Jamal Nance v. Commonwealth of Kentucky ( 2021 )

RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1472-MR
JAMAL NANCE APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NO. 15-CR-00025
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
CETRULO, JUDGE: Appellant Jamal Nance (Nance) appeals an October 14,
2020 McCracken Circuit Court Order denying his CR1 60.02 motion to vacate his
judgment of conviction. Upon review, we affirm.
1
Kentucky Rule of Civil Procedure.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On September 8, 2015, following a McCracken County jury trial,
Nance was convicted of first-degree burglary, second-degree wanton
endangerment, being a convicted felon in possession of a handgun, and being a
first-degree persistent felony offender. The conviction arose from events occurring
the morning of November 13, 2014. That morning, Nance entered Maranda
Williams’ (Williams) home uninvited with handguns and engaged in an altercation
with Williams, DeAnthony Woods (DeAnthony), and Javiel Winston (Javiel).
Once the police arrived, the lead investigator interviewed each witness and audio-
recorded the interactions. The witnesses also wrote statements of that morning’s
events.
At trial almost a year later, the Commonwealth called Williams,
DeAnthony, and Javiel to testify. All three witnesses were uncooperative and
claimed they could not recall the details of the morning in question. On the stand,
the witnesses read portions of their written statements and interview transcripts
from the morning of the incident to refresh their memories; however, even after
reading the statements, the witnesses still could not recall the details of the
incident. To develop the testimony, the Commonwealth played audio recordings
of the interviews, read statements from the interview transcripts, and directly asked
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the witnesses whether they made certain statements. After deliberation, the jury
found Nance guilty of the crimes alleged.
Nance directly appealed his conviction to the Kentucky Supreme
Court and claimed the circuit court erred when it allowed some of the
Commonwealth’s trial tactics.2 Nance v. Commonwealth, No. 2016-SC-000027-
MR, 2017 WL 3634582 (Ky. Aug. 24, 2017). The Kentucky Supreme Court
disagreed with Nance’s claims and affirmed his conviction, in relevant part,3
finding the Commonwealth’s trial tactics were appropriate because the witnesses
were uncooperative, did not want to testify, and were not able to recall the incident
details. Id.In 2018, Nance filed an RCr4 11.42 motion claiming ineffective
assistance of counsel. The circuit court denied the motion because it found the
claims were either refuted by the record or were conclusory. This Court affirmed.
Nance v. Commonwealth, No. 2018-CA-001245-MR, 2020 WL 2609981 (Ky.
App. May 22, 2020).
2
Nance argued the circuit court erred when it allowed (1) the jury to hear the interview audio,
(2) the witnesses to read from the transcripts, and (3) the Commonwealth to ask leading
questions.
3
The Kentucky Supreme Court reversed and remanded only on the restitution issue.
4
Kentucky Rules of Criminal Procedure.
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Then, in 2019, DeAnthony and Javiel signed affidavits claiming that
they fabricated the statements given to police on the morning of the incident
because DeAnthony was mad at Nance. Williams, however, did not provide a
similar affidavit of recantation.
Finally, Nance filed a CR 60.02 motion to vacate judgment of
conviction based on DeAnthony’s and Javiel’s affidavits. The circuit court denied
Nance’s motion because it found the motion (1) was not timely under CR 60.02(b)
and (f); and (2) did not meet the high threshold of CR 60.02. This appeal followed.
II. STANDARD OF REVIEW
We review the denial of a CR 60.02 motion using an abuse of
discretion standard. Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996).
“The test for abuse of discretion is whether the trial court’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). An appellate court will affirm the lower
court’s decision absent a “flagrant miscarriage of justice.” Foley v.
Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014).
III. TIMELINESS
Nance brought his CR 60.02 motion under subsections (b) and (f),
claiming that it is based upon newly discovered evidence that is of an extraordinary
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nature and could not have been discovered within one year of his conviction. First,
we consider the timeliness of these claims. CR 60.02 provides in relevant part:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds . . . (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02 . . . or (f) any other
reason of an extraordinary nature justifying relief. The
motion shall be made within a reasonable time, and on
grounds (a), (b), and (c) not more than one year after the
judgment, order, or proceeding was entered or taken. A
motion under this rule does not affect the finality of a
judgment or suspend its operation.
