RENDERED : SEPTEMBER 23, 2010 TO BE PUBLISHED
sixyrrxrtr C~xixrf of '.firuf I NK 2008-SC-000747-MR AND 2009-SC-000025-MR BATE~ RAYMOND CLUTTER APPELLANT
ON APPEAL FROM GALLATIN CIRCUIT COURT V HONORABLE ANTHONY W. FROHLICH, JUDGE NO . 98-CR-00007
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Appellant Raymond Clutter appeals from a Judgment of the Gallatin
Circuit Court, entered upon a jury verdict, convicting him of second-degree
rape, second-degree sodomy, and of being a persistent felony offender in the
first degree (PFO 1) . He was sentenced to ten years imprisonment for the rape
conviction and ten years imprisonment for the sodomy conviction, both
enhanced to twenty years by his PFO 1 status and ordered to run concurrently
for a total of twenty years imprisonment . Raising two claims of error, Clutter
appeals to this Court as a matter of right pursuant to § 110(2) (b) of the
Kentucky Constitution . First, Clutter asserts that his case should have been
dismissed due to prosecutorial delay in violation of the Interstate Agreement on Detainers (IAD), codified in Kentucky law by KRS 440 .450 . Second, he claims
that the trial court erred when it refused to prohibit any reference to an
incriminating statement attributed to Clutter, given that the Commonwealth
did not provide notice regarding the statement until the evening before trial.
Finding no merit in either of Clutter's claims, we affirm his conviction and
sentence.
RELEVANT FACTS
In 1998, Clutter was indicted on the offenses that resulted in the current
convictions. The offensive acts occurred in 1990 when Clutter engaged in
sexual intercourse and deviate sexual intercourse with the daughter of his
then-girlfriend and business partner. The victim was less than fourteen years
old at the time of the offenses. Although the victim reported the incidents to
school personnel soon after they occurred, she later recanted . At Clutter's
2008 trial, the victim testified that she had recanted years earlier at the request
of her mother. However, when the victim gave birth to her own child in 1997,
concern for that child's safety around Clutter prompted her to report Clutter's
history of sexually abusing her, starting when she was only four years old . In
her videotaped statement to the police, the victim recounted the history of the
sexual abuse, including the two specific acts for which Clutter was ultimately
charged and convicted.
As noted above, Clutter was indicted on these offenses in 1998 . A trial
date of July 31, 1998, was initially set, but continued by agreement of the
parties until September 9, 1998 . On September 1, 1998, Clutter's counsel filed a motion for a continuance. The parties agreed to another continuance and on
September 5, 1998, Clutter's counsel filed a motion for a new trial date . While
this motion was pending, Clutter's bond was revoked because he had
committed an additional criminal offense . Subsequently, Clutter was taken
into federal custody for that offense, namely the use of interstate commerce
facilities in the commission of murder for hire. He eventually pled guilty to that
charge and served approximately ten years in federal prison . Clutter was tried
for the instant offenses upon his release from federal custody in 2008 . He was
convicted of both offenses and sentenced to twenty years in accord with the
jury's verdict.
ANALYSIS
I. Because Clutter Failed to Properly Invoke the Provisions of the Interstate Agreement on Detainers Act, There Was No Error in the Trial Court's Refusal to Dismiss the Charges Upon Grounds of Prosecutorial Delay Under the Act .
Clutter asserts that the charges against him should have been dismissed
for the failure to bring him to trial within 180 days of his having substantially
complied with the provisions of the IAD . Article III of the IAD, codified at KRS
440.450, provides in relevant part :
(1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner .
(2) The written notice and request for final disposition referred to in paragraph (1) hereof shall be given or sent by the prisoner to the warden, secretary of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by certified mail, return receipt requested .
Thus, in order to start the 180-day time period under subsection (1), the
prisoner must give the required notice to the warden, secretary of corrections
or other official having custody of him. It then becomes that official's
responsibility to attach the certificate containing the necessary information and
forward both documents to the appropriate prosecuting official.
