RENDERED: DECEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0072-MR
SCOT GAITHER APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JOSEPH W. CASTLEN, III, JUDGE ACTION NO. 02-CR-00446
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Scot Gaither appeals from an order of the Daviess
Circuit Court summarily denying his motion pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 as untimely and successive. We affirm.
The underlying facts are as follows:
James Parson, Sr., was reported missing on August 30, 2001. The next day Parson’s family received a telephone call claiming Parson was being held for ransom. Since several calls concerning ransom were made to Parson’s home, the Kentucky State Police (KSP) and the [Federal Bureau of Investigation] FBI began surveillance. As a result of the surveillance, [Gaither] was arrested while making a ransom call at a pay telephone.
[Gaither] was indicted for the murder, kidnapping, and robbery of Parson, [Gaither’s] former business partner. [Gaither] testified that on the day of Parson’s disappearance, Parson drove [Gaither] to a rural area and held [Gaither] at gunpoint. According to [Gaither’s] testimony, during a struggle for the weapon, the gun discharged and Parson was shot. [Gaither] left Parson for dead in a roadside ditch, then drove Parson’s van to Evansville, Indiana, where it was abandoned in a shopping mall parking lot. [Gaither] argued he acted in self-defense, and that he was mentally ill at the time.
Gaither v. Commonwealth, No. 2004-SC-0474-MR, 2006 WL 436071, at *1 (Ky.
Feb. 23, 2006) (unpublished). In 2004, following a jury trial, Gaither was
convicted of first-degree manslaughter, kidnapping, theft by unlawful taking of
property valued at less than $300, and tampering with physical evidence. His
sentences included life without the possibility of parole for the kidnapping
conviction and a concurrent twenty years for the manslaughter conviction.
Gaither, who chose to proceed pro se, filed a direct appeal with the
Kentucky Supreme Court, raising fifteen claims of error, most of which were
unpreserved. Id. at *1. This included claims of ineffective assistance of counsel
which the Court declined to address at that time because such claims had not yet
been presented to the trial court. Id. at *4. The Court affirmed on all grounds. Id.
at *6.
-2- In October 2006, Gaither filed a pro se motion pursuant to RCr 11.42
alleging twenty-five incidents of ineffective assistance of counsel. The trial court
denied Gaither relief in two separate orders. One order dismissed seventeen of the
claims of ineffective assistance of counsel without an evidentiary hearing, with the
trial court indicating relief was unavailable because they either should have been
brought on direct appeal or had already been resolved on direct appeal.
Gaither appealed this order dismissing and the Court of Appeals
affirmed in part, reversed in part, and remanded, determining that the trial court
was required to address three of Gaither’s ineffective assistance of counsel claims
on the merits: faulty impeachment of a witness, failure to object to the sentencing
phase instruction regarding aggravating circumstances on the kidnapping charge,
and failure to object to an improper closing argument statement. Gaither v.
Commonwealth, No. 2007-CA-000634-MR, 2008 WL 4822233, *7 (Ky.App. Nov.
7, 2008) (unpublished). The Court of Appeals left it to the trial court’s discretion
as to whether an evidentiary hearing was needed to fully address these issues. Id.
On remand, the trial court held an evidentiary hearing on all three
issues and determined Gaither was entitled to a new sentencing hearing due to
improper kidnapping instructions and the jury’s failure to find an aggravating
factor.
-3- Gaither appealed the denial of his other claims for ineffective
assistance of counsel and additionally argued that the trial court erred in refusing to
allow him to call jurors as witnesses to testify to the prejudice caused by the
Commonwealth’s improper statement and denying his motion to supplement his
RCr 11.42 motion with additional claims. Gaither v. Commonwealth, No. 2010-
CA-002300-MR, 2013 WL 3013579, at *2 (Ky.App. Jun. 14, 2013) (unpublished).
The Court of Appeals affirmed. Id. at *4.
The new sentencing hearing related to the kidnapping conviction was
conducted in 2015, and the trial court imposed the sentence recommended by the
jury: imprisonment for life to be served concurrently with the previously imposed
twenty-year sentence for manslaughter. Gaither appealed, arguing there were four
errors in the new penalty phase trial on the kidnapping conviction. Gaither v.
Commonwealth, 521 S.W.3d 199, 203 (Ky. 2017). The Kentucky Supreme Court
affirmed the sentence. Id. at 209.
Gaither filed the RCr 11.42 motion at issue in this appeal in
September 2018, with the assistance of counsel. Gaither alleged several incidents
of ineffective assistance of counsel, all relating back to his 2004 trial and
conviction. He argued he was denied effective assistance of counsel (1) on direct
appeal; (2) during the guilt phase of his trial when his attorney failed to adequately
investigate the law controlling the case, failed to seek proper instructions or to
-4- limit the instructions in this case, and failed to object to the prosecutor’s arguments
concerning the definition of “restraint” as it related to the offense of kidnapping
(not released alive); (3) during the guilt phase of his trial when counsel failed to
seek an instruction on attempted theft by extortion as a lesser included offense of
kidnapping; (4) when counsel failed to investigate the MapCo video or request
information from the FBI, which would have revealed the presence of the
enhanced video; (5) when counsel failed to investigate or hire an expert to rebut
the testimony of a witness concerning a phone call she allegedly made around the
time of the kidnapping and homicide; and (6) because the cumulative effect of the
errors undermine the confidence in the ultimate verdict. Gaither also alleged he
was denied access to exculpatory evidence when the Commonwealth failed to
disclose the existence of an enhanced surveillance video taken from the MapCo
gas station. The trial court denied the motion as untimely and successive without
holding a hearing.
