VIRGINIA S. CAUDILL V. COMMONWEALTH OF KENTUCKY
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2006-SC-000457-MR
VIRGINIA S. CAUDILL
V
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
NO . 99-CR-00146-001
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Virginia S . Caudill appeals from the Fayette Circuit Court's denial of
RCr 11 .42 motion for post-conviction relief. In that motion, Caudill raised
numerous claims, the majority of which involved allegations of ineffective
assistance of counsel and prosecutorial misconduct . The Fayette Circuit Court
rejected each without an evidentiary hearing, except for a single claim of juror
misconduct . Caudill now appeals twelve of the remaining issues that were
denied without a hearing.
Caudill was convicted in 2000 for the murder Lonetta White . She was
tried jointly with Jonathan Wayne Goforth, whose post-conviction appeal has
been considered with Caudill's. White was bludgeoned to death in her home.
Her body was found in the trunk of her burning car in a held several miles
away. Numerous items of valuable personable property had been taken from
her home.
Both Caudill and Goforth admitted they were present in White's home
when the murder occurred, but each accused the other of the actual crime .
Caudill claimed that she went to ask White, the mother of her estranged
boyfriend, for money, and that Goforth unexpectedly forced his way into the
house and attacked White . Goforth claims that he accompanied Caudill to
White's house and when White refused to give Caudill money, she began
attacking the woman. Both admitted to assisting in the removal of White's
body from the home and the burning of her body and vehicle . Eventually, the
pair fled to Florida and New Orleans before being arrested in Mississippi.
Goforth and Caudill were jointly tried and each was convicted of murder,
burglary in the first degree, robbery in the first degree, arson in the second
degree, and tampering with physical evidence. Each received the death penalty
for the murder conviction and the maximum allowable sentence for the
remaining crimes. Their convictions were affirmed on direct appeal, where
further factual details may be found . Caudill v. Commonwealth, 120 S .W .3d
635 (Ky. 2003) . The following year, Caudill filed the present motion for postconviction relief.
Standard of Review
To prevail on a motion for post-conviction relief pursuant to RCr 11 .42,
the movant must establish that he was denied a substantial right. Halvorsen
v. Commonwealth, 258 S .W .3d 1, 3 (Ky. 2007) . The motion must set forth all
facts necessary to establish the existence of a constitutional violation . Ska s
v. Commonwealth , 803 S .W.2d 573, 576 (Ky. 1990) . Where factual issues are
not resolvable through a review of the trial record, an evidentiary hearing
should be held. Id .
When the basis of the RCr 11 .42 motion is a claim of ineffective
assistance of counsel, the movant must overcome the strong presumption that
counsel rendered reasonably effective professional assistance. First, the
movant must show that counsel's performance was deficient, meaning that
counsel was not functioning as the "counsel" guaranteed by the Sixth
Amendment. Strickland v. Washington , 466 U.S . 668, 687 (1984) . Second, the
movant must demonstrate that counsel's deficiency prejudiced the defendant.
Id. This requires a showing that, but for counsel's unprofessional errors, the
outcome of the trial would have been different. Id . at 694 . "So the threshold
issue is not whether [Caudill's] attorney was inadequate; rather, it is whether
he was so manifestly ineffective that defeat was snatched from the hands of
probable victory." United States v. Morrow, 977 F.2d 222, 229 (6th Cir . 1992) .
We have also stated this standard as a determination of whether, absent
counsel's errors, the jury would have had reasonable doubt with respect to
guilt. Brown v. Commonwealth, 253 S .W.3d 490, 499 (Ky. 2008).
Ineffective Assistance of Counsel Claims
Expert Witness
Caudill claims that her defense counsel was ineffective for not securing
an expert witness to rebut the testimony of Linda Winkle, a Kentucky State
Police crime lab forensic examiner . Winkle examined the shoes Caudill was
wearing on the night of White's murder. Caudill was also wearing these shoes
the following day when she and Goforth briefly fled to Marion County . On that
trip, Goforth swerved his truck to avoid a deer, causing the truck to tumble
over an embankment . Caudill sustained minor cuts and bruises in the
accident.
Winkle testified at trial that White's blood was found on Caudill's shoes .
She further explained that blood appeared in three forms: impact spatter,
contact stains, and smears. Winkle testified that the medium impact blood
spatter found on the shoes was produced when force was applied to the blood,
which would be consistent with a beating or similar action. Further, the shoes
were within three feet of where the blood originated when the force was applied .
