Blaine Andrew Bray v. Commonwealth of Kentucky ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0921-MR
BLAINE ANDREW BRAY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 12-CR-003839-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
JONES, JUDGE: Acting without the assistance of counsel, the Appellant, Blaine
Andrew Bray, appeals the Jefferson Circuit Court’s July 7, 2020 order denying
Bray’s renewed motion for a new trial pursuant to RCr1 10.02, renewed motion
pursuant to RCr 11.42, and renewed motion for relief pursuant to CR2 60.02.
Having reviewed the record and being otherwise sufficiently advised, we affirm.
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
I. BACKGROUND
On August 18, 2012, Bray and his caretaker and girlfriend, Carolyn
Logsdon, met a group of friends at Spectators Bar and Grill in Louisville,
Kentucky. The evening began peacefully enough. However, at some point, Bray
and Logsdon became involved in a dispute with some other patrons at the bar. The
dispute became physical, and ultimately Bray was indicted jointly with Logsdon
for first-degree assault of Joshua Masingo and indicted alone in the first-degree
assault of Patrick Kelly.
Following a jury trial, on July 1, 2013, Bray was convicted of first-
degree assault of Masingo and acquitted of first-degree assault of Kelly. Logsdon
was convicted of complicity to commit first-degree assault of Masingo. Bray and
Logsdon agreed to waive their rights to have the penalty phase before the jury and
to a direct appeal in exchange for a plea agreement and recommendation on
sentencing by the Commonwealth for twelve years’ incarceration for Bray and ten
years for Logsdon.3 Thereafter, Bray’s and Logsdon’s separate counsel were
granted leave to withdraw, and Bray and Logsdon retained new, joint counsel.
We summarized the somewhat unusual and complicated procedural
history that followed new counsel’s entry of appearance in our prior Opinion. See
3
As detailed below, Logsdon ultimately pleaded guilty to amended charges of facilitation to
assault in the first degree, a Class D felony. She received five years, probated.
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Bray v. Commonwealth, No. 2014-CA-000128-MR, 2017 WL 2713458 (Ky. App.
Jun. 23, 2017).
Before sentencing, on September 12, 2013, new counsel
filed a joint motion for new trial pursuant to RCr 10.02.
Bray and Logsdon argued there was newly discovered
evidence: (1) Dennis Beavers, a bouncer at Spectators,
and Rickie Riordan, a patron at the bar, would testify that
the physical altercation was started by Kelly and not
Bray, and support Bray’s and Logsdon’s claims that they
were defending themselves; and (2) the Commonwealth
did not disclose information that Kelly killed a man in a
motor vehicle collision by running over his scooter just
days prior to trial and, thus, had a motive to curry favor
with the prosecution to avoid being prosecuted for
homicide. Bray and Logsdon also argued the
Commonwealth withheld this exculpatory evidence.
The Commonwealth opposed the motion. It
argued the potential evidence of Beavers and Riordan
was not newly discovered as trial counsel planned to call
them to testify at trial but [chose] not to do so after
learning of negative information their testimony would
allow into evidence. It also argued the auto accident was
not exculpatory because no charges were anticipated.
On December 20, 2013, the trial court held an
evidentiary hearing on the RCr 10.02 motion. Bray and
Logsdon called Beavers and Riordan to testify.
Beavers testified about Kelly’s reputation for being
aggressive regarding pool, Kelly being the aggressor in
the confrontation between Kelly and Bray, and that he
had to pull Kelly off Bray and was assisted by his cousin
Riordan in doing so. He and Riordan’s legs became
tangled and they fell to the floor with Kelly, so he did not
see the interaction between Bray and Masingo, but he
heard a man yell something like “get your hands off her
neck” or “get your hands off her throat” and he heard a
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woman yell “get the f*** off me.” After the fighting
ended and Beavers told everyone involved to leave, Bray,
Logsdon and Kelly left. Beavers testified he told the
investigating police officer, the bar owner and the
detective that Kelly was the aggressor and Bray and
Logsdon were defending themselves. Beavers testified
that although he was subpoenaed, he never spoke with
the attorneys representing Bray and Logsdon before the
trial.
Riordan testified consistently with Beavers about
Kelly’s reputation, his aggression that night and having
to subdue him and then falling. Riordan testified he saw
a small blood spot on Kelly, and Kelly was unaware he
was hurt until Riordan told him, but that when Kelly
lifted his shirt the wound was small and did not look like
a stab wound. Riordan denied telling Bray to get rid of a
knife. He testified that he also told Bray and Logsdon to
leave. He testified he was never interviewed by the
police or the attorneys.
