RENDERED : AUGUST 21, 2008 TO BE PUBLISHED
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LACY BEDINGFIELD APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NUMBER 2005-CA-000971 FAYETTE CIRCUIT COURT NO . 95-CR-000866
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
The following appeal comes to this Court upon discretionary review of the
Court of Appeals' opinion affirming the Fayette Circuit Court's order denying
Appellant, Lacy Bedingfield's, motion to vacate his judgment and grant a new
trial. At the outset, we pause to note the procedural path Appellant's case has
taken.
The underlying judgment upon which Appellant's motion rests, concerns
his 1996 conviction of rape in the first degree and of being a persistent felony
offender . As a result of his conviction, Appellant was sentenced to twenty-five
(25) years imprisonment . Appellant appealed his conviction to this Court as a
matter of right, and in an unpublished memorandum opinion of the Court
rendered on September 4, 1997, we affirmed the trial court's conviction . During the pendency of this matter of right appeal, Appellant filed an RCr
11 .42 motion asserting ineffective assistance of counsel on grounds that counsel
did not adequately pursue DNA testing. Thereafter, this motion was denied by
the trial court and the denial was subsequently affirmed by the Court of Appeals. release On July 6, 2004, Appellant filed a motion requesting of certain
physical evidence, consisting of the alleged victim's rape kit and other physical
evidence, to be used in forensic testing of the semen samples contained therein .
Appellant alleged that the methodologies of testing minute samples presently
available were not in existence in 1996, and thus the samples would offer new
forensic evidence . The results obtained from the subsequent testing give rise to
Appellant's present motion to vacate judgment and to grant a new trial pursuant
to CR 60 .02, RCr 10.02 and RCr 10.06(l).
Appellant now claims that the results of the DNA testing performed on the
forensic evidence definitively exclude him as the source of the semen recovered
from the alleged victim and, therefore, give rise to sufficient justification for a new
trial based on newly discovered evidence. In order to assess Appellant's claim,
we now turn to the evidence and events which led to Appellant's underlying
conviction.
1. BACKGROUND
On June 2, 1995, Officers James Stockard and Leroy Richardson were
patrolling a park in the Centre Parkway area of Lexington when they were
approached by a young female, T.B ., wearing only a t-shirt . The officers
observed that T.B. was visibly shaken, hysterical and crying . T.B . repeatedly
stated that she had been raped and that her friend, K.P., may be in the process of being roped . As other officers and T.B .'s mother arrived, T.B. directed the
officers to the residence of Gwendolyn Bedingfield where she claimed the rape
occurred . When police arrived at the location, they apprehended Appellant as he
was exiting the residence. According to testimony, Appellant,was not wearing a
shirt and was sweating profusely. The police led Appellant to the street where
T.B . identified him as the perpetrator.
After Gwendolyn Bedingfield, who was Appellant's ex-wife, and her
daughter, K.P ., arrived at the scene, T.B . was taken to the University of Kentucky
Medical Center, where she was examined by a nurse and doctor who took
samples from her for a rape kit. T.B. had a contusion on her left cheek and an
abrasion on her right elbow. An examination of T.B .'s vagina discovered her
hymen was not intact but detected no blood . T.B . told the medical professionals
that she had been vaginally raped but claimed that Appellant did not attempt to
touch or penetrate her anus.
After Appellant was arrested, he declined to voluntarily give the evidence
required for the rape Q and thus the officers obtained a warrant compelling
Appellant to submit evidence . Appellant was taken to Central Baptist Hospital
and cooperated fully with the examination until he was told that a swab would be
inserted into his penis . At this point, Appellant objected and became upset,
eventually having to be physically restrained . Testimony from one of the
attending officers indicated that Appellant stated that he would tell them he did it
if they would not insert the swab into his penis . According to the nurse who
performed the penile swab, Appellant said he had consensual sex with T.B . but
claimed he did not know she was underage. Subsequently, Appellant stated that he made this confession only to prevent the swab from being inserted into his
penis.
