BOWMAN (BILLY R.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 7, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000993-MR
BILLY R. BOWMAN
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
2008-SC-000945-DG
v.
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 03-CR-00072
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: KELLER, MOORE AND WINE, JUDGES.
KELLER, JUDGE: Billy R. Bowman (Bowman) entered a guilty plea to seconddegree rape and to being a Persistent Felony Offender in the Second Degree.
Bowman filed and lost a direct appeal and subsequently filed for relief under
Kentucky Rule(s) of Criminal Procedure (RCr) 11.42. The trial court denied
Bowman’s RCr 11.42 motion. It is from that denial that Bowman appeals. On
appeal Bowman alleges that he received ineffective assistance of counsel prior to
entering his guilty plea. We previously addressed these issues in our November
26, 2008, Opinion affirming the trial court. Bowman appealed to the Supreme
Court, which granted discretionary review and remanded this matter to us for
consideration of Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Pursuant to this Court's order, the parties filed supplemental briefs
addressing Leonard's application to this appeal. In his supplemental brief,
Bowman argues that his RCr 11.42 motion raises issues that differ from those he
raised on direct appeal. The Commonwealth argues that the issues are the same
and that Bowman is procedurally barred from raising them via RCr 11.42. For the
following reasons, we agree with Bowman and vacate and remand.
FACTUAL AND PROCEDURAL BACKGROUND
As we did in our first opinion, we rely on and reiterate pertinent
portions of the Supreme Court’s summary of facts in its opinion addressing
Bowman’s direct appeal.
According to the police report, late on the night of
April 10, 2003, twelve-year-old CC and her fourteenyear-old cousin, SC, sneaked out of CC’s home, took
their grandmother's car, and drove off to find a friend
named Matt.1 Eventually they knocked on the door of a
trailer where they thought Matt lived. A man answered
1
Matt’s last name is not included in the police report. He is referred to herein
simply as “Matt.” (Footnote 1 in original.)
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the door and told the girls he could show them where
their friend lived. When the girls entered the trailer, two
men, David Strum2 [sic] and Appellant, extended an
invitation to stay and watch a movie, which the girls
accepted3 . . . . After some time, the men made sexual
advances towards the girls . . . . Appellant . . . had sexual
intercourse with [CC].
Afterwards, Appellant asked CC how old she was.
When she told him she was twelve, Appellant told her
not to tell anyone what had happened because he could
get in “big trouble.” CC agreed not to tell anyone, and
shortly thereafter Appellant left for work. The girls
stayed with Strum, who took the girls with him while he
drove to do some errands. He later dropped the girls off
at the trailer, which belonged to Appellant. The two girls
then drove to their friend Matt’s home, where someone
from the sheriff's department picked them up.
On May 28, 2003, Appellant was indicted for
First-Degree Rape, committed by engaging in sexual
intercourse with CC, a minor, through the use of forcible
compulsion, and for being a First-Degree Persistent
Felony Offender. Strum was also indicted, though the
record on appeal does not indicate what his charges were,
and subsequently refused to talk with Appellant’s
attorney. SC died before Appellant's trial attorney had an
opportunity to interview her.
CC’s parents refused to allow Appellant’s attorney
to interview her in preparation for Appellant’s defense.
However, the Commonwealth included in its discovery
materials a statement of what CC’s testimony would be.
2
The record establishes that David’s last name is Stutesman, not Strum;
however, because his identity is not relevant to this appeal, we will not alter the
name.
3
Because there was no trial, the record on appeal is limited, and it is unclear if
the man who answered the door of the trailer was one of the two men who
extended the invitation to the girls. Based on Appellant's claim as to the witnesses
present, however, it appears that only two men were present, David Strum and
Appellant. It appears Strum was the man who answered the door and invited the
girls into the trailer. (Footnote 2 in original.)
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The statement indicated that CC would testify that she
had been an unwilling participant, that she had not
resisted Appellant’s sexual advances because she was
afraid he would kill her, and that Appellant had left a bite
mark on one of her breasts. The Commonwealth also
tendered a photograph of CC which had been taken a few
days after the incident. The photograph, which was
intended to be used as evidence of how old CC looked at
the time of the incident, showed CC wearing no makeup
and dressed in a t-shirt depicting a children’s cartoon
character.
