ERIC ELLSWORTH CLARK v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001256-MR
ERIC ELLSWORTH CLARK
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 98-CR-002424
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Eric Ellsworth Clark, pro se, has appealed from
the May 27, 2004, order of the Jefferson Circuit Court which
denied his pro se motion to vacate, set aside, or correct the
trial court’s final judgment and sentence of imprisonment
pursuant to RCr 1 11.42, without holding an evidentiary hearing.
Having concluded that the trial court did not err in denying
1
Kentucky Rules of Criminal Procedure.
Clark’s claims of ineffective assistance of counsel without
holding an evidentiary hearing, we affirm.
Because Clark directly appealed his conviction and
life sentence to the Supreme Court of Kentucky, 2 we quote the
pertinent facts of this case from its Opinion as follows:
Clark and the victim divorced in 1997
after approximately 7 years of marriage.
They reconciled in June 1998 and lived
together in an apartment. The victim was an
assistant store manager at the Disabled
American Veterans store near their home.
Clark had been terminated from his position
there in early September 1998 after he
walked off the job.
The victim was found dead in the
apartment by an EMT shortly after 11 p.m. on
September 21, 1998. She was lying on her
stomach just inside the front door and a
large kitchen butcher knife was next to her.
Medical testimony was that the victim died
of a sharp force injury to her left upper
chest that penetrated her heart.
At trial, the evidence showed that
Clark was seen exiting the victim’s
apartment and was overheard saying that he
had “killed the bitch, are you happy.”
After leaving the victim’s apartment, Clark
returned to his friend’s apartment where he
again acknowledged that he had killed his
ex-wife. Ultimately, Clark went to his
sister’s house and asked her to take him to
the police station because he had “done
something” to the victim. He was arrested
and his clothing was taken as evidence.
Testing of the blood stains on the clothing
indicated that the blood was consistent with
that of the victim.
2
Case No. 2002-SC-0755-MR, rendered September 18, 2003, not-to-be published.
-2-
Clark was convicted of murder and
entered a plea agreement with the
Commonwealth whereby he would plead guilty
to being a second-degree persistent felony
offender, forego jury sentencing and agree
to a life sentence.
The Supreme Court Opinion became final on October 9, 2003.
On April 2, 2003, Clark filed a pro se motion to
vacate, set aside, or correct his sentence pursuant to RCr
11.42, as well as a motion for appointment of counsel, and a
request for an evidentiary hearing.
In a letter dated April 7,
2003, from the trial judge to the Commonwealth’s Attorney the
trial court stated that it granted Clark’s request for counsel;
however, there is no order to that effect in the record on
appeal.
On July 16, 2003, Clark filed a motion for the trial
court to rule on his RCr 11.42 motion. 3
Clark filed a pro se
motion on October 3, 2003, wherein he asked to supplement his
RCr 11.42 motion.
The Commonwealth filed its response to
Clark’s RCr 11.42 motion on October 20, 2003.
Clark filed a
reply to the Commonwealth’s response on November 5, 2003.
The
trial court denied Clark’s RCr 11.42 motion on May 27, 2004,
without holding an evidentiary hearing. 4
This appeal followed.
3
Clark’s direct appeal to the Supreme Court was still pending during this
time.
4
On October 15, 2003, Clark filed a petition for writ of mandamus with the
Court of Appeals to compel the trial court to rule on his pending RCr 11.42
motion. The trial court responded on October 29, 2003, by stating that it
was unable to rule on Clark’s motion because it did not have the case file,
pending finality of Clark’s direct appeal to the Supreme Court. The Court of
Appeals entered an order on December 10, 2003, passing the petition for 90
-3-
In this appeal Clark claims trial counsel was
ineffective (1) for failing to investigate and to advise him of
the defense of extreme emotional disturbance; (2) for failing to
request an instruction on all degrees of homicide; and (3) for
failing in several aspects to vigorously defend Clark. 5
He also
claims that all errors enumerated in his arguments had the
effect of reversible cumulative error.
Finally, he asserts the
trial court erred in failing to appoint counsel to represent him
following the filing of his RCr 11.42 motion, and
in failing to conduct an evidentiary hearing on his RCr 11.42
motion.
