RENDERED: MAY 5, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0193-MR
ANTONIO ELLISON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 09-CR-003445
COMMONWEALTH OF KENTUCKY APPELLEE
AND
NO. 2021-CA-0894-MR
ANTONIO ELLISON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 09-CR-003445
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES.
EASTON, JUDGE: The Appellant (“Ellison”), pro se, asks this Court to reverse
the denial of his CR1 60.02 and related motions. Because the arguments raised
were or could have been raised in prior proceedings or have no merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Ellison of complicity in the murder of Ricco
Cunningham, who was shot twice in the face. At his trial, Ellison unsuccessfully
claimed self-defense. Ellison asserted multiple errors on his direct appeal to the
Kentucky Supreme Court, including a double jeopardy argument based upon an
initial mistrial before the later, completed jury trial. The Kentucky Supreme Court
affirmed. Ellison v. Commonwealth, No. 2013-SC-000518-MR, 2014 WL
7238821 (Ky. Dec. 18, 2014).
Ellison filed an RCr2 11.42 motion contending his attorney had
provided ineffective assistance of counsel in consenting to the first mistrial thus
waiving a double jeopardy claim. The circuit court denied this motion, and this
Court affirmed, finding no merit in the contention. Ellison v. Commonwealth, No.
2016-CA-000393-MR, 2017 WL 1829717 (Ky. App. May 5, 2017).
1
Kentucky Rules of Civil Procedure.
2
Kentucky Rules of Criminal Procedure.
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Ellison then revisited his concerns, including the denial of his prior
RCr 11.42 motion, by way of a habeas corpus petition in federal court. The United
States District Court denied Ellison’s petition, specifically commenting Ellison’s
attorney made no error in waiving double jeopardy when the mistrial occurred.
Ellison v. Litteral, No. 3:18-cv-00223-GNS-RSE, 2019 WL 4794756 (W.D. Ky.
May 2, 2019). The federal district court denied a certificate of appealability noting
“none of the grounds raised by Ellison could be debated by reasonable jurists.” Id.
at *9.
Now Ellison seeks relief pursuant to CR 60.02. His initial CR 60.02
motion claims perjury at the direction of the prosecutor when police detectives
testified at a suppression hearing on July 13, 2010. After denial of this motion,
Ellison discovered an offhand comment by the trial judge at the conclusion of this
suppression hearing. Based on this comment, Ellison sought the disqualification,
both prospectively and retroactively, of the circuit court judge. The Chief Justice
of Kentucky denied this request, reserving Ellison’s right to seek this appellate
review of that question. Ellison filed two appeals, one of the denial of the CR
60.02 motion on its merits, and the other on the disqualification issue. We have
consolidated these cases for the purpose of this single Opinion.
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STANDARD OF REVIEW
When a judge does not disqualify himself, we review that decision de
novo. Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 484 (Ky. 2021). We must
independently evaluate whether the circumstances required disqualification. With
respect to the CR 60.02 motion, we review a denial of such a motion for an abuse
of discretion. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983). “The
test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Foley v.
Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014).
ANALYSIS
“The structure provided in Kentucky for attacking the final judgment
of a trial court in a criminal case is not haphazard and overlapping, but is organized
and complete. That structure is set out in the rules related to direct appeals, in RCr
11.42, and thereafter in CR 60.02.” Gross, supra, at 856 (emphasis in the
original). To obtain “this special, extraordinary relief[,]” a defendant must
demonstrate this entitlement and is not entitled automatically to an evidentiary
hearing. Id.
CR 60.02 is the modern version of the common law writ of coram
nobis. Gross, supra. This ancient remedy had a limited application:
[T]he remedy was available to obtain a new trial on a
showing of conditions which established that the original
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trial was tantamount to none at all because a miscarriage
of justice had effectually deprived the defendant of life,
liberty or property without due process of law. . . . It is
an extraordinary and residual remedy to correct or vacate
a judgment upon facts or grounds, not appearing on the
face of the record and not available by appeal or
otherwise, which were discovered after the rendition of
the judgment without fault of the party seeking relief.
