KIRCHNER (JAMES) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JANUARY 28, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001194-MR
JAMES KIRCHNER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 05-CR-001880
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND MOORE, JUDGES, AND ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: James Kirchner, proceeding pro se, appeals the Jefferson
Circuit Court’s order denying his RCr2 11.42 motion to vacate, set aside, or correct
his sentence. After a careful review of the record, we affirm because Kirchner
failed to establish that he received the ineffective assistance of trial counsel.
1
Senior Judge Sheila R. Isaac, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
2
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Kirchner was charged with twenty-two counts of various sexual
offenses against his step-daughter. Following a jury trial, Kirchner was convicted
of two counts of second-degree rape, four counts of incest, two counts of seconddegree sodomy, and one count of second-degree sexual abuse. He was acquitted of
the remaining thirteen counts. Thereafter, Kirchner was sentenced to serve a total
of fifteen years of imprisonment.
Kirchner appealed the circuit court’s judgment, contending “that there
was insufficient evidence produced at trial to separately identify the various
offenses and that the verdict was not unanimous.” This Court affirmed. Regarding
Kirchner’s claim that the evidence was insufficient, this Court held that although
“the victim’s testimony was not clear as to some issues,” this was likely due to her
“young age,” and regardless, “there was sufficient testimony from other witnesses
to support the multiple charges and to differentiate between the offenses.”
Kirchner v. Commonwealth, No. 2006-CA-000774, 2008 WL 110657, *1, 2 (Ky.
App. Jan. 11, 2008) (unpublished). As for Kirchner’s allegation that he was denied
a unanimous verdict, this Court held that “the victim’s testimony, along with the
testimony of other witnesses, was sufficient to guarantee a unanimous verdict on
all counts.” Id.
Kirchner subsequently filed his pro se RCr 11.42 motion to vacate, set
aside, or correct his sentence in the circuit court. In his motion, Kirchner requested
an evidentiary hearing and claimed that he received the ineffective assistance of
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trial counsel when counsel: (a) failed to properly investigate and present
exculpatory evidence which would have shown that the alleged victim was being
untruthful; (b) failed to obtain the services of an expert witness to testify about
unreliable reporting by child witnesses; and (c) failed to object to the sufficiency of
the evidence or unanimity of the jury’s verdict. Counsel was appointed to
represent Kirchner in the RCr 11.42 proceedings, and counsel filed a supplement to
Kirchner’s RCr 11.42 motion, alleging that Kirchner had also received the
ineffective assistance of trial counsel when counsel failed to interview and retain a
medical expert to testify concerning what could have caused the injury to the
victim’s vagina.
The circuit court denied Kirchner’s request for a hearing, reasoning
that the court was able to determine the material issues from the face of the record.
The court then denied Kirchner’s RCr 11.42 motion after finding that his claims
lacked merit.
Kirchner now appeals, contending that the circuit court erred in failing
to hold an evidentiary hearing regarding his RCr 11.42 motion.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding. . . . A reviewing court must always defer to the determination of facts
and witness credibility made by the circuit judge.” Simmons v. Commonwealth,
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191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is
“limited to issues that were not and could not be raised on direct appeal.” Id.
Kirchner alleges that the circuit court should have granted his request for an
evidentiary hearing concerning his RCr 11.42 claims. Pursuant to RCr 11.42(5), if
there is “a material issue of fact that cannot be determined on the face of the
record[,] the court shall grant a prompt hearing. . . .”
III. ANALYSIS
Kirchner alleges that the circuit court erred when it failed to conduct an
evidentiary hearing concerning his RCr 11.42 motion. However, the circuit court
is only required to hold a hearing if there is some material issue of fact that cannot
be resolved by the face of the record. Therefore, we will address each of the
claims he raised in the circuit court in turn to determine whether the court should
have held an evidentiary hearing.
A. CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO
INVESTIGATE AND PRESENT EVIDENCE SHOWING VICTIM’S
UNTRUTHFULNESS
Kirchner first alleges that he received the ineffective assistance of
counsel when counsel failed to properly investigate and present exculpatory
evidence which would have shown that the alleged victim was being untruthful.
