JAMES RANDALL MAY v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001571-MR
JAMES RANDALL MAY
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 90-CR-0115
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND McANULTY, JUDGES.
McANULTY, JUDGE: This is an appeal from the Findings of Fact,
Conclusions of Law and Order denying Appellant’s motion for
relief pursuant to RCr 11.42.
Appellant, James Randall May
(“May”), contends that the trial court erred in addressing the
motion without the benefit of an evidentiary hearing.
We find
that the trial court did not err in eventually concluding that a
hearing was not required.
Moreover, we agree with the trial
court that May failed to show that he received ineffective
assistance of counsel.
In October of 1991, a jury found May guilty of murder
and the Pike Circuit Court sentenced him to life in prison.
His
conviction was affirmed by the Kentucky Supreme Court in James
Randall May Stewart v. Commonwealth, No. 92-SC-201-MR (Rendered
April 21, 1994).
On February 23, 1996, May filed a Motion to Vacate, Set
Aside or Correct Judgment and Sentence Pursuant to RCr 10.26, RCr
11.42, CR 60.02 and CR 60.3 [sic].
A Motion for an Evidentiary
Hearing and a sixty-six page Memorandum of Law accompanied the
motion to vacate.
The trial court appointed counsel to assist May in the
proceedings.
Two years passed and new counsel was appointed.
Counsel then moved in February 1998 for an evidentiary hearing.
The trial court scheduled the hearing for April 17, 1998.
May’s
counsel then moved for a continuance of the hearing due to the
fact that a motion requesting funds for expert services was
pending before the court.
hearing date.
The court set May 1, 1998 as the new
Again, May’s counsel requested a continuance,
which the trial court granted on April 30, 1998.
However, rather
than reschedule the hearing, the trial court issued its Findings
of Fact, Conclusions of Law and Order on June 11, 1998 which
thoroughly addressed each of the errors asserted by May and
denied the requested relief.
This appeal followed.
May now contends that the trial court erred in
summarily disposing of his motion because the pleadings allege
grounds that are not conclusively refuted by the record.
He also
asserts that his constitutional rights were violated when the
trial court scheduled but did not hold an evidentiary hearing.
We first address the contention that May raised issues
which were not clearly refuted by the record.
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Although May
identified some fifteen grounds to support his 11.42 motion
before the trial court, in his brief he specifically focuses on
the failure of trial counsel to call the investigator to testify,
the failure to move for a change of venue and May’s allegations
of prosecutorial misconduct.
Where, as here, the trial court denies a motion for an
evidentiary hearing on an RCr 11.42 motion, our review is limited
to whether the motion "on its face states grounds that are not
conclusively refuted by the record and which, if true, would
invalidate the conviction."
S.W.2d 321, 322 (1967).
Lewis v. Commonwealth, Ky., 411
Moreover, where it is clear from the
record that a movant who claims ineffective assistance of counsel
has not established a reasonable probability that the result
would have been different but for the alleged errors of counsel,
there is no abuse of discretion in denying the motion without a
hearing.
Brewster v. Commonwealth, Ky. App., 723 S.W.2d 863
(1986).
At the request of May’s trial counsel, John Barton, the
court approved funds to hire an investigator, David Caudill.
Caudill did not testify at the trial.
Mr.
May asserts that in the
course of Caudill’s investigation, he obtained evidence to
impeach the chief witnesses against May.
These witnesses were
the co-defendant, Freddie Scott (who testified that he
participated in the robbery but that May shot the victim) and
William “Happy” Coleman (who testified that May confessed to him
months after the incident that he had shot the victim).
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May contends that Caudill ceased his investigation and
requested that he not be called to testify due to threats made
against him.
May further claims that a failure to call Caudill
to the stand amounts to ineffective assistance.
However, in his
assertion that Caudill uncovered evidence to impeach Scott and
Coleman, May neglected to inform the trial court as to how
Caudill’s testimony would have impeached these witnesses.
In the
absence of an allegation by May that Caudill uncovered evidence
that would demonstrate that Scott and Coleman were lying about
the events on the evening in question, the trial court did not
err in determining that the record refuted May’s claims.
Neither Scott or Coleman was held out at trial to be
model citizens.
Scott testified that he and May had entered the
victim’s home to sell him some bogus cocaine and steal his
jewelry.
Testimony also implicated Coleman as being aware of the
planned robbery and intending to unload the jewelry for cash. In
other words, the jury was well aware that these two witnesses
were criminals in their own right and was therefore on notice
that they should weigh that testimony accordingly.
As such, it
is not reasonable to assume that evidence merely attacking the
general credibility of these witnesses would have changed the
result.
Moreover, it is difficult to imagine what evidence
could have impeached Scott’s specific testimony that May shot the
victim.
