ROBERT L. ROLAND v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED:
OCTOBER 21, 2005; 2:00 P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001461-MR
ROBERT L. ROLAND
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
INDICTMENT NO. 99-CR-00608
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
HUDDLESTON, SENIOR JUDGE:
On March 1, 2000, in Kenton Circuit
Court, Robert L. Roland was tried and convicted of rape in the
second degree and sentenced to serve seven years in prison.
After this Court affirmed Roland’s conviction, he filed,
pursuant to Kentucky Rules of Criminal Procedures (RCr) 11.42, a
motion to alter, amend or vacate his conviction.
1
In his
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
seventy-nine page motion, Roland presented multiple allegations
of ineffective assistance of counsel.
When the circuit court
denied Roland’s RCr 11.42 motion without appointing counsel or
affording him a hearing, he appealed to this Court. 2
At trial, the victim, W.E., testified that she was
twelve years old when she and Roland had sexual intercourse
eight times over several months.
Most importantly for the
present appeal, W.E.’s testimony in conjunction with the
testimony of Detective Ray Haley, the investigating officer,
revealed that, on March 11, 1999, Roland took W.E. to the
Lookout Motel where they stayed in room 23.
had sexual intercourse three times.
While there, they
Roland, on the other hand,
testified that he never took W.E. to the Lookout Motel and never
had intercourse with her.
He claimed that on March 11th, he took
“Shelly”, a woman he had met that day at a local Sunoco gas
station, not W.E., to the Lookout Motel.
Because Roland’s trial
counsel neither called Shelly as a witness nor even tried to
search for her, Roland had no one to corroborate his alibi;
therefore, he says, his trial counsel rendered ineffective
assistance of counsel.
Roland claims that, after he was convicted, he, with
the help of his family, found Shelly.
As proof, Roland has
produced a handwritten affidavit from Shelly Trautman who claims
2
In his pro se brief, Roland raises numerous issues. We shall only address
Roland’s major arguments since the remaining ones lack merit.
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that, on March 17, 1999, she met Roland at a local Sunoco
service station, and, later that day, they checked into the
Lookout Motel for a one-night stay.
According to Strickland v. Washington, 3 a movant who
contends that his trial counsel rendered ineffective assistance
of counsel must show that (1) counsel’s performance was
deficient and (2) that the deficient performance actually
prejudiced the movant and rendered his trial fundamentally
unfair. 4
In Wiggins v. Smith, 5 the United States Supreme Court
re-affirmed Strickland and held that a movant must show with
reasonable probability that but for counsel’s errors the results
of his trial would have been different. 6
The Court defined
“reasonable probability” as a probability sufficient to
undermine confidence in the outcome. 7
The evidence adduced at trial revealed that Roland had
taken W.E. to the Lookout Motel on March 11, 1999.
In contrast,
Shelly Trautman stated in her affidavit she and Roland went to
the same motel on March 17, 1999, not March 11th.
So, even if
Roland’s trial attorney had found Trautman and called her as a
witness, her testimony would not have supported Roland’s alibi.
3
4
5
6
7
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1986).
Id., 466 U.S. at 687.
539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
Id., 539 U.S. at 534.
Id., quoting Strickland, 466 U.S. at 694.
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Therefore, Roland’s attorney did not render ineffective
assistance in failing to locate Trautman and call her as a
witness at trial.
During her testimony, W.E. told the jury that Roland
gave her his pager number and that she used it to contact him.
Roland testified that he did not know how W.E. obtained his
number.
Now, Roland insists that his attorney rendered
ineffective assistance when he failed to call his friend, Miguel
Johnson, as a witness.
This is so because, according to Roland,
Johnson would have testified that it was he who gave Roland’s
number to W.E.
Roland did not tender an affidavit from Johnson
in support of his RCr 11.42 motion; thus, we are left to
speculate whether Johnson would have supported Roland’s
assertion that it was not he, but Johnson, who provided W.E.
with the pager number.
In any event, Roland does not claim, and
it is improbable, to say the least, that Johnson’s testimony on
this relatively minor point would have had any effect on the
outcome of the trial.
Thus, Roland has failed to show his trial
counsel’s performance was deficient.
At trial, during the testimony of lead investigator
Detective Ray Haley, the Commonwealth introduced a completed
guest registration card containing Roland’s name, his personal
information and the date, March 11, 1999.
While the card did
not contain the name of the motel from which it came, the
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prosecutor stated that it came from the “Denlou” Motel.
Now,
Roland argues that his attorney rendered ineffective assistance
when he failed to object to the introduction of the card.
It
had no probative value, according to Roland, and its
introduction was prejudicial.
At trial, both W.E. and Detective Haley offered the
same information in their testimony that was found on the
registration card.
Their testimony corroborated the information
on the card, and the evidence strongly implied that Detective
Haley actually obtained the card from the Lookout Motel, not the
“Denlou” Motel.
So, Roland has failed to show that his attorney
rendered ineffective assistance in failing to object to the
introduction of the registration card.
While receiving treatment for chlamydia and gonorrhea,
W.E. told Child Protective Services that she had been having
sexual intercourse with Roland.
At trial, Roland wanted to
offer proof of W.E.’s past sexual conduct, but the trial court
sustained an objection to such evidence.
On appeal, he claims
that W.E. likely contracted gonorrhea and chlamydia from her
stepfather, who, Roland says, had been previously convicted of
molesting W.E.
And he argues that his attorney was ineffective
because he failed to tell the circuit court that he needed to
present evidence of W.E.’s sexual history to show that W.E.’s
stepfather, not Roland, had infected her with venereal diseases.
