MCGOWAN (ROCKY WAYNE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000454-MR
ROCKY WAYNE MCGOWAN
v.
APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 01-CR-00026
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: Rocky Wayne McGowan appeals the denial of his RCr
11.42 motion to vacate judgment, arguing that he was given ineffective assistance
of counsel. After careful review, we affirm the order of the Russell Circuit Court.
McGowan appealed his conviction directly to the Supreme Court of
Kentucky, and we hereby adopt the well-written facts of its unpublished opinion
affirming the conviction:
The nine-month-old victim was left in the care of
McGowan while the baby's mother and great aunt went
to pick up a prescription for her. The baby had been sick,
but other than the symptoms related to her illness, she
was healthy. When the mother and great aunt returned
from the 30-45 minute trip, the victim was unconscious
and struggling to breathe. The baby was taken to the
emergency room and ultimately transported to a hospital
in Louisville where she died the next morning.
McGowan, the mother's live-in boyfriend, was
tried for murder. Among other evidence, the
Commonwealth presented the testimony of the
emergency room physician, who believed that the
victim's injuries and death were the result of recent
physical abuse/trauma. His conclusions were based on
recent and evolving bruises observed on the baby's
abdomen, the severity of the blow to her skull, the
contents of her stomach and the rapid deterioration in her
condition. The doctor stated that the type of injuries
inflicted on the baby were likely to kill quickly.
Also testifying for the Commonwealth was the
doctor who performed a postmortem examination of the
victim. She explained that the bruising on the victim's
stomach was consistent with being punched and that the
radiating skull fracture was the result of a significant
blow to the head. The doctor stated that the head injury
could not have been caused by an accidental fall and that
the force necessary to cause the injuries was comparable
to an unrestrained automobile accident or a fall from a
two story building.
The defendant did not testify at trial, but presented
a defense that sought to portray the investigation as
flawed and attempted to cast blame for the baby's death
on the mother. The jury convicted McGowan of
intentional murder. He was sentenced to fifty years in
prison.
McGowan v. Commonwealth, 2005 WL 119618 (Ky. 2005).
As stated, the Supreme Court of Kentucky affirmed McGowan’s
conviction and sentencing. McGowan then filed a motion to vacate judgment
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pursuant to RCr 11.42, presenting various grounds for ineffective assistance of
counsel. After a thorough evidentiary hearing, the motion was denied. This appeal
followed.
The standards which measure ineffective assistance of counsel have
been set out in Strickland v. Washington, 466 U.S. 668 (1984), which we adopted
in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Strickland requires the
court to first find that there was an error in counsel’s performance. If the court so
finds, the court must then find that the error was prejudicial to the defendant,
meaning that there is a reasonable probability that, but for counsel’s error, the
result of the proceeding would have been different. The trial court must then
determine whether counsel’s deficient performance rendered the result of the trial
unreliable or the proceedings fundamentally unfair so as to deprive a defendant of
a substantive or procedural due process right.
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties
inherent in making the evaluation, 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
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the circumstances, the challenged action might be
considered sound trial strategy.
Id. at 689-90 (internal citations omitted).
McGowan first argues that he was denied effective assistance of
counsel by virtue of counsel’s failure to consult an expert to evaluate the victim’s
medical records. However, according to both attorneys who represented
McGowan at trial, a medical expert was consulted. Counsel’s decision not to
present a conflicting medical witness is reasonable trial strategy and will not now
be second-guessed. Therefore, we find no error.
McGowan then alleges that counsel was ineffective by failing to move
for a change of venue. In McKinney v. Commonwealth, 445 S.W.2d 874, 877 (Ky.
1969), the Kentucky Supreme Court held that, “[t]he determination of whether to
request a change of venue addresses itself to the discretion of the trial lawyer.”
