RENDERED: MAY 21, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1875-MR
JESSICA HAILEY ROBINSON APPELLANT
APPEAL FROM ROCKCASTLE CIRCUIT COURT
v. HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 12-CR-00017-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
JONES, JUDGE: Jessica Robinson appeals from the order entered by the
Rockcastle Circuit Court denying her motion to vacate, set aside, or correct
sentence pursuant to RCr1 11.42 and CR2 60.02. Following review of the record,
briefs, and law, we affirm.
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
I. BACKGROUND AND PROCEDURAL HISTORY
The factual background and relevant trial testimony were summarized
by the Kentucky Supreme Court as part of its direct review of Robinson’s
judgment of conviction and sentence. We adopt the Supreme Court’s summary as
set forth below:
In the days leading up the shooting death of Jackie
Bullock, his “friends”—Bobby Peters, Hanna Hunsucker
(Peters’ girlfriend), Josh Cameron, Gary Lee Kirby, and
Jessica Robinson—partied and consumed
methamphetamine at Peters’ house in Rockcastle County,
Kentucky. At some point during this time, at least some
members of the group hatched a plot to rob Bullock of
his prescription pain pills and money. Bullock was
known to fill prescriptions for pain pills in Georgia and
was alleged to sell some of the drugs. The group
believed Bullock had just returned from Georgia and
believed he would have a ready supply of pills. The
primary issue at trial was Robinson’s role in this plot, and
the evidence introduced at trial was conflicting on this
point and others.
On the evening of November 30, 2011, Bullock was at
home—where he lived with his father—when Robinson
called and invited him over to Peters’ house. His father
testified that Bullock left around 9:30 p.m., and
according to his father, there was nothing unusual about
that.
According to one of several statements Robinson made to
police, she called Bullock to get money for a medical
appointment the next day. She also stated, in one of the
statements, that Peters said something about robbing
Bullock about thirty minutes before Bullock arrived, and
Kirby said he would do it because he had a gun.
Robinson claimed at times that she did not care whether
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they robbed Bullock and at other times that she did not
want them to rob him. She consistently stated that she
did not help them do it.
According to statements from the others, however,
Robinson had helped plan the robbery attempt, implying
that the call to Bullock was part of that plan. They
claimed that part of the impetus behind her participation
was that Bullock had been claiming to have had sex with
Robinson and Hunsucker, which angered them. The plan
was to rob Bullock at Peters’ house.
At some point after Bullock arrived at Peters’ house, he
and Robinson left in his car to get soda and cigarettes.
They also stopped at a cemetery to talk. Bullock
produced four pain pills, all he had, and they took
them. While they were there, Robinson claimed,
Hunsucker called her and told her that they were ready to
rob Bullock.
According to Robinson, she told Hunsucker repeatedly
that Bullock did not have his pills and tried to get them to
not go forward with the robbery. Hunsucker, however,
told Robinson that Kirby and Cameron were going to the
cemetery to commit the robbery. According to
Robinson, she told Bullock to go back to the house from
the cemetery at that point to avoid the robbery. She
claimed she was “scared” and “didn’t want him to be
robbed.”
According to Josh Cameron, who was still at the house,
the phone call was to let them know that the plan was “a
go.” He and Kirby donned masks and dark clothing and
hid outside Peters’ house by a fence, waiting for Bullock
and Robinson to return.
Upon arriving back at the house, Bullock and Robinson
went inside briefly. They found Hannah claiming Kirby
was sick in a bathroom with the door closed. Bullock
stayed for a short time, and then walked outside. At that
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point, Robinson claimed, she discovered that Kirby was
not in the bathroom.
Robinson’s statements differed dramatically as to what
she did next. She initially stated that she witnessed the
robbery and shooting from inside the house looking
through a window. Police confronted her with the fact
that it would have been impossible for her to see the
shooting from the angle she claimed, and she later
changed her story. In later interviews, she claimed that
she went back outside with Bullock because she was
worried about something bad happening to him.
In her fourth interview, she denied getting in the car with
Bullock to leave. She stated that she thought he was safe
when she saw him drive off and that otherwise she would
have tried to stop the robbery because she did not think
the others would hurt her.
In her fifth interview, she finally admitted to getting into
the car to leave with Bullock. She claimed that upon
hearing that Kirby was in the bathroom (and knowing he
was not), she was scared and went back outside, planning
to leave with Bullock. She claimed she got in the car at
that time but did not tell the victim that Kirby was not in
the bathroom, because she did not want him to think she
was involved in the robbery the others had planned. She
seemed to think she could keep the robbery from
happening by being in the car, stating that she wanted to
“protect him” and that she wanted to “keep it all from
happening without having to explain to him.” (This
seems to echo her comment in the fourth interview that
she did not think the others would hurt her, which is why
she thought she could stop the robbery if necessary.)
