JAMES WALTER MILLER v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO.
1996-CA-003031-MR
JAMES WALTER MILLER
v.
APPELLANT
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE HON. TYLER GILL, JUDGE
ACTION NO. 90-CR-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
JOHNSON, KNOX AND SCHRODER, JUDGES.
JOHNSON, JUDGE: James Walter Miller (Miller) appeals from an
order of the Logan Circuit Court entered on October 18, 1996,
that overruled his Kentucky Rules of Criminal Procedure (RCr)
11.42 motion to vacate his sentence.
We affirm in part and
vacate and remand in part.
On June 28, 1990, Miller was convicted of four counts
of Sodomy in the First Degree, Kentucky Revised Statutes (KRS)
510.070, two counts of Sexual Abuse in the First Degree, KRS
510.110, and one count of Use of a Minor in a Sexual Performance
KRS 531.310.
Miller was sentenced to serve a total of 30 years
in the state penitentiary.
Miller’s motion for a new trial was
overruled and he appealed to the Supreme Court of Kentucky.
The
Supreme Court affirmed the conviction in an opinion rendered
September 26, 1991, stating in part that “due to the overwhelming
evidence presented in this case, . . . any error was harmless.”
On August 13, 1996, Miller filed, pro se, an RCr 11.42
motion alleging ineffective assistance of counsel.
In the
motion, Miller made numerous allegations, including the
following: (1) that his trial counsel failed to question
witnesses about the police’s alleged failure to read him his
Miranda rights upon arrest; (2) that before the trial the father
of two of the complaining witnesses had threatened a potential
witness; (3) that during the trial one of the jurors was
threatened that he must vote for a conviction; (4) that the trial
court allowed the jurors to discuss the case outside of the
courtroom; (5) that two potential witnesses were subpoenaed but
were not allowed to testify; (6) that he was not present for jury
selection during which a juror with whom he had had a previous
conflict was allowed to remain on the jury; (7) that five
witnesses who were willing to testify on his behalf were not
subpoenaed and called; (8) that counsel erred in not presenting
evidence that under the “Truth in Sentencing Law”, KRS 532.055,
he would have had to serve 50% of his sentence before he would be
eligible for parole; (9) that he could not hear the words being
spoken in the courtroom and that his counsel told him not to
worry about hearing because he would be probated anyway and did
not need to hear the proceedings; (10) that the trial court erred
when it refused to grant a continuance because of the
unavailability of two witnesses; (11) that the father of two of
the complaining witnesses had a financial motive to get him
convicted; and (12) that his counsel failed to properly
investigate the case, interview witnesses and prepare for trial.
Following an evidentiary hearing on October 18, 1996,
the trial court overruled the RCr 11.42 motion and stated as
follows:
Issues have been raised which have
nothing to do with any matter that this court
may legally consider. As a matter of law,
this Court is without authority to reconsider
the overall sufficiency of the evidence or
any matter already finally decided by the
Supreme Court. A defendant cannot raise in
an [RCr] 11.42 motion issues which could have
been raised on appeal. Several issues were
raised by the Defendant in his pro se motion
which were or should have been addressed in
his motion for a new trial or on appeal and
are not to be considered under RCr 11.42.
The Defendant may legally prevail on his
motion only if this Court finds that the
performance of his trial attorney was
deficient and that his defense was thereby
prejudiced. Since Defendant’s present
counsel represented him through the motion
for new trial and appeal, all of these issues
should properly have been raised at that
time.
The “deficiencies” alleged concerning
trial counsel’s failures to object, failure
to make a motion to continue, and failure to
call certain witnesses at trial appear to be
consistent with trial strategy. It is a
common practice in trial strategy not to
raise every conceivable objection and it may
in fact be poor strategy to do so. Most of
the objections by defense counsel in this
case took place in chambers rather than in
front of the jury. Based on the facts of
this case, there is no indication that these
decisions showed a “deficiency” in the
attorney’s representation. The proposition
that the Defendant was not present during the
jury selection process cannot be accepted.
The Defendant is convinced that he was not
present; however, his testimony indicates
some confusion and his memory is not strong.
[Defense counsel and the prosecuting
attorney] testified that they certainly would
have noticed and reacted had the Defendant
not been present. The concept that the
Defendant could leave during a critical
portion of a jury trial for over an hour and
that neither the Judge, his own lawyer, the
Commonwealth Attorney, clerk, bailiff, nor
any other officer of the Court would notice
and react borders on the preposterous.
This appeal followed.
In his appeal, Miller states that he “does not argue
that the [trial] court’s ruling that certain issues were not
cognizable in the RCr 11.42 hearing was improper.”