Green v. Commonwealth, 309 S.W.2d 178, 180 (Ky. 1958). The standard for relief
under CR 60.02 remains the same. See Wilson v. Commonwealth, 403 S.W.2d
710, 712 (Ky. 1966).
To obtain an order for relief under CR 60.02, “a very substantial
showing to merit relief” must be made. Ringo v. Commonwealth, 455 S.W.2d 49,
50 (Ky. 1970). “The Kentucky Supreme Court has warned that because of the
desirability of according finality to judgments, CR 60.02(f) must be invoked only
with extreme caution, and only under most unusual circumstances.”
Commonwealth v. Bustamonte, 140 S.W.3d 581, 584 (Ky. App. 2004) (citing
Cawood v. Cawood, 329 S.W.2d 569 (Ky. 1959)). A CR 60.02 motion may not be
used to relitigate issues which “were or could have been litigated” in prior
proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
We will first consider the disqualification issue. This complaint is
premised upon eight seconds of conversation between the judge and the prosecutor
after the suppression hearing on July 13, 2010. These eight seconds were just after
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Ellison and his attorney had left the courtroom. During the preceding hearing, the
defendants’ counsel had implied improper conduct by the prosecutor in calling a
second witness to contradict his first witness.
This provides the context of the judge’s comment. The judge said to
the prosecutor: “Well next time somebody accuses you of coaching your
witnesses, you tell them to come see me.” The prosecutor reacted to this comment
as humor before adding “I save that for trial.” (July 13, 2010, Hearing at 12:33:56-
12:34:04.)
In a written order, the judge denied the disqualification motion and
reconsideration of the prior denial of the CR 60.02 motion. In this final order, the
judge commented about the “coaching” statement: “It was not meant to condone
that lawyer’s alleged misconduct (coaching witnesses to lie) but rather to
acknowledge that this was a world-class failure if he actually attempted to do so
(and more importantly there is really no evidence he tried to do so).”
First, we note the ex parte comments by the judge and the prosecutor
should not have been made. But to translate the judge’s comment as substantive
proof of prejudice or bias against Ellison is more than a stretch. We have looked
again at the case and find no evidence of any actual bias or prejudice by the trial
judge toward Ellison. Just as one example, we note the judge sua sponte gave an
admonition to make sure the jury did not misuse certain damaging bad acts or
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character evidence against Ellison. Ellison complained of this proper evidentiary
admonition on his direct appeal. No reasonable, objective person who reviews this
record would conclude this single off-handed comment, when considered with the
trial judge’s other conduct during the case, required disqualification under KRS3
26A.015(2).
We must also address the timeliness of the CR 60.02 motion,
including the related disqualification claim. CR 60.02 contains one-year time
limitations for certain issues, but motions on all other issues must be filed within a
“reasonable time.” The pendency of Ellison’s federal court case did not prevent
raising a CR 60.02 motion in state court. See Young v. Richardson, 267 S.W.3d
690, 695 (Ky. App. 2008) (CR 60.02 motion may be made even during appeal of
same case). The complaint about the judge was made well over ten years after the
event. Ellison says the comment was not on a recording of the hearing he had
reviewed before. If so, it was still not reasonable to wait over ten years before
finding this information.
Our review of the record shows the prosecutor mentioned the ex parte
comment on the record at a later hearing on December 21, 2010, when the
suppression issue was revisited. This later comment also lasted for eight seconds
and was in the presence of Ellison and his attorney. The prosecutor said to the
3
Kentucky Revised Statutes.
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judge: “You said no one can accuse you of prepping your witnesses or conforming
their . . . taking a tack and going with it.” (December 21, 2010, Hearing at
11:06:01-11:06:09.)
Finding the disqualification complaint is untimely and without merit,
we next look at the argument about the substance of the suppression hearing on
July 13, 2010. Ellison now says the prosecutor suborned perjury from the second
officer called as a witness. Clearly, this complaint could have been raised in prior
proceedings, such as the direct appeal, the RCr 11.42 motion, or even the habeas
corpus petition.
