EDDIE SHELTON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 26, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002956-MR
EDDIE SHELTON
APPELLANT
ON REMAND FROM KENTUCKY SUPREME COURT
NO. 2000-SC-0255-DG
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 1993-CI-00007
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND KNOPF, JUDGES.
KNOPF, JUDGE:
The appellant, Eddie Shelton, appeals from the
denial of his motions to vacate his conviction pursuant to RCr
11.42, and for relief from his judgment of conviction pursuant to
CR 60.02.
The Kentucky Supreme Court vacated this Court’s prior
opinion and remanded this case for reconsideration in light of
its recent decisions in Fraser v. Commonwealth,1 and Norton v.
Commonwealth.2
After reviewing the applicable standards as set
1
Ky., 59 S.W.3d 448 (2001).
2
Ky., 63 S.W.3d 175 (2002).
out in Fraser and Norton, we remain convinced that the trial
court properly denied Shelton’s motions without a hearing.
Hence, we affirm.
Following a jury trial in 1994, Shelton was convicted
of first-degree sodomy involving his eleven year old nephew, T.J.
The jury fixed his sentence at twenty years, which the trial
court imposed.
The Kentucky Supreme Court reversed Shelton’s
conviction and remanded for a new trial.3
Upon retrial, Shelton
was again convicted of first-degree sodomy, and was sentenced to
twenty years’ imprisonment.
The Kentucky Supreme Court affirmed
this conviction.4
In October 1998, Shelton filed a motion to vacate his
sentence pursuant to RCr 11.42, alleging ineffective assistance
of counsel.
He also filed a motion to set aside his conviction
pursuant to CR 60.02, based upon prosecutorial misconduct.
In a
written opinion and order dated November 19, 1998, the Lincoln
Circuit Court denied both motions without a hearing.
The trial
court found that Shelton’s allegations were not substantiated by
sworn statements and were otherwise refuted by the record.
On appeal, this Court affirmed the trial court’s denial
of Shelton’s RCr 11.42 and CR 60.02 motions.
We agreed with the
trial court that Shelton’s allegations of ineffective assistance
of counsel were not supported by the record.
We also found that
Shelton did not allege any misconduct by the prosecutor which may
3
Edward Shelton v. Commonwealth of Kentucky, Ky., No 1994SC-355 (Not-To-Be-Published Opinion Rendered March 23, 1995).
4
Eddie Shelton v. Commonwealth of Kentucky, Ky., No. 1996SC-661 (Not-To-Be-Published Opinion Rendered March 27, 1997).
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have affected his substantial rights.
The Supreme Court of
Kentucky granted Shelton’s motion for discretionary review, and
remanded this action for reconsideration in light of its recent
opinions in Fraser v. Commonwealth5 and Norton v. Commonwealth.6
In Fraser, the defendant, Fraser, alleged that on the
morning of trial, his counsel informed him that he was unprepared
for trial, and recommended that he plead guilty.
In addition,
Fraser alleged that the terms of the Commonwealth’s plea
agreement required him to testify against a co-defendant, and to
keep the plea agreement secret so that it could not be used to
impeach the credibility of his testimony at trial.
Fraser
pleaded guilty and testified against the co-defendant.
However,
when the time for sentencing came, the Commonwealth made no
recommendation regarding the sentence.
received the maximum sentence.
As a result, Fraser
The trial court in that case
denied his subsequent motion to set aside the guilty plea
pursuant to RCr 11.42 without a hearing or appointment of
counsel.
The court found that neither a hearing nor appointment
of counsel were required because the record did not support his
allegations.
Our Supreme Court reversed the trial court and this
Court, holding, among other things, that the role of the trial
judge is to “examine the motion to see if it is properly signed
and verified and whether it specifies grounds and supporting
facts that, if true, would warrant relief.
5
Supra.
6
Supra.
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If not, the motion
may be summarily dismissed.”
If the allegations in the motion
can be resolved on the face of the record, an evidentiary hearing
is not required.
If an evidentiary hearing is not required,
counsel need not be appointed, "because appointed counsel would
[be] confined to the record.”7
However, a trial judge may not simply disbelieve
factual allegations in the absence of evidence in the record
refuting them.
A hearing is required if there is a material
issue of fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the
record.
If an evidentiary hearing is required, counsel must be
appointed to represent the movant if he or she is indigent and
specifically requests such appointment in writing.8
In Norton v. Commonwealth,9 the defendant, Norton,
attempted to rely on the defense of 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 trial court and this Court agreed that Norton
had shown that the potential witnesses' testimony would have
assisted his defense.
However, this Court concluded that Norton
had failed to show that the testimony would have compelled an
acquittal, as required by Robbins v. Commonwealth.10
7
Fraser, 59 S.W.3d at 452-53.
