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# Commonwealth of Kentucky

Court of Appeals

NO. 2021

- CA

- 0436

- MR

KEWAN HACKETT APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 11

- CR

- 000222

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON,

JUDGES.

THOMPSON, K., JUDGE: Kewan Hackett appeals from the summary denial of

his Kentucky Rules of Civil Procedure (CR) 60.02 motion in which he alleges he

received ineffective assistance of counsel. We affirm as Hackett’s claims are

successive and otherwise without merit.

In January 2011, Hackett was indicted for murder, criminal attempted

murder, first

- degree assault, tampering with physical evidence

, and intimidating a- 2

-

participant in the legal process. Trial counsel moved for Hackett’s indictment to

be dismissed; the trial court denied this request

. Ultimately, t he case proceeded to

trial

.

We recount the underlying facts of the crimes and resulting trial

testimony as summarized by the Kentucky Supreme Court in Hackett’s direct

appeal

, Hackett v. Commonwealth

, No. 2012

- SC

- 000773

- MR, 2014 WL 2809876,

at *1

- 2 (Ky. Jun

. 19, 2014) (unpublished) ( Hackett I ) :

On January 8, 2011, victims Dajuan Best and

Kristen Redmon were at Jock ’ s Bar and Grill in

Louisville. Appellant was there also, as was Appellant ’ s

friend and neighbor, Saleem Muhammad. Appellant,

Saleem, and Redmon were regulars at the bar. While

playing pool, Best and Appellant had an exchange of

words sufficiently disagreeable that it attracted the

attention and intervention of the bar ’ s security personnel.

Saleem testified that Appellant later told him that he had

had a “beef” with someone over two kilograms of

cocaine; the Commonwealth theorizes that this “beef”

about cocaine was the heated exchange with Best which

resulted, ultimately, in the shooting of Best. A video

surveillance system on the premises showed that Saleem,

Best, and Redmon engaged in a brief interaction just as

they left together through the front door. Best and

Redmon led the way and Saleem followed. The video

system captured images of Appellant watching as the trio

left, and then immediately moving quickly toward the

back exit. Moments later four or five shotgun blasts were

fired into Best ’ s vehicle, killing Redmon and wounding

Best. Appellant ’ s theory of the case is that there was a

drug deal between Best and Saleem that night, and that

Saleem was the shooter.- 3

- Saleem testified that after leaving the bar he heard

the gunshots and then saw someone “creeping” toward

and getting into the Cadillac that Saleem knew belonged

to Appellant. Saleem testified that the person entering

Appellant ’ s car was carrying an object, which the

Commonwealth theorizes was the shotgun. The Cadillac

then drove away.

Several witnesses at a nearby bin go hall heard the

shots. Immediately after the shooting, Robert Wynn saw

a Cadillac, presumably Appellant ’ s, drive out of the bar

parking lot with its lights off. Brad Gentry looked in the

direction of the shots and saw a man standing near the

rear of Best ’ s vehicle. Gentry saw the man get into the

Cadillac and drive away with its headlights off. Gentry

later identified the vehicle as Appellant ’ s Cadillac. Two

other witnesses who were present at the bingo hall

generally corroborated Wynn and Gentry ’ s testimony.

The Commonwealth ’ s case was further strengthened by

testimony of Saleem and his wife, Maria, concerning

statements Appellant made after the shooting. After the

shooting, Appellant telephoned Saleem and told him,

“[You] ain ’ t seen nothing,” apparently a warning to keep

quiet about what he had seen in the bar parking lot.

Saleem also testified that Appellant later came to the

Muhammads ’ apartment, paced nervously about, looked

out the window, and said, “It wasn ’ t meant for her,” and

then, “no witnesses, no case, no evidence,” in an apparent

reference to the shooting. Saleem testified that Appellant

later asked about getting rid of his Cadillac.

Maria also testified about Appellant ’ s arrival at their

apartment after the shooting and his nervous demeanor.

