PATE (LAWRENCE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 02-CR-00028
COMMONWEALTH OF KENTUCKY
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Lawrence Pate appeals from a denial of his RCr 11.42
motion. He argues that he was given ineffective assistance of counsel and that a
key witness’ testimony was perjured. After careful review of the record, we affirm
the judgment of the Pendleton Circuit Court.
Pate was convicted of manufacturing methamphetamine and was
sentenced to twenty years’ imprisonment. He appealed his conviction as a matter
of right to the Kentucky Supreme Court. We hereby adopt the Supreme Court’s
summary of the facts as follows:
On May 9, 2002, Kathy Pate (a/k/a Katherine
Pate), [Pate's] wife, who had come to the Pendleton
County Sheriff's Office to make a domestic violence
complaint against [Pate], informed Deputy Sheriff Craig
Peoples that on the previous weekend, she, [Pate], and
Alicia Aulick Gregg (a/k/a Alicia Aulick or Alicia
Gregg) had gone to Illinois and returned with a tank of
anhydrous ammonia that [Pate] stored behind Alicia
Gregg's trailer-residence. She also informed Deputy
Peoples that [Pate] was armed with a .38 handgun and
provided him with a description of [Pate]'s vehicle and its
license plate number.
Deputy Peoples testified that he proceeded
immediately to Gregg's residence because of the
extremely volatile nature of anhydrous ammonia. He
located the tank, discovered that the anhydrous ammonia
was housed in an unapproved container, and based upon
the discoloration of the tank's brass fittings, he
determined that the tank created a risk of exploding. He
contacted the Fire Department and the Drug Enforcement
Administration to facilitate the destruction of the tank.
A short time later, Deputy Peoples noticed a
vehicle, much like the one that Kathy Pate had described
as [Pate]'s, approaching Gregg's residence. The vehicle
stopped, as if to turn around, and Deputy Peoples drove
up behind the vehicle, blocking it, confirmed the license
plate number, and recognized the driver as [Pate]. He
then ordered [Pate] out of the car and onto the ground
where he was handcuffed and placed under arrest. Alicia
Gregg was a passenger in [Pate]'s vehicle.
Deputy Peoples frisked [Pate], attempting to locate
the .38 weapon that Kathy Pate had stated [Pate] would
be carrying. He did not find the handgun; however, he
found a pocket knife on [Pate]'s person and a search of
the car revealed a quantity of .38 shells. The search of
the vehicle also revealed an array of methamphetamine
precursors. Specifically, Deputy Peoples discovered
camping fuel, a butane torch, table salt, two packs of
lithium batteries, Rooto drain opener, STP Oil Treatment,
three boxes of pseudoephedrine, three boxes of
suphedrine, five boxes of nasal decongestant, a plastic tea
jug, mixing spoons, and plastic tubing. Receipts, in the
name of Katherine Pate, for nasal decongestant and
muriatic acid1 were also found in the car, along with
maps of all Wal-Mart and Dollar General Store locations
within a fifty-mile radius of Cincinnati, Ohio.2 [Pate]
was charged with Manufacturing Methamphetamine and
Carrying a Concealed Deadly Weapon.3
The Kentucky Supreme Court affirmed Pate’s convictions.
Thereafter, on June 6, 2007, Pate filed a motion pursuant to RCr 11.42 in the
Pendleton Circuit Court. He alleged that his counsel was ineffective for failing to
move for a mistrial or file a narrative statement after the Commonwealth made
certain alleged statements about a witness in front of the jury. Furthermore, he
alleged ineffective assistance due to the attorney’s failure to make a motion
regarding the alleged incompetency of Kathy Pate, his wife and a witness for the
Commonwealth. He further stated that counsel failed to investigate and call
The muriatic acid was later located in a storage facility. Kathy Pate had informed the police of
the storage unit, provided them with a key, and gave the police permission to enter the unit.
Therein, the police found a plastic container of muriatic acid. Pate admitted at trial that the
muriatic acid found in the storage facility belonged to him; he claimed, however, that he
intended to use it to clean stains from a concrete porch and not for use in the manufacture of
The significance of the maps was explained by Deputy Peoples during direct examination by
the Commonwealth: “The significance [of the maps] is they can go from store, to store, to store
to buy their amphedrine or any other by-products or precursors, and they don't throw up any red
flags, and the police are not notified if you buy the over allotted number of boxes.”
Pate was acquitted of the charge of Carrying a Concealed Deadly Weapon.
witnesses he desired and that counsel chose not to strike a juror despite his request
to do so. Moreover, he argued that it was not trial strategy to not invoke the
marital privilege with respect to Kathy Pate. Finally, he asserted that Kathy Pate’s
testimony was perjured.
The court below denied Pate’s motion summarily in an order entered
on June 12, 2007, concluding that “the record in this case refutes the defendant’s
allegations.” Pate filed a motion to set aside the order denying RCr 11.42 relief.