To evaluate Clutter's claim, we must determine whether and when
Clutter complied with the provisions of the IAD . Clutter, having been taken
into federal custody in September 1998, pled guilty to the federal charge in
March 1999 and was sentenced in June 1999 . In November 1999, Clutter filed
a motion for speedy trial with the Gallatin Circuit Court and informed that
court of his status of federal incarceration . At a hearing on his motion, the
trial court told Clutter's counsel that his request needed to be made in compliance with the IAD . About a year later, in November 2000, Clutter filed a
pro se motion to dismiss the charges based on pre-indictment delay as well as
a violation of his right to speedy trial. The trial court denied the motion as to
Clutter's speedy trial rights, but reserved ruling on the pre-indictment delay
aspect pending an evidentiary hearing. After the court's ruling, Clutter filed a
reply to the Commonwealth's response. Apparently under the impression that
the subsequent filing of his reply revived the previously ruled upon motion,
Clutter began submitting filings designed to obtain another ruling on this same
motion . Specifically, on April 24, 2001, Clutter filed a "request for final
disposition ." Significantly, this pleading contains an acknowledgement by
Clutter that he had been advised on a total of three occasions, by two separate
attorneys, that he was required to submit forms to the officials at the federal
prison in order to invoke the IAD . Clutter proceeded to express his
disagreement with this advice, instead asserting that the Commonwealth could
have procured custody of Clutter under a separate provision of the IAD, Article
Clutter then filed a pro se petition for a writ of mandamus in the Court of
Appeals, seeking an order to compel the trial court to rule on his motion . Upon his denial of the writ, Clutter renewed motion to dismiss in the trial court in
January 2002 . In May 2002, the trial court remanded the motion from the
docket, stating that the motion had already been ruled upon. In August 2002,
Clutter filed yet another pro se motion to invoke his speedy trial rights under
the IAD. In this motion, Clutter identified the commencement date of his federal incarceration, estimated his good-time credit and his projected release
date . The paragraph in the pleading containing this information is followed by
"(Exhibit __) ." The exhibit identifier is blank and there are no exhibits or
other attachments to the pleading. In October 2002, the trial court stated that
it would take the motion under submission .
In February 2003, Clutter filed a second pro se petition for mandamus
with the Court of Appeals. Significantly, Clutter admitted in this petition
"Although Clutter has not given his request for disposition to [Bureau of
Prisons] officials, he has clearly met his burden by sending his request for
disposition to the Court and prosecutor with the certificate from the
`appropriate officials having custody' containing the required information to
envoke {sic] the IAD, Article IV for the prosecutor to initiate proceedings."
Clutter's petition was denied.
In June 2003, a status conference was held wherein Clutter's attorney
told the court that it was his understanding that Clutter was refusing to
properly request disposition of the charges through the federal prison
authorities . Counsel told the court that he would write a letter to Clutter
explaining that he must go through the prison authorities to invoke the
transfer provisions of the IAD. Of course, one of the previous motions filed by
Clutter conceded that he had already been advised of this requirement . In
September 2003, Clutter filed another pro se motion, requesting trial within
180 days, again with no accompanying certificate from the federal prison
warden. At a status conference in 2003, Clutter's counsel stated that he believed Clutter had properly complied with the IAD . The Commonwealth
responded that it would secure Clutter for trial upon receipt of the certificate
from the federal prison . A few weeks later, another status conference was held,
wherein the Commonwealth advised the court that it still had not received any
documents from the federal prison . The court clerk advised that she had yet to
receive such documents either.
In March 2006, Clutter filed a motion to dismiss upon grounds that he
had not been tried within 180 days of his 1999 motion or within 180 days of
his 2003 motion . In April 2006, the trial court overruled the motion, noting
Clutter's continuing failure to comply with the IAD . In the summer of 2007,
Clutter completed his federal sentence and was delivered to Boone County Jail
where he was facing a separate indictment on a charge of capital murder. A
pre-trial conference was held on the instant charges in January 2008, and trial
was set for April 2008 . In February 2008, Clutter again moved. the court to
reconsider its refusal to dismiss the indictment for failure to try him within 180
days as required by the IAD, arguing that he had substantially complied with
its provisions. The motion was overruled and this case proceeded to trial in
June 2009, whereupon Clutter was convicted .
