NEACE (WILLIS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001343-MR
WILLIS NEACE
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NO. 97-CR-00026
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; COMBS AND NICKELL, JUDGES.
NICKELL, JUDGE: Willis Neace, pro se, appeals from an order of the Breathitt
Circuit Court denying his allegation of ineffective assistance of counsel pursuant to
RCr1 11.42. We affirm.
In 2000, Neace was indicted on multiple counts of sex crimes
involving his stepdaughter from the time she was six years of age until she turned
1
Kentucky Rules of Criminal Procedure.
fourteen. Neace stood trial three times. The first trial ended, at Neace’s request, in
a mistrial when the prosecutor posed a question the court deemed prejudicial. The
second trial ended in a deadlocked jury. The third trial ended in conviction on one
count of rape in the first degree,2 two counts of rape in the second degree,3 one
count of rape in the third degree,4 two counts of sodomy in the first degree,5 and
one count of incest.6 A sentence of 76 years was imposed. The Supreme Court of
Kentucky affirmed Neace’s conviction on direct appeal7 and denied a petition for
rehearing.
Alleging ineffective assistance of counsel, Neace moved the trial court
to vacate his conviction under RCr 11.42. Counsel was appointed to supplement
Neace’s pro se motion to vacate, but determined supplementation was
unnecessary. On June 15, 2009, the trial court entered judgment denying the
motion because Neace had not demonstrated deficient performance by his counsel
nor actual prejudice resulting in a fundamentally unfair proceeding and an
unreliable result as required by Strickland v. Washington, 466 U.S. 668, 686, 104
2
Kentucky Revised Statutes (KRS) 510.040, a Class A felony when the victim is under the age
of twelve.
3
KRS 510.050, a Class C felony.
4
KRS 510.060, a Class D felony.
5
KRS 510.070, a Class A felony when the victim is under the age of twelve.
6
KRS 530.020, a Class A felony when the victim is under the age of twelve.
7
Neace v. Commonwealth, 2002 WL 32065612, No. 2000-SC-1109-MR (rendered November
21, 2002, unpublished).
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S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In denying relief, and without
commenting upon individual claims, the trial court summarily found Neace’s
allegations were without merit and “did not amount to ineffective assistance of
counsel.” Relief was denied without an evidentiary hearing even though Neace
had asked the trial court to convene a hearing. This appeal followed. Having
reviewed the briefs, the law, and the record, we affirm the trial court’s denial of the
motion to vacate.
Before addressing the heart of this appeal, we must comment upon the
requirements of RCr 11.42(2) which states:
[t]he motion shall be signed and verified by the movant
and 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. Failure to
comply with this section shall warrant a summary
dismissal of the motion.
(Emphasis added). Neace’s pro se memorandum in support of his motion to vacate
alleged several mistakes by the attorney appointed to represent him at his third
trial: failure to object to retrial on double jeopardy grounds where the two prior
trials were not halted due to manifest necessity; failure to secure an expert witness
in the field of child sexual abuse to counter the Commonwealth’s medical expert;
failure to present an alibi defense and request an alibi instruction where there was
proof Neace was out of town during some of the alleged sexual activity; failure to
investigate the case and locate mitigation witnesses; failure to preserve claims of
prosecutorial misconduct; and allowing the Commonwealth to introduce Neace’s
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prior criminal record and uncharged crimes. If the trial court did not find any
individual claim of error egregious enough to justify reversal, Neace urged reversal
of his conviction upon the cumulative effect of all of counsel’s alleged errors. The
trial court denied the motion to vacate because the claims were meritless and did
not satisfy the Strickland test for ineffective assistance of counsel.