She testified that Appellant asked her to turn on the local

television news channel that was reporting on the

shooting. Upon hearing a report that Best was in stable

condition, Appellant commented that that was “not a

good thing,” adding “he ain ’ t dead” and “no witnesses,

no evidence, no case.” Maria testified that Appellant

asked her if the bar had security cameras in the back; she- 4

- said he also commented that there was no evidence

concerning his clothing.

At trial, Appellant ’ s defense was a denial that he

committed the crimes and an effort to show that Saleem

was the perpetrator. He aggressively sought to

undermine the credibility of Saleem and Maria.

The jury trial lasted from August 28, 2012, to September 7, 2012.

Trial counsel asked for a directed verdict on the basis of insufficient evidence at

the close of the Commonwealth’s case and at the close of all proof, but these

motions were denied. At the conclusion of the trial, the jury found Hackett guilty

of murder, attempted murder

, and tampering with physical evidence. The jury

fixed Hackett’s punishment at twenty years for the murder conviction, fifteen years

for the criminal attempt murder conviction, and one year for the tampering with

physical evidence conviction, and recommended that the sentences be served

consecutively. Afterwards, trial counsel filed a motion for a judgment of acquittal

or a new trial, which was also denied. The trial court sentenced Hackett in

accordance with the jury’s recommendation to a total of thirty

- six years

.

On his direct appeal, Hackett alleged a variety of errors, but the

Kentucky Supreme Court affirmed the judgment of the circuit court on all issues.

Id. at *12.

A year later, in 2015, Hackett filed a Kentucky Rules of Criminal

Procedure (RCr) 11.42 motion, alleging he received ineffective assistance of- 5

-

counsel in a variety of ways. In 2018, the circuit court summarily denied his

motion, finding that all the allegations of error could be refuted by the record.

In his appeal from the denial of his RCr 11.42 motion, Hackett raised

the following arguments:

1) that his counsel was ineffective because counsel failed

to file a motion to dismiss the indictment because it was

obtained by the presentation of false and misleading

testimony to the grand jury; 2) that trial counsel was

ineffective because counsel failed to object to jury

instructions that allowed for a finding of guilt based on

complicity; and 3) that trial counsel was ineffective

because he did not object to jury instructions that did not

set out separate jury findings that the appellant acted by

himself or in complicity with others.

Hackett v. Commonwealth

, No. 2018

- CA

- 000730

- MR, 2019 WL 5293672, at *1

(Ky. App. Oct. 18, 2019) (unpublished) ( Hackett II )

. In 2019, t he Court of

Appeals affirmed the order denying Hackett’s motion for postconviction relief on

all grounds. Id. at *4.

Hackett then proceeded to fi le motion which is the subject of this

instant appeal, seeking to vacate the judgment under CR 60.02(e) and (f ) based on

ineffective assistance of counsel where: (1) counsel failed to suppress his

warrantless arrest without probable cause

, rendering evidence subsequently

obtained fruit of the poisonous tree; (2) counsel failed to move the court to dismiss

the indictment where he should not have been charged with murder based on two

different states of mind rather than given specific notice of which state of mind he- 6

-

was required to defend against ; (3) counsel failed to object to combination jury

instructions, denying him of a unanimous verdict on his state of mind; and (4)

counsel failed to object to an indictment charging intentional and wanton murder

for one murder, and attempted murder and assault f or shooting one victim,

resulting in double jeopardy violations. 1

The circuit court summarily denied Hackett’s motion on the basis that

he should have raised these issues in his previous RCr 11.42 motion

. The circuit

court explained that “[CR] 60.02 does not provide an additional opportunity for

Movant to raise issues that could ha ve been raised at an earlier proceeding .” The

circuit court recounted that Hackett had previously filed a motion pursuant to RCr

11.42 which had been denied and opined: “All of the grounds raised in the current

motion could have been raised in the previous post

- conviction motion. The current

motion is simply an attempt to relitigate his ineffective assistance claims.” The

circuit court noted “[b]ecause his motion is procedurally improper, there is no need

for an evidentiary hearing [.] ”

We agree with the circuit court that Hackett’s motion is successive

and it is inappropriate for him to attempt to bring another RCr 11.42 motion in the

1 We give Hackett the benefit of the doubt that the arguments he raised on appeal are the same

arguments he raised below. Hackett’s motion is missing from the record

, and it was his duty to

make sure that the record was complete.- 7

-

guise of a CR 60.02 motion. Furthermore, the issues that he raises closely overlap

with those that he raised earlier and are also without merit.

