TIMOTHY TERRELL KIMBLE v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001611-MR
TIMOTHY TERRELL KIMBLE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES ISHMAEL, JR., JUDGE
ACTION NO. 03-CR-01033
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
ABRAMSON AND GUIDUGLI, JUDGES; BUCKINGHAM,1 SENIOR
ABRAMSON, JUDGE:
On August 26, 2003, the Fayette County Grand
Jury indicted Appellant Timothy Terrell Kimble on one count of
first-degree rape.
Keith Eardley, an attorney with the Fayette
County Public Defender’s Office, was appointed to represent
Kimble.
A trial was held on February 19, 2004, and, after
deliberating for several hours, the jury notified the court that
1
Senior Judge David C. Buckingham 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.
they were unable to reach a verdict.
The court instructed the
jury pursuant to Kentucky Rule of Criminal Procedure (RCr) 9.57,
and ordered that deliberations resume.
The jury eventually returned a verdict of guilty.
However, in the intervening period between the jury’s
announcement of a deadlock and the return of the final verdict,
the Commonwealth offered Kimble a deal.
In short, if Kimble
agreed to plead guilty to a lesser charge, the Commonwealth
would recommend a sentence of one year.
After consulting with
his trial counsel, Kimble refused the offer and was subsequently
convicted of first-degree rape.
In accordance with the
Commonwealth’s recommendation, the court sentenced Kimble to ten
years in prison.
Kimble appealed his conviction to this Court.2
On
January 21, 2005, we affirmed the trial court’s judgment.
Subsequently, Kimble filed a pro se motion to set aside his
conviction pursuant to RCr 11.42.3
In support of his motion, he
argued that he received ineffective assistance due to his trial
counsel’s failure (1) to bring out certain evidence at trial,
and (2) to advise Kimble regarding the effect of being
2
Case Number 2004-CA-000766-MR.
3
We have searched the record on appeal but cannot locate Kimble’s motion
therein. Though Kentucky Rule of Civil Procedure (CR 75.07) places on the
appellant the burden of ensuring that the appellate record is complete, the
Commonwealth has raised no objection to the incomplete record and thus has
waived any objection relative thereto. See Bardill v. Bird Well Surveys,
Inc., 310 S.W.2d 265 (Ky. 1958) (to extent that CR 74.01 is for the benefit
of the appellee, principle of waiver is applicable).
-2-
automatically characterized as a violent offender if he were
convicted of first-degree rape.
Following an evidentiary
hearing, the trial court entered an order on July 20, 2005,
denying Kimble’s motion.
This appeal followed.
In Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court set forth the standard governing
review of claims of ineffective assistance of counsel.
Under
this standard, a party asserting such a claim is required to
show (1) that the trial counsel’s performance was deficient in
that it fell outside the range of professionally competent
assistance and (2) that the deficiency was prejudicial because
there is a reasonable probability that the outcome would have
been different but for counsel’s deficient performance.
This
standard was adopted by the Kentucky Supreme Court in Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985).
A reviewing court must entertain a strong presumption
that counsel’s challenged conduct falls within the range of
reasonable professional assistance.
89.
Strickland, supra at 688-
The defendant bears the burden of overcoming this strong
presumption by identifying specific acts or omissions that he
alleges constitute a constitutionally deficient performance.
Id. at 689-90.
The relevant inquiry is whether
there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
-3-
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
Id. at 694.
Kimble argues that his trial counsel failed to have
Officer Rebecca Seabolt, the police officer who conducted the
first interview with the victim, testify at the trial.
According to Kimble, Seabolt’s report included several of her
own observations as well as statements allegedly made by the
victim that would have mitigated against the rape claim.
These
included an observation by Seabolt that the victim was laughing
and joking with a friend while being interviewed, the victim’s
insistence that she wanted or needed pain medication, and the
victim’s statement that Kimble was a “lousy kisser.”
Officer
Seabolt also noted various discrepancies in the victim’s version
of events.
Kimble argues that had his counsel called Officer
Seabolt, these observations and statements would have been
admitted into evidence and likely resulted in an acquittal.
In its detailed and well-reasoned order denying
Kimble’s motion, the trial court noted that prior to trial,
Officer Seabolt was injured in a motor vehicle accident and was
unable to be present to testify.
Despite this, and even though
he chose not to depose her, Kimble’s counsel was able to “bring
out during the trial proceedings, in cross-examination of other
witnesses or by other means, each and every exculpatory
-4-
circumstance referenced in Officer Seabolt’s report except for
the victim’s characterization of [Kimble] as a ‘lousy kisser’.”
Opinion and Order, Record on Appeal (RA) p. 231.
Further, his
trial counsel testified at the evidentiary hearing that if he
failed to elicit this one statement, it was merely an oversight
on his part.
Thus, the question is whether the failure to elicit
the victim’s single statement that Kimble was a “lousy kisser”
requires reversal of Kimble’s conviction.
trial court that it does not.
We agree with the
Kimble has the burden of
establishing that his counsel’s conduct fell below the
professional standards required of competent counsel and
resulted in Kimble having “defeat . . . snatched from the hands
of probable victory.”