Gaither raises four arguments on appeal. He contends: (1) his second
motion pursuant to RCr 11.42 was timely and he is entitled to have his claims
reviewed on the merits; (2) he was denied due process and his Sixth Amendment
right to assistance of counsel on direct appeal; (3) he is entitled to an evidentiary
hearing related to the claims in his RCr 11.42 motion; and (4) he is entitled to an
-5- evidentiary hearing related to an enhanced version of a surveillance video obtained
from a gas station on the night of Parson’s disappearance.
We review a trial court’s denial of an RCr 11.42 motion for abuse of
discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). The
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RENDERED: DECEMBER 3, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-0072-MR
SCOT GAITHER APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JOSEPH W. CASTLEN, III, JUDGE ACTION NO. 02-CR-00446
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Scot Gaither appeals from an order of the Daviess
Circuit Court summarily denying his motion pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 as untimely and successive. We affirm.
The underlying facts are as follows:
James Parson, Sr., was reported missing on August 30, 2001. The next day Parson’s family received a telephone call claiming Parson was being held for ransom. Since several calls concerning ransom were made to Parson’s home, the Kentucky State Police (KSP) and the [Federal Bureau of Investigation] FBI began surveillance. As a result of the surveillance, [Gaither] was arrested while making a ransom call at a pay telephone.
[Gaither] was indicted for the murder, kidnapping, and robbery of Parson, [Gaither’s] former business partner. [Gaither] testified that on the day of Parson’s disappearance, Parson drove [Gaither] to a rural area and held [Gaither] at gunpoint. According to [Gaither’s] testimony, during a struggle for the weapon, the gun discharged and Parson was shot. [Gaither] left Parson for dead in a roadside ditch, then drove Parson’s van to Evansville, Indiana, where it was abandoned in a shopping mall parking lot. [Gaither] argued he acted in self-defense, and that he was mentally ill at the time.
Gaither v. Commonwealth, No. 2004-SC-0474-MR, 2006 WL 436071, at *1 (Ky.
Feb. 23, 2006) (unpublished). In 2004, following a jury trial, Gaither was
convicted of first-degree manslaughter, kidnapping, theft by unlawful taking of
property valued at less than $300, and tampering with physical evidence. His
sentences included life without the possibility of parole for the kidnapping
conviction and a concurrent twenty years for the manslaughter conviction.
Gaither, who chose to proceed pro se, filed a direct appeal with the
Kentucky Supreme Court, raising fifteen claims of error, most of which were
unpreserved. Id. at *1. This included claims of ineffective assistance of counsel
which the Court declined to address at that time because such claims had not yet
been presented to the trial court. Id. at *4. The Court affirmed on all grounds. Id.
at *6.
-2- In October 2006, Gaither filed a pro se motion pursuant to RCr 11.42
alleging twenty-five incidents of ineffective assistance of counsel. The trial court
denied Gaither relief in two separate orders. One order dismissed seventeen of the
claims of ineffective assistance of counsel without an evidentiary hearing, with the
trial court indicating relief was unavailable because they either should have been
brought on direct appeal or had already been resolved on direct appeal.
Gaither appealed this order dismissing and the Court of Appeals
affirmed in part, reversed in part, and remanded, determining that the trial court
was required to address three of Gaither’s ineffective assistance of counsel claims
on the merits: faulty impeachment of a witness, failure to object to the sentencing
phase instruction regarding aggravating circumstances on the kidnapping charge,
and failure to object to an improper closing argument statement. Gaither v.
Commonwealth, No. 2007-CA-000634-MR, 2008 WL 4822233, *7 (Ky.App. Nov.
7, 2008) (unpublished). The Court of Appeals left it to the trial court’s discretion
as to whether an evidentiary hearing was needed to fully address these issues. Id.
On remand, the trial court held an evidentiary hearing on all three
issues and determined Gaither was entitled to a new sentencing hearing due to
improper kidnapping instructions and the jury’s failure to find an aggravating
factor.
-3- Gaither appealed the denial of his other claims for ineffective
assistance of counsel and additionally argued that the trial court erred in refusing to
allow him to call jurors as witnesses to testify to the prejudice caused by the
Commonwealth’s improper statement and denying his motion to supplement his
RCr 11.42 motion with additional claims. Gaither v. Commonwealth, No. 2010-
CA-002300-MR, 2013 WL 3013579, at *2 (Ky.App. Jun. 14, 2013) (unpublished).
The Court of Appeals affirmed. Id. at *4.
