MCKEE (PRESTON) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 21, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000684-MR
PRESTON MCKEE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 98-CR-00190
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, MOORE, AND VANMETER, JUDGES.
CAPERTON, JUDGE: The Appellant, Preston Elliot McKee, appeals the April 2,
2009, Findings of Fact, Conclusions of Law and Order of the Fayette Circuit
Court, denying his motion for relief under RCr 11.42 following an evidentiary
hearing. Following a thorough review of the record, the arguments of the parties,
and the applicable law, we affirm.
On February 17, 1998, the Fayette County Grand Jury handed down
Indictment No. 98-CR-190, charging McKee and Charles Michael Kirkland with
capital murder and first degree robbery in the shooting death of Warren Renfro at
Plantation Liquors on March 25, 1997. McKee pled not guilty at arraignment, and
the Commonwealth filed its notice of aggravating circumstances under KRS
532.025. A jury trial was held in Fayette Circuit Court on September 14, 1998.
McKee was convicted of murder and first-degree robbery, for which he was
sentenced to forty-five years in prison, comprised of twenty-five years for the
murder conviction and twenty years for the robbery conviction.
The evidence at trial was that on March 25, 2007, a white man and a
black man entered the Plantation Liquor Store in Lexington, Kentucky. The white
man shot and killed the store clerk, Warren Renfro. During the course of the trial,
the victim’s wife, Donna Renfro, testified that she and the victim owned Plantation
Liquors in the Plantation Shopping Center in Fayette County. Mrs. Renfro stated
that she and her husband had a security camera focused on the front door and a gun
under the counter.
While the entire incident was recorded on store surveillance, the faces
of the two men could not be seen in the video.1 Upon receiving information that a
black man and a white man had committed the robbery and murder, police began
to canvas the local neighborhood for information.
1
The video showed a black man and a white man whose faces could not be seen but whose
stature was described by the trial court as of the same size and build as McKee and Kirkland.
The video, consistent with the evidence at trial that Kirkland was the shooter, showed the gun in
the hand of the white individual.
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Officers Alvin E. Cook and Scott Lynch of the Lexington Police
Department testified that they were dispatched to the scene of the robbery on
March 25, 1997. They arrived on the scene to find the victim being assisted by
firefighters, a loaded pistol on the counter, and a shell casing on the floor.
According to testimony of one of the firefighters on the scene, the victim was
transported to the hospital and later pronounced dead. Firearms examiners testified
at trial as to the trajectory and type of bullet fired from the gun used in the crime.
Sergeant James Curless of the Lexington Police Department testified
that on the day following the murder and robbery, he and other officers conducted
a neighborhood investigation on Dalton Court, which is the street running directly
behind Plantation Liquors. Sergeant Curless stated that he interviewed McKee at
his residence at that time and was told by McKee that he had gotten home from
work at about 12:00 or 1:00 p.m. the previous afternoon. McKee told police that a
friend of his came over and was in and out of his apartment throughout the day.
McKee said that he, however, never left the apartment.
Detective David Lyons of the Lexington Police Department testified
that Kirkland told him that he spent the evening of March 25, 1997, in the
apartment of a friend, talking on the telephone with two women named Stacy and
April and he remained in the apartment after 6:00 p.m. Kirkland denied knowing
anything about the shooting, but stated that he knew the victim kept a gun in the
store and speculated that the victim may have been shot after pulling out the gun.
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Detective Lyons also interviewed McKee, who said he was in his apartment
all evening with a friend the night of the murder and robbery. According to
Detective Lyons, McKee admitted to knowing about the gun that Renfro kept
under the counter at the store, but denied that he entered the store that night.
Sergeant Mark Bernard of the Lexington Police Department testified
that McKee’s apartment on Dalton Court was directly behind the liquor store, and
that a person could walk from the store to the apartment in less than a minute.
Sergeant Barnard also played the video surveillance tape of the robbery and
confirmed that it did not have audio. Sergeant Barnard stated that when he
interviewed Kirkland on October 21, 1997, Kirkland stated that he was in a
friend’s apartment all night on the evening of the murder and robbery. Sergeant
Barnard stated that in a later interview, Kirkland changed his story and said that
Bush picked him and a friend up that night, and that Kirkland waited in the car
while Bush and a friend committed the robbery and murder at the liquor store.
