BAILEY (LEONARD) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 03-CR-000041
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
GUIDUGLI, SENIOR JUDGE: Leonard Bailey appeals from an order of the
Jefferson Circuit Court denying a motion for relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42. We affirm.
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Bailey and his wife had been estranged for over nine years. On
October 23, 2002, Bailey forced open the door of his wife’s apartment, entered,
and struck her on the head with a metal car jack. Bailey was convicted of firstdegree burglary, second-degree assault, and for being a persistent felony offender
(PFO) in the first-degree. He was sentenced to a total of twenty years’
imprisonment. The Supreme Court of Kentucky affirmed his convictions on direct
appeal in an unpublished opinion. Bailey v. Commonwealth, 2003-SC-000523MR, (rendered December 16, 2004). On July 11, 2005, Bailey filed a motion for
relief pursuant to RCr 11.42 alleging various errors. The trial court denied the
motion without an evidentiary hearing. This appeal followed.
The sole issue in this appeal is whether Bailey’s trial counsel was
ineffective for failing to secure a jury instruction on extreme emotional disturbance
(EED). The standard for evaluating claims of ineffective assistance of counsel is
well established. “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.” Haight v. Commonwealth, 41
S.W.3d 436, 441 (Ky. 2001). “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.” Id. There is a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Id. Further, the trial court is not required to conduct an evidentiary hearing if the
allegations are refuted on the face of the record. Id.
The Commonwealth has conceded that the evidence at trial might
have supported an EED instruction. An EED instruction was originally tendered in
a draft of instructions to the trial court. However, defense counsel informed the
court in the presence of Bailey that “in consulting with Mr. Bailey” they had
decided not to request an EED instruction. Bailey voiced no concerns regarding
the decision at that time.
We are convinced that the decision to forego an EED instruction was
a reasonable trial strategy under the circumstances of this case. During the course
of the trial, Bailey developed a theory of innocence with regard to the assault of his
wife. While testifying on his own behalf, Bailey claimed he considered his wife’s
apartment to be his residence. He claimed that he heard noises inside the
apartment. Bailey stated that he encountered a man, Joe Yarbrough, and that
Yarbrough struck him first. A struggle ensued between the two men. Bailey also
testified that he did not cause any injuries to his wife. An EED defense would
have been inconsistent with Bailey’s “all or nothing” theory of the case. Trial
counsel was not ineffective.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Leonard Bailey, pro se
Central City, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General