The foregoing chronology and description of Clutter's purported efforts to
invoke the time provisions of the IAD reveal that Clutter obstinately refused to
initiate the process by providing his notice and request to the federal officials
having custody of him and, consequently, he never obtained the required
certificate from the prison warden . Prior to August 2002, Clutter made no attempt to provide the information explicitly required by KRS 440 .450(1) . And,
in his August 2002 motion, Clutter merely noted the commencement date of
his federal incarceration along with his estimated good-time credit and
projected release date. No certificate from the warden or any other verifying
documents accompanied the motion. Nevertheless, Clutter asserts that his
"substantial compliance" was sufficient to invoke the IAD's provisions. We
disagree .
The IAD is a congressionally sanctioned interstate compact and is,
therefore, subject to federal construction . Norton v. Parke, 892 F.2d 476 (6111
Cir . 1989) . Federal courts have emphasized the necessity of strict compliance
with the procedures of Article III of the IAD, especially the requirement of
certification by prison officials in the sending state . See Ellis v. Commonwealth,
828 S .W .2d 360, 361 (Ky. 1992) . (discussing federal cases) . Although there is
a limited exception to the requirement of strict compliance, it applies only when
strict compliance is thwarted by a public official despite a prisoner's having
done everything possible to achieve strict compliance . For example, in Schofs
v. Warden, FCI, Lexington, 509 F. Supp. 78 (E.D . Ky. 1981), substantial
compliance with the IAD was deemed sufficient to invoke its provisions . In that
instance, however, "(t)he petitioner requested, and was denied, through no
fault of his own, the forms necessary to initiate a request for final disposition
pursuant to the IAD ." Id. at 82 . Schofs otherwise complied with the IAD .
Likewise, in Pittman v. State, 301 A.2d 509 (Del . 1973), strict compliance with
the IAD was prevented by the prison official who refused to execute the proper forms upon the prisoner's request and, instead, erroneously told the prisoner
that the requesting state was not a party to the IAD. However, strict
compliance may be excused only where the prisoner has diligently endeavored
to comply, but was prevented from doing so by the failure or inaction of a
public official . Id.
The exception is not applicable here because Clutter did not do
everything possible to achieve strict compliance ; rather, when repeatedly
informed of the need to proceed through the federal prison officials who had
custody of him, he simply refused to do so . The failure to strictly comply wa
solely Clutter's fault . Accordingly, the cases he relies on for substantial
compliance are unpersuasive. This case is more akin to Rhodes v.
Commonwealth, 622 S .W .2d 677 (Ky . 1981), which distinguished Pittman as
follows :
It is one thing for an official having custody to refuse to process a request and thus leave the prisoner to communicate as best he can with the State which has lodged a detainer for him . That was Pittman . It is quite a different matter, however, when a prisoner simply ignores the official having custody of him and attempts to communicate directly with the requesting State . That is this case and the difference from Pittman is significant and determinative.
Rhodes, 622 S .W.2d at 678 (quoting Beebe v. State, 346 A .2d 169, 171 (Del . 1975) .
Where there is no obstruction to strict compliance due to a public
official's conduct, failure to strictly comply and, more particularly, failure to
notify the proper prison authority so that the appropriate certification may be prepared is insufficient to invoke the provisions of the IAD . In Norton v. Parke,
supra, a Kentucky prisoner sought to have an Ohio indictment dismissed for
failure to bring him to trial within 1-80 days of his demand. However, the
demand was made directly to the Ohio court in a speedy trial motion. The
prisoner's failure to channel his request through the Kentucky warden and
consequent absence of the warden's accompanying certificate was deemed fatal
to the prisoner's IAD claim.
In United States v. Espinoza, 841 F.2d 326 (9th Cir. 1988) a prisoner's
failure to lodge his request through prison officials having custody of him
precluded him from invoking the IAD's time provisions . Similarly, in United
States v. Henson, 945 F . 2d 430 (1 st Cir.1991) a prisoner's failure to provide
proper certification was detrimental to his attempted compliance with the IAD .
And, again, in United States v. Moline, 833 F.2d 190 (9th Cir .1987), a prisoner's
failure to give notice to the official having custody of him was deemed a
complete failure to comply with an essential element of the act .
