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RENDERED : NOVEMBER 25, 2009
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ROBBIE LYNN SCOTT APPELLAN
ON APPEAL FROM BARREN CIRCUIT COURT
V. HONORABLE PHILLIP R. PATTON, JUDGE
NO . 08-CR-00038
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Robbie Lynn Scott was convicted of first-degree rape and sentenced to
thirty-five years' imprisonment . Scott contends the trial court erred when it
denied his motion for a new trial based upon alleged perjury. We disagree.
Scott was indicted for raping his juvenile niece, A.W ., and for being a
persistent felony offender in the first degree (PFO 1) . The charges proceeded to
a jury trial . Among other evidence presented at trial, A .W. testified that on four
different occasions, Scott inserted his penis into her vagina. Additionally, John
Edward Michael, a former cellmate of Scott's, testified that Scott had bragged
to him about having sexual intercourse with A.W. Michael also testified that he
did not have prior knowledge of A .W. or her father, Michael Whitlow. Although
there was no DNA evidence against Scott, a physician did testify that he found
in A.W.'s vaginal area a scar that was consistent with sexual intercourse. Scott
testified on his own behalf and denied raping A.W . or having discussed his
charges with Michael. Ultimately, the jury found Scott guilty of first-degree
rape and of being a PFO I .
Five days post-trial, Scott filed a motion for a new trial . The crux of that
motion was his contention that he had discovered new evidence showing that
Michael had committed perjury when he testified that he had had no previous
knowledge of Whitlow. The trial court conducted a brief evidentiary hearing on
Scott's motion for a new trial.
At that evidentiary hearing, Scott's father testified that he had seen
Whitlow and Michael speaking during and after Scott's trial; but he could not
make out the details of those conversations . Scott's father also testified that he
thought he had seen Whitlow and Michael together before the trial, but Scott's
father stated he was not sure that the people he had seen together before the
trial were Whitlow and Michael . Particularly damning to Scott's motion for a
new trial, Scott's father stated that he told someone at Scott's counsel's table
during the trial that he had seen Michael and Whitlow conversing .'
Similarly, Scott's brother's girlfriend testified at the hearing that she had
seen Michael speaking with Whitlow after Michael had first testified (he
apparently was recalled to testify later) but could not discern what was said
during that conversation. Likewise, Scott's ex-wife, who was also Whitlow's
' In his reply brief, Scott states that the person Scott's father had told about
witnessing the conversation between Whitlow and Michael was a law clerk .
sister, testified that she had seen Whitlow and Michael speaking during Scott's
trial.
Whitlow also testified at the post-trial evidentiary hearing. He admitted
speaking to Michael after Michael testified during Scott's trial and introducing
himself to Michael at that time. But Whitlow denied knowing Michael before
trial.
After the attorneys made their arguments at the close of the evidentiary
hearing, the trial court denied Scott's motion for a new trial and proceeded to
sentence Scott to thirty-five years' imprisonment in accordance with the jury's
recommendation . This appeal followed . 3
The only issue raised by Scott is his contention that the trial court erred
by denying his motion for a new trial. We disagree .
2 It would have been better practice for the jury to have been instructed to return a
recommended sentence on the rape conviction before addressing the PFO charge
and any consequent PFO-enhanced sentence. Commonwealth v. Reneer,
734 S .W.2d 794, 798 (Ky. 1987) ("If the accused is also charged as a persistent
felony offender, the penalty phase and a persistent felony offender phase can be
combined . . . and the jury in the combined bifurcated hearing could be instructed
to (1) fix a penalty on the basic charge in the indictment ; (2) determine then
whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the
enhanced penalty as a persistent felony offender .") . However, since the failure to
recommend a sentence for the underlying rape conviction has not been raised by
the parties as an issue and because this case is not otherwise being remanded, we
decline to remand for a new sentencing sua sponte. See, e.g., Owens v.
Commonwealth, 291 S.W .3d 704, 706 n .5 (Ky . 2009) (noting that "[n]either the jury
nor the trial court assessed a separate penalty for the possession of a controlled
substance conviction" but not sua sponte remanding case to trial court for re-
sentencing .) .
3 See Ky. Const. § 110(2) (b) .
"Whether to grant a new trial on the basis of newly discovered evidence is
largely within the discretion of the trial court . . . . "4 A party claiming
entitlement to a new trial based upon newly discovered evidence faces a high
burden as "newly -discovered evidence that merely impeaches the credibility of a
witness or is cumulative is generally disfavored as grounds for granting a new
trial."5 Instead, a new trial based upon newly discovered evidence is
appropriate only if the new evidence is "`of such decisive value or force that it
would with reasonable certainty, change the verdict or that it would probably
change the result if a new trial should be granted . "'6 A motion for a new trial
based upon newly discovered evidence "must be accompanied by an affidavit
showing that Appellant exercised sufficient diligence to obtain the evidence
prior to his trial." 7 We, as an appellate court, may reverse a trial court's
decision to deny a motion for a new trial only if the trial court's decision is an
abuse of discretion.s
We have not been directed in the record to, nor have we independently
located, any affidavit showing that Scott made reasonably diligent efforts to
obtain the allegedly newly discovered evidence before trial. So we could
summarily dismiss this appeal. But even if we exercise leniency by not
dismissing this appeal, Scott's claim must fail.
