MEECE v. Commonwealth of Kentucky, Real Party in Interest/Appellee (2026)

William Meece shot and killed three people during the commission of a robbery and burglary in Adair County in 1993. After the parties agreed to a transfer of venue, Meece was tried and convicted in Warren Circuit Court and sentenced to death. Meece appealed his conviction which was affirmed by this Court in 2011. In September 2013, Meece challenged his convictions and sentences pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Meece sought to waive his appearance at an evidentiary hearing regarding his RCr 11.42 claims. Thereafter, the Commonwealth notified his counsel that it intended to call Meece as a witness during the hearing.

Meece filed a motion to preclude the Commonwealth from calling him as a witness, relying on his Fifth Amendment privilege against self-incrimination. Ultimately, the Warren Circuit Court ruled that, by attaching an affidavit to his RCr 11.42 motion, Meece effectively waived his Fifth Amendment right. Therefore, the trial court held that the Commonwealth could call Meece as a witness. Meece now seeks a writ of prohibition from this Court prohibiting the trial court from allowing Meece to be called as a witness in the evidentiary hearing. After review, we hereby deny Meece's petition.¹

FACTS AND PROCEDURAL HISTORY

In 2006, William Meece was found guilty and sentenced to death for the murder of three people. Raising forty-five claims of error, he appealed his conviction to this Court, which was affirmed. Meece v. Commonwealth, 348 S.W.3d 627 (Ky. 2011). On September 23, 2013, Meece, through counsel, filed a timely RCr 11.42 postconviction motion to vacate his convictions and sentences, raising numerous claims regarding the constitutional fairness of the proceedings. Given the number of claims made, the trial court split the evidentiary hearing into three parts: (1) pretrial and juror claims, (2) guilt phase claims, and (3) penalty phase claims. After two evidentiary hearings, the Warren Circuit Court denied Meece's RCr 11.42 claims regarding the pretrial, juror, and guilt phases of trial. The trial court scheduled an evidentiary hearing on Meece's claims regarding the penalty phase for July 22, 2025.²

On June 24, 2025, Meece filed a motion to waive his appearance at the penalty phase evidentiary hearing. Meece stated the trip from the Kentucky State Penitentiary in Eddyville, Kentucky, was burdensome, travel was difficult, and, given the sensitive nature of the subjects to be discussed during the hearing, he did not wish to be present telephonically or by video. The Commonwealth objected to the motion, stating its intention to call Meece as a witness which necessitated his appearance. During a remote hearing, the trial court denied Meece's motion to waive his appearance.

In conformity with the trial court's scheduling order, the Commonwealth filed its witness list, naming Meece as the only witness it intended to call. Shortly thereafter, Meece filed a motion to preclude the Commonwealth from calling him as a witness, citing his Fifth Amendment privilege against self-incrimination. The Commonwealth filed an objection, and the trial court entered an order denying Meece's motion. The court relied on Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), and McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986). In both cases, the defendants challenged the scope of the Commonwealth's cross-examination during RCr 11.42 evidentiary hearings, asserting that the questioning improperly implicated matters not covered on direct examination. Both cases held that, in the context of an RCr 11.42 hearing, a defendant is not entitled to invoke his right against self-incrimination where his conviction has already been upheld on direct appeal. The trial court also noted that Meece attached an affidavit to his RCr 11.42 motion, in which he made affirmative statements regarding his past, thereby putting those statements at issue in the RCr 11.42 proceeding.

The trial court denied Meece's motion to reconsider. Importantly, the trial court explained that a jury had already fixed Meece's punishment, and that no decision the court made would put him at risk of an increased penalty. Further, Meece waived his right against self-incrimination and the Commonwealth could question him. Meece's counsel informed the court that she would advise Meece not to answer any questions and that they were seeking a writ. The trial court and counsel agreed that the Commonwealth would ask its questions on the record, defense counsel would advise Meece not to answer and instead invoke his Fifth Amendment right, and Meece would then be asked if he adopted counsel's responses as his own. This procedure was followed. On July 28, 2025, Meece filed a petition for a writ of prohibition in this Court.

