Supreme Court held that the
evidence contradicted Turley’s contention that he had touched his daughter as an
examination to attest her virginity and not for sexual gratification. Thus, the Court
found the evidence, particularly the encounter between Turley and Hill, to be
relevant and probative to the issue of Turley’s knowledge, motive, intent, or
On July 21, 2006, Turley filed a pro se motion for relief from final
judgment pursuant to CR 60.02(e) and (f). In that motion, Turley raised essentially
the same claims as he does in the instant appeal, namely: (1) that the
Commonwealth improperly used the statement that he made to the police, (2) that
R.T. was coerced by her mother to make a false claim, (3) that the jury was racially
biased, (4) that Turley was entitled to an instruction on attempted incest, (5) that
the trial judge should have recused herself because she was alleged to be a victim
of sexual abuse, (6) that R.T. committed perjury and grounds for a new trial.
The Commonwealth filed a response to Turley’s motion, asserting that
the arguments raised in the motion were legal trial issues which should have been
raised on direct appeal. After reviewing the matter, the trial court entered an order
dated April 9, 2007 denying Turley’s request for CR 60.02 relief. This appeal
followed. In the instant appeal, Turley asserts that the trial court committed error
in denying his request for CR 60.02 relief on the grounds listed above. After
reviewing this matter thoroughly, we agree with the trial court that these issues
could have, and should have, been raised in the context of a direct appeal, and will
address the issues raised by Turley and the Court’s response respectively.
As noted, in addition to appealing the denial of his CR 60.02 motion,
Turley also appeals the denial of his May 21, 2007, Motion for Reconsideration.
Turley filed that motion on the basis of an affidavit submitted by R.T., claiming to
no longer know what had happened. That motion was denied by the trial court on
May 24, 2007. In so ruling, the trial court again noted that Turley was not entitled
to CR 60.02 relief in large part because of his own very incriminating statement to
the police. For the reasons set forth below, we affirm the trial court in this regard.
The trial court’s exercise of discretion will not be disturbed on appeal
except in cases of abuse. Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957), and
Richardson v. Bruner, 327 S.W.2d 572 (Ky. 1959). Absent a showing of abuse of
discretion, the trial court’s decision in this matter should stand. Bethlehem
Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky. 1994),
Wittington v. Cunnagin, 925 S.W.2d 455 (Ky. 1996), Brown v. Commonwealth,
932 S.W.2d 359, 362 (Ky. 1996).
At the outset, we note that Kentucky courts have made clear that CR
60.02 is not a separate avenue of appeal to be pursued in addition to other
remedies. It is available to raise issues which cannot be raised in other
proceedings, not to relitigate issues which could reasonably have been presented
by direct appeal or CR 11.42 proceedings. McQueen v. Commonwealth, 948
S.W.2d 415, 426 (Ky. 1997).
It is in fact an extraordinary remedy only to be used when a
substantial miscarriage of justice will result from the effect of the final judgment.
Wilson v. Commonwealth, 403 S.W.2d 710, 712 (Ky. 1966). The burden of proof
in that regard lies squarely on the movant. McQueen at 426. Although the rule
does permit a direct attack by motion where the judgment is voidable – as
distinguished from a void judgment – this direct attack is limited to the specific
subsection set out in said rule. Howard v. Commonwealth, 364 S.W.2d 809 (Ky.
1963). Indeed, even claims with a constitutional basis have been denied when such
claims could have been raised in an earlier proceeding. Copeland v.
Commonwealth, 415 S.W.2d 842 (Ky. 1967).
With respect to Turley’s first assertion that the court should have
suppressed the statement he made to the police, Turley asserts that he was not
properly Mirandized, and that his confession was both coerced and made under
duress. Accordingly, Turley argues that the statements which he made to the
police should have been suppressed. However, as the Court stated in its Order, this
issue had been raised prior to trial, and an evidentiary hearing was held on March
10, 2005. During the course of the evidentiary hearing on suppression, Turley
waived his 5th Amendment rights and testified, where he again admitted to
inappropriately touching his daughter in what he asserted was an attempt to
confirm her virginity. At the conclusion of the hearing, Turley’s suppression
motion was overruled. Accordingly, the court reasoned that because the ruling was
not taken forward on direct appeal, Turley could not raise the suppression issue in
the CR 60.02 context.
We have reviewed the record and applicable law, and concur with the
trial court that any claimed constitutional invalidity in the use of Turley’s
statement should have been decided before trial. Accordingly, any asserted errors
should have been raised on direct appeal. Commonwealth v. Gadd, 665 S.W.2d
915 (Ky. 1984). As Turley did not do so then, he cannot do so now in the context
of a CR 60.02 motion. As such, we decline to reverse the trial court on this
Secondly, Turley asserts, as he did before the trial court, that his
daughter’s testimony was coerced by her biological mother. The trial court held
that the allegedly coerced nature of R.T.’s testimony was not preserved by
objection at trial, nor addressed on direct appeal, and so was improperly raised in
the motion. There were no objections made to the testimony of R.T. at trial. The
trial court correctly noted that the weight to be given testimony is solely the
province of the jury.
