RENDERED: DECEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0436-MR
KEWAN HACKETT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 11-CR-000222
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON,
JUDGES.
THOMPSON, K., JUDGE: Kewan Hackett appeals from the summary denial of
his Kentucky Rules of Civil Procedure (CR) 60.02 motion in which he alleges he
received ineffective assistance of counsel. We affirm as Hackett’s claims are
successive and otherwise without merit.
In January 2011, Hackett was indicted for murder, criminal attempted
murder, first-degree assault, tampering with physical evidence, and intimidating a
participant in the legal process. Trial counsel moved for Hackett’s indictment to
be dismissed; the trial court denied this request. Ultimately, the case proceeded to
trial.
We recount the underlying facts of the crimes and resulting trial
testimony as summarized by the Kentucky Supreme Court in Hackett’s direct
appeal, Hackett v. Commonwealth, No. 2012-SC-000773-MR, 2014 WL 2809876,
at *1-2 (Ky. Jun. 19, 2014) (unpublished) (Hackett I):
On January 8, 2011, victims Dajuan Best and
Kristen Redmon were at Jock’s Bar and Grill in
Louisville. Appellant was there also, as was Appellant’s
friend and neighbor, Saleem Muhammad. Appellant,
Saleem, and Redmon were regulars at the bar. While
playing pool, Best and Appellant had an exchange of
words sufficiently disagreeable that it attracted the
attention and intervention of the bar’s security personnel.
Saleem testified that Appellant later told him that he had
had a “beef” with someone over two kilograms of
cocaine; the Commonwealth theorizes that this “beef”
about cocaine was the heated exchange with Best which
resulted, ultimately, in the shooting of Best. A video
surveillance system on the premises showed that Saleem,
Best, and Redmon engaged in a brief interaction just as
they left together through the front door. Best and
Redmon led the way and Saleem followed. The video
system captured images of Appellant watching as the trio
left, and then immediately moving quickly toward the
back exit. Moments later four or five shotgun blasts were
fired into Best’s vehicle, killing Redmon and wounding
Best. Appellant’s theory of the case is that there was a
drug deal between Best and Saleem that night, and that
Saleem was the shooter.
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Saleem testified that after leaving the bar he heard
the gunshots and then saw someone “creeping” toward
and getting into the Cadillac that Saleem knew belonged
to Appellant. Saleem testified that the person entering
Appellant’s car was carrying an object, which the
Commonwealth theorizes was the shotgun. The Cadillac
then drove away.
Several witnesses at a nearby bingo hall heard the
shots. Immediately after the shooting, Robert Wynn saw
a Cadillac, presumably Appellant’s, drive out of the bar
parking lot with its lights off. Brad Gentry looked in the
direction of the shots and saw a man standing near the
rear of Best’s vehicle. Gentry saw the man get into the
Cadillac and drive away with its headlights off. Gentry
later identified the vehicle as Appellant’s Cadillac. Two
other witnesses who were present at the bingo hall
generally corroborated Wynn and Gentry’s testimony.
The Commonwealth’s case was further strengthened by
testimony of Saleem and his wife, Maria, concerning
statements Appellant made after the shooting. After the
shooting, Appellant telephoned Saleem and told him,
“[You] ain’t seen nothing,” apparently a warning to keep
quiet about what he had seen in the bar parking lot.
Saleem also testified that Appellant later came to the
Muhammads’ apartment, paced nervously about, looked
out the window, and said, “It wasn’t meant for her,” and
then, “no witnesses, no case, no evidence,” in an apparent
reference to the shooting. Saleem testified that Appellant
later asked about getting rid of his Cadillac.
Maria also testified about Appellant’s arrival at their
apartment after the shooting and his nervous demeanor.
She testified that Appellant asked her to turn on the local
television news channel that was reporting on the
shooting. Upon hearing a report that Best was in stable
condition, Appellant commented that that was “not a
good thing,” adding “he ain’t dead” and “no witnesses,
no evidence, no case.” Maria testified that Appellant
asked her if the bar had security cameras in the back; she
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said he also commented that there was no evidence
concerning his clothing.
At trial, Appellant’s defense was a denial that he
committed the crimes and an effort to show that Saleem
was the perpetrator. He aggressively sought to
undermine the credibility of Saleem and Maria.
The jury trial lasted from August 28, 2012, to September 7, 2012.