441 (Ky. 2001).
Haight v. Commonwealth, 41 S.W.3d 436,
See also Foley v. Commonwealth, 17 S.W.3d 878
(Ky. 2000) (defendant has burden of demonstrating that defense
counsel denied his Sixth Amendment right to effective assistance
of counsel and that this resulted in prejudice at trial).
As
the record demonstrates, Kimble’s counsel was able to enter into
evidence all but one of the observations and statements recorded
by Officer Seabolt despite that officer’s inability to be
present at trial.
Opinion and Order, R.A. pp. 231-32.
Nonetheless, the jury unanimously concluded from all the
evidence that Kimble was guilty of rape.
-5-
Based upon the record
as a whole, we cannot conclude that the verdict would likely
have been different had the jury known of the victim’s statement
that Kimble was a “lousy kisser.”
A defendant is entitled only to reasonably effective
assistance of counsel.
He is not entitled to a guarantee that
his counsel will commit no errors whatsoever.
Foley, supra;
McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997).
Applying
this standard to the circumstances of this case, we find that
the oversight, while unfortunate, does not render his trial
counsel’s performance constitutionally deficient.
We next address Kimble’s claim that his counsel failed
to advise him of the consequences of being deemed a violent
offender.
According to Kimble, had his counsel informed him
that, as a violent offender, he would not be eligible for parole
and that he would have to serve at least 85% of a sentence
ranging from ten to twenty years, he would have accepted the
Commonwealth’s offer of one year.
At the evidentiary hearing
below, Kimble’s counsel testified that even though he did not
have a specific recollection as to a conversation with Kimble,
he always discussed sentencing guidelines, probation and parole
eligibility, and the ramifications of violent offender status
with all of his clients, as applicable.
Conversely, Kimble
testified that his counsel advised him on none of these matters
and merely relayed the Commonwealth’s offer and advised against
-6-
acceptance of it because he believed the jury would remain
deadlocked.
Following an evidentiary hearing held pursuant to a
defendant’s motion for post-conviction relief, a reviewing court
must defer to the trial judge’s determination of the facts and
the credibility of the witnesses.
Haight, supra; Sanborn v.
Commonwealth, 975 S.W.2d 905 (Ky. 1998); McQueen, supra.
In the
present matter, faced with the conflicting testimony offered by
Kimble and his trial counsel, the trial court found:
Judging the credibility of trial witnesses
is never easy for a Court itself or for a
jury. Credibility is judged on the content
of the testimony but is also judged on
subjective factors such as the tone or
inflection of the testimony, the demeanor or
“body language” of the witness, which
witness has the most to gain or lose by the
testimony and which witness comes across to
the trier of fact as truthful? Put another
way, which testimony “rings true”? In the
case at bar, this Court has the task of
judging the credibility of Mr. Eardley and
the Defendant. Both cannot be accurate in
their recollection of their conversations
regarding the charge of Rape First Degree.
The Defendant denies that Mr. Eardley ever
discussed the fact that any conviction of
the charge would classify him as [a]
“violent offender” or that he would have to
serve at least 85% of the sentence before
being eligible for parole or that he would
not be eligible for probation by the trial
court, among other things. On the other
hand, Mr. Eardley testified that he “always”
discusses with his clients the sentencing
guide lines, the violent offender
classification, parole eligibility, etc.
-7-
The Court also considers the fact that it is
the Defendant that bears the burden of
proving that Mr. Eardley’s defense was both
incompetent and prejudicial. As the
Defendant bears the burden of proof in this
case, it is incumbent upon him to “tilt the
scales” to sustain his burden and persuade
this Court, by at least a preponderance of
the evidence, that his claims have been
proven. This must be balanced against the
case holdings that there is a strong
presumption that counsel’s assistance was
appropriate.
Taking all of these factors into
consideration, the Court makes a Finding of
Fact that Mr. Eardley did discuss with this
Defendant the charge against him, the
penalty range for the charge, the fact that
the charge would classify the Defendant on
conviction of being a “violent offender”
which would make him ineligible for
probation by the trial court and would
require that he serve at least 85% of the
sentence before being eligible for parole.
The Defendant adamantly maintained his
innocence throughout this proceeding which
makes the Court believe that he simply
forgot about this discussion, because, in
his mind at least, he did not ever believe
that he would ever be convicted. Therefore,
those issues and consequences would never
have to be considered by the Defendant.
This Court would therefore Conclude as a
Matter of Law, that the Defendant, having
the burden, simply did not meet that burden
of proof in convincing this Court that Mr.
Eardley had failed to inform him of the
risks of going to trial or having a jury
continue their deliberations in the face of
a plea offer from the Commonwealth.
Opinion and Order (July 20, 2005), pp. 14-15.
After likewise
reviewing the record, and after giving such deference to the
-8-
findings of the trial court that we, as a reviewing court, are
required to give, we find no reason to overturn that court’s
judgment.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robin R. Slater
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Clint E. Watson
Assistant Attorney General
Frankfort, Kentucky
-9-
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.