(Emphasis added.)
(A) CR 60.02(b)
Subsection (b) requires a movant to file a motion “not more than one
year after the judgment, order, or proceeding was entered or taken.” Id. Nance argues
that the one-year period should start when Nance was informed of the first affidavit;
however, this Court has made it clear that the one-year period begins on the date of
the final judgment. Kirksey v. Commonwealth, 592 S.W.3d 324, 327 (Ky. App.
2019). This Court held that when a movant specifies CR 60.02(b) as a ground for
relief, movant is “required to bring his motion ‘not more than one year’ after
judgment” was entered. Id. (citation omitted). In Kirksey, the court entered judgment
against the movant on December 20, 2012, and he filed his CR 60.02 motion three-
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and-a-half years later, on July 20, 2016. Id. This Court found his motion was
“untimely and therefore time-barred.” Id.Here, the circuit court entered Nance’s judgment in 2015, Nance was
informed of the first affidavit on July 23, 2019, and Nance filed his motion citing
DeAnthony’s and Javiel’s affidavits on July 22, 2020. Nance argues that because he
filed the motion a year after he was informed of the first affidavit, the motion meets
the one-year requirement.5 However, that is not the rule.6 Instead, the one-year
period begins on the date of the final judgment,7 which was in 2015. Here, the circuit
court explained that because Nance filed his motion five years after his final judgment
was entered, he did not meet the one-year period required and was therefore untimely
under subsection (b). We agree.
(B) CR 60.02(f)
Next, we consider the motion under subsection (f), which requires
filing within a “reasonable time.” CR 60.02(f). A circuit court may decide
whether the movant filed the motion within a “reasonable time” based on the
record in the case alone and need not hold a hearing to make such determination.
5
Despite this argument, Nance acknowledged the affidavits were time-barred under CR
60.02(c), which has the same time constraint as his new argument under CR 60.02(b).
6
“Relief may be granted under CR 60.02(b) for any newly discovered evidence by which due
diligence could not have discovered in time to move for a new trial and within one year after
judgment.” Stoker v. Commonwealth, 289 S.W.3d 592, 596 (Ky. App. 2009) (citing CR 60.02
and McQueen v. Commonwealth, 948 S.W.2d 415, 417 (Ky. 1997)).
7
Id. See also Kirksey, 592 S.W.3d at 327.
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Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). Further, the trial court
may consider “whether the passage of time between judgment and motion was
reasonable in light of the fading memories of witnesses.” Stoker, 289 S.W.3d at
596. In Gross, the Kentucky Supreme Court upheld the circuit court’s decision
that “five years was not a reasonable time” because the circuit court based the
decision on the record. Gross, 648 S.W.2d at 858. The Kentucky Supreme Court
went on to emphasize that an appellate court should respect the trial court’s
exercise of discretion. Id.
Here, the circuit court determined Nance did not file his motion within
a “reasonable time.” The circuit court based this finding on the record, citing the
five-year passage of time between judgment and motion. The circuit court also
noted that the recanting witnesses testified at trial (only one year after the incident)
that they could not remember the details of the incident because it was so long ago.
Now, five years later, they claim to remember the details of the incident. The
circuit court determined this passage of time was not reasonable–especially in light
of the witnesses’ difficulty remembering details at trial–and denied the motion.
We agree.
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IV. CONFLICTING WITNESS STATEMENTS
Even if Nance filed the motion on time, which the circuit court
concluded he did not, the circuit court still determined the motion should be denied
because it does not meet the requisite CR 60.02 threshold.
The threshold to grant a CR 60.02 motion is high. Harris v.