8
Id. at 453.
9
Supra.
10
Ky. App., 719 S.W.2d 742, 743 (1986).
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The Supreme Court overruled Robbins to the extent that
it required an allegation that the absent witness’s testimony
would have compelled an acquittal.
Rather, a movant is only
required to demonstrate that, absent the errors by trial counsel,
there is a "reasonable probability" that the jury would have
reached a different result.11
The Court found sufficient
evidence to warrant a hearing under this standard.
Returning to the facts of the instant case, Fraser and
Norton do not alter our analysis of the issues raised in
Shelton’s RCr 11.42 motion.
In order to establish ineffective
assistance of counsel, a person 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.12
In determining counsel's performance, the standard is
whether the alleged acts or omissions were outside the wide range
of prevailing professional norms based on an objective standard
of reasonableness.13
A court must indulge in a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.14
The defendant bears the
burden of identifying specific acts or omissions alleged to
11
Norton, 63 S.W.3d at 177-78.
12
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); 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).
13
Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2064-65, 80
L.Ed.2d at 694; Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878
(1992), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed.
2d 479 (1993).
14
Strickland, supra; Wilson, supra.
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constitute deficient performance.15
In measuring prejudice, the
relevant inquiry is whether "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.
A reasonable probability
is a probability sufficient to undermine confidence in the
outcome."16
The record conclusively refutes Shelton’s argument that
his trial counsel was deficient in failing to seek a mistrial
after one of the jurors admitted that she knew the prosecuting
witness.
Juror Brock stated that she did not know T.J. well, nor
was she aware of any of the facts underlying the charges against
Shelton.
In addition, she told the court that she would be able
to consider the evidence impartially.
Furthermore, the trial
court designated Brock as the alternate juror.
Given these
circumstances, the trial court would have been within its
discretion to deny a motion for a mistrial had one been made.17
Consequently, Shelton’s trial counsel was not deficient in
failing to move for a mistrial.
Similarly, we still find no merit to Shelton’s
contention that his trial counsel should have obtained an expert
witness to examine T.J. and the other juvenile prosecuting
witness.
Unlike the movant in Norton, Shelton does not point to
any specific witnesses whose testimony would have supported his
15
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L.
Ed. 2d at 695.
16
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
17
Talbott v. Commonwealth, Ky., 968 S.W.2d 76, 86 (1998).
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defense.
Rather, he merely asserts than an expert might have
been able to suggest reasons why the juveniles would fabricate
their testimony.
Shelton’s mere conjecture of an expert witness
who would support his defense does not rise to the level of a
reasonable probability the jury would have reached a different
result.
Likewise, we find no prejudice from trial counsel’s
failure to request a hearing to determine whether the juvenile
witnesses’ testimony was “tainted.”
First, we recognize that a
defense attorney enjoys great discretion in trying a case,
especially with regard to trial strategy and tactics.
Thus, we
must be especially careful not to second-guess or condemn in
hindsight the decisions of defense counsel.18
Under the
circumstances, trial counsel’s decision to develop these issues
at trial, rather than in a pre-trial hearing, was not clearly
unreasonable.
Second, we agree with the trial court that there is no
authority which would have entitled Shelton to a “taint” hearing
prior to trial.
unnecessary.
Likewise, a hearing pursuant to KRE 412 was also
During trial, Shelton’s trial counsel was permitted
to develop facts reflecting on the credibility of the prosecuting
witnesses.
Shelton failed to establish that a pre-trial hearing
would have produced any additional evidence.
Lastly, Shelton argues that he was entitled to
discovery, appointment of counsel and a hearing on his CR 60.02
motion, which alleged misconduct on the part of the prosecutor.
18
Harper v. Commonwealth, Ky., 978 S.W.2d 311, 317 (1998).
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Throughout both of the trials, Lawrence Ray Carmichael was the
Commonwealth's Attorney for the 28th Judicial Circuit, which
encompasses Pulaski, Rockcastle, and Lincoln counties.
On
October 9, 1998, in the United States District Court for the
Eastern District of Kentucky, Carmichael was convicted by a jury
of the offense of attempted extortion for knowingly, willfully,
and unlawfully attempting to affect interstate commerce in the
movement of articles and commodities in interstate commerce by
extortion.19
§ 1951.
This is a felony offense in violation of 18 U.S.C.
Following this conviction, the Kentucky Supreme Court
suspended Carmichael’s licence to practice law, pending
disciplinary proceedings against him by the Inquiry Tribunal.20
In an affidavit attached to his CR 60.02 motion,
Shelton alleged as follows:
On the day of my Trial, I was asked by the
Prosicutor [sic] Mr. Charmiceal [sic] about
how much money I had and what Kind of
Property I owned. I figured that this was
about bond because I was out on bond. After
reading the news papers I really wonder if
that was all he was wondering about. This
took place outside of the court room back by
the Courts Law Library
Shelton contends that this exchange is evidence that
Carmichael pursued the prosecution against him vindictively.
