FRED BUSEY, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 9, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002216-MR
FRED BUSEY, JR.
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 97-CR-00109
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Fred Busey, Jr. (Busey) appeals the order
entered by the Barren Circuit Court which denied his RCr 11.42
motion.
We affirm.
Busey was indicted on charges of one count of
first-degree rape and two counts of first-degree sodomy.
A jury
trial was held in the Barren Circuit Court on November 23, 1997.
The jury found Busey guilty of first-degree sexual abuse and two
counts of first-degree sodomy.
He was sentenced to two life
sentences on the sodomy charges, which were to run concurrently
and a five year sentence on the sexual abuse charge, which was
ordered to run consecutive to the life sentences.
On direct
appeal to the Kentucky Supreme Court Busey’s convictions were
upheld, but the sentencing was reversed and remanded in order to
have the five year sentence run concurrent with the life
sentences.
(See Fred Leland Busey, Jr. v. Commonwealth of
Kentucky, 98-SC-000091-MR, a not-to-be-published opinion rendered
January 21, 1999).
In compliance with the Supreme Court’s
directive, the Barren Circuit Court entered an order on February
23, 1999, amending its final judgment to reflect that “[Busey’s]
five (5) year sentence for sexual abuse in the first degree shall
run concurrent to his life sentence for sodomy and not
consecutively.”
Busey filed his RCr 11.42 motion on August 25,
1999, alleging ineffective assistance of counsel.
This motion
was denied by the circuit court without an evidentiary hearing in
an order entered September 7, 1999.
This appeal followed.
In the circuit court order of September 7, 1999, the
trial court stated the allegations raised in Busey’s RCr 11.42
motion to be as follows:
The petitioner [Busey] alleged seven
points of error in his brief. All seven
points of error can be determined from the
record. The petitioner [Busey] argued that
his counsel was ineffective because:
1) he failed to make an opening
statement;
2) he failed to object to statements
made by the prosecutor which, he argues,
defined reasonable doubt;
3) he failed to object to a question
asking Julie Griffey, the licensed family
counselor who diagnosed K.B., whether K.B.
needed any follow-up treatment;
4) he failed to ask for a mistrial when
the prosecution read aloud statements made by
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K.B. to Julie Griffey when K.B. was seeking
treatment;
5) he failed to ask for a mistrial when
alleged child sexual abuse accommodations
syndrome (CSAAS) evidence was presented;
6) and even if all the errors cited were
not ineffective, taken together the defendant
argued cumulative error including his
ineffective assistance of counsel violated
his due process and fair trial rights.
7) Included within the petitioner’s
brief (see “Argument V”) was a seventh point
of error, in which the defendant argued that
it was error for the Court to run the two
concurrent life sentences consecutively to
the five (5) year sentence.
On appeal Busey raises the same seven issues.
The
trial court correctly pointed out in its order that the Supreme
Court addressed several of these issues in its opinion of Busey’s
direct appeal.
The Supreme Court reversed and remanded the five-
year consecutive sentence imposed on the sexual abuse charge and
the Barren Circuit Court entered an amended order correcting this
error.
Hence, RCr 11.42 relief as to this issue is unwarranted.
The Supreme Court also affirmed the trial court’s ruling as to
issues 3, 4, and 5.
On direct appeal, the Supreme Court stated
that despite Busey’s pre-trial motion in limine to exclude all
evidence relating to the testimony of Julie Griffey (issues 3 and
4), the trial court properly admitted said evidence.
In that
counsel for Busey did timely object to the admissibility of such
testimony, both pre-trial and at trial, and the Supreme Court
affirmed the trial court’s ruling that the testimony was properly
admitted over his objections, we find no basis for an ineffective
assistance of counsel complaint.
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Further, as to testimony
alleged to have been based upon the child sexual abuse
accommodations syndrome (CSAAS) issues, the Supreme Court held
that despite counsel’s timely motion in limine, the testimony at
trial did not mention the concept of CSAAS nor did it constitute
CSAAS evidence.
Again, counsel for Busey did timely and properly
object to CSAAS testimony but the Supreme Court affirmed the
trial court’s rulings relative to this issue.
We can find no
basis for Busey’s allegation as to ineffective assistance of
counsel on this issue.
In his RCr 11.42 motion Busey does raise three issues
not previously addressed by the Supreme Court’s opinion.
First,
he claims counsel’s failure to give an opening statement is
ineffective assistance of counsel.
Busey argues “[t]he bottom
line is that under no circumstances should you [a defendant]
waive the opening statement altogether as was done in this case.
In other words there is no possible trial strategy for a total
omission of the opening statement.”
We disagree.
In a RCr 11.42 motion the appellant bears the burden of
establishing that he was not adequately represented by counsel.
Jodan v. Commonwealth, Ky., 445 S.W.2d 878, 879 (1969).
In order
to establish that counsel’s assistance was so ineffective as to
rise to the level of prejudice meriting reversal, the appellant
must satisfy a two-part test: (1) that counsel’s representation
was ineffective as evaluated by an objection standard of
reasonableness and (2) that “‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different.’” Hill v. Lockhart, 474
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U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)).
In this case Busey has failed to satisfy either prong
on the above stated two-prong test for ineffective assistance of
counsel.
Waiving of the opening statement at trial is not
ineffective assistance but normally based upon sound trial
strategy.
Busey has shown neither unacceptable trial practice
nor prejudice.