In conversations with his attorney, Appellant
denied that any forcible compulsion had occurred and
claimed that he thought CC was seventeen years old
when he had sex with her. Appellant’s attorney informed
him that his mistaken belief that CC was at least sixteen
years old was a possible defense to the charge under KRS
510.030. However, in light of CC’s proffered testimony,
the photo the Commonwealth intended to use, and
Appellant’s belief that only his own testimony would be
available to support his version of the events, Appellant
chose not to proceed to trial, where if found guilty he
faced a possible sentence of life in prison. Instead, on
June 14, 2004, the day before his scheduled trial,
Appellant entered a plea of guilty to the lesser charges of
Second-Degree Rape and being a Second-Degree
Persistent Felony Offender. Less than a month later,
Appellant filed a motion to withdraw his guilty plea
under RCr 8.10 based on newly discovered evidence.
The day after Appellant entered his guilty plea,
Misty Skinner and Brandy Imus, both of whom were
related to Matt, found out that Appellant was scheduled
to be tried that day for the alleged rape of CC. They
claimed to have some knowledge of the incident. Imus
called the courthouse to see if the trial was proceeding,
and she was told that it was not. She then called Murray
Police Detective Donald Bowman, who she knew was
Appellant’s brother. She told Detective Bowman that she
had seen and talked to CC on the morning of April 11,
2003 and that, based on their meeting, she did not believe
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a rape had occurred. Detective Bowman contacted
Appellant's attorney with the new information.
Appellant’s attorney then contacted Skinner and
Imus, who provided written affidavits and videotaped
statements that sharply conflicted with the evidence that
Appellant believed the Commonwealth would have
presented had the case gone to trial. Both women stated
that CC told them she was fifteen years old, but claimed
that she had told Appellant that she was seventeen. Imus
stated that on the morning of April 11, 2003, CC and SC
had arrived at her cousin’s house, where CC described
the events from the night before . . . . Imus also stated
that, CC, who was wearing make up and a skin-tight,
midriff-bearing shirt on the morning of April 11, 2003,
looked like she was seventeen years old. Further, Imus
said that CC had not appeared to be upset or distressed.
Skinner stated that CC said that . . . [Appellant] . . . had
been reluctant to have sex with her, but she had
“seduced” him . . . . Skinner told CC that the Appellant
could get in trouble over what happened, but that CC said
“nothing[’s] gonna come of it” . . . . Skinner echoed
Imus’s claim that CC looked and acted older than twelve
years old.
In his motion to withdraw his guilty plea,
Appellant described the statements made by Skinner and
Imus and argued that his plea had not been voluntarily
and intelligently made because he was not aware of all
the available evidence and possible defenses. Relying on
Mounts v. Commonwealth, 89 Ky. 274, 12 S.W. 311
(Ky.1889), he also argued that had the evidence been
discovered after a jury trial, he would have been entitled
to a new trial, and that, as such, he was entitled to
withdraw his plea.
On October 11, 2003, the trial court denied
Appellant’s motion to withdraw his guilty plea, making
the following findings:
[T]his case, based on the record,
clearly shows that [the] Boyk[i]n
requirements have been met. The Court did
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conduct a discussion to determine that the
plea was intelligently, knowingly and
voluntarily entered. While the Court did not
go into great detail with respect to the facts
of the crime, this particular case involved a
negotiated plea to an amended charge.
Defendant was initially charged with First
Degree Rape and First Degree Persistent
Felony Offender. Based upon the plea
agreement, Defendant pled guilty to
amended charges of Second Degree Rape
and Second Degree Persistent Felony
Offender. While there were a couple of
instances in which the defendant paused
before answering questions, the Court at the
time found that the defendant's plea was
made knowingly, intelligently and
voluntarily, and the Court still believes that
to be the case. As the Commonwealth noted
in its opposition to Defendant's Motion to
Withdraw Plea, defendant has an extensive
criminal record. Defendant knew the
ramifications of what could happen at trial,
and defendant knew the defenses available
to him. The court simply does not believe
that the “newly discovered evidence” is such
that the voluntariness or the intelligent
nature of the plea was compromised in any
way.
