Brown v. Commonwealth, 94-SC-1036-DG

• Decision Date: 29 August 1996
• Docket Number: No. 94-SC-1036-DG,94-SC-1036-DG
• Parties: James H. BROWN, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 359

932 S.W.2d 359

James H. BROWN, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 94-SC-1036-DG.

Supreme Court of Kentucky.

Aug. 29, 1996.

Rehearing Denied Nov. 21, 1996.

Gail Robinson, Kevin McNally, McNally & Robinson, Frankfort, for appellant.

A.B. Chandler, III, Attorney General, Todd D. Ferguson, Assistant Attorney General, Frankfort, for appellee.

KEVIN HABLE, Special Justice.

Appellant, James Brown, appeals the denial by the Mason Circuit Court of his motion made pursuant to CR 60.02(f) to set aside his conviction. The Court of Appeals affirmed the denial of Appellant's motion. For the reasons set forth below, we affirm the order of the trial court and the Court of Appeals.

Appellant and his brother, Mark Brown, in separate trials, were convicted in 1976 of the murder of Bryant Dudley and each conviction was appealed. This Court affirmed the conviction of Mark Brown in Brown v. Commonwealth, Ky., 555 S.W.2d 252 (1977). Although this Court found no reversible errors in the trial of Appellant, the Court remanded to the trial court to comply with the presentencing requirements set forth in KRS 532.050. Brown v. Commonwealth, Ky., 639 S.W.2d 758 (1982), cert. denied, 460 U.S. 1037, 103 S.Ct. 1428, 75 L.Ed.2d 788 (1983).

Appellant, who was apparently free on bond during the pendency of his appeal, fled to Australia, where he lived for several years. Although the record is not clear on this matter, Appellant apparently was extradited and was sentenced in 1993 to twenty years imprisonment. In 1993, Appellant filed a motion pursuant to CR 60.02(f) to set aside his conviction because the Commonwealth's expert witness in Appellant's trial indicated to defense counsel that portions of his testimony could have been erroneous. The trial court denied that motion. Thus the appeal.

This Court set forth a detailed description of the evidence in this case in Brown, 639 S.W.2d at 759-60. Therefore, a summary will suffice for our purposes.

Mark Brown believed that the victim, Dudley Bryant, had broken into Mark's home and stolen drugs from him. Mark Brown and Appellant took the victim for a ride in Appellant's car on the evening of May 17, 1976, during which time Mark Brown questioned the victim about the drug theft while brandishing a handgun. The following night, May 18, 1976, Mark Brown and Appellant stopped by the victim's girlfriend's house, where they found the victim. The victim left with the Brown brothers in Appellant's car and went to Mark Brown's home. Four visitors to Mark Brown's home saw Mark Brown, Appellant and the victim there together. The visitors were told that Mark Brown and Appellant were planning to go to Lexington later that night.

The Brown brothers travelled to Lexington later that night, where they spent the night with friends. The next day, Mark went to Appellant's car and fired a shotgun, allegedly to test the shotgun's safety mechanism. Later that day, May 19, 1976, Appellant traded his boots to one of his Lexington friends. Those boots were stained with type A blood, the blood type of Appellant and the victim.

A few days later, Mark Brown called a friend, Robert Collins, in Mason County, and asked Collins to help him locate and bury the victim's body. Mark Brown took Collins to Morton's Lane in Mason County and told Collins that the Morton's Lane area is where "they" had shot the victim. Mark Brown and Collins did not find the body.

Afterwards, the police did find the body off Morton's Lane. Death was caused by two wounds in the back from a side-by-side shotgun. A police witness at Appellant's trial testified that the wound was inflicted by a No. 6 shot fired from a .12 gauge shotgun. The witness identified the shotgun-shell wadding as having come from Federal brand shotgun shells.

The evidence also showed that Appellant owned a side-by-side, double-barrelled Stevens .12 gauge shotgun, which had a defective safety mechanism. Authorities recovered Federal .12 gauge, No. 6 shot shotgun shells from Appellant's mother's house, where he resided. Tire marks similar to the tires on Appellant's car were found near the victim's body.

In addition to the above-described evidence, the Commonwealth produced expert testimony at Appellant's trial. Dr. Robert Shaler studied blood samples and concluded that based on the presence or absence of specific genetic markers in the samples, that the blood found on Appellant's boots was found in only 4.6% of the population and could not have been the blood of Appellant. Dr. Shaler did not testify that the blood on the boots belonged to the victim and he did not rule out the possibility that the blood stain could have been the blood of a third person. Furthermore, the defense presented no evidence at trial that the blood stain on the boots was Appellant's.

