Commonwealth v. Clark, 2016-SC-000693-TG.

• Decision Date: 24 August 2017
• Docket Number: 2016-SC-000693-TG.
• Citation: 528 S.W.3d 342
• Parties: COMMONWEALTH of Kentucky, Appellant v. Jeffrey Dewayne CLARK and Garr Keith Hardin, Appellees
• Court: United States State Supreme Court — District of Kentucky

528 S.W.3d 342

COMMONWEALTH of Kentucky, Appellant

v.Jeffrey Dewayne CLARK and Garr Keith Hardin, Appellees

2016-SC-000693-TG.

Supreme Court of Kentucky.

AUGUST 24, 2017

COUNSEL FOR APPELLANT: Andy Beshear, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General.

COUNSEL FOR APPELLEE, JEFFREY DEWAYNE CLARK: Linda Andrea Smith, Frankfort, Department of Public Advocacy, Amy Robinson Staples, Assistant Public Advocate.

COUNSEL FOR APPELLEE, GARR KEITH HARDIN: Larry David Simon, Louisville, The Simon Law Office, Barry C. Scheck, Innocence Project, Seema Saifee, Innocence Project.

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

This case began with the murder of a young woman in 1992, resulting in the conviction of Jeffrey Dewayne Clark and Garr Keith Hardin (collectively, "Appellees"). They were both sentenced to life imprisonment. The issue currently before this Court is whether the trial court abused its discretion in subsequently vacating their convictions due to newly discovered evidence and ordering a new trial.

Background

Before addressing the merits of that issue, it is necessary to provide a factual and procedural summary of the case:

On April 1, 1992, at approximately 7:00 p.m., nineteen-year-old Rhonda Sue Warford went to the Kroger grocery store near her Louisville home. When she arrived home around 7:30 p.m., she told her mother that as she was leaving the parking lot, a strange man harassed her and told her he wanted to many her. Just after midnight, Rhonda left home and never returned. Family members surmised that she was going back to the grocery. Three days later, authorities found her dead body approximately fifty miles away in a remote area of Meade County. Police officers preserved the evidence at the scene, including the placement of plastic bags over the victim's hands. The medical examiner concluded that the victim's death was the result of multiple stab wounds

following a close-range violent struggle, as evidenced by defensive wounds on the victim's hands. Evidence obtained at the autopsy included three hairs recovered from the victim's right hand and hairs found on the victim's red sweatpants. Fingernail scrapings were obtained as well.

At the time of the murder, Rhonda was dating [Appellee], Garr Keith Hardin. [Appellee], Jeffrey Dewayne Clark, was a close friend of Hardin's and had socialized with Rhonda's sister, Michelle, at one time. At the time of the murder, Hardin and Clark were 22 and 21 years old, respectively. Following discovery of the body; Rhonda's mother told police she believed that Rhonda, Michelle, and both [Appellees], were involved in Satanism. Thereafter, the authorities zeroed in on [Appellees] as suspects in the murder.

...

The physical evidence the Commonwealth asserted linked the [Appellees] with the murder consisted of (1) a single fingerprint matching the victim's which was lifted from the interior back seat passenger window of Clark's car; and (2) the one hair described as similar to Hardin's found on the victim's red sweatpants.

...

In 2009, [fourteen years after Appellees' conviction,] the Innocence Project, Inc. and the Department of Public Advocacy Kentucky Innocence Project (hereinafter collectively referred to as the Innocence Project) agreed to represent Hardin and Clark, respectively, to secure DNA testing of the hairs found on the victim, as well as the victim's fingernail scrapings.

...

[T]he trial court denied [Appellees'] motion for release of the evidence for DNA analysis. [Appellees] appealed this ruling to the Court of Appeals and we granted transfer.

Hardin v. Commonwealth, 396 S.W.3d 909, 910-13 (Ky. 2013).

On appeal, we held that Appellees "are entitled to the testing they seek. Accordingly, the order of the Meade Circuit Court denying [Appellees'] motion is reversed and the case remanded for further proceedings consistent with this opinion." Id. at 915. In so holding, we also noted that Appellees were convicted "based on highly circumstantial evidence." Id. at 910. Upon remand, the circuit court held an evidentiary hearing on the claims raised in Appellees' CR 60.02 motion. After considering oral and written arguments on behalf of all parties, the court granted that motion and vacated the Appellants' convictions. The Commonwealth appealed that ruling to the Court of Appeals. We granted transfer.