Focusing on the issues at hand, the
Court finds that the defendant entered his
plea knowingly, voluntarily and
intelligently, and that the newly discovered
evidence would not be of such a nature that
this Court would grant a new trial. The
Court does agree with defense counsel that
were the “newly discovered evidence” of
such a nature that a new trial would be
granted, that the Court would grant the
Motion to Withdraw Guilty Plea. However,
because the Court does not find that to be
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the case, the Court will not grant the relief
requested.
On the same day, the trial court also entered its final
judgment, sentencing Appellant to twenty years in
prison.4 Appellant now appeals to this Court as a matter
of right. Ky. Const. § 110(2)(b).
Bowman v. Commonwealth, 2006 WL 141586, *1-3 (Ky. 2006)(2005-SC-000234TG). The Supreme Court of Kentucky affirmed the circuit court’s decision to deny
Bowman’s motion to withdraw his guilty plea, holding as follows:
The simple fact that a defendant would make a
different decision at a later time does not render the
earlier guilty plea involuntary; otherwise, the validity of
most guilty pleas might potentially be challenged after
defendants come to understand the reality of
incarceration. Hindsight alone does not render the guilty
plea unintelligent and involuntary. Appellant all but
admits that at the time he entered his guilty plea, it was
intelligently and voluntarily made. That is all that is
required. Subsequent events that do not conform to a
defendant’s expectations do not automatically render an
otherwise voluntary and intelligent guilty plea
involuntary.
Id. at *4. The Court went on to hold that the circuit court did not abuse its
discretion in denying the motion, stating that “Appellant has shown no compelling
reason for us to second-guess the trial court in denying the motion to withdraw the
guilty plea.” Id. at *7.
4
Several days after the trial court ruled on the motion to withdraw the guilty
plea, Appellant filed a pro se motion for a new trial that repeated the claims
presented in the motion to withdraw the guilty plea. The trial court also denied
this motion, noting, “[T]he motion should be more appropriately dealt with on
appeal of this Court’s Order which denied defendant’s Motion to Withdraw his
guilty plea.” (Footnote 3 in original.)
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While his direct appeal was pending, Bowman filed a pro se motion
for relief pursuant to RCr 11.42, which was held in abeyance pending a decision in
the direct appeal. In his motion, Bowman alleged four bases for relief, including:
(1) ineffective assistance of counsel, which he claimed made his plea involuntary;
(2) prosecutorial vindictiveness; (3) judicial error; and (4) the cumulative effect of
those alleged errors. As to his ineffective assistance of counsel claim, Bowman
relied upon the newly discovered evidence that had earlier provided the basis for
his motion to withdraw his guilty plea and subsequent direct appeal. He also
claimed that his attorney failed to inform him the Commonwealth offered him the
opportunity to take a polygraph test once the new witnesses came forward. In
conjunction with his RCr 11.42 motion, Bowman requested an evidentiary hearing
and the appointment of counsel. Once the direct appeal had been decided, the
Commonwealth filed a response to Bowman’s pro se RCr 11.42 motion, stating
Bowman had already raised the basis for the ineffective assistance claim in his
motion to withdraw the guilty plea. Accordingly, that claim was not subject to
attack in an RCr 11.42 proceeding. Furthermore, the Commonwealth pointed out
that Bowman admitted to the offense to which he pled guilty.
On March 20, 2007, the circuit court entered an order denying
Bowman’s motion for relief:
This matter is before the Court on Petitioner’s
Motion to Vacate, Set Aside or Correct Judgment
Pursuant to RCr 11.42. The McCracken Circuit Court,
Division Two, acquired jurisdiction from appointment by
the Chief Regional Judge following the Calloway Circuit
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Court’s recusal. The Court has reviewed the allegations
in the petition and the Commonwealth’s response and
finds from the face of the record that the allegations in
the petition do not merit relief. Because the allegations
can be fully adjudicated by resorting to the record, no
evidentiary hearing is required, Glass v. Commonwealth,
474 S.W.2d 400 (1971), and appointment of counsel is
not appropriate. RCr 11.42(5); Coles v. Commonwealth,
386 S.W.2d 465 (1965).
Petitioner pro-se alleges numerous grounds for
relief. The grounds alleged do not merit relief because
they fail under one of three legal categories. First, some
of the allegations are refuted on the face of the record.
