HOWARD L. RALSTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 11, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000667-MR
HOWARD L. RALSTON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TOM MCDONALD, JUDGE
ACTION NO. 90-CR-001742
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, AND VANMETER, JUDGES.
VANMETER, JUDGE. Howard Ralston appeals from an opinion and
order of the Jefferson Circuit Court entered on January 21,
2003, which denied his RCr 11.42 motion for relief on grounds of
ineffective assistance of counsel.
Finding that the trial court
did not err when it denied Ralston’s RCr 11.42 motion, this
court affirms.
On September 9, 1990, Ralston shot Darrell Barker in
the chest after an altercation with Barker.
Barker died in the
hospital several days later from the gunshot wound.
A Jefferson
County Grand Jury indicted Ralston on one count of murder,
intentional or wanton, for shooting Barker; two separate counts
of wanton endangerment in the first degree regarding Richard
Fishback and Johnathan Barker who were near Barker at the time
of the shooting; one count of possession of a handgun by a
convicted felon; and one count of being a persistent felony
offender in the second degree.
Ralston proceeded to trial on April 7, 1992.
The jury
convicted Ralston of wanton murder and possession of a firearm
by a convicted felon, and he received a sentence of sixty (60)
years.1
The Kentucky Supreme Court affirmed his conviction on
appeal except to the extent it reversed and remanded the
judgment for resentencing.
On remand, Ralston waived jury
sentencing and accepted a thirty-year sentence.
The Supreme
Court then affirmed his sentence.
On May 26, 1998, Ralston filed a one hundred page RCr
11.42 motion seeking to vacate his sentence.
In his convoluted
motion, Ralston raises numerous allegations of ineffective
assistance of counsel.
By Opinion and Order entered January 21,
2003, the Jefferson Circuit Court denied Ralston’s RCr 11.42
motion.
This appeal follows.
1
The trial court directed a verdict in favor of Ralston on the wanton
endangerment count involving Johnathan Barker. The jury returned a verdict
of not guilty on the wanton endangerment count involving Richard Fishback.
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On appeal, Ralston makes two arguments of ineffective
assistance of trial counsel.
The first argument is based on a
failure to object that the evidence was insufficient to support
a charge of wanton murder.
The second argument is based on
counsel’s alleged failure to move to dismiss the indictment as
being based on false evidence.
Under Strickland v. Washington, 466 U.S. 668, 80
L.Ed.2d 674, 104 S.Ct. 2052 (1986), a petitioner who has alleged
ineffective assistance of counsel must show that (1) trial
counsel’s performance was deficient, and (2) counsel’s deficient
performance actually prejudiced the petitioner and rendered his
trial fundamentally unfair.
Id. at 687.
In Wiggins v. Smith,
539 U.S. S10, 123 S.Ct. 2527, 2535, 2541, 156 L.Ed.2d 471
(2003), the Supreme Court reaffirmed its holding in Strickland,
stating the petitioner must show with a reasonable probability
that, but for counsel’s unprofessional errors, the results of
the trial would have been different. 123 S.Ct. at 2542.
The
Supreme Court has defined reasonable probability as a
probability sufficient to undermine confidence in the outcome.
Id. (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2052).
Ralston’s first argument, regarding counsel’s alleged
failure to move for dismissal based on the insufficiency of the
evidence, has two flaws.
The first flaw is that Kentucky courts
have long held that insufficiency of the evidence is not a
-3-
ground for relief under RCr 11.42.
Brock v. Commonwealth, Ky.,
479 S.W.2d 644, 645 (1972) (“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”);
Harris v. Commonwealth, Ky., 441 S.W.2d 143, 144 (1969);
Davenport v. Commonwealth, Ky., 390 S.W.2d 662, 663 (1965).
The
second flaw in this argument is that the record clearly
demonstrates that Ralston’s trial counsel argued for a directed
verdict based on the failure to prove a wanton or intentional
act, and counsel filed a post-trial motion for a new trial
stating “[t]he evidence presented by the Commonwealth was
insufficient to submit the murder charge to the jury.”
Clearly
this issue was raised at trial, and as such it was properly a
subject for appeal.
An issue which was or could have been
raised on direct appeal is not properly the subject of an RCr
11.42 motion.
