BERNARD CARUSO v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 2, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2002-CA-002330-MR
BERNARD CARUSO
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
INDICTMENT NO. 95-CR-00084
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, and MINTON, Judges.
MINTON, Judge:
Bernard Caruso appeals from an order of the
Boyle Circuit Court which denied his motion for relief under
Kentucky Rules of Criminal Procedure (RCr) 11.42 following an
evidentiary hearing.
We affirm.
The substance of Caruso’s RCr 11.42 claim is that his
trial counsel was constitutionally ineffective for failing to
object to the complaining witness’s trial testimony or otherwise
to attempt to impeach her testimony sufficiently through crossexamination
at
trial.
He
argues
that
adequate
pretrial
investigation would have revealed that the complaining witness
“had a documented history of fabricating stories about people.”
He also asserts that counsel’s failure to object to questions
during
cross-examination
about
Caruso’s
own
prior
bad
acts
prejudiced the defense to the extent that defense counsel should
have sought a mistrial.
The
Boyle
County
Grand
Jury
indicted
Caruso
on
August 4, 1995, on the charge of Indecent and Immoral Practices
with a female child less than 15 years of age. The principal
complaining
witness
before
the
Grand
Martha Boyd, Caruso’s former wife.
Jury
and
at
trial
was
It appears that in 1972 or
1973 Caruso married Boyd, who was herself about 16 years old and
about
thirty
years
younger
than
Caruso.
She
claimed
that
between the summer of 1971 and March of 1972, prior to their
marriage and while she was less than 15 years old, Caruso had
detained her against her will and had sexual contact with her.
At the time of these alleged acts, they were declared unlawful
by KRS 435.105.
The statute was repealed in 1974 with the
adoption of the current penal code.
On November 13, 1995, a Boyle County jury convicted
Caruso of Indecent and Immoral Practices against a child less
than 15 years of age.
Before sentencing, Caruso fled to the
2
Philippines
where
he
returned
to
Boyle
County
five
years
after
almost
was
arrested
for
he
final
was
on
a
bench
warrant
disposition
tried
and
of
this
convicted.
and
case
He
was
finally sentenced on July 17, 2000, to a maximum term of eight
years.1
The
judgment
was
affirmed
on
direct
appeal
in
an
unpublished opinion of this Court rendered April 26, 2002.
On
November
12,
2001,
while
his
direct
appeal
was
pending, Caruso filed a pro se RCr 11.42 motion to vacate, set
aside, or correct his sentence.
The circuit court appointed
counsel to supplement Caruso’s motion, where necessary, and to
represent Caruso at an evidentiary hearing, which was conducted
on July 18, 2002.
Testimony
at
the
evidentiary
hearing
disclosed
that
both before and after the trial Caruso’s counsel made motions
addressing most of the issues Caruso raised in his RCr 11.42
motion.
Thus,
the
written
record
actually
refutes
Caruso’s
claims that trial counsel did nothing to attempt to dismiss the
indictment, to limit Boyd’s testimony that Caruso had killed
puppies, to suppress references to Caruso’s prior physical abuse
of
Boyd,
or
to
keep
out
references
1
to
criminal
activity
by
In the five-year hiatus between the trial and final judgment, the
official stenographer who reported the trial disappeared. Apparently,
no one could decipher and transcribe her notes.
As discussed at
length on the record of the hearing before the circuit court on
February 1, 2002, there is no official transcript of the trial of this
case.
3
Caruso’s
son.
As
to
the
real
nub
of
Caruso’s
argument--that
trial counsel had failed adequately to investigate Martha Boyd’s
reputation for untruthfulness and specifically to discover the
inconsistent statements she allegedly made to the Boyle County
Grand
Jury--the
trial
court
found
and
concluded
that
Caruso
simply did not make the minimal showing that counsel had failed
to perform an investigation or that counsel’s trial performance
fell short of reasonable professional standards. At the conclusion of the hearing, the trial court announced on the record
that Caruso had failed to present any facts to justify RCr 11.42
relief.
By order entered August 27, 2002, the circuit court set
forth written findings of fact and conclusions of law in support
of its denial of Caruso’s motion.
We agree with the trial
court’s conclusions.
In
order
to
establish
a
claim
of
ineffective
assistance of counsel, a defendant must establish that counsel's
performance
was
deficient
prejudiced the defense.2
receive
reasonable
and
that
the
deficient
performance
Because a defendant is only entitled to
effective
assistance,
the
defendant
must
establish that counsel's representation fell below an objective
standard of reasonableness or the prevailing professional norms.
2
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).
4
The defendant making the motion bears the burden of proof and
must overcome a strong presumption that counsel's performance
was adequate.3
Caruso received an evidentiary hearing which gave him
a chance to show the existence of evidence that he claims his
counsel should have uncovered through more thorough investigation around Martha Boyd’s credibility.
such
evidence.
The
strong
But Caruso offered no
presumption
that
counsel’s
per-
formance was effective cannot be overcome by speculation and
innuendo concerning a victim’s character.4
Caruso’s failure to
offer evidence to dispel the deference that the court had to
afford to counsel’s actions is fatal to his claim of ineffectiveness.
Moreover, Kentucky courts have long held that “an
attack upon the credibility of the witness and the admissibility
and sufficiency of the evidence...is not a ground for relief
under RCr 11.42.”5
Thus, we find no error in the trial court’s decision
that Caruso failed to present evidence of deficiency by trial
3
See Jordan v. Commonwealth, Ky., 445 S.W.2d
McKinney v. Commonwealth, Ky., 445 S.W.2d 874 (1969).
4
878
(1969);
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at
695.
5
Brock v. Commonwealth, Ky., 479 S.W.2d 644, 645 (1972); Harris v.
Commonwealth, Ky., 441 S.W.2d 143, 144 (1969); Davenport v.
Commonwealth, Ky., 390 S.W.2d 662, 663 (1965).
5
counsel
much
less
that
any
deficiency
by
trial
counsel
prejudiced his case.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bernard Caruso, #146520, Pro se
KENTUCKY STATE REFORMATORY
LaGrange, Kentucky
Albert B. Chandler, III
ATTORNEY GENERAL
Frankfort, Kentucky
Kent T. Young
ASSISTANT ATTORNEY GENERAL
Frankfort, Kentucky
6
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