For instance, his allegations that he did not understand
the charges against him and that he was coerced by his
attorney into pleading guilty are refuted by the record
that he knowingly, intelligently, and willingly pleaded
guilty to the charges against him.
Other allegations fail in that they are conclusory
statements which, even if true, are not shown to have
prejudiced Petitioner. Examples are Petitioner’s claims
that his attorney did not pursue locating a witness who
could testify as to the victim’s mental state and that the
victim looked older than she was. Petitioner fails to
show how such testimony would be admissible at trial or
how it would be relevant to the outcome. The state of
mind of a twelve year old girl being raped is not a
consideration in whether Petitioner was guilty.
Petitioner must show not only that Counsel’s
performance was deficient. He must also show that the
deficient performance prejudiced him; generally by
causing a trial result that was unreliable. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct 2052, 80 L.Ed.2d
674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37
(1986). The issue is not whether counsel made errors but
whether counsel was so thoroughly ineffective that defeat
was snatched from the hands of probable victory. United
States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).
There is a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
-9-
assistance. Kimmelman v. Morrison, 477 U.S. 365, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986)[.]
A final reason the petition fails is that the
allegations raised are appealable and have been appealed
and are not, therefore, appropriate for consideration
pursuant to RCr. [sic] 11.42. Petitioner’s allegations
raised under the heading of prosecutorial vindictiveness
and the heading of judicial error are appealable and have,
in fact, been appealed. RCr. [sic] 11.42 is limited to
allegations that could not and are not raised on appeal.
Labeling the appealable allegations as constituting
ineffective assistance of counsel does not render them
properly judiciable in an RCr. [sic] 11.42 petition.
The Court finds that the allegations raised in the
petition are refuted by the record and do not otherwise
merit relief.
Therefore, IT IS HEREBY ORDERED that the
motion for relief pursuant to RCr. [sic] 11.42 is hereby
DENIED and the conviction AFFIRMED. Petitioner’s
motions for leave to proceed in forma pauperis, for
appointment of counsel, and for an evidentiary hearing
are DENIED as moot.
This appeal followed.
In his initial brief, Bowman presented two main issues. First, he
argued that the circuit court should have held an evidentiary hearing on his
ineffective assistance of counsel claim. Bowman maintained that, at a hearing, he
would have established that his trial counsel gave him faulty advice regarding
possible defenses to the rape because counsel failed to adequately investigate the
facts or research the law. Bowman argued that, because he relied on that faulty
advice, his plea was involuntary. Additionally, Bowman maintained that he would
have established at a hearing that his trial counsel failed to discuss the
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Commonwealth’s request for a polygraph examination; that he changed counsel
several times throughout the course of litigation, which affected the plea
procedure; and the circuit court failed to look at the totality of the circumstances
when it determined his plea was voluntary. For his second issue, Bowman argued
the circuit court should have appointed counsel. In its initial brief, the
Commonwealth maintained the circuit court did not commit any error in denying
Bowman’s motion without holding an evidentiary hearing, and Bowman’s trial
counsel was not ineffective.
After reviewing the record and the arguments of counsel, we affirmed
the trial court’s denial of Bowman’s RCr 11.42 motion. In doing so, we held that
Bowman’s ineffective assistance of counsel claim was simply an impermissible reargument of issues raised on direct appeal. However, we did not address what, if
any, impact the Supreme Court of Kentucky’s holding in Leonard had on our
holding. Pursuant to the Supreme Court’s remand, we do so below reiterating
relevant portions of our November 26, 2008, opinion.