Regardless of which, if any, version of those events
actually happened, there is little question what happened
to Bullock. He got in his car to leave. After traveling a
short distance down the driveway, Kirby and Cameron
jumped out, and Kirby shot Bullock.
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The car continued down the driveway and came to a stop
after going through a fence. Robinson claimed in her last
statement that she got blood on her shirt because she
grabbed Bullock and that she thought he was dead before
the car reached the end of the driveway. A neighbor who
lived nearby testified to hearing a gunshot sometime
between 10:00 p.m. and midnight.
According to Cameron, they had not intended to kill
Bullock and had just wanted his pills and money. Peters
also testified that their only intention was to take the
victim’s pills, believing it unlikely that Bullock would
call the police about his pills being stolen because he was
a drug dealer, but that the robbery had gone bad because
they had been too long without sleep (and on
methamphetamine). And Hunsucker testified that she did
not know why Kirby killed Bullock and that she had been
shocked and devastated by it. In her own statements,
Robinson claimed not to know why Kirby pulled the
trigger, though she suggested that it was because Bullock
was not going to stop the car.
After the shooting, everyone returned to the house.
Cameron had apparently taken the gun from Kirby, and
he pointed it at all of them and threatened them not to say
anything. All five then got in a car and left. They first
dropped Cameron off somewhere, and he got rid of the
gun (which was never recovered by police). Then
Robinson and Kirby went to Robinson’s boyfriend’s
house where, according to Robinson, Kirby made them
burn his and her clothing and the mask. Robinson
claimed that she revealed the shooting to her boyfriend
and that she claimed, in Kirby’s presence, that Kirby had
shot Bullock for trying to rape her.
Bullock’s car was found later that day, and it was initially
believed that he died from wrecking his car. That he had
been shot was not revealed until a medical examination.
In fact, when Robinson first went to the police, claiming
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she wanted to report a murder, they were not aware that
Bullock had been killed.
In the course of the ensuing investigation, police found a
bag in Peters’ bedroom (which he shared with
Hunsucker) containing items associated with drug use. A
one-step meth lab was also found in the couple’s room.
Each member of the group was indicted for murder,
robbery, and various methamphetamine offenses. Peters,
Hunsucker, and Cameron entered guilty pleas to
complicity to murder. Peters and Cameron also pleaded
guilty to methamphetamine offenses. They were
sentenced to 20 years, 20 years, and 25 years,
respectively. And all three testified for the
Commonwealth at Robinson’s trial. Kirby had also been
convicted, albeit of murder as a principal, and refused to
testify.
The jury found Robinson guilty of wanton murder,
complicity to first-degree robbery, complicity to
manufacturing methamphetamine, and being a second-
degree persistent felony offender. The jury
recommended prison sentences of 22 years for wanton
murder, 10 years enhanced to 20 years for complicity to
first-degree robbery, and 15 years enhanced to 22 years
for complicity to manufacturing methamphetamine; and
it recommended that these sentences run concurrently for
a total prison sentence of 22 years. The trial court
departed upward from the jury’s recommendation,
choosing instead to have four years of the
methamphetamine sentence run consecutively to the
murder sentence. Robinson was thus sentenced to a total
of 26 years’ imprisonment.
Robinson v. Commonwealth, No. 2013-SC-0728-MR, 2015 WL 5634398, at *1-3
(Ky. Sep. 24, 2015) (internal footnotes omitted).
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On direct appeal, Robinson argued: (1) the circuit court erred in
failing to grant a directed verdict on the manufacturing methamphetamine charge;
(2) the circuit court should have severed the methamphetamine charge from the
murder and robbery charges; (3) it was error to allow the Commonwealth to
question Hunsucker about an uncharged and unrelated prior theft Robinson
allegedly committed; and (4) the circuit court erred in refusing to instruct on
criminal facilitation of the murder and the robbery.
Following its review of Robinson’s various assignments of error, the
Supreme Court affirmed Robinson’s convictions for wanton murder and complicity
to first-degree robbery; however, it reversed her conviction for complicity to
manufacturing methamphetamine for insufficient evidence. The Court then
remanded the matter to the circuit court “to amend the final judgment convicting
Robinson of wanton murder and complicity to first-degree robbery to reflect the
remaining sentence of 22 years’ imprisonment for those offenses.” Id. at *11. On
April 20, 2016, the circuit court resentenced Robison to 22 years’ imprisonment in
accordance with the Supreme Court’s directive.
