CONLEY (JUSTIN KEITH) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 30, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001328-MR
JUSTIN KEITH CONLEY
v.
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIM C. CHILDERS, JUDGE
ACTION NO. 05-CR-00010
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND DIXON, JUDGES; GRAVES,1 SENIOR JUDGE.
ACREE, JUDGE: Justin Conley, convicted of murdering his girlfriend, filed a
motion pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 alleging
ineffective assistance of counsel and seeking to have his conviction set aside.
Specifically, Conley claims a conflict of interests arose after one of his trial
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Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute
21.580.
attorneys made a disparaging remark about a prosecution witness that was heard by
members of the jury. Conley claims the attorney’s desire to avoid sanctions for
contempt caused her, along with co-counsel, to fail to move for a mistrial and to
waive Conley’s right to be present at a hearing without his knowledge. Because
we see no reasonable possibility that the outcome of his trial would have been
different absent counsel’s unprofessional behavior, the trial court is affirmed.
Conley was charged with the shooting death of his eighteen-year-old
girlfriend. At trial, he was represented by two attorneys.2 Conley admitted
shooting his girlfriend, but claimed he was insane at the time. The victim had been
deaf, and one of her friends, a witness for the prosecution, was also deaf.
The cross-examination of this witness was very contentious. At the
conclusion of the witness’ testimony, Conley’s attorney expressed her frustration
with how the cross-examination went by saying she would like to take the witness
“out back and teach her a lesson.” Apparently, counsel intended only her client to
hear the remark, but members of the jury overheard it, as well. In all, eight jurors
heard the remark, and those eight communicated the comment to the other four
jurors. The bailiff observed nine jurors discussing the comment during a
subsequent smoking break.
The trial court held a hearing to determine whether Conley’s counsel’s
comment would cause any prejudice to her client. The trial court questioned each
of the jurors, and several expressed the opinion that Conley’s counsel’s conduct
2
Conley is now represented by different counsel.
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was rude, unprofessional, and inappropriate. Only one juror, however, reported he
would be negatively influenced by the comment. He was immediately excused
from further service on the case. Neither of Conley’s attorneys moved for an
admonition or a mistrial, and Conley was not present during the hearing.
At the conclusion of the trial, the jury found Conley guilty of murder,
tampering with physical evidence, first-degree assault, and third-degree assault.
He was sentenced to life imprisonment. The Kentucky Supreme Court affirmed
the conviction on direct appeal.
Conley filed a subsequent RCr 11.42 motion asking the trial court to
set aside his conviction. The trial court held an evidentiary hearing before denying
Conley’s post-conviction motion. This appeal followed.
To prevail on a claim of ineffective assistance, Conley must show
both that his attorney’s performance was deficient and that, but for counsel’s
deficient performance, there is a reasonable probability that the outcome of his trial
would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
In evaluating this matter, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id at
2065. We must begin the analysis by examining the evidence presented at
Conley’s trial.
At trial, Conley admitted to shooting the victim, but elected to pursue
an insanity defense. Therefore, the question of prejudice is confined to whether
trial counsel’s alleged deficiencies prejudiced the jury on the issue of insanity. In
-3-
an unpublished opinion affirming Conley’s conviction, the Kentucky Supreme
Court summarized his defense as follows:
On December 17, 2004, Appellant shot and killed
his girlfriend, Jessica Newsome. The murder came five
days after Appellant claimed he received a spiritual
revelation from God while deer hunting. The divine
message warned him that the end of the world was near
and that he needed to save his family and friends.
Appellant’s religious experiences darkened over
the next several days as he reported seeing demons at
various places in possession of people he knew. He even
reported seeing horns growing out of the head of his
girlfriend, and also believed that demons were after him.
On the morning of the murder, Appellant ran the
victim’s brother from his house because “the devil had
possessed him.” He then shot Jessica and her dog, killing
them both. According to a statement he later made,
Appellant shot Jessica because he believed she was
possessed by demons.
Conley v. Commonwealth, 2007 WL 2404510, No. 2006-SC-000427-MR (Ky.
Aug. 23, 2007).3
Because Conley chose to present an insanity defense, he was required
to undergo a psychiatric evaluation. The psychiatrist and the psychologist who
examined him opined Conley was not insane at the time of his girlfriend’s murder.
Rather, they determined his criminal behavior was related to his use of illegal
drugs and not schizophrenia or psychosis. They also observed Conley behaving in
ways which suggested he was malingering or posturing to some extent.
3
The Supreme Court affirmed Conley’s conviction on all charges; however, the opinion reversed
the portion of the trial court’s judgment sentencing him to life with a term of years to run
consecutively as being in violation of state law.
-4-
As further proof Conley was not insane at the time of the murder, the
Commonwealth introduced evidence that he had threatened the victim and
committed acts of violence against her over a period of time lasting more than a
year prior to her murder. This evidence was presented to the jury to rebut Conley’s
defense, which included his assertion that he harbored no ill intentions toward the
victim prior to his sudden mental breakdown.