STANDARD OF REVIEW
An overriding principle in RCr 11.42 proceedings is that a defendant
can only raise claims that “were not and could not be raised on direct appeal. An
issue raised and rejected on direct appeal may not be relitigated in [RCr 11.42]
proceedings by simply claiming that it amounts to ineffective assistance of
counsel.” Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001). However,
failure to prevail on a claim of error on direct appeal does not necessarily negate an
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ineffective assistance of counsel claim related to the direct error. When those
claims differ, the court must address the ineffective assistance of counsel claim
using the appropriate standard of review. Leonard, 279 S.W.3d 157-59. To the
extent ineffective assistance of counsel claims differ from issues raised on direct
appeal, a defendant must establish that the claims raised are not “conclusively
refuted by the record” and that those claims, “if true, would invalidate the
conviction,” before he is entitled to a hearing. Lewis v. Commonwealth, 411
S.W.2d 321, 322 (Ky. 1967). Finally, because Bowman pled guilty and is now
arguing that he involuntarily did so because of ineffective assistance of counsel, he
must establish:
(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the
plea process that, but for the errors of counsel, there is a
reasonable probability that the defendant would not have
pleaded guilty, but would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 80
L.Ed.2d 203 (1985). Cf., Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441,
1449, 25 L.Ed.2d 763 (1970).
Sparks v. Commonwealth, 721 S.W.2d 726, 727-28 (Ky. App. 1986). See also
Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001). With these standards in
mind, we analyze Bowman’s appeal.
ANALYSIS
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Bowman’s ineffective assistance of counsel claim revolves around
two primary arguments: (1) counsel’s failure to advise Bowman fully that he could
defend himself from the charges by showing he did not know the victim’s age; and
(2) counsel’s failure to investigate that defense in a timely manner. Bowman
argues that, if he had known there were witnesses who would testify the victim
appeared to be significantly older than her stated age, he would not have pled
guilty.
In our initial opinion, we noted that Bowman made this argument to
the Supreme Court in his direct appeal. The Supreme Court was not persuaded by
Bowman’s argument, and held that the “newly discovered evidence” did not alter
the voluntariness of Bowman’s guilty plea. We previously stated that holding
applies to this appeal, which we reiterate. However, based on the Supreme Court’s
remand, we must take our analysis further and determine whether Bowman’s RCr
11.42 ineffective assistance of counsel claim differs from his direct appeal claim.
To the extent that it does, we must then determine if the trial court properly denied
Bowman’s RCr 11.42 motion.
We begin our analysis by reviewing Leonard. Jeffrey Leonard
(Leonard) was tried and convicted of murder and robbery and sentenced to death.
Following exhaustion of his direct appeals, Leonard filed an RCr 11.42 motion
alleging ineffective assistance of counsel. The trial court denied Leonard’s motion
finding that the issues he raised therein had been addressed on direct appeal.
Seven years later, the Supreme Court rendered its decision in Martin v.
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Commonwealth, 207 S.W.3d 1 (Ky. 2006). In Martin, the Court held that “errors
raised for the first time on appeal and found not to be palpable under RCr 10.26
could be the source of subsequent ineffective assistance of trial counsel claims.”
Leonard, 279 S.W.3d at 155. Leonard then filed a Kentucky Rule(s) of Civil
Procedure (CR) 60.02 motion arguing that the Court’s holding in Martin “removed
the procedural bar that had prevented many of his claims from being addressed on
their merits in the initial RCr 11.42 proceeding.” Leonard, 279 S.W.3d at 155.
The trial court denied Leonard’s motion finding that the holding in Martin could
not be applied retroactively. The Supreme Court agreed and affirmed the trial
court. However, before doing so, the Court stated that the previously recognized
rule that failure to prevail on direct appeal barred any claim for relief on related
issues through RCr 11.42, was incorrect. The Court “noted that the standards for
evaluating potential palpable errors on direct appeal and claims of ineffective
assistance of counsel [are] substantially different, with the palpable error standard
being more stringent.” Id. at 157. Furthermore, the Court noted that claims on
direct appeal relate to alleged errors made by the trial court, while claims via RCr
11.42 relate to alleged errors made by counsel. Id. at 158. Therefore, “appellate
resolution of an alleged direct error cannot serve as a procedural bar to a related
claim of ineffective assistance of counsel.” Id.