Blood, head hair, pubic hair and other samples taken from T.B . and
Appellant were examined at the Kentucky State Police Crime Laboratory .
Significantly, sperm cells were identified in a vaginal smear and a vaginal swab
taken from T .B . during the rape kit examination, but the semen was insufficient to
establish a blood group or to permit DNA analysis . Additionally, semen was
located on certain articles of clothing T.B . was wearing. A comparison of pubic
hair combings from T.B . and Appellant found no hairs from either party on the
other. The Commonwealth's serologist stated that the results of his tests could
not establish that Appellant had engaged in sexual intercourse with T.B.
At trial, T.B. testified for the Commonwealth . During her testimony, she
stated that after school, on June 2, 1995, she and a friend, K.P., met at the Tates
Creek Country Club swimming pool . While the girls were swimming, Appellant
arrived at the pool. When the pool closed, the girls and Appellant went to the
residence of Gwendolyn Bedingfield, K.P.'s mother and Appellant's ex-wife .
Some time thereafter Appellant left for the liquor store and returned with
and drank a bottle of fortified wine. According to T.B., while the girls were
watching television in the den, Appellant entered and sat next to T.B. Appellant
then began to rub T.B.'s calf and thighs . Although T.B. moved her leg and told
Appellant to stop, she testified that Appellant persisted in inappropriately
touching her. Although her testimony on the matter is conflicting, T.B . claimed
that Appellant engaged in oral sex with her on the couch. T.B . and K.P. then
ostensibly went to K.P.'s room and locked the door leaning against it in order to prevent Appellant from entering . According to T .B ., Appellant shoved his way
through the door and entered the room . T.B. testified that when she refused to
lie down on the bed, Appellant grabbed her by the hair, threw her on the bed, and
ripped off her bathing suit. T.B . then stated that Appellant beat- her in the head
with his fist while he called her derogatory names. T.B . testified that while she
was on her stomach she felt Appellant's penis touch but not penetrate her anus.
T.B. then claimed Appellant threatened her to remain still so he could insert his
penis in her vagina or he would beat her, whereupon he then forced her legs
open and engaged in vaginal rape. Immediately thereafter, he told T.B . to gather
her belongings and leave.
According to T.B .'s trial testimony, as she was collecting her things,
Appellant again grabbed her and took her into another bedroom . T.B . testified
that he told her he "wanted it again," threw her onto the bed and once more
vaginally raped her. Although T.B. testified that she told Detective Basehart
about the second rape before trial, a tape of the interview played for the jury
revealed that T.B . did not tell Basehart about the alleged second rape. When
Appellant got up to go into another room, T.B . ran out of the house, knocking
over a lamp and other items in the process.
Conversely, Appellant maintains that T.B . attempted to seduce him as a
result of a dare by K.P. for T.B . to have sex with Appellant. He contends that he
was sitting in the den when T .B. walked in and began to rub his chest in an
attempt to entice sexual intercourse . Appellant claimed that he became angry
and told T.B . to leave . However, T.B . then went to K.P.'s bedroom where he
overheard her say, "did you do it," whereupon T.B. responded, "no, he wasn't down for that ." Appellant claimed he became irate upon hearing this and
engaged in a physical struggle with T.B. while attempting to eject her from the
house . Appellant was then apprehended as he was leaving the house . At trial,
Appellant testified that he did not have sex with T. B . forcefully -or otherwise .
Subsequently, Appellant was changed and convicted of first-degree rape
and of being a persistent felony offender . Now, Appellant introduces post-
conviction DNA evidence which conclusively excludes him as the source of the
semen found in the rape kit . Upon a motion for a new trial, the trial court held
that this evidence would not likely change the outcome of the trial with a
reasonable certainty. The Court of Appeals affirmed this decision and we granted
discretionary review.