Specifically, Kirchner contended in his RCr 11.42 motion that he begged counsel
“to send an independent investigator out to re-interview all of the witnesses listed
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by the police as well as other[]s who could verify that he was in fact telling the
truth.” Kirchner asserted
that his attorney failed to meet with him to discuss trial
strategy in addition to failing to investigate and prepare
for trial based on his most viable claim – that the alleged
victim colluded with her friends in fabricating a story
against him because she was unhappy with the rules,
discipline and structure in their home.
To prove that he received the ineffective assistance of counsel,
Kirchner must show that: (1) counsel’s performance was deficient, in that it fell
outside “the wide range of reasonable professional assistance”; and (2) this
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
The circuit court held that this claim was too general, and that
Kirchner failed to identify “any witnesses that trial counsel should have contacted,
what information would have resulted or the effect such information would have
had on his case.” The court also noted that although Kirchner alleged that the
victim colluded with her friends and he contended that her friends’ testimony at
trial differed from the information presented in police reports, Kirchner failed “to
address how the testimony was different or what additional evidence would have
been discovered through re-interview by counsel.” The circuit court found that
although Kirchner argued that he had only met with his counsel once prior to trial,
“multiple conferences were held in which Defendant was present in Court with
counsel.” The court then noted that “trial counsel successfully avoided a potential
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life sentence for Defendant who ultimately received only fifteen years.” Therefore,
the court denied this claim.
“In seeking post-conviction relief, the movant must aver facts with
sufficient specificity to generate a basis for relief.” Lucas v. Commonwealth, 465
S.W.2d 267, 268 (Ky. 1971). In the present case, Kirchner’s first claim of
ineffective assistance of counsel was conclusory, in that he alleged that counsel
should have re-interviewed all of the witnesses listed by police, as well as
unspecified others, but he did not explain what evidence counsel would have
obtained from this exercise and how it would have affected the outcome of his
trial. Therefore, he did not allege facts with sufficient specificity to generate a
basis for relief, and the circuit court did not err in failing to grant an evidentiary
hearing concerning this claim.
B. CLAIM THAT COUNSEL WAS INEFFECTIVE BY FAILING TO
OBTAIN THE SERVICES OF AN EXPERT REGARDING CHILD
WITNESSES
Kirchner next alleges that he received the ineffective assistance of
trial counsel when counsel failed to obtain the services of an expert witness to
testify about unreliable reporting by child witnesses. Specifically, Kirchner
contends that the victim initially told the police that she was not sexually active,
but at trial she testified that she had been sexually active with a boyfriend.
Kirchner acknowledged in his RCr 11.42 motion that “KRE3 412 would not have
allowed [him] to delve into the alleged victim’s sexual past, [but] an expert should
3
Kentucky Rule of Evidence.
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have been called to demonstrate the propensity of the alleged victim to lie under
the circumstances.”
The circuit court found that the circumstances in Mack v.
Commonwealth, 860 S.W.2d 275, 277 (Ky. 1993), which Kirchner had cited in his
motion, were distinguishable from the present case in that “[h]ere, unlike in Mack,
there was no evidence that the victim had suffered prior sexual abuse by anyone
other than Defendant or that the victim had any pre-existing psychological
condition that might affect her competency.” The court then held that Kirchner
had “not demonstrated that he was entitled to have the victim examined by an
independent expert, let alone that such examination would have been beneficial to
his case.” The circuit court also noted that Kirchner had “an opportunity to
challenge the victim’s testimony on cross-examination and through his own
testimony at trial. Despite the victim’s admission of some prior untruthfulness, the
jury still believed the victim’s version of events over that of Defendant.” Thus, the
court denied relief based upon this claim.
As noted by the circuit court, the victim in Mack had suffered prior
sexual abuse by someone other than the defendant and potentially had a preexisting psychological condition. In the present case, there is no allegation that the
victim had previously suffered sexual abuse by anyone other than defendant or that
the victim had a pre-existing psychological condition. Thus, the circuit court
properly found that this case is distinguishable from Mack. Additionally, Kirchner
does not dispute the circuit court’s finding that the victim had admitted some prior
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untruthfulness, yet the jury apparently still believed the victim’s version of events
over Kirchner’s. Therefore, because the jury was made aware of the victim’s prior
untruthfulness, yet nevertheless chose to believe her over Kirchner, Kirchner is
unable to show that the result of the trial would likely have been different if
counsel had presented the testimony of an expert witness concerning the victim’s
propensity to lie. Consequently, this basis for his ineffective assistance of counsel
claim lacks merit, and the circuit court did not err in failing to hold an evidentiary
hearing on this ground.