However,
Miller specifically contends that the trial court erred in
denying him relief on the following issues: (1) that his counsel
allowed him to be absent during part of the jury selection
process whereby a juror with a known bias against him was allowed
to hear the case; (2) that counsel failed to call certain
witnesses; (3) that counsel failed to adequately investigate his
case or prepare for trial; and (4) that he was denied his right
to participate in the trial because of a hearing problem that
counsel was told about but took no action to address.
In general, the Sixth and Fourteenth Amendments to the
United States Constitution mandate that a defendant in a criminal
case receive effective assistance of counsel.
United States v.
Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Powell
v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); and
Hopewell v. Commonwealth, Ky.App., 687 S.W.2d 153, 154 (1985).
The test for determining whether a defendant has received
ineffective assistance of counsel was established in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674, 693 (1984), as follows:
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. Unless a
defendant makes both showings, it cannot be
said that the conviction or death sentence
resulted from a breakdown in the adversary
process that renders the result unreliable.
See also Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985), and
Hopewell, supra.
There is an heavy burden on the movant to show that
counsel’s assistance was constitutionally insufficient.
Jordan
v. Commonwealth, Ky., 445 S.W.2d 878, 879-80 (1969); McKinney v.
Commonwealth, Ky., 445 S.W.2d 874, 877-78 (1969).
An RCr 11.42
motion does not state grounds for relief unless it alleges
sufficient facts to show that counsel’s representation was
inadequate.
RCr 11.42(2); Thomas v. Commonwealth, Ky., 459
S.W.2d 72 (1970).
“Effective assistance of counsel does not
guarantee error-free representation nor does it deny to counsel
freedom of discretion in determining the means of presenting his
client’s case.” Ramsey v. Commonwealth, Ky., 399 S.W.2d 473, 475
(1966).
The first claim presented on appeal is that counsel was
ineffective because Miller was not present for jury selection.
Whether this actually occurred is an issue of fact to be
determined by the trial court.
Such factual findings will not be
set aside unless they are clearly erroneous.
Ivey v.
Commonwealth, Ky.App., 655 S.W.2d 506, 509 (1983): Lynch v.
Commonwealth, Ky.App., 610 S.W.2d 902 (1980).
Miller argues that
the trial court’s finding in this regard is “against the weight
of the evidence”.
However, there was conflicting evidence in the
record as to this issue.
Certainly, the testimony of Miller’s
trial counsel and the Commonwealth’s Attorney was sufficient
evidence to support the trial court’s finding that Miller was
present during jury selection.
Miller next claims that his trial counsel was
ineffective by failing to call “certain witnesses”.
“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 acquittal.”
719 S.W.2d 742, 743 (1986).
Robbins v. Commonwealth, Ky.App.,
Miller did not present any evidence
at his RCr 11.42 hearing that the testimony of these “certain
witnesses” would have produced an acquittal.
The Supreme Court
in affirming the conviction on direct appeal noted the
“overwhelming evidence” in this case.
The decision to call or
not to call certain witnesses is matter of trial strategy which
should not be second guessed by a reviewing court.
Id.
Miller next claims that his trial counsel failed to
adequately investigate or prepare for trial stating that “counsel
only came out to his house one time to view the scene where the
alleged offenses occurred.”
Miller relies on Wedding v.
Commonwealth, Ky., 394 S.W.2d 105, 106 (1965), however, Wedding
involved a fact situation where the attorneys admitted that they
had not made reasonable preparations for trial, which is
certainly distinguishable from the evidence in the case sub
judice.
The testimony at the RCr 11.42 hearing from Miller’s
trial counsel refutes this allegation.
Again, the evidence was
conflicting, and there was sufficient evidence to support the
findings of the trial court.
Ivey, supra, at 509.
Miller’s final allegation is that he told his trial
counsel that he could not hear the trial proceedings.
He further
claims that counsel told him not to worry about not hearing what
was occurring because he would get probated, and therefore did
not need to hear the trial.
In his testimony at the RCr 11.42
hearing, Miller’s trial counsel refuted this allegation.
However, the trial court’s order denying RCr 11.42 relief fails
to make a finding concerning this issue and fails in anyway to
address this allegation.
The Commonwealth in its brief also
fails to directly address this issue.
If the trial court were to
find in Miller’s favor as to this allegation, then the allegation
may be sufficiently serious to meet the two-pronged Strickland
test.
Thus, we must vacate the order as to this issue only and
remand this matter for additional findings as to this issue only.
In all other respects, the Logan Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Paul J. Neel, Jr.
Louisville, KY
Hon. A.B. Chandler III
Atty. General
Hon. Michael L. Harned
Asst. Atty. General
Frankfort, KY
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