RICKY L. DAUGHERTY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 12, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001416-MR
RICKY L. DAUGHERTY
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN, III, JUDGE
ACTION NO. 97-CR-00242
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Ricky L. Daugherty, pro se, has appealed from an
order of the Daviess Circuit Court entered on April 24, 2000,
which denied his motion to vacate sentence and conviction
pursuant to RCr1 11.42.
Having concluded that all issues raised
by Daugherty in the case sub judice were either raised or should
have been raised in his direct appeal2 to this Court or that he
1
2
Kentucky Rules of Criminal Procedure.
Daugherty v. Commonwealth, 1998-CA-001641-MR, rendered
November 19, 1999, not-to-be-published.
has otherwise failed to establish that he is entitled to relief,
we affirm.
Daugherty was indicted by a Daviess County grand jury
on July 7, 1997, for the offenses of theft by unlawful taking of
property valued at $300.00 or more,3 criminal attempt to commit
theft by unlawful taking of property valued at $300.00 or more,4
and for being a persistent felony offender in the first degree
(PFO I).5
The Commonwealth moved the trial court to dismiss the
charge of criminal attempt and to amend the PFO I charge to PFO
II.
On June 18, 1998, Daugherty was tried for the theft of a
motor vehicle which had been found wrecked and abandoned.
The
jury convicted Daugherty of theft by unlawful taking over $300.00
and for being a PFO II.
The jury recommended a sentence of five
years in prison, enhanced to 10 years by virtue of the conviction
for PFO II.
Daugherty filed a motion for a new trial and for
judgment notwithstanding the verdict on June 25, 1998, which the
trial court denied on June 30, 1998.
Also, on June 30, 1998, the
trial court sentenced Daugherty to 10 years in prison in
accordance with the jury’s recommendations.
Daugherty filed
several motions for shock probation, which were also denied by
the trial court.
Daugherty directly appealed his conviction to this
Court, which in a non-published opinion rendered on November 19,
3
Kentucky Revised Statutes (KRS) 514.030.
4
KRS 506.010.
5
KRS 532.080.
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1999, affirmed the conviction.
On April 17, 2000, Daugherty
filed a motion to vacate sentence and conviction pursuant to RCr
11.42, raising issues of ineffective assistance of counsel and
alleging violations of his constitutional right to a fair trial.
On April 24, 2000, the trial court denied Daugherty’s RCr 11.42
motion.
Daugherty then filed a motion for findings of fact and
conclusions of law stating that the trial court failed to address
all of his arguments as set forth in the RCr 11.42 motion.
On
May 5, 2000, the trial court summarily denied the motion stating
that “the Defendant’s other arguments were considered or should
have been considered on appeal.”
This appeal followed.
Daugherty claims in his first two arguments that his
“right to a fair trial guaranteed him by the Fourteenth Amendment
to the United States Constitution and Sections Two and Eleven of
the Kentucky Constitution was violated when the prosecutor
introduced false evidence against him at trial” and “when the
prosecution introduced evidence in violation of the Kentucky
Rules of Evidence” (KRE) 404(b) dealing with other bad acts.
Daugherty takes issue with the remarks made in the opening
statement by the Commonwealth’s Attorney which referred to
expected testimony from Detective Keith Cain that Daugherty had
stated “[h]e was not responsible for any other thefts.”
The
Commonwealth argues that since this issue was raised and decided
in Daugherty’s direct appeal, it cannot be raised in his RCr
11.42 motion.
We agree.
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In Gross v. Commonwealth,6 our Supreme Court stated:
We hold that the proper procedure for a
defendant aggrieved by a judgment in a
criminal case is to directly appeal that
judgment, stating every ground of error which
it is reasonable to expect that he or his
counsel is aware of when the appeal is taken
[emphasis added].
In Brown v. Commonwealth, the Supreme Court further
stated:
It is an established principle that this
Court will not address an issue which was
raised in a direct appeal or which should
have been raised in a direct appeal. In
Thacker v. Commonwealth, Ky., 476 S.W.2d 838
(1972), the court stated as follows:
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
proceeding, nor those that were
raised in the trial court and upon
an appeal considered by this
Court.7
Both of the issues concerning the Commonwealth’s opening
statement were decided adversely to Daugherty by this Court in
his direct appeal.
