CHRISTOPHER LOVE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 21, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED:
MARCH 25, 2005; 2:00 p.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002175-MR
CHRISTOPHER LOVE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 98-CR-000383
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND HENRY, JUDGES.
BUCKINGHAM, JUDGE: Christopher Love appeals from an order of the
Jefferson Circuit Court denying his motion to vacate his
conviction and sentence pursuant to RCr1 11.42.
The issue is
whether the circuit court correctly determined, based on an
examination of the trial record, that Love did not receive the
ineffective assistance of counsel.
We conclude that the circuit
court ruled correctly, and we thus affirm.
1
Kentucky Rules of Criminal Procedure.
The incident which led to criminal charges being
brought against Love occurred in Louisville, Kentucky, shortly
after 2:00 a.m. on December 13, 1997.
An automobile driven by
William Shaw, who was drunk and on drugs, merged onto the
eastbound lanes of Watterson Expressway from the northbound
lanes of Dixie Highway and collided with a minivan driven by
Clark Vinson.
The minivan flipped three times, and Vinson was
ejected through the front windshield and onto the highway.
Immediately after the accident, occupants of several
eastbound vehicles stopped to render assistance.
Police
officers arrived on the scene shortly thereafter in two police
cruisers.
One cruiser was parked to block the entrance ramp
from Dixie Highway, and the other was parked to block the left
and center lanes of the Watterson Expressway.
Vinson was
conscious but was so seriously injured that the officers radioed
for a helicopter to transport him to a hospital.
A few minutes after the accident, Love crested the
hill in his Ford Thunderbird and approached the accident scene
at a high rate of speed.
He successfully swerved to miss the
police cruiser partially blocking the left two lanes, but he
struck the minivan, flipping it onto Vinson and killing him
instantly.
Love’s Thunderbird then struck Christopher Ochs, who
had stopped to render assistance.
Ochs also died instantly.
Six other bystanders, including two police officers, were
-2-
injured as a result of being struck by the Thunderbird, the
minivan, or debris.
were also injured.
Love and his passenger, Kimberly Morris,
There were no skid marks at the scene
attributable to the Thunderbird.
Love admitted to drinking eight beers that night, and
results from testing his blood serum revealed a blood alcohol
concentration of 0.241%.
Approximately four hours later, blood
was drawn from Love pursuant to a search warrant, and the
results from testing revealed a blood alcohol concentration of
0.17%.
Love was indicted and was convicted after a jury trial
of two counts of wanton murder, two counts of first-degree
assault, one count of third-degree assault, four counts of
fourth-degree assault, and one count each of operating a motor
vehicle with a suspended operator’s license and operating a
motor vehicle while under the influence of alcohol.
Pursuant to
the jury’s verdict, Love was sentenced to twenty years in
prison.
The Kentucky Supreme Court affirmed his convictions and
sentences on direct appeal, with the exception of the conviction
and sentence for third-degree assault, which was reversed for a
new trial.2
See Love v. Commonwealth, 55 S.W.3d 816 (Ky. 2001).
2
The sentence on that charge was one year in prison, and it did not affect
the total sentence of twenty years because it had been ordered by the circuit
court to run concurrently with the twenty-year sentence.
-3-
In September 2003, Love filed an RCr 11.42 motion to
vacate, set aside, or correct his sentence.
the ineffective assistance of counsel.
Therein, he alleged
He also requested that
he be appointed counsel and that he be afforded a full
evidentiary hearing.
On September 18, 2003, the circuit court
entered an order denying Love’s motions.
This appeal followed.
Love makes two allegations concerning his trial
counsel’s alleged ineffective assistance of counsel.
First, he
argues that his counsel wrongly opposed Shaw’s motion to have
his case consolidated with Love’s case for trial.
The record indicates that Love’s counsel filed a
motion for a speedy trial on January 14, 1999.
The motion
complained about pretrial delays and the fact that Love had been
in custody on the charged offenses since December 1997, the
month of the accident.
The motion indicated that Love wanted
the trial to commence on the scheduled date of April 13, 1999.
Love’s motion was granted.
After Shaw filed a motion to consolidate his case with
Love’s case for trial, Love’s counsel filed a response on
January 29, 1999, in opposition to the motion.
The response
cited speedy trial concerns and the fact that Love’s trial
preparation to that point had not encompassed a possible joint
trial.
At the hearing on Shaw’s motion to consolidate, both the
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Commonwealth and Love opposed the motion.
Ultimately, the trial
court did not grant Shaw’s motion to consolidate.
In his RCr 11.42 motion Love now claims that he wanted
to be tried with Shaw and that his counsel should not have
opposed Shaw’s motion to consolidate since he was in favor of
it.
Love states that the main fact issue in the case was
causation and that his not being tried together with Shaw
deprived him of the right to develop his defense.
Love reasons
that there was evidence that Shaw was drunk and on drugs and
that Shaw’s entire deposition would have been read to the jury
had he and Shaw been tried together.
We reject Love’s argument for two reasons.
First, his
counsel’s decision to oppose Shaw’s motion to consolidate was
sound trial strategy.
See Strickland v. Washington, 466 U.S.
668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), wherein the
U.S. Supreme Court stated that “the defendant must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered trial strategy.’”
Had Shaw’s case been
joined with Love’s case, then his counsel would have had to
defend against Shaw’s strategy, which was to place the blame on
Love.
Second, contrary to Love’s assertions, he was given and
took advantage of opportunities throughout the trial to attempt
to persuade the jury that it was Shaw’s actions and not his that
caused the deaths and injuries of the various persons.
-5-
Further,
the fact that Shaw was drunk and on drugs and was indicted for
some of the same offenses was irrelevant to Love’s case.
See
Love, 55 S.W.3d at 826.
Love’s second argument is that he received the
ineffective assistance of counsel because his counsel did not
object to the failure of the trial court to give the jury an
instruction on the defense of intoxication.
“Where the
ineffective assistance of counsel claim is that counsel erred by
failing to object to jury instructions or to the introduction of
evidence, it must first be shown that the jury instructions were
given in error or the evidence was admitted in error.”
Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999).
The failure
of the trial court to give a jury instruction concerning the
defense of intoxication was not error in this case.
Such an
instruction should only be given when the evidence supports the
conclusion not only that the defendant was drunk, but also that
he was so drunk that he did not know what he was doing.
Springer v. Commonwealth, 998 S.W.2d 439, 451 (Ky. 1999).
Love testified that he was not impaired at the time of
the accident and could have passed a sobriety test.
Further,
his defense was that the actions of Shaw and the actions of the
police at the scene caused his accident rather than any
impairment on his part.
In light of those facts, the court
properly declined to give an intoxication instruction.
-6-
“Counsel is constitutionally ineffective only if
performance below professional standards caused the defendant to
lose what he otherwise would probably have won.”
v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).
United States
“The critical
issue is not whether counsel made errors but whether counsel was
so thoroughly ineffective that defeat was snatched from the
hands of probable victory.”
878, 884 (Ky. 2000).
Foley v. Commonwealth, 17 S.W.3d
Even assuming that counsel rendered
ineffective assistance, it is not reasonable to assume that such
actions caused Love to be convicted of the offenses.
In short,
the trial court correctly ruled from the face of the record that
Love did not receive the ineffective assistance of counsel in
his case.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher Love, Pro Se
Burgin, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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