Robert C. Napier v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: April 1, 2021
• Docket: 2019 CA 001062
• Status: Unknown

Opinion

RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1062-MR

ROBERT C. NAPIER APPELLANT

APPEAL FROM ROCKCASTLE CIRCUIT COURT v. HONORABLE JEFFREY T. BURDETTE, JUDGE ACTION NO. 18-CR-00040

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.

ACREE, JUDGE: A jury found Robert C. Napier guilty of four counts of first-

degree sexual abuse (victim under age 12) and one count of first-degree sexual

abuse (victim under age 16). Prior to sentencing, Napier entered into a plea

agreement with the Commonwealth, agreeing to a ten-year sentence of

imprisonment in exchange for a waiver of jury sentencing and right of appeal.

Napier now appeals from the trial court’s judgment of conviction and from its denial of his motion for a new trial. We conclude Napier waived his right to a

direct appeal and affirm the denial of his motion for a new trial.

PROCEDURE

On February 26, 2019, a Rockcastle Circuit Court jury found Napier

guilty of four counts of first-degree sexual abuse (victim under age 12) and one

count of first-degree sexual abuse (victim under age 16). After the guilty verdict

was read into the record, the trial court went into recess.

Upon returning to the record, the Commonwealth and Napier

informed the trial court they had entered into a verbal plea agreement,1 wherein

Napier waived jury sentencing and his right to appeal in exchange for a ten-year

prison sentence. The following exchange took place:

Commonwealth: I essentially made an offer to bypass jury sentencing, ten years to serve, Mr. Napier waives any future appeals that he may have.

Court: So, you’re asking me to accept the waiver of jury sentencing from the defense, have the defendant waive his rights of appeal, set the matter for sentencing after a [presentence investigation] is completed?

Defense Counsel: Yes

Commonwealth: Yes. We may want to get it on the record today, though, that he understands he’s waiving his appeal and that he understands I’m recommending ten years to serve.

1 At no point did the parties memorialize the agreement into writing.

-2- ....

Defense Counsel: On the record, the Defendant will waive jury sentencing and accept the offer made by the Commonwealth. [Napier] needs to waive his right to appeal.

(Video Record (V.R.) 2/26/19; 7:23:19-7:24:50.)

To ensure that Napier knowingly, intelligently, and voluntarily

entered into the agreement, the trial court conducted the following plea colloquy:

Court: Mr. Napier, if you’ll stand up. Raise your right hand for me. Do you swear and affirm to tell the truth, the whole truth, and nothing but the truth so help you God?

Napier: Yes, sir, I do.

Court: State your name for the record again.

Napier: Robert Napier.

Court: Your date of birth.

Napier: 6/04/78.

Court: And the last four digits of your social security number.

Napier: [omitted.]

Court: Are you thinking clearly now?

Napier: Yes, sir.

Court: Are you under the influence of any drugs or alcohol?

Napier: No, sir, I’m not.

-3- Court: Has anybody threatened you to do anything against your will (inaudible)?

Napier: No, sir, they haven’t.

Court: Do you have any mental illness that might keep you from understanding what I’m saying to you?

Napier: No, sir.

Court: Do you understand that you are now waiving your right to have a jury sentence you to crimes for which you have been convicted and that you’re waiving your rights to appeal the process?

Court: The matter will be set for formal sentencing.

....

(V.R. 2/26/19; 7:24:45-7:25:30.)

On March 15, 2019, the trial court entered a “Trial Verdict and

Judgment,” wherein it noted:

[Napier] entered into an agreement in which the Commonwealth would agree to a sentence of ten (10) years imprisonment for each of the four (4) counts of Sexual Abuse, First Degree, and five (5) years imprisonment on one (1) count of Sexual Abuse, First Degree, victim under 16 years of age, with the sentences imposed to be calculated concurrently with each other for a total of ten (10) years imprisonment. Furthermore, [Napier] stated on the record that he was in agreement with this recommendation and would therefore waive his right to appeal.

-4- (Record (R.) at 76-77.) Entry of a final judgment imposing sentence was

postponed pending a presentence investigation and sex offender evaluation.

On March 5, 2019, prior to final sentencing, Napier filed a motion for

a new trial pursuant to RCr2 10.02(1). On March 26, 2019, Napier filed a sworn

affidavit, signed by the foreman of the jury, in support of his motion. The affidavit

alleged, in part, “[d]uring deliberations two female jurors revealed they had

personally been sexually abused–one by an uncle, although this fact was not

revealed during voir dire[.]” (R. 83-86.) These two female jurors were never

identified. Nevertheless, Napier’s argument, in effect, is that he was denied a fair

and impartial jury. The motion was denied without an evidentiary hearing.

The trial court followed the Commonwealth’s recommendation and

sentenced Napier to ten years in prison. This appeal followed.

ANALYSIS

Napier raises two arguments on appeal: (1) he was entitled to a

new trial based on newly discovered evidence that two jurors failed to respond

honestly to voir dire questions; and (2) the trial court erred by admitting prior

consistent statements of J.M., one of the minor victims in this case. However,

before reaching either issue, this Court must necessarily determine whether he

waived his right to appeal.