As we have said before, vague allegations do not justify RCr 11.42
relief; indeed, they warrant summary dismissal. Mills v. Commonwealth, 170
S.W.3d 310, 330 (Ky. 2005) (overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009)); Sanders v. Commonwealth, 89
S.W.3d 380, 392 (Ky. 2002). As a reviewing Court, we will not search the record
for amorphous claims about which a litigant might be complaining. Nor will we
attempt to construct a basis for such claims. Many of Neace’s claims are only
general complaints unsupported by sufficient detail to enable us to give proper
review. Those allegations that do not satisfy the requirements of RCr 11.42(2) will
not be addressed in this opinion. Additionally, Neace has raised some complaints
for the first time on appeal. We will review only those claims that were first
presented to the trial court as an appellant is not allowed “to feed one can of worms
to the trial judge and another to the appellate court.” Kennedy v. Commonwealth,
544 S.W.2d 219, 222 (Ky. 1977).
We review a trial court's denial of an RCr 11.42 motion for an abuse
of discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). In
reviewing an ineffective assistance of counsel claim, we follow Strickland which
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Kentucky recognized in Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1986),
cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Strickland
directs:
The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.
...
A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or
death sentence has two components. 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. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that
renders the result unreliable.
...
Representation of a criminal defendant entails certain
basic duties. Counsel’s function is to assist the
defendant, and hence counsel owes the client a duty of
loyalty, a duty to avoid conflicts of interest. See Cuyler
v. Sullivan, [446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64
L.Ed.2d 333 (1980)]. From counsel’s function as
assistant to the defendant derive the overarching duty to
advocate the defendant’s cause and the more particular
duties to consult with the defendant on important
decisions and to keep the defendant informed of
important developments in the course of the prosecution.
Counsel also has a duty to bring to bear such skill and
knowledge as will render the trial a reliable adversarial
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testing process. See Powell v. Alabama, [287 U.S. 68-69,
53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932)].
...
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. Cf. Engle v. Isaac, 456
U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71
L.Ed.2d 783 (1982). 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.” See Michel v.
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100
L.Ed. 83 (1955). There are countless ways to provide
effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way. See Goodpaster, The Trial for
Life: Effective Assistance of Counsel in Death Penalty
Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).
...
These basic duties neither exhaustively define the
obligations of counsel nor form a checklist for judicial
evaluation of attorney performance. In any case
presenting an ineffectiveness claim, the performance
inquiry must be whether counsel’s assistance was
reasonable considering all the circumstances.
It is against this backdrop that we review Neace’s complaints.
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First, Neace seems to suggest that counsel at his third trial was
ineffective because she did not secure a mistrial or acquittal where the attorneys
who preceded her had successfully assisted him in avoiding conviction. Neace has
not overcome the strong presumption that counsel’s actions were anything but
sound trial strategy. Michel, 350 U.S. at 101, 76 S.Ct. at 164. Furthermore,
deliberately working toward a mistrial would have accomplished nothing but to
delay the day of reckoning, whether it ended in conviction or acquittal, and raised
the ire of the trial judge. Additionally, it is well-recognized that no two attorneys
would try a case in the same way. Strickland, 466 U.S. at 690, 104 S.Ct. 2066.
Thus, relief is not forthcoming simply because subsequent counsel charted a
different course than her predecessors. Neace has shown neither attorney
deficiency nor prejudice from a deficiency, both of which are necessary for relief.
Neace’s second complaint is that counsel did not object to retrial on
grounds of double jeopardy. He claims this was error because the first two trials
were not aborted due to manifest necessity. We disagree. Defense counsel
requested the first mistrial following a prejudicial question posed by the
prosecutor. The United States Supreme Court has condemned the tactic of
claiming double jeopardy based upon a defendant’s own motion for a mistrial.
Oregon v. Kennedy, 456 U.S. 667, 672-73, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416
(1982). The second trial ended in a hung jury. “A jury’s inability to reach a
decision is the kind of ‘manifest necessity’ that permits the declaration of a mistrial
and the continuation of the initial jeopardy that commenced when the jury was first
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impaneled.” Yeager v. United States, ___ U.S. ___, 129 S.Ct. 2360, 2366, 174
L.Ed.2d 78 (2009) (citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54
L.Ed.2d 717 (1978), and United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165
(1824)). An objection to the third trial on double jeopardy grounds would have
been frivolous as the first two trials ended early due to manifest necessity.
