                                                RENDERED: AUGUST 24, 2017
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                              2016°SC-000693-TG


COMMONWEALTH OF KENTUCKY                                              APPELLANT


                 ON REVIEW FROM COURT OF APPEALS
V.                  CASE NO. 2016-CA-001153-MR
        MEADE CIRCUIT COURT NOS. 92-CR-00042 AND 92-CR-00043


JEFFREY DEWAYNE CLARK                                                APPELLEES
AND GARR KEITH HARDIN



            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                                  AFFIRMING


      This case began with the murder of a young woman in 1992, resulting in

the conviction of Jeffrey Dewayne Clark and Garr Keith Hardin (collectively,

"Appellees"). They were both sentenced to life imprisonment. The issue

currently before this Court is whether the trial court abused its discretion in

subsequently vacating their convictions due to newly discovered evidence and

ordering a new trial.

                                  Background

      Before addressing the merits of that issue, it is necessary to provide a

factual and procedural summary of the case:
On April 1, 1992, at approximately 7:00 p.m., nineteen-year-old
Rhonda Sue Warford went to the Kroger grocery store near her
Louisville home. When she arrived hoine around 7:30 p.m., she
told her mother that as she was leaving the parking lot, a strange
man harassed her and told her he wanted to marry her. Just after
midnight, Rhonda left home and never returned. Family members
surmised that she was going back to the grocery. Three days later,
authorities found her dead body approximately fifty miles away in
a remote area of Meade County. Police officers preserved the
evidence at the scene, including the placement of plastic bags .over
the victim's hands. The medical examiner·concluded that the
victim's death was the result of multiple stab wounds following a
close-range violent struggle, as evidenced by defensive wounds on
the victim's hands. Evidence obtained at the autopsy included
three hairs recovered from the victim's right hand and hairs found
on the victim's red sweatpants. Fingernail scrapings were obtained
as well.

At the time of the murder, Rhonda was dating [Appellee], Garr
Keith Hardin~ [Appellee], Jeffrey Dewayne Clark, was a close friend
of Hardin's-and had socialized with Rhonda's sister, Michelle, at
one time. At the time of the murder, Hardin and Clark were 22 and
21 years old, respectively. Following discovery of the body;
Rhonda's mother told police she believed that Rhonda, Michelle, ·
and both [Appellees], were involved in Satanism. Thereafter, the
authorities zeroed in on [Appellees] as suspects in the murde_r.


The physical·evidence the Commonwealth asserted linked the
[Appellees] with the murder consisted of (1) a single fingerprint
matching the victim's which was lifted from the interior back seat
passenger window of Clark's car; and (2) the one hair described as
similar to Hardin's found on the victim's red sweatpants.


In 2009, [fourteen years after Appellees' conviction,] the Innocence
Project, Inc. and the Department.of Public Advocacy Kentucky
Innocence Project (hereinafter collectively referred to as the

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      Innocence Project) agreed to represent Hardin and Clark,
      respectively, to secure DNA testing of the hairs found on the
      victim, as well as the victim's fingernail scrapings.


      [T]he trial court denied [Appellees1 motion for release of the
      evidence for DNA analysis. [Appellees] appealed this ruling to the
      Court of Appeals and we granted transfer.

      Hardin v. Commonwealth, 396 S.W.3d 909, 910-13 (Ky. 2013).

On appeal, we held that Appellees "are entitled to the testing they seek.
                                                     •
Accordingly, the order of the Meade Circuit Court denying [Appellees'J motion is

reversed and the case remanded for further proceedings consistent with this

opinion." Id. at 915. In so holding, we also noted that Appellees were

convicted "based on highly circumstantial evidence." Id. at 910. Upon remand,

the circuit court held an evidentiary hearing on the claims raised in Appellees'

CR 60.02 motion. After considering oral and written arguments on behalf of all

parties, the court granted that motion and vacated the Appellants' convictions.

The Commonwealth appealed that ruling to the·Court of Appeals. We·granted

transfer.

