JAMES SOLOMON v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JULY 21, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001410-MR
JAMES SOLOMON
v.
APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 01-CR-00216
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: McANULTY1 AND SCHRODER, JUDGES; ROSENBLUM,2 SENIOR JUDGE.
ROSENBLUM, SENIOR JUDGE:
James Solomon (Solomon), pro se,
brings this matter of right appeal from an order of the Calloway
Circuit Court, entered June 10, 2005, summarily denying his pro
se motion made pursuant to Kentucky Rules of Criminal Procedure
(RCr) 11.42.
Before us, Solomon argues that the trial court
erred in failing to grant him an evidentiary hearing on three
1
Judge William E. McAnulty, Jr. concurred in this opinion prior to his
resignation effective July 5, 2006, to accept appointment to the Kentucky
Supreme Court. Release of the opinion was delayed by administrative
handling.
2
Senior Judge Paul W. Rosenblum 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.
issues, both individually and cumulatively, as to counsel’s
ineffectiveness.
Having concluded that the trial court
correctly determined that Solomon was not entitled to an
evidentiary hearing as the record refuted his allegations of
ineffective assistance of counsel, in that defense counsel’s
performance was neither deficient nor prejudicial to his defense
under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), we affirm.
Solomon was indicted by the Calloway County Grand Jury
for second-degree rape,3 first-degree criminal abuse,4 and firstdegree attempted criminal abuse.5
01-CR-00152.
He was also
indicted as a first-degree persistent felony offender (PFO I).
01-CR-00216.6
Upon a jury trial, he was adjudged guilty of
second-degree rape and sentenced to five years’ imprisonment,
enhanced to ten years’ imprisonment as a PFO I.
was affirmed on appeal to this Court.7
The judgment
The facts of the case are
succinctly set forth in that opinion:
3
Kentucky Revised Statutes 510.050, a class C felony.
4
Kentucky Revised Statutes 508.100, a class C felony.
5
Kentucky Revised Statutes 506.010, a class A misdemeanor.
6
The trial court ordered Indictment No. 01-CR-00216 consolidated with
Indictment No. 01-CR-00152, the former being the persistent felony offender
enhancement of the latter, resulting in an order in the record indicating
that case number 01-CR-00152 was being used for both cases.
7
Solomon v. Commonwealth, 2002-CA-001791-MR and 2002-CA-001792-MR, rendered
February 26, 2004, not to be published. Discretionary review denied by the
Kentucky Supreme Court on August 18, 2004. Solomon v. Commonwealth, 2004-SC189-D.
-2-
On May 12, 2001, H.G., the twelve-yearold victim, spent the night at a friend’s
house. Besides the two girls, three other
persons were present: Penny, the friend’s
mother; [Solomon]; and Tyler Solomon
(“Tyler”), [Solomon’s] fifteen-year old son.8
[Solomon] denied any sexual contact with
H.G. However, H.G. testified that the
thirty-seven-year-old appellant came into
the bedroom where she was trying to sleep,
laid down beside her, and proceeded to kiss
her, fondle her breasts and vagina, and
ultimately have sexual intercourse with her.9
After the incident, H.G. wrote
[Solomon] a letter postmarked June 7, 2001,
stating that she missed and loved him.
Penny’s ex-husband found the letter and
informed H.G.’s father. The authorities
were notified and [Solomon] was arrested on
June 13, 2001. On June 4, 2002, a jury
found [Solomon] guilty of second degree rape
and first degree PFO.
At [Solomon’s] trial, after laying a
foundation for their introduction, the
Commonwealth moved to introduce the letter
and two diary entries written by H.G. In
the diary entry of June 6, 2001, H.G. stated
that [Solomon] “French kissed” her and that
they “made love.” In the diary entry of
June 9, 2001, H.G. stated that [Solomon] was
her best friend and the greatest event in
her life occurred when [Solomon] kissed her.