CR 60.02 provides in relevant part :

On motion a court may, upon such terms as are just,

relieve a party or his legal representative from its final

judgment, order, or proceeding upon the following

grounds:

. . . (e) the judgment is void, or has been

satisfied, released, or discharged, or a prior judgment

upon which it is based has been reversed or otherwise

vacated, or it is no longer equitable that the judgment

should have prospective application; or (f) any other

reason of an extraordinary nature justifying relief.

“ The standard of review of an appeal involving a CR 60

. 02 motion is

whether the trial court abused its discretion. A movant is not entitled to a hearing

on a CR 60

. 02 motion unless he affirmatively alleges facts which, if true, justify

vacating the judgment and further alleges special circumstances that justify CR

60

. 02 relief. ” White v. Commonwealth

, 32 S.W.3d 83, 86 (Ky. App. 2000)

(internal quotation marks , citations, and brackets omitted).

“The rules related to direct appeals, RCr 11

. 42

, and [ CR ] 60

. 02 collectively create a structure that

‘provides for wide

- ranging opportunities for a defendant

to challenge in all respects the legality and fairness of his

conviction and sentence.’” Hollon v. Commonwealth

, 334 S.W.3d 431, 437 (Ky. 2010) (quoting Foley v.

Commonwealth

, 306 S.W.3d 28, 31 (Ky. 2010)). This

configuration “is not haphazard and overlapping, but is

organized and complete.” Gross v. Commonwealth

, 648

S.W.2d 853, 856 (Ky. 1983). At each stage the

defendant must raise “all issues then amenable to review,

and generally issues that either were or could have been- 8

- raised at one stage will not be entertained at any later

stage.” Hollon

, 334 S.W.3d at 437.

Owens v. Commonwealth

, 512 S.W.3d 1, 13

- 14 (Ky. App. 2017)

.

As further explained in McQueen v. Commonwealth

, 948 S.W.2d 415,

416 (Ky. 1997) :

A defendant who is in custody under sentence or on

probation, parole or conditional discharge, is required to

avail himself of RCr 11.42 as to any ground of which he

is aware, or should be aware, during the period when the

remedy is available to him. Civil Rule 60.02 is not

intended merely as an additional opportunity to relitigate

the same issues which could “reasonably have been

presented” by direct appeal or RCr 11.42 proceedings.

RCr 11.42(3); Gross [, 648 S.W.2d ] at 856. The obvious

purpose of this principle is to prevent the relitigation of

issues which either were or could have been litigated in a

similar proceeding. As stated in Gross

, CR 60.02 was

enacted as a substitute for the common law writ of coram

nobis.

The purpose of such a writ was to bring before the

court that pronounced judgment errors in matter of

fact which (1) had not been put into issue or passed

on, (2) were unknown and could not have been

known to the party by the exercise of reasonable

diligence and in time to have been otherwise

presented to the court, or (3) which the party was

prevented from so presenting by duress, fear, or

other sufficient cause. Black ’ s Law Dictionary,

Fifth Edition

, 487, 144.

Id. at 856. In summary, CR 60.02 is not a separate

avenue of appeal to be pursued in addition to other

remedies, but is available only to raise issues which

cannot be raised in other proceedings.- 9

-

When claims raised in a CR 60.02 motion “ are of the type ordinarily raised in an

RCr 11.42 petition [,]” such claims are “ in practical effect

. . . an impermissible

successive RCr 11.42 motion. ” Sanders v. Commonwealth

, 339 S.W.3d 427, 438

(Ky. 2011)

.