In
light of subsequent events, Shelton asserts that Carmichael
sought to enhance his own reputation (and to deflect suspicion of
19
See United States v. Carmichael, 232 F.3d 510 (6th Cir.,
2000); cert. den. 532 U.S. 574, 149 L. Ed. 2d 472, 121 S. Ct.
1607 (2001).
20
Kentucky Bar Association v. Carmichael, Ky., 982 S.W.2d
202 (1988).
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wrongdoing away from himself) with a high profile case against an
indigent defendant.
Based upon this evidence, Shelton argues
that he was entitled to discovery against the Commonwealth’s
Attorney’s office and a hearing to develop this claim.
Fraser v. Commonwealth alters our analysis of the issue
presented in Shelton’s CR 60.02 motion.
remains the same.
However, the result
The record does not conclusively refute
Shelton’s allegation that the prosecutor approached him prior to
trial or that the prosecutor asked Shelton about the amount of
property which he owned.
Thus, for purposes of this appeal, we
must assume that the prosecutor had an ulterior motive in
prosecuting Shelton.
Likewise, we will assume for purposes of
this appeal that this ulterior motive led Carmichael to prosecute
Shelton more forcefully than he would have done otherwise.
In support of his argument that he was entitled to a
hearing and discovery on this issue, Shelton relies heavily on
Bracy v. Gramley.21
In Bracy, the defendant was tried, convicted
and sentenced to death before a judge who was later convicted of
taking bribes from criminal defendants.
There was no evidence
that the judge was bribed in Bracy’s case.
However, there was
sufficient evidence to raise an inference that the judge had an
interest in a conviction to deflect suspicion that he was taking
bribes in other cases.
That interest raised a suspicion that the
judge was biased, and that the bias affected the judge’s
discretionary rulings.
In addition, Bracy noted that his trial
counsel may have been a former associate of the judge.
21
Bracy
520 U.S. 899, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997).
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alleged that the judge had appointed him with the understanding
that counsel would not object to, or interfere with a prompt
trial.
Bracy asserted that the prompt trial in his case
camouflaged the bribe negotiations which were ongoing in another
murder case.
Under the circumstances, the United States Supreme
Court concluded that Bracy was entitled to develop these
allegations of judicial misconduct.22
It should be noted that in Bracy, there was evidence of
extensive and pervasive judicial corruption, but none of that
evidence related specifically to Bracy’s case.
Nevertheless, the
United States Supreme Court found that the evidence of corruption
amounted to good cause warranting further discovery and a
hearing.
Furthermore, the Supreme Court made it clear that Bracy
must show that the trial judge’s misconduct caused the judge to
be biased in his case.23
By contrast in the present case, there is no allegation
of pervasive misconduct by the prosecutor, nor can Shelton point
to any misconduct by Carmichael in other cases which might
warrant an inference of misconduct in his case.
Furthermore,
Shelton’s allegations do not cast doubt on the validity of his
conviction.
22
There is no allegation that Carmichael actually
Id. at 908-09, 138 L. Ed. 2d at 106-07.
23
Id. at 909, 138 L. Ed. 2d at 106. On remand, the Seventh
Circuit Court of Appeals upheld Bracy’s conviction but set aside
his death sentence. Bracy v. Schomig, 2002 U.S. App. LEXIS 14292
(7th Cir., 03/29/2002). A sharply divided Seventh Circuit,
sitting en banc, concluded that Bracy had shown specific actions
by the trial judge and defense counsel during the sentencing
phase, which when viewed in light of the judge’s corrupt conduct
in other cases, warranted an inference of bias with respect to
the imposition of the death penalty.
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sought money from Shelton in exchange for lenient treatment.
Shelton does not claim that Carmichael took any action or made
any representations which affected his substantial rights.
Nor
is there any indication of prosecutorial misconduct affecting the
fairness of Shelton’s trial or the adequacy of his defense.
Indeed, Shelton does not suggest what type of action Carmichael
could have taken to affect the outcome of his trial.
The mere
possibility of bad motivations on the part of the prosecutor,
without some reason to believe that the bad motivation affected
the outcome of the trial, is not sufficient to justify relief
under CR 60.02.
Consequently, the trial court properly denied
his motion without a hearing.
Accordingly, the order of the Lincoln Circuit Court
denying Shelton’s motions pursuant to RCr 11.42 and CR 60.02 are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Thomas Ruff
LaGrange, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
Courtney A. Jones
Assistant Attorney General
Frankfort, Kentucky
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