During the hearing, there was discussion about
when the judge and attorneys became aware of the traffic
collision involving Kelly. The judge recalled Kelly
disclosed it himself in a conference with the judge after
an altercation occurred outside the courtroom between
him and Bray’s father. The Commonwealth stated the
defense attorneys were told that another witness
overheard Riordan having a conversation with the
defendants about getting rid of the knife and because
Riordan could be impeached by this testimony, the
defense attorneys chose not to call him as a matter of trial
strategy.
On December 26, 2013, the trial court denied
Bray’s and Logsdon’s joint motion for a new trial and
sentenced Bray to twelve years’ incarceration and
Logsdon to ten years’ incarceration in accordance with
their plea agreements. On January 17, 2014, Bray and
Logsdon timely filed separate appeals.
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On February 21, 2014, Bray and Logsdon filed a
joint motion for relief of judgment pursuant to CR 60.02.
They argued the jury instructions were erroneous as to
Logsdon and this error also prejudiced Bray.
On March 14, 2014, Bray and Logsdon filed a
joint motion to vacate, set aside or correct their
judgments pursuant to RCr 11.42. They argued
numerous errors by trial counsel and also raised the issue
of the Commonwealth withholding exculpatory evidence.
While the CR 60.02 and RCr 11.42 motions were
pending, Bray requested and the Court of Appeals
granted his motion that the appeal of the order denying
his motion for new trial be held in abeyance.
On June 27, 2014, the trial court held an
evidentiary hearing on the RCr 11.42 motion. Mark Hall,
Logsdon’s trial counsel, testified regarding his conduct in
defending her including that it was his strategy to
separate Logsdon’s conduct from Bray’s. While
Logsdon also struck Masingo with a pool cue in the back
of the head, the Commonwealth’s expert, Dr. Smock,
testified this blow could not have caused Masingo’s
injuries.
[Attorney] Hall testified, once he saw the proposed
jury instructions, he believed he made a tactical mistake
in not focusing on defending Logsdon on complicity. He
believed he could have improved her outcome by
focusing on also defending Bray’s actions.
[Attorney] Hall also testified regarding issues
impacting Bray. Bray is severely disabled and his
previous back injury makes him more susceptible to
paralysis if he receives additional injury to it. If Bray’s
medical condition was disclosed to the jury, his counsel
could argue Bray had a compelling reason not to instigate
a conflict and, therefore, all his actions were in response
to the actions of others. [Attorney] Hall and Bray’s trial
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counsel should have requested disclosure of the
Commonwealth’s experts regarding serious physical
injury in order to prepare for their testimony and possibly
call witnesses to rebut it. An objection should have been
made when Detective Hedges gave an opinion as to
serious physical injury on the grounds he was not
qualified. Counsel should have asked for a missing
evidence instruction regarding Kelly’s handwritten
statement which was given to Det. Hedges and then
never disclosed. Bray’s attorney erred by asking a
question which would disclose that Bray and Logsdon
exercised their right to remain silent, there was no basis
for asking about that and [Attorney] Hall objected and
received an admonishment for the jury. [Attorney] Hall
opined that he should have asked for a mistrial, but only
for Logsdon. It would have been helpful to investigate
what Beavers could have testified. He did not call
Riordan because the Commonwealth would have
impeached him. Beavers was problematic because he
attended court with counsel due to pending charges
against him.
The trial court orally denied the RCr 11.42 motion
as to Logsdon, ruling there was no flaw in [Attorney]
Hall’s representation of Logsdon which was a matter of
trial strategy. However, the trial court, after noting that
the hearing and argument focused on Logsdon’s counsel,
invited Bray’s current counsel to develop a record on
ineffective assistance of Bray’s trial counsel at the
upcoming CR 60.02 hearing and reserved ruling on
Bray’s RCr 11.42 motion.
On July 25, 2014, the trial court held a hearing on
the CR 60.02 motion. The argument from counsel
focused on improper jury instructions as to Logsdon, by
failing to include a self-defense instruction and allowing
the jury to convict her of complicity with a reckless or
wanton state of mind. As to Bray, counsel argued that
the trial court should assume Logsdon’s erroneous
instruction was prejudicial to him and, if the jury was
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deprived of the opportunity to consider whether
Logsdon’s actions were justified, it may have impacted
its decision as to Bray and requested that he also receive
a new trial.
At the conclusion of argument, the trial court
called a bench conference and urged that counsel find an
alternative solution as to Logsdon to avoid either a
lengthy appellate process or a new trial. The
Commonwealth offered to amend Logsdon’s charges
down to criminal facilitation to assault in the first degree,
a D felony, and recommend a five-year sentence,
probated for five years.