Neace’s next allegation is that counsel did not raise the same
objections voiced during the first two trials. As a result, he questions whether
counsel reviewed transcripts from the previous trials in preparation for the third
trial. We have reviewed transcripts involving counsel for the third trial which
show an awareness of previous events. Other than a general assertion that counsel
failed “to renew objections which had been lodged by earlier counsel,” Neace has
not identified specific objections that were not renewed at the third trial. Without
details, we cannot determine whether counsel was deficient or whether the alleged
deficiency changed the outcome of the trial. As stated previously, we will not
search the record for errors and factual support. We further note that in affirming
Neace’s conviction on direct appeal, our Supreme Court stated that while some
errors were not properly preserved for review,8 had they been raised they did not
rise to a level justifying reversal. Neace, at *3.
8
On direct appeal, Neace alleged instances of prosecutorial misconduct were not properly
preserved. The Supreme Court found the claims to be “wholly without merit.” An RCr 11.42
motion is not an opportunity to rehash previously raised issues. Thus, we will not review again
issues previously resolved against Neace. Hodge v. Commonwealth, 116 S.W.3d 463, 467-68
(Ky. 2003) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009)).
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Neace’s next objection is that counsel failed to request sentencing
under a newer and more lenient sentencing statute. This issue was not presented to
the trial court and we will not comment further. Kennedy.
Next, Neace argues that counsel should have requested an expert
witness in child sexual abuse to counter the Commonwealth’s medical expert.
Because Neace does not specify the expert testimony that would have changed the
trial’s outcome, we have no basis from which to conclude counsel committed error
or that such error prejudiced the defense. Furthermore, arguing to jurors that his
stepdaughter’s hymen could have been torn and her vagina stretched in ways other
than penile penetration would seem to run counter to the defense theory that the
child was sexually active with a boyfriend instead of Neace. Furthermore, had
defense counsel requested an expert witness, and that witness confirmed the
findings of the Commonwealth’s medical expert, such testimony would have been
devastating to the defense. Thus, Neace has not overcome the strong presumption
that not requesting a defense expert was reasonable trial strategy.
Finally, Neace complains that his attorney failed to present evidence
of an alibi—that he was out of town during many of the alleged sexual events—
and did not request an instruction thereon. Under Fible v. Commonwealth, 461
S.W.2d 553, 556 (Ky. 1970), there is no requirement that a separate alibi
instruction be given where the instructions as a whole allow jurors to acquit the
accused if they believe his version of the events. Furthermore, it was mentioned at
trial that Neace was working out of town at particular times. However, the value
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of that evidence was questionable because the indictment did not, and did not have
to, specify the dates on which the crimes occurred since time was not a “material
element” of the crime. Applegate v. Commonwealth, 299 S.W.3d 270-71 (Ky.
2009). An indictment is sufficient so long as the crime is alleged to have occurred
prior to the return of the indictment. Id. Finally, Neace argues a more complete
alibi defense was presented during the first two trials. Since the second trial ended
in a hung jury, we cannot say with certainty that more alibi evidence would have
commanded a different result.
Following a review of the record, the briefs and the law, we discern
no abuse of discretion by the trial court in denying the motion to vacate. Many of
Neace’s complaints were vague and therefore summary dismissal, without an
evidentiary hearing, was justified. RCr 11.42(2); Stanford v. Commonwealth, 854
S.W.2d 742, 748 (Ky. 1993) (hearing not required for speculative claims or those
lacking external evidence). Finally, Neace has failed to make the two-prong
showing required by Strickland. Having failed to demonstrate attorney error and
prejudice resulting from such error, he is not entitled to the requested relief.
For the foregoing reasons, the judgment of the Breathitt Circuit Court
is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Willis Ray Neace, pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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