Trial counsel asked for a directed verdict on the basis of insufficient evidence at
the close of the Commonwealth’s case and at the close of all proof, but these
motions were denied. At the conclusion of the trial, the jury found Hackett guilty
of murder, attempted murder, and tampering with physical evidence. The jury
fixed Hackett’s punishment at twenty years for the murder conviction, fifteen years
for the criminal attempt murder conviction, and one year for the tampering with
physical evidence conviction, and recommended that the sentences be served
consecutively. Afterwards, trial counsel filed a motion for a judgment of acquittal
or a new trial, which was also denied. The trial court sentenced Hackett in
accordance with the jury’s recommendation to a total of thirty-six years.
On his direct appeal, Hackett alleged a variety of errors, but the
Kentucky Supreme Court affirmed the judgment of the circuit court on all issues.
Id. at *12.
A year later, in 2015, Hackett filed a Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion, alleging he received ineffective assistance of
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counsel in a variety of ways. In 2018, the circuit court summarily denied his
motion, finding that all the allegations of error could be refuted by the record.
In his appeal from the denial of his RCr 11.42 motion, Hackett raised
the following arguments:
1) that his counsel was ineffective because counsel failed
to file a motion to dismiss the indictment because it was
obtained by the presentation of false and misleading
testimony to the grand jury; 2) that trial counsel was
ineffective because counsel failed to object to jury
instructions that allowed for a finding of guilt based on
complicity; and 3) that trial counsel was ineffective
because he did not object to jury instructions that did not
set out separate jury findings that the appellant acted by
himself or in complicity with others.
Hackett v. Commonwealth, No. 2018-CA-000730-MR, 2019 WL 5293672, at *1
(Ky. App. Oct. 18, 2019) (unpublished) (Hackett II). In 2019, the Court of
Appeals affirmed the order denying Hackett’s motion for postconviction relief on
all grounds. Id. at *4.
Hackett then proceeded to file motion which is the subject of this
instant appeal, seeking to vacate the judgment under CR 60.02(e) and (f) based on
ineffective assistance of counsel where: (1) counsel failed to suppress his
warrantless arrest without probable cause, rendering evidence subsequently
obtained fruit of the poisonous tree; (2) counsel failed to move the court to dismiss
the indictment where he should not have been charged with murder based on two
different states of mind rather than given specific notice of which state of mind he
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was required to defend against; (3) counsel failed to object to combination jury
instructions, denying him of a unanimous verdict on his state of mind; and (4)
counsel failed to object to an indictment charging intentional and wanton murder
for one murder, and attempted murder and assault for shooting one victim,
resulting in double jeopardy violations.1
The circuit court summarily denied Hackett’s motion on the basis that
he should have raised these issues in his previous RCr 11.42 motion. The circuit
court explained that “[CR] 60.02 does not provide an additional opportunity for
Movant to raise issues that could have been raised at an earlier proceeding.” The
circuit court recounted that Hackett had previously filed a motion pursuant to RCr
11.42 which had been denied and opined: “All of the grounds raised in the current
motion could have been raised in the previous post-conviction motion. The current
motion is simply an attempt to relitigate his ineffective assistance claims.” The
circuit court noted “[b]ecause his motion is procedurally improper, there is no need
for an evidentiary hearing[.]”
We agree with the circuit court that Hackett’s motion is successive
and it is inappropriate for him to attempt to bring another RCr 11.42 motion in the
1
We give Hackett the benefit of the doubt that the arguments he raised on appeal are the same
arguments he raised below. Hackett’s motion is missing from the record, and it was his duty to
make sure that the record was complete.
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guise of a CR 60.02 motion. Furthermore, the issues that he raises closely overlap
with those that he raised earlier and are also without merit.
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: . . . (e) the judgment is void, or has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application; or (f) any other
reason of an extraordinary nature justifying relief.
“The standard of review of an appeal involving a CR 60.02 motion is
whether the trial court abused its discretion. 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 alleges special circumstances that justify CR
60.02 relief.” White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000)
(internal quotation marks, citations, and brackets omitted).
“The rules related to direct appeals, RCr 11.42,
and [CR] 60.02 collectively create a structure that
‘provides for wide-ranging opportunities for a defendant
to challenge in all respects the legality and fairness of his
conviction and sentence.’” Hollon v. Commonwealth,
334 S.W.3d 431, 437 (Ky. 2010) (quoting Foley v.
Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010)). This
configuration “is not haphazard and overlapping, but is
organized and complete.” Gross v. Commonwealth, 648
S.W.2d 853, 856 (Ky. 1983). At each stage the
defendant must raise “all issues then amenable to review,
and generally issues that either were or could have been
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raised at one stage will not be entertained at any later
stage.” Hollon, 334 S.W.3d at 437.