Hackett has provided absolutely no justification for why his current

ineffective assistance of counsel claims could not have been raised in his prior RCr

11.42 motion. T hese claims are thereby precluded as successive

, as CR 60.02 is

not a proper mechanism for addressing ineffective assistance of counsel claims

which should have been raised and addressed earlier.

Additionally, his arguments do not fit within the rubric of CR 60.02(e)

or (f). As to CR 60.02(e), Hackett seems to be misinterpreting what he believes to

be an erroneous judgment (due to ineffective assistance of counsel) as a void

judgment. However, these are not the same. A judgment is void if there is a lack

of jurisdiction over the defendant or the subje ct matter. See Commonwealth v.

Marcum

, 873 S.W.2d 207, 211 (Ky. 1994) ; Thomas v. Morrow

, 361 S.W.2d 105,

106 (Ky. 1962) ; Hudson v. Hightower

, 307 Ky. 295, 298, 210 S.W.2d 933, 934

(1948)

.

CR 60

. 02 (f) also does not provide an appropriate basis for relief as it

“may be invoked only under the most unusual circumstances[.]” Howard v.

Commonwealth

, 364 S.W.2d 809, 810 ( Ky. 1963)

. “ To justify relief [pursuant to- 10

-

CR 60.02(f)]

, the movant must specifically present facts which render the ‘ original

trial tantamount to none at all. ’ ” Foley v. Commonwealt h

, 425 S.W.3d 880, 885

(Ky. 2014) (quoting Brown v. Commonwealth

, 932 S.W.2d 359, 361 (Ky. 1996) )

.

In contrast, claims which “ are of the usual procedural, evidentiary, and ineffective

assistance of counsel variety

, . . . do not implicate the extraordinary sort of claim

contemplated under CR 60.02(f). ” Sanders

, 339 S.W.3d at 437 (emphasis added)

.

Finally, Hackett’s claims lack all merit. Hackett’s first argument is

that trial counsel was ineffective for failing to suppress the fruits of his warrantless

arrest on the basis of lack of probable cause

.

“ Probable cause exists when the facts and circumstances within the

arresting officers ’ knowledge or of which they have reasonably trustworthy

information are sufficient in themselves to warrant a man of reasonable caution to

believe that an offense has been committed or is being committed. ” Shull v.

Commonwealth

, 475 S.W.2d 469, 471 (Ky. 1971)

. We are confident that there was

ample probable cause for Hackett’s arrest based on the facts revealed in the

investigation as detailed by the Supreme Court in Hackett I

. T herefore

, any

evidence that was discovered pursuant to his arrest is not problematic.

Additionally, evidence was properly found pursuant to search warrants or due to

Hackett’s own voluntary statements, rather than as a result of his arrest.- 11

- Hackett’s next argument is that c ounsel was ineffective for fail ing to

move the court to dismiss the indictment where he should not have been charged

with murder based on two different states of mind rather than given specific notice

of which state of mind he was required to defend against

. Again, we disagree.

As explained in Hackett II

, Hackett already argued in his appeal of the

denial of his RCr 11.42 motion “ that his counsel was ineffective because counsel

failed to file a motion to dismiss the indictment because it was obtained by the

presentation of false and misleading testimony to the grand jury [.]” Hackett II

,

2019 WL 5293672, at *1. The Court of Appeals addressed this argument on the

merits and denied it on the basis that Hackett could not show prejudice where the

indictment would have still been issued based upon other testimony the grand jury

heard. Id. at *2

- 3. By doing so, it generally ruled that the indictment was proper.

Hackett’s argument that the indictment is flawed for giving alternative

states of mind necessary for the offense is incorrect

, as the indictment properly

gave notice that the Commonwealth would seek to convict him under either state

of mind available for murder under Kentucky Revised Statutes (KRS) 507.020

.

While Hackett may have preferred only having to defend against one state of mind,

the indictment was not improper for listing both states of mind which were

supported by the evidence.- 12

- Hackett’s next argument is that his counsel was ineffective for failing

to object to combination jury instructions, 2 denying him a unanimous verdict on his

state of mind

. This argument is also wholly without merit.

