JAMES RAY CABLE v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001019-MR
JAMES RAY CABLE
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE LARRY RAIKES, JUDGE
ACTION NO. 90-CR-00052
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
This is an appeal by James Ray Cable (Cable)
from a judgment of the Hart Circuit Court entered April 7, 1998,
denying Cable’s motion for RCr 11.42 relief.
We affirm.
On May 21, 1990, a LaRue County Grand Jury indicted
Cable on first-degree rape, first-degree sodomy, kidnaping and
with being a persistent felony offender in the first degree
(PFO I).
A jury found Cable guilty on all charges, and on
January 24, 1991, sentenced him to 100 years on each count,
enhanced from 20 years because of his PFO status, for a total of
300 years.
Thereafter, Cable filed a motion to vacate and to
grant him a new trial pursuant to CR 60.02 and RCr 10.02 grounded
upon allegations of newly discovered evidence.
The trial court
denied the motion on August 10, 1992.
On October 12, 1992, Cable again moved for CR 60.02
relief and renewed that motion in greater detail on December 14,
1992.
Hearings were conducted in the Hart Circuit Court on
March 23, 1993, and May 18, 1993, on Cable’s motions.
On June 3,
1993, the trial court issued its findings of fact, conclusions of
law and judgment denying Cable’s motions.
Thereafter, Cable
appealed directly to the Kentucky Supreme Court.
The only issue
raised on appeal was whether the trial court erred in failing to
grant a new trial.
The Kentucky Supreme Court affirmed Cable’s
conviction on April 14, 1994.
On October 18, 1995, Cable filed a motion to vacate his
convictions pursuant to RCr 11.42 alleging ineffective assistance
of counsel.
For procedural reasons, the Hart Circuit Court
denied the motion without considering the merits.
the trial court’s decision to this Court.
Cable appealed
In an unpublished
opinion dated October 21, 1997, this Court found that Cable’s
motion was in substantial compliance with the statute and
remanded the case to the Hart Circuit Court for consideration of
the merits of the motion.
On April 7, 1998, the trial court
issued a finding of fact, conclusions of law and judgment denying
Cable’s motion with prejudice.
This appeal followed.
Cable raises five allegations of error in this appeal:
1.
Ineffective assistance of counsel
for failure to object to the
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Commonwealth’s references to
Cable’s parole status;
2.
Ineffective assistance of counsel
for failure to object to references
of prior bad acts;
3.
Ineffective assistance of counsel
for failure to object to testimony
that Cable was seeing a Sex
Offender Counselor;
4.
Ineffective assistance of counsel
for comments made to the jury in
closing arguments where Cable’s
trial attorney mentioned his status
as Public Defender Administrator;
and
5.
Ineffective assistance of counsel
for failure to raise alleged
procedural errors on direct appeal.
After thoroughly reviewing the record and the evidence
before this Court, we adopt the reasoning of the trial court in
its April 7, 1998, opinion and order as to allegations of error
1-4 listed above.
The trial court found, in part, as follows:
After a review of the trial tapes
and the record as a whole, the Court makes
the following findings of fact, to-wit:
The victim in this case was a
fifteen year old female, [K.L.T.]. At the
trial, she testified that on April 5, 1990,
she was forcibly kidnapped [sic] by Cable and
one Phillip Clopton (“Clopton”), and taken to
a remote section of LaRue County (the case
was removed to Hart Circuit Court upon
Cable’s change of venue motion), where she
was handcuffed to a tree and raped repeatedly
by Clopton over a three week period.
Ultimately, she was able to escape by
shooting and killing Clopton with his own
shotgun.
According to [K.L.T.], on the first
day of her captivity, Cable assaulted, raped
and sodomized her.
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Cable was indicted on charges of
(1) first degree rape, Class “B” felony, (2)
first degree sodomy, Class “B” felony, (3)
kidnapping [sic], capital offense, and (4)
being a first degree persistent felony
offender. He was tried on those charges in
December, 1990, with jury verdicts of guilty
on all counts. The jury recommended twenty
years each for the rape, sodomy and
kidnapping [sic] charges, enhanced to one
hundred years each upon its verdicts of
guilty on the first degree persistent felony
offender counts. The Court sentenced Cable
to one hundred years on each count, to run
consecutively, for a total sentence of three
hundred years.
ISSUES
Cable’s RCr 11.42 motion is
predicated upon the allegation of ineffective
assistance of trial counsel. To summarize,
Cable argues that his trial counsel was
ineffective in the following respects:
(a) Failure to object to
testimony from [K.L.T.]
that Cable, in her
presence, told Clopton
that he had to go and see
his parole officer;
(b) Failure to object to
evidence of collateral
bad acts committed by him
and Clopton;
(c) Failure to object to
improper argument by the
Commonwealth Attorney
during his closing
argument;
(d) Improper statements
made by his counsel
during closing argument;
and
(e) Failure to object to
testimony that Cable was
seeing a sex offender
counselor.
