GLOVER (JOHN T.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: JANUARY 23, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHN T. GLOVER
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 98-CR-00126
COMMONWEALTH OF KENTUCKY
AFFIRMING IN PART, REVERSING IN PART,
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: John T. Glover appeals from an order of the Whitley Circuit
Court denying motions to set aside his conviction pursuant to Kentucky Rules of
Civil Procedure (CR) 60.02 and Kentucky Rules of Criminal Procedure (RCr)
11.42. He argues that the trial judge should have recused because he had pre1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
judged the case, and that the prosecutor should have been disqualified because he
was called as a witness. We find that the trial judge was not required to recuse
based only on his prior rulings in the case. However, we conclude that the
prosecutor should have been disqualified from participating at the evidentiary
hearing once it became apparent that he was a necessary witness. Therefore, we
must set aside the trial court’s denial of Glover’s CR 60.02 motion and remand for
a new evidentiary hearing. On the other hand, we find that the prosecutor’s
participation did not affect the proceedings regarding Glover’s RCr 11.42 motion.
We further find that the tactical decisions by Glover’s trial counsel did not deprive
him of effective assistance of counsel. Hence, we affirm the trial court’s denial of
Glover’s RCr 11.42 motion.
The facts of this matter have been set out in detail in two prior
appeals. For purposes of this appeal, the following facts are relevant. During the
early morning hours of May 27, 1998, Alice Sumner was found dead in her
burning home. Subsequent investigation showed that she had been stabbed thirtyfour times. The police investigation focused on four people: Glover, Clifford
Johnny Taylor, Kenny Frye and Steven Liszka. The police also questioned
Glover’s mother, Gail Loy. In their initial interviews with police, Glover and
Taylor stated that they believed Frye and Liszka had been involved. Frye and
Liszka implicated Glover and Taylor. Based on this information, the police
arrested Glover and Taylor.
Since Glover was a minor at the time of the crime, the
Commonwealth moved the Whitley District Court to transfer him to circuit court
for trial as an adult, pursuant to KRS 635.010. After a hearing, the district court
granted the motion. Thereafter, a Whitley County grand jury indicted Glover for
murder, first-degree robbery, and first-degree arson. Taylor was also charged in a
Prior to trial, Taylor entered into a plea agreement with the
Commonwealth in which he agreed to testify against Glover in exchange for a
sentence of life without parole for twenty-five years. Taylor also exonerated Frye
and Liszka, and testified at trial that he and Glover were the only ones who were
involved. On May 25-30, 2000, the charges against Glover were tried before a
jury. The jury found Glover guilty of the charged offenses and sentenced him to
life without parole for twenty-five years. The Kentucky Supreme Court affirmed
the conviction in an unpublished opinion. Glover v. Commonwealth, 2000-SC0664-MR (Ky. Aug. 22, 2002).
On February 12, 2004, Glover filed a motion to alter, amend or vacate
his conviction pursuant to RCr 11.42 and for a new trial pursuant to CR 60.02. In
his RCr 11.42 motion, Glover argued that he received ineffective assistance from
his trial counsel. And in his CR 60.02 motion, Glover alleged that he was entitled
to a new trial due to the perjured testimony by Taylor. In support of the CR 60.02
motion, Taylor submitted an affidavit recanting his trial testimony. Taylor stated
that he committed the crimes on his own and that Glover was not involved. He
further stated that he testified against Glover after the Commonwealth Attorney
threatened to seek the death penalty against him.
After considering the Commonwealth’s response, the trial court
denied both motions without a hearing. With regard to the CR 60.02 motion, the
trial court stated in its order:
This Court had the opportunity to observe Mr.
Taylor and to talk to him during his various appearances
before him [sic].
I am convinced without question that the
statements he gave to me during his guilty plea, his
testimony at the trial of John Glover, and his testimony
about the non involvement of Liska [sic], Frye and Gail
Loy were true. I do not believe the story that appears
four years later in his affidavit is true.
If [Taylor] desired to absolve John Glover, he
would have done so when he absolved Lizka [sic], Frye,
and John Glover’s mother Gail Loy.
Based on these findings, the trial court found that Glover was not
entitled to a new trial. The trial court separately rejected Glover’s allegations of
ineffective assistance of counsel, finding that counsel’s decisions not to call certain
witnesses were reasonable trial strategy.