Kirkland stated that Bush was driving a gray Lincoln Continental, “the same car he
has now.” Sergeant Barnard stated that when he told Kirkland that Bush was in
Mt. Sterling at the time of the murder and robbery, Kirkland stated that Bush got to
come home on the weekends. Sergeant Barnard stated that when he informed
Kirkland that Bush did not get the Lincoln until July of 1997, Kirkland became
very upset, insisted that he was telling the truth, and returned to the story that he
had never left his girlfriend’s apartment that evening.
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Sergeant Barnard also interviewed Bush and McKee. Sergeant
Barnard stated that Bush informed him that McKee had bought a gun for $45.
Sergeant Barnard testified that when he interviewed McKee in December of 1997,
McKee initially denied leaving his apartment on the evening of the murder and
robbery. McKee subsequently changed his story, admitting that he was in the
liquor store when the murder and robbery occurred but denying that he was the one
who had the gun. Sergeant Barnard stated that McKee told him that he went into
the store intending to commit a robbery and that Renfro was not supposed to get
shot. According to Sergeant Barnard, McKee was visibly upset and crying.
McKee stated that it was his friend who had the gun, that his hands were empty,
and that he did not commit the murder.
McKee’s girlfriend, April Ward, testified that she spoke both with
McKee and Kirkland on the telephone the night Warren Renfro was shot and killed
and that she also spoke on the telephone with her friend Stacy Smith. Ward stated
that she got upset that night because Kirkland told her that a friend had run in, out
of breath, and said that Warren Renfro had been shot. Ward stated, however, that
Kirkland then told her he was only joking. Ward testified that McKee later told
her that he was one of the two men who went into the liquor store but that he was
not the shooter.
Kirkland’s former girlfriend, Stacy Smith, testified that Kirkland told
her that he waited in Bush’s car while Bush and another person robbed and killed
Warren Renfro. Bush himself testified that he was living at Hillcrest Hall, a
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residential chemical dependency treatment center in Mount Sterling, on March 25,
1997. This was confirmed by Cheryl Hall, an office manager at Hillcrest Hall.
Bush acknowledged knowing both McKee and Kirkland, and testified that
Kirkland told him that he and another person “hit” the liquor store. As to the
shooting of Renfro, Bush stated that Kirkland told him, “If I told you who shot
him, I’d go to jail.”
Stacy Smith’s mother, Susan Martin, testified that after Kirkland was
interviewed by police in October of 1997, he claimed to have seen a videotape of
the robbery which also had an audio track. Kirkland told Martin that on the tape,
he saw the victim reach for a gun, and as the victim came up, one of the robbers
hollered, “Gun!” Martin stated that at that point, Kirkland told her, “It was him or
me.” Nevertheless Martin stated that at another time, Kirkland told her that he did
not commit the crime but knew who did, and that he was waiting outside in a
getaway car.
Brian Kirk, who admitted to being a convicted felon and in prison
with Kirkland, also testified in this matter. He stated that on the night of the
shooting, he was pumping gas at Super America when he saw two people go into
Plantation Liquors, followed by a sound like a box hitting the floor. Kirk looked
up and saw two men running out of the store, one of whom had on dark pants and a
dark hooded sweatshirt, and the other who had on dark pants and a light hooded
sweatshirt. Kirk testified that the man in dark clothing ran out first, and that the
two men ran around the corner of the building past the drive-thru window and
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toward the rear of the store. Kirk testified that he and Gary Chenault, who worked
at Super America and also testified, went over to the liquor store and saw broken
glass on the floor, a gun on the counter and Warren Renfro lying behind the
counter. Kirk testified that subsequently he was in jail with Kirkland. Kirk stated
that when Kirkland found out that Kirk was going to be a witness at trial, he asked
what he was going to say. Kirk stated that he told Kirkland that he could not
identify the two men. Kirkland told Kirk that he had been on the telephone with
his girlfriend at the time of the shooting and was with a friend.
Kirkland was arrested on December 10, 1997. At that time, he gave a
statement to police saying he was involved in the robbery along with McKee and
that he, Kirkland, was the shooter. McKee was thereafter arrested on December
11, 1997, and subsequently indicted for murder and robbery in the first degree on
February 17, 1998. Both Kirkland and McKee gave incriminating statements after
the arrest, although the reading of their rights was not on the tapes of those
statements. McKee’s trial counsel, Gene Lewter did not make a motion to
suppress McKee’s statements. Apparently, when pressed by the trial court on the
matter, Lewter stated that he was not making a motion to suppress because he “had
a discussion with the Commonwealth and she assured [him] that Barnard had read
his rights.”2 On March 20, 1998, the Commonwealth gave notice of aggravating
circumstances and intent to seek the death penalty. As noted, a joint trial began on
September 14, 1998.