Owens v. Commonwealth, 512 S.W.3d 1, 13-14 (Ky. App. 2017).
As further explained in McQueen v. Commonwealth, 948 S.W.2d 415,
416 (Ky. 1997):
A defendant who is in custody under sentence or on
probation, parole or conditional discharge, is required to
avail himself of RCr 11.42 as to any ground of which he
is aware, or should be aware, during the period when the
remedy is available to him. Civil Rule 60.02 is not
intended merely as an additional opportunity to relitigate
the same issues which could “reasonably have been
presented” by direct appeal or RCr 11.42 proceedings.
RCr 11.42(3); Gross[, 648 S.W.2d] at 856. The obvious
purpose of this principle is to prevent the relitigation of
issues which either were or could have been litigated in a
similar proceeding. As stated in Gross, CR 60.02 was
enacted as a substitute for the common law writ of coram
nobis.
The purpose of such a writ was to bring before the
court that pronounced judgment errors in matter of
fact which (1) had not been put into issue or passed
on, (2) were unknown and could not have been
known to the party by the exercise of reasonable
diligence and in time to have been otherwise
presented to the court, or (3) which the party was
prevented from so presenting by duress, fear, or
other sufficient cause. Black’s Law Dictionary,
Fifth Edition, 487, 144.
Id. at 856. In summary, CR 60.02 is not a separate
avenue of appeal to be pursued in addition to other
remedies, but is available only to raise issues which
cannot be raised in other proceedings.
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When claims raised in a CR 60.02 motion “are of the type ordinarily raised in an
RCr 11.42 petition[,]” such claims are “in practical effect . . . an impermissible
successive RCr 11.42 motion.” Sanders v. Commonwealth, 339 S.W.3d 427, 438
(Ky. 2011).
Hackett has provided absolutely no justification for why his current
ineffective assistance of counsel claims could not have been raised in his prior RCr
11.42 motion. These claims are thereby precluded as successive, as CR 60.02 is
not a proper mechanism for addressing ineffective assistance of counsel claims
which should have been raised and addressed earlier.
Additionally, his arguments do not fit within the rubric of CR 60.02(e)
or (f). As to CR 60.02(e), Hackett seems to be misinterpreting what he believes to
be an erroneous judgment (due to ineffective assistance of counsel) as a void
judgment. However, these are not the same. A judgment is void if there is a lack
of jurisdiction over the defendant or the subject matter. See Commonwealth v.
Marcum, 873 S.W.2d 207, 211 (Ky. 1994); Thomas v. Morrow, 361 S.W.2d 105,
106 (Ky. 1962); Hudson v. Hightower, 307 Ky. 295, 298, 210 S.W.2d 933, 934
(1948).
CR 60.02(f) also does not provide an appropriate basis for relief as it
“may be invoked only under the most unusual circumstances[.]” Howard v.
Commonwealth, 364 S.W.2d 809, 810 (Ky. 1963). “To justify relief [pursuant to
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CR 60.02(f)], the movant must specifically present facts which render the ‘original
trial tantamount to none at all.’” Foley v. Commonwealth, 425 S.W.3d 880, 885
(Ky. 2014) (quoting Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)).
In contrast, claims which “are of the usual procedural, evidentiary, and ineffective
assistance of counsel variety, . . . do not implicate the extraordinary sort of claim
contemplated under CR 60.02(f).” Sanders, 339 S.W.3d at 437 (emphasis added).
Finally, Hackett’s claims lack all merit. Hackett’s first argument is
that trial counsel was ineffective for failing to suppress the fruits of his warrantless
arrest on the basis of lack of probable cause.
“Probable cause exists when the facts and circumstances within the
arresting officers’ knowledge or of which they have reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable caution to
believe that an offense has been committed or is being committed.” Shull v.
Commonwealth, 475 S.W.2d 469, 471 (Ky. 1971). We are confident that there was
ample probable cause for Hackett’s arrest based on the facts revealed in the
investigation as detailed by the Supreme Court in Hackett I. Therefore, any
evidence that was discovered pursuant to his arrest is not problematic.
Additionally, evidence was properly found pursuant to search warrants or due to
Hackett’s own voluntary statements, rather than as a result of his arrest.
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Hackett’s next argument is that counsel was ineffective for failing to
move the court to dismiss the indictment where he should not have been charged
with murder based on two different states of mind rather than given specific notice
of which state of mind he was required to defend against. Again, we disagree.
