STANLEY ROSS v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 18, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002140-MR
STANLEY ROSS
APPELLANT
APPEAL FROM NICHOLAS CIRCUIT COURT
HONORABLE ROBERT MCGINNIS, JUDGE
ACTION NO. 95-CR-00001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, and McANULTY, Judges.
COMBS, JUDGE.
Stanley Ross appeals from an order of the Nicholas
Circuit Court denying his motion for post-conviction relief
pursuant to Rules of Criminal Procedure (RCr) 11.42.
He argues
that he received ineffective assistance of counsel during his
murder trial due to the failure of his attorney to call his two
brothers to testify.
Stanley contends that their testimony would
have entitled him to present a self-defense instruction.
We
affirm, having determined that trial counsel’s decision not to
call the witnesses was legitimate trial strategy and that even if
the witnesses had been called, there was no reasonable
possibility that the outcome of the trial would have been
different.
On January 4, 1995, Stanley Ross was indicted for
Murder (KRS 507.020).
On December 21, 1994, Stanley allegedly
shot and killed Danny R. Glascock, Jr., with a shotgun at the
Lakeview Bar and Restaurant in Carlisle, Kentucky.
He pled not
guilty and proceeded to trial on April 25 and April 26, 1995, in
Nicholas Circuit Court.
The jury found Stanley guilty of murder
and recommended that he be sentenced to twenty-five years’
imprisonment.
On May 17, 1995, the trial court entered final
judgment and sentenced Stanley pursuant to the jury’s
recommendation.
The Supreme Court affirmed Stanley’s conviction
in an unpublished opinion on April 25, 1996.
On April 22, 1999, Stanley filed a motion to vacate his
sentence pursuant to RCr 11.42.
Without holding an evidentiary
hearing, the trial court entered an order denying that motion on
August 19, 1999.
This appeal followed.
Stanley’s RCr 11.42 motion alleges that his attorney
rendered ineffective assistance because he did not call Stanley’s
brothers, Johnny Ross and Clifford Ross, as witnesses at the
April 1995 trial.
At trial, Stanley denied having fired the shot
that killed Glascock; however, he argues now that the testimony
of his brothers would have entitled him to a self-defense
instruction and that it is likely that he would have been
acquitted of killing Glascock as a result of such an instruction.
Ross also contends that the trial court erred by denying his
motion without conducting an evidentiary hearing.
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In order to establish ineffective assistance of
counsel, the movant must satisfy a two-part test showing:
(1)
that counsel's performance was deficient and (2) that the
deficiency resulted in actual prejudice affecting the outcome.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d
37 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92
L.Ed.2d 724 (1986).
Unless the movant demonstrates both
elements, he cannot prevail in his attack.
at 687, 104 S.Ct. at 2064.
Strickland, 466 U.S.
"The burden of proof [is] upon the
appellant to show that he was not adequately represented by
appointed counsel."
Jordan v. Commonwealth, Ky., 445 S.W.2d 878,
879 (1969).
In determining whether counsel was ineffective, an
appellate court’s standard of review requires a high degree of
deference in scrutinizing counsel's performance and the avoidance
of second-guessing.
(1998).
Harper v. Commonwealth, Ky., 978 S.W.2d 311
We must look to the particular facts of the case and
determine whether the acts or omissions were outside the wide
range of professionally competent assistance.
Id.
In
ascertaining whether the appellant is entitled to an evidentiary
hearing, "[o]ur review is confined 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."
Osborne v. Commonwealth, Ky. App., 992 S.W.2d 860, 864 (1998)
(quoting Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967)).
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We begin our review of Stanley’s claim of ineffective
assistance by reference to the facts of the case as set forth in
the Supreme Court opinion of April 25, 1996:
On December 21, 1994, Danny Glascock met some
co-workers at the Lakeside Restaurant and Bar
after work. Stanley Ross and his brothers,
Johnny and Clifford, arrived at the bar
around 10:00 that night. Stanley was
intoxicated and, after he had fallen down
twice, Robert Banta, the proprietor, asked
the brothers to leave. Banta went outside to
see if they had left the property.
According to Banta, Stanley noticed him and
started cursing at him. Stanley’s brothers
grabbed him and attempted to get him in the
truck. Banta testified that Stanley then
said, “You MF, I will blow your head off,”
and grabbed a shotgun from behind the truck’s
seats. His brothers got the shotgun away
from Stanley and put it in the tool-box in
the bed of the truck, then attempted to get
Stanley into the truck. Banta told them to
leave, otherwise he would call the law.
