TRUMBO (DEREK) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 18, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000765-MR
DEREK TRUMBO
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 04-CR-001674
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Derek Trumbo appeals the Jefferson Circuit Court’s denial
of his RCr 11.42 motion to vacate his convictions of two counts of first-degree
sodomy, two counts of first-degree sexual abuse, and one count of distribution of
obscene matter to minors. After careful review, we vacate and remand for an
evidentiary hearing.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On June 10, 2004, Trumbo was indicted for the crimes for which he
was convicted. The indictment alleged that the acts took place between June 21,
2000, and June 21, 2003, and occurred between Trumbo and his step-daughter,
K.M., who was at that time a child less than twelve years of age. Trumbo’s case
was initially tried before a jury on June 14, 2005, and resulted in a mistrial due to a
hung jury.
In support of its case, the Commonwealth presented the testimony of
the alleged victim, K.M.; family members of K.M.; individuals from Family
Services and the Cabinet for Health and Family Services; a representative from the
Louisville public school system; and the lead detective on the case from the Crimes
Against Children Unit. The only witness with direct knowledge of the alleged
abuse was K.M. No physical evidence was collected from the scene of the alleged
crimes, and no medical evidence was presented at trial.
At his first trial, Trumbo’s defense was complete innocence. He
presented testimony that G.M., the biological father of K.M., had pressured K.M.
into making false allegations against Trumbo. Defense witness M.A., a close
friend and neighbor of K.M., testified that K.M. told her that her dad wanted her to
“say stuff about [Trumbo].” M.A. also testified that K.M. said that her father told
her if she said the things he told her to, life would become “happily ever after like
before he [Trumbo] came along.” Trumbo’s defense counsel also presented the
testimony of R.A., M.A.’s mother and also a neighbor of K.M. During her direct
examination, R.A. testified that K.M. had also told her that her biological father
-2-
wanted her to make false allegations against Trumbo. K.M.’s biological father also
testified and on cross-examination stated that he would “do whatever it takes to
keep those children away from [Trumbo].” As stated above, Trumbo’s first trial
resulted in a mistrial due to a hung jury.
Trumbo’s case was retried eleven months later, and Trumbo was
represented by the same defense attorney. At the second trial on May 16, 2006, the
Commonwealth presented the same evidence, with the exception of L.T., K.M.’s
biological mother, and presented the same theory of the case. The Commonwealth
argued that Trumbo abused K.M. when nobody else was around and would keep
her home from school to abuse her. The Commonwealth alleged that K.M. did not
report the abuse because she feared Trumbo.
At the second trial, Trumbo’s defense was again that he was
completely innocent and had been falsely accused of the abuse. However,
Trumbo’s defense counsel did not put on any testimony regarding the allegations
that K.M.’s biological father pressured her to make false accusations, as was
presented at the first trial. Trumbo’s defense counsel did not present the testimony
of M.A. or R.A., K.M.’s neighbors, and did not cross-examine K.M.’s biological
father regarding his vow to keep his children away from Trumbo. On May 18,
2006, the jury returned a verdict of guilty.
On May 22, 2006, Trumbo opted to plead guilty rather than proceed to
the penalty phase of his trial. Trumbo entered a guilty plea to all five convictions
in exchange for a recommendation of a total sentence of twenty-five years. During
-3-
his plea colloquy, Trumbo indicated that he was satisfied with the advice of his
trial defense counsel, wished to plead guilty, and waived his right to an appeal.
The trial court sentenced Trumbo in accordance with the plea agreement on July
17, 2006.
On January 4, 2007, Trumbo filed a pro se motion to vacate the
judgment pursuant to CR 60.02(b)(e) and (f). On June 6, 2007, Trumbo filed a pro
se RCr 11.42 motion and an accompanying memorandum. On October 26, 2007,
Trumbo, through counsel, filed a supplemental memorandum of law and facts in
support of his pro se RCr 11.42 motion and a motion for an evidentiary hearing. In
an opinion and order entered on March 13, 2008, the trial court noted that trial
defense counsel had represented Trumbo’s interests “with all the skill and tact of a
seasoned, well-qualified defense attorney” and denied both Trumbo’s RCr 11.42
and CR 60.02 motions without an evidentiary hearing. Trumbo now appeals the
trial court’s denial of his RCr 11.42 motion. Because we believe Trumbo was
entitled to an evidentiary hearing in this case, we vacate and remand for
proceedings consistent with this opinion.
On appeal, Trumbo presents two arguments. First, Trumbo argues
that he received ineffective assistance of counsel during his second trial based on
his attorney’s failure to fully prepare for trial and to present testimony of two
defense witnesses. Second, Trumbo argues that he received ineffective assistance
of counsel when his attorney failed to adequately cross-examine K.M.’s biological
father about statements involving his children’s safety. Trumbo argues that the
-4-
trial court erred in denying his RCr 11.42 motion without holding an evidentiary
hearing to determine why his attorney did not present the same evidence at his
second trial.
