SHIRLEY (ROBERT E.) 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NOT TO BE PUBLISHED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-002029-MR
ROBERT E. SHIRLEY
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 04-CR-00247
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND DIXON, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: Robert E. Shirley appeals from a Warren Circuit Court
order which denied his motion to vacate judgment pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 without conducting an evidentiary hearing. Upon
review, we affirm.
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Senior Judges 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.
A jury convicted Shirley of wanton murder, and he was sentenced to
serve twenty years in accordance with the jury’s recommendation. Shirley’s
conviction was affirmed by the Kentucky Supreme Court on direct appeal. In its
opinion, the Supreme Court set forth these underlying facts:
Appellant’s conviction stems from the January 4, 2004
shooting death of Alfred Victor Michael. Appellant’s
wife, Jeanetta, had met Michael in June 2003, while
shopping at a Wal-Mart store where he was employed.
After discovering that Michael was nearly destitute,
Appellant and his wife began providing him assistance.
The couple helped Michael get an apartment and enroll in
trade school. Michael began attending Appellant’s
church and coming to Appellant's house every evening
for dinner.
While Appellant stated that he considered Michael an
“adopted” son, there was evidence presented at trial that
Appellant had, in fact, become very jealous of the
relationship between Jeanetta and Michael. On the
evening of January 4, 2004, Appellant arrived home after
having visited family in a neighboring county. Appellant
stated that as he walked past the kitchen window on his
way into the house, he observed Jeanetta and Michael
embracing. Appellant thereafter retrieved a handgun
from the garage. As he started through the kitchen door,
Appellant exclaimed, “What is going on here?”
Simultaneously, he fell, discharging the weapon and
shooting Michael in the head. Appellant thereafter called
911. When police arrived, Jeanetta told them that “the
door flew open and I seen my husband, he slid like, the
concrete down there, as he came up, and the gun just
went off.” She further said, “But like I say, I don’t think
he intended, I think he meant to scare ... because I did see
him go down. He slipped and kind of went down.”
Michael died the following day.
Shirley v. Commonwealth, 2006 WL 436130 (Ky. 2006) (2005-SC-0503-MR).
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Following his direct appeal, Shirley filed a pro se motion to vacate his
conviction and sentence pursuant to RCr 11.42. On July 6, 2009, the trial court
entered a lengthy opinion which denied the motion and also ruled that Shirley was
not entitled to an evidentiary hearing. This appeal followed.
Shirley contends that he is entitled to post-conviction relief on
numerous grounds, including ineffective assistance of trial counsel.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-part analysis
to be used in determining whether the performance of a convicted defendant’s trial
counsel was so deficient as to merit relief from that conviction:
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 the defendant 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.
Id., 466 U.S. at 687, 104 S.Ct. at 2064.
Shirley’s first argument is that his trial counsel was ineffective for
failing to object to the indictment, which he claims was confusing and duplicitous
because it contained three alternative charges: for murder, first-degree
manslaughter and second-degree manslaughter. The indictment was later orally
amended to include a charge of wanton murder. An indictment containing
alternative charges is permissible under Kentucky law. “[A]n indictment may
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charge the commission of a crime in different modes and in several counts and
under such an indictment the accused may be convicted upon evidence showing
guilt under any of the counts.” Green v. Commonwealth, 105 S.W.2d 585, 586
(Ky.App. 1937) citing May v. Commonwealth, 154 S.W. 1074, 1077 (Ky.App.
1913). “An indictment is sufficient if it fairly informs the accused of the nature of
the charged crime, . . . the specific offense with which he is charged and does not
mislead him.” Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996)
(citations and internal quotation marks omitted). The indictment in Shirley’s case
met this standard and his attorney’s decision not to object was not therefore
indicative of any professional deficiency.
Shirley also argues that the alternative charges confused the jury as
evidenced by a note the jurors sent to the trial judge asking him to clarify the
distinction between two parts of the jury instructions. This argument relates to the
propriety of the jury instructions at trial, rather than to the charges in the
indictment. Although Shirley has not provided any citations to the record as
required under Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v), our review
of the video transcript shows that Shirley’s attorney raised numerous objections to
the jury instructions. In its opinion in Shirley’s direct appeal, the Supreme Court
expressly noted that his defense counsel raised an objection to the trial court’s use
of separate instructions for intentional murder and wanton murder, and also
addressed the issue of the jury’s possible confusion regarding the distinction
between wanton murder and second-degree manslaughter. Thus, the record clearly
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shows that trial counsel’s performance in objecting and preserving these issues for
appellate review was not deficient.
Shirley also contends that his counsel was ineffective for failing to act
on information that Shirley had a personal conflict with one of the members of the
grand jury. In Partin v. Commonwealth, 168 S.W.3d 23, 30 (Ky. 2005), the
Kentucky Supreme Court held that an indictment need not be dismissed because
the grand jury foreperson had known the defendant for twenty-four years and had
previously pressed charges against him. “Challenges for bias, or for any cause
other than lack of legal qualifications, are unknown as concerns grand jurors. . . .