The trial court correctly denied Busey’s motion
as to this allegation.
Busey next argues that the prosecutor was permitted to
define reasonable doubt without objection and this amounted to
ineffective assistance of counsel.
We disagree with Busey’s
statement of the facts and his arguments.
The record shows the
Commonwealth concluded its voir dire questioning to the
prospective jurors, as follows:
COMMONWEALTH
ATTORNEY: Now, the sexual abuse, anal
intercourse, oral sex, some penetration of
the vagina of a seven-year old, is a horrible
thing. And it’s a horrible thing, I’m sure,
to be standing trial for that charge. The
burden of the Commonwealth is to prove a case
beyond a reasonable doubt. Because of the
horrible nature of these charges, would any
of you say, “Well, I’m gonna hold the
Commonwealth to a higher standard of proof.
I’m gonna require the Commonwealth to prove
its case beyond a shadow of a doubt, or with
mathematical certainty.” Are all of you
willing to do your duty as jurors and use
your powers of reason in weighing credibility
and say, “I’m gonna hold the Commonwealth to
reasonable doubt, and use my powers of reason
in deciding this case.”
Thank you, Ladies and Gentlemen.
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Based on this statement, Busey contends that “[i]t is quite
possible that [the] jury felt bound by the prosecutor’s
definitions of reasonable doubt, and for that reason applied a
standard that was lower than the two standards enumerated by the
Commonwealth.”
RCr 9.56, dealing with reasonable doubt, states:
(1) In every case the jury shall be
instructed substantially as follows: “The law
presumes the defendant to be innocent of a
crime, and the indictment shall not be
considered as evidence or as having any
weight against him or her. You shall find
the defendant not guilty unless you are
satisfied from the evidence alone, and beyond
a reasonable doubt, that he or she is guilty.
If upon the whole case you have a reasonable
doubt that he or she is guilty, you shall
find him or her not guilty.”
(2) The instructions should not attempt
to define the term “reasonable doubt.”
The Kentucky Supreme Court, in Commonwealth v. Callahan,
KY., 675 S.W.2d 391 (1984), held:
Having prohibited the court from
definition (sic) of the term “reasonable
doubt” in the instructions, by RCr 9.56(2),
we can hardly condone a client-serving
definition by defense counsel or prosecutor
in either voir dire, opening statement or
closing argument. As stated in Taylor [v.
Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56
L.Ed.2d 468 (1978)] “...arguments of counsel
cannot substitute for instructions by the
court.” We do not intend by this holding
that counsel cannot point out to the jury
which evidence, or lack thereof, creates
reasonable doubt, but all counsel shall
refrain from any expression of the meaning or
definition of the phrase “reasonable doubt.”
As stated in Wigmore, [9 Wigmore, Evidence, §
2497 (Chadbourn rev. 1981] page 408:
The effort to perpetuate these
elaborate unserviceable definitions
is a useless one and serves today
chiefly to aid the purpose of the
tactician. It should be abandoned.
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Prospectively, trial courts shall
prohibit counsel from any definition of
“reasonable doubt” at any point in the trial,
and any cases in this jurisdiction to the
contrary are specifically overruled.
(Emphasis in original).
Callahan, 675, S.W.2d at 393.
Based upon the criminal rule and the Callahan case, it
appears obvious that neither party should attempt to define
“reasonable doubt” to a jury.
However, in the case cited by
Busey, Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1990), the
Court addressed what redress is available should a party attempt
to define this term.
The Sanders Court stated:
Appellant asserts various other errors
and irregularities said to have occurred
during the jury selection process. During
voir dire the prosecutor posed the following
questions:
In a criminal trial, do you realize
that the Commonwealth has the
burden of proving the defendant
guilty beyond a reasonable doubt,
that does not mean beyond all doubt
or a shadow of a doubt? Would any
of you all hold the Commonwealth to
a higher standard of proof than the
reasonable doubt standard?
Appellant now insists (although the
issue was not preserved by contemporaneous
objection) that within the first quoted
question lies an attempted definition of the
phrase “reasonable doubt,” in violation of
the rule established in Commonwealth v.
Callahan, Ky., 675 S.W.2d 391 (1984), that
“all counsel shall refrain from any
expression of the meaning or definition of
the term ‘reasonable doubt.’” Assuming,
without deciding, that an error would have
occurred had objection been raised and
overruled, [footnote omitted] we are wholly
unconvinced, considering the circumstances,
that absent this putative error the defendant
may not have been found guilty of a capital
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crime, or the death penalty may not have been
imposed.
Sanders, 801 S.W.2d at 67.
Likewise, we believe in this case
that it cannot be said that absent the “putative error” Busey
would not have been found guilty.
The proof of his guilt was
substantial and the jury instructions used properly followed
RCr 9.56.
Busey has failed to establish that his attorney was
ineffective as to this issue nor that he was prejudiced (the
result would have been different) by the Commonwealth’s
statements to the jury.
Busey’s final argument is that the cumulative effects
of his attorney’s action resulted in ineffective assistance of
counsel.
Where appellant’s individual assignments of error lack
merit, there can be no cumulative effect which denied a fair
trial.
McQueen v. Commonwealth, Ky., 721 S.W.2d 694, 701 (1986).
For the foregoing reasons, the order of the Barren
Circuit Court denying Busey’s RCr 11.42 motion for relief is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
BRIEF FOR APPELLEE:
Fred Busey, Jr. Pro Se
LaGrange, KY
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
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