The same can be said for the testimony of Coleman to the
effect that May revealed to him that he had been the triggerman.
Under the facts of this case, we hold that a mere allegation that
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an investigator possessed evidence to impeach witnesses does not
establish a reasonable probability that the result would have
been different had the investigator been called to testify.
Therefore, the trial court did not abuse its discretion in
denying the motion without an evidentiary hearing.
May next suggests that his trial counsel was
ineffective in failing to move for a change of venue.
In his
motion to vacate filed with the trial court, May asserted that
the victim was a well-known and well-respected businessman in the
community and therefore he could not receive a fair trial.
He
pointed to the response during voir dire to the Commonwealth’s
query as to how many of the prospective jurors had known the
victim.
The Commonwealth commented upon the show of hands,
“Almost all of you.”
However, the test used to determine a
change of venue is not familiarity with the victim or the crime
but whether public opinion of the crime is so aroused as to
preclude a fair trial.
670 (1992).
Foster v. Commonwealth, Ky., 827 S.W.2d
Absent an allegation of such public opinion, we see
no reason for the trial counsel to have moved for a change of
venue.
Further, in his appeal to this Court, May refers us to
Jacobs v. Commonwealth, Ky., 870 S.W.2d 412 (1994) in which the
Supreme Court commented that the community was “one where a
court-appointed investigator feared to tread” and the
investigator “was immobilized by fear” in finding that the court
abused its discretion in denying a motion for change of venue.
Id. at 416.
However, Jacobs does not stand for the proposition
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that a change of venue is warranted when an investigator is
threatened, as May would have us believe.
Rather, the Jacobs
Court made those comments about the investigator to illustrate
the pervasiveness of the public opinion concerning Jacobs’s
guilt.
In other words, in Jacobs, the investigator felt
threatened by members of the general public who were enraged by
the crime whereas May alleges that his investigator was
intimidated and threatened by a witness in the case.
The two
situations are distinguishable in that the first warrants a
change of venue while the second does not.
We next move to May’s allegation of prosecutorial
misconduct.
May contends that the prosecutor’s conduct in being
informed that Happy Coleman was intimidating the defense
investigator and failing to charge Coleman with a crime amounted
to fraud in obtaining May’s conviction.
The trial court
dismissed this argument as being refuted by the record.
We are
of the opinion that this issue is improperly raised in May’s
11.42 motion as it should have been raised on direct appeal.
A RCr 11.42 motion provides the trial court the
opportunity to "review its judgment and sentence for
constitutional invalidity of the proceedings prior to judgment or
in the sentence and judgment itself."
694 S.W.2d 689, 694 (1985).
Commonwealth v. Wine, Ky.,
"It is not the purpose of RCr 11.42
to permit a convicted defendant to retry issues which could and
should have been raised in the original proceedings . . . where
the grounds of his RCr 11.42 motion are matters which must have
been known to him at the time of trial."
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Hoskins v.
Commonwealth, Ky., 420 S.W.2d 560, 561 (1967), cert. denied, 391
U.S. 968, 88 S. Ct. 2041, 20 L. Ed. 2d 882 (1968).
Further,
arguments relating to prosecutorial misconduct are not proper for
a RCr 11.42 motion as they are issues which should have been
raised on direct appeal. See Thacker v. Commonwealth, Ky., 476
S.W.2d 838, 839 (1972).
There is no question that May was aware, at the time of
trial and his subsequent appeal, of the prosecutor’s alleged
failure to prosecute Coleman for intimidation.
Therefore this
matter should have been raised to the Supreme Court on direct
appeal.
We find no error in the trial court’s denial of the
requested relief on the basis of prosecutorial misconduct.
Finally, May asks us to carve out a new requirement to
RCr 11.42 which would provide that once a trial court assigns a
date for an evidentiary hearing, it is forever bound by a
determination that a hearing is mandated under the rule.
This we
decline to do.
May argues that the trial court’s actions in at first
setting the matter for an evidentiary hearing and subsequently
ruling on the motion without holding a hearing amounts to an
arbitrary exercise of power in violation of Section 2 of the
Kentucky Constitution and a denial of due process rights.
As
previously stated, we reject May’s assertion that once a trial
court sets a hearing date in an 11.42 motion, a movant becomes
constitutionally entitled to an evidentiary hearing under the
rule.
The trial court has broad discretion to search the motion
and the Commonwealth’s response to the motion for grounds or
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allegations which cannot be determined from the record.
We see
no reason or basis in law to hold that once the court schedules a
hearing it is compelled to hold the hearing even if it no longer
believes that one is required.
The decision of the Pike Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Milton C. Toby
Karen L. Perch
Lexington, KY
Albert B. Chandler III
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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