2
Trial record, Tape A2, 09/15/1998, 10:30:01-10:30:10.
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In addition to the testimony summarized above, Kirkland testified in
his own defense. He stated that on the night of the murder and robbery, he
borrowed a gun from a friend and entered the liquor store with McKee intending to
commit a robbery. Kirkland stated that Renfro never reached for a gun. Kirkland
stated that his gun went off by accident and that he never intended to shoot Renfro
and denied that he intentionally shot Renfro because Renfro might have recognized
him. He stated that he and McKee ran back to McKee’s apartment after the
robbery. McKee elected not to testify.
After hearing all of the evidence, the jury found McKee guilty of
murder and first-degree robbery. The sentencing phase of the trial began on
September 22, 1998. No mitigating evidence was presented on McKee’s behalf.
While eligible for the death penalty, McKee was instead sentenced to twenty-five
years for murder and twenty years for first-degree robbery. Thereafter, on October
20, 1998, the Fayette Circuit Court entered its final judgment, sentencing McKee
to forty-five years in prison in accordance with the jury verdict. The Kentucky
Supreme Court affirmed the convictions and sentence on September 27, 2001.3
Subsequently, on October 6, 2003, McKee filed a pro se motion to
vacate under RCr 11.42, claiming ineffective assistance of trial counsel. McKee
also moved for appointment of counsel and for an evidentiary hearing. On April
14, 2003, the circuit court entered its order appointing the Department of Public
Advocacy to represent McKee. The trial court entered an opinion and order on
3
See Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001).
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November 9, 2005, denying McKee’s motion. This Court affirmed the trial court’s
denial of RCr 11.42 relief on June 29, 2007. Subsequently, on November 15,
2007, the Kentucky Supreme Court vacated the opinion of this Court and
remanded the case for an RCr 11.42 evidentiary hearing.
That hearing was held by the trial court on March 17, 2009. During
the course of the trial, McKee was represented by Department of Public Advocacy
attorney, Gene Lewter, who had practiced law for approximately 30 years at the
time of the trial. Lewter testified that he had tried dozens of murder cases,
including seventeen capital cases, half of which he had tried prior to McKee’s trial.
Lewter testified that after receiving and reading the file, he would have met with
McKee.4 Lewter did not think he hired an investigator or mitigation specialist but
instead performed the investigation himself. Lewter stated that he chose not to get
a mitigation specialist because that type of witness would normally not be allowed
to testify due to the fact that the information collected is normally considered to be
hearsay. Lewter recalled talking to McKee and to anyone McKee wanted
interviewed. Lewter testified that he met with McKee often before trial.
When questioned as to whether he had moved to suppress McKee’s
statement or had moved to sever the co-defendants, Lewter stated that he could not
recall. He did recall that both defendants had given statements and that typically
those statements would be “Brutonized.”5 Lewter also testified that if he had
4
It is unclear from the record whether Lewter’s statement meant that he specifically recalled
meeting with McKee or if he was simply stating that this was his usual procedure in cases of this
nature.
5
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968).
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grounds he would have filed a motion to suppress McKee’s statement and would
have filed a motion to sever the trials. Lewter testified that he recalled thinking
about filing a motion to sever but explained that sometimes it was better to let the
jury see that one defendant, in this case McKee, was less culpable and to allow the
jury to vent their anger at the shooter, who in this case was co-defendant Kirkland.
Lewter stated that the defense at trial was that McKee was not the
shooter and that it was an accidental shooting, given the fact that the gun went off
shortly after the two defendants entered the liquor store. Lewter recalled that
McKee acknowledged being in the store and that he entered the store with the
intent only to commit a robbery. Lewter testified as to his opinion that the fact that
McKee was on the surveillance video worked to his advantage, because the video
showed that the white co-defendant had the gun in his hand and not McKee.
Lewter further testified that he explained complicity to McKee and that if McKee
had wanted to testify, Lewter would not have gone against his wishes.
April (Ward) Sheffield also testified during the evidentiary hearing.
She stated that she perjured herself as a witness at trial when she implicated
McKee and explained that the police coerced her into making the statement.
Sheffield conceded that she had no evidence of police coercion, that she did not
report any coercion to law enforcement and that she told only her friends about the
alleged coercion.6 Ward stated that she did not contact Lewter or his office.
6
While at first blush Sheffield’s concession that she did not report the coercion would seem
irrational. After additional thought, however, this Court is of the opinion that it would be
somewhat illogical to report coercion by law enforcement officials to other law enforcement
officials.