Winkle, however, qualified her testimony by explaining this was only one
explanation, and that other potential ways existed that would cause the blood
to spatter or break up. The Commonwealth argued that the blood spatter was
formed when Caudill was within three feet of White during the assault.
In her RCr 11 .42 motion, Caudill presented an affidavit from a DPA
investigator, Douglas Blair, to support the contention that her counsel should
have hired an expert to rebut Winkle's testimony. Blair related statements
made to him by Edward Taylor, a blood spatter expert also employed by the
KSP crime lab. According to the affidavit, Taylor stated that there was no way
of telling if the spatter on Caudill's shoes was caused by impact spatter, as
Winkle had testified, or by satellite spatter. Caudill argues that satellite spatter
could have occurred during the subsequent car wreck, when her own blood
might have impacted White's blood on her shoes . We note that this
explanation for satellite spatter is Caudill's; Taylor did not indicate specifically
that the car accident could have caused satellite spatter. Taylor's statements
also do not address the fact that White's blood would presumably have dried on
Caudill's shoes by the time of the car accident, which occurred several hours
after White's murder.
The trial court determined that Blair's affidavit, if taken as true, failed to
establish any deficiency of defense counsel. We agree. Taylor's statements do
not directly contradict Winkle's testimony, contrary to Caudill's
characterization . Though Winkle did not specifically testify that the impact
spatter might have occurred in the subsequent car wreck, her testimony did
not absolutely rule out the possibility. In fact, she stated that any time a
medium impact force is applied to the blood, it would break up . This testimony
effectively embodies Taylor's statement about satellite spatter . Further,
Winkle's testimony did not preclude the argument that the blood spatter
occurred while Caudill helped Goforth remove White's body from the home.
Indeed, defense counsel specifically argued this point in closing argument to
explain why White's blood was on Caudill's shoes. Defense counsel ably
buttressed this argument by pointing out that there was decidedly little blood
on Caudill's jeans, in contrast to her shoes, which was consistent with her
claim that she only helped to move the body.
It is unnecessary, in every case, for defense counsel to hire rebuttal
expert witnesses to avoid being deemed ineffective. Thompson v.
Commonwealth , 177 S .W .3d 782, 786 (Ky. 2005) . Caudill has not presented
evidence that an additional expert's testimony would differ materially from
Winkle's. Taylor's statements do not dispute the fact that White's blood was on
Caudill's shoes, nor rule out the possibility that the impact spatter occurred
while Caudill was assaulting White . The only testimony that Taylor might have
provided is the theory that the blood stains were satellite, not impact, spatter,
thus providing an explanation other than Caudill's proximity to the assault.
However, this possibility was not expressly rejected by Winkle's testimony and
was presented to the jury through defense counsel's cross-examination of
Winkle, as well as during closing argument . For this reason, we are
unconvinced that additional expert testimony would have changed the outcome
of Caudill's trial. See Mills v. Commonwealth , 170 S.W .3d 310, 329 (Ky. 2005)
("Although it is possible that testimony from an expert might have convinced
the jury that Appellant was even more intoxicated [than indicated by other
witness' testimony], it is unlikely that this would have changed the outcome of
the trial .") . Caudill's arguments in this regard are refuted by the trial record
and fail to meet the burden of showing that there is a reasonable probability
that testimony from an additional expert would have changed the outcome of
the proceeding. Therefore, the trial court did not err in rejecting this claim
without an evidentiary hearing.
Goforth's Confession
Jeffrey Spence was an inmate who notified the Commonwealth shortly
before trial that he had spoken with Goforth in prison, and that Goforth had
made incriminating statements regarding White's murder . According to
Spence, Goforth said that he had assaulted White in an attempt to quiet her
during a burglary and robbery attempt. Goforth also indicated his intention to
place the blame on Caudill.
However, Spence also openly solicited a release from custody on his own
charges, which included a charge of assaulting his girlfriend . He told
investigators that his girlfriend planned to drop the charges against him
because she had simply fallen down the stairs by accident. This statement
proved false and his girlfriend denied any intention to drop the charges.
The Commonwealth ultimately chose not to call Spence, but provided
defense counsel with a memorandum containing the details of the statement.
Caudill claims counsel was ineffective for failing to call Spence as a witness .