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Roland offers no proof by affidavit or otherwise to
support his allegation that W.E.’s stepfather had either
chlamydia or gonorrhea or that W.E. contracted either of these
diseases from him.
Roland has thus failed to show that his
trial counsel rendered ineffective assistance when he did not
advise the circuit court why the proffered evidence of W.E.
prior sexual activity was relevant.
Roland also claims that his attorney rendered
ineffective assistance when he failed to move the court to
instruct the jury that it could find him guilty of either the
lesser-included offense of rape in the third degree or sexual
misconduct if it had a reasonable doubt that the Commonwealth
had proved all of the elements of second-degree rape.
Roland
argues that evidence supported such instructions because W.E.
testified that, when she met Roland, she told him that she was
seventeen years old.
KRS 510.050 sets forth the elements of rape in the
second degree as it applies in this case:
(1) A person is guilty of rape in the second
degree when:
(a) Being eighteen (18) years old or more,
he engages in sexual intercourse with
another person less than fourteen (14) years
old[.]
The elements of rape in the third degree are set forth in KRS
510.060 as it would apply in this case:
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(1) A person is guilty of rape in the third
degree when:
. . .
(b) Being twenty-one (21) years old or more,
he engages in sexual intercourse with
another person less than sixteen (16) years
old[.]
According to the commentary following the seconddegree rape instruction found in Cooper’s Kentucky Instructions
to Juries,
[i]f there is an issue whether the victim
was less than fourteen years of age and if
the defendant was at least twenty-one years
of age, an instruction on Third-Degree Rape
should be given as a lesser included
offense[.] 8
So, to justify an instruction on rape in the third degree, the
evidence would have to have placed into issue W.E.’s age, i.e.,
that she was greater than fourteen but less than sixteen years
of age.
But the unchallenged evidence was that W.E. was twelve
years old when Roland had sex with her.
According to Justice
Cooper, an instruction for second-degree rape is appropriate
when
the evidence would support a verdict that
the defendant, being eighteen years of age
or older, engaged in sexual intercourse with
a victim, who was less than fourteen years
of age. 9
8
1 WILLIAM S. COOPER, KENTUCKY INSTRUCTIONS TO JURIES, § 4.28 (Revised 4th ed.
1999).
9
Id.
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This is precisely what the evidence adduced at trial
established.
That evidence did not support an instruction for
rape in the third degree.
KRS 510.140 sets forth the elements of sexual
misconduct:
(1) A person is guilty of sexual misconduct
when he engages in sexual intercourse or
deviate sexual intercourse with another
person without the latter’s consent.
At first blush, Roland’s argument appears to have merit.
But
the commentary following KRS 510.140 undermines his position:
KRS 510.140 represents the basic crimes of
rape and sodomy and, therefore, includes all
of the higher degrees of each of these
crimes. It provides a useful pleabargaining tool for the prosecutor in
certain cases even though some degree of
forcible compulsion or incapacity to consent
may be present.
But the basic purpose of KRS 510.140 is to
preserve the concept of statutory rape and
statutory sodomy. When read in conjunction
with the rape and sodomy statutes, KRS
510.140 is designed primarily to prohibit
nonconsensual sexual intercourse or deviate
sexual intercourse under two circumstances:
when the victim is 14 or 15 and the
defendant is less than 21; or when the
victim is 12, 13, 14, or 15 and the
defendant is less than 18 years of age. In
this context the ages of the defendant and
the victim are critical.
If the accused is 21 or over and the victim
is less than 16, the offense constitutes
third degree rape. If the accused is 18 or
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older and the victim is under 14, the
offense constitutes second degree rape. 10
If there is a question whether the victim was actually under
fourteen and
if the defendant was less than twenty-one
years of age, an instruction on Sexual
Misconduct should be given as a lesser
included offense [of rape in the second
degree]. 11
For Roland to have been entitled to an instruction for
sexual misconduct, the evidence would have to have shown that he
was less than eighteen years old or, in the alternative, that
W.E. was fourteen or older and he was less than twenty-one years
old.
But the evidence established that Roland was twenty-six
years old, while W.E. was only twelve.
Accordingly, he was not
entitled to an instruction on sexual misconduct.
His attorney
did not render ineffective assistance in failing to move the
court to give lesser-included instructions.
At trial, Roland denied having gonorrhea, but he later
admitted during cross-examination that he had contracted
gonorrhea nine years earlier.
The prosecutor then remarked that
it was possible for Roland to have infected W.E.
attorney did not object to this remark.
Roland’s
According to Roland,
this remark was medical evidence which the prosecutor introduced
10
11
Emphasis supplied.
COOPER, supra, note 8.
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without using an expert witness to which his trial counsel
should have objected.
In actuality, Roland is arguing that this remark
amounted to prosecutorial misconduct and that his trial counsel
rendered ineffective assistance when he failed to object to it.
On direct appeal, we may only reverse a conviction for
prosecutorial misconduct when the misconduct was so serious that
it rendered the entire trial fundamentally unfair. 12
However,
Roland has not shown either that his trial was unfair or that
the result would probably have been different had his attorney
objected to the prosecutor’s statement.
Thus, he has failed to
meet the requirements of Strickland.
While Roland has raised numerous allegations of
ineffective assistance of counsel, he has failed to meet the
requirements set forth in Strickland.
Thus, the order denying
Roland’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Roland, pro se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Susan R. Lenz
Assistant Attorney General
Frankfort, Kentucky
12
Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996).
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