GAITHER (SCOT EUGENE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SCOT EUGENE GAITHER
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 02-CR-00446
COMMONWEALTH OF KENTUCKY
AFFIRMING IN PART,
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
STUMBO, JUDGE: Scot Eugene Gaither, hereinafter Appellant, was convicted of
first-degree manslaughter, capital kidnapping, theft by unlawful taking of property
valued under $300, and tampering with physical evidence. He was sentenced to a
term of life imprisonment without the possibility of parole. His conviction was
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.
later affirmed on direct appeal to the Kentucky Supreme Court. We now consider
his appeal from the denial of his RCr 11.42 motion in which he alleged twenty-five
instances of ineffective assistance of counsel. Seventeen of his challenges were
dismissed by the circuit court because they either should have been brought on
direct appeal or had already been resolved on direct appeal. Appellant argues that
the circuit court erred in ruling that these seventeen alleged instances of ineffective
assistance of counsel were not properly raised via RCr 11.42. We find that three of
these issues were properly raised as ineffective assistance of counsel arguments
and should have been analyzed as such by the lower court. Thus, we affirm in part
and reverse and remand in part.
On August 30, 2001, James Parson, Sr., was reported missing. The
next day, Parson’s family received several phone calls claiming that Mr. Parson
had been kidnapped. Police surveillance revealed that the phone calls were coming
from Owensboro area pay phones. Appellant was eventually observed making one
of these calls and arrested.
Mr. Parson’s van was located several days later, but his body was not
found until early November. Blood was found in and around the van and the van’s
keys were found in Appellant’s possession. Appellant’s cell phone was discovered
near Mr. Parson’s body.
At trial, two inmates testified that Appellant had confessed to killing
Mr. Parson, but had initially only intended to kidnap him for ransom. Appellant
also testified at trial, stating that Mr. Parson pulled a gun on him and that they
struggled and the gun went off killing Parson. Appellant claimed that when Mr.
Parson was accidentally killed, he had a mental breakdown and concocted the
kidnapping story as a cover-up. Appellant claimed self-defense and mental illness
The jury ultimately found Appellant guilty of first-degree
manslaughter, kidnapping, theft by unlawful taking of property under $300, and
tampering with physical evidence. He was sentenced to 20 years for the
manslaughter, life without the possibility of parole for the kidnapping, 12 months
for the theft, and 3 years for tampering with physical evidence. All sentences were
ordered to run concurrently.
Appellant then filed a pro se appeal to the Kentucky Supreme Court.
That Court affirmed the conviction in February of 2006.
On October 30, 2006, Appellant filed a motion pursuant to RCr 11.42
in which he noted twenty-five issues of alleged instances of ineffective assistance
of counsel. On December 16, 2006, the trial court denied seventeen of these issues
by finding that they had been, or should have been, raised on appeal or that they
were otherwise unsuitable for RCr 11.42 review.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.
The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order
to constitute ineffective assistance under the Constitution.
(Internal citation omitted).
Id. at 691-692. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “The defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Additionally, “a hearing is required only if there is an issue
of fact which cannot be determined on the face of the record.” Stanford v.
Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).
Even though Appellant only mentioned some of the seventeen
ineffective assistance of counsel allegations in his brief, we will address each one.
First, Appellant claims that his counsel was ineffective when he failed
to impeach a key prosecution witness. Patricia Zamorano, the ex-girlfriend of
Appellant, testified that Appellant told her vital information regarding the crime
while she visited him in jail. She testified that she only visited him once, but
defense counsel was aware that she had visited him multiple times and knew there
were prison visitor logs that would impeach her testimony. Defense counsel even
informed the trial judge that he was going to obtain these records to impeach her.
Defense counsel ended up not obtaining the records.
The trial court refused to analyze this issue under RCr 11.42 and
stated that evidentiary issues should be brought on direct appeal. While this is
correct, Appellant is not arguing an evidentiary issue. He was arguing an
ineffective assistance of counsel issue, in that counsel failed to obtain appropriate
evidence with which to impeach this witness. This issue may have some merit
when analyzed in an ineffective assistance of counsel context. It should not have
been summarily dismissed by the trial court by its holding that it was merely an
evidentiary issue and should have been brought on direct appeal. While there were
some evidentiary aspects to this argument, there was also a case to be made for
ineffective assistance of counsel. And since this was a primary witness for the
prosecution, the failure to impeach her could have been highly prejudicial to
Appellant. We therefore remand this issue to the trial court to analyze this
allegation of ineffective assistance of counsel.
