ROGER SCOTT NORTON V. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 25,200l
AS MODIFIED:
ROGER SCOTT NORTON
V.
ON REVIEW FROM THE COURT OF APPEALS
NO. 1998-CA-2937-MR
MCCRACKEN CIRCUIT COURT NO. 96-CR-00279
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
Pursuant to CR 76.20, this Court granted discretionary review to consider
whether Appellant, Roger Scott Norton, was entitled to an evidentiary hearing on his
RCr 11.42 motion to vacate his conviction. Appellant contends that such a hearing is
warranted because the only defense presented by his trial counsel was voluntary
intoxication, yet his trial counsel failed to call any witnesses in support thereof and failed
to argue in support of the tendered intoxication instruction. The instruction was not
given to the jury despite the fact that Appellant was charged with alcohol intoxication,
and despite testimony from prosecution witnesses indicating that Appellant was
intoxicated upon arrest.
In the early morning hours of July 13, 1996, Appellant was arrested
outside Regina’s II, a bar in Paducah. He was indicted on the offenses of Alcohol
Intoxication, Giving a Police Officer a False Name, Resisting Arrest, two counts of
Fourth Degree Assault, Third Degree Criminal Mischief, First Degree Promoting
Contraband, and of Being a First Degree Persistent Felony Offender. Appellant’s
defense at trial was that he was too intoxicated to know what he was doing.’
Appellant’s trial counsel argued both in her opening statement and her closing
argument that Appellant was “very drunk” and “too drunk to know what he was doing.”
Moreover, the two arresting police officers, Officers Long and Baker, testified at trial
that Appellant obviously had been drinking or that he was intoxicated. Officer Baker,
however, specifically stated his personal opinion that Appellant “wasn’t intoxicated to
the point that he wasn’t aware of what was going on.” Despite intoxication being
Appellant’s only defense, his trial counsel failed to request that the tendered intoxication
instruction be given and failed to call three witnesses who would have verified his
intoxication. The instruction was not given to the jury.
Appellant was found guilty on all counts except Alcohol Intoxication, of
which he was acquitted. After the sentencing phase, Appellant was convicted of being
a First Degree Persistent Felony Offender and sentenced to twenty years in prison.
Appellant’s direct appeal was affirmed on September 25, 1997.
On August 14, 1998, Appellant filed a “Motion to Vacate, Set Aside or
Correct Sentence Pursuant to RCr 11.42,” stating multiple reasons therein as to why his
‘KRS 501.080(l); C o m m o n w e a l t h , K y . , 5 4 9 S.W.2d 8 0 7
Jewel1 v.
(1977)(a defendant is entitled to an instruction on the defense of intoxication where
there is evidence showing that he was so intoxicated that there can be a doubt that he
knew what he was doing); Parido v. Commonwealth, Ky., 547 S.W.2d 125 (1977).
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trial counsel was ineffective and requesting an evidentiary hearing on the matter. One
of the stated reasons, and the reason at issue herein, was that his trial counsel failed to
call certain witnesses who allegedly would have given exculpatory testimony, i.e., that
Appellant was intoxicated at the time of the offenses. The trial court denied the motion
without holding an evidentiary hearing.
The Court of Appeals affirmed, holding that the trial court did not abuse its
discretion in denying Appellant’s request for an evidentiary hearing and in overruling the
RCr 11.42 motion, In reaching this conclusion, the Court of Appeals reasoned that
although Appellant had shown that the potential witnesses’ testimony would have
assisted his defense, he had failed to show that the testimony would have compelled an
acquittal, as Robbins v. Commonwealth* articulates the requirement for a successful
ineffective assistance of counsel claim under these circumstances.
Appellant now claims that the Court of Appeals erred by relying on
Robbins.
Appellant contends that the standard for ineffective assistance of counsel
claims set out in Robbins is different and higher than that promulgated by the United
States Supreme Court in Strickland v. Washington3 and adopted by this Court in Gall v.
Commonwealth.4 The Strickland standard requires that a movant show that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.5
The movant must also demonstrate that, absent the errors by trial counsel, there is a
*KY. App., 719 S. W.2d 742, 743 (1986).
3466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
4Ky., 702 S.W.2d 37 (1985).
5Bowlina v. Commonwealth, KY., 981 S.W.2d 545, 551 (1998)(cifing
Strickland, 466 U.S. at 687).
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“reasonable probability” that the jury would have reached a different result.’ In contrast,
Robbins states that “merely failing to produce witnesses in the appellant’s defense is
not error in the absence of any allegation that their testimony would have compelled an
Appellant is correct in his claim that the standard used in Robbins is
different and higher than the Strickland standard. Whereas the Strickland standard
requires a “reasonable probability” of a different result, Robbins requires that the
allegedly deficient performance by trial counsel compel acquittal. The Strickland
standard relies on probabilities, while the IRobbins standard requires certainty. e
n
o
t
h
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words, it would be far easier to prove a reasonable probability of a different result than
to prove that acquittal would have been the only option.
We do not believe, however, that the Robbins Court intended to announce
a new, more stringent standard for ineffective assistance of counsel claims for the
following reason. Robbins announced its adherence to Strickland just prior to the
statement at issue. Thus, it appears that the language regarding the necessity of a
compelled acquittal was merely an attempt to rephrase the Strickland standard, not to
revise it. Nonetheless, we are compelled to overrule Robbins to the extent that it
conflicts with Strickland, albeit inadvertently.