In support of his arguments on appeal, Trumbo argues that at his first
trial, his attorney presented the testimony of K.M.’s neighbors, M.A. and her
mother, R.A., who both testified that K.M. told them that her father had asked her
to lie about Trumbo sexually abusing her in order to keep her away from Trumbo.
Trumbo argues that this specific evidence created reasonable doubt as to his guilt
in some of the juror’s minds and resulted in a hung jury. Trumbo argues that his
trial counsel failed to obtain copies of trial transcripts from his first trial and failed
to refresh himself on the facts of the case to ensure presentation of Trumbo’s best
defense. Trumbo contends that as a result of his counsel’s failure to prepare, trial
counsel did not effectively utilize M.A. and R.A. as defense witnesses in his
second trial. Trumbo argues that his counsel’s actions prejudiced him because
there was a reasonable probability that at least one juror would have struck a
different balance in determining guilt or innocence had they heard the testimony
presented by the two witnesses.
Trumbo argues that whether or not counsel conducted adequate
investigation and preparation cannot be resolved from the face of the record, nor
can the record reflect why his counsel failed to call M.A. and R.A. as witnesses
during his second trial. Trumbo claims that the trial court therefore erred in
-5-
denying him an evidentiary hearing under Fraser v. Commonwealth, 59 S.W.3d
448 (Ky. 2001).
Further, Trumbo argues that his trial counsel failed to effectively
cross-examine K.M.’s father, who Trumbo claims had motivation to prompt K.M.
to make false allegations against him. While testifying at Trumbo’s first trial,
K.M.’s father testified on cross-examination that he told various people he would
“do whatever it takes to keep those children away from [Trumbo].” However,
during the second trial, this testimony was not elicited by defense counsel.
Trumbo argues that had this information been presented to the jury, it would have
strengthened the credibility of M.A. and R.A. and supported the theory that K.M.’s
father had pressured K.M. into making false allegations against Trumbo so that her
father could retain custody of K.M. and her brother, L.G. Trumbo argues that had
this testimony been elicited at his second trial, there is a reasonable probability that
the jury would have found that he was not guilty of the charges, based on the hung
jury in his first trial.
The Commonwealth argues that Trumbo received effective assistance
of counsel during both trials and that Trumbo was not entitled to an evidentiary
hearing on his RCr 11.42 motion because Trumbo’s allegations could be easily
refuted by the record. The Commonwealth contends that the record reflects that
K.M.’s father had already obtained custody of his children as a result of Trumbo’s
physical abuse of them and that K.M.’s father would have therefore had no reason
-6-
to lie or to pressure K.M. into making false allegations in order to obtain custody
of his children.
The Commonwealth also argues that Trumbo’s defense at his second
trial was the same as his defense during the first trial, that K.M.’s allegations were
all lies and that he did not know why she would tell such lies. According to the
Commonwealth, Trumbo should have spoken up during the second trial had he
wanted his counsel to elicit such information during his defense. The
Commonwealth argues that the record reflects that Trumbo’s defense counsel was
prepared and sought out transcripts from the first trial, which were utilized for
objections and other purposes. Finally, the Commonwealth argues that K.M.’s
father’s testimony dispelled the theory that he pressured K.M. to lie in order to
gain custody of his children because the testimony reflected that the children had
already been placed in his custody prior to the allegations of sexual abuse.
However, in the same breath, the Commonwealth argues that Trumbo’s defense
counsel did not question K.M.’s father and other defense witnesses about the
physical abuse and K.M.’s father’s pressure on K.M. to lie because counsel did not
want to open the door to highlighting Trumbo’s history of physical abuse.
On appeal we review the trial court's denial of an RCr 11.42 motion
for an abuse of discretion. The test for abuse of discretion is whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5
Am.Jur.2d Appellate Review § 695 (1995)).
-7-
An ineffective assistance of counsel claim is assessed under the
Strickland two-prong test. As set out in Bowling v. Commonwealth, 80 S.W.3d 405
(Ky. 2002):
[t]he Strickland standard sets forth a two-prong test for
ineffective assistance of counsel: First, the defendant
must show that counsel's performance was deficient.
This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show
prejudice, the defendant must show there is a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is the probability sufficient to
undermine the confidence in the outcome. Id. at 694, 104
S.Ct. at 2068, 80 L.Ed.2d at 695.
Bowling at 411-412.
A movant under RCr 11.42 is only entitled to an evidentiary hearing
“if there is a material issue of fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the record.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). If an evidentiary hearing is
required, the defendant is indigent, and the defendant has specifically requested in
writing the appointment of counsel, the trial court must appoint counsel. Fraser at
453.
