KENNETH JAMES BEDFORD v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 28, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-001962-MR
KENNETH JAMES BEDFORD
v.
APPELLANT
APPEAL FROM OWEN CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 98-CR-00026
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MINTON, JUDGE; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Kenneth James Bedford appeals from an
order of the Owen Circuit Court denying his motion for postconviction relief pursuant to Ky. R. Civ. P. (RCr) 11.42.
Bedford alleges that, for various reasons, he received
ineffective assistance of counsel in connection with his murder
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Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
trial in the death of Jeff Smith.
For the reasons stated below,
we affirm.
Bedford suspected that Jeff Smith had stolen guns from
him.
On May 18, 1998, Bedford and his codefendants, Travis Gray
and Mike Robinson, detained Smith at gunpoint, took Smith to
Bedford’s trailer, and interrogated him about the location of
the missing guns.
Though the evidence does not clearly reveal
who fired the fatal shot, Smith was killed on the back deck of
Bedford’s trailer.
Immediately after the murder, the body was loaded into
the victim’s vehicle and the codefendants traveled through
Kentucky, Tennessee, and Arkansas before reaching the home of
Carlton Gray, the brother of Travis Gray.
Before arriving at
their destination in Arkansas, the codefendants had agreed to
dismember and dispose of the victim’s body.
The codefendants
thereafter decapitated and dismembered the body, and dispersed
the remains over three counties in Arkansas.
On September 1, 1998, Bedford and his codefendants
were indicted for murder, kidnapping, first-degree robbery, and
tampering with physical evidence.
Prior to trial Gray and
Robinson pled guilty to all charges, and Bedford pled guilty to
the tampering charge.
Bedford’s trial was held on February 7 through
February 11, 2000, following which he was convicted of murder,
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kidnapping, and first-degree robbery.
Bedford was sentenced to
life without parole for twenty-five years.
On August 22, 2002,
the Supreme Court rendered an unpublished opinion affirming
Bedford’s conviction and sentence.
See Bedford v. Commonwealth,
Case 2000-SC-0357-MR.
On July 17, 2003, Bedford filed a motion for postconviction relief pursuant to RCr 11.42 and for a hearing on the
issues raised in his motion.
On August 13, 2003, the trial
court entered an order denying the motions.
This appeal
followed.
Bedford alleges that, for various reasons, he received
ineffective assistance of counsel in connection with his
conviction and sentence.
In order to prevail on a claim of
ineffective assistance of counsel, the defendant must satisfy
the two-part test set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gall v.
Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985), cert. denied,
478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
In
analyzing trial counsel's performance, the court must "indulge a
strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance [.]"
104 S.Ct. at 2065.
Strickland,
To show prejudice, the defendant must show
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
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been different.
A reasonable probability is the probability
sufficient to undermine the confidence in the outcome.
694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
Id. at
It is not enough for
the defendant to show that the error by counsel had some
conceivable effect on the outcome of the proceeding.
Id.;
Sanders v. Commonwealth, 89 S.W.3d 380, 386 (Ky. 2002).
First, Bedford contends that he received ineffective
assistance of counsel because trial counsel failed to file a
motion for a change of venue.
Bedford contends that the
pretrial publicity concerning the crime prejudiced the local
jury pool.
However, the crimes occurred in May 1998 and
Bedford’s trial was not held until February 2000, and so there
was a considerable period for any publicity occurring
immediately after the crime to have dissipated.
Further,
Bedford’s contentions concerning pretrial publicity are vague
and general, and do not allege specific facts supporting his
argument.
"In attempting to obtain post-conviction relief, the
movant must present facts with sufficient particularity to
generate a basis for relief."
878, 890 (Ky. 2000).
Foley v. Commonwealth, 17 S.W.3d
“RCr 11.42(2) requires that the motion
state specific grounds for relief and facts supporting those
grounds. Failure to comply warrants summary dismissal.”
v. Commonwealth, 803 S.W.2d 573, 576 (Ky. 1990).
Skaggs
In addition,
this is an issue involving trial strategy, and we will not
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second-guess trial counsel’s decision not to request a change in
venue.
It is not the function of this Court to usurp or second
guess counsel's trial strategy.
Baze v. Commonwealth, 23 S.W.3d
619, 624 (Ky. 2000).
Next, Bedford contends that he received ineffective
assistance of counsel because trial counsel failed to request
sequestration of the jury.