Johnny, Stanley’s oldest brother, then walked
around the truck, grabbed a chain out of the
truck, and started swinging it around his
head and moving toward Banta. Banta went
inside and called the Carlisle Police
Department. While he was on the phone he
heard a gun go off.
The entrance to the restaurant is up a flight
of stairs then across a four to five foot
landing to the door. After Banta came back
in, Johnny Ross began striking the door with
the chain. Some patrons in the establishment
decided to go out and restrain him. One of
the patrons held the door partially open with
a pool cue while another threw a pool cue at
Johnny as “a break of attack.”
Five patrons, including Glascock, then went
outside. The testimony of the surviving
patrons was that Clifford and Johnny Ross
were both on the landing. William Farley
began exchanging punches with Clifford,
rolling down the stairs while doing so.
Keith Davis began wrestling with Johnny to
get the chain. Glascock and the other two
patrons were on the landing or the steps.
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Meanwhile, Stanley, who had not been involved
in the altercation up to this point,
retrieved the shotgun from the truck and
walked to the bottom of the stairs, preparing
the gun for firing as he did so. Stanley
then shouldered the shotgun, aimed, fired,
and hit Glascock, who managed to get back
into the restaurant before dying. The fatal
shot was fired from a distance of three to
ten feet away from Glascock. Following the
gun shot, a fight broke out with “[e]veryone
hitting, scratching, biting whatever.”
In clear and unambiguous language, Stanley
Ross testified that he did not fire the
weapon. Furthermore, he testified that he
and his brothers were unaware that the gun
had been fired until this was brought to
their attention after they had left the scene
of the fight. It was learning this
information which, he claimed, prompted
Stanley and his brothers to visit the police
department.
In a statement to the police, Johnny Ross
said that the brothers had been involved in a
fight with 15 to 20 people and that “they had
been hit in the head with pool sticks and
things of this sort.” They ran to their
truck “to retrieve a chain and beer bottles
to defend themselves.” When asked what else
they retrieved from the truck, Johnny said he
got a shotgun, and “said that at that time
that you have to defend yourself.”
Following the close of the evidence, trial counsel
aggressively sought a self-defense jury instruction, which was
denied by the trial court on the basis that Stanley had denied
shooting Glascock.
The allegedly erroneous denial of the self-
defense instruction was the sole issue raised by Stanley on
direct appeal.
In its opinion of April 25, 1996, the Supreme
Court observed that the trial court had erred in holding that
Stanley would have had to admit to the shooting in order to be
entitled to a self-defense instruction; nevertheless, it
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concluded that there was no reversible error because there was
insufficient evidence to support a self-defense instruction.
In his RCr 11.42 motion, Stanley hypothesizes that if
trial counsel had called his brothers to testify, their testimony
would have provided the necessary foundation for a self-defense
instruction, which undoubtedly would have persuaded the jury to
acquit him.
In support of his RCr 11.42 motion, Stanley filed
the affidavits of Johnny and Clifford Ross, summarizing the
essence of their putative testimony.
Johnny’s affidavit claims:
that after the Rosses were
asked to leave, a man with a cane began to shout at Stanley,
“[G]et the hell out of here you punk,” hitting Stanley in the
head with the cane; that during the period the Rosses were
leaving, Banta and the man with the cane continually cursed and
shouted at them;
that the patrons of Lakeside initiated the
fight by pulling Johnny out of his truck and beating him; that he
(Johnny) wielded the chain only after being attacked; that
ultimately he and his brothers were under attack by ten or
fifteen people; and that all of this activity occurred before the
gun was fired.
Clifford’s affidavit similarly depicts the patrons of
Lakeside as the aggressors and the Rosses as mere victims/
defenders in the events of the night of December 21.
According
to Clifford, the first blow was struck in the bar when a man hit
Stanley with a cane; the fighting began in earnest when Johnny
was pulled from the truck and beaten; Clifford and Johnny exited
the truck to help Johnny and were then beaten by “five or six
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guys”; ten to fifteen Lakeside patrons were attacking the
brothers; all actions taken by the brothers that night were
designed to protect themselves from the various men who were
beating them.