2 Kentucky Rules of Criminal Procedure.

-5- “To be valid, a guilty plea[3] must be entered ‘intelligently and

voluntarily.’” Hammond v. Commonwealth, 569 S.W.3d 404, 408 (Ky. 2019)

(citation omitted). “The validity of a guilty plea must be determined not from

specific key words uttered at the time the plea was taken, but from considering the

totality of circumstances surrounding the plea.” Centers v. Commonwealth, 799

S.W.2d 51, 54 (Ky. App. 1990). Solemn declarations in open court, however,

“carry a strong presumption of verity.” Id. (citing Blackledge v. Allison, 431 U.S.

63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). We review a trial court’s acceptance

of a guilty plea as knowing and voluntary for clear error. Commonwealth v.

Patton, 539 S.W.3d 651, 653 (Ky. 2018).

Napier asserts the waiver of his right to appeal was involuntary and

unknowing, because the plea colloquy conducted by the trial court lacked certain

elements required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.

2d 274 (1969). Specifically, he contends the colloquy did not inform him that he

had a state constitutional right to appeal, did not inquire whether he was satisfied

with the advice of counsel, did not lay out his choices about his right to appeal, and

did not explain that a waiver of his right to “appeal the process” not only included

3 We note that this is not a typical “guilty plea” as it was entered after Napier was convicted by a jury. However, the same standard applies. See Commonwealth v. Patton, 539 S.W.3d 651 (Ky. 2018); Johnson v. Commonwealth, 120 S.W.3d 704 (Ky. 2003); Geary v. Commonwealth, 96 S.W.3d 1 (Ky. 2001).

-6- a waiver of his right to appeal his sentence, but also any error that may have

occurred during the guilt phase of trial.

Although the colloquy conducted by the trial court was relatively

short, “a knowing, voluntary and intelligent waiver does not necessarily include a

requirement that the defendant be informed of every possible consequence and

aspect of the guilty plea.” Turner v. Commonwealth, 647 S.W.2d 500, 500-01 (Ky.

App. 1982). “A guilty plea that is brought about by a person’s own free will is not

less valid because he did not know all possible consequences of the plea and all

possible alternative courses of action.” Id. at 501. Having reviewed the plea

colloquy, and considering the totality of the circumstances, it is clear that Napier’s

plea was made knowingly, intelligently, and voluntarily.

Prior to the plea colloquy, the Commonwealth, in the presence of

Napier stated the essence of the plea agreement–Napier would serve a ten-year

prison sentence and would waive “any future appeals that he may have.”

(Emphasis added.) Napier’s counsel, again in his presence, acknowledged this was

the deal and specifically told the trial court that he needed to waive his right to

appeal. Not once did Napier indicate he did not understand what he was waiving,

nor did he offer the least hint he believed he could still appeal some part of his

criminal trial.

-7- The trial court then confirmed, by plea colloquy, that Napier

understood the rights he was waiving. Prompted by questions from the trial court,

Napier acknowledged there was nothing mentally or otherwise hindering his ability

to understand the agreement and that he was not coerced in any way to enter the

plea. At the end of the colloquy, the trial court confirmed that Napier understood

the ultimate consequences of his plea–a waiver of his right to appeal. As noted

above, the trial court asked:

Do you understand that you are now waiving your right to have a jury sentence you to crimes for which you have been convicted and that you’re waiving your rights to appeal the process?

Napier responded, “Yes, sir, I do.”

Importantly, this colloquy occurred after a trial court recess, which

lasted approximately forty-five minutes.4 During this time, the parties negotiated

and reached the agreement. There is no evidence Napier did not have the

opportunity to fully discuss the consequences of the plea agreement with his

counsel. Nor did he indicate he needed more time to contemplate the agreement.

As the seasoned jurist presiding in this case said of the negotiated plea

agreement:

4 The trial court’s order noted that Napier conferred with his counsel for over an hour prior to reaching an agreement. However, the trial court went off the record for a recess at 6:37:00 p.m. and returned on the record at 7:23:03 p.m., at which time the Commonwealth informed the trial court of the plea agreement.

-8- The Defendant was represented by three attorneys, two of [whom] are of the most experienced, well-known, and long-serving defense attorneys in this Commonwealth. Those attorneys bargained on behalf of their client to waive defect by waiving appeals in favor of a definitive, lesser potential sentence.

(R. 91.)

Given the nature of his crime, and the possibility of receiving a

twenty-year sentence, it seems to this Court that Napier voluntarily entered into the

plea agreement for good reason. Moreover, there is nothing in the record to

indicate Napier was confused as to the nature and scope of the rights he was

waiving. Accordingly, the trial court’s conclusion that he knowingly, intelligently,

and voluntarily waived his right to appeal is supported by substantial evidence.

Napier’s valid plea agreement precludes him from raising his

evidentiary concerns, which arose during the guilt phase of trial, on appeal.