As explained in Hackett II, Hackett already argued in his appeal of the
denial of his RCr 11.42 motion “that his counsel was ineffective because counsel
failed to file a motion to dismiss the indictment because it was obtained by the
presentation of false and misleading testimony to the grand jury[.]” Hackett II,
2019 WL 5293672, at *1. The Court of Appeals addressed this argument on the
merits and denied it on the basis that Hackett could not show prejudice where the
indictment would have still been issued based upon other testimony the grand jury
heard. Id. at *2-3. By doing so, it generally ruled that the indictment was proper.
Hackett’s argument that the indictment is flawed for giving alternative
states of mind necessary for the offense is incorrect, as the indictment properly
gave notice that the Commonwealth would seek to convict him under either state
of mind available for murder under Kentucky Revised Statutes (KRS) 507.020.
While Hackett may have preferred only having to defend against one state of mind,
the indictment was not improper for listing both states of mind which were
supported by the evidence.
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Hackett’s next argument is that his counsel was ineffective for failing
to object to combination jury instructions,2 denying him a unanimous verdict on his
state of mind. This argument is also wholly without merit.
We agree with Hackett’s basic premise that it can be problematic for
combination jury instructions to be given which allow for conviction for two
different states of mind when there is only evidence of one state of mind. See, e.g.,
Hayes v. Commonwealth, 625 S.W.2d 583, 584-85 (Ky. 1981) (reversing for
unanimity error where “[i]t would be clearly unreasonable for the jury to believe
that appellant’s conduct was other than intentional”).
However, while Hackett argues he could have only sought to kill
Redmon wantonly, the issue of whether there was sufficient evidence to convict
him under either state of mind was addressed by our Court in its consideration of
the similar arguments Hackett raised in his RCr 11.42 appeal regarding trial
counsel’s failure to object to the combination jury instructions. Our Court
2
The indictment contained combination charges which were identical save for the exact crime
and victim named regarding murder, criminal attempted murder and first-degree assault. As an
example, count one alleged that Hackett, “acting alone or in complicity with others, committed
the offense of Murder by intentionally or under circumstances manifesting extreme indifference
to human life wantonly caused the death of Kristen Redmon.” The jury instructions tracked the
language of the indictment. As an example, instruction one for murder provided the alternatives
that Hackett was “acting alone or in complicity with another or others” in killing Redmond and
in doing so caused her death “intentionally” or “was wantonly engaging in conduct which
created a grave risk of death to another and thereby caused the death of Kristen Redmond under
circumstances manifesting an extreme indifference to human life.” In these instructions, the jury
was not required to select an option as to how such murder was committed.
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specifically observed that the circumstantial evidence and lack of eyewitness
testimony regarding the shooting itself, resulted in the jury being allowed to
consider multiple theories about how the shooting occurred. Hackett II, 2019 WL
5293672, at *3. Our Court also thoroughly considered Hackett’s prior argument
broadly as the Court was uncertain of his exact argument, and in doing so
addressed the argument he now raises, and determined it was without merit:
Lastly, the appellant contends that counsel was
ineffective for failing to object to the jury instructions
because the jury instructions did not have separate
verdict forms for the jury to find specifically why they
found him guilty for the crimes of murder and attempted
murder. It is unclear exactly which issue the appellant
claims was error. His appeal section heading for this
argument states that he objects to a lack of a finding
between complicity and him being the actor. His
argument discusses that issue and the issue of intentional
versus wanton acts. This argument is also intertwined
with the issue discussed previously. We will address
both as they are the same legal issue.
Trial counsel did attempt to have the court instruct
solely on intentional murder and offered instructions on
lesser offenses on behalf of the defendant. Mr. Hackett
argues that a general verdict based on a combination
murder instruction violates his right to a unanimous
verdict. The Supreme Court of Kentucky has held that if
the evidence supports both theories, a combination jury
instruction does not violate the unanimous verdict
requirement. Benjamin v. Commonwealth, 266 S.W.3d
775 (Ky. 2008). As stated before, there was no direct
eyewitness testimony that the appellant committed the
actual act of the shooting. There was circumstantial
evidence that the appellant either committed the crime
himself or could have simply been responsible for the
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action itself. There was no direct evidence as to the
appellant’s state of mind. Based on the facts presented,
the jury could have believed he acted intentionally or
wantonly. It could have believed he intended the result
or he was simply acting with an extreme indifference to
human life.
