COMMONWEALTH of Kentucky, Appellant, v. Marcellus SPAULDING, Appellee.
No. 97-SC-883-DG.
Supreme Court of Kentucky.
April 22, 1999.
As Amended June 28, 1999.
991 S.W.2d 651
JOHNSTONE, Justice.
Appellant, Marcellus Spaulding, was convicted of first-degree manslaughter and pled guilty to a charge of first-degree persistent felony offender. He was sentenced to a total of thirty years in prison. His conviction and sentence were affirmed by this Court in an unpublished opinion rendered on July 30, 1992. Spaulding v. Commonwealth, Ky., 91-SC-0759-MR (1992). Subsequently, the Court of Appeals overturned Spaulding‘s conviction on an appeal from a denial of a new trial pursuant to
On May 23, 1990, Spaulding stabbed Nathaniel Hayes in the heart and killed him. Thereafter, Spaulding was indicted on one count of murder and one count of being a persistent felony offender in the first degree.
At Spaulding‘s first trial, which ended in a mistrial, the Commonwealth called Jack Garner as a witness. Garner testified that the victim, Hayes, had “run into” the knife that Spaulding was holding. This testimony was contrary to what the Commonwealth expected. The prosecutor attempted to impeach Garner with a contrary statement he made to the police on the night of Hayes‘s death. However, Garner denied having made the previous statement because he was drunk that night and could not remember what he told police. He stuck with his story that Hayes had “run into” the knife held by Spaulding.
The Commonwealth again called Garner as a witness at Spaulding‘s second trial. Contrary to his previous testimony, Garner testified that Spaulding drew a knife, swung it at Hayes, and stabbed him in the chest. On cross-examination, Spaulding‘s attorney attempted to impeach Garner by asking him if he remembered his testimony in the previous trial that Hayes had run into the knife held by Spaulding. Garner stated that he did not remember so testifying.
Spaulding testified that he stabbed Hayes in self-defense because Hayes and Garner were “ganging” him. The Commonwealth presented eighteen other witnesses in addition to Garner. Six of those witnesses were close to the scene and testified to the circumstances and events that occurred immediately before and after the stabbing. However, Garner was the only witness to the actual stabbing.
The jury found Spaulding guilty of manslaughter in the first degree. Thereafter, Spaulding entered a guilty plea to the first-degree persistent felony offender charge. He was sentenced to a total of thirty years’ imprisonment. The final judgment of conviction was entered on August 27, 1991.
On September 6, 1991, Spaulding filed his direct appeal to this Court. On January 28, 1992, Spaulding filed a
On July 23, 1992, Spaulding sent a letter to the Jefferson County Commonwealth Attorney‘s Office asking that it investigate charges of perjury regarding Garner‘s conflicting testimony during the two trials. Sometime later, Spaulding‘s attorney took out a warrant against Garner for perjury and the Commonwealth Attorney began proceedings against Garner.
On July 30, 1992, this Court rendered an opinion affirming Spaulding‘s conviction on direct appeal. Spaulding then filed a
On July 23, 1995, Garner pled guilty to first-degree perjury in violation of
That on or about the 23rd day of July, 1991, in Jefferson County, Kentucky, the above named defendant, Jack Garner, committed the offense of PERJURY IN THE FIRST DEGREE by falsely testifying while under oath during trial of the case of Commonwealth of Kentucky v. Marcellus Spaulding in the Jefferson Circuit Court to the effect that the Defendant in that case was swinging a knife at the victim, having previously testified during trial of the case of Commonwealth of Kentucky v. Marcellus Spaulding on March 5, 1991, that the victim ran into the knife and that he did not see Defendant Spaulding swing a knife at the victim.
Commonwealth v. Garner, No. 94-CR-1490 (indictment against defendant).
On August 15, 1995, Spaulding filed a second
In its final ruling on the motion, the trial court found: (1) Spaulding was collaterally estopped from raising the perjury issue; (2) the motion was procedurally time barred; and (3) “even absent Garner‘s testimony, the weight of evidence presented was clearly sufficient to support [Spaulding‘s] conviction on Manslaughter I.” The Court of Appeals determined that the fact of an actual conviction for perjury was qualitatively different than an allegation of perjury and concluded that the trial court erred on all three grounds. It then reversed the trial court and remanded the case for a new trial.