For purposes of reviewing the merits of Stanley’s RCr
11.42 motion in terms of its eligibility for an evidentiary
hearing, we accept as true his argument that if the two brothers
had been called as witnesses, they would have testified to the
facts as recited in their affidavits.
We also accept Stanley’s
contention that this testimony would have been sufficient to
entitle him to a self-defense instruction.
However, we hold that
Stanley’s argument for RCr 11.42 relief must fail because:
(1)
trial counsel’s decision not to call the brothers constituted a
legitimate trial strategy and (2) there is no reasonable
probability that the outcome of the trial would have been
different even if the brothers had testified and the instruction
had been given.
In its reply to Stanley’s RCr 11.42 motion, the
Commonwealth cited an affidavit executed by G. Scott Hayworth,
Stanley’s trial counsel.
Mr. Hayworth stated that:
(1) he
believed Stanley would provide testimony that would entitle him
to an instruction on self-defense and defense of others; (2) he
believed that Stanley would admit to having handled the gun at
some point in the fight (however, to the surprise of counsel,
when Stanley testified, Stanley firmly denied ever having handled
the shotgun); (3) Hayworth did not call John Ross because he did
not believe that his testimony would serve to obtain an
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instruction on self-protection or protection of others; (4) he
did not call Clifford Ross for the same reason; and (5) Clifford
was prepared to testify that he had handled the gun during the
fight.
An appellate court is precluded from usurping or
second-guessing counsel's trial strategy in RCr 11.42
proceedings.
(2000).
Baze v. Commonwealth, Ky., 23 S.W.3d 619, 624
Judicial scrutiny of counsel's performance must be
highly deferential.
2065.
Strickland, 466 U.S. at 689, 104 S.Ct. at
Because of the difficulties inherent in making a fair
assessment of attorney performance,
a court must indulge a strong presumption
that counsel's conduct falls within the wide
range of reasonable professional assistance;
that is, the defendant must overcome the
presumption that, under the circumstances,
the challenged action "might be considered
sound trial strategy."
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Commonwealth v.
Pelfrey, Ky., 998 S.W.2d 460, 463 (1999).
Trial counsel consciously and deliberately pursued a
legitimate trial strategy in electing not to call the Ross
brothers.
As evidenced by Hayworth’s aggressive efforts for a
self-defense instruction, he believed that Stanley’s testimony
had sufficed to provide the basis for a self-defense instruction,
rendering the testimony of the brothers unnecessary, superfluous,
and perhaps even dangerous.
Since Stanley had denied firing the
shot, the testimony of the brothers contained the risk of
impeaching Stanley’s denial and undermining his opportunity for
an acquittal in the event that the jury believed his denial.
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Parenthetically, we note that these potential witnesses were
surely not sterling characters in light of the questionable
conduct in which they had participated on the night of the
killing.
They could add little lustre to the defendant by
association.
Additionally, even if the brothers had testified, we
are not persuaded that there was a reasonable probability that
the outcome of the trial would have been different as required by
the second prong of the Strickland test.
In order to establish
prejudice, the movant "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
466 U.S. at 694, 104 S.Ct. at 2068;
supra.
Commonwealth v. Pelfrey,
The mere failure to produce witnesses in the appellant's
defense has been held not to be error in the absence of any
allegation that their testimony would have compelled an
acquittal.
Robbins v. Commonwealth, Ky. App. 719 S.W.2d 743
(1986).
The Commonwealth presented five credible witnesses who
testified that Stanley fired the shot that killed Glascock.
They
also testified that Johnny Ross — and not the patrons of the bar
— became the initial aggressor when he armed himself with and
began swinging a log chain.
In view of the relative credibility
of the witnesses, we cannot discern a reasonable possibility that
the jury would have disbelieved the testimony of the
Commonwealth’s witnesses, accepted the testimony of the Ross
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brothers, and acquitted Stanley on the basis that he was
privileged to kill Danny Glascock in self-defense.
Finally, we hold that the court did not err in refusing
to conduct an evidentiary hearing; each of appellant's
allegations is refuted on the face of the record as a whole.
RCr
11.42(5); Hopewell v. Commonwealth, Ky. App., 687 S.W.2d 153
(1985).
We affirm the order of the Nicholas Circuit Court
denying the appellant’s motion for post-conviction relief.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Kent T. Young
Assistant Attorney General
Frankfort, Kentucky
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