However, Bedford has not identified
with specificity any facts indicating that any of the jurors
were exposed to extrajudicial information as a result of their
not being sequestered, and he has accordingly failed to
demonstrate that he was prejudiced by the nonsequestration of
the jury.
Next, Bedford contends that trial counsel provided
ineffective assistance by permitting him to waive his right to a
speedy trial.
However, Bedford alleges no specific facts
demonstrating that he was prejudiced by this waiver and,
moreover, any waiver of the appellant’s right to a speedy trial
falls within the scope of legitimate trial strategy.
Because of
the difficulties inherent in making a fair assessment of
attorney performance, “a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
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action ‘might be considered sound trial strategy.’”
Strickland,
466 U .S. at 689, 104 S.Ct. at 2065.
Next, Bedford contends that trial counsel provided
ineffective assistance because he failed to retain a “mitigation
specialist” and a ballistics expert to aid in his defense.
However, Bedford does not allege specific facts illuminating how
such experts could have aided in his defense, what their
expected testimony would have been, or even if there are any
such experts who would have testified favorably to his defense.
Bedford has accordingly failed to demonstrate prejudice in trial
counsel’s failure to retain such experts.
Next, Bedford contends that trial counsel provided
ineffective assistance by waiving his right to a competency
hearing.
However, the appellant has not identified any facts
which would indicate that he was incompetent to stand trial.
This claim of ineffective counsel does not meet the standards
for relief under RCr 11.42.
RCr 11.42(2) requires a movant to
state specifically the facts upon which he relies in support of
grounds to vacate a sentence.
This claim of ineffective
assistance is not supported by facts, is based on speculation,
and is not pled with the degree of particularity required by RCr
11.42(2).
Moreover, Bedford has failed to demonstrate any
prejudice as a result of trial counsel’s alleged waiver of his
right to a competency hearing, as Bedford has not demonstrated
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that there is a reasonable probability that he would have been
found incompetent.
Next, Bedford contends that trial counsel was
ineffective for failing to secure his brother Danny Bedford’s
attendance at trial.
Danny Bedford’s statement to the police is
contained in the record, and our review of same reflects that
this witness did not have favorable information which could
reasonably be expected to have altered the outcome of the trial.
Hence, even if trial counsel was ineffective for failing to
obtain Danny’s attendance at the trial, Bedford was not
prejudiced as a result because even if trial counsel had secured
Danny Bedford’s testimony there is not a reasonable probability
that his testimony would have changed the outcome of the trial.
Next, Bedford contends that trial counsel was
ineffective in his cross-examination of June Bedford.
However,
trial counsel’s cross-examination of this witness was within the
scope of legitimate trial strategy, and we discern no
ineffective assistance in his cross-examination of June Bedford.
Next, Bedford contends that trial counsel provided
ineffective assistance during voir dire.
Specifically, Bedford
contends that trial counsel, though he moved to strike Juror 90
for cause, failed to cite the proper authority; failed to object
to the voir dire tactics of the Commonwealth; and did nothing to
prevent a witness in the case, Jack McKenzie, from sitting with
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the jury pool.
appeal.
The issue of Juror 90 was raised on direct
An issue raised and rejected on direct appeal may not
be reconsidered in these proceedings by simply claiming that it
amounts to ineffective assistance of counsel.
Hodge v.
Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003).
Moreover, trial
counsel’s response to the Commonwealth’s tactics in voir dire
was within the scope of legitimate trial strategy and, further,
Bedford has failed to identify any prejudice resulting from
trial counsel’s failure to object to the Commonwealth’s voir
dire tactics.
Next, Bedford contends that trial counsel was
ineffective because he failed to bring to the trial court’s
attention improper contacts between members of the victim’s
family and members of the jury during trial breaks and recesses.
This complaint was supported in the trial court by two
affidavits from Bedford’s wife and her cousin.
However, neither
affidavit identified either an individual juror who had been
contacted or any family member who supposedly had the improper
contact.
Again, this argument has not been stated with
sufficient specificity to warrant post-conviction relief under
RCr 11.42 and amounts to nothing more than a conclusionary
allegation.
Conclusionary allegations which are not supported
with specific facts do not justify an evidentiary hearing
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because RCr 11.42 does not require a hearing to serve the
function of discovery.
Hodge, 116 S.W.3d at 468.