ANALYSIS

As often noted, writs of prohibition are “extraordinary in nature, and the courts of this Commonwealth ‘have always been cautious and conservative both in entertaining petitions and in granting such relief.’ ” Gilbert v. McDonald-Burkman, 320 S.W.3d 79, 83 (Ky. 2010) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (1961)). This Court can grant a petition for a writ when the lower court is acting beyond the scope of its jurisdiction, or upon a showing that

the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

Here, the second category of writs is at issue. A writ may also be granted in “certain special cases” within this second class even absent a showing of irreparable harm, provided the petitioner demonstrates that “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Collins v. Braden, 384 S.W.3d 154, 158 (Ky. 2012) (quoting Bender, 343 S.W.2d at 801). Because the trial court's ruling involved questions of law, our review is de novo. Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018).

The plain language of the Fifth Amendment states: “[n]o person ․ shall be compelled in any criminal case to be a witness against himself ․” The Fifth Amendment creates a privilege against self-incrimination to protect individuals from having to testify if they may incriminate themselves through their testimony. The United States Supreme Court has explained the “essence” of the Fifth Amendment privilege as “the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.” Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).

Given that the death penalty is unlike any other sanction the Commonwealth may seek to impose, we certainly appreciate this Court's rigorous adherence to ensuring due process rights are afforded in these cases.³ While Meece thus enjoyed a Fifth Amendment right against self-incrimination, we nonetheless conclude that by providing testimony for his RCr 11.42 proceedings, Meece is precluded from now invoking his Fifth Amendment privilege against self-incrimination for the remaining duration of the proceeding. In Mitchell v. United States, the United States Supreme Court explained that “a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” 526 U.S. 314, 321, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999).

Here, Meece attached an affidavit to his RCr 11.42 motion which contains allegations regarding his family, childhood, and alleged ineffectiveness of trial counsel. This affidavit constituted testimony by Meece in support of his motion. Indeed, Black's Law Dictionary defines an “affidavit” as “[a] voluntary declaration of facts written down and sworn to by a declarant, usu[ally] before an officer authorized to administer oaths.” (12th ed. 2024). “Testimony” is defined as “[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Id. (emphasis added). An affidavit is a form of written testimony which can be used as evidence in legal matters. Therefore, by filing an affidavit alongside his RCr 11.42 motion, Meece submitted testimony and thus waived his Fifth Amendment privilege.⁴

Put differently, because Meece is directly responsible for placing these allegations at issue, he cannot now, in the same proceeding, invoke his Fifth Amendment privilege. By filing the affidavit, Meece determined the area of disclosure and thereby determines the area of inquiry on cross-examination. The well-established ruled cited in Mitchell, that a witness may not testify voluntarily about a subject and then claim privilege when questioned about the details, is clearly justified:

A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry ․ [A] contrary rule would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony ․ It would ․ make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell ․ The illogic of allowing a witness to offer only self-selected testimony should be obvious even to the witness, so there is no unfairness in allowing cross-examination when testimony is given without invoking the privilege.

526 U.S. at 322, 119 S.Ct. 1307 (internal quotations and citations omitted).

We note, however, that by filing an affidavit in conjunction with his RCr 11.42 motion, Meece has waived the privilege for purposes of the RCr 11.42 proceedings only. Indeed, it would be patently unfair for a defendant to be required to disclose incriminating information to gain warranted post-conviction relief, only to then face the use of that same information against them on retrial. Thus, the disclosure of any incriminating information, if reasonably germane to a defendant's well-founded request for post-conviction relief, cannot be used in a potential retrial or resentencing of the defendant.