APPLICABLE LAW
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When a claim of ineffective
assistance of counsel is raised, the standard
of review is a two-pronged test. First, the
defendant must show that counsel’s
performance was deficient. Second, the
defendant must show the deficient performance
prejudiced the defense. Gall v.
Commonwealth, Ky., 702 S.W.2d 37, 39 (1985),
citing Strickland v. Washington, 80 L.Ed.2d
674 (1984).
GROUNDS
With the above criteria in mind,
the Court will now address the grounds
asserted in support of the instant motion:
Evidence Relating to Parole
Officer: K.T.L. testified that after Cable
raped and sodomized her, he got in his truck
and told Clopton that he had an appointment
to see his parole officer in Louisville.
Cable’s counsel did not object to this
testimony and Cable now argues that such
failure constituted a deficient performance
which prejudiced his defense.
This argument is totally without
merit due to the fact that Cable’s alibi
defense was based, in part, upon his
appointment with his parole officer. Cable’s
wife, Nancy Cable, testified in Cable’s
defense. According to her, on April 5, 1990,
Cable did not get up until 10:40 A.M. on that
date and had appointments that afternoon with
his counselor and parole officer. She
proffered that she and Cable left their house
around 1:30 P.M.; that Cable then met with a
counselor for 15-20 minutes; that he then saw
his parole officer, and, following those
meetings, accompanied her for her appointment
at Seven Counties.
All of Nancy’s testimony was
intended to convince the jury that Cable
could not have committed the acts charged
because he was in Louisville at the time, in
part, to fulfill appointments with a
counselor and his parole officer.
Cable further called his parole
officer, Joyce Aldridge, as a witness. Ms.
Aldridge verified that she saw Cable on April
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5, 1990 between 2:00 and 3:00 P.M., and met
with him for one and one-half hours.
So, Cable’s contention that it was
ineffective assistance when his counsel did
not object to K.T.L.’s reference to the
appointment with the parole officer while at
the same time relying upon that appointent as
a part of his alibi defense, is an
anachronistic position, at best.
Moreover, had K.T.L.’s testimony on
that point not been allowed during the
Commonwealth’s case, it would not have
affected the Court’s ruling on Cable’s
directed verdict motion. K.T.L.’s other
testimony about the kidnapping, [sic] and
sodomy was sufficient to defeat such a
motion. Campbell v. Com., Ky., 564 S.W.2d
528 (1978).
On three (3) different occasions
during her testimony, Cable’s wife referred
to appointments Cable had with a counselor.
During cross-examination of Ms. Aldridge, the
Commonwealth Attorney asked her about these
references to a counselor, to which Ms.
Aldridge testified that Mrs. Cable was
probably referring to one Tom Yulke, a
counselor for the Kentucky Sex Offender
treatment program. Cable’s counsel objected
to this testimony. The objection was
sustained and counsel was cautioned not to
proceed any further with that line of
questioning.
The Court does not believe the
Commonwealth intentionally elicited that
testimony. Instead, it was perceived as a
legitimate inquiry in light of Mrs. Cable’s
references to a counselor named “Tom”, and
meetings with him, in support of her
husband’s alibi defense. Furthermore, the
jury was never advised of the underlying
reasons Cable was seeing the counselor and
parole officer.
Prior Bad Acts:
Two (2) of
K.L.T.’s friends, Bridgett Allen and Sherri
Wilson, had disappeared on January 25, 1990.
They were mutual friends of both K.L.T.,
Cable and Clopton.
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According to K.L.T., as Cable was
preparing to leave the captivity site, he
told Clopton, “Phil, you’re going to have to
do her in like we did Bridgett and Sherri.”
The next morning, Clopton told K.L.T. that he
and Cable had murdered the missing girls.
The testimony was followed by a narration of
the rapes and beatings visited on her by
Clopton before she finally escaped.
Cable now charges that the above
referenced testimony constituted improperly
admitted evidence of prior bad acts. This
challenge is rejected.
County IV of the indictment reads
as follows:
The Grand Jury Charges:
That on or about the 5th
day of April, 1990, in
LaRue County, Kentucky,
the above-named defendant
and Phillip Clopton
committed the offense of
kidnapping [sic] by
unlawfully restraining
K.L.T. to accomplish or
advance the commission of
a felony, to-wit: Rape
and sodomy, or to injure
or terriorize (sic) her,
and the Defendant and
Phillip Clopton failed to
release her alive and in
a safe place prior to
trial,....(Emphasis
added).
KRS 509.040(1) provides that a
person is guilty of kidnapping [sic] when he
unlawfully restrains another and when his
intent is “(b) [to] accomplish or to advance
the commission of a felony; or (c) [t]o
inflict bodily injury or to terrorize the
victim...”
K.T.L. testified that the
kidnapping [sic] occurred while she, Clopton
and Cable were riding down a gravel road in
Cable’s truck. Clopton held a straight razor
to her throat and advised that if she tried
to escape he would cut her throat. Then,
Cable bound her hands behind her back. After
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they stopped, Cable pushed her to the ground,
and one of them told her if she tried to run
he would kill her. Next, Cable raped her
while Clopton was unloading the truck,
following which Cable raped her a second time
and handcuffed her to a tree. At that point,
Cable left to see his parole officer.
