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Crumes v. Commonwealth

Court of Appeals of Kentucky

April 26, 2019

MIKEL CRUMES APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 11-CR-00648-001

          BRIEF FOR APPELLANT: Kieran John Comer Aaron Reed Baker Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, JUDGES.

          OPINION

          COMBS, JUDGE

         This is a criminal appeal filed by the Kentucky Innocence Project, a division of the Department of Public Advocacy (DPA), on behalf of Mikel Crumes, the Appellant. Crumes appeals an order of the Kenton Circuit Court that denied his motions for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02. The judge who presided over the trial also presided over the post-conviction collateral proceedings initiated by Crumes. After our review of this troubling matter, we vacate the judgment of the trial court and remand for a new trial.

         In August 2012, when he was seventeen years of age, Crumes was tried as a youthful offender for robbery, first degree; complicity to murder of Dre'Shawn Hammond; and tampering with physical evidence. After the trial court dismissed the tampering charge, the jury convicted him of robbery and complicity to murder. Tromonte Rice, Crumes's co-defendant, entered a guilty plea and testified against Crumes at trial.

         In November of 2012, the trial court sentenced Crumes to thirty-years' imprisonment for the murder charge and twenty-years' imprisonment for the robbery, to run concurrently. Pursuant to the provisions of Kentucky Revised Statute(s) (KRS) 640.030(2), Crumes remained in the custody of the Department of Juvenile Justice until he reached eighteen years of age. At that point, he was re-sentenced. Following a re-sentencing hearing, the trial court considered whether Crumes's sentence should be probated, whether he should be conditionally discharged, or whether he should be incarcerated in an adult prison to serve his sentence. After considering the testimony, Crumes's record, the state of his rehabilitation, and his alternate sentencing plan, the trial court determined in June 2013 that public safety required that Crumes be delivered to the custody of the Department of Corrections to serve his sentence in an adult prison.

         The Supreme Court of Kentucky affirmed Crumes's conviction in an opinion rendered in December 2013. In its opinion, the Supreme Court recounted the eyewitness testimony of Tromonte Rice that implicated both boys in the crime and discussed video surveillance footage from a convenience store as well as cell phone records that tended to corroborate Rice's testimony. The "totality of [Crumes's] proof was that he could not have committed the murder and robbery because he was not present when the crime occurred." Crumes v. Commonwealth, 2012-SC-000774-MR, 2013 WL 6730044, at *2 (Ky. Dec. 19, 2013). Crumes has never deviated from his assertion that he was not present at the site of the murder.

         In December 2014, Crumes filed motions pursuant to the provisions of both CR 60.02 and RCr 11.42. He contended that his conviction should be set aside because his co-defendant, Rice, had recanted his trial testimony. In the alternative, he claimed that he was entitled to relief because his trial counsel had been ineffective for failure to obtain an expert on cell tower technology to testify on behalf of the defense.

         In May 2015, the trial court held an evidentiary hearing to determine the voluntariness of Rice's recantation of his prior testimony. Rice asserted his rights under the provision of the Fifth Amendment to the United States Constitution and did not answer the questions put to him by Crumes's counsel. Subsequently, Rice executed an affidavit in which he indicated that Crumes had not been at the scene and that Crumes had had nothing to do with the crimes. Rice implicated another man in the crimes, "Little E." He testified that he had previously been afraid for his life to identify "Little E" as the real perpetrator of the crimes, but by now "Little E" himself had been murdered in Cincinnati. Rice claimed that he essentially felt driven to clear Crumes of his wrongful convictions in order "to clear his conscience."

         In February 2017, the trial court held another evidentiary hearing at which Rice testified. He repudiated his prior testimony that Crumes had shot and killed the victim, and he testified that Crumes had never been present at the crime scene and asserted again that Little E had been the shooter. The court learned at this hearing that Little E had been shot and killed in July 2014 -- just months before Crumes procured Rice's affidavit recanting his prior testimony. Following the hearing, the trial court issued its lengthy opinion and order concluding that Rice's renunciation of his trial testimony had been inconsistent, that it lacked the detail of earlier statements, and that it implicated a dead man, an "easy scapegoat." Consequently, the trial court denied Crumes's motion to set aside his conviction. The court also rejected the assertion that Crumes's trial counsel failed to provide effective assistance by not requesting a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as to the admissibility of the cell phone evidence introduced against him. The court observed that the disputed testimony of the telephone representative was "based on his specialized knowledge in the field but not on the type of scientific evidence generally requiring a Daubert hearing." Furthermore, it concluded that the admissibility of the disputed evidence was an issue that was properly addressed to the Supreme Court on Crumes's direct appeal. In an order entered on August 21, 2017, the trial court denied both motions, and this appeal followed.

         "[W]e review the denial of a CR 60.02 motion for an abuse of discretion." Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010). "The test for abuse of discretion is whether the trial court's decision was 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). "CR 60.02 relief is discretionary. The rule provides that the court 'may, upon such terms as are just, relieve a party from its final judgment. . . .'" Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Absent a "flagrant miscarriage of justice[, ]" we will affirm the trial court. Id. at 858.

         On appeal, Crumes contends first that the trial court erred by rejecting Rice's renunciation of his trial testimony. Crumes asserts that "the ability of a jury to detect whether a witness is lying or telling the truth is measurably poor" and declares that a conviction "where the only evidence against a defendant is the sworn word of a witness" "invites injustice." He argues that our jurisprudence surrounding the repudiation of a witness's prior testimony is "too harsh." And he claims that the circumstances surrounding Rice's post-conviction ...


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