8
Evidence adduced at trial indicated that that evening Penny and Solomon
began drinking wine together, giving some also to Tiffany, and offering some
to H.G., who refused it. Penny became so intoxicated that she passed out in
the living room. According to testimony from an investigating officer,
Solomon admitted to that night seeing Tiffany and drinking. Solomon
testified, admitting his presence at Penny’s house that evening but denying
sexual advances or intercourse with H.G. He also admitted a prior felony
conviction.
9
Evidence adduced at trial from H.G. also established that Solomon slept with
her the remainder of the night, assuring her the next morning that she did
not have to worry about pregnancy because he had undergone surgery, and that
she was his little girlfriend.
-3-
The court held that counsel’s failure to object to the
introduction of the victim’s letter or journal entries was trial
strategy, especially in light of his cross-examination of the
victim on her inconsistent statements to the police and to
medical personnel, as well as in the letter and journal entries.
In any event, the court concluded that the evidence was
permitted by Kentucky Rules of Evidence (KRE) 801A(a)(2) as an
exception to the hearsay rule for the introduction of prior
consistent statements to rebut Solomon’s charge against the
victim of imagined or fantasized improper contact with Solomon.
The court further held that defense counsel’s failure
to ask for an admonition, following the sustaining of his
objection to two questions by the prosecution to Solomon’s son
Tyler as to his knowledge of or membership in a gang, was either
a waiver or an element of trial strategy.
Additionally, the
court held that there was no palpable error in the Commonwealth
being allowed to impeach Tyler based on his juvenile felony
convictions, because Tyler’s credibility was already suspect.
Tyler testified that he fabricated a story that on the night in
question Penny had raped him because of his anger about the
charges against his father.
Also, despite his testimony that he
did not smoke marijuana and that he and Solomon were not at
Penny’s residence at the time in question because they were
driving through southwestern Kentucky for five to five and one-
-4-
half hours until the morning of May 13, 2001, his written
statement was introduced indicating that he smoked marijuana on
the night in question to fall asleep and was with Solomon at
Penny’s residence the entire evening.
He also testified that
marijuana was his drug of choice and that he received counseling
for not telling the truth.
On May 10, 2005, Solomon filed an RCr 11.42 motion,
asking that his judgment and sentence be vacated due to
ineffective assistance of counsel.
Specifically, Solomon
contended federal and state constitutional violations10 by
counsel’s failure to “make known to the court his desired action
on objections” to the admission of five Commonwealth exhibits;
federal and state constitutional violations11 by failing to
object to the introduction of suppressed evidence (medical
reports and testimony of Dr. Boles) in the form of questioning
by the Commonwealth of the victim as to whether she was examined
by a doctor and whether she had a yeast infection, and follow-up
cross-examination of the victim as to whether during this
medical visit she was told she had no injury related to the
alleged rape, and mention of the yeast infection during defense
counsel’s closing, which resulted in a question from the jury to
see the doctor’s report; federal and state constitutional
10
U.S. CONST. amends. 5, 6, 14; KY. CONST. § § 1, 2, 3, 11.
11
U.S. CONST. amends. 5, 6, 14; KY. CONST. § § 2, 3, 11.
-5-
violations12 for failing to adequately investigate and subpoena
witnesses Penny Higgins-Reed and Tiffany Higgins, for although
they were subpoenaed by the Commonwealth, they were not called,
evidencing that they would testify in Solomon’s favor; and
failure to interview seven other witnesses who would have
testified to Solomon’s whereabouts and opportunity to commit the
offense;13 and federal and state constitutional violations14 for
cumulative errors by defense counsel, including a comment during
closing to not send Solomon back to prison, and Solomon’s
general dissatisfaction with counsel prior to trial, resulting
in a request for new counsel and letters to counsel’s superiors.
Solomon attached as exhibits to his motion notes taken by
defense counsel, a jail log, and assorted letters and notes.
Solomon also requested appointment of counsel and an evidentiary
hearing.