Logsdon accepted this plea agreement and
consequently, the trial court granted the CR 60.02 to
vacate Logsdon’s conviction and Logsdon entered into an
Alford plea to the amended charge. In accordance with
the agreement, Logsdon was sentenced to five years,
probated.
While the trial court invited counsel to present
evidence on Bray’s RCr 11.42 motion after Logsdon was
sentenced, his current counsel declined to do so. Counsel
asked that the motion as to Bray stand as submitted.
On January 6, 2015, the trial court denied Bray’s
RCr 11.42 motion without addressing his claims
individually:
While the Court recognizes that trial
did not turn out well for Mr. Bray, there is
nothing in the record to suggest that the jury
found him guilty because of anything that
trial counsel did at trial as opposed to what
they believed Mr. Bray did at [Spectators]
bar on the night the prosecuting witness was
injured . . . all of which was captured on
high-quality surveillance video for the jury
to see. The assignments of error culled from
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the record are, despite current counsel’s
considerable best efforts, of no consequence.
There is nothing in the record to reasonably
suggest that trial counsel committed any
error that was objectively unreasonable
under the circumstances presented at trial, or
that Mr. Bray did not receive a fair trial as a
result.
In a separate order entered on the same day, the
trial court denied Bray’s CR 60.02 motion, stating that
“despite any concerns or reservations the Court may have
with respect to the jury’s ability to appreciate the legal
nuances of the instructions for Ms. Logsdon (the co-
Defendant), the Court is wholly satisfied with the
relatively straight-forward jury instructions for Mr.
Bray.”
On January 15, 2016, Bray filed separate appeals
from the trial court’s orders denying his RCr 11.42
motion and CR 60.02 motion.
Id. at *1-4 (footnote omitted).
As part of his first appeal Bray argued: (1) the trial court erred in
denying him a new trial because the Commonwealth failed to disclose the
exculpatory evidence that prior to trial, Kelly killed another individual in a motor
vehicle collision; (2) the trial court should have granted his CR 60.02 motion
because the trial court erred in improperly instructing the jury on complicity and
self-protection in Logsdon’s jury instructions which prejudiced Bray; and (3) the
trial court should have granted Bray relief pursuant to RCr 11.42. With respect to
his RCr 11.42 motion, Bray argued that:
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(1) trial counsel failed to investigate and present evidence
from favorable eyewitnesses including Beavers and
Riordan; (2) trial counsel repeatedly promised the jury
the testimony from the bouncers at Spectators bar and
then failed to present it; (3) trial counsel failed to request
proper jury instructions or object to improper jury
instructions on complicity regarding Logsdon; (4) trial
counsel failed to present proof to the jury that Bray is
severely disabled and had fear of reinjuring his back; (5)
trial counsel failed to request disclosure of the names,
opinions or bases for the opinions of the expert witnesses
for the Commonwealth to allow adequate preparation for
trial and to consider presenting a defense expert witness;
(6) trial counsel failed to object when Det. Hedges
testified that in his opinion the injuries to Masingo and
Kelly constituted serious physical injury; (7) trial counsel
failed to request a missing evidence instruction after Det.
Hedges testified that Kelly gave him a written statement
but he did not recall what he did with it; and (8) trial
counsel erred by introducing evidence that Bray and
Logsdon asserted their right to remain silent and
Logsdon’s counsel erred by failing to request a mistrial.
Id. at *5.
This Court carefully considered and rejected each of Bray’s
assignments of error. Id. at *5-8. Thereafter, we affirmed “the Jefferson Circuit
Court’s orders denying Bray’s RCr 10.02, RCr 11.42 and CR 60.02 motions.” Id.
at *9. Bray’s petition for discretionary review was denied by the Kentucky
Supreme Court on October 25, 2017.
On June 7, 2020, Bray filed a renewed motion with the trial court
seeking a new trial pursuant to RCr 10.02, an order vacating, setting aside, or
correcting his sentence pursuant to RCr 11.42, and/or relief from his judgment of
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conviction pursuant to CR 60.02. By order entered July 7, 2020, the trial court
denied Bray’s motion as follows:
1. For the reasons set out in the Court’s order of
December 20, [2013] (entered on December 26, 2013),
there is no evidence of record which would support
providing the Defendant with relief pursuant to RCr
10.02.
2. For the reasons set out in the Court’s order of
December 23, 2014 (entered on January 6, 2015) there is
no evidence of record to suggest that counsel’s
representation fell below any objective standard of
reasonableness. See Strickland v. Washington, 446 U S
[668] (1984).