We disagree . Spence's statement bore little credibility and revealed no
independent knowledge of the crime or crime scene. In fact, the assertion that
Goforth killed White "by accident" is wholly refuted by the forensic evidence
indicating that she died from multiple and repeated blunt force injuries to the
head . Further, Spence openly and aggressively solicited a release from custody
before even giving the statement. Trial counsel exercised reasonable judgment
in declining to call a witness of such questionable veracity. Decisions relating
to witness selection are left to counsel's sound judgment and will not be
second-guessed by hindsight . Foley v. Commonwealth , 17 S.W.3d 878, 885
(Ky. 2000) . The trial court did not err in rejecting this claim based on the trial
record alone .
Motion to Sever
Defense counsel moved to sever Caudill's trial from Goforth's. The
motion was denied and the trial court's decision was upheld on direct appeal .
Caudill, 120 S.W.3d at 651 ("The trial judge did not abuse his discretion in
denying Caudill's motion for a separate trial .") . Nonetheless, Caudill now
argues that defense counsel failed to elicit from her specific facts that would
have supported the motion. In the verification of her post-conviction motion,
Caudill claims that she fled with Goforth because he informed her, after the
crimes at White's home, that he had been in prison for armed robbery. She
further claims that defense counsel failed to ask her any questions about her
knowledge of Goforth's prior crimes. According to Caudill, this information
would have been inadmissible at a joint trial with Goforth, and the trial court
would have granted the motion to sever had it been available.
This claim is entirely unsupported by the record . At trial, Caudill gave
no indication that she fled with Goforth because she had learned of his violent
criminal history. In fact, she testified that she fled because she felt she was
implicated in the crime and because Goforth had threatened her. Her
explanation is also highly suspect. Caudill claimed Goforth unilaterally
attacked White and tied her in a separate bedroom while he ransacked the
house. It is simply incredible to believe that Caudill felt compelled to flee with
Goforth because of a later admission that he had committed a violent crime,
especially since she had supposedly just witnessed his violence first-hand.
Caudill has offered no proof that defense counsel failed to elicit this
information from her, other than her own self-serving statements . Further,
even if this information had been contained in the motion to sever, we find it
highly unlikely that the trial court would have granted the motion. Both
defendants admitted being present at the commission of the crimes, thus
virtually all of the evidence against Caudill was admissible at a trial against
Goforth and vice versa . See Parker v. Commonwealth , 952 S .W.2d 249, 215
(Ky . 1997) . Caudill has failed to establish any likelihood that the trial court
would have granted the motion to sever, even had this information been
included in the motion. The trial court properly rejected this claim and no
evidentiary hearing was necessary.
Penalty Phase
Caudill claims defense counsel was ineffective in the presentation of
mitigation evidence during the penalty phase of the trial . She claims that
certain family members who did testify were not asked thorough questions
regarding Caudill's victimization as a child, and that they were inadequately
prepared by counsel. She also cites witnesses that should have been called to
testify, such as former teachers, workers at a domestic violence shelter where
Caudill once sought help, and former boyfriends who would admit that they
had abused her. Finally, Caudill claims that defense counsel should have
called a second mental health expert to testify regarding "probable cerebral
brain damage."
We have reviewed the trial record and Caudill's lengthy claims with
respect to the penalty phase of her trial and find no constitutional deficiency in
counsel's performance. Caudill's mother, brother, and sister were each called
and described the violence and abuse that was an everyday part of Caudill's
childhood . Each also gave details of Caudill's kindness as a child, her struggle
with substance abuse, and her history of abusive relationships with men . Two
additional family witnesses testified regarding Caudill's character as an adult,
her desire for rehabilitation, and her participation in religious activities while in
custody.
Dr. Peter Schilling, a psychologist, evaluated Caudill and testified
regarding his findings . His testimony included an assessment of Caudill as an
extremely submissive person, particularly with men . He also relayed detailed
background information gleaned from his four interviews with Caudill . This
included a description of Caudill's violent and abusive relationships with
former boyfriends, and the abuse she suffered as a child at the hands of her
father. He concluded that Caudill suffered from either a learning disability,
brain damage, or a combination of both.
When carefully analyzed, the heart of Caudill's ineffective assistance of
counsel claim is that defense counsel failed to present more mitigation evidence
of the same quality that had already been presented . This is not a case where
defense counsel wholly failed to present a mitigation case . See Hodge v .
