FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 10-CR-00205
FOR APPELLANT: Margaret A. Ivie Robert C. Yang Frankfort,
FOR APPELLEE: Andy Beshear Attorney General of Kentucky James
C. Shackelford Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
Wayne Vincent appeals from the Hardin Circuit Court's
order denying his motion to vacate sentence pursuant to
11.42, entered April 27, 2017. After careful review, we
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Supreme Court's unpublished opinion on direct appeal.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.
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.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
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.
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. 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.
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.
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 ...