The next issue is in regard to defense counsel’s failure to object when
a copy of a Miranda waiver purportedly signed by Appellant was introduced into
evidence instead of the original. Appellant points out that a copy is admissible
unless a “genuine question is raised as to the authenticity of the original.”
Kentucky Rules of Evidence (KRE) 1003(1). At trial, Appellant claimed he did
not sign the Miranda waiver.
The trial court dismissed this RCr 11.42 allegation because it stated it
was an evidentiary issue and should have been brought on direct appeal. Even if
this were a viable allegation of ineffective assistance of counsel, it would not have
met the standard for ineffective assistance of counsel.
While the original waiver would have been preferable as evidence, we
do not see that a failure to object to the copy being used would have affected the
outcome of the proceedings to such an extent that the outcome would have been
different. A suppression hearing was held before trial in which the authenticity of
the waiver was questioned. The waiver was not suppressed. Also, there was
testimony from police officers who stated they witnessed Appellant sign the
waiver. There is plenty of evidence in the record that supports the authenticity of
the waiver. This issue does not meet the high standard for ineffective assistance of
counsel and therefore we do not believe it needs to be reconsidered by the trial
Appellant next argues that counsel was ineffective in failing to object
to the kidnapping instruction submitted to the jury during the guilt phase. The
instruction states Appellant can be found guilty of capital kidnapping because
“James Parson was not released alive.” Appellant claims he should not have been
found guilty of capital kidnapping unless he intended to cause the death of Mr.
The trial court dismissed this 11.42 issue by finding that errors in jury
instructions are not reviewable upon an 11.42 motion. Boles v. Commonwealth,
406 S.W.2d 853 (Ky. 1966).
Regardless of the Boles case, the “not released alive” language comes
straight from Kentucky Revised Statute (KRS) 509.040(2). Even if this had been
reviewed using the ineffective assistance of counsel standard, defense counsel had
no reason to object because this language was part of the statute.
Appellant next argues that his counsel was ineffective for failing to
object to the sentencing phase instructions. The instruction stated that when the
jury fixed the sentence for kidnapping, it should have considered the aggravating
circumstance of “the kidnapping victim was not released alive.” Unlike the above
discussed jury instruction, this was erroneous.
KRS 532.025(2) and (3) state that when a defendant is convicted of a
crime in which the death penalty is authorized, such as capital kidnapping, an
aggravating circumstance must be listed in the sentencing instructions and the jury
must rely on one of these aggravating circumstances if it sentences the defendant to
death or life imprisonment without benefit of probation or parole. If one of the
aggravating circumstances is not found by the jury, these penalties cannot be
Here, Appellant was sentenced to life without the benefit of parole
and the aggravating circumstance the jury relied on was that the victim was not
released alive. This is not one of the aggravating circumstances listed in KRS
532.025(2)(a). In fact, the case of Salinas v. Commonwealth, 84 S.W.3d 913, 920
(Ky. 2002), states “‘that the victim was not released alive’ is the element that
enhances kidnapping from a Class B felony to a capital offense. However, that
fact is not an aggravating circumstance necessary to authorize imposition of capital
punishment under KRS 532.025(2).”
The trial court dismissed this issue as it did the one above stating that
jury instruction issues are not for 11.42 review and cited to the Boles case. While
the Boles case does hold jury instructions are not reviewable upon an 11.42
motion, ineffective assistance of counsel was not an issue in Boles. In fact, in
Commonwealth v. Davis, 14 S.W.3d 9 (Ky. 1999), the Kentucky Supreme Court
ruled on an ineffective assistance of counsel issue in regard to failing to object to
improper jury instructions. See also Lucas v. O’Dea, 179 F.3d 412 (6th Cir. 1999)
(where the failure of counsel to object to a jury instruction can constitute a grave
error). We therefore find that this issue should have been analyzed by the trial
court using the ineffective assistance of counsel standard and remand to do so.