To establish ineffective assistance of counsel, a
movant must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency caused actual
prejudice resulting in a proceeding that was fundamentally
unfair and a result that was unreliable. 6
The burden is on the
movant to overcome a strong presumption that counsel’s
days from the date the record is returned to the circuit court. Clark filed
a “petition for final disposition of pending mandamus” on April 14, 2004.
The trial court ruled on his RCr 11.42 motion on May 27, 2004.
5
Specifically, Clark argues that trial counsel was ineffective (1) for
failing to give an opening statement; (2) for advising him to plead guilty
following his conviction for murder; (3) for failing to call expert witnesses
in psychiatry and forensic pathology to testify; (4) for failing to request
suppression of blood evidence; and (5) for failing to prevent hearsay
testimony at trial.
6
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674, 693 (1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky.
2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
-4-
assistance was constitutionally sufficient or that under the
circumstances counsel’s action might be considered “trial
strategy.” 7
A court must be highly deferential in reviewing
defense counsel’s performance and should avoid second-guessing
counsel’s actions based on hindsight. 8
In assessing counsel’s
performance, the standard is whether the alleged acts or
omissions were outside the wide range of prevailing professional
norms based on an objective standard of reasonableness. 9
“‘A
defendant is not guaranteed errorless counsel, or counsel
adjudged ineffective by hindsight, but counsel reasonably likely
to render and rendering reasonably effective assistance.’” 10
In
order to establish actual prejudice, a movant must show a
reasonable probability that the outcome of the proceeding would
have been different or was rendered fundamentally unfair and
unreliable. 11
Where the movant is convicted in a trial, a
reasonable probability is a probability sufficient to undermine
confidence in the outcome of the proceeding considering the
7
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky.
1998); Sanborn v. Commonwealth, 975 S.W.2d 905, 912 (Ky. 1998).
8
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
9
Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 370; Commonwealth v.
Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).
10
Sanborn, 975 S.W.2d at 911 (quoting McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997)).
11
Strickland, 466 U.S. at 694; Bowling v. Commonwealth, 80 S.W.3d 405, 411-12
(Ky. 2002).
-5-
totality of the evidence before the jury. 12
A movant is not
automatically entitled to an evidentiary hearing on an RCr 11.42
motion unless there is an issue of fact which cannot be
determined on the face of the record. 13
“Where the movant’s
allegations are refuted on the face of the record as a whole, no
evidentiary hearing is required.” 14
Clark’s first argument is that counsel was ineffective
for failing to investigate his claims that he was under extreme
stress at the time he murdered his ex-wife and that counsel
should have requested an instruction for extreme emotional
disturbance.
Clark claims under Spears v. Commonwealth, 15 that
evidence of his ex-wife having an affair was sufficient evidence
to support an instruction for extreme emotional disturbance.
We
disagree.
Our Supreme Court has defined extreme emotional
disturbance as “a temporary state of mind so enraged, inflamed,
or disturbed as to overcome one’s judgment, and to cause one to
act uncontrollably from the impelling force of the extreme
emotional disturbance rather than from evil or malicious
12
Strickland, 466 U.S. at 694-95.
Foley, 17 S.W.3d at 884.
13
See also Bowling, 80 S.W.3d at 412; and
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
14
Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App. 1986) (citing Hopewell v.
Commonwealth, 687 S.W.2d 153, 154 (Ky.App. 1985)).
15
30 S.W.3d 152 (Ky. 2001).
-6-
purposes.” 16
For an instruction on extreme emotional disturbance
to be justified the evidence must show:
(1) a sudden and
uninterrupted triggering event; (2) that resulted in the
defendant being extremely emotionally disturbed; and (3) that
the defendant acted under the influence of this disturbance. 17
In the instant case, Clark claims that he discovered
his ex-wife “fooling around” with another man, which had begun
to cause problems in their cohabitating relationship, and that
he told police he eventually went “ballistic.”
However, Clark’s
statements to the police immediately following the murder make
no reference to discovering his ex-wife with another man.
Furthermore, Clark did not testify at trial or produce
any evidence in an attempt to connect the discovery of his exwife having an affair with her murder.