COLLATERAL ESTOPPEL
Spaulding charged prosecutorial misconduct in his
However, the issue before us in the instant case is whether the introduction of perjured testimony, obtained without the knowledge of the prosecutor, entitles Spaulding to a new trial under
Because Spaulding‘s original motion charged prosecutorial misconduct at his second trial, whereas the charge in the
The trial court issued a blanket denial of Spaulding‘s original motions, which could have been made on grounds that there was no showing that the prosecutor knew that Garner‘s testimony was false. See Lochmondy, 890 F.2d at 822 (inconsistent statements are not sufficient to charge the prosecution with knowledge of perjury). Thus, the issues of whether Garner‘s testimony was false and whether the testimony was material were not necessarily determined in the trial court‘s denial of the motions. Further, the Court of Appeals, on procedural grounds, did not reach Spaulding‘s argument that the prosecutor failed to correct perjured testimony. Spaulding v. Commonwealth, Ky.App., 92-CA-002924-MR at 9 (rendered Feb. 8, 1995).
This leads to the inescapable conclusion that the precise issue in this case was raised for the first time in Spaulding‘s second
WHETHER THE MOTION IS PROCEDURALLY TIME BARRED
Pursuant to
“Civil Rule 60.02 ... abolishes the ‘writ of coram nobis,’ and authorizes the granting of this type of relief by motion made under that Rule.” Harris v. Commonwealth, Ky., 296 S.W.2d 700, 702 (1956). Further, we stated, “...
“The writ of coram nobis is an extraordinary remedy which will issue for the judicial correction of a wrong committed in the administration of criminal justice resulting in the deprivation of life or liberty without due process of law.” Merrifield v. Commonwealth, ex rel. Buckman, Ky., 283 S.W.2d 214, 215 (1955). Thus, if the introduction of perjured testimony at Spaulding‘s second trial amounted to a denial of due process of law, then his motion is properly brought under
We begin by noting that the deliberate introduction of perjured testimony by a prosecutor “is incompatible with the rudimentary demands of justice.” Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 108 (1972) (internal quotation marks omitted). The same is true if a prosecutor, though not soliciting it, allows perjured testimony to go uncorrected. Id. When the perjured
In 1938, the Sixth Circuit Court of Appeals determined that there was no distinction between the two situations, and held that a conviction based on perjured testimony was a denial of due process of law regardless of whether the prosecution knew the testimony was false. Jones v. Kentucky, 97 F.2d 335, 338 (6th Cir.1938). However, the Sixth Circuit later limited Jones to the facts of the case. Burks v. Egeler, 512 F.2d 221, 229 (6th Cir.1975), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). The Burks court held that the introduction of perjured testimony at trial, which is unknown to the prosecutor, is not a violation of due process under the
This argument was considered and rejected in Sanders v. Sullivan, supra.
In our view, this criticism is unpersuasive. There is no logical reason to limit a due process violation to state action defined as prosecutorial knowledge of perjured testimony or even false testimony by witnesses with some affiliation with a government agency. Such a rule elevates form over substance. It has long been axiomatic that due process requires us “to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). It is simply intolerable in our view that under no circumstance will due process be violated if a state allows an innocent person to remain incarcerated on the basis of lies. A due process violation must of course have a state action component. We believe that Justice Douglas accurately articulated the appropriate definition that accords with the dictates of due process: a state‘s failure to act to cure a conviction founded on a credible recantation by an important and principal witness, exhibits sufficient state action to constitute a due process violation. See Durley v. Mayo, 351 U.S. 277, 290-91, 76 S.Ct. 806, 813-14, 100 L.Ed. 1178 (1956).
Kentucky law is in accord with the Sanders case. This issue was addressed in Anderson v. Buchanan, supra. In discussing the import of the Sixth Circuit‘s opinion in Jones v. Kentucky, supra, we noted:
[I]t seems to us the Supreme Court does not go quite so far in its consideration as some of the language of the [Sixth] Circuit Court of Appeals would indicate the courts should go. The Supreme Court‘s view seems to be that alleged perjured testimony upon which conviction was had must have been by the active conduct or the connivance of the prosecuting officers.
Nonetheless, the Anderson court held:
that the court in which a conviction was had has discretion to grant the writ [of coram nobis] where it appears that but for the alleged false testimony ... of such a conclusive character that the verdict most probably would not have been rendered and there is a strong probability of miscarriage of justice unless the process be granted. We affirm that it is not enough to merely 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. It may be otherwise if the sole witness repudiates his testimony. It is to be emphasized also that obtaining the writ is not a matter of right but the granting of it is a matter of sound judicial discretion to be exercised upon a showing of reasonable certainty.
Id. at 53-54 (internal citations omitted).