11 . ANALYSIS
Appellant argues that he is entitled to a new trial and that his motion for
such was improperly denied in light of the exculpatory nature of the DNA
evidence which proves that the semen sample found in the alleged victim's rape
kit did not belong to him.
Preliminarily, we note that this Court has recognized the expansive
advances in technology which have occurred over the course of the past decade
concerning DNA testing technology . As Appellant argues, and we concede,
technological advances in the field now permit testing of minute sample sizes
which were, heretofore, inconceivable even as recently as a few years ago . It is
a recognition of these advances in DNA testing which has led to grants of funding
to the Kentucky Innocence Project though IOLTA - which gave rise to the instant
case -- and various other agencies to aid in testing of unresolved or "cold cases," as well as disputed rulings. See Walker v. Commonwealth, No . 2006-SC-
000480-MR, 2007 WL 2404508, at *1 (Ky. August 23, 2007).
In Walker, we upheld the trial court's conviction of a rapist obtained in
large part, due to newly discovered DNA identification taken from -samples
collected some twenty (20) years prior. In doing so, we noted that advances in
DNA technology allowed for testing of samples from the victim's rape kit which
led to the subsequent positive identification of the unidentified perpetrator of the
unsolved rape and burglary. Id. at *3. This Court in Harris v . Commonwealth,
846 S .W.2d 678, 681 (Ky. 1992) (overruled in part by Mitchell v. Commonwealth,
908 S .W .2d 100, 101-102 (Ky. 1995)), originally turned a cautious eye toward
DNA technology, due largely to its relative novelty at that time and a lack of
consensus among both the legal and scientific community as to how to handle
DNA evidence . Ultimately, we determined, however, that such evidence, though
admissible, would be determined on a case by case basis . Id. Qrr !g~~ United
States v. Two Bulls , 918 F.2d 56, 58 (8th Cir. 1990)) (en bane granted 925 F.2d
1127 (1991)). Nevertheless, in the years subsequent, DNA testing has garnered
nearly unanimous favor in the medical, scientific, and legal communities and has
come to represent the gold standard of genetic identification . See, e .g . , Fu ate
v. Commonwealth, 993 &W.2d 931, 931V937 (Ky. 1999) (overruling Mitchell and
holding that because of the widespread recognition of DNA evidence as valid and
scientifically reliable such evidence was admissible per se).
Noting this evolution as such, we are now faced with the question of what
weight we should attribute to newly discovered, quasi-exculpatory evidence in
the form of DNA data and, thus, whether the post-conviction introduction of such information warrants Appellant's request for a new trial under these
circumstances .
A. Standard of Review .
RCr,1-0 .02 establishes that the granting of a new trial is warranted in
circumstances wherein a defendant was somehow prevented from having a fair
trial, or if otherwise required in the interests of justice . RCr 10 .02(1). It is well
accepted that the standard for adjudging whether a new trial is warranted based
upon newly discovered evidence is whether such evidence carries a significance
which "'would with reasonable certainty, change the verdict or that it would
probably change the result if a new trial should be granted ."' E .,g_, Collins v.
Commonwealth , 951 S.W.2d 569, 576 (Ky. 1997) (quoting Coots v.
Commonwealth , 418 S.W .2d 752 (Ky. 1967)); see also Caldwell v.
Commonwealth , 133 S.W.3d 445, 454 (Ky. 2004). Likewise, we have
consistently held that evidence which is merely cumulative, collateral, or which
impeaches a nonmaterial witness is insufficient to warrant a new trial . See Foley
v. Commonwealth , 55 S .W.3d 809, 814 (Ky. 2000). Logically, however, the
converse is equally true. When newly discovered evidence is of such a nature
that it is manifest to the conviction, substantially impacts the testimony of a
material witness, or would have probably induced a different conclusion by the
jury had the evidence been heard, then assuredly, the interests of justice
demand that a criminal defendant is entitled to have such evidence set before the
court. We review the denial of a motion for a new trial to determine whether such
decision was an abuse of discretion . Id. ; Collins , 951 S .W.2d at 576 ; Epperson
v. Commonwealth, 809 S.W.2d 835, 841 (Ky. 1991) .
