HESTER (ANGELO KREE) VS. COMMONWEALTH OF KENTUCKY

 Annotate this Case
Download PDF
RENDERED: OCTOBER 30, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001969-MR ANGELO KREE HESTER v. APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA R. GOODWINE, JUDGE ACTION NO. 04-CR-00300 COMMONWEALTH OF KENTUCKY APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: CAPERTON, DIXON AND TAYLOR, JUDGES. CAPERTON, JUDGE: Angelo Kree Hester appeals from the Fayette Circuit Court’s denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for an evidentiary hearing and post-conviction relief. Hester argues that the allegations contained in his motion entitled him to an evidentiary hearing and to post-conviction relief. The trial court disagreed and denied his motion without an evidentiary hearing. After a review of the record, we find that not all of Hester’s allegations can be conclusively resolved from the record, specifically his allegation that counsel failed to call alibi and mitigating witnesses. Accordingly, we must reverse and remand back to the trial court for an evidentiary hearing on whether the failure to call either alibi or mitigating witnesses rises to the level of ineffective assistance of counsel. The facts that give rise to the appeal now before this Court may be briefly summarized. Hester was convicted and subsequently sentenced by a jury for one count of first-degree robbery, one count of first-degree burglary, and one count of second-degree persistent felony offender for his actions in a home invasion on Manhattan Drive in Lexington. Our Kentucky Supreme Court affirmed Hester’s conviction on direct appeal in the unpublished case, Hester v. Commonwealth, 2006 WL 2707441 (Ky. 2006). Hester then filed his RCr 11.42 motion seeking post-conviction relief and an evidentiary hearing. Hester alleged that counsel was ineffective as counsel by failing: (1) to move for a severance of the co-defendant, Adrian Brown, after the court agreed to limit the extent of the cross-examination of his brother, Arian Brown, who was testifying against all three defendants, and (2) to call Hester’s alibi and mitigating witnesses. Hester alleges error on the part of the trial court in not conducting an evidentiary hearing on these issues. Below we have summarized the trial court’s review of the record and the rationale used in denying Hester’s motion. Upon review of the record the trial court concluded that Hester’s allegations did not merit an evidentiary hearing as -2- Hester's claims could be resolved from the record and that the allegations were insufficient on their face to meet the burden required by an RCr 11.42 motion. First, on the issue of severance of the co-indictee, the trial court found that the original indictment charged eight people with crimes resulting from two home invasions: the Manhattan Drive invasion, for which Hester was convicted, and one for which he was not. Only two people (Adrian Brown and Arian Brown) were charged with both invasions. Next, the trial court reviewed the record and noted that Arian Brown entered into a plea agreement encompassing both indictments, which included his agreement to testify as a witness at trial. The trial court limited the crossexamination of Arian Brown.1 The trial court, in limiting such cross-examination, narrowed Arian’s testimony at trial to only the Manhattan Drive home invasion, thereby excluding the other home invasion. While Hester’s counsel desired to investigate Arian Brown’s full motivation to testify at this trial, i.e., his plea deal that encompassed both home invasions, the trial court disallowed such questioning of Arian Brown to prevent prejudice to Hester. The issue of the limitation of cross-examination was addressed on direct appeal and the trial court was affirmed. The trial court reasoned that, since the limitation of cross-examination was affirmed on appeal and, since severance was not necessary because of the limitation placed on cross-examination, then 1 We note that the trial court’s order discusses a motion made by counsel to sever the charges, which we believe references a motion to separate the two home invasion charges. -3- failure of Hester’s trial counsel to sever could not serve as a basis for Hester’s RCr 11.42 motion. Moreover, the trial court concluded that even if this issue had not been addressed on direct appeal, that the issue was rendered moot by the trial court’s limitation of cross-examination of Arian Brown in order to prevent prejudice to Hester. The trial court found that Hester failed to present any evidence that if Adrian Brown’s trial had been severed that the result would be different. Thus, the trial court overruled Hester’s RCr 11.42 motion on this issue. Next, the trial court addressed Hester’s argument that counsel failed to call alibi and mitigating witnesses. Hester alleged in his RCr 11.42 motion that his brother would have testified that instead of Hester being at the home invasion, the two were “drinking and getting high.” Hester also stated he gave the last known address of two women and another man who were also at his apartment. The trial court concluded that counsel’s failure to call these witnesses was trial strategy and that Hester failed to show how this testimony would have compelled an acquittal, given that Hester testified in his own defense that he was with his brother and not at the crime scene. As to the alleged ineffective assistance of counsel for failing to call Hester’s mitigating witnesses, to include his family members and probation officer, the trial court found that Hester’s counsel spoke with these people and decided not to call them. Again, the trial court found this to be trial strategy. Thus, the trial court concluded that Hester failed to rebut the strong presumption that counsel’s -4- performance fell within the wide range of reasonable professional assistance and, thus, was not entitled to an evidentiary hearing nor relief under RCr 11.42. It is from this denial of this RCr 11.42 motion that Hester now appeals. With this in mind we now turn to our established jurisprudence. 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)). 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): The 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. -5- Bowling at 411-412. An RCr 11.42 movant is not entitled to an evidentiary hearing on the motion where the allegations contained in the motion are justiciable by reference to the record. Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001). In Hodge, the Supreme Court of Kentucky held that the dispositive inquiry on the issue of whether a hearing is required is whether the record refutes the allegations raised. In the matter at bar, the record does not conclusively resolve Hester’s claim of ineffective assistance of counsel for failure to call either alibi or mitigating witnesses and, as such, requires an evidentiary hearing. See also Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). In further support for the need of an evidentiary hearing in the matter sub judice, we turn to Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2001). In Norton, our Kentucky Supreme Court reversed and remanded back to the trial court for an evidentiary hearing when the record established that there were multiple witnesses who would help Norton’s defense, which were known to counsel, as they had volunteered to testify and subsequently were not called to testify. The Kentucky Supreme Court reasoned that given the circumstances of the case, there were material issues of fact that could not be determined on the face of the record and, thus, an evidentiary hearing was warranted. We find the reasoning of Hodge and Norton compelling. The record does not resolve the issue of whether or not failure to call either the alibi or the mitigating witnesses was ineffective assistance of counsel. -6- In the case sub judice, Hester alleges that counsel knew of his alibi and mitigating witnesses and they were not called to testify. Without an evidentiary hearing we cannot determine whether or not the failure to call either the alibi or mitigating witnesses was a part of counsel’s trial strategy. As such, we must reverse and remand back to the trial court for an evidentiary hearing on this matter. Accordingly, we reverse and remand to the trial court for an evidentiary hearing on alleged ineffectiveness of Hester’s trial counsel to call the alibi and mitigating witnesses. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Angelo Kree Hester, Pro Se Burgin, Kentucky Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky -7-

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.