                              Standard of Review

      "[I]n order for newly discovered evidence to support a motion for new trial

it must be 'of such decisive value or force that it would, with reasonable

certainty, have changed the verdict or that it would probably change the result ·

if a new trial should be granted."' Commonwealth v. Harris, 250 S.W.3d 637,

640-41 (Ky. 2008) (emphasis added and quotation omitted). "We review the

denial of a m.otion for a new trial to determine whether such decision was an


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 ab.use of discretion." Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 (Ky.

;2008) (citations omitted). "The test for abuse of discretion is whether the trial

judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound

legal principles:• Commonwealth v. English, 993 S.W.2d 941, 945 (Ky._ 1999).

This is a difficult standard for the Commonwealth to satisfy.

                                       Analysis

         The Commonw_ealth argues that the alleged newly discovered evidence

does not warrant a new trial. More precisely, the Commonwealth claims that

the evidence presented by the prosecution at trial is more than sufficient to

convict Appellees, and that ApJ?ellees' post--trial confessions also weigh in favor

of precluding a new trial. In contrast, Appellees argue that several key pieces

of evidence must now be reconsidered in light of newly discovered information,

and that a new trial is warranted. For the forgoing reasons, we agree with the

Appellees that the trial judge did not abuse his discretion in ordering a new

trial.

Appellees' Argument

         There are two items of physical evidence that Appellees argue justify a

new trial. First,.modern DNA testing of a hair found on the victim's pants

excluded Appe!lees as the source of the hair. Secondly, an incriminating blood-

stained rag was presented at trial as bearing the. blood of the victim. In fact,

modern DNA testing indicated that Hardin was the likely source of the blood,

just as he proclaimed at trial. A third factor at issue here does not involve



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physical evidence. However, it involves the now highly questionable trial

testimony of a police officer involved in the case.

      A forensic expert testified at trial on behalf of the Commonwealth that

there was a high probability that the hair discovered on the victims' sweatpants

matched.Hardin's hair, thus placing him at the murder scene. There has been

much argument in the parties' briefs concerning the expert's use of the word

"match" when testifying at trial. The Commonwealth argues that their expert

did not mean that the hair "matched~ Hardin's hair with complete certainty.

However, it is clear from the record that the hair evidence was the only thing

placing Appellees
         .
                  at the scene of the. crime. The Commonwealth's expert

presented its forensic evidence to the jury in a manner that was highly

inculpatory by linking the hair to Hardin. During opening and closing

arguments, the prosecutor also attempted to persuade the jury that the hair

came from Hardin. Semantics aside, it was an integral part of the prosecutor's

theory of the case, that the hair was a "match".

      In Bedingfield, we discussed the specific importance of DNA evidence

when reviewing a similar issue:

     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 [of] 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

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      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. (Citations omitted).

      Bedingfield, 260 S.W.3d at 814-15.

Having so held, we vacated Bedingfield's sentence pursuant to CR 60.02 and

granted his motion for a new trial based upon newly discovered evidence.

      Similar to Bedingfield, the forensic evidence presented at Hardin's trial

"enhanced and corroborated by the supposition that the [hair] found belonged

to [Hardin]." Id. As previously noted, the hair was the only physical evidence

presented by the Commonwealth connecting Appellees to the crime scene.

However, modem DNA testing has excluded Hardin as a source of the hair.

Based on this new information, the trial court determined that the

Commonwealth's evidence and argument at trial concerning the hair was

"inaccurate and materially misleading." The trial court also noted that "the FBI

announced in 2013 that testimony that a crime scene hair is a 'match' to a

particular defendant's hair through microscopic hair comparison implies a level

of certainty that exceeds the limits of science." As such, the trial court

concluded that the new DNA evidence "undermines the credibility of the

Commonwealth's case." It stretches the limit of our imagination to say it was

an abuse of discretion.

      The second item of evidence is a blood-stained cloth retrieved by police

·officers from Hardin's home. The Commonwealth's theory of the case was that

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 Hardin and Clark were devil worshipers and that' their motive for the killing

 was Appellees' involvement with Satanism. In his opening and closing

 statement, the prosecutor argued that Hardin "had been sacrificing animals

 and he had gotten to where he wanted to do humans.". To support this claim,

 the Commonwealth argued to the jury that the cloth, along with a broken

 chalice, was used in an animal sacrifice and that the blood on the rag came

 from the sacrificed creature. While there was some testimony supporting the

 contention that Hardin sacrificed animals, the blood-stained cloth and chalice

· were the only physical evidence presented by the Commonwealth in support of

 that theory. However, Hardin testified at trial that he cut his hand after

 dropping the chalice and that the blood on the cloth was his own.