Foley v. Commonwealth, 55 S.W.3d 809, 814 (Ky. 2000) .
Collins v. Commonwealth, 951 S.W.2d 569, 576 (Ky. 1997) (quoting Coots v.
Commonwealth , 418 S.W.2d 752, 754 (Ky. 1967)) .
Collins, 951 S .W .2d at 576.
Foley, 55 S.W. 3d at 814.
It is uncontested that Scott's father told someone working on Scott's
behalf during Scott's trial that Michael had been talking to Whitlow. The fact
that Scott's father allegedly spoke to a law clerk, rather than to Scott's
. attorney, does not excuse Scott's counsel's apparent failure to explore timely
Michael's familiarity with Whitlow. In other words, once Scott's father reported
seeing Michael conversing with Whitlow, Scott's counsel could have taken steps
to delve sufficiently into that allegation to determine if Michael had testified
untruthfully . Thus, we conclude that the allegedly newly discovered evidence
was not really newly discovered . Instead, it seems that the bulk of the allegedly
newly discovered evidence presented at the hearing was, in actuality,
discovered during the trial-or reasonably should have been discovered during
the trial-but not acted upon until after the trial.
Even if we were to assume, solely for purposes of argument, that the
evidence in question met the definition of newly discovered evidence, Scott still
would not be entitled to relief. At most, the hearing on Scott's motion for a new
trial showed that Michael had one or two discussions with Whitlow during
Scott's trial. No witness testified that those discussions had anything to do
with the substance of Michael's testimony or that those discussions influenced
Michael's testimony in any manner . At most, Scott presented evidence that
would have impeached Michael's credibility.
As previously stated, mere impeachment-type evidence is generally
insufficient to necessitate granting a defendant a new trial.9 We reject Scott's
claim that the evidence in this case is "precisely the sort of impeachment
evidence this Court should find `decisive enough' to be at least `reasonably'
certain to alter the jury's recommended sentence." To the contrary, the
evidence in question would show (at most)--that Michael was not telling the .
truth when he denied knowing Whitlow or A.W.'s family. Also, perhaps, the
testimony presented at the hearing could have suggested that Michael could
have learned facts about Scott's life, including Scott's wife's place of
employment, in a manner other than having conversed with Scott.
Much was made at trial of Michael's testimony of Scott's wife's
employment at a local K-Mart store . The Commonwealth contended that
Michael's knowledge of Scott's wife's place of employment showed that Michael
had actually talked to Scott because that fact was not in any discovery
materials Michael could have seen in the cell he once shared with Scott. At the
evidentiary hearing, Scott's ex-wife'O testified that she had spoken with another
of Scott's ex-cellmates, who claimed that he and Scott had discussed Scott's
case while Michael was within earshot. All of this K-mart-related evidence,
however, is, at most, impeachment of Michael's credibility .
Michael's relationship, if any, with the victim or her family was a
collateral issue ; and presentation of evidence on that issue would not have
been reasonably certain to alter the jury's verdict, whether that evidence is
to The woman who had been employed at K-Mart and who was apparently still Scott's
wife at the time of trial described herself as his "ex-wife" at the time of the post-trial
evidentiary hearing. In other words, his wife at trial was the same person as the
"ex-wife" at the evidentiary hearing.
strictly classified as newly discovered evidence or is more loosely classified as
evidence of a witness's perjury. Instead, the evidence in this case is precisely
the type of evidence that falls squarely within the general rule that evidence
impeaching ..a witness is insufficient to merit a new trial.
This Court has concluded many times that a new trial was not warranted
in cases presenting much stronger newly discovered evidence, including cases
in which there were affidavits attesting that the defendant was innocent. I I The
trial court, therefore, did not abuse its discretion when it denied Scott's motion
for a new trial; and so we decline Scott's request to remand this case for either
a complete new trial or, alternatively, a new sentencing phase .
For the foregoing reasons, the judgment of the Barren Circuit Court is
affirmed.
All sitting. All concur.
Id. ("In Epperson v. Commonwealth , [809 S .W.2d 835 (Ky. 1991)] . . . the motion
for a new trial was premised upon affidavits from prison inmates alleging, as here,
that the prosecution's chief witness had admitted to them that he, not the
defendant, had killed the victim . The affidavits were deemed to be merely
impeaching and insufficient to require a new trial. In Coots v. Commonwealth,
supra, evidence that the prosecutrix had made a post-trial statement to a police
officer that the defendant had not molested her was held to be merely impeaching
and not to require a new trial . Denials of motions for new trials were also upheld
in Parsley v. Commonwealth , Ky., 321 S.W.2d 259 (1958) (evidence that the
prosecuton's mother later admitted that she had mistakenly identified the
defendant as the person who raped her daughter tended only to impeach) ; Jeter v.
Commonwealth , 268 Ky. 285, 104 S .W .2d 979 (1937) (alleged post-trial statement
by prosecution's chief witness that contradicted his trial testimony with respect to
whether the defendant killed the victim in self-defense was merely impeaching) ;
Alford v. Commonwealth, 244 Ky. 27, 50 S .W .2d 1 (1932) (alleged post-trial
statements of prosecuting witnesses contradicting their trial testimony that the
victim was unarmed when he was shot was cumulative and impeaching) .") .
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Robbie Lynn Scott v. Commonwealth of Kentucky
Combined Opinion