The trial court noted
that Clark “would argue no evidence was presented about the
[extreme emotional disturbance] defense because his counsel
advised him not to testify, and thus [Clark] was cheated out of
a chance to let the jury know[ ] what happened on the night of
the murder.
The jury not having heard this evidence, he argues,
led him to be convicted of a higher degree of murder than he was
guilty of.”
The trial court further stated:
16
McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).
17
Spears, 30 S.W.3d at 155.
-7-
The Court, as noted, is bound to give
deference to counsel’s tactical decisions
and strategy. [Clark’s] counsel was well
aware that this was a violent killing and
that [Clark], had he taken the stand, would
have been exposed to the [jury] as a prior
felon. Moreover, the Commonwealth would
have been granted the opportunity to crossexamine [Clark], thus adding to the heavy
weight of evidence against him. In light of
these facts, the Court does not find
counsel’s advice not to testify
unreasonable. Nor does the Defendant offer
the Court any solid evidence that his
failure to testify prejudiced him in some
way. . . . [Clark], had he been so
dissatisfied with counsel’s advice not to
testify, had ample opportunity to speak to
the Court about his problems and request new
counsel. . . .
Thus, Clark failed to produce any credible evidence
that a triggering event actually occurred, that he was extremely
emotionally disturbed by the event, and that he acted under the
influence of such a disturbance.
Accordingly, not only has
Clark failed to show that his trial counsel’s performance was
deficient, but he also failed to show with any degree of
probability that his trial counsel’s alleged deficient
performance undermined the confidence in the outcome of his
trial.
Neither the first nor second prong of Strickland has
been met.
Further, there is no basis to Clark’s claim that his
counsel was ineffective for failing to request an instruction on
extreme emotional disturbance.
Even if his counsel had
-8-
requested the instruction for extreme emotional disturbance,
there was no evidence presented at trial to support the
instruction.
Clark next argues that trial counsel was ineffective
for failing to request jury instructions on all degrees of
homicide.
Our Supreme Court has already thoroughly reviewed and
discussed a portion of this argument when it ruled that Clark
was not entitled to an instruction on manslaughter in the second
degree, and we will not revisit that issue.
However, we will
discuss whether Clark was entitled to jury instructions on
manslaughter in the first degree and reckless homicide.
In Kentucky, it is well-established that “it is the
duty of the trial judge to prepare and give instructions on the
whole law of the case . . . [including] instructions applicable
to every state of the case deducible or supported to any extent
by the testimony.” 18
It is fundamental in a criminal case that
the trial court must instruct the jury on all of a defendant’s
lawful defenses. 19
An instruction for a lesser-included offense
is required only if, considering the totality of the evidence, a
reasonable jury could acquit the defendant of the greater
18
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky
Rules of Criminal Procedure (RCr) 9.54(1); and Kelly v. Commonwealth, 267
S.W.2d 536, 539 (Ky. 1954)).
19
Sanborn v. Commonwealth, 754 S.W.2d 534, 550 (Ky. 1988) (citing Curtis v.
Commonwealth, 169 Ky. 727, 184 S.W. 1105, 1107 (1916)).
-9-
offense and yet believe, beyond a reasonable doubt, that he is
guilty of the lesser offense. 20
Thus, it is the trial court’s
duty to instruct the jury on every possible offense supported by
the evidence.
After denying Clark’s motion for a directed verdict of
acquittal, the trial court indicated that it would only instruct
the jury on intentional murder. 21
The jury instructions
provided, in relevant part, as follows:
INSTRUCTION NO. 1 – MURDER
You will find the defendant, Eric E.
Clark, guilty under this Instruction if you
believe from the evidence beyond a
reasonable doubt, all of the following:
(A)
That in this county, on or about
the 21st day of September, 1998,
he stabbed [the victim], resulting
in her death;
AND
(B)
That in so doing, he intentionally
caused [the victim’s] death.
If you find the defendant guilty under
this Instruction, you will say so by your
verdict and no more.
