                                             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

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