10
Commonwealth , 68 S .W.3d 338, 344 (Ky. 2001) . Nor is this a case where
defense counsel failed to conduct a reasonably thorough investigation into the
defendant's background. See Wiggins v. Smith, 539 U .S . 510 (2003) . A
reasonable investigation is not the one that the best defense lawyer would
conduct when blessed with unlimited time and resources . See Baze v .
Commonwealth , 23 S.W.3d 619 (Ky. 2000) . Defense counsel's investigation
and presentation of mitigation evidence in this case revealed Caudill's abusive
childhood, her substance abuse issues, her violent relationships with males,
and her cognitive deficiencies . That additional witnesses existed who would
have corroborated or expanded upon this testimony does not amount to
deficient performance by counsel . See Parrish v. Commonwealth , 272 S.W.3d .
161, 170 (Ky. 2008) ("That the lawyers' approach to this evidence may have
been imperfect, or that they did not track down every possible expert or piece of
evidence available, does not render their assistance ineffective .") . The record
reveals that counsel conducted an investigation into Caudill's background and
presented sufficient evidence in mitigation of the crimes so as to satisfy Sixth
Amendment requirements . Caudill was not entitled to an evidentiary hearing
on this issue, nor is she entitled to relief from this Court.
Goforth's Separate Motive
Caudill argues that defense counsel was ineffective for failing to establish
a separate motive for Goforth to commit the murder. She claims that defense
counsel failed to elicit testimony that Goforth owed three thousand dollars to a
drug dealer for cocaine at the time of the murder .
Caudill makes no claim that counsel failed to discover this evidence. At
a bench conference mid-trial, the Commonwealth asked defense counsel if he
planned to inquire of a witness if she knew about Goforth's outstanding drug
debt. Caudill's counsel replied that he would not ask this question because he
was concerned the additional evidence of Goforth's drug debts would hurt
Caudill as well. He expressed an intentional decision to avoid this line of
questioning altogether .
We disagree with the trial court's summary finding that defense counsel's
strategy in this respect was reasonable . There is no evidence in the record to
support this conclusion, and no evidentiary hearing was held that would
develop counsel's reasoning for this decision . Without further explanation, we
believe the record does not shed light upon whether this decision was
reasonable or unreasonable .
However, upon careful review of the trial record, we believe that this
information would not have resulted in a different outcome had it been
introduced at trial . The Commonwealth's theory was that Goforth and Caudill
went to White's house to rob her so they could purchase drugs . Substantial
evidence of both defendants' drug use was introduced, including their own
admissions . The essence of the Commonwealth's theory was that the pair
acted in concert.
Caudill testified that she went to White's house to borrow money, and
that Goforth unexpectedly barged into the home and attacked White . She
claimed that she participated in the removal of White's body and the robbery of
12
White's home out of fear of Goforth. Goforth's trial testimony was the mirror
image: he claimed that Caudill unilaterally attacked White, and that he
assisted in the removal of White's body because he feared Caudill. Goforth
claimed that he did not take any items from White's house, though he admitted
to later being in possession of two rifles belonging to White.
The evidence supporting the Commonwealth's theory of the crimes was
substantial and relied heavily on the defendants' own damning testimony. In
short, neither Caudill's nor Goforth's stories were plausible. Both claimed total
surprise at the other's attack on White, yet neither attempted to stop the attack
and neither fled . Both admitted to assisting in the removal of White's body and
the removal of valuable items from her home, despite claiming total innocence
of the murder. Each party's claim of fear of the other is implausible . It is not
credible that Goforth, a 200 pound man, would believe he could not escape
Caudill, who was armed only with a hammer . Nor is it believable that Caudill
felt she could not escape Goforth, when she admitted driving alone for five
miles in a separate vehicle to the location where White's body and car were
burned . The circumstantial evidence strongly supported the conclusion that
the two acted in concert, particularly in light of the fact that they fled the state
together for some two weeks.
With respect to motive, the Commonwealth argued that Goforth wanted
money to buy drugs . The evidence of Caudill's motive was more fully
developed. Caudill admitted she had no money on the night of the murder,
and that she had, in fact, obtained money from White earlier in the day as an
13
advance for cleaning her house the following week. Further, Caudill had had a
disastrous argument with White's son earlier in the week, and he had kicked
her out of his house upon learning that she was using drugs again. Sometime
between Caudill's first visit to White's house and the time she was murdered,
White's son instructed his mother not to give Caudill any more money . This
testimony supported a reasonable conclusion that Caudill was angered that
White would not give her more money, or that she attacked White to exact
revenge on her son.