At that juncture in the trial, the
Court found Cable and Clopton to be
accomplices or co-conspirators. This finding
meant that, thereafter, any statement made by
either Clopton or Cable, made out of the
presence of each other, was admissible as an
exception to the hearsay rule pursuant to KRE
801A(b)(5).
Thus, Clopton’s statement to K.L.T.
the next morning to the effect that he and
Cable had murdered Bridgett Allen and Sherri
Allen, [sic] considered in conjunction with
Cable’s directive the evening before that he
was to “...to do her in like we did Bridgett
and Sherri,” was admissible to prove the
kidnapping [sic] element of intent to
terrorize. The evidence concerning Clopton’s
rape, sodomy and assault of K.L.T. during the
following three weeks, even though Cable was
not present, was admissible to prove that the
coconspirators had kidnapped [sic] K.L.T.
with the intent to advance the commission of
felonies on her.
Therefore, the Court rejects
Cable’s claim that his counsel was
ineffective is [sic] not objecting to the
testimony of K.L.T. concerning the evils
visited upon her by Cable and Clopton in
furtherance of their coconspiracy kidnapping
[sic] plan.
...
Improper Statements by Cable’s
Counsel:
During his closing summation,
Cable’s lawyer, Hon. James Gregory, mentioned
that he had first met Cable on a Sunday
afternoon following Cable’s arrest.
According to Gregory, the meeting was
motivated by the fact that he was the Public
Defender Administrator for LaRue County and
felt it was incumbent on him to provide
representation to Cable before any statements
were taken from him.
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Cable cites the Court to a federal
case out of the 11th Circuit standing for the
proposition that counsel was ineffective when
he revealed to the jury that he was court
appointed.
This Court gives no credence to
this argument. First, Mr. Gregory merely
mentioned that he saw Cable in his capacity
as Public Defender Administrator. There was
nothing encompassed within that statement
indicating he was a court appointed attorney.
Second, this Court cannot conceive of how
Cable was prejudiced by the jury knowing his
counsel was a public defender, and Cable was
not pointed by the Court to any specific
basis for his claim that such statement
constituted ineffective assistance of
counsel. Third, even if such statement
somehow constituted deficient performance on
Mr. Gregory’s part, Cable has failed to show
how it prejudiced his defense.
The trial court did not address Cable’s argument
regarding ineffective assistance of counsel during his direct
appeal.
Cable argues that his counsel failed to raise the
previously alleged procedural errors on appeal and thus provided
ineffective assistance.
Cable’s argument mirrors that made in
Hicks v. Commonwealth, Ky., 825 S.W.2d 280 (1992).
In Hicks, the
defendant was convicted of the murders of two other individuals.
The defendant appealed the conviction, which was thoroughly
reviewed by the Kentucky Supreme Court and affirmed.
Thereafter,
the defendant made a RCr 11.42 motion to vacate claiming that his
counsel was so ineffective in failing to present an issue in the
appeal that the result was the same as if he had been denied a
right of appeal.
The defendant’s motion was denied and he
appealed.
In affirming the appeal, the Kentucky Supreme Court
noted that a defendant whose conviction had not been appealed due
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to neglect of counsel could upon motion obtain a belated appeal
or a defendant whose appeal had been dismissed due to neglect of
counsel could upon motion obtain a reinstatement of the appeal.
Id.
at 281.
However, the Court noted:
We think there is a substantial difference in
the situation of a convicted defendant for
whom no appeal was even taken or one whose
appeal was dismissed solely due to neglect of
counsel and the situation of a defendant
whose appeal was completely processed and the
judgment affirmed. In the first case, there
was never any consideration of the merits of
any substantive issue by the appellate court.
In the latter case, the appellate court has
considered and decided the merits of the
appeal. We will not examine anew an appeal
reviewed, considered and decided by this
Court. Id.
Cable appealed his conviction and the Kentucky Supreme Court
affirmed that decision.
He cannot now seek review of that appeal
through a RCr 11.42 motion.
Moreover, the trial court found that
the errors alleged by Cable did not constitute ineffective
assistance of counsel and we have adopted the trial court’s
findings in that regard.
Failure to raise these meritless issues
in his first appeal does not constitute ineffective assistance of
counsel.
The standard of review for ineffective assistance of
counsel is the “clearly erroneous” standard.
“Whether an
attorney fulfills [the Strickland] test is an issue of fact to be
determined by the trial court, and its findings will not be set
aside unless they are clearly erroneous.”
Ky. App., 655 S.W.2d 506, 509 (1983).
Ivey v. Commonwealth,
We do not feel that the
trial court’s decision was erroneous, and, in fact, have adopted
the majority of the reasoning of the trial court.
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For the foregoing reasons, the judgment of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, KY
A. B. Chandler, III
Attorney General
Christopher M. Brown
Assistant Attorney General
Frankfort, KY
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