The Commonwealth cites Gall, 702 S.W.2d at 45, for the proposition that in circumstances where there can be no further incrimination, there is no basis for the assertion of the Fifth Amendment privilege. In Gall, the defendant filed an RCr 11.42 motion alleging ineffective assistance of counsel, which was ultimately overruled after an evidentiary hearing in the Boone Circuit Court. Id. at 39. Gall raised numerous issues on appeal of that ruling, including that his Fifth Amendment rights were violated when the Commonwealth cross-examined him on matters not covered in direct examination during the RCr 11.42 hearing. Id. at 45.

This Court determined Gall's argument was meritless because his conviction had already been upheld on the prior direct appeal and, therefore, at the time of his 11.42 proceeding, he was not entitled to invoke this privilege against self-incrimination. Id. A year later, in McQueen, the Court reaffirmed the holding that because a defendant's conviction had already been upheld on direct appeal, in the RCr 11.42 hearing he was not entitled to invoke the privilege against self-incrimination. 721 S.W.2d at 702-03. McQueen argued that the prosecution improperly cross-examined him on matters not covered during the direct examination. Id. at 702. The Court also held that McQueen was not exempt from answering questions about the underlying murder at the RCr 11.42 hearing because he “placed the entire question in issue and cannot escape the normal consequences of cross-examination.” Id. at 703.

Both Gall and McQueen relied on Reina v. United States, which involved a federal statute granting immunity from prosecution for witnesses compelled to testify before a grand jury investigating alleged violations of federal narcotics laws. 364 U.S. 507, 508-09, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960). The Court referenced authority for the “ordinary rule ․ that once a person is convicted of a crime, he no longer has the privilege against self-incrimination as he can no longer be incriminated by his testimony about said crime.” Id. at 513, 81 S.Ct. 260. The Court reasoned that, under this proposition, “immunity, at least from federal prosecution, need not have been offered the petitioner at all.” Id. Ultimately, the Court determined that the federal immunity statute was broad enough to overcome Reina's constitutional objection to answering the grand jury questions. Id. at 514, 81 S.Ct. 260.

Later, the Supreme Court examined the Fifth Amendment privilege again in Estelle, and rejected the contentions that “incrimination is complete once guilt has been adjudicated,” and that the Fifth Amendment thus has no relevance to the penalty phase of trial. 451 U.S. at 462, 101 S.Ct. 1866. In doing so, the Court reasoned that “the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Id. (citation omitted). Therefore, the type or phase of the proceeding is not the only relevant consideration in determining whether the Fifth Amendment privilege is available. Gall and McQueen relied upon Reina's passing reference to authority that because Gall and McQueen were already convicted, they were not entitled to the privilege. However, Gall and McQueen failed to apply the Supreme Court's later rationale in Estelle requiring consideration of the exposure that compelled testimony might invite.

After Reina, but before Gall and McQueen, in United States v. Apfelbaum, the United States Supreme Court acknowledged that while the application of the Fifth Amendment privilege to various types of claims had changed over the past thirty years, the basic principle reaffirmed in each case had remained the same:

The central standard for the privilege's application has been whether the claimant is confronted by substantial and real, and not merely trifling or imaginary, hazards of incrimination.

445 U.S. 115, 128, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (citations omitted). Thus, to determine whether the Fifth Amendment privilege is applicable, a court must consider whether there is a real threat of incrimination. Here, Meece is potentially subject to further incrimination by virtue of filing an RCr 11.42 motion because, if the court were to vacate his conviction, he could be subject to retrial. However, as previously stated, any information gained only as a result of the RCr 11.42 proceeding could not be used in trial. To the extent that Gall and McQueen relied on Reina and failed to consider these subsequent binding and applicable federal standards, the Gall and McQueen decisions are inapplicable here.

To reiterate, “a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321, 119 S.Ct. 1307 (emphasis added). With these cases in mind, we acknowledge that the Reina holding, i.e., that once convicted, the Fifth Amendment privilege is unavailable, is not true in the RCr 11.42 context. As previously discussed, when a defendant files an RCr 11.42 motion, there may potentially be a retrial, thus leaving the defendant open to incrimination. Therefore, when a defendant submits an affidavit to accompany his RCr 11.42 motion, that affidavit functions as a waiver of the Fifth Amendment privilege only as to information revealed in the affidavit that are germane to well-founded requests for RCr 11.42 relief. The affidavit and waiver do not serve to allow cross-examination on any matter pertaining to the underlying conviction or prosecution.