This was not a jury instruction issue that could be dismissed by Boles, but an
ineffective assistance of counsel issue like that in Davis.
Next Appellant claims his counsel was ineffective when he failed to
move for a mistrial or admonition when the Commonwealth made inappropriate
comments during closing. The Commonwealth stated that if the jury found
Appellant guilty, but mentally ill, then he will be given a pill and will walk the
next day. Defense counsel made an objection and the trial judge sustained it.
However, counsel sought no other relief.
In dismissing this 11.42 argument, the trial court held that this was an
issue that should have been brought on appeal. This was an improper comment
made by the Commonwealth Attorney and could be seen as trying to enrage the
jury so they would convict even if they believed him to be mentally ill.
The issue of improper remarks during closing arguments and the
failure to object to them can be raised as an ineffective assistance of counsel
argument. Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006). This was a
prejudicial statement that could have affected the outcome of the trial. The trial
court should have addressed whether or not counsel was ineffective for not seeking
a mistrial or admonition. As such, we remand this issue to the trial court to be
analyzed using the ineffective assistance of counsel standard.
Appellant also claims that he had ineffective counsel because he acted
in concert with the Commonwealth when he did not object to testimony that was
perjured. Jail house informants were used at trial. They testified that Appellant
confessed to committing the crime to them. One such informant testified that he
did not receive any kind of deal from the Commonwealth. Appellant claims that
this witness did receive a deal for his testimony and that his trial counsel knew
about it, but said nothing during cross-examination.
The record shows that defense counsel grilled this witness on the
stand. He called him a “rat” and also questioned him extensively about any kind of
deal that might have been in place. Counsel was very effective in trying to
discredit this witness.
Appellant’s final eleven instances of alleged ineffective assistance of
counsel were all dismissed as having previously been raised on direct appeal.
Even so, we will address each, but only briefly.
Appellant claims that a hearing should have been held when it was
disclosed that a witness was heard talking about the case within the presence of a
jury member. Specifically, Appellant argues the jury should have been questioned
and his defense counsel was ineffective for not requiring this hearing. This does
not meet the ineffective assistance of counsel standard because the witness was
questioned by the trial court and she stated no juror was near her and no juror
informed the court that they had overheard anything improper.
Appellant claims the jury was allowed to take a cassette tape into the
jury room for deliberations that had previously been held inadmissible and that his
counsel was ineffective for not stopping it. During trial, this tape was admitted
into evidence and played, but eventually stopped because parts of it became
inaudible. All the tapes put into evidence were then copied onto a single tape
which the jury took with them into deliberations. There is no evidence that this
inaudible tape was copied onto the tape provided the jury and, even if it was, the
tape had been played for the jury in open court. Supposing counsel should have
made sure the inaudible portion was not taken into the jury room, we do not find
that this mistake amounts to ineffective assistance of counsel.
Appellant next argues that his counsel was ineffective when he failed
to object to the Commonwealth’s using peremptory strikes against the jurors who
had mental illness or who were familiar with them. There was no need for defense
counsel to object because it was not an improper use of peremptory strikes as those
familiar with mental illness are not a protected class.
Appellant next argues that counsel was ineffective for not
continuously objecting to two juror members not being stricken for cause. One
potential juror knew the victim’s family and another was acquainted with the
Commonwealth Attorney and his staff. Defense counsel moved to strike both for
cause. The trial court refused to remove these jury members. Appellant now
argues that counsel was ineffective for not continuing to object. This argument is
without merit since counsel moved to strike the jurors and the motions were
Appellant claims his counsel was ineffective for not requesting a pretrial Daubert2 hearing regarding the Commonwealth’s expert witness in
psychology. While a pre-trial Daubert hearing would have been useful, the
expert’s credentials were never in doubt. He was employed by Kentucky
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
Correctional Psychiatric Center and had conducted two evaluations on Appellant.
This does not meet the ineffective assistance of counsel standard.
