VINCENT (BRYAN P.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BRYAN P. VINCENT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 07-CR-00021
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; BUCKINGHAM,1 SENIOR
BUCKINGHAM, SENIOR JUDGE: Bryan P. Vincent appeals from a judgment of
the Muhlenburg Circuit Court sentencing him to 12 years in prison and also from
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
the court’s denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion.
Vincent entered conditional pleas of guilty in the Muhlenburg Circuit
Court to manufacturing methamphetamine, possession of anhydrous ammonia in
an unapproved container, possession of drug paraphernalia, and possession of
marijuana. His guilty pleas followed an evidentiary hearing and the court’s denial
of his motion to suppress evidence. On April 3, 2007, the court entered a judgment
sentencing Vincent to 12 years in prison. Vincent appeals first from that judgment.
On August 20, 2007, Officer Matt Lear, the investigating officer in the
case, was charged and arrested for the criminal offenses of theft of a controlled
substance under $300, tampering with physical evidence, and second-degree
possession of a controlled substance. Those charges were unrelated to Vincent’s
case. On September 14, 2007, Vincent filed a CR 60.02 motion to vacate his
conviction and sentence based on newly discovered evidence. He also requested
an evidentiary hearing on his motion. In response the Commonwealth filed an
affidavit from the other investigating officer, Officer Brent Roberson. The court
denied the motion without an evidentiary hearing, and this second appeal by
Vincent followed. The two appeals have been consolidated for our consideration.
The incident that led to the charges against Vincent occurred on the
night of February 11, 2007. Officer Lear testified at the suppression hearing that
he was driving down the highway when he smelled the odor of ether. He stopped
to investigate the source of the odor and went to the residence of a man named
Vaught. Officer Lear and Vaught walked around Vaught’s property and
approached a wooded area in the direction of Vincent’s house trailer as the odor
became stronger. After Officer Lear observed lights come on and two people
come out of the trailer, he obtained assistance from Officer Roberson.
The officers went to the front of the Vincent residence where they
encountered Vincent who said he thought he had heard prowlers. The officers
smelled a strong odor of ether that seemed to be coming from a building behind the
trailer. Officer Lear went to the building and observed a propane tank. Knowing
that such tanks are commonly used in the manufacturing process of
methamphetamine, the officer requested Vincent to give him consent to search the
trailer and outbuilding. Vincent denied permission to search, and the officer then
obtained a search warrant. A search of the premises led to incriminating evidence
being seized and to Vincent’s conviction on various charges.
In the appeal of the judgment convicting and sentencing Vincent,
Vincent argues that the officers violated his rights by unlawfully entering the
curtilage area to his residence before seeking the search warrant. He maintains that
the area behind his trailer was a protected area that the officers had no right to
enter without his permission or a search warrant.
In response to Vincent’s argument, the Commonwealth first responds
that this argument is different from the argument raised by Vincent before the trial
court. The Commonwealth correctly notes that Vincent’s argument before the trial
court concerned whether Officer Lear had smelled the ether from the highway
before entering onto Vincent’s property. Citing Kennedy v. Commonwealth, 544
S.W.2d 219 (Ky. 1976), the Commonwealth asserts that this court should not
review Vincent’s argument because Vincent is prohibited from raising a new issue
before the appellate court.
We agree. As the court held in the Kennedy case, one may not “feed
one can of worms to the trial judge and another to the appellate court.” Id. at 222.
As Vincent did not raise the curtilage issue before the trial court, we decline to
consider it on appeal.
In his appeal of the trial court’s denial of his CR 60.02 motion,
Vincent argues that the court erroneously denied an evidentiary hearing that would
have allowed him “to explore the length and depth of Officer Lear’s drug usage.”
He also states that by denying an evidentiary hearing, the court erroneously
deprived him of the opportunity to cross-examine Officer Roberson, who had
provided an affidavit stating that he had also smelled the odor of ether. Vincent
claims that this denied him the right to confront witnesses against him.
Vincent has not cited any legal authority for the proposition that
Officer Lear’s later arrest on charges unrelated to Vincent’s case could support the
granting of CR 60.02 relief on the ground of newly discovered evidence. Further,
our own review has not revealed any authority to support Vincent’s argument.
In Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997), the
Kentucky Supreme Court held as follows:
Granting a new trial is within the discretion of the trial
court, and such is disfavored when the grounds are newly
discovered evidence which is merely cumulative or
impeaching in nature. Epperson v. Commonwealth, Ky.,
809 S.W.2d 835 (1990). Newly discovered evidence
“must be of such decisive value or force that it would
with reasonable certainty, change the verdict or that it
would probably change the result if a new trial should be
granted.” Coots v. Commonwealth, Ky., 418 S.W.2d
752, 754 (1967).
Id. at 576.
As for Vincent’s argument that the court’s denial of an evidentiary
hearing deprived him of his right to cross-examine and confront Officer Roberson
concerning the incident, we note that Vincent could have subpoenaed the officer
for the suppression hearing and questioned him at that time.
“A movant is not entitled to a hearing on a CR 60.02 motion unless he
affirmatively alleges facts which, if true, justify vacating the judgment and further
allege[s] special circumstances that justify CR 60.02 relief.” White v.
Commonwealth, 32 S.W.2d 83, 86 (Ky. App. 2000). We conclude that the trial
court properly denied Vincent’s CR 60.02 motion on its face without an
The judgment and the order of the Muhlenburg Circuit Court are
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Attorney General of Kentucky
Assistant Attorney General