INSTRUCTION NO. 2 – DEFINITIONS
(A)
“Intentionally” – A person acts
intentionally with respect to a
20
Taylor, 995 S.W.2d at 362 (citing Skinner v. Commonwealth, 864 S.W.2d 290
(Ky. 1993); and Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977)).
21
Clark argued for an intoxication instruction as well as an instruction for
manslaughter in the second degree.
-10-
result or to conduct described by
a statute defining an offense when
his conscious objection is to
cause that result or to engage in
that conduct.
In any prosecution a defendant is entitled to have the
jury instructed “on a lesser-included offense if the evidence
would permit a jury to rationally find him guilty of the lesseroffense and acquit him of the greater.” 22
KRS 507.020 provides,
in relevant part, as follows:
(1)
A person is guilty of murder when:
(a)
With intent to cause the death of
another person, he causes the
death of such person or of a third
person; except that in any
prosecution a person shall not be
guilty under this subsection if he
acted under the influence of
extreme emotional disturbance for
which there was a reasonable
explanation or excuse, the
reasonableness of which is to be
determined from the viewpoint of a
person in the defendant’s
situation under the circumstances
as the defendant believed them to
be. . . . 23
KRS 507.030(1) provides that “[a] person is guilty of
manslaughter in the first degree when: (a) With intent to cause
serious physical injury to another person, he causes the death
of such person or of a third person[.]”
22
KRS 507.050(1) provides
Smith v. Commonwealth, 737 S.W.2d 682, 687 (Ky. 1987).
23
As discussed infra, Clark was not entitled to an instruction on extreme
emotional disturbance because his case was based on an intoxication defense,
and he did not request such an instruction.
-11-
that “[a] person is guilty of reckless homicide when, with
recklessness he causes the death of another person.”
KRS
501.020(4) provides:
A person acts recklessly with respect to a
result or to a circumstance described by a
statute defining an offense when he fails to
perceive a substantial and unjustifiable
risk that the result will occur or that the
circumstance exists. The risk must be of
such nature and degree that failure to
perceive it constitutes a gross deviation
from the standard of care that a reasonable
person would observe in the situation.
“Proof of intent in a homicide case may be inferred
from the character and extent of the victim’s injuries.
Intent
may be inferred from actions because a person is presumed to
intend the logical and probable consequences of his conduct and
a person’s state of mind may be inferred from actions preceding
and following the charged offense” [citations omitted]. 24
In
this case, the evidence only supports a finding that Clark
intended to kill the victim since he stabbed her through the
heart.
Since there is no evidence to support a finding that
Clark did not intend to stab the victim in the heart, there was
no factual basis to support instructions on manslaughter in the
first degree and reckless homicide.
Again, Clark would argue that his trial counsel was
ineffective for not allowing him to testify as to his state of
24
Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky. 1997).
-12-
mind at the time the murder occurred and that the trial court
erred in not providing him an evidentiary hearing to determine
whether he voluntarily waived his right to testify.
“The right
of a defendant to testify at trial is a fundamental
constitutional right and is subject only to a knowing and
voluntary waiver by the defendant.” 25
“The right to testify is
personal to the defendant and the defendant’s relinquishment of
that right must be knowing and voluntary.
Generally, a trial
court does not need to address the voluntariness of a
defendant’s waiver sua sponte unless there are statements or
actions from the defendant indicating disagreement with counsel
or the desire to testify.” 26
In this case, Clark was present when his trial counsel
announced that he would not testify and that no witnesses would
be called on his behalf.
The trial court then stated that the
case would be submitted to the jury.
Clark never showed any
desire that he wished to testify, and there was no indication
that he disagreed with trial counsel’s strategy or was prevented
from testifying by trial counsel.
25
Watkins v. Commonwealth, 105 S.W.3d 449, 453 (Ky. 2003) (citing Rock v.
Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); and
United States v. Webber, 208 F.3d 545 (6th Cir. 2000)).
26
Watkins, supra (citing United States v. Joelson, 7 F.3d 174, 177 (9th Cir.
1993); Riley v. Commonwealth, 91 S.W.3d 560, 562 (Ky. 2002); and Webber,
supra).
-13-
Clark’s next five arguments each pertain to his
allegations that trial counsel was ineffective for failing to
vigorously represent him at trial.