A. Timeliness of Motion for a New Trial
We note that typically RCr 10 .02 motions based upon newly discovered
evidence should be made within one year of the rendering of a final judgment .
However, RCr 10.06(1) allows entry of a motion "for a new trial based upon the
ground of newly discovered evidence . . . made within one (1) year after the entry
of the judgment or at a later time if the court for good cause so permits."
(emphasis added) .
Similarly, CR 60.02 permits,
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect ; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; [ten days after judgment] (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application ; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken . A motion under this rule does not affect the finality of a judgment or suspend its operation .
(emphasis added) . However, as we recognized in Bowling v. Commonwealth ,
168 S .W.3d 2, 5 (Ky. 2004), "[u]nlike RCr 10 .06(1) . . . CR 60 .02 contains no
provision for extending the time limit past one year" for reasons of newly
discovered evidence . Yet, as we implicitly noted in Bowling , and as is explicitly
9 present in the rule, justifications under CR 60.02(d), (e), or (f) may be asserted
outside of this one year time frame . See Bowling , 168 S .W .3d at 6 n.3 (quoting
Hartford Accident & Indem . Co . v. Lewis, 296 S.W.2d 228, 231 (Ky. 1956))
.(noting that CR 60.02(f) must be explicitly invoked to be applicable) .
While such consideration is not an issue in the present instance as
Appellant, here, specifically pleaded relief under both RCr 10 .06(1) and CR
60.02(f), we now call into question the efficacy of a rule which fails to
acknowledge that an "extraordinary nature" may likewise exist under CR
60 .02(b), such is the case here. An "extraordinary" circumstance under CR
60.02(f) always establishes good cause under RCr 10 .06(1) and thus, if good
cause is shown, a motion for a new trial can be made outside of the one year
limitations period . Here, it should not be overlooked that the DNA technology
which gave rise to this newly discovered evidence did not exist in the time frame
when it could have been timely brought under CR 60 .02(b). Despite the
disconnect between the permissive time frame of RCr 10.06(1) and the more
rigid time frame under CR 60 .02, Appellant is permitted to make a .motion for a
new trial because he proceeded under both RCr 10.06(1) and CR 60 .02(f).
Therefore, as Appellant has demonstrated good cause, the one year limitation is
not applicable here.
B. DNA Evidence .
Despite the prevalence of guidance concerning the grant of a new trial, the
circumstance at hand appears to be an issue of first impression in Kentucky. It
would seem that this Court has never thoroughly examined the exculpatory effect
of newly discovered DNA evidence in this context. However, many of our sister
10 jurisdictions, acknowledging the accuracy, effectiveness, and implicit interests of
justice inherent in DNA testing have recognized the exculpatory effect that such
evidence may have in post-conviction criminal proceedings .
In People v. Dodds, 801 N .E.2d 63, 67-68 (Ill . App. Ct. 2003), appellant,
convicted of murder, initiated a motion for a new trial based on newly discovered
DNA evidence . The motion was based, in part, on new "non-match" DNA
evidence removed from blood stains, purported to be the victim's, found on
appellant's pants . Id . In that vein, the appellant argued that, at his trial, the state
relied heavily on the blood evidence as indicative of his guilt. Conversely, the
state maintained that the blood evidence was but one indication of guilt, along
with appellant's confession . Noting the relative novelty of the use of post-trial
"non-match" DNA evidence, the Dodds court defined such evidence as:
Negative or non-match results are those, as in the instant case, where the results show that the victim was not the source of a certain sample (defendant's clothing here), but which results do not necessarily exclude the defendant as the perpetrator . In other words, although defendant here may have shown that the blood on his clothing was not that of the victims, this does not rule him out as the murderer.