On appeal, this Court affirmed on both issues. Glover v.
Commonwealth, 2004-CA-000848-MR (Ky. App. July 22, 2005). However, the
Kentucky Supreme Court accepted discretionary review, reversed this Court, and
remanded the case to the trial court with directions to conduct an evidentiary
hearing in light of Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), and
Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2001). Glover v. Commonwealth,
2005-SC-000670-DG (Ky. Jan. 11, 2006).
On remand, Glover filed a motion to recuse the trial judge, Hon. Paul
E. Braden, arguing that the prior ruling demonstrated that he had pre-judged the
case. Glover also moved to disqualify the Commonwealth Attorney, Allan
Trimble, noting that Trimble was likely to be called as a witness at the hearing.
The trial court denied both motions on March 13, 2006.
The matter then proceeded to an evidentiary hearing on December 7,
2006. At the hearing, Taylor reiterated the statements in his affidavit. He said that
Glover’s only involvement was to help him hide the stolen goods after the fact.
Taylor also stated that Trimble and Kentucky State Police Detective Colin Harrell
threatened that they would seek the death penalty if he did not give up Glover.
Taylor also stated that Trimble and Det. Harrell made these threats while his trial
counsel was not present. Taylor also asserted that Trimble and Det. Harrell
coached him on his statement against Glover. However, Taylor was unable to
remember the exact day this occurred, and he admitted that he never informed his
trial counsel about this contact. Trimble strongly denied that any such
conversation had occurred, as did Det. Harrell. Glover also presented evidence on
his claims of ineffective assistance of counsel, arguing that his trial counsel failed
to present significant exculpatory and mitigating evidence.
Following the hearing, the trial court issued an opinion and order
again denying the motions. With regard to the CR 60.02 claim, the trial court
specifically rejected Taylor’s claims of prosecutorial misconduct. The court also
found that Taylor’s recent recantation of his trial testimony was not credible. On
the RCr 11.42 claims, the court again found that the decision by Glover’s trial
counsel not to call certain witnesses amounted to reasonable trial strategy under the
circumstances. Glover now appeals to this Court.
Glover first argues that the trial judge should have recused himself
from hearing the case upon remand because he was unable to fairly and impartially
consider the evidence. Glover does not allege that Judge Braden had any personal
interest in the parties or subject matter of this action. Instead, he asserts that Judge
Braden’s prior ruling demonstrated a firm assessment of Taylor’s credibility, and
that Judge Braden was unable to fairly and impartially reconsider that opinion at
the hearing on remand. Glover also contends that Judge Braden’s comments at and
conduct of the hearing further demonstrate that he had pre-judged the issue. Under
these circumstances, Glover argues that Judge Braden should have recused himself
from the hearing after the remand from the Supreme Court.
KRS 26A.015(2) requires recusal when a judge has “personal bias or
prejudice concerning a party . . .” or “has knowledge of any other circumstances in
which his impartiality might reasonably be questioned.” KRS 26A.015(2)(a) and
(e); see SCR 4.300, Canon 3C(1). “The burden of proof required for recusal of a
trial judge is an onerous one.” Stopher v. Commonwealth, 57 S.W.3d 787, 794
(Ky. 2001). “There must be a showing of facts ‘of a character calculated seriously
to impair the judge’s impartiality and sway his judgment.’” Id., quoting Foster v.
Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert. denied, 368 U.S. 993, 82
S. Ct. 613, 7 L. Ed. 2d 530 (1962); see also Johnson v. Ducobu, 258 S.W.2d 509
(Ky. 1953). “The mere belief that the judge will not afford a fair and impartial
trial is not sufficient grounds for recusal.” Stopher, 57 S.W.3d at 794-95, citing
Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995). Likewise, the trial court’s
adverse rulings, even if erroneous, do not provide a basis for finding bias. Bissell
v. Baumgardner, 236 S.W.3d 24, 29 (Ky. App. 2007).
