RENDERED: AUGUST 24, 2017
TO BE PUBLISHED

- Snpreme Tnuri uf Benfuckg

20 16-`SC-000693-TG
COMMONWEALTH OF KENTUCKY APPELLANT

0N REVIEW F`ROM coURT oF APPEALS
v. cAsE _No. 2016-cA-001 153-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 JUSTI_CE CUNNINGHAM

AFFIRMING

This case began vvith the murder of a young woman in 1992, resulting in
the conviction of Jeffrey Dewayne Clark and Garr Keith Hardin (collec`tively,
“Appellees”). They Were both sentenced to life imprisonment ’l‘he 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.

Bac ound
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 7200 p.m., nineteen-year~old
Rhonda Sue Warford went to the Kroger grocery store near her
Louisville horne. When she arrived home 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
midn'ight, 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
K_eith Hardim [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 t'o Hardin's found on the victim's red sweatpants.

ln 2009, [fourteen years after Appellees_’ conviction,] the Innocence
Project, In`c. 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 [Appellees’] motion for release of the

evidence for DNA analysisl [Appellees] appealed this ruling to the

Court of Appeals and we granted transfer.

Hardin v. commonwealth 396 s`.W.sd 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'] motion is
reversed and the case remanded for further proceedings consistent with this
opinion.” Id. at 915. ln so holding, we also noted that Appellees Were
convicted “based on highly circumstantial evidence.” Id. at 9 10. 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.

Stand_ard of Review

“[l]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. Harrc'_s, 250 S.W.Sd 637,
640-41 (Ky. 2008)' (emphasis added and quotation omitted). “We review the

denial of a motion for a new trial to determine whether such decision was an

abuse of discretion.” Qeciingjie_ld 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 principlesl” Commonwealth v. Engl_ish, 99-3 S.W.2d 941, 945 (Ky._1999).
This is a difficult standard for the Commonwealth to satisfy.

A_n§l_;$_i§

The Commonwealth 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,l and that Appellees’ post-trial confessions also weigh in favor »
of precluding a new trial. ln 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 F`or the forgoing reasons, we agree with the
Appellees that the trial judge did not abuse his discretion in ordering a new
trial. `

Appellees’ Argum,ent

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 Appellees 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

physical evidence. l-Iowever, 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 hppellees at the scene of the'crime. The Commonwealth’s expert
presented its forensic evidence to the jury in a manner that was highly
inculpaton 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 Beding]‘ield, 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] anew
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).

Bedingjield, 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 IHardin].” Id. As previously noted, the hair was the only physical evidence
presented by the Commonwealth connecting Appellee's to the crime scene.
However, modern 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 compaIison 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. ln 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

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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. Louisvill_e 'Metro Police Sergeant Denver
Butler recommended that Handy be criminally investigated for his conduct in
.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 iri that case, however, Handy
stated that he did'not erase or copy over any tapes. The trial court in the
present case concluded'that “tl'iis new evidence discredits the integrity of the
police investigation [and] undermines the credibility of the Commonwealth.”
The Commonwealth’s Argument n n

The Commonwealth argues that additional physical evidence presented
at trial was sufficient to convict 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 to the fingerprint, it was undisputed that the victim, who was
dating Hardin and was acquainted with 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’ te'stimony. 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.
0n 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, 2_5'7 F.3d
498, 506 (6th Cir. 2001), certiorari denied 535 U.S. 938l (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. lt definitely undermines the incriminating "
Capps testimony. Upon retrial, nothing is barring Capps from testifying once
again __at the discretion of the trial court. . il
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 innocence during his Parole Board

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. ln support, the Commonwealth cites District Attorneys
v. Osbome, 557 U.S. 52, 59-60 (2009). Osbome 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 lDarole Hearirigs, 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 a jury Would also be

skeptical of such a “confession.-” The thorny evidentiaiy issues of both the

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admission of the statement to the parole board, as well as the means to
. undermine its credibility by the Appellees, await another day.

Next, the Commonwealth claims that the effect of ordering anew 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. ln 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 stande presented by the 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. V_anMeter,'J.',- dissents by separate opinion.

vANMETER, J., DIssENTING: `1 respectfuuy 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. Ham's, 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. Beding]‘ield v. Commonwealth, 260 S.W.3d 805, 810 (Ky. 2008). l
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 KEITl-l HARDIN :

Larry David Simon
The Simon Law Office

Barry C. Scheck '
Innocence Project

, Seema Saifee

Innocence Project

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