-8-
In the instant case, both the Commonwealth and the trial court rely on
nothing more than mere speculation to surmise why Trumbo’s defense counsel did
not utilize the testimony of R.A. and her daughter, M.A., or cross-examine K.M.’s
father because he did not want to call attention to Trumbo’s previous criminal
record or history of physical abuse. We do not believe the trial court can
conclusively make such a determination from the face of the record. In light of the
fact that this testimony was presented at the first trial which resulted in a hung jury,
it seems reasonable and just to make an evidentiary inquiry as to why this
testimony was not presented again at the second trial. Given that there was other
evidence on the record of Trumbo’s alleged physical abuse of K.M. and her
brother, L.G., we can not accept the Commonwealth or the trial court’s reasoning
to forego an evidentiary hearing in this case on grounds that such defense
testimony was not presented because of the risk of making Trumbo look bad in
front of the jury.
Given these circumstances, we find that an evidentiary hearing was
warranted to set forth more than mere speculation on the record as to Trumbo’s
counsel’s motivations in not introducing the seemingly favorable testimony
discussed herein at Trumbo’s second trial. Upon review of this testimony, only
then do we believe the trial court can make an informed determination as to
whether Trumbo’s attorney rendered ineffective assistance of counsel under
Strickland. Accordingly, we reverse and remand with instructions that the
-9-
Jefferson Circuit Court conduct an evidentiary hearing on Trumbo’s ineffective
assistance of counsel claims under RCr 11.42.
TAYLOR, JUDGE, CONCURS.
HENRY, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
HENRY, SENIOR JUDGE, DISSENTING: I respectfully dissent.
The trial court thoroughly and carefully reviewed Trumbo’s post-conviction
motion. The motion was properly denied and the trial court’s ruling should be
affirmed.
As the trial court pointed out at page 10 of its closely-reasoned 13page Opinion and Order, Trumbo’s quarrels are with issues connected with the jury
trial. They are therefore largely irrelevant, because Trumbo pleaded guilty. After
the jury found him guilty during the guilt phase of the trial, he withdrew his plea of
not guilty and entered a guilty plea in exchange for the Commonwealth’s
recommendation of a sentence of 25 years’ imprisonment. Trumbo does not
challenge the voluntariness or validity of his guilty plea. It is well established in
Kentucky law that a valid guilty plea constitutes a waiver of all defenses except
that the indictment charged no offense. Sanders v. Commonwealth, 663 S.W.2d
216, 218 (Ky. App. 1983).
When a defendant has entered a plea of guilty, reviewing courts use a
standard slightly different from the usual Strickland review to determine whether
counsel’s performance was deficient:
-10-
A showing that counsel’s assistance was ineffective in
enabling a defendant to intelligently weigh his legal
alternatives in deciding to plead guilty has two
components: (1) that counsel made errors so serious that
counsel’s performance fell outside the wide range of
professionally competent assistance; and (2) that the
deficient performance so seriously affected the outcome
of the plea process that, but for the errors of counsel,
there is a reasonable probability that the defendant would
not have pleaded guilty, but would have insisted on going
to trial.
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986) (citations
omitted). Trumbo has not come close to making the showing required by Sparks in
this case. For one thing it is hard to imagine Trumbo making a convincing
showing that he “would have insisted on going to trial” but for his counsel’s errors
when he has already had not one, but two trials, the second of which finished
moments before his plea.
The majority holds that Fraser v. Commonwealth, 59 S.W.3d 448
(Ky. 2001), requires a hearing in this case, concluding that the trial court “rel[ied]
on nothing more than mere speculation” to assess why Trumbo’s counsel did not
call certain witnesses at the second trial. In the first place, a Fraser analysis in this
case is unnecessary because Trumbo waived the argument when he pleaded guilty.
The guilty plea record refutes Trumbo’s evidentiary arguments. But even if there
were no guilty plea, I must respectfully disagree that it amounts to an abuse of
discretion for the trial court to decline to hold an RCr 11.42 hearing when it is clear
that sound strategic reasons supported trial counsel’s decision regarding which
witnesses to call and what evidence to introduce. The trial court was in the best
-11-
position to judge such matters. This case does not raise the specter of secret plea
agreements and off-the-record shenanigans the Fraser court tried to set right. Our
Supreme Court has said that “RCr 11.42 motions attempting to denigrate the
conscientious efforts of counsel on the basis that someone else would have handled
the case differently or better will be accorded short shrift in this court.” Moore v.
Commonwealth, 983 S.W.2d 479, 485 (Ky. 1998) (citation omitted). Because
Trumbo’s allegations of error are clearly refuted by the record of his valid guilty
plea and because it is unnecessary to remand this case for a hearing, I respectfully
dissent.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Melanie Ann Foote
Kathleen K. Schmidt
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
-12-
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.