Id . at 68 n .2 (citing Comment, Motions for Postconviction DNA Testing :
Determining the Standard of Proof Necessary in Granting Requests, 31 Cap.
U.L.Rev. 243, 264 (2003) (the "absence of DNA does not necessarily mean the
perpetrator was not in contact with the crime scene or victim. Similarly, the
absence of a victim's DNA on a perpetrator or his property does not mean there
was no contact between the two").
Recognizing that post-conviction, newly discovered, non-match DNA
evidence - that which, standing alone, neither explicitly exculpates or inculpates a defendant - is rarely addressed in case law, the Dodds court sought to discern
the legal significance of such evidence. Id . at 68-69 (citing 31 Cap U. L. Rev. a t
245) . In doing so, the court articulated that in order to warrant a claim of actual
. innocence, the evidence should be new, noncumulative evidence which was not
obtainable with due diligence during trial and that would probably induce a
different result upon retrial . Id. at 69.
Similarly, we are now faced with a situation of non-match DNA evidence
discovered years after the alleged commission of the crime . Moreover, what is
likewise noteworthy is that the Dodds court, as in the present instance, reviewed
the newly discovered evidence despite the fact that appellant had already
confessed to the crime . Id. at 67. The court justified its decision by relying on
the compelling exculpatory effect of DNA evidence as well as the dubious nature
of the confession . See id . a t 71 .
Likewise, in In Re Bradford , 165 P.3d 31, 32 (Wash . App. 2007), after
serving his full sentence, appellant appealed his rape and burglary convictions
based on newly discovered DNA evidence. Again, the court found that non
match DNA, which did not conclusively exculpate the defendant, supported a
new trial . Using techniques not available at the time of the trial (1995), the
laboratory extracted the DNA of an unidentified male from the surface of tape
used to secure a mask that the perpetrator had forced the victim to wear during
the commission of the crime. Id . at 32-33. Subsequent DNA testing excluded
appellant as a source of the specimen found on the tape . Id. The court, while
acknowledging that this new evidence did not positively exclude appellant as the person responsible for of the crime, proposed that this new evidence would
minimize the probability that he was the perpetrator . See id .
Similar to Dodds, the Bradford court was faced with the conundrum of
.granting a new trial despite the appellant's confession . Id.. . at 32 . . The trial court
below had found that the jury relied heavily on Bradford's confession, but that its
reliability was questionable . Id . 32 . Recognizing that this newly discovered
evidence would probably change the result of the initial trial, the Washington
Court of Appeals determined that this was a question for the jury and that they
should have the opportunity to determine whether the confession was reliable or
not in light of the newly discovered DNA evidence. Id . at 35 .
In Commonwealth v. Reese, 663 A.2d 206, 210 (Pa . Super. 1995), a
convicted rapist was granted a new trial based on newly discovered non-match
DNA from the victim's vaginal smear. Laboratory tests conducted on the sperm
found on the vaginal smear concluded that Reese was not the source of the
semen. Id . The Commonwealth's principal argument on appeal was that the
new evidence did not exculpate the defendant, but merely showed that the victim
and her live-in boyfriend had engaged in intercourse prior to the rape . Id . at 209.
This theory was strengthened by the victim's testimony that she was unsure
whether or not the assailant had ejaculated. Id . Nevertheless, the court
concluded that DNA evidence which excludes a defendant as the donor of
semen may be sufficient to create reasonable doubt sufficient enough to secure
an acquittal . Id . at 208.
In Brewer v. State , 819 So.2d 1169 (Miss . 2002), appellant was granted
an evidentiary hearing to determine if he should receive a new trial. In 1995,
13 appellant was sentenced to death for the rape and murder of a female child . Id .
a t 1171 . In 2001, appellant moved for DNA testing to be conducted on certain
evidence. Subsequent testing discovered semen from two unknown male donors
-on the. victim's body; however, the appellant's DNA was not present . Id. at1174 .
