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Vincent v. Commonwealth

Court of Appeals of Kentucky

June 28, 2019

BRUCE VINCENT APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 10-CR-00205

          BRIEFS FOR APPELLANT: Margaret A. Ivie Robert C. Yang Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE

         Bruce Wayne Vincent appeals from the Hardin Circuit Court's order denying his motion to vacate sentence pursuant to RCr[1] 11.42, entered April 27, 2017. After careful review, we affirm.

         The complete details of this case may be found in the Kentucky Supreme Court's unpublished opinion on direct appeal. Vincent v. Commonwealth, 2011-SC-000196-MR, 2012 WL 991717 (Ky. Mar. 22, 2012) (Vincent I). Accordingly, we will address only the facts most relevant to this appeal.

         In January 2011, the Hardin Circuit Court tried Vincent on three counts of first-degree sodomy of his girlfriend's niece, a child under age twelve.[2]During trial, the Commonwealth's case relied principally upon the testimony of the child victim and Vincent's admissions during police interviews. The victim testified Vincent had forced her to perform oral sex on three separate occasions. Vincent's admissions to police were introduced through the testimony of Detective Tom Bingham of the Radcliff Police Department, who described his four interviews with Vincent to the jury. In his first interview with the detective, Vincent denied all wrongdoing. In his second interview, approximately two months later, Vincent admitted to an incident in which he fell asleep and woke up to find his penis in the victim's hand. That same day, Vincent gave a third interview altering the character of the encounter, stating he woke up on his couch and found his penis in the victim's mouth. Vincent repeated this version of the incident in a fourth interview, held four days later.

         The defense strategy at trial focused on shaking the credibility of the victim and portraying Vincent as an intellectually disabled man who had been duped by police into a false confession. Of particular relevance to the current appeal, the defense did not use experts on intellectual functioning or false confessions. Instead, defense counsel chose to present Vincent's intellectual disability through lay testimony. Vincent's girlfriend, Janet Nally, testified how Vincent "could not read or write [and] relied on her completely to manage his personal affairs." Id. at *2. In addition, the jury heard how Vincent had not worked since 2004, when he began collecting Social Security benefits based, in part, on his intellectual impairment.

         Vincent testified in his own defense, telling the jury he initially denied guilt during the police interview, but police "freaked him out" when they told him about a purported blanket which potentially had his DNA on it. Id. There was no DNA and no blanket-this was a ruse meant to elicit further admissions.[3] Vincent then informed the jury he felt obliged to repeat the theory of the incident the detective suggested to him, in which the victim performed oral sex upon him while he was asleep. Vincent claimed this admission was false and denied he had sexual contact with the victim. The jury found Vincent guilty of first-degree sodomy on only one of the three charged incidents-the incident to which Vincent confessed. Vincent was thereafter sentenced to a term of twenty-years' imprisonment.

         As previously noted, the Kentucky Supreme Court upheld the conviction on direct appeal in an unpublished memorandum opinion. In one of his arguments on direct appeal, Vincent contended "his statements to Detective Bingham were involuntary due to his low level of intellectual functioning[.]" Id. at *3. However, the Supreme Court determined this argument was not preserved for appellate review because trial counsel never moved to suppress Vincent's admissions. The Supreme Court also declined palpable error review of the matter due to the absence of "a more developed record on the issue[.]" Id. at *4.

         Vincent subsequently moved to vacate his sentence under RCr 11.42, which the circuit court denied in an order entered May 14, 2013. Vincent appealed the denial of relief to this Court. Vincent v. Commonwealth, 2013-CA-001022-MR, 2015 WL 6112193 (Ky. App. Oct. 16, 2015) (Vincent II). In our previous opinion, we summarized Vincent's arguments asserting ineffective assistance of counsel as follows:

At the heart of this dispute lies Vincent's allegation that his cognitive limitations rendered him so susceptible to police interview tactics that their use resulted in the false confession that later damned him at trial. In light of such a devastating confession, Vincent maintains that any reasonable defense attorney would have either attempted to suppress it or presented an expert at trial to mitigate its persuasive effect on a jury.

Id. at *3. This Court then considered the matter in light of Bailey v.Commonwealth, 194 S.W.3d 296 (Ky. 2006), wherein the Kentucky Supreme Court held "some police tactics similar to those at issue here were sufficiently coercive to overcome the will of a mentally-handicapped person, and thus warranted the suppression of his incriminating statements." Vincent II, at *4. Further, we held "because Vincent's confession may have been vulnerable to suppression, his attorneys' failure to challenge Vincent's confession at a suppression hearing may constitute ineffective assistance." Id. (citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). We then concluded the record, as it stood, did not clearly refute Vincent's ...


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