PORTER (RONALD LEE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000895-MR
RONALD LEE PORTER, SR.
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 05-CR-00073
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: Appellant, Ronald Lee Porter, Sr. (“Porter”), appeals a judgment
of the Greenup Circuit Court denying his motion pursuant to Kentucky Rules of
Criminal Procedure (“RCr”) 11.42 to vacate or set aside his sentence of five-years’
imprisonment for first-degree sexual abuse. Finding no error, we affirm the April
10, 2008 judgment.
FACTUAL BACKGROUND AND PROCEDURE
On January 22, 2005, Porter’s nine-year-old stepdaughter alleged that
he fondled her vaginal area. James Lyon, Jr. (“Lyon”) represented Porter at a jury
trial in 2006, wherein a jury found him guilty of first-degree sexual abuse and
recommended a sentence of five-years’ imprisonment. On June 15, 2006, the
Greenup Circuit Court entered final judgment and sentence consistent with the
jury’s recommendation.
After obtaining new counsel, Porter appealed his conviction to this
Court, which affirmed the trial court’s judgment on November 29, 2007. Porter
did not seek discretionary review in the Kentucky Supreme Court. Subsequently
he filed this motion to vacate or set aside his sentence pursuant to RCr 11.42
alleging ineffective assistance of counsel. On April 10, 2008, the trial court denied
the motion following an evidentiary hearing, and this appeal ensued.
ANALYSIS
On appeal, Porter argues that (a) the trial court’s findings concerning
the overall performance of Lyon were clearly erroneous; (b) it is per se ineffective
assistance of counsel to fail to interview witnesses in a child sexual abuse case; and
(c) Lyon was ineffective for failing to obtain and introduce mitigating evidence.
We shall discuss each argument in turn.
As an evidentiary hearing was conducted by the trial court, this Court
must defer to the determinations of fact and witness credibility made by the trial
court. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986). Counsel’s
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performance is presumed competent unless it is shown (1) that counsel’s
performance was deficient, falling outside the range of professionally competent
assistance; and (2) that such deficiency was prejudicial, meaning there is a
reasonable probability that the outcome would have been different but for
counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden is on the movant to overcome
a strong presumption that counsel's assistance was constitutionally sufficient or
that under the circumstances counsel's action might be considered “trial strategy.”
Id. at 689.
A. Trial court’s findings concerning the overall performance of counsel were
not clearly erroneous.
Deferring to the determinations of fact and witness credibility by the
trial court, counsel had several brief pre-trial meetings with Porter, including at
least one forty-five minute office interview, and with the Commonwealth’s
attorney. He prepared for trial by reviewing the discovery materials with Porter,
although he did not formally prepare Porter for direct or cross-examination. He
made objections during the trial, cross-examined witnesses, put on evidence on
behalf of Porter, and made a motion for directed verdict at the close of the
Commonwealth’s case. None of these actions fall outside the range of
professionally competent assistance, and Porter provides no evidence that if
counsel had performed differently, another outcome would have resulted.
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In addition, Porter specifically argues that counsel was deficient for
failing to attack the competency of the juvenile complaining witness, failing to
obtain a second doctor’s opinion, and failing to interview the witnesses. These
arguments will be addressed individually.
The fact that counsel did not attack the competency of the juvenile
complaining witness does not rise to the level of deficient performance for the
following two reasons. First, the competency issue was raised by Porter on direct
appeal. A movant under RCr 11.42 cannot raise issues that were raised and
decided on direct appeal. Wilson v. Commonwealth, 975 S.W.2d 901, 903 (Ky.
1998). Another panel of this Court previously found that the trial court had
questioned the complaining witness to determine her competency and she knew the
difference between a true story and a false story. She also acknowledged that she
understood her responsibility to tell the truth and was able to recount the details of
the alleged sexual abuse. “It is not the purpose of RCr 11.42 to permit a convicted
defendant to retry issues which could and should have been raised in the original
proceeding, nor those that were raised in the trial court and upon appeal considered
by this court.” Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1991),
quoting Thacker v. Commonwealth, 476 S.W.2d 838 (Ky. 1972). Second, under
the circumstances, there is no indication that had counsel attacked the competency
of the complaining witness in a pre-trial motion, a different outcome would have
resulted. Leonard v. Commonwealth, 279 S.W.3d 151, 157 (Ky. 2009) (a palpable
error analysis is not dispositive of an ineffective assistance of counsel claim.).
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Counsel was not deficient for failing to obtain a second opinion
concerning the examining doctor’s report and conclusion. First, Porter fails to cite
where in the record this argument was presented to the trial judge. “[E]rrors to be
considered for appellate review must be precisely preserved and identified in the
lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). A conviction for
first-degree sexual abuse can be supported solely by the testimony of the
complaining witness. Bills v. Commonwealth, 851 S.W.2d 466, 472 (Ky. 1993).