       During the July 2015 evidentiary hearing, a DNA forensic expert testified

that, within a reasonable scientific certainty, the blood on the rag came from

Hardin. This type of DNA testing was unavailable at the time of trial. As such,

the trial court determined that this new evidence "significantly undermines ·.the

Commonwealth's theory at trial of this murder and, in particular, the motive

for the murder."

       Lastly, Appellees argue that the trial testimony of Louisville Metro Police

Detective Mark Handy was highly dubious and cannot be trusted. Handy

testified at trial that Hardin told him that he had killed animals and "got tired

of looking at animals and began to want to do human sacrifices." Hardin

denied these claims. New evidence revealed that Handy testified falsely under

oath concerning an unrelated 1993 murder case, just several weeks before he

                                         7.
testified at Appellees' trial. The defendant in that 1993 case, Edwin_ Chandler,

was wrongfully convicted of murder based at least in part on a confession that

Handy falsely attributed to him. Chandler was exonerated in 2009 due to

newly discovered forensic evidence. Louisville ·Metro Police Sergeant Denver

Butler recommended that Handy be criminally investigated for his conduct iri

. that case.

         While involved in another investigation in 1992, it is undisputed that

Handy erased an eyewitness' initial taped statement and recorded° over it with a

second statement. When testifying under oath in that case, however, Handy

stated that he did not erase or copy over any tapes. The trial court in the

present case concluded that "this new evidence discredits the integrity of the

police investigation [and] undermines the credibility of the Commonwealth."

The Commonwealth's Argument

         The Commonwealth argues that additional physical evidence presented

at trial was sufficient to convkt Appellees. This includes a single·fingerprint

matching the victim's which was lifted from the interior back seat passenger

window of Clark's car. However, we have previously summarized this evidence

as follows: "[a]s tq the fingerprint, it was undisputed that the victim, who was

dating Hardin and was acquainted witjl. Clark, had been in Clark's car on a

number of occasions." Therefore, this evidence is not dispositive of the present

issue.

         The Commonwealth further asserts that the trial court did not give

proper weight to Clifford Capps' testimony. This testimony includes two alleged

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pretrial confessions by Clark to Capps while incarcerated in the Meade County

Detention Center. Shortly after the jury reached a verdict, Clark became aware

of a letter written by Capps to another inmate urging him to corroborate his

testimony. Clark filed a writ of habeas corpus with the United States District

Court claiming prosecutorial misconduct due to the intentional suppression of

· evidence favorable to the accused, which was denied.

       On appeal, the United States Court of Appeals held Clark was unable to

provide clear and convincing evidence that the prosecution knew of the letter

during trial. The court then denied a new trial. based on the letter because it

was "ambiguous as to Clark's guilt or innocence." Clark v. O'Dea, 257 F.3d

498, 506 (6th Cir. 2001), certiorari denied 535 U.S. 938 (2002)). The court

further conceded that the letter could have been used to impeach Capps'

testimony at trial, but that alone is insufficient to conclude with "reasonable

probability that ... the result of the proceeding would have been different."

Clark, 257 F.3d at 505. (quoting United States v. Bagley, 473 U.S. 667, 682

(1985)). Though the letter alone is insufficient to meet the standard for a

retrial, it evolves as a cumulative piece of evidence which combines with the

additional evidence previously cited. It definitely undermines the incriminating

Capps testimony. Upon retriai, nothing is barring Capps from testifying once

again at the discretion of the trial court.

      The Commonwealth also cites Hardin's sworn testimony before the Parole

Board wherein he admitted to his and Clark's involvement in the murder.

Clark, however, initially maintained his innoce.nce during his Parole Board

                                          9
 hearings, but eventually admitted to helping Hardin move the victim's deceased

 body. According to the Commonwealth, Hardin's post-trial admissions obviate

 the need for a new trial. In support, the Commonwealth cites District Attorneys

 v. Osborne, 557 U.S. 52, 59-60 (2009). Osborne is a civil case that has little to

 nothing to do with resolving the present issue. It does not stand for the broad

 proposition that post-trial confessions are automatically admissible upon

 retrial. Mo.reover, Appellees' confessions were elicited more than a decade after

 their convictions.