On June 10, 2005, the trial court denied Solomon’s
motion, concluding as follows:
12
U.S. CONST. amends. 5, 6, 14; KY. CONST. § § 2, 3, 11.
13
Jennifer Grogan – could testify that she was taken by Solomon and Tyler to
Penny’s house on the evening in question and stayed until morning; Kyle Downs
– could testify that Solomon took Grogan to Downs’ residence the morning
following the alleged incident; Rhonda Smith – knew correct date that collect
call from the jail was made to Solomon from her niece Stacy Washburn; Jamie
Smith – could verify Rhonda Smith’s testimony; Stacy Washburn – could verify
date she called her aunt to talk to Solomon; Kitty Solomon – could verify
date she took her son Tyler to visit Solomon and date she picked up Tyler so
he could attend court; David Reed – could testify that he and Solomon have
long disliked each other over Penny Higgins, giving Reed motive to lie.
14
U.S. CONST. amends. 5, 6, 14; KY. CONST. § § 2, 3, 11.
-6-
The Defendant raises three to four
issues in support of his motion. The court
finds that none of the issues have merit.
As the Defendant states in his memorandum of
law, “A defendant is not guaranteed
errorless counsel. . . “
The Defendant had a trial before a
jury. Second-guessing an attorney’s trial
strategy on an RCr 11.42 motion is not
possible, unless there appears to be no
strategy at all. Counsel filed motions in
limine. Counsel objected, when appropriate,
based on prior rulings of the Court.
Counsel attempted to defuse to the best of
his ability certain admissible evidence.
Counsel obviously used trial strategy.
Second-guessing whether that strategy was
effective or ineffective is not the issue.
The fact that he used trial strategy
supports the requirements of Strickland v.
Washington, 104 S.Ct. 2052 (1984) that
counsel render reasonably effective
assistance. The Court in this matter has a
benefit for review that is not usually
presented to the Court. The Court has the
benefit of copies of the attorney’s notes
which the Defendant has tendered as exhibits
in support of his motion. Reviewing the
notes, the Court finds no need for an
evidentiary hearing. The attorney obviously
had the information and whatever he decided
to do, or not do, with the information falls
within his discretion as trial strategy.
The Court would note that a number of the
names of witnesses mentioned by the
Defendant are well known to the Court as
convicted felons, whose credibility would
certainly have been attacked. It is
reasonable to assume the attorney considered
that fact in his trial strategy decisions.
Now, addressing the issues in the order
they are presented, the Court finds that
counsel violated no rights of the Defendant
by failing to make known to the Court his
desired action on objections. Those cited
by Defendant were based on prior rulings of
-7-
the Court and needed no further “formal”
objections.
The Court’s prior ruling regarding the
medical evidence went to the matter of
whether the doctor found evidence of sexual
intercourse. A yeast infection has nothing
to do with sexual intercourse. Counsel was
effective in obtaining a ruling the evidence
of sexual intercourse by way of the doctor
was not to be admitted and it was not
admitted. As stated by the Defendant, the
jury was not allowed to hear any evidence
regarding that, even after they asked the
question. The Court finds that any
references made by counsel to the medical
examination were trial strategy attempting
to defuse the admissible evidence.
The Court finds that counsel made
reasonable diligence in investigating the
defenses and did not violate any of the
Defendant’s right (sic) in this matter.
Again, we have the benefit of counsel’s
notes. And again, trial strategy is not to
be second-guessed. It appears to the Court
upon review, that the benefit of any
evidence from the alleged witnesses that
were not subpoenaed was still presented to
the jury through other witnesses. Typically
in a rape case it is a matter of “he said,
she said.” It is left to the jury to
determine if the victim is credible and if
they believe her story. They believed her
story despite the efforts of defense counsel
to discredit her.
Finally, this Court is very familiar
with the Defendant’s requests for another
attorney. The Defendant made his request
known, but did not state sufficient grounds
supporting the removal of counsel. The
Court believes counsel fought a valiant
battle for the Defendant and finds that
counsel more than met the Strickland
standard of “counsel likely to render and
rendering reasonably effective assistance.”