The jury adopted the Commonwealth's theory of the case, finding both
defendants equally culpable. Even if counsel had elicited testimony regarding
Goforth's drug debt, thereby establishing a firmer motive, we do not believe it
would have overcome the compelling evidence against Caudill . While this
testimony might have been further evidence of Goforth's guilt, it does little to
exonerate Caudill or to undermine the substantial evidence of her guilt. For
these reasons, our review of the trial record does not convince us that a
different result would have been reached had counsel pursued this line of
questioning. The trial record does not support a finding that Caudill was
prejudiced by counsel's supposed deficiency and, therefore, she is not entitled
to relief.
Right to Testify
Caudill claims that defense counsel failed to inform her of her Fifth
Amendment right to testify during her penalty phase. Caudill did testify during
the guilt phase of her trial. In the verification of her RCr 11 .42 motion, Caudill
14
makes no assertion that she ever asked her counsel about testifying at the
mitigation phase or that she expressed a desire to do so. She made no
objection at trial when her defense counsel rested its mitigation case without
calling her to the stand.
The defendant's right to testify on her own behalf is fundamental and can
be relinquished only by the defendant. Rock v. Arkansas , 483 U .S . 44, 49-53
(1987) . Such waiver must be knowing and intentional . United States v.
Webber, 208 F.3d 545, 550-51 (6th Cir. 2000) . "Barring any statements or
actions from the defendant indicating disagreement with counsel or the desire
to testify, the trial court is neither required to sua sponte address a silent
defendant and inquire whether the defendant knowingly and intentionally
waived the right to testify, nor ensure that the defendant has waived the right
on the record ." Id . at 551 .
Though Caudill does not claim ineffective assistance in this claim, we
note that defense counsel's decision not to call her as a witness during the
penalty phase was reasonable . The jury had clearly rejected Caudill's
testimony, finding her equally culpable for White's murder. Caudill expressed
no disagreement with this tactical decision and made no indication to the trial
court that she wished to testify . Having testified during the guilt phase, we
find it improbable that Caudill was unaware of her right to do so during the
penalty phase. See Watkins v. Commonwealth , 105 S.W.3d 449, 453 (Ky.
2003) .
Caudill's motion fails to establish a constitutional violation of her right to
testify. The trial court properly rejected this claim without an evidentiary
hearing, as the record rejects Caudill's contention that she wished to testify .
Testimony of Caudill's Fellow Inmates
Prosecutorial Misconduct
Caudill alleges prosecutorial misconduct where three witnesses gave
perjured testimony. In order to establish prosecutorial misconduct for failing
to correct perjured testimony at trial, the movant must show that the
statement was false, that the statement was material, and that the prosecution
knew the statement was false . Commonwealth v. Spauldin , 991 S.W. 2d 651,
654 (Ky. 1999) . Caudill has failed to meet this burden .
Cynthia Ellis
Cynthia Ellis, a fellow inmate, testified that Caudill confessed the crime
to her. In the present motion, Caudill claims that Ellis gave false testimony
when she denied receiving any consideration from the Commonwealth in her
own pending charges by cooperating with officers investigating White's murder .
According to Caudill, Ellis further falsely testified that her charges had already
been resolved when she spoke to police about White's murder . The record
refutes this claim .
Ellis testified that at the time she spoke with detectives, her charges were
still pending, but that she had agreed to enter a plea. She did not testify that
the details of the plea agreement had already been reached, contrary to
Caudill's assertions. She further testified that she was informed that "no deals
were to be made" in exchange for her cooperation in the investigation. The
record of Ellis' ultimate plea agreement makes no mention of her cooperation in
White's murder investigation or of her testimony at Caudill's trial .
The evidence presented by Caudill in support of her RCr 11 .42 motion
does not contradict this testimony. Caudill presented a transcript of Ellis'
sentencing hearing, during which the Commonwealth Attorney advised the trial
court that Ellis was cooperating in two other investigations . However,
immediately thereafter, the Commonwealth specifically stated that no
sentencing recommendation was being made due to Ellis' cooperation. This
statement does not qualify as a "benefit" from the Commonwealth so as to
render Ellis' previous testimony false. No prosecutorial misconduct occurred .