The Commonwealth argues that Leonard should be narrowly
construed as applying only to those cases involving direct appeal of unpreserved
trial error with subsequent ineffective assistance of counsel claims based on failure
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to preserve the error. We disagree. Had the Supreme Court wanted to limit its
holding in Leonard to those cases it certainly could have done so. In fact, the
Supreme Court could have decided Leonard by simply stating that the new rule
announced in Martin could not be applied retroactively. The Supreme Court did
not need to expound on its holding in Martin, and we do not believe that it did so
without purpose. Reading Leonard as a whole, we believe that the Supreme Court
extended the holding in Martin to encompass all cases where an ineffective
assistance of counsel claim is related to a claim of direct error. The Supreme Court
did not limit Martin’s application only to those ineffective assistance of counsel
claims related to direct error claims involving issues of palpable error. Therefore,
we must determine if the trial court, applying the standards set forth in Leonard
and Martin, properly denied Bowman’s RCr 11.42 motion.
As noted above, in order to successfully prosecute an ineffective
assistance of counsel claim, a defendant who pled guilty must show that counsel
made serious errors and that, but for those errors, he would have proceeded to trial.
Sparks, 721 S.W.2d at 727-28. Bowman argues that counsel was deficient because
he did not conduct an adequate investigation. According to Bowman, if counsel
had done so, he would have discovered the two potentially corroborating
witnesses, Skinner and Imus, before Bowman entered his guilty plea. Bowman
asserts that, had he known of the existence of these witnesses, he would not have
pled guilty.
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The Commonwealth argues that Bowman’s counsel conducted a
sufficient investigation. Furthermore, the Commonwealth argues that, even if
counsel had discovered Skinner and Imus, they would not have been permitted to
testify. Therefore, any deficiency in investigation was not prejudicial to Bowman.
We begin by addressing the Commonwealth’s arguments regarding
the admissibility of testimony from Skinner and Imus. Initially we note that,
because Bowman pled guilty, no testimony was presented. Therefore, whether
testimony by Skinner and Imus would have been admissible is, in part, speculative.
The majority of what is contained in the affidavits of Skinner and Imus is based on
what the victim related to them and falls directly within the definition of hearsay.
Other portions of those affidavits refer to CC’s alleged actions the night in
question. The Commonwealth is correct that portions of what is contained in the
affidavits, if presented at trial, would be excluded under either Kentucky Rule(s) of
Evidence (KRE) 403 as irrelevant or under KRE 412 as inadmissible character and
behavior evidence. However, depending on what CC may have said while
testifying, some of what she told the witnesses may have been admissible under
KRE 801A as inconsistent statement evidence. Furthermore, in light of the
Commonwealth’s intent to introduce the photograph of CC with no makeup and
wearing a cartoon character t-shirt, observations by Skinner and Imus regarding
CC’s apparent age may have been admissible. Therefore, we cannot agree with the
Commonwealth or the trial court that any testimony from the witnesses would be
inadmissible under any circumstances.
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Having determined that the witnesses may have been permitted to
testify, at least in part, and that their testimony may have assisted Bowman, we
must next address whether Bowman’s counsel conducted a sufficient investigation.
The Commonwealth argues that it was reasonable for Bowman’s counsel to rely on
Bowman to provide the names of potential witnesses. We agree. However,
because the trial court did not hold an evidentiary hearing on Bowman’s motion,
we cannot discern whether or not that occurred. In fact, without an evidentiary
hearing, we cannot determine what investigation took place. Therefore, we must
remand this matter to the trial court with instructions to hold an evidentiary hearing
regarding the adequacy of the investigation performed by Bowman’s counsel.
Following that hearing, the trial court will be free to determine whether Bowman
did or did not receive effective assistance from counsel. Because Bowman is
entitled to a hearing on his ineffective assistance of counsel claim, the trial court
shall appoint counsel if Bowman otherwise qualifies.
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CONCLUSION
Based on the preceding and our interpretation of Leonard v.
Commonwealth and Martin v. Commonwealth, we vacate the trial court’s finding
with regard to Bowman’s ineffective assistance of counsel claim. We remand this
matter for an evidentiary hearing by the trial court on that claim.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Julia K. Pearson
Frankfort, Kentucky
Jack Conway
Attorney General
Louis F. Mathias, Jr.
Heather M. Fryman
Assistant Attorneys General
Frankfort, Kentucky
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