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During the course of the hearing, Ward testified that she was on the phone with
McKee for four hours on the night of the murder. She stated that while on the
phone with McKee, she heard Kirkland’s mother come into the room where
McKee was and say that they should not go outside because something had
happened at the liquor store. Ward further stated that Kirkland’s mother was drunk
and had purchased alcohol for McKee and Kirkland, who were also drinking.
Ward told the court that she blamed herself for McKee’s imprisonment and felt
that her trial testimony had helped convict him.
Lula Smith, McKee’s grandmother, also testified at the hearing. She
stated that she lived with her son (McKee’s father) and McKee for three years
because McKee’s mother wanted a divorce. She stated that McKee was nine or ten
at the time and that she never had any problems with him being disobedient. She
also testified as to her belief that McKee was very intelligent and that they had a
close family.
McKee himself testified at the evidentiary hearing, stating that he met
with Lewter four times. McKee claimed that Lewter never discussed a theory of
defense with him and did not listen to what he had to say. McKee alleged that he
told Lewter that he was on the phone with his girlfriend at the time of the murder,
but that Lewter claimed he could not find any phone records. McKee stated that
when the police picked him up for questioning, he was in boxers, “somewhat” of a
tee-shirt, no socks, and that the police kept him in a cold room for five to seven
hours while questioning him. McKee also stated that from time to time, he would
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ask the police if he could have something, such as a drink or a blanket, and they
would leave as if to obtain one for him before returning and resuming questioning.
McKee further testified that he never got a chance to tell Lewter what
had happened and that Lewter assumed the surveillance tape was accurate. McKee
stated that he offered other witnesses who were available for Lewter to interview
but Lewter refused. McKee stated that Lewter never explained mitigation to him,
nor told him that his family background should be investigated. McKee claimed
that he told Lewter he wanted to testify. He stated that when Lewter asked him
what he would testify to, McKee explained that “Whatever he [Kirkland] says, I’m
going to tell them he lied.” McKee said that Lewter did not object to the redaction
of the taped statements given by the co-defendants, and that he failed to file a
motion to sever the trials.
McKee also testified concerning his family background, stating that
he was either six, seven, eight, or nine years old when his mother left. McKee
stated that his parents’ divorce did not affect him as a child. He stated that when
he wanted to, he could do above average work in school. McKee stated that he had
half a semester left in high school when he impregnated someone and he then
withdrew from school to help take care of the baby. When asked if he had contact
with his son, McKee explained that he wrote his son every week, told his son that
prison was not where he wanted to be and that he had done things that his son
could not fathom.
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On cross-examination, McKee said that Kirkland’s statement that
Kirkland was in the liquor store was made up because that’s what the police
wanted him to say. McKee stated that he had a good family and that his father had
been a good father. McKee maintained that he was in an apartment on his phone
with his girlfriend when the murder occurred.
Thereafter, on April 2, 2009, the trial court issued a detailed opinion,
again denying RCr 11.42 relief. It is from that order that McKee now appeals to
this Court.
We note at the outset that to prevail on a claim of ineffective
assistance of counsel, a criminal defendant must establish that performance of
counsel was deficient and below the objective standard of reasonableness, and
prejudicial in such as way as to deprive the defendant of a fair trial and a
reasonable result. Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, the
critical issue is not whether counsel made errors, but whether counsel was so
thoroughly ineffective that defeat was snatched from the hands of probable victory.
United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). To prove prejudice
under a Sixth Amendment claim, a defendant must show that but for counsel’s
errors, he or she would not have been convicted. See United States v. Donathan,
65 F.3d 547, 541 (6th Cir. 1995).
When considering a claim of ineffective assistance of counsel, the
reviewing court must consider the totality of evidence before the judge or jury, and
assess the overall performance of counsel throughout the case to determine
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whether the acts or omissions at issue overcome the presumption that counsel
rendered reasonable professional assistance. Kimmelman v. Morrison, 477 U.S.
365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), citing Strickland at 690. A reviewing
court must be highly deferential in scrutinizing counsel’s performance when
attempting to determine whether counsel has been ineffective. See Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
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)). We review this matter in light of the foregoing.
As his first basis for appeal, McKee argues that he received
ineffective assistance of counsel because Lewter failed to investigate the facts and
circumstances surrounding the events and failed to interview key alibi witnesses.
