BROWN (MIKE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 03-CR-00075
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
COMBS, CHIEF JUDGE: Michael Brown appeals from an order of the Clinton
Circuit Court denying his Kentucky Rule of Criminal Procedure (RCr) 11.42
motion to vacate his sentence and conviction, to grant a new trial, and to grant an
evidentiary hearing. After our review of the record, we affirm.
At approximately 7:00 a.m. on May 14, 2003, while Michael Brown
was traveling north on Highway 558 in Clinton County, his car dropped off the
right shoulder. As he attempted to come back onto the road, Brown over-corrected
and crossed into the southbound lane, hitting Christie Branham’s car nearly headon and sending it over an embankment. Brown’s car then spun around multiple
times and finally stopped. It came to rest against the front of a southbound school
bus that was loaded with children.
Witnesses to the aftermath testified that Brown emerged from his car
appearing confused and smelling of alcohol. Investigating police officers observed
one beer can in the back seat of his car and another in the middle of the road near
the site of impact. Based on this evidence, the Kentucky State Police (KSP) sought
blood and urine samples from Brown approximately one and one-half hours after
the collision. Since Brown was unconscious and could not consent to the test, the
nurses at Clinton County Hospital provided KSP with the samples. The tests
subsequently revealed that Brown had a blood alcohol level of .09% and that his
urine contained constituents of marijuana indicating that he had consumed
marijuana within the previous 36 hours.
Fortunately, the bus driver, Bradley Bell, had observed Brown’s
vehicle in time to stop the school bus completely so that none of the bus’s
occupants was injured. However, Ms. Branham and her three children suffered a
far different outcome. First responders to the Branham car found that only twoyear-old Kristen was conscious. Nine-year-old Jonathan had a visible skull
fracture and was airlifted from the scene to the University of Kentucky Medical
Center in Lexington. Seven-year-old Jacob was initially taken to Clinton County
Hospital in Albany along with his sister, Kristen, and their mother, Christie.
However, their injuries proved to be so extensive that they were airlifted to UK
later that day.
Kristen had a broken femur because the driver’s seat slammed
backward into her car seat. She also suffered a broken right hand and scars on her
face from shattered glass. Jonathan had a depressed skull fracture; treatment
included removal of a portion of his brain. He has pins and plates under the
Jacob’s injuries were grave – as are their ongoing consequences. He
suffered a head injury that resulted in stroke-like effects. He is unable to speak,
swallow, or control his bowels. He cannot hold up his head and receives nutrition
through a feeding tube. Jacob will require extensive care for life.
Their mother, Christie, suffered a crushed lower leg, ruptured spleen,
crushed tailbone, broken hand, broken pelvis, punctured lung, broken ribs, broken
shoulder, and a concussion. She still experiences difficulty walking and has
limited function of the shoulder that was broken. Additionally, even minor
infections pose a high risk for her because her spleen had to be removed.
In September 2003, a Clinton County grand jury indicted Brown on
one count of driving under the influence (DUI), operating a motor vehicle on a
license suspended for a DUI, and four counts of first-degree assault. The trial was
in March 2004. The jury found Brown guilty of the DUI and four counts of first-3-
degree assault. He received a combined sentence of imprisonment of fifty years –
to be served consecutively. In January 2006, the Supreme Court of Kentucky
affirmed the conviction following Brown’s direct appeal. In response, Brown filed
his RCr. 11.42 motion seeking to vacate his sentence and conviction and asking for
a new trial and an evidentiary hearing. The Clinton Circuit Court denied his
motion, and this appeal follows.
Brown’s arguments are all derived from his claim that he received
ineffective counsel. Accordingly, our standard of review focuses on the legal test
for the elements establishing ineffective assistance of counsel.
The Supreme Court of the United States has set forth a precise twopronged test describing the defendant’s burden of proof in such a case:
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 (1984), adopted by Gall v.
Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both prongs must be met in
order for the test to be satisfied. The Court also observed as follows:
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.
Strickland, 466 U.S. at 694. The Strickland Court emphasized that reviewing
courts should assess the effectiveness of counsel in the light of the totality of the
evidence presented at trial and the fundamental fairness of the challenged
proceeding. Id. at 695-96.
Pre-trial Investigation and Preparation
Brown first argues that trial counsel failed to investigate and to
prepare adequately for trial. The Supreme Court of Kentucky has addressed the
role of counsel in conducting pre-trial investigation:
This Court has recognized the necessity for complete
investigation by defense counsel. [C]ounsel has a duty to
make reasonable investigation or to make a reasonable
decision that makes particular investigation unnecessary
under all the circumstances and applying a heavy
measure of deference to the judgment of counsel. A
reasonable investigation is not an investigation that the
best criminal defense lawyer in the world, blessed not
only with unlimited time and resources, but also with the
benefit of hindsight, would conduct. The investigation
must be reasonable under all the circumstances.
Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), (emphasis added)
(citations omitted). Brown’s allegations of lack of preparation are based on the
fact that his trial counsel was disbarred approximately fourteenth months after the
trial. However, we note the reasoning of our Supreme Court that “the test for
effective assistance of counsel is . . . whether a reasonable attorney would have
acted, under the circumstances, as defense counsel did at trial.” Baze v.
Commonwealth, 23 S.W.3d 619 (Ky. 2000), citing Waters v. Thomas, 46 F.3d
1506, 1512 (11th Cir. 1995). It is irrelevant and inappropriate to speculate upon
events involving trial counsel in an unrelated, subsequent matter. See Sanders v.
Commonwealth, 89 S.W.3d 380, 386 (Ky. 2002)
Brown claims in particular that his attorney failed to interview
potential witnesses, failed to obtain expert witnesses, and failed to object to the
blood alcohol testing procedures. We have determined that the record contradicts
one of these claims and that the other two allegations do not rise to the level of
prejudice required by Strickland.
First, the record substantiates that Brown’s trial counsel did object to
the blood alcohol testing procedures. Kentucky Revised Statutes (KRS) §
189A.103 provides that:
Any person who operates or is in physical control of a
motor vehicle . . .
(1) . . . is deemed to have given his consent to one (1) or
more tests of his blood, breath, and urine, or combination
thereof, for the purpose of determining alcohol
concentration or presence of a substance which may
impair one’s driving ability, if arrested for any offense
arising out of a violation of KRS 189A.010(1) or
(2) Any person who is dead, unconscious, or otherwise
in a condition rendering him incapable of refusal is
deemed not to have withdrawn the consent provided in
subsection (1) of this section, and the test may be given.
(3) The breath, blood, and urine tests administered
pursuant to this section shall be administered at the
direction of a peace officer having reasonable grounds to
believe the person has committed a violation of KRS
189A.010(1) or 189.520(1).
Brown came within the ambit of the statute, and the court did not err in overruling
his objection to the procedure. Additionally, the trial court properly ruled that the
prosecution established the chain of custody for the samples and test results.
Second, the lack of expert witnesses at trial was not unreasonable
because both an eye witness and a KSP accident reconstructionist testified at trial.
Brown did not object to their accounts of the events. Brown has only contested the
cause of the accident (his own intoxication), and the witnesses he claims to have
been omitted could not have overcome the evidence of the blood test so as to affect
the outcome. Our Supreme Court has addressed this contention in Hodge v.
Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), holding that: “The mere fact
that other witnesses might have been available or that other testimony might have
been elicited from those who testified is not a sufficient ground to prove
ineffectiveness of counsel.” (emphasis added) (citation omitted).
Likewise, the only potential witness whom Brown mentions with
particularity is his sister, who allegedly would have testified that Brown did not
drink alcohol before the accident. In Haight, 41 S.W.3d at 441, the Supreme Court
of Kentucky elaborated on the standard for ineffective assistance of counsel as
being “not whether counsel made errors but whether counsel was so thoroughly
ineffective that defeat was snatched from the hands of probable victory.”
The testimony that someone did not personally observe Brown
drinking prior to the accident simply could not as a matter of scientific reality
refute the results of a blood test. KRS 189A.010(1)(a) criminalizes operating or
being in physical control of a motor vehicle while “having an alcohol
concentration of .08 or more as measured by a scientifically reliable test or tests of
a sample of the person’s breath or blood taken within two (2) hours of cessation of
operation or physical control of a motor vehicle.” Although courts may admit
evidence indicating contributory or mitigating circumstances, its omission in this
case was not likely to overcome the scientific evidence. Thus, we cannot conclude
that Brown suffered prejudice as a result of the absence of his sister’s probable
Brown also argues that his counsel was ineffective for failing to
obtain expert witnesses. He speculates that expert witnesses “could have” or “may
have been able” to provide testimony that would have discredited the evidence
presented at court concerning both Ms. Branham’s driving and the accuracy of his
blood test. In Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005), the
Supreme Court directed that post-conviction claims involving expert witnesses
must be specific as to the identity of the prospective expert and the probable
content of his testimony: “A claim that certain facts might be true, in essence an
admission that Appellant does not know whether the claim is true, cannot be the
basis for RCr 11.42 relief.” Id. at 328.
