GEORGE A. GABBARD v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 15, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001113-MR
AND
NO. 2006-CA-000711-MR
AND
NO. 2006-CA-001044-MR
GEORGE A. GABBARD
v.
APPELLANT
APPEALS FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 02-CR-00058
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; PAISLEY,1 SENIOR JUDGE.
THOMPSON, JUDGE: George A. Gabbard appeals from two orders of the Bell Circuit
Court denying his motions for post-conviction judgment relief pursuant to Kentucky
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
Rules of Criminal Procedure (RCr) 11.42, and Kentucky Rules of Civil Procedure (CR)
60.02. For the reasons stated below, we affirm.
In October, 2002, a Bell County jury found Gabbard guilty of first-degree
rape, second-degree rape, third-degree rape, and incest. These crimes were committed
against Gabbard's daughter, GLG, from the time she was nine until she reached the age of
fourteen. In accordance with the jury's recommendation, the trial court sentenced
Gabbard to twenty-five years' imprisonment.
On November 23, 2005, Gabbard filed a motion to vacate his sentence
pursuant to RCr 11.42. In his motion, alleging ineffective assistance of counsel, Gabbard
asserted nine claims in support of vacating his conviction. In this motion, Gabbard
asserted law and facts in support of his first four claims but he did not assert any support
for his remaining five grounds for claims. In its order denying the motion, the trial court
substantively addressed Gabbard's first four claims and summarily dismissed the
remaining five due to their complete lack of support. A subsequent motion, pursuant to
CR 59.05, requesting the trial court to vacate this order was denied.
On April 13, 2006, Gabbard filed a motion to vacate his conviction pursuant
to CR 60.02. In his motion, Gabbard asserted seven grounds for relief. On April 20,
2006, the trial court denied Gabbard's motion. The trial court ruled that Gabbard's CR
60.02 motion was nothing more than an impermissible attempt to relitigate issues that
should have been addressed on direct appeal or in Gabbard's RCr 11.42 motion. Gabbard
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appeals both orders, and his appeals have been consolidated and will be disposed of by
this opinion.2
On appeal of his RCr 11.42 motion, Gabbard alleges the following grounds
for relief: (1) that the trial court erred when it did not consider his claim regarding two
tapes; (2) that the trial court erred when it summarily denied five claims of his motion;
(3) that the trial court erred when it failed to consider his detailed claims of ineffective
assistance of counsel; and (5) that the trial court erred by denying his claim that his
counsel failed to introduce testimony regarding the victim's past sexual history. We will
address each issue in turn.
Gabbard first alleges that the trial court erred when its order did not address
his claim that he possessed two tape recordings containing the victim's recantations of her
trial testimony. He further alleges that his motion clearly stated that he possessed these
recordings and that the recordings were evidence of his innocence. Thus, he alleges that
the trial court erred by failing to address this claim. We disagree.
In its order, the trial court noted that Gabbard's motion contained nine
claims in support of his petition to vacate his conviction. The court substantively
addressed Gabbard's first four claims but summarily denied the remaining five claims.
Although Gabbard disagrees, the trial court addressed all of his claims that were properly
brought before the court. From a review of his motion, Gabbard perfunctorily references
2
In 2005-CA-001113-MR, Gabbard also appealed the order of the Bell Circuit Court, entered
April 30, 2005, overruling his motion to obtain court records. However, in his appellate brief, he
withdrew this appeal so we consider it abandoned.
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the existence of two tape recordings. This manner of asserting a RCr 11.42 claim is
insufficient to invoke the authority of the court to provide post-conviction relief.
RCr 11.42(2) provides, in pertinent part, that the movant shall “state
specifically the grounds on which the sentence is being challenged and the facts on which
the movant relies in support of such grounds. Failure to comply with this section shall
warrant a summary dismissal of the motion.” Gabbard's conclusory allegation regarding
the taped recantations failed to meet this requirement; therefore, the trial court did not err
when it did not address the claim. Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky.
1993); Taylor v. Commonwealth, 175 S.W.3d 68, 71 (Ky. 2005) (the recanted testimony
of a trial witness is viewed with skepticism).
Gabbard's next two allegations are that the trial court erred when it did not
address five of the nine claims in his motion.3 As previously noted in this opinion, the
trial court substantively addressed Gabbard's first four claims but summarily denied the
remaining five. We conclude that these two allegations of error must fail for the same
reason Gabbard's first allegation of error was rejected. RCr 11.42(2) requires that a
defendant present specific support to demonstrate that he is entitled to post-conviction
relief. Like his claim regarding the two tapes, his motion's final five claims were
conclusory allegations unsupported by specific facts which warranted summary denial.
Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005). Therefore, the trial court did
not err in summarily denying these claims.