Thus, these two issues cannot be addressed
again by an RCr 11.42 motion.
Daugherty also argues that his “right to effective
assistance of trial counsel and due process of the law . . . were
violated when his defense counsel failed to object to
introduction of prior bad acts by [a] witness.”
6
This allegation
Ky., 648 S.W.2d 853 (1983).
7
Brown v. Commonwealth, Ky., 788 S.W.2d 500, 501
(1990)(quoting Thacker at 839).
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concerns a statement made by Det. Cain.
When the Commonwealth’s
Attorney asked Det. Cain how he knew Daugherty, Det. Cain
responded “[w]ell, I have known him and his family for a number
of years.
And in addition to that, I know him from previous
investigations.”
Daugherty claims that this statement by Det.
Cain was an improper inference to prior bad acts that he may have
committed.
Since this issue involves an evidentiary matter from
the trial, Daugherty could have raised this issue in his direct
appeal and requested that this Court review the issue as palpable
error.
However, since the error most likely would not have been
deemed to be palpable error, we will not deny Daugherty review of
the issue through this RCr 11.42 proceeding.
Nonetheless, we do
not believe that trial counsel’s failure to object to this
testimony constituted ineffective assistance of counsel.
“A showing that counsel’s assistance is so ineffective
as to require reversal has two components: (1) that counsel made
errors so serious that counsel’s performance fell outside the
wide range of professionally competent assistance; and (2) that
the deficient performance so prejudiced the defense that, but for
the errors of counsel, there is a reasonable likelihood that the
result would have been different.”8
8
The burden of proof is upon
Robbins v. Commonwealth, Ky.App., 719 S.W.2d 742, 743
(1986)(citing Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Accord Gall v. Commonwealth,
Ky., 702 S.W.2d 37, 39-40 (1986).
-5-
the appellant to demonstrate that both prongs of Strickland have
been met.9
Even if we were to conclude that trial counsel
committed an error by not objecting to Det. Cain’s reference to
“previous investigations,” any such error would not have been so
prejudicial that we can say there is a reasonable likelihood that
Daugherty would not have been found guilty.
In this Court’s
Opinion in Daugherty’s direct appeal, the Court went into some
detail discussing the sufficiency of the evidence.
From our
review of the evidence, we do not believe that Daugherty has met
his burden of demonstrating that any such error would have
prejudiced him.
We quote from this Court’s previous Opinion as
follows:
Grant saw Daugherty only a few minutes
after and a short distance away from the
accident. Daugherty’s injuries were
consistent with an automobile accident.
Daugherty used a false name to identify
himself to Grant. Daugherty was unwilling to
allow Grant to call for an ambulance. He
gave a story about a four-wheeler accident
which could never be confirmed. Daugherty
also directed Grant to drive him home by a
less than direct route which avoided the
scene of the accident. Furthermore, when he
was admitted to the hospital, Daugherty told
the emergency room staff a story different
from the one he had told Grant about how his
injuries happened.
Accordingly, even if trial counsel’s failure to object to Det.
Cain’s testimony was error, Daugherty has failed to meet his
9
Osborne v. Commonwealth, Ky.App., 992 S.W.2d 860, 863
(1998).
-6-
burden of showing that the outcome of the trial would have been
different.
Daugherty also claims the trial court failed to
properly admonish the jury pursuant to RCr 9.70.
This claim is
clearly refuted by the record, where the trial court can be seen
properly admonishing the jury.
Daugherty also claims that “the cumulative effect of
the preceding errors substantially prejudiced” him and “deprived
him of his due process rights to a fair trial.”
The allegation
that he was denied a fair trial due to cumulative errors is
obviously without merit as Daugherty has failed to establish that
any prejudicial errors occurred during his trial.
Finally, Daugherty claims the trial court erred by
denying his motion “pursuant to CR 52.02 and RCr 11.42(6) for
findings of fact and conclusions of law.”
Based on our previous
discussion of the issues raised by Daugherty, we conclude that
the trial court’s orders sufficiently addressed the issues and
further findings of fact and conclusions of law were not
necessary.
For the foregoing reasons, the order of the Daviess
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ricky L. Daugherty, Pro Se
West Liberty, Kentucky
Albert B. Chandler, III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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