The trial court’s findings
on these issues are thorough and, for the most part, persuasive,
and we adopt them, with one exception, as our own:
RCr 9.42 permits defense counsel to
present an opening argument, reserve opening
until the conclusion of the Commonwealth’s
case, or waive opening entirely. The
failure to make an opening statement does
not automatically establish ineffective
assistance of counsel. See Moss v.
Hofbauer, 286 F.3d 851 (6th Cir. 2002);
Lewis v. United States, 11 F.2d 745, 747
(6th Cir. 1926) (noting that “an opening
statement should not have been made by
counsel, if he did not expect to introduce
evidence tending to substantiate it”).
Counsel here made a professional judgment
not to make an opening statement, and the
Court finds this was not unreasonable, in
that [Clark] did not testify, nor were any
defense witnesses called. Further, [Clark]
has failed to articulate specifically how
this prejudiced him in such a way as to
prejudice him [sic]. In Moss, the Court
stated: “Moss’s conclusory allegations are
insufficient to justify a finding that an
opening statement would have created the
reasonable probability of a different
outcome in his trial.” Moss, 286 F.3d at
864. [Clark] cannot satisfy his burden of
proving a different outcome would have been
reached by the presentation of an opening
statement by mere conjecture and conclusory
statements.
[Clark] claims counsel was ineffective
for failing to call an[ ] expert witness to
testify as to “all that was going on with
him at the time of this incident,” which
would, he asserts, have led to him being
-14-
found guilty of a lesser offense of
homicide. The Court has at its discretion
the power to fund independent experts when a
defendant has shown these services are
reasonably necessary. Hicks v.
Commonwealth, Ky., 670 S.W.2d 837 (1984).
The right to this funding arises only when a
defendant’s mental state is “seriously in
question.” Haight v. Commonwealth, Ky., 41
S.W.3d 436 (2001). [Clark’s] assertion that
an expert could have found out “all that was
going on with him” is not sufficient to base
a claim that expert funds for mental testing
were necessary. This claim, without more,
gave his counsel no reasonable basis for
concluding an examination was warranted.
Nor would a forensic pathologist, who
[Clark] claims would have testified about
the autopsy results and interpreted the
Commonwealth’s evidence, have made a
difference in this case. The state
pathologist provided her conclusions in the
discovery phase of this case, and no
challenges were made to her report’s cause
of death or conclusions. [Clark] does not
explain how an independent pathologist would
have reached a different conclusion or how
the expert could have convinced the jury
another outcome was plausible. No prejudice
to [Clark] was engendered by the failure to
present expert medical and pathological
testimony.
[Clark] argues ineffective assistance
of counsel by counsel’s failure to move for
suppression of the blood evidence in this
case. “Even with respect to substances
which are not clearly identifiable or
distinguishable (like blood), it is
unnecessary to establish a perfect chain of
custody or to eliminate all possibility of
tampering or misidentification, so long as
there is persuasive evidence that ‘the
reasonable probability is that the evidence
has not been altered in any respect.’”
Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6,
8 (1998) (Citations omitted). Gaps in the
-15-
chain of custody go to weight, rather than
admissibility, of evidence. Id. In this
case, the Commonwealth presented evidence
from Detective John Tarter, who collected
[Clark’s] blood sample and placed it in the
property room, and Evidence Technician Joan
Parrish, who removed it from the property
room and submitted it to the Kentucky State
Police Lab. Dawn Katz, who tested the
sample, was present to testify, and [Clark]
stipulated to the remaining proof of chain
of custody, and Ms. Katz was limited on
examination to her results of the blood
analysis. The Court is not convinced by
[Clark’s] argument that there is no telling
whose blood was on that floor, in that
Raymond Barber cut himself climbing through
a window in the room. The Commonwealth
satisfied its burden of presenting
persuasive evidence that the sample was not
misidentified or altered, and [Clark] cannot
show that a motion to suppress would have
been upheld.
[Clark] next argues ineffective
assistance of counsel in that he was advised
to plead guilty to a PFO offense, waive jury
sentencing and accept the Commonwealth’s
sentencing offer. Advising a defendant to
plead guilty does not automatically
constitute ineffective assistance of
counsel, and, again, such advice can be
considered trial strategy. See Russell v.