We also note that at some point after submitting the affidavit, Meece withdrew the affidavit.⁵ But the trial court's order denying Meece's motion to preclude the Commonwealth from calling him as a witness specifically acknowledges that the Commonwealth presented the affidavit to the trial court for consideration in ruling on Meece's motion. Meece asserts that he is not asking this Court to consider the affidavit as evidence in support of his claims. However, once Meece submitted the information via affidavit to the trial court, it could not be later withdrawn. See U. S. ex rel. Carthan v. Sheriff, City of New York, 330 F.2d 100, 102 (2d Cir. 1964) (holding that once the appellant submitted financial questionnaires to a grand jury, thereby waiving his Fifth Amendment privilege against self-incrimination, he could not later withdraw his waiver to prevent matters which he has already gone into from being explored in further detail); see also Brown v. United States, 356 U.S. 148, 157, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (holding that by waiving the Fifth Amendment privilege and providing testimony on direct examination, petitioner opened herself up to cross-examination on matters raised by her testimony). Further, the Commonwealth attached the affidavit to its brief to this Court.

Meece also argues no evidence suggests that when he signed the affidavit attached to his original RCr 11.42 motion, he “voluntarily, knowingly and intelligently” intended to waive his Fifth Amendment rights, as required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Meece testified during both the guilt and penalty phases of his trial. Meece, 348 S.W.3d at 694. He placed a signed affidavit containing allegations before the trial court for consideration on the merits of his RCr 11.42 motion. Given his waiver of his Fifth Amendment privilege by testifying during both phases of his trial, we conclude that Meece understood the implications of asserting claims and affirming facts by submitting the affidavit to the trial court.

Returning to the writ standards applicable here, a second-class writ is never appropriate unless the trial court is about to act or has acted incorrectly. Meece waived his Fifth Amendment privilege and thus the trial court did not err in concluding that he is required to testify at the penalty phase RCr 11.42 evidentiary hearing. Because Meece failed to establish that the trial court acted erroneously in denying his motion to preclude the Commonwealth from calling him as a witness during this proceeding, he is not entitled to a writ.

CONCLUSION

For the foregoing reasons, we deny Meece's petition for a writ of prohibition.

/s/ Debra Hembree Lambert

 CHIEF JUSTICE LAMBERT

FOOTNOTES

1.   Because this matter involves a sentence of death, Meece's petition is properly filed in this Court without intervening review by the Court of Appeals.

2.   Because this is a writ proceeding, and we do not have the full record before us for review, it is unclear why nearly twelve years passed between the filing of the RCr 11.42 motion and the scheduled penalty phase evidentiary hearing.

3.   See St. Clair v. Commonwealth, 455 S.W.3d 869, 880 (Ky. 2015) (“[G]enerally speaking, death-penalty cases are subject to more expansive and searching review than ordinary criminal cases ․ This is because ‘[d]eath is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.’ ” (quoting Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999))).

4.   RCr 11.42 requires that a motion to vacate or set aside a sentence be signed and verified by the movant, and specifically state the grounds on which the sentence is being challenged, along with supporting facts. We acknowledge this creates some tension insofar as Meece is offering incriminating information as bases for the RCr 11.42 motion. Typically, an RCr 11.42 motion concerns matters such as alleged ineffectiveness of counsel, or other non-incriminating material. Rarely will defendants need to rely on incriminating information when seeking this type of postconviction relief. However, when they disclose such information as a basis for their motion, they necessarily waive their Fifth Amendment right against self-incrimination with respect to those matters.

5.   In this writ proceeding, we do not have the trial court record before us. It is certainly possible that withdrawal of the affidavit could result in a lack of requisite information to support the RCr 11.42 motion.

OPINION AND ORDER BY JUSTICE BISIG

All sitting. All concur.