Julia Davis
Julia Davis was also a fellow inmate who testified that Caudill confessed
certain details of the crime to her, including an admission that Caudill
assaulted White and took her jewelry. Davis testified that she contacted the
Commonwealth about this information . When asked if she had received
beneficial treatment with respect to her own pending charges, Davis gave a
somewhat confusing answer. She explained that she was facing a maximum of
seven years' imprisonment, but that the Commonwealth ultimately
recommended two years' imprisonment. She further stated that she and her
co-defendant received the same charges, but that her co-defendant's sentence
was probated .
In the present motion, Caudill insists Davis lied because she and her codefendant did not receive the same charges, and because Davis actually faced a
possible sentence of twenty years . Davis and her co-defendant were each
charged with obtaining a controlled substance by fraud, trafficking in a
controlled substance, and possession of drug paraphernalia, all arising from a
scheme to procure controlled substances with forged prescriptions. Davis,
however, also received an additional charge for criminal possession of a forged
prescription, while her co-defendant alone was charged with second degree
possession of a controlled substance . Thus, though technically incorrect,
Davis' testimony is essentially truthful in that she and her co-defendant each
received four charges, three of which were identical. "The burden is on the
defendants to show that the testimony was actually perjured, and mere
inconsistencies in testimony by government witnesses do not establish
h
knowing use of false testimony." U.S. v. Lochmondy, 890 F.2d 817, 822 (61
Cir. 1989) .
Likewise, it is unlikely that Davis knowingly perjured her testimony by
stating that she faced a maximum sentence of five to seven years. As even
Caudill acknowledges, Davis was likely initially offered a five to seven year
sentence. It cannot be deemed perjury that Davis, a non-lawyer, was unaware
of the maximum possible sentence under law. Further, we do not find this
inconsistency material to Caudill's case. The point was clearly relayed to the
jury that Davis did, in fact, receive a benefit in sentencing due to her
cooperation with investigators . Caudill has failed to satisfy the burden to
establish prosecutorial misconduct .
Jeanette Holden
Finally, Caudill claims that Jeanette Holden gave perjured testimony
regarding her plea agreement. Holden, who lived in the house where Caudill
was eventually found by police, testified as to statements made by Caudill to
the effect that she was willing to hurt somebody in order to make money. At
trial, Holden testified that she received no benefit on her own charges that were
pending at the time she cooperated with investigators .
Caudill claims this testimony was perjured because Holden's ultimate
plea agreement reflects a reduction in sentence in exchange for trial testimony.
This argument is entirely without merit. Holden received a reduction in
sentence in exchange for her testimony against her co-defendant, not Caudill.
When considered in context, it is clear that Holden testified truthfully that her
testimony at Caudill's trial did not earn any benefit from the Commonwealth .
Caudill also claims that she was prevented from fully cross-examining
Holden at trial. The claim centers on defense counsel's attempt to question
Holden about her alleged cooperation in a case against a third inmate,
Christine Halvorsen. The Commonwealth objected to the question, and the
objection was sustained because defense counsel was unable to provide the
trial court with any independent information or testimony to establish that
Holden benefited from such cooperation .
On direct appeal, Caudill alleged that she was improperly prevented from
impeaching Holden on this issue . We found no error. "The trial judge did not
abuse his discretion in sustaining the prosecutor's objection to defense
counsel's attempted inquiry as to whether Holden had cooperated with the
police in another case absent a good faith belief that she had benefitted [sic]
from that cooperation." Caudill, id . at 661 .
In the present motion, Caudill now argues that the Commonwealth's
failure to allow the question amounts to prosecutorial misconduct. The
Commonwealth's objection to questions that were ultimately deemed improper
and irrelevant cannot amount to prosecutorial misconduct . This argument
lacks any merit .
Bradu violations
Caudill asserts that the facts underlying the aforementioned
prosecutorial misconduct claims also support a finding that the
Commonwealth violated Brady v . Maryland , 373 U .S . 83 (1963) . Specifically,
Caudill claims that the Commonwealth had an affirmative obligation to disclose
the parameters of any plea deals made with Ellis, Davis, and Holden . As the
trial court noted in its order, plea agreements are matters of public record. The
defense was aware that plea agreements had been reached in all three cases,
and each witness was cross-examined on this fact. Material readily available to
the defense, and not secreted by the Commonwealth, does not fall within the
Brads rule. In Bowling v. Commonwealth , we considered an identical
argument concerning a witness' alleged plea agreement : "The defense . . . could
20
have - without the Commonwealth's assistance or permission - obtained the
transcript of the federal sentencing hearing. Thus . . . there could have been
no Bradv violation . . . ." 80 S .W. 3d 405, 410 (Ky. 2002) . This claim was
properly rejected by the trial court without an evidentiary hearing. Further,
having found no Brady violation, the trial court did not err in refusing Caudill's
discovery request .
