Robert C. Napier v. Commonwealth of Kentucky

RENDERED: APRIL 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1062-MR
ROBERT C. NAPIER APPELLANT
APPEAL FROM ROCKCASTLE CIRCUIT COURT
v. HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 18-CR-00040
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: A jury found Robert C. Napier guilty of four counts of first-
degree sexual abuse (victim under age 12) and one count of first-degree sexual
abuse (victim under age 16). Prior to sentencing, Napier entered into a plea
agreement with the Commonwealth, agreeing to a ten-year sentence of
imprisonment in exchange for a waiver of jury sentencing and right of appeal.
Napier now appeals from the trial court’s judgment of conviction and from its
denial of his motion for a new trial. We conclude Napier waived his right to a
direct appeal and affirm the denial of his motion for a new trial.
PROCEDURE
On February 26, 2019, a Rockcastle Circuit Court jury found Napier
guilty of four counts of first-degree sexual abuse (victim under age 12) and one
count of first-degree sexual abuse (victim under age 16). After the guilty verdict
was read into the record, the trial court went into recess.
Upon returning to the record, the Commonwealth and Napier
informed the trial court they had entered into a verbal plea agreement,1 wherein
Napier waived jury sentencing and his right to appeal in exchange for a ten-year
prison sentence. The following exchange took place:
Commonwealth: I essentially made an offer to bypass
jury sentencing, ten years to serve, Mr. Napier waives any
future appeals that he may have.
Court: So, you’re asking me to accept the waiver of jury
sentencing from the defense, have the defendant waive his
rights of appeal, set the matter for sentencing after a
[presentence investigation] is completed?
Defense Counsel: Yes
Commonwealth: Yes. We may want to get it on the
record today, though, that he understands he’s waiving his
appeal and that he understands I’m recommending ten
years to serve.
1
At no point did the parties memorialize the agreement into writing.
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....
Defense Counsel: On the record, the Defendant will
waive jury sentencing and accept the offer made by the
Commonwealth. [Napier] needs to waive his right to
appeal.
(Video Record (V.R.) 2/26/19; 7:23:19-7:24:50.)
To ensure that Napier knowingly, intelligently, and voluntarily
entered into the agreement, the trial court conducted the following plea colloquy:
Court: Mr. Napier, if you’ll stand up. Raise your right
hand for me. Do you swear and affirm to tell the truth, the
whole truth, and nothing but the truth so help you God?
Napier: Yes, sir, I do.
Court: State your name for the record again.
Napier: Robert Napier.
Court: Your date of birth.
Napier: 6/04/78.
Court: And the last four digits of your social security
number.
Napier: [omitted.]
Court: Are you thinking clearly now?
Napier: Yes, sir.
Court: Are you under the influence of any drugs or
alcohol?
Napier: No, sir, I’m not.
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Court: Has anybody threatened you to do anything
against your will (inaudible)?
Napier: No, sir, they haven’t.
Court: Do you have any mental illness that might keep
you from understanding what I’m saying to you?
Napier: No, sir.
Court: Do you understand that you are now waiving your
right to have a jury sentence you to crimes for which you
have been convicted and that you’re waiving your rights
to appeal the process?
Napier: Yes, sir, I do.
Court: The matter will be set for formal sentencing.
....
(V.R. 2/26/19; 7:24:45-7:25:30.)
On March 15, 2019, the trial court entered a “Trial Verdict and
Judgment,” wherein it noted:
[Napier] entered into an agreement in which the
Commonwealth would agree to a sentence of ten (10)
years imprisonment for each of the four (4) counts of
Sexual Abuse, First Degree, and five (5) years
imprisonment on one (1) count of Sexual Abuse, First
Degree, victim under 16 years of age, with the sentences
imposed to be calculated concurrently with each other
for a total of ten (10) years imprisonment.
Furthermore, [Napier] stated on the record that he was
in agreement with this recommendation and would
therefore waive his right to appeal.
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(Record (R.) at 76-77.) Entry of a final judgment imposing sentence was
postponed pending a presentence investigation and sex offender evaluation.
On March 5, 2019, prior to final sentencing, Napier filed a motion for
a new trial pursuant to RCr2 10.02(1). On March 26, 2019, Napier filed a sworn
affidavit, signed by the foreman of the jury, in support of his motion. The affidavit
alleged, in part, “[d]uring deliberations two female jurors revealed they had
personally been sexually abused–one by an uncle, although this fact was not
revealed during voir dire[.]” (R. 83-86.) These two female jurors were never
identified. Nevertheless, Napier’s argument, in effect, is that he was denied a fair
and impartial jury. The motion was denied without an evidentiary hearing.
The trial court followed the Commonwealth’s recommendation and
sentenced Napier to ten years in prison. This appeal followed.
ANALYSIS
Napier raises two arguments on appeal: (1) he was entitled to a
new trial based on newly discovered evidence that two jurors failed to respond
honestly to voir dire questions; and (2) the trial court erred by admitting prior
consistent statements of J.M., one of the minor victims in this case. However,
before reaching either issue, this Court must necessarily determine whether he
waived his right to appeal.