In conclusion, the findings of the
Court support the position that the level of
competency and effectiveness awarded the
-8-
Defendant by his counsel was above the
Strickland standard.
Before us, Solomon argues that the trial court erred
in failing to hold an evidentiary hearing either as to each of
his three alleged instances of ineffective assistance of
counsel, or cumulatively.
When the trial court has denied the
request for post-conviction relief without an evidentiary
hearing, our inquiry is whether the motion states grounds for
relief that could not be conclusively resolved from the face of
the record, and which, if true, would invalidate the conviction.
Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000).
We look first at Solomon’s argument that counsel was
ineffective when, after objecting to the Commonwealth’s
introduction of four exhibits into evidence, counsel failed to
“make known to the court his desired action on the objections.”
We first note that although in his motion and on appeal Solomon
argues that defense counsel objected to the introduction of this
evidence, reference to the record indicates that counsel did not
object.
This is consistent with the opinion from this Court on
Solomon’s direct appeal, which concluded that counsel’s failure
to object to the introduction of this evidence was trial
strategy, and in any event permitted by KRE 801A(a)(2) as an
exception to the hearsay rule for the introduction of prior
-9-
consistent statements to rebut Solomon’s charge against the
victim of imagined or fantasized improper contact with Solomon.
We decline, in any event, to disturb the trial court’s
ruling on this issue.
conclusory.
One, the allegations made by Solomon are
As stated in Hodge v. Commonwealth, 116 S.W.3d 463,
468 (Ky. 2003), “(c)onclusionary allegations which are not
supported with specific facts do not justify an evidentiary
hearing because RCr 11.42 does not require a hearing to serve
the function of discovery.”
Additionally, the issue is barred
under Sanborn v. Commonwealth, 975 S.W.2d 905, 908-09 (Ky.
1998):
“(an RCr 11.42) motion is limited to issues that were
not and could not be raised on direct appeal.
An issue raised
and rejected on direct appeal may not be relitigated in these
proceedings by claiming that it amounts to ineffective
assistance of counsel.”
The record refutes the allegations.
No
evidentiary hearing was necessary.
Next is Solomon’s argument that counsel was
ineffective for failing to object to the introduction of
suppressed evidence.
Upon Solomon’s motion, the trial court
suppressed the report and testimony of the evaluating physician
who examined the victim, excluding the doctor’s findings as to
whether sexual intercourse had, in fact, occurred.
As to the
RCr 11.42 motion, based on the record, the trial court summarily
concluded that counsel was effective in getting the doctor’s
-10-
medical evidence of sexual intercourse excluded, and that no
suppressed evidence was admitted.
Indeed, no medical report was
admitted, and no doctor testified.
Before us, Solomon again complains that counsel failed
to object to the Commonwealth’s questioning of the victim as to
whether she was examined by a doctor and if she had a yeast
infection, and complains that counsel compounded the failure
with a follow-up question on cross-examination about the
examination and results insofar as that the victim sustained no
injury resulting from sexual intercourse, such as tearing.
Solomon claims that such inaction by defense counsel “taint[ed]
the [j]urors (sic) minds with the inadmissable (sic) evidence,
so they would beleave (sic) there was evidence in a medical
report being kept from them,” pointing out as evidence of the
taint the jurors’ question during deliberation as to whether
they could see any medical reports.
We agree with the trial
court that while getting and keeping the report and testimony
excluded, the evidence that did come in about the yeast
infection “ha[d] nothing to do with sexual intercourse,” and
defense counsel used the victim’s statements to the doctor to
Solomon’s benefit as trial strategy for the purpose of pointing
out inconsistencies in the victim’s version of the events and to
indicate the lack of physical findings to support Solomon’s
claim that no sexual contact occurred.
-11-
It is well-established
that “it is not the function of [the reviewing court] to usurp
or second guess counsel's trial strategy.”
Baze, supra at 624.
