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Mills v. Commonwealth5/19/2005
TO BE PUBLISHED
AFFIRMING IN PART AND REVERSING IN PART
I. INTRODUCTION
On August 30, 1995, Appellant, John Mills, was arrested for the murder of A.L. Phipps. At trial, the jury found Appellant guilty of Murder, First-Degree Burglary, First-Degree Robbery, and sentenced him to death. The primary facts of Appellant's case, upon which we rely here, except where a more specific discussion is necessary, are recounted in Appellant's direct appeal, wherein we affirmed the judgment of the trial court. Appellant began post-conviction proceedings by filing a motion under RCr 11.42. The trial court entered an order scheduling an evidentiary hearing for September 6, 2000. On July 10, 2000, Appellant filed a motion to recuse the trial judge, who had presided over the trial, from hearing the RCr 11.42 motion. Instead of holding an evidentiary hearing on the RCr 11.42 motion on September 6, 2002, the trial court held a hearing on the motion to recuse. On October 2, 2000, the trial court entered an order overruling the motion to recuse. On July 27, 2001, the trial court entered an order overruling the RCr 11.42 motion without a hearing. Next, Appellant filed a motion under CR 59.05 asking the trial court to reconsider its ruling on the RCr 11.42 motion. The trial court overruled this motion in an order dated February 6, 2002. Appellant now appeals to this Court as a matter of right and claims that the trial court erred in refusing to strike the Commonwealth's response to his RCr 11.42 motion, in applying a heightened pleading standard, in not conducting an evidentiary hearing, in finding that a judicial privilege barred the testimony of the trial judge's former law clerk, and in refusing to recuse from ruling on the judicial privilege issue. We affirm the trial court's overruling of the RCr 11.42 motion in part and reverse in part and remand for an evidentiary hearing on several of Appellant's claims.
II. APPELLANT'S CR 59.05 MOTION AND THE TIMELINESS OF HIS APPEAL
Before addressing the Appellant's claims of error, we must address a procedural matter, namely, whether Appellant's notice of appeal of the trial court's ruling on his RCr 11.42 motion was timely filed. The trial court entered its order overruling Appellant's RCr 11.42 motion on July 27, 2001. A copy of the order was mailed to Appellant's attorney, who received the document on July 31, 2001. On August 6, 2001, Appellant's attorney mailed to the trial court a motion pursuant to CR 59.05 to alter, amend, or vacate the order overruling the RCr 11.42 motion. The motion was entered by the clerk on August 13, 2001.
On February 6, 2002, the trial court entered an order overruling Appellant's CR 59.05 motion. The trial court held that Appellant's CR 59.05 motion was untimely because it was entered seventeen days after the order overruling the RCr 11.42 motion and that the motion was inappropriate because CR 59.05 was inapplicable to proceedings under RCr 11.42. Nonetheless, in the interest of judicial economy, the trial court addressed Appellant's motion on the merits and overruled it. Appellant mailed his notice of appeal on March 6, 2002. The circuit clerk's office received the notice on March 7, 2002, and the notice was entered on March 13, 2002.
During the course of litigating the appeal, the Commonwealth moved to have the appeal dismissed as untimely on the grounds that the appeal was not filed within the thirty-day period for filing a notice of appeal prescribed by RCr 12.04(3). The Commonwealth argued that CR 59.05 does not apply to RCr 11.42 proceedings, thus the time for filing an appeal was not suspended by filing the CR 59.05 motion. We initially granted the Commonwealth's m
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