As noted herein, during the course of the evidentiary hearing, Lewter admitted that
he did not hire an investigator to assist him on this case. He did, however, state
that he conducted an investigation himself which included speaking to Ward,
McKee’s girlfriend at the appropriate time. However, to the contrary, Ward denied
that she spoke with Lewter.
In his brief to this Court, McKee states that Ward was arrested with
him and interrogated by the police from four to six hours. According to Ward and
McKee, police threatened to charge her with at least four different crimes if she did
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not cooperate with them and taped over certain parts of her statement.
Additionally, Ward was seventeen years old at that time and stated that the police
did not contact her mother prior to interrogating her. As noted, during the course
of the evidentiary hearing, Ward recanted her previous statements that McKee was
involved in the robbery and instead stated that he was on the phone with her at the
time that it occurred.
McKee argues that Lewter’s alleged failure to interview Ward
constituted ineffective assistance of counsel. He takes issue with the court’s
conclusions that Lewter’s pre-trial investigation was sufficient, particularly
disputing its determinations that McKee and Ward had “concocted” an alibi and
that further investigation was unnecessary because both Kirkland and McKee
confessed, and that the proof at trial was essentially undisputed.
In response, the Commonwealth argues that McKee’s arguments in
this regard are unfounded, particularly because they ignore the fact that Lewter
testified that he did talk to Ward. Further, the Commonwealth states that Ward’s
testimony at trial was consistent with the admissions made by both McKee and
Kirkland as well as with the video surveillance of the crime, and that her testimony
at the evidentiary hearing during which she attempted to recant her trial testimony
was inconsistent with the other evidence.
Upon review of the record and applicable law, we are compelled to
agree with the Commonwealth. Clearly, there is a discrepancy between the
testimony provided at the evidentiary hearing by Lewter who stated that he did
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interview Ward prior to trial, and that provided by Ward who testified that she was
not interviewed. It is well-established that when the trial court conducts an
evidentiary hearing, the reviewing court must defer to the determinations of fact
and witness credibility made by the trial judge. See McQueen v. Commonwealth,
721 S.W.2d 694 (1986). In the matter sub judice, the trial court had the
opportunity to hear conflicting testimony from both parties, and to determine
which to believe.
Regardless, even if Lewter had not interviewed Ward as McKee
alleges, this Court is not persuaded that such a decision would amount to
ineffective assistance of counsel. As noted, if the testimony provided by Ward at
the evidentiary hearing that she had been on the phone with McKee for four hours
at the time of the murder had been her testimony at trial, that testimony would have
been contradicted by the testimony of Kirkland, by McKee’s own admissions, and
by Ward’s own previous and inconsistent statements to the police.
It is well-established that counsel is constitutionally ineffective only if
performance below professional standards caused the defendant to lose what he
otherwise probably would have won. See United States v. Morrow, 977 F.2d at
229. Indeed, the critical issue is not whether counsel made errors, but whether
counsel was so thoroughly ineffective that defeat was snatched from the hands of
probable victory. Id. In light of the other evidence presented in the matter, and
particularly in light of Lewter’s testimony that he did interview Ward7 prior to trial,
7
We note that Ward is the only potential alibi witness identified by McKee in his arguments to
this court. He does not specifically identify any other witnesses, nor proffer what their testimony
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we are in agreement with the trial court’s determination that Lewter’s decision not
to conduct additional investigation or interviews did not amount to ineffective
assistance of counsel.
As his second basis for appeal, McKee argues that he was denied
effective assistance of counsel when Lewter failed to make a motion to suppress
his statement to police. McKee asserts that his statements to the police were made
under coercion, and further notes that the alleged reading of his Miranda rights was
not on the tape recording of his statement. As noted, when the trial court asked
Lewter if he were making a motion to suppress on that basis, Lewter responded
that he was not because he “had a discussion with the Commonwealth and she
assured [him] Barnard had read his rights.” McKee now argues that Lewter’s
failure to move to suppress the statement before going to trial constituted
ineffective assistance of counsel. McKee argues that if a suppression motion had
been made and was successful, he could have proceeded to trial with an alibi
defense as opposed to the defense that he presented.
In response, the Commonwealth asserts that the issue concerning
McKee’s Miranda rights is not preserved as it was not presented in his RCr 11.42
motion. Further, the Commonwealth asserts that even if this issue were preserved,
the record is clear that Lewter addressed this issue with the prosecutor and was
assured that the rights had been read. Regardless, the Commonwealth argues that
even if the statement had been suppressed then McKee’s admission to his
might have been.