Unlike in Sommers v. Commonwealth, 843 S.W.2d 879 (Ky. 1992),
there is no allegation that Judge Braden acquired any knowledge outside of the
record in this case. Thus, he was not required to recuse himself based on the
knowledge which he obtained in the course of his earlier participation in the same
case. Marlowe v. Commonwealth, 709 S.W.2d 424, 428 (Ky. 1986). See also
Liteky v. United States, 510 U.S. 540, 550-51, 114 S. Ct. 1147, 1155, 127 L. Ed. 2d
474 (1994). A predisposition acquired by a judge during the course of the
proceedings will only constitute impermissible bias when “it is so extreme as to
display clear inability to render fair judgment.” Liteky, 510 U.S. at 551, 114 S. Ct.
at 1155. See also United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000), and
C. K. MacWilliam, “Disqualification of Judge for Having Decided Different Case
Against Litigant-- State Cases,” 85 A.L.R. 5th 547 (2001 & 2008 supp.).
We have some concerns that certain aspects of the trial judge’s
conduct of this case could be construed as having pre-judged this case. In his 2004
order denying the motion, the trial judge expressed a strong opinion as to the
credibility of Taylor’s recantation. Given the unconditional nature of that finding,
Glover is understandably apprehensive about remanding the issue to the same
judge. Furthermore, we question the propriety of the trial judge’s comments about
Glover’s motion to disqualify the prosecutor and the qualifications of Taylor’s trial
counsel. In both cases, these comments could indicate a bias toward attorneys who
regularly practice before that judge.
Nevertheless, we must conclude that Glover has failed to meet the
high burden of proving that Judge Braden demonstrated an inability to impartially
assess the credibility of the evidence presented at the hearing upon remand. On
remand, the court conducted a full evidentiary hearing as directed by the Supreme
Court. Although the trial judge clearly remained skeptical of Taylor’s new
testimony, we cannot say that he demonstrated a clear inability to fairly consider it.
Furthermore, we find that the court’s conduct of the hearing did not
demonstrate any inappropriate bias by Judge Braden. Glover focuses on the trial
court’s decision to remove Taylor from the courtroom. However, Taylor’s attitude
and comments to the court were disrespectful and disruptive. In fact, Taylor later
apologized to the court for his behavior. The court then allowed Taylor to testify
in full and without significant interruption.
In addition, the court’s other comments and rulings were entirely
appropriate under the circumstances. Barbara Bingham, an investigator for the
Department of Public Advocacy, attempted to testify about her interviews with
Taylor after he submitted the affidavit recanting his trial testimony. The court cut
off this testimony when it became apparent that she was attempting to vouch for
Taylor’s credibility. Finally, the court’s comments about the competence of
Taylor’s trial counsel do appear to have been based, at least in part, with the trial
judge’s professional familiarity with counsel. But while such considerations may
ultimately reflect on the sufficiency of the evidence supporting the court’s
decision, we cannot find that it demonstrates an impermissible bias by the trial
We are more troubled by the court’s rulings regarding the motion to
disqualify Trimble from serving as the prosecutor in this matter. Prior to the
hearing, Glover moved to disqualify Trimble because he was likely to be a material
witness based upon Taylor’s claims of prosecutorial misconduct. The trial court
denied the motion, stating that it would not permit the defense to subpoena the
prosecutor as a witness, and further characterized the motion as a defense tactic
We do not approve of the trial court’s suggestion that Glover’s motion
to disqualify was based on improper motivations. KRS 15.733(2)(d) requires a
prosecuting attorney to disqualify himself in any proceeding in which “the
prosecuting attorney’s knowledge [is] likely to be a material witness in the
proceeding[.]” Taylor’s affidavit alleged that Trimble had interviewed him outside
of the presence of counsel in an effort to obtain testimony against Glover. Based
on this allegation, Glover’s counsel properly subpoenaed Trimble and moved to
disqualify him from acting as prosecutor.
On the other hand, we recognize that it is generally inappropriate for
counsel to testify as a witness. See Zurich Insurance Co. v. Knotts, 52 S.W.3d 555,
557-58 (Ky. 2001). See also SCR 3.130 (Ky. Rules of Professional Conduct), Rule
3.7. Thus, the trial court attempted to avoid such a situation, and the necessary
disqualification of the prosecutor, if at all possible. The court denied the pre-trial
motion to disqualify Trimble because Taylor asserted that Det. Harrell had also
been present when the allegedly improper conduct took place, and therefore
Trimble’s testimony was not necessary.
