JIMMY DWIGHT DOYLE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001482-MR
AND
NO. 2004-CA-000643-MR
JIMMY DWIGHT DOYLE
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE JAMES R. DANIELS, JUDGE
ACTION NO. 98-CR-00174
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE:
This case involves two appeals from the August
2001 conviction of Jimmy Dwight Doyle for one count of
second-degree rape.
The factual and procedural history of the
case is set out in detail in this court’s 2002 opinion, 1 which
1
Doyle v. Commonwealth, Docket No. 2001-CA-002047-MR (Ky. App. Nov. 8, 2002).
affirmed the conviction but remanded the matter for a new
sentencing hearing.
Appeal No. 2003-CA-1482-MR.
Resentencing.
This appeal arises from the fact that in Doyle’s third
trial, he received a sentence of ten years for second-degree
rape, which exceeded the five and one-half years to which he was
sentenced after his second trial.
A panel of this court
remanded the case for resentencing, based on North Carolina v.
Pearce, 2 with the following direction:
[D]ue process does not absolutely
prohibit the imposition of a harsher
punishment on retrial. Rather, the trial
court must affirmatively state its reasons
for doing so. “Those reasons must be based
upon objective information concerning
identifiable conduct on the part of the
defendant occurring after the time of the
original sentencing proceeding. And the
factual data upon which the increased
sentence is based must be made part of the
record, so that the constitutional
legitimacy of the increased sentence may be
fully reviewed on appeal.”
Under the circumstances, we conclude
that this case must be remanded to the trial
court for a new sentencing hearing. As
required by Pearce, the trial court must set
out on the record objective reasons for
imposing upon Doyle a harsher sentence than
was imposed at the second trial. In the
absence of any objective basis to support
the enhanced sentence, Doyle shall be
2
395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
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re-sentenced to a term of not more than five
years. 3
Upon resentencing, the trial court purported to
provide an objective reason for the increased sentence by
stating that Doyle had been retried by a new jury which was
unaware of the previous proceedings, and that the jury’s
recommendation of ten years had been accepted and imposed by a
new trial judge.
On direct appeal, Doyle argues that the stated
reason does not comport with this court’s direction that an
increased sentence may be based only upon “identifiable conduct”
of Doyle “occurring after the time of the original sentencing
proceeding.”
Doyle argues that only bad conduct which occurred
between the two trials can justify harsher punishment at the
time of the subsequent sentencing.
A cursory reading of this court’s prior opinion may
lead to the conclusion that the trial court’s focus should be on
Doyle’s conduct between the two trials.
However, as the opinion
relies heavily on Pearce for its decision, it is appropriate to
study Pearce in order to ascertain the meaning of the quoted
passage.
In Pearce, the Supreme Court sought to address the
possibility that a criminal defendant might be subject to
vindictiveness on retrial or resentencing after successfully
3
Doyle, slip op. at 6-7 (quoting Pearce, 395 U.S. at 726, 89 S.Ct. 2081, 23
L.Ed.2d at 670).
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appealing a first conviction.
While the language quoted
previously from Pearce is a part of this court’s prior opinion,
the Pearce court also made the following statement:
We hold, therefore, that neither the
double jeopardy provision nor the Equal
Protection Clause imposes an absolute bar to
a more severe sentence upon reconviction. A
trial judge is not constitutionally
precluded, in other words, from imposing a
new sentence, whether greater or less than
the original sentence, in the light of
events subsequent to the first trial that
may have thrown new light upon the
defendant's “life, health, habits, conduct,
and mental and moral propensities.” Williams
v. New York, 337 U.S. 241, 245, 69 S.Ct.
1079, 1082, 93 L.Ed. 1337. Such information
may come to the judge's attention from
evidence adduced at the second trial itself,
from a new presentence investigation, from
the defendant's prison record, or possibly
from other sources. The freedom of a
sentencing judge to consider the defendant's
conduct subsequent to the first conviction
in imposing a new sentence is no more than
consonant with the principle, fully approved
in Williams v. New York, supra, that a State
may adopt the “prevalent modern philosophy
of penology that the punishment should fit
the offender and not merely the crime.” Id.,
337 U.S. at 247, 69 S.Ct., at 1083. 4
As this quotation makes clear, the focus of the inquiry on
resentencing is not, as Doyle argues, on the activities and
conduct of the defendant following the first sentencing.
Rather, the focus is on what is learned about the defendant
following the first sentencing proceeding.
4
Pearce, 395 U.S. at 723, 89 S.Ct. at 2079-80.
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In the present case, and as noted by the Commonwealth
and the trial judge, the objective factor which led to Doyle’s
increased penalty on resentencing was his retrial by a different
jury before a different judge.
Additionally, as the
Commonwealth had three chances to try Doyle, it would not be
surprising if the Commonwealth’s practice of the case improved
with each trial, given its knowledge of the defense’s theory of
the case and the testimony of the defense witnesses.
Since the
first jury imposed the sentence of five and one-half years and a
different judge imposed that sentence, it would be an impossible
task, in these limited circumstances, for anyone to ascertain
any further the factors which led to an increased sentence.
The
trial court therefore complied with the direction of this court
in its prior decision.
Appeal No. 2003-CA-643-MR.
RCr 11.42.
In this appeal, Doyle raises a number of allegations
concerning ineffective assistance of counsel: failure to
interview witnesses and investigate the case; failure to retain
an expert witness’ and failure to preserve a challenge to the
composition of the jury pool.
-5-
The standard for challenging a conviction under RCr
11.42 is well known.