The new sentencing hearing related to the kidnapping conviction was
conducted in 2015, and the trial court imposed the sentence recommended by the
jury: imprisonment for life to be served concurrently with the previously imposed
twenty-year sentence for manslaughter. Gaither appealed, arguing there were four
errors in the new penalty phase trial on the kidnapping conviction. Gaither v.
Commonwealth, 521 S.W.3d 199, 203 (Ky. 2017). The Kentucky Supreme Court
affirmed the sentence. Id. at 209.
Gaither filed the RCr 11.42 motion at issue in this appeal in
September 2018, with the assistance of counsel. Gaither alleged several incidents
of ineffective assistance of counsel, all relating back to his 2004 trial and
conviction. He argued he was denied effective assistance of counsel (1) on direct
appeal; (2) during the guilt phase of his trial when his attorney failed to adequately
investigate the law controlling the case, failed to seek proper instructions or to
-4- limit the instructions in this case, and failed to object to the prosecutor’s arguments
concerning the definition of “restraint” as it related to the offense of kidnapping
(not released alive); (3) during the guilt phase of his trial when counsel failed to
seek an instruction on attempted theft by extortion as a lesser included offense of
kidnapping; (4) when counsel failed to investigate the MapCo video or request
information from the FBI, which would have revealed the presence of the
enhanced video; (5) when counsel failed to investigate or hire an expert to rebut
the testimony of a witness concerning a phone call she allegedly made around the
time of the kidnapping and homicide; and (6) because the cumulative effect of the
errors undermine the confidence in the ultimate verdict. Gaither also alleged he
was denied access to exculpatory evidence when the Commonwealth failed to
disclose the existence of an enhanced surveillance video taken from the MapCo
gas station. The trial court denied the motion as untimely and successive without
holding a hearing.
Gaither raises four arguments on appeal. He contends: (1) his second
motion pursuant to RCr 11.42 was timely and he is entitled to have his claims
reviewed on the merits; (2) he was denied due process and his Sixth Amendment
right to assistance of counsel on direct appeal; (3) he is entitled to an evidentiary
hearing related to the claims in his RCr 11.42 motion; and (4) he is entitled to an
-5- evidentiary hearing related to an enhanced version of a surveillance video obtained
from a gas station on the night of Parson’s disappearance.
We review a trial court’s denial of an RCr 11.42 motion for abuse of
discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). The
movant has the burden “to establish convincingly that he was deprived of some
substantial right which would justify the extraordinary relief afforded by the post-
conviction proceedings provided in RCr 11.42.” Dorton v. Commonwealth, 433
S.W.2d 117, 118 (Ky. 1968). In reviewing a RCr 11.42 motion, “our review is
confined to whether the motion on its face states grounds that are not conclusively
refuted by the record and which, if true, would invalidate the conviction.” Lewis v.
Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
RCr 11.42(10) provides in relevant part as follows:
Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.
-6- We agree with the trial court that Gaither’s second RCr 11.42 motion
is untimely. The motion was filed in 2018, approximately ten years after Gaither’s
2004 conviction became final in 2008 following his direct appeal. It is untimely by
approximately seven years unless it qualifies for either of the exceptions set out in
RCr 11.42(10)(a) and (b). However, Gaither failed to make any allegations that
any of his claims would qualify for one of these exceptions.
While Gaither’s second RCr 11.42 motion would have been timely,
had it concerned claims of ineffective assistance of counsel regarding the new
penalty phase trial and subsequent sentence regarding his kidnapping charge,
which was finalized by the Kentucky Supreme Court on direct appeal in 2017,
Gaither’s current claims do not relate to that proceeding. Therefore, the trial court
acted correctly in summarily denying Gaither’s second RCr 11.42 motion.
We also agree with the trial court that Gaither’s second RCr 11.42
motion is successive. As explained in Gross v. Commonwealth, 648 S.W.2d 853,
857 (Ky. 1983), after the avenue of pursuing a direct appeal is exhausted, a
defendant must next pursue RCr 11.42 relief “as to any ground of which he is
aware, or should be aware, during the period when this remedy is available to him.
Final disposition of that motion, or waiver of the opportunity to make it, shall
conclude all issues that reasonably could have been presented in that proceeding.”
Therefore, successive RCr 11.42 motions are generally prohibited. See McDaniel
-7- v. Commonwealth, 495 S.W.3d 115, 121 (Ky. 2016); Sanders v. Commonwealth,
339 S.W.3d 427, 438 (Ky. 2011).
Gaither has not identified any reason why he could not have raised his
current grounds for relief in his previous RCr 11.42 motion. Additionally, we
cannot identify any reason why each of Gaither’s current claims could not have
reasonably been included in his first RCr 11.42 motion filed in 2006.
Therefore, his second RCr 11.42 motion is impermissibly successive and was
appropriately denied.
Gaither has thoroughly explored all possible avenues for relief
pursuant to RCr 11.42 and finality is now required. See Crockett v.
Commonwealth, 473 S.W.2d 112, 114 (Ky. 1971).
Accordingly, we affirm the order of the Daviess Circuit Court
summarily denying Gaither’s RCr 11.42 motion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy G. Arnold Daniel Cameron J. Ryan Chailland Attorney General of Kentucky Frankfort, Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
-8-