Furthermore, in Wilson v. Commonwealth, 836 S.W.2d 872, 888 (Ky. 1992), the
Kentucky Supreme Court held that,
[i]n order for a change of venue to be granted there must
be a showing that: 1) [t]here has been prejudicial news
coverage, 2) [i]t occurred prior to trial, and 3) [t]he effect
of such news coverage is reasonably likely to prevent a
fair trial. Brewster v. Commonwealth, 568 S.W.2d 232,
235 (Ky. 1978), citing Sheppard v. Maxwell, 384 U.S.
333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The mere
fact that jurors may have heard, talked or read about a
case is not sufficient to sustain a motion for change of
venue, absent a showing that the accounts or descriptions
of the investigation and judicial proceedings have
prejudiced the defendant. Brewster, 568 S.W.2d at 235.
The trial court has discretion in this determination and
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will not lightly be disturbed. Kordenbrock v.
Commonwealth, 700 S.W.2d 384 (Ky. 1985).
In the present case, the record indicates that the trial court was
cautious to insure that only jurors without opinion who could impartially weigh the
evidence were permitted in the venire pool. Additionally, counsel testified at the
evidentiary hearing that a change of venue was considered but ultimately not
pursued as a strategic decision. Therefore, we again decline to question the
reasonable trial strategy of McGowan’s counsel.
McGowan further contends that counsel was ineffective in declining
to call his mother and two sisters as character witnesses, all of whom would testify
as to his “kind and gentle” nature with children. First, as discussed previously,
witness selection is left to counsel’s judgment and will not be second-guessed in
hindsight. See Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000).
Moreover, counsel’s decision not to call these character witnesses is easily
explained by the fact that their testimonies would have opened the door for
McGowan’s ADANTA records, which detail a history of violent tendencies.
Accordingly, we find counsel’s decision reasonable and assign no error.
McGowan next argues that counsel rendered ineffective assistance of
counsel in failing to object and move for a mistrial when the prosecution elicited
opinion testimony from Detective Antle. The record reflects, however, that when
Detective Antle gave his opinion on McGowan’s guilt, an objection was made and
sustained, and the jury was properly admonished. Therefore, any error in the
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remarks was cured. See e.g., Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky.
2001); Smith v. Commonwealth, 634 S.W.2d 411, 413 (Ky. 1982); Napier v.
Commonwealth, 426 S.W.2d 121, 123 (Ky. 1968). The other statements
McGowan raises as objectionable by Detective Antle are questions regarding the
existence of exculpatory evidence in McGowan’s favor and are not objectionable.
Therefore, we again find no error.
McGowan also asserts that counsel was ineffective for failing to
object to the prosecution’s examination of Sandy Mann and for his own counsel’s
line of questioning on the cross-examination of Sandy Mann. First, McGowan
argues that counsel should have objected to Mann’s testimony regarding a wanton
endangerment complaint she filed against McGowan and her fear if he were
released from jail. Second, McGowan argues that his trial counsel should not have
elicited testimony from Mann regarding his use of marijuana. Although another
attorney may have handled these situations differently, it cannot be said that
counsel’s decision were unreasonable trial strategy. Moreover, in light of the
totality of the circumstances and the evidence in the record, we simply cannot find
that there is a reasonable probability that but for counsel’s decisions on these
specific issues the outcome of the trial would have been different. Therefore, we
do not find reversible error.
Finally, McGowan argues that counsel was ineffective in failing to
seek to suppress his statement to Detective Antle. The tape, however, contains
McGowan’s explanation of how he had accidentally hit Daysha’s head on a plastic
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high chair days before her death, and how he believed this might have been what
lead to her death. Counsel testified that he did not believe the statement was an
admission of guilt. He determined that it could be useful to them and made the
strategic decision not to move to suppress the statement. We find the decision
reasonable and again find no error.
Accordingly, we find that McGowan was afforded effective assistance
of counsel and affirm the order denying his RCr 11.42 motion seeking to vacate his
conviction.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Maureen Sullivan
Louisville, Kentucky
Jack Conway
Attorney General
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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