Commonwealth v. Crumes

• Decision Date: 30 September 2021
• Docket Number: 2019-SC-0278-DG
• Citation: 630 S.W.3d 630
• Parties: COMMONWEALTH of Kentucky, Appellant v. Mikel CRUMES, Appellee
• Court: United States State Supreme Court — District of Kentucky

630 S.W.3d 630

COMMONWEALTH of Kentucky, Appellant

v.Mikel CRUMES, Appellee

2019-SC-0278-DG

Supreme Court of Kentucky.

SEPTEMBER 30, 2021

COUNSEL FOR APPELLANT: Daniel Cameron, Attorney General of Kentucky, Todd Dryden Ferguson, Assistant Attorney General.

COUNSEL FOR APPELLEE: Aaron Reed Baker, Kieran John Comer, Assistant Public Advocates.

OPINION OF THE COURT BY JUSTICE HUGHES

The primary question presented in this appeal is whether Appellee Mikel Crumes is entitled to a new trial given the co-defendant's recantation of his testimony incriminating Crumes. In 2012, Crumes was convicted of robbing and being complicit in the 2011 murder of Dre'Shawn Hammond. The evidence against Crumes included co-defendant Tromonte Rice's testimony that Crumes committed the murder and robbery and also expert testimony explaining historical cell site information from which the jury could infer that Crumes was in the area around the time of the crimes. Crumes sought a new trial under Kentucky Rule of Civil Procedure (CR) 60.02 after Rice recanted his testimony and under Kentucky Rule of Criminal Procedure (RCr) 11.42 on ineffective assistance grounds because trial counsel did not request a Daubert¹ hearing to challenge the admissibility of the expert cell site testimony. Although the trial court determined that Crumes was not entitled to a new trial under either rule, the Court of Appeals disagreed. The appellate court vacated Crumes's conviction and remanded the case for a new trial based upon Rice's recantation, the focus of his CR 60.02 motion. Upon discretionary review, we reverse the Court of Appeals and affirm the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Crumes's convictions for robbery in the first-degree and complicity to murder were affirmed in December 2013 in his direct appeal to this Court. See Crumes v. Commonwealth , 2012-SC-000774-MR, 2013 WL 6730044 (Ky. Dec. 19, 2013).² Providing context for Crumes's current claims as well, the factual background provided in that opinion follows.

[Sixteen-year-old] Mikel Crumes, was indicted in Kenton County as a youthful offender along with fifteen[-]year-old Tromonte Rice for the robbery and murder of fifteen[-]year-old Dre'Shawn Hammond and tampering with physical evidence in June 2011. Prior to Crumes's trial, Rice entered a guilty plea and agreed to testify against Crumes. Though Crumes was a juvenile, he was found to be a youthful offender and was therefore tried as an adult.

At trial, Rice testified that on the day of the murder Crumes contacted him via phone and text message asking if Rice wanted to "hit a lick" and if he had a "hammer." Rice testified that he understood the phrase "hit a lick" as asking him if he wanted to make some money or rob someone, and that "hammer" was slang for gun. He testified that after he was contacted by Crumes, he obtained a gun from a man he was staying with at the time of the crime. Rice stated he told Crumes he had gotten a gun, and the two boys made plans to meet up later that afternoon.

After an initial meet-up at a local convenience store, Rice, Crumes, and a few other boys decided to go to the area of Latonia Terrace near Covington. At some time during this initial meeting, Rice testified that he had shown Crumes the gun and that Crumes had told him he intended to rob the victim, Dre'Shawn Hammond.

Rice then testified that he and Crumes, as part of a larger group of youths that included Hammond, met up to play basketball and had hung out behind Hammond's home that afternoon. Rice stated that he and Crumes had discussed trying to sell the gun to Hammond as a ruse to see how much money he had in his possession.

After this discussion, Rice testified that he went inside the Hammonds’ home to use the restroom, and while inside, had approached Hammond about the possibility of purchasing the gun. He stated that he showed Hammond the gun and told him he would take $300 for it, but that Hammond had said that was too much to pay, and Rice had gone back outside. Shortly after this, Crumes, Rice, and Hammond decided to go to the City Heights neighborhood to find a dice game.

The boys took a wooded trail up a hill to City Heights. On the way, Hammond asked to see the gun to make sure it worked. Rice testified that Crumes took the gun from him and fired it into the air to show Hammond that it worked, and that Crumes had kept the gun after that time. Upon arriving in City Heights, Rice testified that the boys split up—Crumes and Hammond had gone to a nearby convenience store and Rice had gone to find a dice game. Crumes and the victim later found Rice and joined in the dice game for a time before going back to the convenience store. Video surveillance footage shows Crumes and Hammond at the store at both 9:20 p.m. and again at 10:16 p.m.

