APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 04-CR-00232
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KELLER, JUDGES.
CLAYTON, JUDGE: This is the appeal of motions pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02 which were denied by the trial court. After a careful review of the record and applicable law, we affirm the decision of the trial court in denying both the CR 60.02 and RCr 11.42 motions.
BACKGROUND INFORMATION
The facts, as set forth by the Kentucky Supreme Court in Yell v. Commonwealth, 242 S.W.3d 331 (Ky. 2007), are as follows:
In 2004, Robert Yell was living in a trailer in Russellville with his girlfriend, April Carpenter, their two children, Saralynn Yell, eleven months old, and Cameron Yell, two years old, and April's two children from a prior relationship, Zachary Carpenter and Nicholas Carpenter. On September 11, 2004, Robert, April, Saralynn, Cameron, Zachary and Nicholas went to a neighbor's house for the afternoon. The children played outside with the children of the neighbors, Lindsey Bromm and Donald Powell, while Robert and April proceeded to drink a large amount of alcohol and smoke marijuana. April and Robert became very intoxicated, and at some point, Robert became belligerent with Donald Powell and they began arguing. Robert tried to get April to leave, but April did not want to go home. April and Robert then began arguing. Sometime before 5:00 p.m., Robert, April, and all four children went home to their trailer.
According to April, once they got back to the trailer, she and Robert got into an argument. April testified that she and Robert fought frequently because she recently had an affair with another man when Robert was in jail. The fight escalated and Robert began choking her. April ultimately freed herself and ran back to Lindsey Bromm's house with Zachary and Nicholas following behind her. April arrived at Bromm's house at approximately 7:00 p.m. After staying there for twenty to forty minutes, April wanted to go back to her trailer to get the other two children. When April began walking back to the trailer, she noticed smoke and realized the trailer was on fire. She ran into the burning trailer and retrieved Saralynn from the front room and handed her off to Officer Ron Mills of the Russellville Police Department. April attempted to go back into the burning trailer to get Cameron, but the smoke and fire were too bad. The police refused to let April go back into the trailer again.
Ultimately, Cameron was pulled from the blazing trailer by firefighters, but, by that time, he had already died of smoke inhalation. Saralynn sustained third-degree burns to 50% of her body and extensive respiratory damage as a result of smoke inhalation. The evidence established that Saralynn suffered permanent, painful injuries as a result of the fire that have necessitated protracted hospitalization and numerous surgeries.
As a result of the events of September 11, 2004, Robert was indicted on October 28, 2004, on one count each of First-Degree Arson, Capital Murder, Attempted Murder, Fourth-Degree Assault, Resisting Arrest, Menacing, Third-Degree Terroristic Threatening, Public Intoxication, Third-Degree Assault, Second-Degree Disorderly Conduct, and for being a First-Degree Persistent Felony Offender (PFO I). On February 8, 2006, Robert attempted to enter a guilty plea pursuant to a plea bargain with the Commonwealth whereby he agreed to plead guilty to Third-Degree Arson, two counts of First-Degree Assault, one count of Third-Degree Assault, and PFO II in exchange for a recommendation of a twenty-five year sentence. After determining that the plea was actually an Alford plea, the court refused to accept the plea because it did not usually accept Alford pleas. Consequently, a jury trial was held from February 10, 2006, through February 22, 2006. Robert was found guilty of First-Degree Arson, First-Degree Assault, Second-Degree Manslaughter, and PFO II. Robert was also convicted of two misdemeanors, Fourth-Degree Assault and Disorderly Conduct. Robert was sentenced to: 26 years on the Arson conviction; 20 years (10 years enhanced to 20 years by the PFO II) on the Manslaughter conviction; 26 years (20 years enhanced to 26 years by the PFO II) on the First-Degree Assault; 12 months on the Fourth-Degree Assault; and 90 days on the Disorderly Conduct. The sentences for the Arson and First-Degree Assault convictions were to run consecutively, with the remaining sentences to run concurrently, for a total of 52 years imprisonment.
Id. at 333-34.
On direct appeal, the Kentucky Supreme Court rejected Yell's arguments and on April 7, 2008, Yell filed an RCr 11.42 motion with the trial court. On March 18, 2011, the trial court denied Yell's motion for relief, but set forth its opinion regarding the jury verdict:
After the jury was served supper, the court discussed with counsel that if no verdict was reached, and unless both the Commonwealth and defense agreed not to sequester the jury, that the criminal rules required that the jury be sequestered. Defense counsel would not agree not to sequester the jury and the jury was informed that they would be put into a local motel for the night at 11:00 pm. This judge recalls, that the jury was informed of this decision sometime between 9 and 10:30 pm. No mention of the possibility of sequestration had been made previously in the trial process and it was understood that this news would be a shock to the jurors. This is a rural community. It is likely that some of the jurors were not accustomed to being away from their families or in a motel overnight for any reason.
The verdicts were returned only minutes before the jury was scheduled to be taken to the motel. Several jurors appeared visibly shaken during the process of returning the verdicts and the polling of the jurors. The decision of defense counsel not to agree that the jury not
be sequestered is clearly a matter of strategy and not a question of ineffective assistance of counsel.
Order Denying RCr 11.42 Motion at 2-3.
On December 6, 2011, Yell filed a motion pursuant to CR 60.02 asserting that the Commonwealth's experts presented false testimony and that it was groundsfor reversal under Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999). The trial court also denied Yell's CR 60.02, holding as follows:
This Judge disagreed with the jury the (sic) verdict as to arson and has repeatedly stated since it was rendered that he would set that verdict aside if he could find any legitimate legal basis to do so. The testimony of certain expert witnesses at trial, in the opinion of this Judge, was practically baseless and the jury should not have accepted it. Other evidence contradicted the expert testimony concerning arson. It is the jury's role to determine the weight and credibility of witnesses. Juries can and do make mistakes that cannot be fixed by the Judge.
This Judge has no reason to think that the witnesses did not subjectively believe their own testimony. Defense counsel made a brave effort but there simply are no facts which could support a finding that any testimony at trial was perjured. Regrettably, the motion must be denied.
Oder Denying Motion to Vacate Judgment of Conviction Pursuant to CR 60.02(f) entered February 7, 2012 at 2.
Yell then filed this appeal of the denial of both his motions.
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 "motion is limited to [the] issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds.
In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that but for the deficiency, the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 674 (1984). Courts must also examine counsel's conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
Pursuant to the holding in Strickland, supra, a "defendant must show that 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." Strickland, 466 U.S. at 694, 104 S. Ct. 2068.
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). Therefore, we 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). With these standards in mind, we examine the decisions of the trial court.
In his RCr 11.42 motion, Yell contends that his counsel was ineffective in failing to understand the science of fire in order to effectively cross-examine the Commonwealth's expert witness; that the trial court erred in concluding that counsel's performance would not have altered the outcome of his case; and, that counsel's deficient performance prejudiced him as it permitted the jury to believe the infallibility of the Commonwealth's experts and left the jury without a reasonable alternative explanation for the fire.
At trial, defense counsel hired Dr. Stephen Spies as an arson expert. It was Dr....