Having determined that the standard applied by the Court of Appeals was
not consistent with controlling law, we must now turn to the merits of Appellant’s claim.
The essence of his claim is in the nature of a paradox: although he was indicted and
tried for the crime of alcohol intoxication, the jury was not instructed on the defense of
‘Bowlinq at 551 (emphasis added) citing Strickland at 694).
7719 S.W.2d at 743.
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voluntary intoxication as it pertained to other charges -- allegedly due to trial counsel’s
failure to develop supporting testimony and to argue for such an instruction. We
wonder why the Commonwealth’s evidence of alcohol intoxication did not suffice to
authorize the intoxication instruction. Appellant contends, however, and the record
reveals, that there were three witnesses who had been with Appellant before and during
the time of his arrest who had informed Appellant’s trial counsel well before trial that
they were willing to testify to Appellant’s extreme intoxication. Given these
circumstances, there are material issues of fact that cannot be determined on the face
of the record,’ and an evidentiary hearing on the motion is warranted.
For the foregoing reasons, the opinion of the Court of Appeals is
reversed, and this cause is remanded to the McCracken Circuit Court for an evidentiary
hearing on Appellant’s RCr 11.42 motion.
Cooper, Johnstone, Keller, and Stumbo, JJ., concur. Graves, J., dissents
by separate opinion in which Wintersheimer, J., joins.
‘See RCr 11.42.
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COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: OCTOBER 25,200l
TO BE PUBLISHED
2000-SC-0462-DG
ROGER SCOTT NORTON
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
NO. 1998-CA-2937-MR
MCCRACKEN CIRCUIT COURT NO. 96-CR-00279
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I dissent.
It was not error for the trial court to summarily deny Appellant’s claim that
counsel was ineffective for not calling his two sisters and Carl Smith to testify to
Appellants intoxication as the Commonwealth at trial did not dispute Appellant had
been drinking in excess that evening. In fact, Appellant was charged with alcohol
intoxication and in light of the other evidence introduced at trial it is unlikely that the
additional testimony would have made any difference. For example, Appellant noted in
his memorandum on his RCr 11.42 motion (while arguing that counsel was ineffective
for failing to request an intoxication defense instruction) that:
“[tlhere was ample evidence of [appellant’s] intoxication offered by
witnesses for the prosecution.[sic] Officer Carl Baker testified and stated,
“Yes, we could smell alcohol beverages about his person.”
Officer Renee Long was asked by the prosecution, during the
course of giving testimony, “Officer Long, was Roger Scott Norton
intoxicated that evening or that (sic) early morning hours?” Officer Long
answered in the affirmative and stated, “Yes, he was.”
Counsel’s alleged failure to subpoena the three other witnesses then could not
have prejudiced Appellant and Appellant then was not thereby rendered ineffective
assistance of counsel. Strickland v. Washinaton, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). The latter is especially true as only one of the three witnesses had
any contact with Appellant around the same time as the police who likewise testified to
his intoxication. The latter is also true as the limited degree of intoxication was
otherwise noted by the police officers and while the witnesses may have had a differing
opinion their testimony was not sufficient to compel a reasonable doubt as to
Appellant’s guilt.
Appellant’s other allegations were also inconsistent with one another and are
refuted by the record. Appellant argued that he was entitled to an intoxication defense
instruction and none was requested. But trial counsel did tender an instruction to the
trial court which should have preserved the issue for further review. See RCr 9.54(2).
Appellant, however, was acquitted on the simple intoxication charge which made a
claim of denial of an intoxication defense a contradictory appellate argument.
Furthermore, Appellant argued that he was generally just too drunk to have
known what was happening that evening and that counsel should have put on that other
proof to support his intoxication defense. In his verified supplement to his motion he
states that he simply possessed the marijuana for his own personal use and did not
take it into the jail with intent to promote it or with knowledge that it was dangerous
contraband. By Appellant’s own admission his degree of intoxication was not to the
level to impair his knowledge of possession of marijuana or that he took it into the jail
knowingly. The evidence is sufficient to convict him of first degree promoting
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contraband under the instructions. An instruction on intoxication therefore was not
warranted and Appellant was not otherwise prejudiced by any alleged failing of counsel
and is not now entitled to the extraordinary relief requested.
The questions raised by Appellant are easily resolved by reference to the trial
court record. An evidentiary hearing is not necessary when the allegations are capable
of being resolved by review of the record. Here, defense counsel was fully aware of the
intoxication defense and attempted to elicit the necessary proof from the
Commonwealth’s witnesses whom Appellant states in making his motion provided
ample evidence of intoxication. Counsel then could hardly be called ineffective.
Wintersheimer, J., joins this dissent.
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I
’
2000-SC-0462-DG
APPELLANT
ROGER SCOTT NORTON
ON REVIEW FROM THE COURT OF APPEALS
NO. 1998-CA-2937-MR
MCCRACKEN CIRCUIT COURT NO. 96-CR-00279
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER MODIFYING
Appellant’s Petition for Modification of Opinion is hereby granted. The attached
page one is hereby substituted in lieu of page one as originally rendered on October 25,
2001. Said modification is to correct a typographical error concerning the Appellant’s
name and does not affect the holding of the Opinion or the Dissenting Opinion as
originally rendered.
All concur.
Entered: January 17, 2002.
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