       Appellees also claim that.questioning by the Parole Board members was

coercive, basically telling them that they would not be paroled unless they

confessed. While we are fully aware that confession, acceptance and remorse

are valuable steps· to rehabilitation, we see little merit in insincere and

contrived admissions, which are induced solely by the yearning to be free.

One example is the previously discussed case of Edwin Chandler. While

imprisoned, Chandler confessed during a Parole Board hearing._ He was

subsequently exonerated by newly discovered DNA evidence. An abundance of

· scholarly literature captures the problematic nature of such confessions. E.g.,

Daniel S. Medwed, The Innocent Prisoner's Dilemma: Consequences of Failing to

Admit Guilt at Parole Hearings, 93 Iowa L. Rev: 491 (2008).

       We cannot say that the trial judge abused his discretion in discounting

·the statements of Hardin to the parole board. We think ajurywould also be

'skeptical of such a "confession;" The thorny evidentiary issues of both the



                                        10
 admission of the statement to the parole bo_ard, as well as the means to

_undermine its credibility by the Appellees, await another day.

       Next, the Commonwealth claims that the effect of ordering a new trial

will present enormous practical difficulties. In support, the Commonwealth

 cites that several witnesses are now dead and that introducing Appellees'

statements to the Parole Board would require explaining to the jury that they

were both previously in prison and seeking parole. As to the latter claim, the

Commonwealth's argument is premised on the assumption that Appellees'

alleged confessions would be admissible in a new trial. That is a decision for

the trial court. The Commonwealth's claim of witness unavailability is also

unpersuasive. In the present context, the purpose of CR 60.02 and our

accompanying case law is to ensure that those individuals convicted of a crime

receive the due process that is afforded them under the law. While the

Commonwealth's practical claims may be valid,- they cannot be controlling or

even pivotal to our decision here.

     Under this rickety standard presented by tlie Commonwealth, this Court
      .                                    .
would be prevented from remanding any case if re-trial would be difficult or

impossible, regardless how egregiously unfair the trial might have been.

      In considering the new evidence at issue in light of our deferential

standard of review, we cannot conclude that the trial court abused its

discretion in vacating Appellees'-convictions and in granting a new trial.

Therefore, both Appellees are entitled to a new trial.



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                                   Conclusion

      For the foregoing reasons, we hereby affirm the order of the Meade

Circuit Court vacating Appellees' convictions and ordering a new trial.

      All sitting. Minton, C.J.; Hughes, Keller; Venters, Wright, JJ.,

concur. VanMeter, J.; dissents by separate opinion.

      VANMETER, J., DISSENTING: I respectfully dissent. In my view,

sufficient probative evidence existed to support the convictions of Clark and

Hardin, such that neither the trial court nor this Court can state that the new

evidence in this case is "of. such decisive force that it would, with reasonable

certainty, have changed the verdict or that it would probably change the

result if a new trial should be granted." Commonwealth v. Harris, 250 S.W.3d

637, 640-41 (Ky. 2008) (emphasis added). As a result, the trial court's decision

to vacate the convictions and grant Clark and Hardin a new trial was an abuse

of discretion. Bedingfield v. Commonwealth, 260 S.W.3d 805,810 (Ky. 2008). I

would vacate the Meade Circuit Court's order vacating Clark's and Hardin's

convictions and ordering a new trial.




                              '




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COUNSEL FOR APPELLANT:

Andy Beshear
Attorney General of Kentucky

Perry Thomas Ryan
Assistant Attorney General


COUNSEL FOR APPELLEE, JEFFREY DEWAYNE CLARK:

· Linda Andrea Smith
  Department of Public Advocacy

Amy Robinson Staples
Assistant Public Advocate


COUNSEL FOR APPELLEE, GARR KEITH HARDIN:

Larry David Simon
The Simon Law Office

Barty C. Scheck ·
Innocence Project

Seema Saifee
Innocence Project




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