2
Kentucky Rules of Criminal Procedure.
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“To be valid, a guilty plea[3] must be entered ‘intelligently and
voluntarily.’” Hammond v. Commonwealth, 569 S.W.3d 404, 408 (Ky. 2019)
(citation omitted). “The validity of a guilty plea must be determined not from
specific key words uttered at the time the plea was taken, but from considering the
totality of circumstances surrounding the plea.” Centers v. Commonwealth, 799
S.W.2d 51, 54 (Ky. App. 1990). Solemn declarations in open court, however,
“carry a strong presumption of verity.” Id. (citing Blackledge v. Allison, 431 U.S.
63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). We review a trial court’s acceptance
of a guilty plea as knowing and voluntary for clear error. Commonwealth v.
Patton, 539 S.W.3d 651, 653 (Ky. 2018).
Napier asserts the waiver of his right to appeal was involuntary and
unknowing, because the plea colloquy conducted by the trial court lacked certain
elements required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.
2d 274 (1969). Specifically, he contends the colloquy did not inform him that he
had a state constitutional right to appeal, did not inquire whether he was satisfied
with the advice of counsel, did not lay out his choices about his right to appeal, and
did not explain that a waiver of his right to “appeal the process” not only included
3
We note that this is not a typical “guilty plea” as it was entered after Napier was convicted by a
jury. However, the same standard applies. See Commonwealth v. Patton, 539 S.W.3d 651 (Ky.
2018); Johnson v. Commonwealth, 120 S.W.3d 704 (Ky. 2003); Geary v. Commonwealth, 96
S.W.3d 1 (Ky. 2001).
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a waiver of his right to appeal his sentence, but also any error that may have
occurred during the guilt phase of trial.
Although the colloquy conducted by the trial court was relatively
short, “a knowing, voluntary and intelligent waiver does not necessarily include a
requirement that the defendant be informed of every possible consequence and
aspect of the guilty plea.” Turner v. Commonwealth, 647 S.W.2d 500, 500-01 (Ky.
App. 1982). “A guilty plea that is brought about by a person’s own free will is not
less valid because he did not know all possible consequences of the plea and all
possible alternative courses of action.” Id. at 501. Having reviewed the plea
colloquy, and considering the totality of the circumstances, it is clear that Napier’s
plea was made knowingly, intelligently, and voluntarily.
Prior to the plea colloquy, the Commonwealth, in the presence of
Napier stated the essence of the plea agreement–Napier would serve a ten-year
prison sentence and would waive “any future appeals that he may have.”
(Emphasis added.) Napier’s counsel, again in his presence, acknowledged this was
the deal and specifically told the trial court that he needed to waive his right to
appeal. Not once did Napier indicate he did not understand what he was waiving,
nor did he offer the least hint he believed he could still appeal some part of his
criminal trial.
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The trial court then confirmed, by plea colloquy, that Napier
understood the rights he was waiving. Prompted by questions from the trial court,
Napier acknowledged there was nothing mentally or otherwise hindering his ability
to understand the agreement and that he was not coerced in any way to enter the
plea. At the end of the colloquy, the trial court confirmed that Napier understood
the ultimate consequences of his plea–a waiver of his right to appeal. As noted
above, the trial court asked:
Do you understand that you are now waiving your right to
have a jury sentence you to crimes for which you have
been convicted and that you’re waiving your rights to
appeal the process?
Napier responded, “Yes, sir, I do.”
Importantly, this colloquy occurred after a trial court recess, which
lasted approximately forty-five minutes.4 During this time, the parties negotiated
and reached the agreement. There is no evidence Napier did not have the
opportunity to fully discuss the consequences of the plea agreement with his
counsel. Nor did he indicate he needed more time to contemplate the agreement.
As the seasoned jurist presiding in this case said of the negotiated plea
agreement:
4
The trial court’s order noted that Napier conferred with his counsel for over an hour prior to
reaching an agreement. However, the trial court went off the record for a recess at 6:37:00 p.m.
and returned on the record at 7:23:03 p.m., at which time the Commonwealth informed the trial
court of the plea agreement.
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The Defendant was represented by three attorneys, two of
[whom] are of the most experienced, well-known, and
long-serving defense attorneys in this Commonwealth.
Those attorneys bargained on behalf of their client to
waive defect by waiving appeals in favor of a definitive,
lesser potential sentence.
(R. 91.)
Given the nature of his crime, and the possibility of receiving a
twenty-year sentence, it seems to this Court that Napier voluntarily entered into the
plea agreement for good reason. Moreover, there is nothing in the record to
indicate Napier was confused as to the nature and scope of the rights he was
waiving. Accordingly, the trial court’s conclusion that he knowingly, intelligently,
and voluntarily waived his right to appeal is supported by substantial evidence.
Napier’s valid plea agreement precludes him from raising his
evidentiary concerns, which arose during the guilt phase of trial, on appeal.