Ineffective Assistance in Cross-Examination
Caudill argues that her counsel was ineffective for failing to impeach
Ellis, Davis, and Holden regarding their plea agreements .
As explained above, we agree with the trial court that Ellis did not testify
falsely. As such, counsel was not deficient for failing to cross-examine Ellis
about a benefit from the Commonwealth that was never bestowed . Insofar as
Caudill argues that Ellis could nonetheless have been cross-examined for her
general truthfulness, we believe Ellis' credibility was adequately explored on
cross-examination . This claim, having no merit, was properly rejected without
an evidentiary hearing.
Caudill's claim of ineffective assistance of counsel where defense counsel
did not cross-examine Davis is equally without merit. As explained above,
Davis' explanation that she faced a maximum of five to seven years was
truthful within her understanding of her own circumstances. The fact that,
under maximum allowable sentences, she could have faced twenty years'
imprisonment is immaterial. Even if this information had been elicited on
cross-examination, we do not believe the outcome of the trial would have been
21
different. The jury was made well aware of the fact that Davis received a
benefit in sentencing as a result of her cooperation in the investigation of
White's murder. The trial court properly rejected this claim and no evidentiary
hearing was necessary.
Insofar as Caudill argues that defen se counsel was ineffective for failing
to call Heather Harris to impeach Davis' testimony, this argument is
unpreserved for appellate review . Despite being raised in Caudill's motion, the
trial court makes no specific mention of the claim or of Heather Harris in its
order denying the RCr 11 .42 motion . Our review is limited to those issues
raised and ruled upon by the trial court . Commonwealth v. Maricle, 15 S .W.3d
376, 380 (Ky. 2000) ("Nor will we address issues raised, but not decided by the
trial court."). For the same reason, we decline to review Caudill's claim that
defense counsel was deficient for failing to cross-examine Holden regarding any
supposed plea agreement or relationship with the police .
Caudill avers that defense counsel was ineffective for failing to call
Charles Clark as a witness to impeach Holden. Holden testified that, prior to
White's murder, Caudill had relayed her willingness "to hurt somebody" to get
money. She further testified that Clark was present during this conversation .
After the trial was completed, Clark signed an affidavit stating he knew both
Caudill and Holden, and that he had never heard such a conversation between
the two. It must be noted that Clark's name was never mentioned prior to trial
and he appears on no witness lists.
The fact that Clark, in a later affidavit, stated he did not recall the
conversation is of little probative value, particularly in light of the heavy drug
use by all participants in the alleged conversation . Considering the fact that
Clark's name was mentioned for the first time at trial, counsel cannot be
deemed constitutionally deficient for failing to track down a witness mid-trial .
The trial court properly rejected this claim .
In a statement to police, Holden said that Caudill had similarly solicited
Elizabeth Wollum to participate in a robbery. Wollum gave a statement to
police that no such conversation transpired . Caudill now claims that defense
counsel was deficient for failing to call Wollum as a witness to impeach Holden .
Caudill's argument herein is based on the erroneous assumption that
Holden overheard the conversation between Wollum and Caudill. In fact, she
never indicated to police that she had first-hand knowledge of this
conversation ; she merely stated that she "believed" Caudill had solicited
Wollum . Moreover, she did not testify at trial regarding this alleged
conversation, presumably because it constituted rank hearsay.
Understandably, defense counsel did not question Holden about this
conversation of which she lacked any first-hand knowledge, thus avoiding any
mention of another attempt by Caudill to solicit criminal conspirators . Trial
counsel's decision is entirely reasonable and the trial court did not err in
rejecting this claim without an evidentiary hearing.
Conclusion
For the foregoing reasons, we do not believe that Caudill was entitled to
an evidentiary hearing on her claims of ineffective assistance of counsel,
prosecutorial misconduct, and other constitutional errors. Having found that
no error occurred, or that Caudill was not prejudiced by any supposed errors,
we reject her claim of cumulative error. The judgment of the Fayette Circuit
Court is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
David Hare Harshaw, III
Dennis James Burke
Department of Public Advocacy
207 Parker Drive, Suite 1
LaGrange, KY 40031
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
David A. Smith
Michael A. Nickles, Jr.
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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