The basic theory of the functions of a grand jury, does not require that grand jurors
should be impartial and unbiased.” Id. quoting United States v. Knowles, 147
F.Supp. 19 (D.D.C. 1957). Under Partin, therefore, Shirley’s counsel’s decision
not to move for dismissal of the indictment on the grounds of juror bias was not
evidence of deficient performance.
Shirley next claims that remarks made by the Commonwealth attorney
during his opening and closing arguments, that Michael was an upstanding,
church-going, law-abiding citizen, were an improper glorification of the victim and
constituted prosecutorial misconduct. Shirley has provided no supportive
references to the record; however, in its opinion, the trial court noted that it could
find no such references and that in fact the prosecutor had stated that while the
victim was a good person, so was Shirley. In any event, this claim is barred
because arguments relating to the prosecutor’s comments could have been raised in
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the direct appeal. See e.g. Barnes v. Commonwealth, 91 S.W.3d 564 (Ky.2002)
(reversal of a conviction on direct appeal due to prosecutor’s prejudicial
statements). “It is an established principle that this Court [Court of Appeals] will
not address an issue which . . . should have been raised in a direct appeal.” Brown
v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990); see also Thacker v.
Commonwealth, 476 S.W.2d 838 (Ky. 1972).
Shirley also argues that he was prejudiced by unspecified
“propaganda” items that some individuals wore into the courtroom in the presence
of the jury. He does acknowledge that the trial judge ordered these individuals
removed from the courtroom. He does not provide any description of these items,
or in what manner his case was prejudiced by them. In the absence of any further
details, we must conclude that the trial judge’s action was sufficient to cure any
prejudice stemming from these items. Furthermore, as with the prosecutor’s
remarks, this matter could have been raised on direct appeal and is not susceptible
of review under RCr 11.42.
Shirley contends that the trial court erred in not granting him an
evidentiary hearing. Such a hearing is necessary only when the motion raises “an
issue of fact that cannot be determined on the face of the record.” Hodge v.
Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001) quoting Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), aff’d, 492 U.S. 361, 109
S.Ct. 2969, 106 L.Ed.2d 306 (1989). Shirley’s allegations fail to raise such issues,
and the trial court did not err in denying an evidentiary hearing. Also, because an
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evidentiary hearing was not required, Shirley was not entitled to appointment of
counsel. Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001).
Shirley argues that the trial court erred in accepting the
Commonwealth’s answer to his RCr 11.42 motion long after the twenty-day limit
prescribed by the Rule. See RCr 11.42(4). It was well within the trial court’s
discretion to allow the response to be filed after the twenty days had elapsed. See
Weigand v. Ropke, 419 S.W.2d 151, 151 (Ky.1967). Shirley has not explained
how he was prejudiced by the delay, or how the delay constituted an abuse of
discretion on the trial court’s part.
Shirley’s next argument alleges further misconduct on the part of the
Commonwealth attorney in personally vouching for the credibility of Detective
Pickett. As with the prosecutor’s remarks regarding the victim, this issue could
have been raised on direct appeal and is not cognizable in an RCr 11.42
proceeding. If the issue is characterized as one of ineffective assistance of counsel,
the argument is still without merit. Shirley states, without citation to the record,
that Detective Pickett admitted to lying, using trickery and deceit and illegal
tactics. By Shirley’s own admission, therefore, the jury was fully informed of
Detective Pickett’s shortcomings. The jury was free to believe either Shirley or
Pickett in its role as the finder of fact. We fail to see how an objection by his trial
counsel to the prosecutor’s remarks would have materially assisted Shirley’s case.
In fact, such an objection could have hurt his case by appearing to attack the
character of a police witness. The burden is on the defendant to overcome the
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presumption that “the challenged action ‘might be considered sound trial
strategy.’” Strickland, 466 U.S. at 689. Shirley simply has not overcome this
presumption.
Shirley next argues that his counsel was ineffective for failing to
object to the indictment and the jury instructions, which he argues did not require
the jurors unanimously to agree on any one of the three charges. As we have
already noted, Shirley’s attorney objected to the instructions, and the identical
arguments regarding the instructions raised here were addressed at some length in
Shirley’s direct appeal, where the Supreme Court found no error. A claim of
ineffective assistance of counsel may be maintained even after an alleged error has
been addressed on direct appeal, “so long as they are actually different issues.”
Leonard v. Commonwealth, 279 S.W.3d 15, 158 (Ky. 2009). Because the issues
here are identical, the claim is barred.