W e agree with Hackett’s basic premise that it can be probl ematic for

combination jury instructions to be given which allow for conviction for two

different states of mind when there is only evidence of one state of mind

. S ee

, e.g.

,

Hayes v. Commonwealth

, 625 S.W.2d 583, 584

- 85 (Ky. 1981) (reversing for

unanimity error where “[i]t would be clearly unreasonable for the jury to believe

that appellant’s conduct was other than intentional”)

.

However, while Hackett argues he could have only sought to kill

Redmon wantonly, the issue of whether there was sufficient evidence to convict

him under either state of mind was addressed by our Court in its consideration of

the similar arguments Hackett raised in his RCr 11.42 appeal regarding trial

counsel’s failure to object to the combination jury instructions

. Our Court

2 The indictment contained combination charges which were identical save for the exact crime

and victim named regarding murder, criminal attempted murder and first

- degree assault. As an

example, count one alleged that Hackett, “acting alone or in complicity with others, committed

t he offense of Murder by intentionally or under circumstances manifesting extreme indifference

to human life wantonly caused the death of Kristen Redmon.” The jury instructions tracked the

language of the indictment. As an example, instruction one for mur der provided the alternatives

that Hackett was “acting alone or in complicity with another or others” in killing Redmond and

in doing so caused her death “intentionally” or “was wantonly engaging in conduct which

created a grave risk of death to another an d thereby caused the death of Kristen Redmond under

circumstances manifesting an extreme indifference to human life.” In these instructions, the jury

was not requir ed to select an option as to how such murder was committed.- 13

-

specifically observed that th e circumstantial evidence and lack of eyewitness

testimony regarding the shooting itself, resulted in the jury being allowed to

consider multiple theories about how the shooting occurred. Hackett II

, 2019 WL

5293672, at *3

. Our Court also thoroughly considered Hackett’s prior argument

broadly as the Court was uncertain of his exact argument, and in doing so

address ed the argument he now raises, and determined it was without merit:

Lastly, the appellant contends that counsel was

ineffective for failing to object to the jury instructions

because the jury instructions did not have separate

verdict forms for the jury to find specifically why they

found him guilty for the crimes of murder and attempted

murder. It is unclear exactly which issue the appellant

claims was error. His appeal section heading for this

argument states that he objects to a lack of a finding

between complicity and him being the actor. His

argument discusses that issue and the issue of intentional

versus wanton acts. This argument is also intertwined

with the issue discussed previously. We will address

both as they are the same legal issue.

Trial counsel did attempt to have the court instruct

solely on intentional murder and offered instructions on

lesser offenses on behalf of the defendant. Mr. Hackett

argues that a general verdict based on a combination

murder instruction violates his right to a unanimous

verdict. The Supreme Court of Kentucky has held that if

the evidence supports both theories, a combination jury

instruction does not violate the unanimous verdict

requirement. Benjamin v. Commonwealth

, 266 S.W.3d

775 (Ky. 2008). As stated before, there was no direct

eyewitness testimony that the appellant committed the

actual act of the shooting. There was circumstantial

evidence that the appellant either committed the crime

himself or could have simply been responsible for the- 14

- action itself. There was no direct evidence as to the

appellant ’ s state of mind. Based on the facts presented,

the jury could have believed he acted intentionally or

wantonly. It could have believed he intended the result

or he was simply acting with an extreme indifference to

human life.

The appellant ’ s concern about the possibility of a

lack of unanimous verdict is one that the Supreme Court

in Benjamin shared. Benjamin opines that separate

verdict forms would be better. However, Benjamin

specifically allowed this type of combined jury

instructions. Id. at 783

- 85. Four years later, in Malone v.

Commonwealth

, 364 S.W.3d 121, 130

- 31 (Ky. 2012), the

Supreme Court noting Benjamin again refused to require

separate jury instructions. It cannot be said that trial

counsel was ineffective by failing to object to this type of

combined jury instructions when the Supreme Court of

Kentucky has allowed the practice. The court below had

from the record a sufficient basis to deny the motion

without an evidentiary hearing. Trial counsel ’ s failure, if

a failure at all, to object to the combination jury

instructions as the appellant now argues was not an error

which denied him the right to a trial whose result was

reliable. It is also important to note in the discussion of

ineffective assistance of counsel that trial counsel

tendered jury instructions that would have required a

finding that the appellant intentionally acted without any

reference to complicity to convict the appellant. Counsel

placed before the trial court the arguments made by

appellant in this appeal in substance if not in the form

argued.