Robinson filed a motion to vacate, set aside, or correct sentence
pursuant to CR 60.02 on October 14, 2018. Despite invoking CR 60.02 in the title
of her motion, Robinson’s opening paragraph stated she moved pursuant to RCr
11.42 and all applicable authority to vacate her sentence. Robinson alleged she
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received ineffective assistance of counsel when (1) trial counsel failed to present
evidence the victim, Jackie Bullock, had the prescription in his pocket; (2) trial
counsel failed to request a renunciation instruction; (3) trial counsel failed to
investigate and/or produce evidence from Robinson’s probation officer; (4) trial
counsel failed to effectively cross-examine Robinson’s co-defendants with respect
to their plea agreements; and (5) trial counsel opened the door to bad character
evidence.3 Additionally, Robinson sought a new trial on the ground that her co-
defendants were now ready to admit she did not participate in the crimes.
The circuit court reviewed Robinson’s motion and determined that she
was seeking relief pursuant to RCr 11.42 as stated in the body of her motion
despite captioning the motion as being filed only pursuant to CR 60.02. Next, it
determined that it was unnecessary to hold an evidentiary hearing because all of
Robinson’s assignments of error were refuted by the record. Thereafter, on
December 6, 2019, the circuit court entered a detailed twenty-three-page order
overruling Robinson’s motion. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a circuit court’s denial of RCr 11.42 relief under
an abuse of discretion standard. Bowling v. Commonwealth, 981 S.W.2d 545, 548
3
She also alleged the attorney of one of her co-defendants previously represented her in a
criminal action, and this represented a conflict of interest. She does not raise this for our review.
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(Ky. 1998). An abuse of discretion has occurred when the circuit court’s decision
is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
III. ANALYSIS
a. Ineffective Assistance of Counsel
To establish an ineffective assistance of counsel claim under RCr
11.42, a movant must satisfy a two-prong test showing both that counsel’s
performance was deficient, and that the deficiency caused actual prejudice
resulting in a proceeding that was fundamentally unfair, and, as a result, was
unreliable. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). As explained in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky.
2002):
The Strickland standard sets forth a two-prong test for
ineffective assistance of counsel: First, the defendant
must show that counsel’s performance was deficient.
This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show
prejudice, the defendant must show 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 the probability sufficient to
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undermine the confidence in the outcome. Id. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 695.
Id. at 411-12. Additionally, we note that the burden is on the movant to overcome
a strong presumption that counsel’s assistance was constitutionally sufficient or
that under the circumstances, counsel’s action “might have been considered sound
trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
When the record fails either to prove or to refute a material issue of
fact, a hearing is required. “The trial judge may not simply disbelieve factual
allegations in the absence of evidence in the record refuting them.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). “The hearing ensures a
defendant the protections of due process in securing his right to effective assistance
of trial counsel. To that end, he is permitted to call witnesses and present evidence
in support of his motion, to cross-examine the witnesses for the Commonwealth,
and to be represented by counsel.” Knuckles v. Commonwealth, 421 S.W.3d 399,
401 (Ky. App. 2014).
However, not every claim of ineffective assistance merits an
evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).
The law on this issue is clear: the circuit court need only conduct an evidentiary
hearing if (i) the movant establishes that the error, if true, entitles him or her to
relief under RCr 11.42; and (ii) the motion raises an issue of fact that “cannot be
determined on the face of the record.” Parrish v. Commonwealth, 272 S.W.3d
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161, 166 (Ky. 2008). “[A]n evidentiary hearing is not required when the record
refutes the claim of error or when the allegations, even if true, would not be
sufficient to invalidate the conviction.” Cawl v. Commonwealth, 423 S.W.3d 214,
218 (Ky. 2014).
First, Robinson argues her defense counsel were ineffective when they
did not elicit evidence of the victim’s unfilled prescription that was still in his
pocket at the time of the murder. Although the unfilled prescription itself was not
produced at trial, defense counsel elicited testimony regarding the unfilled
prescription during Deputy Bryant’s examination and Hanna Hunsucker’s cross
examination. For example, during Deputy Byrant’s cross-examination, the
following exchange took place:
Defense Counsel: The prescription that was found when
[Bullock] went down to the Georgia Pain management
clinic, it was an unfilled prescription?
Deputy Bryant: Yes, sir.
Defense Counsel: It hadn’t been—He hadn’t got his pills
on that, on that [] night?
Deputy Bryant: He had not.
A review of the record plainly indicates that defense counsel did elicit
testimony that Bullock had not filled his prescription. While counsel may not have
sought to introduce the actual paper prescription, the information was made
available to the jury from a police officer. Therefore, we cannot agree with
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Robinson that defense counsel were ineffective in failing to put forth testimony
and/or evidence tending to show that it would have been futile for Robinson to go
through the with robbery where she knew Bullock did not have any pills on him.
For her second issue, Robinson argues defense counsel should have
requested a renunciation instruction. However, an examination of the record
reveals Robinson’s defense counsel did request a renunciation instruction and
argued for some time to include such an instruction. Again, this argument is
refuted by the record and is devoid of merit.