3
Although we have attempted to distinguish the two, Gabbard's second and third allegations are
essentially the same allegation of error.
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Gabbard's final allegation is that the trial court erred by denying his claim
that he received ineffective assistance of counsel. Specifically, Gabbard alleges that his
counsel failed to move the trial court to admit specific instances of the victim's past
sexual behavior pursuant to the Kentucky Rules of Evidence (KRE) 412(b)(1). By
presenting evidence of her possible sexual behavior with her adult boyfriend, Gabbard
alleges that he could show that someone besides him could have been responsible for
creating her vaginal injury which could have helped his defense. Therefore, he alleges
that he was denied the effective assistance counsel.
In reviewing an allegation of ineffective assistance of counsel, we are
governed by the standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the movant must show (1) that
counsel made errors so serious that counsel's performance fell outside the wide range of
professionally competent assistance as the counsel was not performing as counsel
guaranteed by the Sixth Amendment and (2) that the deficient performance prejudiced the
defense by so seriously affecting the process that there is a reasonable likelihood that the
outcome of the trial would have been different. MacLaughlin v. Commonwealth, 717
S.W.2d 506, 507 (Ky.App. 1986).
Moreover, this Court must “indulge a strong presumption that counsel acted
reasonably and effectively.” Mills v. Commonwealth, 170 S.W.3d 310, 328 (Ky. 2005).
“Finally, we must consider the totality of evidence before the jury and assess the overall
performance of counsel throughout the case in order to determine whether the identified
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acts or omissions overcome the presumption that counsel rendered reasonable
professional assistance.” Id., citing Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky.
2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005).
After reviewing the record, we conclude that the trial court did not err by
denying Gabbard's ineffective assistance of counsel claim. In his motion, Gabbard stated
that the victim's medical problems (vaginal infections) began to occur when the victim
and her boyfriend began dating. Although Gabbard did not state whether the victim and
her boyfriend had a sexual relationship during the time in question, he alleged that “[t]his
is evidence that someone other than the Defendant/Movant, Gabbard might be
responsible for the scarring and tearing . . .” of the victim's vagina. This allegation is
insufficient to support post-conviction relief.
When asserting that defense, counsel failed to properly introduce testimony
from a witness, a defendant must state what testimony the witness would have provided
and how that testimony would have been helpful to his defense. Mills v. Commonwealth,
170 S.W.3d 310, 329-330 (Ky. 2005). Vague allegations of error do not constitute
sufficient grounds for relief. Id. at 330. In this case, Gabbard offers scant circumstantial
evidence to support his implicit assertion that the victim's boyfriend caused her injury.
This is a highly speculative allegation that does not necessitate post-conviction relief;
indeed, these kinds of unsubstantiated allegations are inadmissible. Hall v.
Commonwealth, 956 S.W.2d 224, 226 (Ky.App. 1997).
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Since we conclude that Gabbard's allegations are highly speculative, we
will not second-guess the strategy of his defense counsel in how she sought to examine
her witnesses. Foley v. Commonwealth, 17 S.W.3d at 885. Consequently, we conclude
that Gabbard was not denied effective assistance of counsel.
In regard to the appeal of his 60.02 case, at the conclusion of his argument
regarding his RCr 11.42 claims, Gabbard writes that “Appellant incorporates by reference
all claims made in his CR 60.02 motion, which is consolidated into this appeal.” From a
review of the record, the trial court denied the CR 60.02 motion, by order entered April
20, 2006, because it was “. . . simply a back door attempt to raise issues that should have
been raised on appeal or reconsidered on appeal. The Court has also previously denied
the Defendant's 11.42 motion and the 60.02 motion appears to also be a rehash of the
11.42 motion.” It is this order in which Gabbard took his appeal.
In Grief v. Wood, 378 S.W.2d 611, 612 (Ky. 1964), the court held that
suggested matters, which are not supported by argument or by citation to authority, do
not provide appellate courts with a basis for consideration. See also Stewart v. Jackson,
351 S.W.2d 53, 54 (Ky. 1961). In this case, Gabbard references his CR 60.02 claims but
he failed to state any basis or cite any authority to establish that the trial court's order was
erroneous. Since Gabbard has failed to advance any argument in support of his allegation
of error, we decline to address the merits of his case. Hadley v. Citizen Deposit Bank,
186 S.W.3d 754, 759 (Ky.App. 2005) (our function as an appellate court is
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not to research and construct a party's legal arguments). Accordingly, the trial court did
not err by denying the CR 60.02 motion.
For the foregoing reasons, the orders of the Bell Circuit Court denying
Gabbard’s motions for post-conviction relief pursuant to RCr 11.42 and CR 60.02 are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George A. Gabbard, pro se
Burgin, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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