Indeed, case law is clear that only the jury has the responsibility and
duty to weigh the probative value of the evidence and to choose which testimony it
finds most convincing. Commonwealth, Dep't of Highways v. Dehart, 465 S.W.2d
720, 722 (Ky.1971). The jury is not bound to accept the testimony of any witness
as true. Dunn v. Commonwealth, 151 S.W.2d 763, 764-765 (Ky.1941). Thus, the
jury may believe all of a witness's testimony, part of a witness's testimony or none
of it. Gillispie v. Commonwealth, 279 S.W. 671, 672 (Ky.1926). We will reverse
only if the jury verdict was so flagrantly against the evidence that it indicates that
the jury reached the verdict as a result of passion or prejudice. Bierman v.
Klapheke, 967 S.W.2d 16, 19 (Ky. 1998). We do not find that to be the case in this
instance, and therefore, affirm.
If Turley was dissatisfied with this testimony and believed it to be
objectionable, he should have preserved his objection at trial, and raised the issue
on direct appeal. He did not do so, nor did he file an 11.42 motion asserting
ineffective assistance of counsel. While a claim of perjured testimony can be a
reason of an extraordinary nature justifying relief under 60.02(f), Turley has the
burden to show that such information was in fact perjured, and the perjury was not
discoverable at an earlier time. We find no support in the record to indicate that
Turley has met this burden. Accordingly, we affirm the trial court on this issue.
Turley also alleges that the jury was racially biased. Clearly, any
objection Turley had to the composition of the jury or the venire should have been
made at the time of trial in order to properly preserve the issue for appellate
review. Turley did not do so. Again, we believe direct appeal to have been the
method by which Turley should have pursued this issue, as opposed to now raising
it in a CR 60.02 motion.
Turley also asserts that the court should have instructed the jury on the
offense of incest. Stated simply, this is a legal issue. Case law is clear that alleged
errors of this nature should be raised on direct appeal. Howard v. Commonwealth,
364 S.W.2d 809, 810 (Ky. 1963). As Turley did not do so, we decline to address
this issue in the context of a CR 60.02 motion.
Additionally, Turley asserts that the trial court judge was biased
because she had “previously been sexually abused as a child.” The court deemed
this allegation to be “ludicrous,” and without any basis in fact. Further, the court
found that the matter was not raised by contemporaneous objection, nor properly
preserved, nor addressed on direct appeal. Accordingly, the trial court found that
this issue did not serve as a basis for claiming extraordinary relief under a CR
60.02 motion. We agree.
Finally, Turley seems to generally assert that R.T. was “lying,” and
asserts that the lying was tolerated and overlooked by the judges and attorneys in
the matter. Again, this is an issue on which Turley has the burden to show that
such information was in fact perjured, and was not discoverable at an earlier time.
We find no support in the record to indicate that Turley has met this burden.
Further, we find no indication in the record that this issue was either properly
preserved, or raised on direct appeal. Accordingly, we decline to reverse the trial
court’s decision on this issue.
With regard to the trial court’s denial of Turley’s motion for
reconsideration, we note that Turley requests reconsideration of his CR 60.02
motion on the basis of what he asserts was the perjured testimony of R.T. Again,
we note that while perjured testimony can qualify as a reason of extraordinary
nature justifying relief pursuant to CR 60.02(f), the burden remains on the
defendant to show both that the information was not discoverable at an earlier
point in time, and that the testimony is in fact perjured.
In the instant case, having reviewed the affidavit submitted by R.T.,
we note that R.T. does not expressly recant her trial testimony. A review of the
affidavit indicates that in fact, R.T. only indicates that she is “not sure if my father,
James Turley, is guilty or not,” and that “I’m just not sure of what really
Taken alone, this simply does not contradict R.T.’s testimony at trial,
and does not rise to the level of perjury. The crime of false swearing or perjury
involves a willful, corrupt misstatement of a fact, which may be either that the
witness willfully testifies to a fact as true which he knows to be untrue, or so
testifies to a fact as being within his knowledge when he knows that it was not. It
is the corrupt purpose of the witness in every instance that is the basis of perjury
and an essential element of the crime. Innocent mistakes in evidence are not
criminal, and constitute neither perjury nor false swearing. Johnson v
Featherstone, 133 S.W. 753 (1911). Moreover, to prove perjury it is necessary to
prove that the witness knew the falsity of the statement at the time it was made.
Booth v. Commonwealth, 419 S.W.2d 739 (Ky. 1967). In the instant case, the
affidavit of R.T., even if viewed in the light most favorable to Turley, at best can
be construed to establish a mis-recollection. Certainly, this does not rise to the
level of perjury, and does not constitute a basis for relief pursuant to CR 60.02.
The issue of R.T.’s testimony aside, we find it significant that Turley
himself made a statement to police in which he admitted to touching R.T.’s vagina
on two occasions, both with his hand and his mouth. Further, he admitted during
his actual trial that he touched R.T.’s vagina with his hand. Clearly, it was the trial
court’s finding that Turley’s own confessions, when combined with the testimony
and ambiguous affidavit of R.T., do not justify a finding of perjured testimony of
such a nature as to qualify Turley for the extraordinary relief of CR 60.02. Finding
no abuse of discretion in this determination, we affirm.
After a thorough review, we do not believe that Turley has met his
burden of proof in establishing that any of his claims justify relief of an
extraordinary nature as required by CR 60.02(e) or (f), nor that the trial court
abused its discretion in denying his motion, or in denying his subsequent motion
for reconsideration. Accordingly, we affirm the decision of the trial court, the
Honorable Pamela Goodwine, Judge, presiding.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
James Richard Turley, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
George G. Seelig
Assistant Attorney General
Assistant Attorney General