The appellant’s concern about the possibility of a
lack of unanimous verdict is one that the Supreme Court
in Benjamin shared. Benjamin opines that separate
verdict forms would be better. However, Benjamin
specifically allowed this type of combined jury
instructions. Id. at 783-85. Four years later, in Malone v.
Commonwealth, 364 S.W.3d 121, 130-31 (Ky. 2012), the
Supreme Court noting Benjamin again refused to require
separate jury instructions. It cannot be said that trial
counsel was ineffective by failing to object to this type of
combined jury instructions when the Supreme Court of
Kentucky has allowed the practice. The court below had
from the record a sufficient basis to deny the motion
without an evidentiary hearing. Trial counsel’s failure, if
a failure at all, to object to the combination jury
instructions as the appellant now argues was not an error
which denied him the right to a trial whose result was
reliable. It is also important to note in the discussion of
ineffective assistance of counsel that trial counsel
tendered jury instructions that would have required a
finding that the appellant intentionally acted without any
reference to complicity to convict the appellant. Counsel
placed before the trial court the arguments made by
appellant in this appeal in substance if not in the form
argued.
Id. at *3-4. Therefore, this argument is without merit, repetitious and precluded by
the law of the case.
Hackett’s final argument raised in his appellate brief is that counsel
was ineffective for failing to object to an indictment charging intentional and
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wanton murder for one murder, and attempted murder and assault for shooting one
victim, resulting in double jeopardy violations, is also without merit. In addressing
Hackett’s previous ineffective assistance of counsel argument for failing to file a
motion to dismiss the indictment, our Court in Hackett II specifically determined
that “there were sufficient grounds for the indictment[.]” Id. at *3. Additionally,
as we have discussed supra, there was evidence to support a conviction for murder
under either state of mind provided for in KRS 507.020, so the indictment
providing alternatively for both states of mind, intentionally and wantonly, was
appropriate.
To the extent that Hackett was perhaps trying to argue that these
charges were erroneous as duplicitous, this argument is also without merit. See
United States v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989) (explaining
“[w]here a penal statute . . . prescribes several alternative ways in which the statute
may be violated and each is subject to the same punishment . . . , the indictment
may charge any or all of the acts conjunctively, in a single count, as constituting
the same offense, and the government may satisfy its burden by proving that the
defendant, by committing any one of the acts alleged, violated the statute”).
Hackett was also not convicted of two counts of murder of the same
person, one each with each state of mind, so he was not subjected to double
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jeopardy. Therefore, even if the indictment was erroneous (it was not), it could not
have been prejudicial.
It was also appropriate for the indictment to charge both attempted
murder and assault of the same victim in different counts as there was evidence to
support each charge. While double jeopardy could have resulted if Hackett was
convicted of both attempted murder and assault of the same person, the jury
instructions specifically precluded such an outcome. In the jury instructions
regarding criminal attempted murder and first-degree assault charges, in which
Best was the victim, the jury was instructed to only to consider the count for first-
degree assault if it did not find Hackett guilty of the criminal attempted murder.
As the jury found Hackett guilty of the criminal attempted murder, it never
proceeded to consider the assault charge. Therefore, had there even been an error
in the indictment in charging both (there was not), it could not have prejudiced
Hackett.
Finally, Hackett raises a new argument in his reply brief, that his pro
se motion should not have been dismissed where he never had the active assistance
of counsel for his postconviction actions, and thus his untimely and successive
arguments should have been considered on the merits. We disagree.
“The reply brief is not a device for raising new issues which are
essential to the success of the appeal.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky.
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App. 1979). We have no reason to believe that this issue was raised before the
circuit court, and there is a “long-standing prohibition against presenting a new
theory of error at the appellate level[.]” Henderson v. Commonwealth, 438 S.W.3d
335, 343 (Ky. 2014). Therefore, it is inappropriate to consider such an argument at
this juncture.
Additionally, Hackett failed to cite any Kentucky law in support of his
argument that a lack of counsel excuses his failure to follow our procedural rules
and raise all of his RCr 11.42 arguments at the same time. Finally, as we have
already addressed his claims on the merit and found them to be wholly lacking in
merit, there is no reason to require the circuit court to consider these claims further.
Accordingly, we affirm the Jefferson Circuit Court’s summary denial
of Hackett’s motion for CR 60.02 relief.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kewan Hackett, pro se Daniel Cameron
Beattyville, Kentucky Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
Frankfort, Kentucky
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