Shirley next argues that his trial counsel was ineffective for failing to
raise the defense of extreme emotional disturbance. In addressing this issue in its
order, the trial court noted that Shirley’s primary defense was that the shooting was
accidental. The trial court observed that it would have been contradictory to
simultaneously contend that Shirley shot the victim accidentally and yet also
intentionally while under extreme emotional disturbance, and that raising EED
would seriously have undermined his defense that the shooting was accidental.
The trial court also pointed out that evidence at the trial indicated that Shirley
suspected that the victim and his wife were sexually involved with each other; that
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he came home early in order to see if his suspicions were correct; that he did not
immediately confront the victim but went and got his gun from the garage first;
and that he was calm and conversational immediately following the shooting. In
light of these factual circumstances, we agree with the trial court that defense
counsel did not err in not raising the issue of an EED instruction. Furthermore, the
failure to request an EED instruction is ultimately irrelevant because the jury found
Shirley had acted wantonly.
KRS 507.020(1)(a) establishes it [EED] as a mitigating
element . . . to a murder which was specifically intended.
. . . Extreme emotional disturbance under our code
affects one’s formation of the specific intent to murder,
but as KRS 507.020 is drafted, it has no carry-over
application to one’s wanton behavior in creating a grave
risk of death.
Todd v. Commonwealth, 716 S.W.2d 242, 246 (Ky. 1986). The jury in Shirley’s
case was instructed on both intentional and wanton behavior. The EED instruction
could only have served as a mitigating factor if the jury had found that Shirley
acted with specific intent.
Shirley next argues that his counsel was ineffective for failing to call
several witnesses to testify on his behalf. Specifically, he argues that Glenn
Shirley could have testified that Jeanetta had lied about her relationship with the
victim and that after the shooting she had asked Glenn to drive her to the victim’s
house to retrieve personal items she had left there. He further argues that
individuals named Danny Jones and Howard White could have testified that
Shirley and Jeanetta were talking about getting back together, and that Jeanetta had
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told them several times that the shooting was an accident. He also argues that his
attorney also failed to present an expert witness for whom Shirley had paid,
although he does not explain the nature of this witness’s expertise or how it would
have aided his defense.
“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) quoting Fretwell v. Norris, 133
F.3d 621, 627 (8th Cir.1998). There is no indication that the testimony of these
witnesses would have materially assisted Shirley’s case; indeed, evidence that
Shirley’s wife had a close personal relationship with the victim could have served
to strengthen the theory that he acted intentionally in killing the victim and
undermined his defense that the shooting was accidental.
He also argues that his attorney should have moved the court for a
change of venue, due to negative publicity and tainted jurors. This argument was
not raised before the trial court in his original RCr 11.42 motion, and cannot
therefore be reviewed by this Court. “The function of the Court of Appeals is to
review possible errors made by the trial court, but if the trial court had no
opportunity to rule on the question, there is no alleged error for this court to
review.” Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky.App. 1985).
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Shirley’s next argument raises again the matter of the allegedly biased
grand juror. This issue was addressed earlier in this opinion and will not be
addressed again here. He further argues that he was prejudiced because he was not
allowed to testify before the grand jury. Again, this was a strategic decision on the
part of Shirley’s counsel. In light of Shirley’s conflicting accounts of what had
occurred on the evening of the shooting, it was not deficient performance on his
counsel’s part to decide that he should not testify.
Shirley next argues, without providing any citations to the record, that
he was denied his right to confront a witness when the trial court limited his
defense counsel’s cross-examination of Jeanetta. This was an issue that could have
been raised on direct appeal and cannot, therefore, be considered here. See Brown,
788 S.W.2d at 501.
Shirley further argues that the trial court erred in not granting relief
for cumulative errors. We have found no errors; therefore, this argument is
without merit.
Shirley argues that his trial counsel engaged in unethical conduct,
including breaching agreements they had made, breaching confidentiality and
making unauthorized statements to the press. These issues were not raised in his
original RCr 11.42 motion nor addressed by the trial court; they cannot be
reviewed here. See Kaplon, 690 S.W.2d at 763.
Finally, Shirley argues that his counsel failed adequately to explain
his defense to the jury and that the jury was consequently confused. Shirley
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claims that he initially retrieved the gun for self-defense but that the actual
shooting was accidental. This argument was not raised in his original motion and
will not be reviewed here. Furthermore, as the Supreme Court noted in his direct
appeal, if Shirley maintained that the shooting was an accident, he could not also
claim he intentionally acted in self-defense.
Shirley also refers to a “state witness” speaking improperly to the
press and his defense counsel’s failure to rebut this statement because he was not
present at final sentencing. We are unable to understand this allegation. RCr
11.42(2) requires the movant to “state specifically the grounds on which the
sentence is being challenged and the facts on which the movant relies in support of
such grounds[.]” This argument fails to comply with this section of the rule.
Moreover, it does not appear to have been raised before the trial court and will not,
therefore, be addressed here.
The Warren Circuit Court order denying Shirley’s RCr 11.42 motion
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Shirley, pro se
Central City, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
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