Haight v. Commonwealth, Ky., 41 S.W.3d 436, 441
(2001); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998)
Ralston’s second claim, that the indictment was
procured by false evidence, is also procedurally barred.
In
Johnson v. Commonwealth, Ky., 391 S.W.2d 365 (1965), one of the
grounds alleged for an RCr 11.42 motion was “the indictment was
null and void, ‘and was returned by prejudice methods used by
the Court.’”
With little comment, the Johnson court summarily
-4-
dismissed the claim as presenting grounds
which were
unavailable bases for relief. Id.
Notwithstanding this procedural bar, Ralston cites
Commonwealth v. Baker, Ky. App., 11 S.W.3d 585, 588 (2000), in
which this court held that courts have the inherent power to
dismiss indictments based on nonconstitutional irregularities,
including prosecutorial misconduct occurring before the grand
jury.2
Ralston’s argument is premised on the belief that had his
trial counsel brought the “perjured” testimony to the attention
of the trial court, the trial court under the rationale set out
in Baker would have dismissed the indictment.3
However, in order
to obtain such relief, the defendant must demonstrate a flagrant
abuse of the grand jury process that resulted in actual
2
While this court recognized the power of the courts to dismiss indictments,
the court also noted that “[c]ourts are extremely reluctant to scrutinize
grand jury proceedings as there is a strong presumption of regularity that
attaches to such proceedings. Ordinarily, courts should not attempt to
scrutinize the quality or sufficiency of the evidence presented to a grand
jury. ‘An indictment returned by a legally constituted and unbiased grand
jury . . . if valid on its face, is enough to call for trial of the charge on
the merits.’” 11 S.W.3d at 588 (footnotes omitted).
3
More recently, however, the Kentucky Supreme Court held
the court has no power to go behind an indictment for the
purpose of inquiring into the competency of the evidence
before the grand jury. . . . The court will not inquire
into the legality or sufficiency of the evidence on which
an indictment is based even if it is averred that no legal
evidence was produced before the grand jury.
Jackson v. Commonwealth, Ky., 20 S.W.3d 906, 908 (2000) (quoting Rice v.
Commonwealth, Ky., 288 S.W.2d 635, 638 (1956)). The opinions in Baker and
Jackson are difficult to reconcile. A recent unpublished case, Guy v.
Commonwealth, Ky., 2002-SC-000412-MR (January 22, 2004), illustrates this
difficulty.
-5-
prejudice and deprived the grand jury of autonomous and unbiased
judgment.
Id.
In this instance, Ralston has failed to demonstrate
actual prejudice.
Even assuming the Commonwealth knowingly
presented evidence to the grand jury that multiple shots were
fired, when in fact only one shot was fired, Ralston was only
charged with one count of murder and two counts of wanton
endangerment first degree.
The evidence is undisputed, and
Ralston admits, he shot and killed the victim.
The evidence
also was that a number of people were in the area at the time of
the altercation.
The fact that others were in the area supports
the wanton endangerment charges,4 even given the “true facts” as
stated by Ralston that only one shot was fired.
See Alexander
v. Commonwealth, Ky., 766 S.W.2d 631, 632 (1988) (the single act
of firing a gun can be the basis of a conviction for both wanton
murder and for wanton endangerment in the first degree,
recognizing that the persons in the building, other than the
murder victim, are the victims of the wanton endangerment
charge); Hennemeyer v. Commonwealth, Ky., 580 S.W.2d 211,
215 (1979) (court holding that KRS 508.060 “was designed to
protect each and every person from each act coming within the
definition of the statute”).
Thus, Ralston has failed to
4
Under KRS 508.060, a person is guilty of wanton endangerment in
degree when, under circumstances manifesting extreme indifference
value of human life, he wantonly engages in conduct which creates
substantial danger of death or serious physical injury to another
-6-
the first
to the
a
person.
demonstrate either that his trial counsel’s performance was
deficient, or that counsel’s deficient performance actually
prejudiced him and rendered his trial fundamentally unfair.
The opinion and order of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Howard Ralston, Pro Se
LaGrange, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
John R. Tarter
Assistant Attorney General
Frankfort, Kentucky
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