Next, Bedford contends that trial counsel was
ineffective in his cross-examination of Candy Robinson; in
permitting Robinson to violate the separation of witnesses rule;
in his examination of Bedford’s wife; in his examination of
State Police Firearms Expert Ronnie Freels; in his examination
of Bertha Bailey; in his examination of Virgil McAlister; and in
his examination of various jail inmates.
However, trial
counsel’s examination of these witnesses was within the widerange of effective assistance of counsel and within the scope of
legitimate trial strategy.
Moreover, Bedford has failed to
identify how he was prejudiced by Robinson’s alleged violation
of the separation of witnesses rule.
A claim of ineffective
assistance fixes the burden on the movant to plead sufficient
facts to establish that the conduct of defense counsel was
objectively unreasonable and that a reasonable performance by
counsel would have created a reasonable probability of a
favorable result.
Hodge, 116 S.W.3d at 470.
Mere speculation
as to how other counsel might have performed either better or
differently without any indication of what favorable facts would
have resulted is not sufficient.
Id.
Conjecture that a
different strategy might have proved beneficial is also not
sufficient.
Id.
“The mere fact that other witnesses might have
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been available or that other testimony might have been elicited
from those who testified is not a sufficient ground to prove
ineffectiveness of counsel.”
Id.
Next, Bedford contends that trial counsel was
ineffective in failing to object to leading questions by the
Commonwealth on numerous instances; in failing to object to the
Commonwealth’s bolstering of Travis Gray’s and Mike Robinson’s
credibility and veracity in opening and closing arguments; in
failing to object to the improper hearsay evidence given by
Detective Figg concerning DNA reports, reports from an Arkansas
forensic anthropologist and blood samples contrary to Kentucky’s
prohibition of investigative hearsay; by failing to object to
the prosecutor’s manufacturing of evidence by way of taking
pictures of a gun which had nothing to do with the charges
against Bedford; and by failing to properly impeach Mike
Robinson.
We conclude as to each of these contentions that
trial counsel either did not provide deficient representation,
acted in accordance with legitimate trial strategy, and/or that
Bedford was not prejudiced by the alleged deficient performance.
Next, Bedford contends that trial counsel was
ineffective in the sentencing phase of the trial because he
failed to hire a “mitigation specialist”; by failing to
investigate for the penalty phase of the trial; and by failing
to call his wife in the sentencing phase of the trial; and by
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failing to object to the Commonwealth’s closing argument during
the penalty phase.
These general and vague allegations are not
sufficiently specific to satisfy RCr 11.42(2).
Moreover, trial
counsel’s decisions during the penalty phase of the trial were
within the scope of legitimate trial strategy.
Next, Bedford contends that he received ineffective
assistance of counsel because trial counsel permitted him to
enter a “blind” guilty plea to the tampering-with-evidence
charge.
Bedford contends that he entered the plea because trial
counsel told him if he entered the plea then the Commonwealth
would not be able to present evidence concerning the disposal of
the body in Arkansas and Tennessee, which evidence involved
gruesome details and pictures of the deceased.
We believe that
trial counsel’s efforts in this regard amounted to legitimate
trial strategy.
Bedford also contends that he is entitled to an
evidentiary hearing on his RCr 11.42 motion and appointment of
counsel.
A hearing in an RCr 11.42 proceeding is not required
if the allegations contained in the motion can be resolved on
the face of the record.
A hearing is required only 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.
Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
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If an evidentiary hearing is required, counsel must be appointed
to represent the movant if he/she is indigent and specifically
requests such appointment in writing.
Coles v. Commonwealth,
386 S.W.2d 465 (Ky. 1965). If an evidentiary hearing is not
required, counsel need not be appointed, “because appointed
counsel would [be] confined to the record.”
Fraser at 453.
In this case all allegations can be resolved from the
face of the record, and there are no material issues of fact
which cannot be conclusively proved or disproved by an
examination of the record.
Thus, the appellant is not entitled
to an evidentiary hearing.
Moreover, since an evidentiary
hearing is unnecessary, the appellant is not entitled to the
appointment of counsel.
In summary, let us observe that we have given careful
attention to the many allegations raised by the appellant, and
we must conclude that his arguments taken either individually or
as a whole form no basis for RCr 11.42 relief.
For the foregoing reasons the judgment of the Owen
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth James Bedford, pro se
Green River Correctional
Complex
Central City, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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