Under these circumstances, the trial court’s initial denial was probably
not an abuse of discretion. But at the hearing, Taylor also testified that Trimble
coached him on his statement implicating Glover. Consequently, the court found
that Trimble was a necessary witness. Nevertheless, Trimble made a number of
unsworn statements denying Taylor’s allegations. These statements were clearly
testimonial in nature. Furthermore, the court allowed Trimble to proceed with the
cross-examination of Taylor. Glover’s counsel then called Trimble as a witness to
address Taylor’s allegations. Following Trimble’s examination, an Assistant
Commonwealth Attorney took over representation for the Commonwealth and
Trimble left the courtroom.
In hindsight, this case would have been better served if the trial court
had granted the pre-trial motion to disqualify the prosecutor. This entire situation
could have been easily avoided by allowing another prosecutor to represent the
Commonwealth at the evidentiary hearing. At the very least, we believe that
Trimble should have disqualified himself after the trial court found that he was a
necessary witness. As a result, the court should have required Trimble to step
down as counsel for the Commonwealth and taken the stand before he denied
Taylor’s allegations of misconduct. Likewise, the court should not have permitted
him to conduct the cross-examination of Taylor.
The Commonwealth asserts that any error in this regard was harmless
because Glover fails to show that he was actually prejudiced by the trial court’s
failure to disqualify the prosecutor. KRS 15.733(3). The Commonwealth points
out that Trimble’s participation took place during a post-conviction evidentiary
hearing in which a judge was the trier of fact and at which Glover had the burden
of proof at the hearing. In Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002),
the Kentucky Supreme Court held that the defendant was not prejudiced by the
Commonwealth Attorney’s participation as both a prosecutor and a witness in a
similar proceeding. Id. at 420.
However, Bowling involved allegations that the prosecutor failed to
disclose exculpatory information to the defense prior to trial, in violation of Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Earlier in the
opinion, the Supreme Court found that the defendant failed to prove that the
Commonwealth breached a duty to discover and disclose plea agreements
involving a witness. Bowling, 80 S.W.3d at 409-11. In contrast, Taylor alleged
that Trimble and Det. Harrell questioned him outside of the presence of counsel,
and that they improperly pressured him to testify against Glover. Such allegations,
if substantiated, are of a much more serious nature than those presented in
Bowling. Moreover, unlike in Bowling, the trial court’s ruling hinged upon its
finding that Trimble was more credible than Taylor.
While we are hesitant to second-guess the trial court’s conduct of this
proceeding, we must return to our previously-stated concerns about some of the
trial judge’s statements during the hearings. We do not suggest that the trial judge
showed any actual bias or favoritism for the prosecutor or against Glover. But
given the weight which the trial court gave to Trimble’s testimony, the appearance
of bias in this case is too strong to be ignored. These appearances could have been
easily dispelled by disqualification or recusal of the prosecutor. The prejudice to
the Commonwealth would have been minimal, and the trial court’s ultimate
conclusion would rest on a firmer foundation. Consequently, we find that Glover
has shown that he was prejudiced by Trimble’s participation as both prosecutor
and witness in this case.
Therefore, this matter must be remanded for another evidentiary
hearing. As a result, we will not address the merits of Glover’s appeal relating to
his CR 60.02 motion. However, Trimble’s disqualification does not affect the trial
court’s ruling on Glover’s RCr 11.42 motion. Taylor’s allegations against Trimble
do not relate to any of the issues raised in that motion. Furthermore, Trimble did
not participate in the portion of the hearing relating to the RCr 11.42 claims.
Therefore, those matters are properly presented on appeal.
Glover asserts that he was entitled to relief under RCr 11.42 because
he received ineffective assistance from his trial counsel. In order to prevail on an
ineffective assistance of counsel claim, a defendant must show that his counsel’s
performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478
U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724 (1986). The standard for assessing
counsel’s performance is whether the alleged acts or omissions were outside the
wide range of prevailing professional norms based on an objective standard of
reasonableness. Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. A court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. The defendant bears the burden of
identifying specific acts or omissions alleged to constitute deficient performance.
Id. at 690, 104 S. Ct. at 2066.
In measuring prejudice, the relevant inquiry is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068.