He raised the same issues as in the original motion and asserted that he was entitled
to an evidentiary hearing. The trial court again denied the motion, adopting as its
findings the Commonwealth’s response in its entirety. Pate now appeals from that
Pate first argues that the introduction of Kathy Pate’s alleged perjured
testimony resulted in a violation of his right to due process and thus entitled him to
relief under RCr 11.42. Pate cites Commonwealth v. Spaulding, 991 S.W.2d 651
(Ky. 1999), in support of his position. Spaulding, however, is distinguishable in
that it dealt with the application of CR 60.02, specifically with allegations of
perjured testimony as “newly discovered evidence,” rather than RCr 11.42. Pate
overlooks the longstanding Kentucky precedent that clearly states that “perjured
testimony will not be a basis for impeaching a jury verdict in an RCr 11.42
proceeding.” See Commonwealth v. Basnight, 770 S.W.2d 231, 238 (Ky.App.
1989); see also, e.g., Fields v. Commonwealth, 408 S.W.2d 638 (Ky.
1966)(establishing the rule that perjured testimony is not a grounds for relief under
RCr 11.42); Hendrickson v. Commonwealth, 450 S.W.2d 234 (Ky. 1970)(affirming
the rule established in Fields); Hargrove v. Commonwealth, 396 S.W.2d 75, 76
(Ky. 1965)(holding that false evidence is a question for the jury and is not a ground
for relief under RCr 11.42). We therefore find no grounds for relief.
Pate argues next that he was given ineffective assistance of counsel,
raising various specific allegations. The standards which measure ineffective
assistance of counsel have been set out in Strickland v. Washington, 466 U.S. 668
(1984). 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
the circumstances, the challenged action might be
considered sound trial strategy.
Id. at 689-90 (internal citations omitted).
First, Pate contends that his counsel erred in failing to raise the issue
of an alleged ex parte comment by the Commonwealth Attorney to the jury
regarding the impact of drugs on Kathy Pate. The record reflects, however, that
this statement was not ex parte but actually made during closing arguments. The
Commonwealth’s Attorney, in his closing argument, commented, “[w]hy do you
think [Kathy Pate] is in the state she is in today? She said right there,
‘Methamphetamine did this to me.” Therefore, we find there was no error on the
part of counsel, and no further analysis is required.
Next, Pate alleges that his counsel erred in not challenging Kathy
Pate’s competency as a witness. The issue was, however, raised in a motion for
new trial on January 6, 2003, which the trial court denied. We again find no error.
Pate asserts his counsel erred by not following his desire to invoke
spousal privilege to prevent Kathy Pate from testifying. The record, however,
reflects otherwise. Kathy Pate, herself, attempted to invoke spousal privilege,
which was denied. The Kentucky Supreme Court held that Kathy Pate had no right
to the privilege and that:
[Pate]’s failure to assert his adverse testimony privilege
to preclude Kathy Pate from testifying could very well
have been trial strategy. Kathy Pate did not testify
voluntarily, and the prosecutor was granted permission to
treat her as a hostile witness. Based on Kathy Pate’s
reluctance to testify against him, it is certainly possible
that [Pate] assumed that her testimony overall might be
beneficial to his case.
Pate, 134 S.W.3d at 600. Furthermore,
[t]here is no privilege under KRE 504 when ‘[i]n any
criminal proceeding . . . sufficient evidence is introduced
to support a finding that the spouses conspired or acted
jointly in the commission of the crime charge.’ [footnote
omitted]. By Kathy Pate’s own admission, she
accompanied [Pate] on his trip to acquire anhydrous
ammonia. Thus, it is doubtful if Kathy Pate was entitled
to assert the spousal privilege, or if Pate, himself, could
assert that privilege and prevent her from testifying
Pate, 134 S.W.3d at 600. We find the Kentucky Supreme Court’s reasoning and
conclusions sound and therefore also conclude that the decision not to assert
spousal privilege could have been trial strategy. Alternatively, we find, as did the
Supreme Court, that the outcome would not have been different if the privilege had
been asserted in light of Kathy Pate’s admission that she was an accomplice to
Pate additionally contends that his counsel should have investigated
more thoroughly and called certain witnesses. Decisions as to what witnesses to
call is a matter of trial strategy and not cognizable on RCr 11.42 review. See Foley
v. Commonwealth, 17 S.W.3d 878 (Ky. 2000). Therefore, we again find no error.
Pate complains that his counsel failed to strike a juror despite his
request. Again, voir dire decisions are considered trial strategy and are not subject
to RCr 11.42 attack. See Hodge v. Commonwealth, 17 S.W.3d 824, 837 (Ky.
2000). Accordingly, we find no error.
Pate finally makes the case that it was an error for the trial court to
deny him an evidentiary hearing on his RCr 11.42 motion. A defendant is entitled
to an evidentiary hearing on an RCr 11.42 motion only if the issues raised in the
motion reasonably require such a hearing for determination. On the other hand, a
hearing is not required if the motion, on its face, does not allege facts that would
entitle the defendant to a new trial even if true or if the allegations are refuted by
the record itself. Maggard v. Commonwealth, 394 S.W.2d 893, 894 (Ky. 1965).
As discussed previously in this opinion, the allegations of ineffective assistance
raised by Pate are conclusively resolved from the record; thus, the trial court did
not err by failing to conduct an evidentiary hearing.
For the foregoing reasons, we affirm the trial court’s denial of Pate’s
RCr 11.42 motion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ken W. Riggs
Assistant Attorney General