Defense counsel interviewed Dr. Shaler in 1993. At that time, according to the affidavit of defense counsel, Dr. Shaler indicated that he was mistaken in asserting that the blood stain on the Appellant's boots could not have belonged to Appellant. The affidavit formed the basis for Appellant's motion pursuant to Rule 60.02(f) to vacate his conviction. The trial court declined to hold an evidentiary hearing but assumed defense counsel's affidavit to be a true reflection of Dr. Shaler's thinking about his earlier testimony. The trial court denied Appellant's motion because "the exclusion of the testimony of ... Shaler would in all probability not have affected the verdict of the jury." The court noted that "[i]n view of the overwhelming evidence, Shaler's testimony was not crucial to the Commonwealth's case."

The Court of Appeals affirmed, citing among other things, the prior appeal of Appellant to this Court. In 1982, this Court ruled that Dr. Shaler's testimony was admissible in Appellant's trial. The Court stated that questions raised on appeal surrounding the testimony related to the credibility and weight of the testimony rather than its admissibility. Brown, 639 S.W.2d at 760. In discussing the evidence, the Court noted the evidence summarized above, without Dr. Shaler's testimony, "was sufficient to justify the conviction of Jim Brown...." Id.

Notwithstanding the earlier ruling, Appellant now attempts to characterize Dr. Shaler as the key witness against him and suggests that Shaler's testimony had a "scientific aura," which might have led the jury to accept it without doubt or question.

Rule 60.02(a) through (e) provides that "a court may, upon such terms as are just, relieve a party ... from its final judgment, order or proceeding" if one or more of several circumstances are present, including: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence that could not, with due diligence, have been discovered in time to move for a new trial; perjury; fraud affecting the proceedings; the judgment being void, satisfied, released, discharged or overturned. Subsection (f) of CR 60.02 also provides for relief for "any other reason of an extraordinary nature justifying relief."

Generally, CR 60.02(f) stands in the place of the ancient writ of coram nobis. To have a judgment set aside in a coram nobis proceeding, a petitioner had to convince the court that "the real facts as later presented on application for the writ, rendered the original trial tantamount to none at all, and [enforcement of] the judgment as rendered would be an absolute denial of justice and analogous to the taking of life or property without due process of law." Jones v. Commonwealth, 269 Ky. 779, 108 S.W.2d 816, 817 (1937), cited in Gross v. Commonwealth, Ky., 648 S.W.2d 853, 855 (1983). In Gross, this Court made it clear that Rule 60.02 did not extend the scope of remedies available under coram nobis or add new grounds of relief. Gross at 856.

This Court has held that actions under CR 60.02 are addressed to the "sound discretion of the court and the exercise of that discretion will not be disturbed on appeal except for abuse." Richardson v. Brunner, 327 S.W.2d 572, 574 (1959). Rule 60.02(f) "may be invoked only under the most unusual circumstances...." Howard v. Commonwealth, 364 S.W.2d 809, 810 (1963); see also, Cawood v. Cawood, 329 S.W.2d 569 (1959) and relief should not be granted, pursuant to Rule 60.02(f), unless the new evidence, if presented originally, would have, with reasonable certainty, changed the result. See, Wallace v. Commonwealth, 327 S.W.2d 17 (1959). A review of the evidence at Appellant's trial fails to convince us that the outcome would have been different if all of Dr. Shaler's testimony had been excluded or if it had been admitted and Shaler's later misgivings had been available to the jury at the time of trial.

As the summary of the evidence shows, there was ample circumstantial evidence in the record upon which the jury could have based its verdict. Indeed, as noted above, this Court has earlier concluded that the evidence at trial, absent the testimony of Shaler, was sufficient to convict Appellant Brown, supra at 760.

Moreover, when Dr. Shaler's testimony (the testimony on direct examination) is taken as a whole, it is clear that Dr. Shaler's testimony was not the key piece of evidence against Appellant. Indeed, it appears not to have been an important item of evidence.

Dr. Shaler was subjected to intrepid and effective cross-examination by defense counsel. On cross-examination, Dr. Shaler admitted that his particular blood analysis was novel and that it had been accepted as expert evidence in only one other homicide case in the United States (and that case involved Dr. Shaler himself as the expert witness). Shaler had testified that only 4.6% of the nation's population had the particular blood markers found by him in the sample he studied. Defense counsel elicited from Shaler the admission that he had based this conclusion on a county-wide population survey in Pennsylvania. Dr. Shaler also admitted during cross-examination that he did not know...