Conley presents four claims of ineffective assistance on appeal. He
argues his attorneys rendered ineffective assistance when they failed to move for a
mistrial or request an admonition after members of the jury overheard his counsel’s
comment about the witness. Second, he claims that, without his consent, his
counsel waived his right to be present at the hearing in which the trial court
questioned jurors regarding the impact of counsel’s behavior. Conley also argues
that his counsel’s unprofessional conduct created a conflict between his counsel’s
interest in his defense and her own interest in avoiding contempt sanctions.
Finally, Conley contends that, even if none of these individual acts was prejudicial,
their cumulative effect was.
The trial court found Conley’s attorneys did not render ineffective
assistance when they failed to request a mistrial after making the comment about
the Commonwealth’s witness. The witness, Tabitha Stacy, was a friend of the
victim and was called to testify about Conley’s prior bad acts toward his deceased
girlfriend. During Stacy’s testimony, members of the jury observed Conley’s
counsel laughing, smirking, and rolling her eyes at the witness. It was as Stacy
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was being excused that the offending comment was expressed to Conley by his
counsel.
On direct appeal, the Kentucky Supreme Court reviewed the issue of
whether Conley was denied a fair and impartial trial due to counsel’s conduct
under the palpable error standard. It found the trial court acted “in an exemplary
manner” in interviewing the jurors individually in chambers and excusing the sole
juror who stated he would be biased against Conley. Conley, supra, at *3. We
recognize that palpable error review on direct appeal does not preclude Conley
from raising an ineffective assistance claim, based on counsel’s failure to request a
mistrial, in a subsequent RCr 11.42 proceeding. Leonard v. Commonwealth, 279
S.W.3d 151, 157 (Ky. 2009). However, in this case, the Supreme Court found
Conley’s claim that the remaining jurors were prejudiced, despite their testimony
to the contrary, to be speculative. We agree. The Supreme Court has held that
prejudice cannot be established by mere speculation. Kinser v. Commonwealth,
741 S.W.2d 648, 653 (Ky. 1987). Because Strickland requires a showing of
prejudice in order to successfully advance a claim of ineffective assistance of
counsel, the failure of Conley’s trial attorneys to request a mistrial does not entitle
him to RCr 11.42 relief.
Conley’s second argument is that he received ineffective assistance of
counsel when one of his trial attorneys waived his presence at the hearing in which
jurors were questioned about his other trial attorney’s comment. In support of the
issue, Conley relies on his right, pursuant to RCr 8.28(1), to be present at every
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critical stage of the proceeding against him. However, whether Conley’s absence
from the hearing was a violation of his right to such a degree as to require reversal
of his conviction is a matter that could and should have been raised, as palpable
error, on direct appeal. It was not. Failure to raise an issue that could have been
raised on direct appeal precludes it from consideration in an RCr 11.42 proceeding.
Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky. 1998).4 Consequently,
rather than focusing on Conley’s right to be present at the hearing, our inquiry
must focus on whether his counsel’s decision to waive his presence constituted
ineffective assistance.
Conley contends he was not consulted prior to his counsel’s waiver of
his presence during the hearing. At the evidentiary hearing on the RCr 11.42
motion, Conley’s counsel testified that, while he lacked a specific memory of
advising Conley of his right to be present at the hearing and obtaining his waiver, it
would have been his practice to do so. Further, as a matter of strategy, Conley’s
counsel testified that he believed members of the jury would be more candid in
Conley’s absence. Conley argues that his own more specific memory must be
taken as uncontroverted evidence that he did not waive his presence at the hearing.
The trial court found that Conley’s allegation of ineffective assistance
of counsel did not meet either prong of the Strickland test. First, it determined that
4
Leonard, 297 S.W.3d at 156-57, overruled the portion of Sanborn which prevented issues
considered under the palpable error standard on direct appeal from being considered in the
context of an ineffective assistance of counsel inquiry; however, it left intact the holding, under
Sanborn and other cases, that issues which could have been raised on direct appeal, but were not,
are precluded from RCr 11.42 review.
-7-
Conley’s counsel’s conduct in this regard was not deficient. The trial court further
found that, even if trial counsel’s performance had been deficient, Conley failed to
identify any prejudice which he suffered thereby. We agree with the trial court’s
assessment, noting it would appear Conley’s counsel determined, as a matter of
strategy, to obtain and waive his client’s presence at the hearing. This Court will
not attempt to second-guess trial counsel’s valid strategic decisions. Moore v.
Commonwealth, 983 S.W.2d 479, 485 (Ky. 1998). Coupled with the lack of
prejudice, we find Conley has not proven ineffective assistance on the part of his
trial counsel.
Conley also argues that the cumulative effect of his trial counsels’
failings caused him prejudice. The trial court did not make any factual findings
with regard to this argument in its order overruling Conley’s RCr 11.42 motion.
Kentucky Rule of Civil Procedure (CR) 52.04 prohibits appellate courts from
reversing a final judgment on grounds that the trial court failed to make findings of
fact on an essential issue unless the appellant makes a written request for such
findings or files a motion pursuant to CR 52.04. Nevertheless, we do not believe
that, even taken together, the alleged deficiencies in Conley’s counsel’s conduct
constituted ineffective assistance of counsel.
For the foregoing reasons, the judgment of the Knott Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph Lane
Prestonsburg, Kentucky
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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