The circumstantial evidence against appellant was mountainous. He was the
only person with the children during the time period in which the rape and murder
took place ; experts testified that the bite marks on the child's body were his; and
a team of dogs, following the scent of his clothing, eventually led them to the site
where the victim's body was found. Id . at 1173 n. 1 . Nevertheless, the court
granted the evidentiary hearing, recognizing the exculpatory nature of the DNA
evidence and finding that the trial court should determine whether it was
sufficient to induce a reasonable fact finder to reach a different result. Id . at
1174.
In the present instance, we are confronted with the stark reality that
Appellant was convicted based, at least in part, on suppositions that we now
know to be fundamentally false : namely, that Appellant was the source of semen
identified from RKs vaginal swab and that taken from her clothing . Moreover,
we simply cannot ignore the permeating and saturating effect that the evidence,
which was construed to identify Appellant as the source of the semen, played in
enhancing the viability and credibility of all of the Commonwealth's arguments .
And although we are mindful of the circumstantial evidence which would seem to
inculpate Appellant, we are likewise heedful of, and troubled by, the numerous
inconsistencies in the testimony and evidence presented at trial . The semen evidence collected from the rape kit and clothing played a
substantial, if not central, role in Appellant's trial . The Commonwealth focused
on the semen evidence in calling Edward Taylor of the Kentucky State Police
Crime Lab, who testified that trace amounts of semen andsperm cells were
collected from the vaginal smear and the vaghal swabs, as well as from the
clothing . Taylor likewise gave testimony concerning the significance of the blood
type testing and remarked that eighty percent of individuals secrete their blood
type in their body fluids and that both Appellant and T.B.VVere secretors . While
Taylor testified that he could not draw conclusive results from the tests to prove
Appellant as the source of the semen, he gave a detailed explanation as to the
possibility of Appellant's blood type secretions being mixed with T.B .'0 Vaginal
fluid secretions .
Moreover, and of significant import, is the fact that the Commonwealth
argued throughout Appellant's trial that the presence of semen corroborated
T .B.'S allegations that she was raped because she had not had sex with anyone
else that day. In fact, the Commonwealth excused Appellant's contention that
the semen was from a sexual encounter with someone other than Appellant as a
"bizarre theory" given the young age of T.B. and the fact that she had been at
school and at the pool prior to the alleged incident. As to her presence at the
pool, the Commonwealth emphasized this as further evidence that the semen
must have belonged to Appellant, because if it wa0from someone else it would
have been washed away. Likewise, the Commonwealth also argued that the
semen discharge found on T.B.'s pants had to be from recent intercourse . The foregoing problems are correspondingly buttressed by the numerous
and -troubling testimonial inconsistencies involved in Appellant's trial . The
primary witness, T.B ., contradicted many of her previous statements both during
her testimony .and before trial. Additionally, the only other alleged witness, K.P.,
also gave conflicting and inconsistent accounts . Moreover, it cannot be ignored
that there were serious credibility problems with both of these witnesses . K.P .'s
mother conceded that she "was not very good at telling the truth," and her
testimony would seem to substantiate this conclusion; K.P. had also made at
least three prior false rape allegations against her mother's previous boyfriends .
Similarly, K.P. had just been released from an institution where she was being
treated for depression the day prior to the alleged event .
T.B .'s testimony at trial differed in many regards from the statements that
she gave to Detective Basehart after the rape . T.B . told Basehart in a taped
interview prior to trial that Appellant did not attempt anal intercourse and that she
was never on her stomach during the incident. However, at trial, she denied that
she told Basehart this and testified that she was on her stomach and Appellant
attempted to have anal intercourse with her. T .B.'s trial testimony was similarly
inconsistent with statements she gave to the attending physician at the hospital .