Moreover, Clutter's attempt to shift the burden to the prosecuting state
under Article IV of the IAD is simply unavailing . Article IV does provide a
mechanism for the prosecuting state to secure custody of the prisoner and if
this process is utilized, the prosecuting state must try the prisoner within 120
days of his arrival in the receiving state . However, whether to initiate this
process is within the discretion of the prosecuting state . A prisoner's attempt
to invoke the IAD's provisions under Article III does not, then, shift the burden
to the prosecuting state . Under Article III, it is the prisoner's notification to the
10 official where he is being held that shifts the burden to that official to prepare
and send the necessary forms. Rhodes, 622 S .W.2d at 677 . Clutter simply
failed to comply with Article III despite repeated advice as to how to comply.
Accordingly, there was no error in the trial court's refusal to dismiss the
indictment against Clutter for failure to comply with the IAD .
II. The Trial Court Did Not Abuse Its Discretion By Refusing to Prohibit the Introduction of an Incriminating Statement Made by Clutter.
The evening before trial, the Commonwealth provided Clutter's counsel
with supplemental discovery, consisting of an oral statement that Clutter had
made to Johnny Daugherty in 1990, admitting that he had had sex with the
victim. The Commonwealth recognized that the disclosure of the statement
was required under RCr 7 .24, which requires disclosure of the substance of
any oral incriminating statement made by a defendant. The Commonwealth
admitted that disclosure here was untimely and, as a result, stated that it
would not introduce the statement in its case-in-chief. Prior to trial, Clutter
moved the court to prohibit introduction of the statement in rebuttal as well .
The trial court denied the motion and ruled that the statement could be
introduced if needed for rebuttal provided that a proper foundation was laid.
Although the statement was never actually introduced at trial, Clutter asserts
that his right to testify in his own defense was compromised by the potential
for the admission of the incriminating statement and reversal is thus
warranted .
The trial court has broad discretion to determine the admissibility of
rebuttal evidence and its decision in this regard is reviewed for an abuse of discretion . Chestnut v. Commonwealth, 250 S .W .3d 288 (Ky. 2008) . This Court
has on previous occasions found such an abuse of discretion to have occurred
where the evidence or statements were withheld from the defense altogether .
See Chestnut, supra, 250 S.W .3d at 299 (finding an abuse of discretion in the
admission of withheld evidence that "essentially gutted Appellant's defense") ;
Grant v. Commonwealth, 244 S .W.3d 39 (Ky . 2008) (finding an abuse of
discretion where the withheld statements prevented, defense counsel from
making an informed decision as to appropriate defense strategy) ; Akers v.
Commonwealth, 172 S.W .3d 414 (Ky. 2005) (same) . However, where a
disclosure was made at some point prior to trial, albeit untimely, the inquiry is
whether the defendant was prejudiced by the tardiness in disclosure of the
statement, not by the statement itself. Beaty v. Commonwealth, 125 S .W .3d
196 (Ky. 2003) . Accordingly, Clutter's assertion that he was prejudiced
because the potential for introduction of the belatedly revealed statement
precluded him from testifying in his defense is unavailing . Clutter fails to focus
on any prejudice caused by the untimeliness of the disclosure . In fact, Clutter's
trial counsel acknowledged that a continuance was the proper remedy in
instances of late disclosures . However, Clutter chose not to seek this remedy
because he did not want to further delay the trial. Clutter argues, in part, that
he did not want to risk preservation of his IAD claim by seeking a continuance .
As the Commonwealth points out, though, if there had been any merit to
Clutter's IAD claim, it was uncontroverted that Clutter was not tried within 180
days. Thus, there was no legitimate concern that requesting a continuance
12 based upon the late disclosure of the incriminating statement would affect the
preservation of Clutter's IAD claim. Accordingly, Clutter has not established
any entitlement to relief based on the Commonwealth's late disclosure of the
incriminating statement Clutter had made to Johnny Daugherty.
CONCLUSION
The trial court properly determined that Clutter's failure to comply with
the provisions of the IAD precluded him from obtaining relief based on the time
provisions in KRS 440.450 . Further, the trial court did not abuse its discretion
in refusing to prohibit the admission of Clutter's incriminating statement on
rebuttal, if a proper foundation was laid, despite the Commonwealth's untimely
disclosure of that statement. Accordingly, Clutter's convictions and twenty-
year sentence are affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Steven Jared Buck Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway Attorney General of Kentuc
Jason Bradley Moore Assistant Attorney General Office of Criminal Appeals Office of the Attorney General 1024 Capital Center Drive Frankfort, KY 40601-8204