3. The record is entirely sufficient such that no further
hearings [are] necessary for the Court to rule on the
Defendant’s motion.
R. at 559-60.
This appeal followed.
II. ANALYSIS
Bray’s appellant brief is disjointed and difficult to follow. It also fails
to comply with our appellate rules for briefing in several respects. However, we
recognize that Bray is proceeding pro se. As such, we have afforded him some
leniency and have done our best to piece together his various arguments. See
Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky. 1967) (“[H]ere we have a
prisoner proceeding pro se, therefore, we do not impose on him the same standards
as those applied to legal counsel.”).
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Based on our review of Bray’s brief, it appears his arguments are as
follows: (1) his trial counsel, Robert Walker, was ineffective where he failed to
introduce statements Bray’s accusers made in district court concerning the bar
fight; 4 (2) Attorney Walker was ineffective for failing to object to the
prosecution’s failure to turn over certain exculpatory evidence; (3) Attorney
Walker was ineffective for failing to introduce evidence showing that the police
coerced Kelly into saying that Bray was the instigator; (4) Attorney Walker was
ineffective for failing to prove that the bar surveillance video played by the
prosecution during trial had been altered; (5) Bray’s new trial counsel was
ineffective for failing to call Attorney Walker to testify during the prior RCr 11.42
and CR 60.02 hearings before the trial court; (6) Bray’s new counsel was
ineffective because he had a conflict of interest where he represented both Bray
and Logsdon; (7) Attorney Walker and new counsel were ineffective in failing to
move for separate trials and/or post-conviction proceedings of Bray and Logsdon;
and (8) the Commonwealth violated Bray’s constitutional rights when it failed to
turn over all exculpatory evidence prior to Bray’s trial.
“A motion for a new trial based upon the ground of newly discovered
evidence shall be made within one (1) year after the entry of the judgment or at a
4
Bray repeatedly refers to these statements being made in the “lower court” prior to his case
being “transferred” to circuit court. We presume he is referring to the Jefferson District Court.
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later time if the court for good cause so permits.” RCr 10.06(1). Bray’s motion for
a new trial pursuant to RCr 10.02, his second such motion, was filed over six years
after entry of his final judgment. Although Bray cites the discovery of “new
evidence,” he fails to explain why the new evidence he claims entitles him to a
new trial could not have been discovered within a year of entry of his judgment.
Accordingly, the trial court did not abuse its discretion in denying Bray’s second
RCr 10.02 motion for a new trial. See Commonwealth v. Carneal, 274 S.W.3d
420, 432 (Ky. 2008).
Bray’s RCr 11.42 arguments can be broken down into two categories:
(1) arguments concerning Attorney Walker’s performance during Bray’s trial; and
(2) arguments concerning Bray’s new counsel’s performance during the prior RCr
11.42 and CR 60.02 proceedings.
With respect to the first category, Bray has already made an RCr
11.42 motion regarding Attorney Walker’s allegedly deficient performance. The
arguments Bray raised in his subsequent RCr 11.42 motion are all issues that were
or could have been raised in the prior proceedings. Accordingly, the circuit court
did not abuse its discretion in denying Bray’s successive RCr 11.42 motion. See
Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983) (“Final disposition of
[an RCr 11.42] motion, or waiver of the opportunity to make it, shall conclude all
issues that reasonably could have been presented in that proceeding.”).
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With respect to the second category, while Kentucky recognizes a
claim premised on the ineffective assistance of appellate counsel on direct appeal,
“there is no counterpart for counsel’s performance on RCr 11.42 motions or other
requests for post-conviction relief.” Hollon v. Commonwealth, 334 S.W.3d 431,
437 (Ky. 2010). Because Kentucky does not recognize a claim for ineffective
assistance of post-conviction counsel, the trial court did not err in denying Bray’s
motion with respect to new counsel’s performance during the prior RCr 11.42 and
CR 60.02 proceedings.
Finally, “CR 60.02 does not permit successive post-judgment
motions.” Foley v. Commonwealth, 425 S.W.3d 880, 884 (Ky. 2014). Bray
previously brought a CR 60.02 motion. His argument concerning the
Commonwealth’s failure to turn over exculpatory evidence and tampering with the
video surveillance could have been made as part of Bray’s prior CR 60.02 motion.
As such, we find no error in the trial court’s denial of Bray’s renewed CR 60.02
motion.
III. CONCLUSION
For the reasons set forth above, we affirm the Jefferson Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Blaine Andrew Bray, pro se Daniel Cameron
Central City, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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