Commonwealth, Ky. 992 S.W.2d 871 (1999). To
who actual prejudice in the context of a
guilty plea, a defendant must show that
there is a reasonable probability that but
for counsel’s errors, he would not have pled
guilty and would have insisted on going to
trial. Hill v. Lockhart, 474 U.S. 52
(1985).
The Court closely questioned [Clark] as
to his decision to plead guilty, and the
colloquy showed that he did so knowingly and
voluntarily. Defense counsel moved the
Court to find KRS 439.3401 unconstitutional
-16-
prior to trial, which motion this Court
denied. [Clark] then entered the sentencing
agreement which shows absolutely no
prejudice to him[;] not only did the
Commonwealth agree not to enhance his
penalty despite his PFO status, he also
received a straight life sentence, which
allows him to see the parole board in 20
years, as opposed to 85% of whatever term of
years a jury might have imposed. This does
not even take into account that the jury
could have sentenced him to life without the
possibility of parole or life without parole
for 25 years. Nor did [Clark] have to face
a jury who, during a sentencing phase, would
have learned of his prior felony[.]
[emphasis original].
[Clark] contends without jury
sentencing he was precluded from presenting
witnesses who loved him and who would have
testified that they wanted him out of
prison. The Court is convinced by the
Commonwealth’s argument that any of this
testimony would have been offset by any
number of the victim’s relatives or friends
testifying against [Clark’s] release. Even
more damaging would have been the
Commonwealth, and these witnesses, pointing
out that they loved [the victim] and wanted
her with them, but that she was never coming
back. [Clark] cannot show prejudice by
agreeing to plead guilty and accept the
Commonwealth’s sentencing offer; the Court
finds, if anything, his acceptance of such
was a wise decision.
Finally, [Clark] argues counsel’s
failure to prevent hearsay testimony from
being admitted was ineffective assistance.
[Clark] raised this argument on appeal, and
the [Supreme Court] found it had not been
properly preserved for review. This Court
will not, and indeed, pursuant to RCr 11.42,
cannot relitigate an issue which has already
been dealt with or should have been dealt
-17-
with on direct appeal. 27 The fact that
Justice Cooper concurred in the opinion, as
opposed to joining the majority, adds no
weight to [Clark’s] argument, especially
since Justice Cooper acknowledged that no
manifest injustice resulted from the
unpreserved error, as the evidence against
[Clark] was “absolutely overwhelming.”
As for Clark’s claim that the trial court erred in not
appointing counsel to represent him on his RCr 11.42 motion, we
note that Fraser v. Commonwealth, 28 states that “[i]f an
evidentiary hearing is not required, counsel need not be
appointed, ‘because appointed counsel would [be] confined to the
record.’” 29
Since none of Clark’s claims merited an evidentiary
hearing, the trial court did not err by refusing to appoint
counsel.
Finally, Clark asserts that the cumulative effect of
the aforementioned errors resulted in a violation of his
constitutional rights and as a result his conviction and
sentence should be set aside.
This argument is meritless.
Each
of the allegations made by Clark has been thoroughly reviewed
and discussed in this Opinion and each one is refuted by the
record.
“Repeated and collective reviewing of alleged errors
27
We disagree with this statement by the trial court since RCr 11.42 is the
proper procedure for reviewing an error by trial counsel that precluded
review on direct appeal of an issue that would otherwise have been subject to
review on direct appeal. Nevertheless, we agree with the result based on the
overwhelming evidence of guilt.
28
59 S.W.3d 448, 453 (Ky. 2001).
29
Id. (quoting Hemphill v. Commonwealth, 448 S.W.2d 60, 63 (Ky. 1969)).
-18-
does not increase their validity.” 30
Clark has failed to
demonstrate any basis for his claims that counsel’s performance
was deficient.
He received a fundamentally fair trial.
Accordingly, the order of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric E. Clark, Pro Se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General
Wm. Robert Long, Jr.
Frankfort, Kentucky
30
Parrish v. Commonwealth, 121 S.W.3d 198, 207 (Ky. 2003).
-19-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
