Biederman v. Commonwealth

• Docket Number: 2020-CA-1066-MR,2021-CA-0825-MR
• Decision Date: 29 July 2022
• Parties: THOMAS BIEDERMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE and THOMAS BIEDERMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

1

THOMAS BIEDERMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE and THOMAS BIEDERMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Nos. 2020-CA-1066-MR, 2021-CA-0825-MR

Court of Appeals of Kentucky

July 29, 2022

NOT TO BE PUBLISHED

Appeal From Boyd Circuit Court Honorable George W. Davis, III, Judge Action Nos. 12-CR-00028, 12-CR-00028

Briefs for Appellant: Thomas Biederman, pro se La Grange, Kentucky

Brief for Appellee: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort Kentucky

Before: Acree, Cetrulo, and L. Thompson, Judges.

OPINION

CETRULO, JUDGE

Appellant Thomas Biederman ("Biederman"), pro se appeals the Boyd Circuit Court's denial of his RCr^[1] 11.42 motion to vacate, set aside, or correct his sentence and his CR^[2] 60.02 motion to vacate his sentence.^[3]Upon review, finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late July 2011, Biederman's former wife sustained significant injuries - including second- and third-degree burns^[4] and later development of post-traumatic stress disorder - when pipe bombs exploded under the driver's seat of her car. Biederman was indicted on one count of second-degree use of a weapon of mass destruction and one count of criminal attempt to commit murder. Despite multiple discussions regarding potential plea deals, Biederman maintained his innocence and went to trial. At trial, the Commonwealth presented a case that relied, in pertinent part, on bomb-making recipes found on Biederman's family computer; bomb-making materials found at the Biederman home; and the victim's injuries. In support of its case, the Commonwealth called numerous witnesses - some of which were law enforcement experts in forensics, computers, and explosives - and called the victim to testify to her injuries.

Biederman's trial counsel, Michael Curtis ("TC Curtis"), cross-examined the Commonwealth's witnesses and brought forth evidence to show that the entire family had access to the Biederman family computer; that the bomb-making materials found at the Biederman home did not match those found in the bomb at the crime scene; and that, although the victim did sustain injuries, she was able to walk into court with no limp and did not maintain the continuous injuries as alleged. He also called Biederman's daughter to testify to his general disposition, and she expressed love for her father and her doubt that he could have committed the offenses.

Before deliberation, the parties agreed that they did not want the jurors to take their notes into deliberation and the trial judge did not allow their use. After a two-hour deliberation, the jury found Biederman guilty on both charges and sentenced him to 40 years in prison. On direct appeal,^[5] our Kentucky Supreme Court affirmed the convictions and found the evidence supported Biederman's classification as a violent offender; that the trial court's refusal to allow jurors to use their notes in deliberation was not structural error; and that evidence was sufficient to support the convictions. Biederman v. Commonwealth, 434 S.W.3d 40 (Ky. 2014).

In March 2015, Biederman filed an RCr 11.42 motion to vacate, set aside, or correct his sentence, pro se. Subsequently, the trial court appointed the Department of Public Advocacy ("DPA") to represent Biederman in the proceedings and the DPA supplemented his motion in October 2016. The supplemented motion claimed:^[6] (1) trial counsel was ineffective for agreeing to prohibit jurors from taking their notes into the jury room during deliberations; and (2) trial counsel was ineffective for failing to adequately investigate and therefore did not present an effective defense at trial.

The trial court held a series of evidentiary hearings on those claims, in which all parties were present, and TC Curtis testified as to his trial strategy. Specifically, TC Curtis explained that he agreed with the Commonwealth to prohibit jurors from taking their notes to deliberation because he noticed the jurors were "furiously writing" while watching a video of Biederman's interviews with Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") agents.^[7] He further testified that he wanted the jurors to have to recall the specifics of those interviews from memory because the contents did not show Biederman in the best light. TC Curtis emphasized that to this day, he still prefers that jurors leave their notes outside the deliberation room.^[8]

Additionally, TC Curtis testified as to his general trial strategy and preparation. He stated that he would have interviewed every witness Biederman provided, if he was able to get ahold of them. Of those he was able to contact, he recalled that many mentioned that Biederman periodically set bombs off in his backyard. After speaking with those witnesses, TC Curtis determined it was not in Biederman's best interest to have those individuals testify. This included Biederman's son, Ryan.^[9]

As for the victim's injuries, TC Curtis testified that he needed to use "kid gloves" to poke holes in the severity of her injuries without blatantly calling her a liar. He testified that such a gentle approach is necessary to stay in the jury's good graces. Lastly, TC Curtis testified that he did not call experts because he did not think they would be useful in his overall strategy of showing that these events did occur - which he claimed would be obvious to the jury - but that Biederman was not the one who caused them. He explained that calling experts would have gone "against the credibility of what [he was] trying to do in convincing the jury that Biederman didn't do it." TC Curtis emphasized that the key to the entire case was the fact that the bomb was wired to the brake light and the victim's key fob had been tampered with to ensure the brake light would not activate unless the victim was in the car. Therefore, he claimed, an explosive expert would do little to convince a jury that Biederman did not tamper with the key fob.

After multiple days of evidentiary hearings and the submission of post-hearing briefs, the trial court denied Biederman's RCr 11.42 motion in its August 2020 order. The order concluded that TC Curtis advised Biederman of his decision to prohibit juror notes during deliberations and Biederman agreed with the approach; that TC Curtis was not deficient in failing to consult with experts; and that TC Curtis properly interviewed all the witnesses Biederman suggested.

In December 2020,^[10] Biederman filed a CR 60.02 motion to vacate his sentence pursuant to subsections (e) and (f). Biederman claimed that he was entitled to immediate relief because (1) he was presented with new hospital information about the severity of the victim's injuries that established he was guilty of only second-degree assault; (2) the Commonwealth withheld exculpatory evidence; and (3) there were multiple instances during trial in which the Commonwealth and its witnesses committed perjury.

In July 2021, the trial court denied Biederman's CR 60.02 motion finding that Biederman had full access to the medical records he complained were "new"; that those same medical records were used at trial and introduced as an exhibit; and that the Kentucky Supreme Court had already adjudicated the severity of the victim's injuries. As to the remainder of Biederman's claims, the trial court found that all of the evidence was provided in discovery or that Biederman could have easily obtained such information. Lastly, the trial court found that Biederman was aware of all facts and allegations at trial, and he was not entitled to the special, extraordinary relief under CR 60.02.

Biederman appealed the trial court's orders denying his RCr 11.42 and CR 60.02 motions. In denying his RCr 11.42 motion, he argues the trial court (1) abused its discretion when it found TC Curtis was effective; and (2) made material misstatements of fact in the order, which he claims resulted in the finding that TC Curtis was effective. Additionally, he argues the trial court abused its discretion when it denied his CR 60.02 motion.

STANDARD OF REVIEW

A. RCr 11.42 Motion for Ineffective Assistance of Counsel

When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel's performance was reasonable. Commonwealth v Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). We must analyze counsel's overall performance and the totality of circumstances therein in order to determine if the challenged conduct can overcome the strong presumption that counsel's performance was reasonable. Haight, 41 S.W.3d at 441-42. In addition, the trial court's factual findings and determinations of witness credibility are granted deference by the reviewing court. Id. Finally, we apply the de novo standard when reviewing counsel's performance under Strickland.^[11]Bussell, 226 S.W.3d at 100.

Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).

B. CR 60.02 Motion

We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000); Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)). Therefore, we will affirm the lower court's decision unless there is a showing of some "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

Stoker v....