The burden is on the movant to overcome a strong presumption that counsel’s
performance was constitutionally sufficient. Id. at 689, 104 S. Ct. at 2065;
Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). When an evidentiary
hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to
make findings on the material issues of fact, which we review under a clearly
erroneous standard. CR 52.01; Haight v. Commonwealth, 41 S.W.3d 436, 442
Glover argues that his trial counsel provided ineffective assistance by
failing to call two specific witnesses. First, he contends that counsel should have
called Donald McFadden to support his alibi defense. At the time of the murder,
Glover was on home incarceration for a juvenile offense. He was wearing an ankle
bracelet with an electronic monitor. McFadden, a representative of the Southern
Telephone Company, would have testified that the equipment was operating at the
time of the murder and did not send a signal that Glover was out of range.
McFadden would also have testified that Glover was still wearing the ankle
bracelet the morning after the murder. However, he also indicated that the bracelet
had been damaged. In addition, McFadden stated that he conducted additional
testing on the monitoring system, which showed that it would not report an
individual out of range for seventeen minutes.
Glover’s trial counsel testified that he interviewed McFadden and
subpoenaed him for trial. But, he ultimately declined to call McFadden because
his testimony did not definitely exonerate Glover and because it would have
opened the door to introduction of Glover’s juvenile offenses. We agree with the
trial court that counsel’s decision not to call McFadden was a reasonable trial
Glover also contends that his trial counsel failed to present the best
mitigating evidence available. Prior to trial, two licensed psychologists, Dr. John
P. McGregor and Dr. David Finke, conducted evaluations of Glover. However,
Glover’s trial counsel only called Dr. Finke to testify at trial. Glover maintains
that Dr. McGregor’s report and testimony would have been more favorable than
Dr. Finke’s. He further argues that Dr. Finke’s diagnosis of “intermittent explosive
disorder” was more helpful to the Commonwealth than to his defense.
But Dr. Finke also stated that he believed Glover could be
successfully treated and could ultimately become a productive member of society.
And while Dr. McGregor’s report does not contain as strong language as Dr.
Finke’s, Dr. McGregor’s evaluation discussed Glover’s early and prolonged use of
prescription drugs, marijuana and alcohol; violent behavior problems; and a
significant juvenile record. Dr. McGregor also qualified some of his opinions,
noting that the information favorable to Glover was derived from his relatives and
that Glover was not particularly forthcoming during the evaluation. Dr. McGregor
also provisionally diagnosed Glover with mild mental retardation, but noted that
this diagnosis was contradicted in light of Glover’s academic record.
While in hindsight Dr. Finke’s testimony may appear less favorable to
Glover than Dr. McGregor’s, the choice of such witnesses is ordinarily left to the
sound discretion of trial counsel. Moreover, Dr. McGregor’s report is not so
favorable that it is likely the jury would have imposed a lesser sentence.
Therefore, Glover has failed to show that he was prejudiced by counsel’s decision
to call Dr. Finke over Dr. McGregor. Therefore, the trial court properly found that
Glover was not entitled to a new trial based upon ineffective assistance of counsel.
Accordingly, the order of the Whitley Circuit Court denying Glover’s
motion for relief under CR 60.02 is reversed and this matter is remanded for a new
evidentiary hearing without the participation of Commonwealth’s Attorney Allan
Trimble as prosecutor. The trial court’s order denying Glover’s RCr 11.42 motion
KELLER, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, CONCURS IN PART AND
DISSENTS IN PART AND FILES SEPARATE OPINION.
LAMBERT, SENIOR JUDGE, CONCURRING IN PART AND
DISSENTING IN PART: I concur in result only with that portion of the Court’s
opinion affirming denial of relief pursuant to RCr 11.42.
I dissent from that portion of the Court’s opinion remanding for
another CR 60.02 hearing. I am unable to meaningfully distinguish between this
case and Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002), where the
Supreme Court held there was no trial court error. I do not regard the subject of
the prosecutor’s testimony in this case as more vital to the defense than the failure
to disclose Brady material in Bowling where the Court expressed confidence in the
trial judge as follows: “The trial judge in this case is a seasoned and able judge.
We have no doubt that he was not unduly influenced by Handy's participation as
both prosecutor and witness in this case.” Id. at 420. The trial judge in this case
was also seasoned and able. I have no doubt in his ability to properly evaluate the
testimony and reach a proper conclusion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Amy Robinson Staples
Assistant Public Advocate
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General