Id. at *3

- 4

. Therefore, this argument is without merit

, repetitious and precluded by

the law of the case.

Hackett’s final argument raised in his appellate brief is that counsel

was ineffective for fail ing to object to an indictment charging intentional and- 15

-

wanton murder for one murder, and attempted murder and assault f or shooting one

victim, resulting in double jeopardy violations

, is also without merit. In addressing

Hackett’s previous ineffective assistance of counsel argument for failing to file a

motion to dismiss the indictment, our Court in Hackett II specifically determined

that “there were sufficient grounds for the indictment [

. ] ” Id. at *3. Additionally,

as we have discussed supra

, there was evidence to support a conviction for murder

under either state of mind provided for in KRS 507.020

, so the indictment

providing alternatively for both states of mind

, intentionally and wantonly, was

appropriate.

To the extent that Hackett was perhaps trying to argue that these

charges were erroneous as duplicitous, this argument is also without merit. See

United States v. Burton

, 871 F.2d 1566, 1573 (11th Cir. 1989) (explaining

“[w] here a penal statute

. . . prescribes several alternative ways in which the statute

may be violated and each is subject to the same punishment

. . . , the indictment

may charge any or all of the acts conjunctively, in a single count, as constituting

the same offense, and the government may satisfy its burden by proving that the

defendant, by committing any one of the acts alleged, violated the statute ”)

.

Hackett was also not convicted of two counts of murder of the same

person, one each with each state of mind, so he was not subjected to double- 16

-

jeopardy. Therefore, even if the indictment was erroneous (it was not), it could not

have been prejudicial.

It was also appropriate for the indictment to charge both attempted

murder and assault of the same victim in different counts as there was evidence to

support each charge

. While double jeopardy could have resulted if Hackett was

convicted of both attempted murder and assault of the same person

, the jury

instructions specifically precluded such an outcome

. In the jury instructions

regarding criminal attempted murder and first

- degree assault charges, in which

Best was the victim, the jury was instructed to only to consider the count for first

degree assault if it did not find Hackett guilty of the criminal attem pted murder.

As the jury found Hackett guilty of the criminal attempted murder, it never

proceeded to consider the a ssault charge. Therefore, had there even been an error

in the indictment in charging both (there was not), it could not have prejudiced

Hackett

.

Finally, Hackett raises a new argument in his reply brief, that his pro

se motion should not have been dismissed where he never had the active assistance

of counsel for his postconviction actions

, and thus his untimely and successive

arguments should have been considered on the merits

. We disagree.

“ The reply brief is not a device for raising new issues which are

essential to the success of the appeal. ” Milby v. Mears

, 580 S.W.2d 724, 728 (Ky.- 17

-

App. 1979)

. We have no reason to believe that this issue was raised before the

circuit court

, and there is a “ long

- standing prohibition against presenting a new

theory of error at the appellate level [.]” Henderson v. Commonwealth

, 438 S.W.3d

335, 343 (Ky. 2014)

. Therefore, it is inappropriate to consider such an argument at

this juncture.

Additionally, Hackett failed to cite any Kentucky law in support of his

argument that a lack of counsel excuses his failure to follow our procedural rules

and raise all of his RCr 11.42 arguments at the same time

. Finally, as we have

already addressed his claims on the merit and found them to be wholly lacking in

merit, there is no reason to require the circuit court to consider these claims further.

Accordingly, we affirm the Jefferson Circuit Court’s summary denial

of Hackett’s motion for C R 60.02 relief

.

ALL CONCUR

.

BRIEF S FOR APPELLANT:

Kewan Hackett, p ro s e

Beattyville, Kentucky BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General

Frankfort, Kentucky