The physician testified that when he specifically questioned T.B. about whether
there was any contact with the anus, she said there was none. Further troubling
is that T.B .'s claim that Appellant engaged in oral sex with her did not surface
until cross examination at trial . Furthermore, T.B . testified on direct examination
that Appellant raped her a second time in a separate bedroom and that she
informed Detective Basehart of this . However, the taped interview with the
16 Detective revealed that no such statement was made prior to trial . When asked
whether Appellant had done anything to her apart from rubbing her that made her
uncomfortable, T.B. mentioned nothing about the alleged oral sex .
. . . . . T.-B . further testified that her one-piece bathing suit was ripped off by
Appellant during the alleged rape. However, when asked on cross-examination
how her bathing suit came off, she said that she wasn't sure and that it must
have fallen off. Moreover, at trial she denied telling Basehart that Appellant
ripped the swimsuit off, though the tape revealed that she, indeed, had done so .
T.B.'s testimony regarding the bathing suit is especially troubling considering that
it was of a one-piece design and T.B. consistently testified that her t-shirt
remained on throughout the encounter.
There are also marked inconsistencies between T.B. and K.P .'s stories.
For instance, K.P. testified that she witnessed the alleged oral sex in the living
room. However, T.B . did not mention the oral sex until cross-examination and
testified that K.P. did not know about the incident in the living room until she told
her in the bedroom . Although K.P. testified that Appellant forced T.B. to allow
him to perform oral sex, she could not explain how Appellant managed to push
aside T.B .'s shorts and bathing suit in order to put his mouth to her vagina . K.P.
also testified that she witnessed the anal intercourse . She stated that T .B . told
Appellant that the anal intercourse was painful and asked Appellant to allow her
to turn around . K.P . testified that Appellant obliged this request and the vaginal
rape occurred when T.B. turned around . As we have noted this is contrary to
T.B's testimony. Assuredly, these testimonial inconsistencies are unsettling Thus, the circumstantial evidence in this case was far from irrefutable .
Ultimately, the substantive exculpatory nature of the newly discovered DNA
evidence coupled with the blatant testimonial inconsistencies of the material
witnesscs , and, the substantial impact which this newly discovered evidence has
upon said testimony, along with the fact that this evidence would probably induce
a different conclusion by a jury, all serve to warrant a new trial to avoid a
substantial miscarriage of justice . RCr 10.02
III. CONCLUSION
For clarity's sake we emphasize : the presence of sperm which DNA
testing proves did not belong to Appellant does not exonerate him ; however, the
presence of this new evidence does cast a long shadow and assuredly merits
consideration in the form a new trial . It cannot be overlooked that in Appellant's
initial trial, all other arguments were enhanced and corroborated by the
supposition that the sperm found belonged to Appellant . Indeed, this theme was
central to the Commonwealth's prosecution . Because the technology was not
available for Appellant to refute that claim, Appellant was left to rely on his word
against that of the Commonwealth. This new evidence is substantial, if not
pivotal, and we are inclined to believe that it is precisely the type of evidence that
is envisioned by the rule and that may change the result if a new trial were
granted . See Commonwealth v. Tammg, 83 S .W.3d 465, 468 (Ky. 2002) ; RCr
10.02.
Accordingly, we hereby reverse the Court of Appeals' decision affirming,
vacate Appellant's sentence pursuant to CR 60.02, and grant his motion for a new trial based upon newly discovered evidence. This matter is therefore
remanded to the trial court for further proceedings consistent herewith .
Minton, C.J., Abramson, Cunningham, Noble, and Schroder, JJ ., concur.
Venters, J., not sifting . 1 -1 ~ I ; COUNSEL FOR APPELLANT :
Melanie L. Lowe Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane Ste . 301 Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway Attorney General of Kentucky
James Daryl Havey Office of the Commonwealth's Attorney 116 N . Upper St. Ste. 300 Lexington, KY 40507-1161
Traci Courtney Caneer Office of the Commonwealth's Attorney 116 N. Upper St. Ste . 300 Lexington, KY 40507-1161