As noted by the Kentucky Supreme Court in
Haight v. Commonwealth: 5
The standards which measure ineffective
assistance of counsel are set out in
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord
Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985); Sanborn, [975 S.W.2d 905 (Ky. 1998)].
In order to be ineffective, performance of
counsel must be below the objective standard
of reasonableness and so prejudicial as to
deprive a defendant of a fair trial and a
reasonable result. Strickland, supra.
"Counsel is constitutionally ineffective
only if performance below professional
standards caused the defendant to lose what
he otherwise would probably have won."
United States v. Morrow, 977 F.2d 222, 229
(6th Cir. 1992). The critical issue is not
whether counsel made errors but whether
counsel was so thoroughly ineffective that
defeat was snatched from the hands of
probable victory. Morrow, supra. The
purpose of RCr 11.42 is to provide a forum
for known grievances, not to provide an
opportunity to research for grievances.
Gilliam v. Commonwealth, 652 S.W.2d 856, 858
(Ky. 1983).
In considering ineffective assistance,
the reviewing court must focus on the
totality of evidence before the judge or
jury and assess the overall performance of
counsel throughout the case in order to
determine whether the identified acts or
omissions overcome the presumption that
counsel rendered reasonable professional
assistance. See Morrow; Kimmelman v.
Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91
L.Ed.2d 305 (1986).
5
41 S.W.3d 436, 441-42 (Ky. 2001) [citations have been revised to comply with
CR 76.12(4)(g)].
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A defendant is not guaranteed errorless
counsel, or counsel judged ineffective by
hindsight, but counsel likely to render and
rendering reasonably effective assistance.
McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.
1997). Strickland notes that a court must
indulge a strong presumption that counsel's
conduct falls within the wide range of
reasonable professional assistance. The
right to effective assistance of counsel is
recognized because of the effect it has on
the ability of the accused to receive a fair
trial.
In a RCr 11.42 proceeding, the movant
has the burden to establish convincingly
that he was deprived of some substantial
right which would justify the extraordinary
relief afforded by the post-conviction
proceeding. Dorton v. Commonwealth, 433
S.W.2d 117, 118 (Ky. 1968). Even when the
trial judge does conduct an evidentiary
hearing, a reviewing court must defer to the
determination of the facts and witness
credibility made by the trial judge.
Sanborn; McQueen v. Commonwealth, 721 S.W.2d
694 (Ky. 1986); McQueen v. Scroggy, 99 F.3d
1302 (6th Cir.1996).
As to Doyle’s claim that trial counsel failed to
secure alibi witnesses, principally Sam Prather, courts
generally view such allegations skeptically “because the
presentation of testimonial evidence is a matter of trial
strategy and because allegations of what a witness would have
testified are largely speculative." 6
In fact, in his own
testimony, Doyle conceded that Prather, an uncle of the victim,
6
Graves v. Cockrell 351 F.3d 143, 156 (5th Cir. 2003) (citing Buckelew v.
United States, 575 F.2d 515, 521 (5th Cir. 1978); Murray v. Maggio, 736 F.2d
at 282 (not favored in federal habeas review)).
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had refused to testify at a previous trial out of fear of
retribution from his own family.
Whether Sam Prather would have
been willing to testify, and whether his testimony would have
been helpful to Doyle are therefore open questions.
Doyle next alleges that his trial counsel in the third
trial failed to investigate or prepare adequately, as his
preparation was based on watching the videotapes of the prior
two trials.
As the Kentucky Supreme Court stated in Haight, 7
counsel has a duty to make reasonable
investigation or to make a reasonable decision
that makes particular investigation
unnecessary under all the circumstances and
applying a heavy measure of deference to the
judgment of counsel. A reasonable
investigation is not an investigation that the
best criminal defense lawyer in the world,
blessed not only with unlimited time and
resources, but also with the benefit of
hindsight, would conduct.... The investigation
must be reasonable under all the
circumstances.
The record, however, indicates that trial counsel was
engaged in the third trial, secured a psychological expert to
question the credibility of the victim, was aware of prior
testimony from the previous proceedings, and was able to
cross-examine effectively as to prior inconsistent statements.
While Doyle in hindsight questions his counsel’s performance,
after two previous trials, few, if any, aspects of the case
remain unknown.
7
Doyle has failed to meet his burden of
41 S.W.3d at 446.
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demonstrating that counsel’s performance was deficient on this
ground.
Next, Doyle alleges that trial counsel was ineffective
in failing to request a DNA expert.
In the present case, the
DNA analysis revealed that the cells from the vaginal swab were
consistent with Doyle’s DNA, and that the DNA matched 1 in
825,000,000 samples.
Doyle does not allege that the
Commonwealth’s evidence was unreliable or invalid, or suggest
what an expert would have uncovered. 8
Doyle’s allegation
therefore fails both prongs of the Strickland test, i.e., he
fails both to show that trial counsel’s performance was
defective, and to show how he was prejudiced.
Finally, Doyle’s allegation concerning the composition
of the jury pool is meritless.
Doyle, in his RCr 11.42 motion
filed with the trial court, conceded that the jury pool
contained a number of potential African-American jurors.
The
record further indicates that the failure of any
African-American to reach the jury was due not to any action by
the prosecutor, but instead merely to the “luck of the draw.”
As such, no action or inaction by Doyle’s trial counsel
regarding the composition of the jury pool or the jury resulted
in ineffective assistance of counsel.
8
See Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998) (defendant
failing to demonstrate that experts were not qualified, or that trial counsel
had reason to believe they were unqualified).
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The judgment of the McCracken Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Euva D. May
Assistant Public Advocate
Office of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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