Additionally, even if trial counsel erred, which we do not
concede, Solomon has failed to show that it would have had an
effect on the outcome of his trial. “It is not enough for the
defendant to show that the error by counsel had some conceivable
effect on the outcome of the proceedings.”
Sanders v.
Commonwealth, 89 S.W.3d 380, 386 (Ky. 2002). “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.”
Foley v. Commonwealth, 17 S.W.3d 878, 884
(Ky. 2000), overruled on other grounds by Stopher v. Conliffe,
170 S.W.3d 307 (Ky. 2005).
As the record refutes the
allegations, no evidentiary hearing was necessary.
Solomon next argues ineffectiveness of counsel in
pretrial investigation, specifically for counsel’s alleged
failure to investigate and call witnesses who would testify that
Solomon and his son Tyler were not at Penny Higgins’ house on
May 12, 2001, but on another date.
Specifically, Solomon argues
that his ex-wife Kitty Solomon would have testified that she did
not bring her son, Tyler, to Penny Higgins’ house to spend the
night with Solomon on Saturday, May 12, 2001, the date
identified by the victim, but on Sunday, May 20, 2001; and that
Jennifer Keaton (whom Solomon admits was misidentified as
-12-
Jennifer Grogan in his RCr 11.42 motion) would have testified to
Solomon and Tyler being at Penny Higgins’ house on Sunday, May
20, 2001, as well.
Jennifer’s testimony would have also been
consistent with Tyler’s testimony that the day he was at Penny
Higgins’ house was the day before he was supposed to be back in
court.
Additionally, Solomon indicates that all this is
buttressed by a jail log showing that Penny Higgins took him to
the Christian County Jail on May 19, 2001, to visit his
girlfriend, Stacy Washburn.
The helpfulness of any of this testimony is, however,
suspect, given that both Solomon and his son testified that they
were at Penny Higgins’ house on the day in question, May 12,
2001.
Additionally, as the trial court noted, Solomon’s RCr
11.42 motion attached as exhibits defense counsel’s notes and a
jail log from May 19, 2001.
The notes indicated that potential
witnesses (not including Jennifer) were interviewed but
according to the notes these interviews did not provide any
exculpatory evidence, except possibly from Kitty Solomon as to
her dropping off Tyler on Sunday and picking him up on Monday,
but this contradicted Tyler’s testimony as to his presence at
the Higgins’ house on the night in question.
Additionally,
contrary to Solomon’s assertions herein, the jail log from May
19, 2001 does not show Solomon on the sign in sheet as a
visitor.
-13-
An alleged failure to adequately investigate a case
“must be directly assessed for reasonableness in all
circumstances, applying a heavy measure of deference to
counsel's judgment.”
McQueen v. Commonwealth, 721 S.W.2d 694,
700 (Ky. 1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95
L.Ed.2d 858 (1987).
“[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 action ‘might be considered sound trial strategy.’”
Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998), cert.
denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 93 (1999)
(quoting Strickland v. Washington, 466 U.S. at 689-90, 104 S.Ct.
at 2065-66, 80 L.Ed.2d at 694-95).
The trial court noted that
it had the benefit of counsel’s notes in addressing this issue,
and it is evident from the record that had the witnesses
testified as Solomon suggests, it would have been inconsistent
with his testimony and his son’s testimony.
And, as the
Commonwealth noted, had the proof revealed an actual discrepancy
in the date of the incident, amending the indictment to conform
to the proof would have been an option.
RCr 6.16.
As the
record refuted Solomon’s allegations, no evidentiary hearing was
required.
-14-
Solomon last argues that the effect of the above
cumulative errors resulted in ineffective assistance.
As the
record refuted the above allegations, so does it refute an
allegation of cumulative error.
“In view of the fact that the
individual allegations of ineffective assistance of counsel are
unconvincing, they can have no cumulative effect.”
Sanborn,
supra at 913.
For the foregoing reasons, the order of the Calloway
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James Solomon, pro se
Fredonia, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
-15-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