However, whether his waiver precludes him from appealing the denial of his

motion for a new trial is a different issue. Although a plea agreement reduces the

scope of appealable issues, it does not waive every constitutional right. See

Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky. 2008). Nor does it waive a

criminal defendant’s rights to seek subsequent relief in the form of a motion for a

new trial, so long as the issues raised could not have been brought on direct

-9- appeal.5 Logically, a plea agreement waiver does not waive an appeal from the

denial of a motion for a new trial that was properly before the trial court.

Here, Napier’s RCr 10.02 motion for a new trial was based, in part, on

newly discovered evidence of juror mendacity, which he contended resulted in a

conviction by a jury that was not impartial. Unlike the evidentiary issues he raises,

which could and should have been considered in his decision to enter into the plea

agreement, he did not have the opportunity to contemplate this alleged and newly

discovered potential juror bias prior to entering the plea. Accordingly, he was not

prevented from raising this issue in his motion for a new trial, and he is not barred

from appealing its denial.

We review the trial court’s denial of Napier’s motion for new trial

under the abuse of discretion standard. Hall v. Commonwealth, 337 S.W.3d 595,

613 (Ky. 2011).

A new trial may be granted based on juror mendacity upon a showing

“that a juror failed to answer honestly a material question on voir dire, and then

further show[ing] that a correct response would have provided a valid basis for a

challenge for cause.” Edmondson v. Commonwealth, 526 S.W.3d 78, 83 (Ky.

2017) (quoting Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003)).

5 This logic has been adopted by this Court. See Bray v. Commonwealth, No. 2014-CA-000128- MR, 2017 WL 2713458, at *1 n.1 (Ky. App. Jun. 23, 2017).

-10- Likewise, a new trial may be granted if it is shown “that the juror’s dishonesty

prevented inquiry into a critical subject that may have exposed a disqualifying bias

or prejudice.” Gullett v. Commonwealth, 514 S.W.3d 518, 525 (Ky. 2017).

Napier’s argument is based on the jury foreman’s affidavit disclosing

the jury’s deliberation discussions. In the affidavit, the foreman said that two

unidentified female jurors said during deliberations that they had been sexually

abused. Napier argues this means the two unidentified women did not answer

honestly during voir dire, thereby tainting the jury. We disagree.

For purposes of our review, we disregard the questionable aspects of

this affidavit because they were adequately addressed by the trial court, and move

on to the substantive question – did this newly discovered evidence justify a new

trial? We conclude, as did the trial court, it did not.

The trial court commenced voir dire by asking preliminary

examination questions of the prospective jurors. Specifically, the trial court asked,

“has anybody themselves been involved in a case similar to this or had a child or

loved one or a spouse or sibling or someone that may have gone through a criminal

case like this?” (V.R. 2/25/19, 9:49:10) (emphasis added). Obviously, neither of

the unidentified jurors referenced in the affidavit came forward, although other

potential jurors did.

-11- After concluding preliminary questioning, the trial court turned voir

dire over to the Commonwealth. The prosecutor followed up on the trial court’s

questioning by asking, “Has anyone had any dealings with sex abuse cases whether

you’re a victim, you’ve been charged, your son, brother, mother has been charged

or your son, brother, mother, sister has been a victim?” (Emphasis added.) Again,

neither of the suspect jurors came forward. Voir dire was then turned over to

defense counsel.

As the trial court stated, although “an experienced defense counsel

neglected to question potential jurors to their status as survivors of sexual abuse, a

question was posed by the [trial c]ourt inquiring of any factor for which the jurors

did not think they could serve impartially, to which no juror expressed hesitancy or

reason they could not be impartial.” (R. 101.) The trial court’s order denying the

new trial said:

Here, all we have is an affidavit from the foreperson based on alleged statements by two unnamed jurors; in total, this amounts to mere unsupported allegations and are not sufficient to require a hearing. Moreover, no juror expressed any reason as to why they could not be impartial when asked by the Court. Further, this Court will not engage in a proverbial “witch hunt” seeking out the two alleged jurors in order to establish their alleged status as survivors of sexual assault. Because there is no showing of actual juror bias or prejudice, the Motion for a New Trial based on these grounds is OVERRULED.

(R. 104.)

-12- We agree with the trial court that Napier’s claim fails under the first

prong of the juror mendacity analysis. Napier presented no proof that any juror

failed to answer honestly to the questions posed during voir dire.

The defendant “bears the primary responsibility to ask the proper

question on voir dire examination and a failure to so inquire will generally

preclude relief.” Moss v. Commonwealth, 949 S.W.2d 579, 581 (Ky. 1997). No

one asked the members of the venire if any of them personally experienced, or was

a survivor of, sex abuse. Napier’s motion, in effect, erroneously presupposes that

someone did. Accordingly, the trial court did not abuse its discretion by denying

Napier’s motion for a new trial based on juror mendacity.

CONCLUSION

The Rockcastle County Circuit Court’s judgment of conviction and

denial of his motion for a new trial are affirmed.

JONES, JUDGE, CONCURS.

THOMPSON, K., JUDGE, DISSENTS WITHOUT WRITING

SEPARATELY.

-13- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Kayla D. Deatherage Daniel Cameron Kathleen K. Schmidt Attorney General of Kentucky Frankfort, Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

-14-