Additionally, the Court has held that “the
purpose of an RCr. 11.42 motion is to provide a forum for known grievances and
not an opportunity to conduct a fishing expedition for potential grievances.”
Sanborn v. Commonwealth, 975 S.W.2d 905, 910 (Ky. 1998).
Brown has not named any specific experts nor has he identified any
potential testimony to meet “his burden of showing that there is a reasonable
probability that [such] testimony . . . would have changed the outcome of the
proceeding.” Mills, 170 S.W.3d at 329. As the Commonwealth correctly notes, it
was likely prudent trial strategy for the defense not to call expert witnesses. The
eyewitness to the accident was very credible. The Commonwealth observed that:
given the amount of evidence already against [Brown],
trial counsel most likely did not want to put an expert on
the stand that on cross-examination would have to
concede that appellant’s blood alcohol level would have
likely been higher at the time of the accident or to testify
that marijuana may enhance the effect of alcohol.
Appellee’s Brief at 11. Accordingly, we conclude that the trial court did not err in
overruling Brown’s 11.42 motion.
Admission of Inadmissible Evidence
Brown next argues that his counsel was ineffective because his trial
attorney failed to advise him to refrain from testifying at trial. Because Brown
testified, evidence of his prior DUI convictions was admitted in the guilt phase of
the trial. Among those convictions was one that involved an accident in which his
own children were injured.
Before trial, Brown’s counsel filed a motion to exclude evidence of
the prior convictions. The court’s order and the Commonwealth’s brief both
suggest that Brown was present for the trial court’s ruling on the admissibility of
the prior DUI convictions, but the video record does not corroborate this claim.
Nonetheless, the record shows that the trial court allowed it to be used for
Our Supreme Court has held that “a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or jury.”
Strickland, 466 U.S. at 695. Here, the totality of the circumstances indicates that
even without reference to the prior convictions, the prosecution presented
sufficient evidence for the jury to find Brown guilty. Regardless of the fact that
Brown’s testimony resulted in the use of the earlier convictions for impeachment
purposes, the evidence of the prior convictions would have been admitted during
the penalty phase. We find no error on this point.
Failure to Give Advice Concerning the Law and Facts
Brown’s final claim of ineffective counsel is that his attorney did not
advise him of the relevant law and facts of the case. In corroboration of that
contention, he offers only generalized examples of objections that he believes his
trial counsel should have made. As to one example (i.e., photographs of the
accident scene), trial counsel did in fact object.
RCr. 11.42(2) requires that a motion for relief “shall state specifically
the grounds on which the sentence is being challenged and the facts on which the
movant relies in support of such grounds.” The burden rests upon the movant to
“establish convincingly that he was deprived of some substantial right which
would justify the extraordinary relief afforded by the post-conviction proceeding.”
Haight, 41 S.W.3d at 442, citing Dorton v. Commonwealth, 433 S.W.2d 117, 118
(Ky. 1968). That burden entails “more than a shotgun allegation of complaints. . . .
It is inappropriate for a movant to seek a hearing hoping, in the words of Mr.
Micawber that ‘something would turn up.’” Stanford v. Commonwealth, 854
S.W.2d 742, 748 (Ky. 1993). Brown’s allegations amount to a quest for something
that might have turned up, and the trial court was correct in dismissing his motion.
Lack of Evidentiary Hearing
Brown argues that the Clinton Circuit Court should have granted him
an evidentiary hearing before denying his RCr. 11.42 motion. RCr. 11.42(5)
requires an evidentiary hearing if “the [Commonwealth’s] answer raises a material
issue of fact that cannot be determined on the face of the record.” In Fraser v.
Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001), the Supreme Court set the
parameters for a trial judge’s evaluation of a record for eligibility for an
2. After the answer is filed, the trial judge shall
determine whether the allegations in the motion can be
resolved on the face of the record, in which event an
evidentiary hearing is not required. A hearing is required
if there is a material issue of fact that cannot be
conclusively resolved, i.e., conclusively proved or
disproved, by an examination of the record.
Even if the allegations are not refuted by the record, an evidentiary hearing will not
be granted if they are insufficient to overcome the verdict. Newsome v.
Commonwealth, 456 S.W.2d 686, 687 (Ky. 1970).
In this case, Brown’s allegations in support of an evidentiary hearing
were either resolved by the record or were insufficient to affect the outcome of the
case. The Clinton Circuit Court did not err in not granting the motion for a
Brown last argues that his motion should have been granted based on
the cumulative errors made by the trial court. Because we find no errors at all, that
argument is inapplicable. See Sanborn, 975 S.W.2d at 913.
We affirm the order of the Clinton Circuit Court denying Brown’s
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Neil Brown, pro se
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General