In her third issue on appeal, Robinson alleges on the morning after the
crime, she reported the shooting death to her probation officer. Two days later, she
reported the crime to law enforcement. Robinson contends she told her attorneys
that she reported the crime to her probation officer, but they neither investigated
nor presented testimony from him at trial.4
The jury was made aware of the fact Robinson reported Bullock’s
robbery and murder to police within three days of its occurrence. She argues,
however, that her counsel should have called her probation officer to testify that
she reported the crimes to him before even reporting them to law enforcement.
She claims this testimony would have shown the jury “she was surprised and upset
4
We would note that defense counsel did elicit during the penalty phase that she had reported the
incident to her probation officer.
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by what she had witnessed soon after it occurred.” We can not agree that any error
in this regard prejudiced Robinson, especially where the jury was made aware
Robinson reported the crime within three days. Moreover, Robison’s counsel were
already tasked with explaining her inconsistent statements to police. Calling the
probation officer would have added another version of the events further
discrediting Robinson.
For her fourth issue, Robinson claims defense counsel failed to
effectively investigate and cross-examine her co-defendants about their respective
plea agreements in exchange for their testimony. Robinson does not argue what
further investigation and cross-examination defense counsel would have done that
would have been favorable to her defense. Likewise, she has not shown what
prejudice she suffered. Moreover, defense counsel did introduce evidence
suggesting that these witnesses were motivated to fabricate their testimony because
they were angry at Robinson for reporting the crimes to the police.
Next, Robinson argues that her attorneys were ineffective because
they opened the door to the introduction of improper character evidence, in the
form of an alleged prior theft. In Robison’s direct appeal, the Kentucky Supreme
Court held that defense counsel had not opened the door, and therefore, the
Commonwealth should not have been permitted to question the witness about the
theft. Robinson, 2015 WL 5634398, at *8 (“This evidence clearly exceeded the
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permissible scope of cross-examination under KRE 405(b), was prohibited by KRE
404(b), and should have been excluded.”). In other words, the Court held that
defense counsel had not opened the door, and the circuit court should not have
allowed the testimony. Ultimately, however, the Court determined that this line of
questioning by the Commonwealth amounted to harmless error.
But because this Court can say with fair assurance that
the erroneous admission of the evidence of the alleged
Mercer County theft did not substantially sway the jury’s
decision, it is harmless. Winstead v. Commonwealth, 283
S.W.3d 678, 688-89 (Ky. 2009). The reference to
Robinson’s prior alleged theft was fleeting, and the
evidence of her guilt was substantial. It is unlikely that
the evidence of the theft played any role in the jury’s
decision-making, much less a substantial one.
Id.
We cannot find ineffectiveness where the Supreme Court has already
held that counsel did not open the door in the first instance. Moreover, the Court’s
harmless error analysis plainly demonstrates that introduction of this evidence did
not materially prejudice Robinson.
b. Recanted Testimony
Robinson’s last issue is not based on her counsel’s performance; it
relates to what she believes her co-defendants would testify about her involvement
in a new trial. Robinson argues that her co-defendants (Gary Lee Kirby, Bobby
Peters, Josh Cameron, and Hanna Hunsucker) are prepared to testify that Robinson
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did not participate in the robbery or murder, attempted to dissuade them from
robbing Bullock, had no idea that they planned to shoot Bullock and that they
testified against her previously out of anger.5 She believes this “new evidence”
entitles her to a new trial.
“[I]n order for newly discovered evidence to support a motion for
new trial it must be ‘of such decisive value or force that it would, with reasonable
certainty, have changed the verdict or that it would probably change the result if a
new trial should be granted.’” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky.
2014) (quoting Jennings v. Commonwealth, 380 S.W.2d 284, 285-86 (Ky. 1964)).
Our Courts have historically viewed recanted testimony with
skepticism.
[T]here are special rules for situations of recanted
testimony. The general rules are that recanting testimony
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 motives that
prompted the recantation; and his rejection of the
recanting testimony will not lightly be set aside by an
appellate court.
5
We would note Gary Lee Kirby did not testify at trial and has no testimony to recant.
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Thacker v. Commonwealth, 453 S.W.2d 566, 568 (Ky. 1970).
In the case before us, Robinson submitted a single paragraph stating
what she believes co-defendants would testify to, arguing this on its face justified
granting of the motion, or alternatively an evidentiary hearing. “[I]t 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,
292 Ky. 810, 168 S.W.2d 48, 53-54 (1943). Robinson does not explain how she
knows the witnesses will testify differently, when she came to acquire this
knowledge or why they have suddenly decided to come forward on her behalf.
Robinson’s mere belief that the witnesses will testify in her favor now is not
enough to warrant either a hearing or a new trial. This claim was appropriately
rejected by the circuit court.
IV. CONCLUSION
We affirm the judgment of the Rockcastle Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael L. Goodwin Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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