To avoid the untimeliness of his motion, Ellison relies upon
Commonwealth v. Spalding, 991 S.W.2d 651 (Ky. 1999). This case permits relief
under CR 60.02(f) when a defendant can show perjury by a witness at trial which
the prosecutor did not correct. In such circumstances, the one-year time limit
generally relating to perjury does not bar the motion. Id. at 655.
Spalding did not excuse the reasonable time requirement for CR 60.02
motions. Aside from the prior opportunities to argue this point, waiting more than
ten years to make this claim is not a claim made within a reasonable time. We find
no merit in the argument even if it had been timely made.
Ellison believes the prosecutor was not satisfied with the testimony of
the first police officer (“Banks”) who testified about having been shown a single
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photograph of Ellison. Before calling the second officer (“Lesher”), the record
shows the prosecutor talking with Lesher before calling him as a witness.
Separation of witnesses is not required for suppression hearings. KRE4 1101(d)(1).
The second officer then says he showed Banks two photographs.
Ellison assumes perjury by the second officer to somehow support the
validity of the first officer’s identification. Ellison offers no actual evidence of this
beyond his assumption. One could just as easily assume the prosecutor was simply
presenting all available evidence even though the memories of the officers were
different. This second assumption is more in line with the judge’s comment at the
end of the hearing.
Even if there had been any merit in Ellison’s assumption, he cannot
show actual prejudice to his case. Ellison says he had to change his trial tactic to
self-defense rather than claim he was not at the scene of the crime. Incredibly,
Ellison says he made this choice with reliance on the direction of his attorney to lie
on the stand about self-defense.
To further support his resurrected claim of not being at the scene of
the shooting, Ellison provided an affidavit of a friend signed over ten years after
the events. This affidavit explains the presence of Ellison’s clothes in the car at the
scene was because this friend had given Ellison a ride earlier when Ellison had left
4
Kentucky Rules of Evidence.
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his girlfriend’s place after an argument. Ellison had just thrown some clothes in
the back of the car. Two days later, before Ellison had a chance to retrieve these
clothes, the car was stolen by the friend’s boyfriend. This belated witness admits
she identified the car at the scene of the murder but refused to claim it had been
stolen when told she would need to do so.
One problem with any claim of prejudice to Ellison’s case from the
Lesher testimony is that it completely ignores all other evidence of identification of
Ellison other than by Banks, such as the identification by a florist in the vicinity. If
we ignore other identification evidence, an even bigger problem is that the
identification by Banks was valid even if Lesher had lied (of which there is no
evidence) or was mistaken in his testimony.
Identification by a police officer is not the same as suggestive
identifications by other witnesses. Mason v. Braithwaite, 432 U.S. 98, 112, 97 S.
Ct. 2243, 53 L. Ed. 2d 140 (1977). If Banks alone had testified at the suppression
hearing, his identification would still have been admissible. The circuit court
commented on this during the argument on the first CR 60.02 motion on March 5,
2021.
We cannot discern whether the actual photograph or photographs used
for identification by Banks were made part of the record. According to
information in the record, such photographs were pulled from a digital database of
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mug shots. Even so, Ellison was free to question all the circumstances of Banks’
identification during the trial, including the lack of any current availability of the
supposed photograph, the inconsistency between the two officers about the number
of photographs used, or other impeachment of the officers by what they said or did
at the suppression hearing. Ellison can show no actual harm to his case from the
circumstances of the suppression hearing.
CONCLUSION
The presiding judge was not required to disqualify himself from
presiding in this case. Ellison cannot show the required substantial and compelling
basis for the rare and extraordinary relief permitted by CR 60.02. The Jefferson
Circuit Court did not abuse its discretion in denying CR 60.02 relief. We AFFIRM
the Jefferson Circuit Court on both appeals.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Antonio Ellison, pro se Daniel Cameron
Wheelwright, Kentucky Attorney General of Kentucky
Courtney E. Albini
Assistant Attorney General
Frankfort, Kentucky
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