The examining physician testified at trial that a lack of physical evidence was not
inconsistent with a mere touching of the prosecuting witness’s private areas.
Porter provides no evidence as to how a second opinion would have been
beneficial. Speculation that a second opinion might have been beneficial cannot
form the basis of a successful claim of ineffective assistance of counsel. Moore v.
Commonwealth, 983 S.W.2d 479, 486-487 (Ky. 1998).
Porter also argues that counsel failed to interview witnesses. Lyon
had been provided the witnesses’ statements by the Commonwealth and he
reviewed them with Porter on at least one occasion. He also asked Porter if he had
witnesses he wanted to call for trial that would support his theory, but Porter said
that he had none. “Decisions relating to witness selection are normally left to
counsel's judgment and this judgment will not be second-guessed by hindsight.”
Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000), overruled on other
grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005). On the morning of
the trial, Porter told counsel that he wanted to call two witnesses to testify about
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previous sexual abuse allegations made against him regarding a different child.
Counsel said he felt such testimony would hurt Porter more than help him. This
was a tactical decision by counsel not to call those witnesses. Furthermore, Porter
provides little evidence that a different outcome would have resulted had counsel
interviewed the witnesses. Porter states that counsel may have found incentives for
the witnesses to lie, but this does not overcome the strong presumption that
counsel’s assistance was sufficient. Therefore, the hearing judge’s findings
concerning the overall performance of counsel were not clearly erroneous.
B. It is not “per se ineffective assistance of counsel” to fail to interview
witnesses in a child sexual abuse case.
On appeal, Porter now argues that it is “per se ineffective assistance
of counsel” to fail to interview witnesses in a child sexual abuse case. This theory
of “per se ineffective assistance of counsel” was not presented to the trial court.
“[A]ppellants will not be permitted to feed one can of worms to the trial judge and
another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222
(Ky. 1976). This Court cannot review an alleged error where the theory raised in
trial court differs from the theory raised on appeal. Commonwealth v. Duke, 750
S.W.2d 432, 433 (Ky. 1988). Regardless, even if the argument had been presented
to the trial court, this theory is nothing more than an attempt to circumvent the
universally accepted two-prong test of Strickland, supra. “In order to be
ineffective, performance of counsel must be below the objective standard of
reasonableness and so prejudicial as to deprive a defendant of a fair trial and a
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reasonable result.” Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001).
We have reviewed Porter’s claim of Lyon’s failure to interview witnesses and have
come to the conclusion that this does not rise to the requisite level of ineffective
assistance of counsel.
C. Trial counsel was not ineffective for failing to obtain and introduce
mitigation evidence.
An earlier panel of this Court1 has already stated that, had counsel
presented mitigation evidence, it is unlikely that a different outcome would have
resulted.
The only mitigation evidence we are cited which would
have been presented is that ‘Porter had never been
convicted of a felony; that his criminal record consisted
primarily of traffic offenses – nothing of violence or
mayhem, and certainly nothing to even suggest any
sexual offenses’; and that ‘[h]e maintained two long-term
intimate relationships and raised three children and two
grandchildren.’
... Even if the trial court had sua sponte inquired of Porter
concerning whether he wanted to present mitigation
evidence and Porter had insisted upon presenting the
mitigation evidence identified above, we are persuaded
that there is not a reasonable possibility that the outcome
of his sentence would have been different . . . .
Further, Porter’s claim would necessarily require counsel to prove the
negative – that he had never been charged with a prior sexual offense. Yet the
witness testimony he sought to introduce included unproven allegations of prior
sexual misconduct involving another party. The decision not to introduce evidence
1
Porter v. Commonwealth, 2006-CA-001473-MR (2007 WL 4212044 (Ky. App. 2007)).
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of prior, alleged sexual misconduct is clearly a “trial strategy” which we find
reasonable.
Porter also claims that if he had been able to introduce evidence that
he passed a polygraph during the sentencing phase, the jury may have given him a
lesser sentence. As Porter never submitted to a polygraph examination, the
possibility of favorable results are purely speculative, and such speculation cannot
form the basis of a successful claim of ineffective assistance of counsel. Moore,
supra. Additionally, Porter again asks us to consider a possible course of conduct
without showing where in the record such an argument was preserved for appellate
review. Furthermore, the results of polygraph testing are considered unreliable and
are, therefore, inadmissible in Kentucky. Morton v. Commonwealth, 817 S.W.2d
218, 222 (Ky. 1991). “We have not only excluded the evidence of polygraph
examiners, but excluded mention of the taking of a polygraph, the purpose of
which is to bolster the claim of credibility or lack of credibility of a particular
witness or defendant.” Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984).
Counsel cannot be deemed ineffective for failure to obtain evidence that would not
have been admissible.
For the foregoing reasons, we hold that the Greenup Circuit Court
properly denied Porter’s RCr 11.42 motion. Therefore, the judgment of the
Greenup Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lloyd E. Spear
Vanceburg, Kentucky 41179
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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