Appellant also claims his counsel was ineffective for not seeking an
admonition or mistrial when the Commonwealth badgered a defense witness. The
witness was a psychologist called in to rebut the Commonwealth’s expert
psychology witness. After a review of the trial tape, we do not find that the
Commonwealth badgered the witness. The Commonwealth merely engaged in
aggressive cross-examination. An admonition might have been granted by the trial
court, but failure to request one would not amount to ineffective assistance of
Appellant also claims his counsel was ineffective for not objecting
when the Commonwealth stated the victim had been shot three times when the
testimony of the medical examiner was that he was shot twice. This does not meet
the standard of ineffective counsel. Failure to object to this misstatement did not
result in an unfair trial or one in which the result is unreliable. The evidence was
overwhelming that Appellant shot the victim. In fact, the Appellant stated he shot
Mr. Parson, albeit in self-defense. Looking at the totality of the evidence, a failure
to object to a misstatement regarding the number of shots would not constitute an
Appellant argues that his counsel was ineffective because he did not
object to perjured testimony from a police officer. The officer stated that the
victim’s blood was found on Appellant’s belt. Appellant claims this was perjured
testimony because a Kentucky State Police DNA specialist testified that she could
not tell if there was blood on the belt. Conflicting testimony does not amount to
perjured testimony. It is up to the jury to determine whose testimony is most
reliable. Trial counsel was not ineffective in this instance.
Appellant also argues that his counsel was ineffective for not
objecting to personal comments made by the Commonwealth Attorney during his
cross-examination of Appellant.
Nearly a half century ago this Court counseled
prosecutors “to refrain from improper methods calculated
to produce a wrongful conviction....” Berger v. United
States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 74 L.Ed.2d
1314 (1935). The Court made clear, however, that the
adversary system permits the prosecutor to “prosecute
with earnestness and vigor.” Ibid. In other words, “while
he may strike hard blows, he is not at liberty to strike foul
U.S. v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 1042, 84 L.Ed.2d 1 (1985). Here, the
comments did not constitute a foul blow. As such, failure to object to them would
not amount to ineffective assistance of counsel.
Appellant claims next that his counsel was ineffective for not
objecting to the Commonwealth’s humanizing the victim during closing arguments
and identifying the jury with the victim’s family
A murder victim can be identified as more than a naked
statistic, and statements identifying the victims as
individual human beings with personalities and activities
does not unduly prejudice the defendant or inflame the
jury. Just as the jury visually observed the appellant in
the courtroom, the jury may receive an adequate word
description of the victim as long as the victim is not
glorified or enlarged. (Internal citation omitted).
Bowling v. Commonwealth, 942 S.W.2d 293, 302-303 (Ky. 1997). Here, all the
Commonwealth did was humanize the victim. There was nothing improper about
this and as such, no objection was required of defense counsel.
Finally, Appellant argues that his counsel was ineffective for not
objecting to the trial court failing to conduct a capital sentencing hearing before the
truth-in-sentencing phase. Here, both were combined. Appellant contends that
this denied him the ability to present mitigating evidence. This is without merit.
On direct appeal, the Kentucky Supreme Court held that mitigating evidence was
presented to the jury. Appellant’s parents testified and mitigating circumstances
were listed on the jury’s sentencing instructions. As such, there was no prejudice
to Appellant and therefore no ineffective assistance of counsel.
Appellant also contends that he was improperly denied a hearing on
one of the issues the trial court did analyze under ineffective assistance of counsel.
As stated above, “a hearing is required only if there is an issue of fact which cannot
be determined on the face of the record.” Stanford v. Commonwealth, 854 S.W.2d
Appellant argues that he was entitled to a hearing because he raised
the issue of dual representation and conflict of interest on behalf of his trial
counsel. Appellant claims his trial counsel represented both Appellant and one of
the Commonwealth’s witnesses. We do not find that there was a conflict here that
adversely affected trial counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335,
350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). The record shows trial counsel
thoroughly cross-examined the witness by questioning his motives for testifying
and calling him a rat and thief. The record shows that the cross-examination was
strenuous, adversarial, and representing only Appellant’s interests. As such, no
hearing was required.
For the above reasons, we remand this case in order for the trial court
to analyze defense counsel’s performance in regards to the Patricia Zamorano
impeachment evidence issue, failure to object to the sentencing phase instruction
regarding aggravating circumstances, and the failure to object to the improper
closing argument statement regarding Appellant “taking a pill and being released
the next day.” Should the trial court feel it necessary to fully address the issues, it
should schedule an evidentiary hearing. The remainder of Appellant’s arguments
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
James T. Lawley
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General