Whitesburg KY

Court denies 2nd appeal in jail sexual assault case



The Kentucky Court of Appeals has denied a second request for a new trial from a former Letcher County Jail inmate convicted in 2006 for his role in the jailhouse assault and sexual abuse of a fellow inmate.

In denying the latest post-conviction action filed by 30-year-old Frank S. Campbell, a three-judge appeals court panel ruled that Letcher Circuit Judge Sam Wright acted properly when he denied a motion to vacate Campbell’s sentence. Campbell filed the motion in 2010, citing ineffective assistance of counsel.

Campbell and three other defendants — Robert Fields, 46; Michael T. Fugate, 28, and David Lucas, 29 — are serving prison terms handed down by Wright after a Letcher Circuit Court jury found the men guilty of assaulting (second-degree) and sexually abusing (first-degree) inmate Coy McClain in a jail cell the men were sharing in December 2004. Campbell, who was also convicted of being a persistent felony offender, is serving a 30- year sentence, the longest of the four defendants.

The following description of the crime is included in a 13- page opinion released May 25 by the Court of Appeals, the state’s second-highest court:

“On December 2, 2004, Coy McClain was lodged in the Letcher County Jail with Michael Fugate, Robert Fields, David Lucas, and Appellant, Frank Campbell. All five men were assigned to Cell 121, which consisted of a common area surrounded by smaller lockdown cells. While incarcerated, McClain played cards with the other four men. One afternoon, McClain stepped into a lockdown cell to ask about playing cards again when Lucas slammed the door behind him, leaving him locked in a cell with Campbell, Fugate and Lucas.

“According to McClain, once locked in the cell, the three men began hitting him about the head, face, neck, and chest. At one point, Lucas pulled down McClain’s pants and underwear and threatened to (force him to have anal sex). While this was taking place, Campbell was sitting on a bunk with his penis exposed talking about McClain performing oral sex on him (Campbell). Fugate and Lucas then shoved McClain’s head towards Campbell’s penis. McClain testified that the whole time he was screaming and struggling, but Fields was making noise outside the cell and turned the television set to a high volume. McClain also recounted that Fields was looking into the cell through a window, pointing and laughing at McClain.

“McClain testified that, although he did not actually perform oral sex on Campbell, his face came into contact with Campbell’s penis. After more than three hours locked in the cell, McClain was able to leave the cell when (the) control booth opened the door to the cell for an unrelated reason. However, according to McClain, the four men threatened to kill him if he tried to alert anyone about the assault and they prevented McClain from getting the guard’s attention.

“Sometime after the assault, McClain wanted a cigarette and had to go back into the cell to retrieve his cigarettes that he had dropped. Again the door slammed behind him and this time Fields began beating him about the head and neck area. Fields also exposed his penis, rubbed it across McClain’s face and tried to force McClain to perform oral sex on him. After four hours in the cell, McClain was able to exit the cell and inform the guards at the jail what had happened.

“McClain was taken to the hospital where x-rays were taken of his jaw. McClain was told by the hospital that nothing was broken and he was taken back to jail. After he was released from jail later that day, McClain immediately went to the office of the county attorney to report his assault. The next day, McClain went to both a local clinic and the emergency room at Jenkins Community Hospital. A CT scan of his face revealed a fractured mandible. McClain was referred to a specialist at the University of Kentucky. McClain ultimately had to have surgery on his jaw.

“On April 14, 2005, Campbell was indicted on charges of complicity to second-degree assault, criminal attempt to commit firstdegree sodomy, and PFO II. Fields, Fugate and Lucas were likewise indicted for the assault and sexual abuse of McClain. After a jury trial on May 1-8, 2006, wherein all four defendants’ cases were consolidated, Campbell was convicted of complicity to second-degree assault, complicity to first-degree sexual abuse, and PFO II, for which he was sentenced to a total of 30 years.”

In his 2010 motion asking that Wright vacate his conviction and sentence pursuant to Kentucky Rules of Criminal Procedure 11.42, Campbell charged that his public defender attorney did not do his job properly by failing “to conduct any pretrial investigation, to prepare a meaningful defense, and to interview several (prosecution) and defense witnesses.”

Campbell claimed in his motion that he only met with his trial attorney two times before the trial, “once when he received a copy of the plea offer by mail and again on the day of trial.” Campbell charged that if his attorney had properly investigated the charges and called proper witnesses he “would have cast doubt on whether a sex crime had occurred (and) the verdict would have been different.”

In denying Campbell’s motion, the Court of Appeals panel noted that Letcher Commonwealth’s Attorney Edison G. Banks II secured an affidavit from Campbell’s attorney “stating that he had met with Campbell at least four times, including two lengthy meetings to prepare for trial. One meeting was to discuss the Commonwealth’s offer on a plea of guilty.”

The appeals court panel also noted that Banks pointed out in his answer to Campbell’s motion that “Campbell never indicated there were other witnesses who could testify, and that the jailors testified as expected; favorably to the defense.”

Wrote the panel: “The main thrust of Campbell’s argument is that his attorney failed to investigate the case or examine the witnesses to sufficiently bring the shortfalls of the victim’s testimony before the jury, specifically related to whether McClain complained of a sexual assault. We have reviewed the testimony, and the witnesses testified that McClain did not in fact claim to have been sexually assaulted, even when he had been specifically asked that question by jail personnel. The jury certainly had the benefit of this testimony, yet it still opted to convict all of the defendants on the sexual abuse charge.”

Campbell also claimed in his latest appeal that his “attorney’s performance was deficient because he failed to consult with an expert related to the timing of (McClain’s) injuries.” Campbell maintains that it was other acquaintances of McClain who beat McClain and broke his jaw after he got into a car with them after being released from jail on the same day the Whitesburg hospital gave him a clean bill of health.

An earlier appeal filed by Campbell shortly after his conviction was rejected by the Kentucky Supreme Court in March 2009. In that appeal, Campbell claimed that the broken jaw suffered by McClain did not meet the definition of second-degree assault because the injury did not create a substantial risk of death.

The high court said a lesser charge was not merited because under Kentucky law a person is guilty of second-degree assault if he intentionally causes serious physical injury to another person even if that injury did not create a substantial risk of death.

A surgeon at the University of Kentucky had to operate on McClain for 2-1/2 hours on December 15, 2004 in order to fix his jaw. The surgeon had to make multiple incisions and insert a titanium plate and screws to repair the fracture.

Campbell, whose weight is listed at 360 pounds and height at six-feet two-inches by the Kentucky Department of Corrections, is scheduled to be released from the Kentucky State Reformatory in LaGrange in 2030.

Fields and Fugate, who are being held at the Green River Correctional Complex in Central City, are scheduled to be released from prison in 2017. Lucas is being held at the Eastern Kentucky Correctional Complex in West Liberty, where is scheduled to be released in December 2012.

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