However, whether his waiver precludes him from appealing the denial of his
motion for a new trial is a different issue. Although a plea agreement reduces the
scope of appealable issues, it does not waive every constitutional right. See
Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008). Nor does it waive a
criminal defendant’s rights to seek subsequent relief in the form of a motion for a
new trial, so long as the issues raised could not have been brought on direct
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appeal.5 Logically, a plea agreement waiver does not waive an appeal from the
denial of a motion for a new trial that was properly before the trial court.
Here, Napier’s RCr 10.02 motion for a new trial was based, in part, on
newly discovered evidence of juror mendacity, which he contended resulted in a
conviction by a jury that was not impartial. Unlike the evidentiary issues he raises,
which could and should have been considered in his decision to enter into the plea
agreement, he did not have the opportunity to contemplate this alleged and newly
discovered potential juror bias prior to entering the plea. Accordingly, he was not
prevented from raising this issue in his motion for a new trial, and he is not barred
from appealing its denial.
We review the trial court’s denial of Napier’s motion for new trial
under the abuse of discretion standard. Hall v. Commonwealth, 337 S.W.3d 595,
613 (Ky. 2011).
A new trial may be granted based on juror mendacity upon a showing
“that a juror failed to answer honestly a material question on voir dire, and then
further show[ing] that a correct response would have provided a valid basis for a
challenge for cause.” Edmondson v. Commonwealth, 526 S.W.3d 78, 83 (Ky.
2017) (quoting Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003)).
5
This logic has been adopted by this Court. See Bray v. Commonwealth, No. 2014-CA-000128-
MR, 2017 WL 2713458, at *1 n.1 (Ky. App. Jun. 23, 2017).
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Likewise, a new trial may be granted if it is shown “that the juror’s dishonesty
prevented inquiry into a critical subject that may have exposed a disqualifying bias
or prejudice.” Gullett v. Commonwealth, 514 S.W.3d 518, 525 (Ky. 2017).
Napier’s argument is based on the jury foreman’s affidavit disclosing
the jury’s deliberation discussions. In the affidavit, the foreman said that two
unidentified female jurors said during deliberations that they had been sexually
abused. Napier argues this means the two unidentified women did not answer
honestly during voir dire, thereby tainting the jury. We disagree.
For purposes of our review, we disregard the questionable aspects of
this affidavit because they were adequately addressed by the trial court, and move
on to the substantive question – did this newly discovered evidence justify a new
trial? We conclude, as did the trial court, it did not.
The trial court commenced voir dire by asking preliminary
examination questions of the prospective jurors. Specifically, the trial court asked,
“has anybody themselves been involved in a case similar to this or had a child or
loved one or a spouse or sibling or someone that may have gone through a criminal
case like this?” (V.R. 2/25/19, 9:49:10) (emphasis added). Obviously, neither of
the unidentified jurors referenced in the affidavit came forward, although other
potential jurors did.
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After concluding preliminary questioning, the trial court turned voir
dire over to the Commonwealth. The prosecutor followed up on the trial court’s
questioning by asking, “Has anyone had any dealings with sex abuse cases whether
you’re a victim, you’ve been charged, your son, brother, mother has been charged
or your son, brother, mother, sister has been a victim?” (Emphasis added.) Again,
neither of the suspect jurors came forward. Voir dire was then turned over to
defense counsel.
As the trial court stated, although “an experienced defense counsel
neglected to question potential jurors to their status as survivors of sexual abuse, a
question was posed by the [trial c]ourt inquiring of any factor for which the jurors
did not think they could serve impartially, to which no juror expressed hesitancy or
reason they could not be impartial.” (R. 101.) The trial court’s order denying the
new trial said:
Here, all we have is an affidavit from the foreperson based
on alleged statements by two unnamed jurors; in total, this
amounts to mere unsupported allegations and are not
sufficient to require a hearing. Moreover, no juror
expressed any reason as to why they could not be impartial
when asked by the Court. Further, this Court will not
engage in a proverbial “witch hunt” seeking out the two
alleged jurors in order to establish their alleged status as
survivors of sexual assault. Because there is no showing
of actual juror bias or prejudice, the Motion for a New
Trial based on these grounds is OVERRULED.
(R. 104.)
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We agree with the trial court that Napier’s claim fails under the first
prong of the juror mendacity analysis. Napier presented no proof that any juror
failed to answer honestly to the questions posed during voir dire.
The defendant “bears the primary responsibility to ask the proper
question on voir dire examination and a failure to so inquire will generally
preclude relief.” Moss v. Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997). No
one asked the members of the venire if any of them personally experienced, or was
a survivor of, sex abuse. Napier’s motion, in effect, erroneously presupposes that
someone did. Accordingly, the trial court did not abuse its discretion by denying
Napier’s motion for a new trial based on juror mendacity.
CONCLUSION
The Rockcastle County Circuit Court’s judgment of conviction and
denial of his motion for a new trial are affirmed.
JONES, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS WITHOUT WRITING
SEPARATELY.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Daniel Cameron
Kathleen K. Schmidt Attorney General of Kentucky
Frankfort, Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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