Commonwealth, 296 S.W.2d 700, 702 (Ky. 1956). A court may grant a CR 60.02
motion to set aside a criminal judgment “only in extraordinary and emergency
cases where the showing made is of such a conclusive character as to indicate the
verdict most probably would not have been rendered and there is a strong
probability of a miscarriage of justice.” Id.Recanted testimony claims under CR 60.02–what Nance claims here–
have an even higher threshold. Thacker v. Commonwealth, 453 S.W.2d 566, 568
(Ky. 1970). Kentucky caselaw makes clear “that it is not enough merely to show
that a prosecuting witness has subsequently made contradictory statements or that
he is willing to swear that his testimony upon the trial was false, for his later oath
is no more binding than his former one.” Anderson v. Buchanan, 168 S.W.2d 48,
53 (Ky. 1943). Although DeAnthony and Javiel now swear “the story was made
up,” Kentucky’s highest court has made it clear, time and again, that mere
recantation is not enough to vacate a conviction or grant a new trial:
[T]here are special rules for situations of recanted
testimony. The general rules are that recanting testimony
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is viewed with suspicion; mere recantation of testimony
does not alone require the granting of a new trial; only in
extraordinary and unusual circumstances will a new trial
be granted because of recanting statements; such
statements will form the basis for a new trial only when
the court is satisfied of their truth; the trial judge is in the
best position to make the determination because he has
observed the witnesses and can often discern and assay
the incidents, the influences and the motive that prompted
the recantation; and [the] rejection of the recanting
testimony will not lightly be set aside by an appellate
court.
Thacker, 453 S.W.2d at 568 (emphasis added).
Recently, the Kentucky Supreme Court again emphasized this rule.
Commonwealth v. Crumes, 630 S.W.3d 630 (Ky. 2021). Like here, the circuit
court in Crumes denied the movant’s CR 60.02 motion for reasons including (1)
the witness’s new testimony declaring appellant’s innocence was not credible; and
(2) the other evidence at trial was sufficient to support the jury’s verdict even
without that witness’s testimony. Id. at 643. There, the Kentucky Supreme Court
upheld the circuit court’s decision because it found the circuit court’s reasoning
constituted substantial evidence and therefore it did not abuse its discretion. Id. at
648.
Here, synonymously, the circuit court considered the evidence and
determined (1) the affidavits were not credible because they contradicted the initial
written statements and the evidence at trial; and (2) there was other evidence (most
importantly Williams’ testimony) that implicated Nance and was sufficient to
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convict him without the other witnesses’ statements. Like in Crumes, the circuit
court based the decision on substantial evidence and therefore did not abuse its
discretion.8
V. HEARING
Lastly, we consider the circuit court’s decision to deny Nance’s
motion without a hearing. “A movant is not entitled to a hearing on a CR 60.02
motion unless he affirmatively alleges facts which, if true, justify vacating the
judgment and further allege[s] special circumstances that justify CR 60.02 relief.”
White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000) (internal quotation
marks omitted). As discussed, the circuit court considered the record and its
observations during trial and found that even if the facts alleged in the affidavits
were true, it would not justify relief because Williams’ testimony still stands. The
jury heard Williams’ testimony during trial–not just DeAnthony’s and Javiel’s–and
Williams did not recant her testimony. For this reason, the circuit court concluded
that Nance had failed to show that his new evidence, even if true, “would have
probably resulted in a different outcome at trial.” Crumes, 630 S.W.3d at 646.
Since the circuit court determined that the affidavits, even if true, would not
8
“The record shows clearly that the trial court gave [the witness]’s original testimony and all
post-conviction testimony careful consideration.” Crumes, 630 S.W.3d at 648.
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compel relief under CR 60.02, there was no need for it to conduct an evidentiary
hearing.
This Court may set aside the circuit court’s findings only if those
findings are clearly erroneous, “i.e., whether . . . the findings are supported by
substantial evidence.” Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003).
Here, as discussed, the circuit court’s findings are supported by substantial
evidence, which it thoroughly cites in its order. Therefore, its findings are not
clearly erroneous and must be upheld.
VI. CONCLUSION
The McCracken Circuit Court committed no error in denying Nance’s
CR 60.02 motion without a hearing. We therefore AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Whitney Wallace Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan
Assistant Attorney General
Frankfort, Kentucky
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