The group of boys met back up and were returning home on another wooded trail when the murder occurred. Rice testified that as they walked down the trail, Crumes pulled out the gun, pointed it at Hammond, and demanded that Hammond give him everything he had. Hammond, according to Rice, turned around to look at Crumes and then turned back around, as if to ignore him, and continued walking down the trail. Crumes then shot Hammond in the back. After he fell, Rice testified Crumes shot Hammond several more times. Rice removed $180 and a cell phone from Hammond's pocket. He testified that he turned off the cell phone and threw it into the woods near the trail and split the money with Crumes. The boys walked together for a distance before going their separate ways.

On cross-examination, Rice admitted telling a different story to police—namely that he had found the gun, that he did not know anything about guns, that he had not touched the gun, and that he never had anything to do with the robbery and murder. However, he stated that his testimony at trial was the truth. The Commonwealth's proof also presented cell phone records showing that Crumes was in the vicinity of the crime scene near the time of the crime.

From the beginning, Crumes denied any involvement in the robbery and murder of the victim. In his defense, Crumes presented testimony from Stacy Patterson, a resident of the City Heights neighborhood who was familiar with Crumes. She testified that she saw Crumes getting into a sedan for a ride at approximately 10:30 p.m. This testimony was followed by testimony from two of Crumes's aunts, Marilyn Thompson and Michelle Thompson, placing him at their homes between 11:05 p.m. and 11:25 p.m. Crumes also elicited testimony that while phone records showed that his cell phone "pinged" through a cell phone tower close to the crime scene, there were three towers in the area and that a call will go to the tower where there is the strongest signal, not necessarily the closest tower. DNA, gunshot residue, and footprint testing were performed, but no match was found. The totality of Crumes's proof was that he could not have committed the murder and robbery because he was not present when the crime occurred.

At the close of the Commonwealth's case and again at the close of all evidence, Crumes moved for a directed verdict of acquittal on all charges. The court granted the motion on the charge of tampering with physical evidence. The remaining counts proceeded to the jury.

Despite testimony offered by the defense, the jury found Crumes guilty, and he was sentenced to 30 years in prison.

2013 WL 6730044, at *1-2.³

In 2014, Crumes moved the trial court to vacate or set aside his conviction and to grant a new trial. The basis of his CR 60.02 motion was Rice's recantation of his trial testimony. The basis of his RCr 11.42 motion was his trial counsel's ineffective assistance, specifically his failure to challenge through a Daubert hearing the admissibility of the cell phone evidence indicating the location of Crumes's phone at the time of the robbery and murder. The trial court denied the CR 60.02 motion, finding Rice's new testimony declaring Crumes's innocence not credible and the other evidence at trial sufficient to support the jury's verdict even without Rice's testimony.⁴ The trial court also denied the RCr 11.42 motion for reasons including: the testimony of the telephone company representative was based on his specialized knowledge in the field but not on the type of scientific evidence generally requiring a Daubert hearing; and the admissibility of witness testimony is an issue that could have been raised on direct appeal and is not the proper subject for an RCr 11.42 motion. In another RCr 11.42 related motion, the trial court denied Crumes's request for raw data pertaining to the cell site testimony; Crumes sought this data to assess whether trial counsel was ineffective by failing to request the data himself.

As noted, the Court of Appeals was persuaded that Rice's recantation meant a new trial was necessary, finding in effect that the trial court abused its discretion⁵ by denying Crumes's CR 60.02 motion. The Court of Appeals then disposed of the RCr 11.42 claim by concluding Crumes is entitled to access the raw cell phone data in preparation for his new trial.

Other facts pertinent to Crumes's claims of error are set forth below.

ANALYSIS

The Court of Appeals addressed Crumes's CR 60.02 motion first and consequently did not decide whether the trial court erred by denying the RCr 11.42 motion. We have long held that a CR 60.02 claim is an avenue for relief not available by direct appeal or by RCr 11.42, and that the post-conviction structure is "not haphazard and overlapping."

Gross v. Commonwealth , 648 S.W.2d 853, 856 (Ky. 1983) ( CR 60.02, providing the extraordinary grounds for which a court may relieve a party from its final judgment, "is for relief that is not available by direct appeal and not available under RCr 11.42."). Given that RCr 11.42 claims are addressed first, i.e., before CR 60.02 motions, in our post-conviction review process, we begin our analysis with the RCr 11.42 claim.⁶

I. The RCr 11.42 Claims

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