Standard of Review

"[I]n order for newly discovered evidence to support a motion for new trial it must be ‘of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.’ " Commonwealth v. Harris, 250 S.W.3d 637, 640-41 (Ky. 2008) (emphasis added and quotation omitted). "We review the denial of a motion for a new trial to determine whether such decision was an abuse of discretion." Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008) (citations omitted). "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). This is a difficult standard for the Commonwealth to satisfy.

Analysis

The Commonwealth argues that the alleged newly discovered evidence does not warrant a new trial. More precisely, the Commonwealth claims that the evidence presented by the prosecution at trial is more than sufficient to convict Appellees, and that Appellees' post-trial confessions also weigh in favor of precluding a new trial. In contrast, Appellees argue that several key pieces of evidence must now be reconsidered in light of newly discovered information, and that a new trial is warranted. For the forgoing reasons, we agree with the Appellees that the trial judge did not abuse his discretion in ordering a new trial.

Appellees' Argument

There are two items of physical evidence that Appellees argue justify a new trial. First, modern DNA testing of a hair found on the victim's pants excluded Appellees as the source of the hair. Secondly, an incriminating blood-stained rag was presented at trial as bearing the blood of the victim. In fact, modern DNA testing indicated that Hardin was the likely source of the blood, just as he proclaimed at trial. A third factor at issue here does not involve physical evidence. However, it involves the now highly questionable trial testimony of a police officer involved in the case.

A forensic expert testified at trial on behalf of the Commonwealth that there was a high probability that the hair discovered on the victims' sweatpants matched Hardin's hair, thus placing him at the murder scene. There has been much argument in the parties' briefs concerning the expert's use of the word "match" when testifying at trial. The Commonwealth argues that their expert did not mean that the hair "matched" Hardin's hair with complete certainty. However, it is clear from the record that the hair evidence was the only thing placing Appellees at the scene of the crime. The Commonwealth's expert presented its forensic evidence to the jury in a manner that was highly inculpatory by linking the hair to Hardin. During opening and closing arguments, the prosecutor also attempted to persuade the jury that the hair came from Hardin. Semantics aside, it was an integral part of the prosecutor's theory of the case, that the hair was a "match".

In Bedingfield , we discussed the specific importance of DNA evidence when reviewing a similar issue:

For clarity's sake we emphasize: the presence of sperm which DNA testing proves did not belong to Appellant does not exonerate him; however, the presence of this new evidence does cast a long shadow and assuredly merits consideration in the form [of] a new trial. It cannot be overlooked that in Appellant's initial trial, all other arguments were enhanced and corroborated by the supposition that the sperm found belonged to Appellant. Indeed, this theme was central to the Commonwealth's prosecution. Because the technology was not available for Appellant to refute that claim, Appellant was left to rely on his word against that of the Commonwealth. This new evidence is substantial, if not pivotal, and we are inclined to believe that it is precisely the type of evidence that is envisioned by the rule and that may change the result if a new trial were granted. (Citations omitted).

Bedingfield, 260 S.W.3d at 814-15.

Having so held, we vacated Bedingfield's sentence pursuant to CR 60.02 and granted his motion for a new trial based upon newly discovered evidence.

Similar to Bedingfield , the forensic evidence presented at Hardin's trial "enhanced and corroborated by the supposition that the [hair] found belonged to [Hardin]." Id. As previously noted, the hair was the only physical evidence presented by the Commonwealth connecting Appellees to the crime scene. However, modern DNA testing has excluded Hardin as a source of the hair. Based on this new information, the trial court determined that the Commonwealth's evidence and argument at trial concerning the hair was "inaccurate and materially misleading." The trial court also noted that "the FBI announced in 2013 that testimony that a crime scene hair is a ‘match’ to a particular defendant's hair through microscopic hair comparison implies a level of certainty that exceeds the limits of science." As such, the trial court concluded that the new DNA evidence "undermines the credibility of the Commonwealth's case." It stretches the limit of our imagination to say it was an abuse of discretion.

The second item of evidence is a blood-stained cloth retrieved by police officers from Hardin's home. The Commonwealth's theory of the case was that Hardin and Clark were devil worshipers and that their motive for the killing was Appellees' involvement with Satanism. In his opening and closing statement, the prosecutor argued that Hardin "had been sacrificing animals and he had gotten to where he wanted to do humans." To support this claim, the...