C. CLAIM THAT COUNSEL WAS INEFFECTIVE IN FAILING TO
OBJECT TO THE SUFFICIENCY OF EVIDENCE OR UNANIMITY OF
THE JURY’S VERDICT
Kirchner next contends that he received the ineffective assistance of
counsel when counsel failed to object to the sufficiency of evidence or unanimity
of the jury’s verdict. He alleges that “there was insufficient evidence produced at
trial to separately identify the various offenses and that the verdict was not
unanimous.”
The circuit court properly noted that this Court previously determined,
on direct appeal, that the testimony of the victim and witnesses was sufficient to
separately identify the offenses and to ensure a unanimous verdict for each count.
The circuit court then held that because this Court had already determined that
Kirchner’s objections regarding the sufficiency of the evidence and the unanimous
verdict would not have been sustained, Kirchner was not prejudiced by his
counsel’s failure to raise such objections. We agree with the circuit court and find
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that this claim of ineffective assistance of counsel lacks merit because Kirchner
cannot show that he was prejudiced by counsel’s failure to raise these objections.
Consequently, the circuit court did not err in failing to hold an evidentiary hearing
on this ground.
D. CLAIM THAT COUNSEL WAS INEFFECTIVE IN FAILING TO
INTERVIEW AND RETAIN A MEDICAL EXPERT REGARDING THE
VICTIM’S INJURY
Finally, Kirchner asserted that he had received the ineffective
assistance of trial counsel when counsel failed to interview and retain a medical
expert to testify concerning the defense’s theory of what could have caused the
injury to the victim’s vagina. In his supplemental RCr 11.42 motion, Kirchner
contended that his defense counsel’s theory was that the reason “why the
Commonwealth’s gynecological exam of the alleged victim showed injury was that
it was caused by the sexual contact the alleged victim admitted to having with her
boyfriend or self-inflicted through masturbation.” Kirchner alleged that defense
counsel should have retained an independent medical expert to rebut the testimony
of the Commonwealth’s expert, Dr. Linda Fitzer, a pediatrician, who attested “that
the alleged victim’s injury to her vagina was consistent with an adult male penis or
vibrator being inserted.” Trial counsel objected to the “characterization of the
object of insertion being a[n] ‘adult male penis,’” but the testimony was admitted
nonetheless.
The circuit court held that this claim was not proper under RCr 11.42
because it was a claim concerning trial strategy, and “[t]here is a strong
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presumption that counsel’s decision in this regard falls within the wide range of
reasonable professional assistance.” The court also found that Kirchner’s claim
was not supported by specific facts to warrant a reversal of his convictions, and
that during his cross-examination of Dr. Fitzer, defense counsel “suggested that the
victim’s injury was caused by sexual contact with her boyfriend or through
masturbation.” The court stated that
Dr. Fitzer did not identify Defendant as the perpetrator.
Thus, because the testimony and the results of the
victim’s physical examination did not identify the person
who caused the injury, even if a medical expert were to
challenge the findings of Dr. Fitzer, Defendant could not
have been excluded as the perpetrator and the jury would
still have been free to draw its own conclusions.
Therefore, the court denied relief based on this claim.
We agree with the circuit court. First, it was likely defense counsel’s
trial strategy not to retain a medical expert, and there is a strong presumption in
counsel’s favor concerning matters of trial strategy.
Second, even if defense counsel had introduced testimony from a
medical expert to challenge Dr. Fitzer’s testimony concerning what caused the
victim’s injury, the expert could not have ruled Kirchner out as the person who
caused her injury. Furthermore, the court found and Kirchner does not deny, that
defense counsel suggested that the victim’s injury could have been caused by
sexual contact she had with her boyfriend or through masturbation. Therefore, the
jury was free to decide who caused the victim’s injury, and Kirchner was not
prejudiced by the fact that he did not have an independent medical expert to testify
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on his behalf. Thus, Kirchner’s claim of ineffective assistance of counsel lacks
merit, and the circuit court did not err in failing to hold an evidentiary hearing
based upon this claim.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James Kirchner
Pro se
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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