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girlfriend that he had participated in the robbery, along with Kirkland’s statement
that McKee participated in the robbery, would still have provided evidence of
McKee’s participation in the crimes. Thus, the Commonwealth argues that,
contrary to McKee’s assertion even if his statement had been suppressed he could
not have proceeded to trial with a defense of innocence.
Concerning McKee’s argument that Lewter should have moved for
suppression because the reading of his Miranda rights was not on the tape
recording of his statement, we are in agreement with the Commonwealth that this
issue was not properly preserved by McKee and was not presented in his pro se
11.42 motion. Even if this issue had been preserved, McKee does not directly
argue that this alone should have served as a basis for suppression. Moreover, a
review of the record makes clear that during the course of the evidentiary hearing,
Lewter testified that he had spoken to the prosecutor and had been assured that
McKee had been read his rights, and that he also “found out myself.”8 Further,
even if counsel had filed a successful motion to suppress on any of the grounds
argued herein, McKee’s admission to his girlfriend regarding his participation in
the robbery along with Kirkland’s statement that he had done so would still have
been admitted into evidence. Accordingly, we cannot find that McKee has shown
the necessary prejudice required by the second prong of Strickland, and we decline
to reverse on this basis.
8
VR No. 2: 09/15/98; 10:30:00.
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Concerning McKee’s argument that Lewter should have moved for
suppression of the statement based upon coercion and that he was ineffective for
failing to do so, we find that McKee has failed to show that a motion to suppress
would have been successful. Therefore, he cannot establish the prejudice
necessary to assert ineffective assistance of counsel in connection with this claim,
and we decline to overturn on this basis.
As his final basis for appeal, McKee asserts that he received
ineffective assistance of counsel when Lewter failed to investigate and present
available mitigating evidence. McKee states that Lewter failed to conduct any type
of mitigation investigation and did not hire a mitigation specialist. McKee argues
that Lewter should have spoken to his grandmother, who would have testified
about his family life growing up, as to McKee’s intelligence, and as to his
relationship with his son. McKee also asserts that Lewter should have spoken with
his ex-girlfriend, Ward, who would have testified about McKee encouraging her to
finish high school. Thus, McKee argues that Lewter failed to gather basic life
history information, failed to interview McKee’s family members and friends
regarding mitigation, and failed to speak to McKee regarding mitigation. Thus,
McKee asserts that Lewter’s investigation was objectively unreasonable and that
Lewter’s performance was deficient. He argues that had Lewter investigated his
background and presented mitigating evidence then there was a reasonable
probability that McKee would have received a lighter sentence.
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In response, the Commonwealth argues that parts of McKee’s
arguments are not properly preserved. It notes that McKee argued, in his pro se
11.42 motion, that Lewter should have called his mother, father, girlfriend, child,
and child’s mother to testify, but did not indicate how that testimony would have
changed the outcome of his case. Thus, the Commonwealth argues that McKee’s
complaints concerning Lewter’s failure to hire a mitigation specialist or failure to
call McKee’s grandmother to testify are not preserved. Alternatively, the
Commonwealth argues that even if these arguments were preserved, the alleged
errors show no deficient performance of counsel. To that end, the Commonwealth
asserts that McKee has failed to establish what evidence a mitigation specialist
would have provided, which it asserts is contrary to RCr 11.42(2)’s requirement
that the motion state specifically the grounds on which the sentence is challenged
and the facts upon which the movant relies in support thereof.
The trial in this matter occurred in 1998. The evidentiary hearing
took place 11 years later, in 2009. McKee alleges that Lewter could recall none of
the names of the people he spoke with concerning possible mitigating evidence
with the exception that he specifically recalled talking to Ward. Regardless, had
Lewter spoken to McKee’s grandmother, we are simply not persuaded that the
testimony McKee asserts she would have provided would have mitigated his
sentence. We believe the same to be true of the testimony McKee asserts would
have been given by Ward. Furthermore, the holding in Strickland is clear that
mitigating evidence is not required to be presented at sentencing in every case.
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Wiggins v. Smith, 539 U.S. 510, 533 (2003). Indeed, in the matter sub judice,
McKee received a significantly lighter sentence than that given to his codefendant, certainly a reflection of Lewter’s trial strategy. Accordingly, we
decline to reverse on this basis.
Wherefore, for the foregoing reasons, we hereby affirm the April 2,
2009, order of the Fayette Circuit Court, denying McKee’s RCr 11.42 motion for
post-conviction relief following an evidentiary hearing.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Heather McGregor
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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