Further, the Anderson court emphasized that the “question of the guilt or innocence of the accused is not a necessary subject of the inquiry. The question embraces the genuineness and good faith of the repudiation or newly discovered evidence and the probability that the conviction would not have resulted if the truth had been revealed.” Id. at 54. Thus, the integrity of the judicial process was of overriding concern to the Anderson court.
Finally, important to the Anderson court‘s analysis was its affirmation that the writ of coram nobis is part of the Commonwealth‘s “due course of law” as protected by
Thus, we conclude that in the appropriate case the introduction of perjured testimony, which is not known as such by the prosecutor, can result in a violation of the right to due course of law and the right to due process of law as provided by the Kentucky and United States Constitutions. Thus, we hold that a criminal conviction based on perjured testimony can be a reason of an extraordinary nature justifying relief pursuant to
ABUSE OF DISCRETION
The trial court found that, even absent Garner‘s testimony, the weight of the evidence was clearly sufficient to support Spaulding‘s conviction for Manslaughter I. However, the test for whether perjured testimony entitles a defendant to a new trial, focuses on whether there is a probability that introduction of the truth “would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.” Jennings, 380 S.W.2d at 284. Thus, at first blush, it appears that the trial court used the wrong test. However, there is nothing in the record to indicate that Garner‘s testimony at Spaulding‘s first trial was necessarily truthful. Thus, the trial court was not required to apply the Jennings test.
We have been presented with Garner‘s conviction for committing perjury at Spaulding‘s second trial. However, we have not been presented with any proof, evidence, or credible argument that Garner testified truthfully at Spaulding‘s first trial. All we have is the fact that Garner‘s testimony at the first trial was directly contradictory to his perjured testimony at the second trial. We know of no rule of law, logic, or nature that dictates that as between two contradictory statements, one of them must be true. In fact, the law indicates the opposite is true. The Anderson court stated that neither contradictory statements by a witness nor a sworn statement by the witness that he lied at trial is sufficient to establish perju
While our determination of the first two issues necessarily was done as a matter of law, our review of this last issue is done pursuant to an abuse of discretion standard. See Brown, 932 S.W.2d at 362.
Spaulding‘s theory of the case was that he was pursued by the victim and Garner, that he pulled out the knife when he no longer had any avenues of retreat, and that he had no choice but to fight. The Commonwealth called eighteen other witnesses besides Garner. A number of these witnesses contradicted Spaulding‘s version of events. According to these witnesses, Spaulding challenged the victim and Garner after the original fight had dissipated, and Spaulding was the aggressor in the fight that ended in the fatal stabbing. Thus, Spaulding was not convicted solely on the testimony of Garner. Further, the impact of Garner‘s testimony was lessened when counsel for the defense cross-examined Garner regarding his previous testimony. Based on these and other facts contained in the record, we cannot say that the trial court abused its discretion in finding that, absent Garner‘s testimony, there was sufficient evidence to support Spaulding‘s conviction.
For the reasons set forth above, the decision of the Court of Appeals is hereby reversed.
LAMBERT, C.J.; COOPER, GRAVES, and WINTERSHEIMER, JJ., concur.
STUMBO, J., concurs in part and dissents in part by separate opinion, with STEPHENS, J., joining.
STUMBO, Justice, concurring in part and dissenting in part.
While I concur with the majority‘s analysis of the issues of collateral estoppel and the time limitations of
As the majority correctly notes, when reviewing a conviction obtained based on perjured testimony, the Court‘s overriding concern must be the integrity of the judicial process. During such an inquiry, the “question of the guilt or innocence of the accused is not a necessary subject of the inquiry.” Anderson v. Buchanan, Ky., 292 Ky. 810, 820, 168 S.W.2d 48, 54 (1943). Despite this clear proposition, the trial court indeed focused on the question of Spaulding‘s guilt or innocence when it treated Garner‘s perjured testimony as a nullity, then proceeded to review the remaining evidence against Spaulding and conclude this evidence alone was sufficient to support the conviction of manslaughter.
Rather than weighing the evidence at trial under the fiction that the perjured testimony never came in, the trial court should have done the exact opposite. It should have looked closely at the perjured testimony and weighed the likely effect that testimony had on the jury. If there existed any possibility that the perjured testimony contributed to Spaulding‘s conviction, then the trial court should have vacated the conviction and granted a new trial.
Garner was the only eye-witness to the actual stabbing, and, without reservation, he swore that Spaulding swung the knife at the victim and plunged it into his chest. In my mind, there is no doubt that Garner‘s testimony sealed the Commonwealth‘s case and helped ensure the conviction. To allow that conviction to stand, despite the knowledge that Garner‘s testi
STEPHENS, J., joins.