NOT TO BE PUBLISHED

OPINION

NICKELL, Judge.

Scot Eugene Gaither appeals from the Daviess Circuit Court's denial of his motion for post-conviction relief pursuant to RCr1 11.42. Following a careful review of the record, the briefs, and the law, we affirm.

Following a jury trial, Gaither was convicted2 of manslaughter in the first degree,3 kidnapping,4 theft by unlawful taking under $300.00,5 and tampering with physical evidence.6 The jury fixed his punishment at life imprisonment without the possibility of parole (LWOP). The Supreme Court of Kentucky affirmed his convictions on direct appeal in an unpublished opinion.7 Gaither subsequently filed a pro se motion for post-conviction relief pursuant to RCr 11.42, raising twenty-five allegations of ineffective assistance of trial counsel. The trial court denied the motion in two separate orders. Gaither appealed the denial to this Court.

On November 7, 2008, a panel of this Court issued an opinion8 affirming in part, reversing in part, and remanding wherein we held the trial court had erroneously concluded three of Gaither's original claims were procedurally improper and directed the trial court to consider those claims on their merits upon remand. The three issues were: failure of counsel to obtain jail visitation logs to impeach Patricia Zamarano, one of the Commonwealth's witnesses; failure to object to improper sentencing instructions; and failure to request an admonition or mistrial following improper comments by the prosecution during closing argument. A petition for rehearing in this Court and a subsequent motion for discretionary review in the Supreme Court were denied.

On remand, Gaither unsuccessfully attempted to supplement his RCr 11.42 motion to add additional issues not previously raised. An evidentiary hearing was conducted on August 30, 2010. Immediately prior to the start of the hearing, Gaither moved for leave to call a number of jurors from his trial to testify regarding the prejudice caused by the Commonwealth's improper statements during closing argument. The trial court denied the motion and ruled that RCr 10.04 and corresponding caselaw did not permit calling the jurors. The sole witness to testify was Gaither's trial counsel.

Following the hearing and additional briefing, the trial court concluded Gaither was not entitled to relief for trial counsel's failure to obtain the jail logs as it concluded Zamarano had visited Gaither twice in the three-year period between his indictment and trial, rather than the one time she testified to visiting him. The trial court believed the discrepancy was insignificant and any potential benefit derived from recalling Zamarano to the stand was minimal at best. Thus, it found no deficient handling of the matter and no prejudice to Gaither. The court also denied relief for trial counsel's alleged failure to request an admonition or mistrial following his successful objection to the prosecutor's improper statement during closing argument. It found that, in light of the overwhelming evidence of Gaither's guilt, the outcome of the case would not have been different but for the prosecutor's statement, and therefore counsel's failure to request further relief after successfully objecting was not prejudicial to Gaither. However, the trial court did conclude counsel had been ineffective and prejudiced Gaither by failing to object to improper sentencing instructions. Gaither was granted a new sentencing hearing to correct the error. This appeal followed.

Before this Court, Gaither raises three allegations of error. First, he contends the trial court erred in finding trial counsel was not ineffective in failing to request an admonition or mistrial after the Commonwealth made an improper statement during closing argument. Next, Gaither argues the trial court erroneously denied his motion for leave to call jurors from his trial to testify as to the prejudice inflicted by the Commonwealth's improper statements. Finally, Gaither alleges the trial court erred in denying his motion to supplement his RCr 11.42 motion. We affirm.

"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." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690, 104 S.Ct at 2066. To prove prejudice, "[t]he 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." Id. at 694, 104 S.Ct at 2068.

The trial court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). The reviewing court may set aside the trial court's factual determinations if they are clearly erroneous. CR9 52.01. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland. Further, the standard of review in RCr 11.42 proceedings in which the trial court conducted an evidentiary hearing requires the reviewing court to defer to the determinations of fact and witness credibility made by the trial judge. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010).

Gaither first alleges his counsel was ineffective in failing to request additional relief following his successful objection to an improper statement made by the Commonwealth in closing argument and that the trial court erred in not so finding. During closing, the Commonwealth told the jury that if it were to find Gaither guilty but mentally ill (GBMI), he would be given a pill and "walk the next day." Trial counsel immediately voiced his objection which the trial court sustained. No further relief was sought.

In our previous Opinion, we determined the Commonwealth's statement was prejudicial and directed the trial court to analyze the issue on remand to determine if the failure to seek additional relief constituted ineffective assistance of counsel.10 After hearing testimony from Gaither's trial counsel that he believed his objection to the challenged statement was sufficient and he did not seek further relief for fear of calling more attention to the issue in front of the jury, the trial court found counsel had not performed in a deficient manner. It likewise concluded no reasonable likelihood of a different result existed due to the overwhelming evidence of Gaither's guilt.

There can be no doubt the statement made by the prosecutor was inherently prejudicial to Gaither. It is likewise obvious that trial counsel did not seek all of the relief available upon successfully objecting to the comment. However, the sole question at issue—and the one we tasked the trial court with answering regarding the matter—is whether there is a reasonable possibility the trial's outcome would have been different but-for the improper statement and counsel's failure to seek additional remedies.

Trial counsel testified during the evidentiary hearing that he believed the evidence against Gaither was overwhelming and there was no question he committed the crimes for which he stood charged.11 He further stated that he did not seek an admonition or mistrial following his objection to the Commonwealth's statement because he did not want to highlight or bring further attention to the remark and did not believe it rose to the level justifying a mistrial. He felt his objection had been sufficient as the jury had previously been informed that statements made by counsel were not evidence; he believed in the intelligence of the jurors; and the trial court's instruction on GBMI properly explained the law on the issue. Counsel unequivocally stated that his decision was a strategic one he carefully considered against the backdrop of a nine-day trial.

Based on the record before us, we conclude the trial court correctly determined Gaither had failed to show there was a reasonable probability the outcome of the trial would have been different absent counsel's unprofessional errors.

Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Reviewing courts are required to consider the totality of the evidence before the jury and cannot view counsel's performance with 20/20 hindsight. Id. The Commonwealth made a single inappropriate comment during closing statements to which trial counsel successfully objected. No further mention of the questionable inference was made. In light of the substantial evidence of Gaither's guilt, including his own incriminating statements and his admissions on the witness stand, the Supreme Court's determination that he received a fundamentally fair trial, and trial counsel's explanation of his actions, we agree with the trial court that counsel's performance did not fall outside prevailing professional norms. Strickland. "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." Yarbrough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 5, 157 L.Ed.2d 1 (2003). There is simply no reasonable probability the outcome of the trial was affected by either the Commonwealth's singular improper statement or by counsel's trial strategy to not seek an admonition or mistrial. Thus, the trial court did not abuse its discretion in so deciding.

Next, Gaither contends the trial court erroneously denied his motion for leave to call jurors from his trial. He sought to introduce their testimony to demonstrate the prejudice inflicted by the Commonwealth's improper statements. We discern no error.

RCr 10.04 provides that "[a] juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot." In Brown v. Commonwealth, 174 S.W.3d 421, 429 (Ky. 2005), our Supreme Court reiterated the "long-standing rule that juror testimony is generally incompetent to impeach a verdict." The rule has been consistently upheld in situations similar to the one at bar, with only narrow exceptions having been carved out for open and obvious juror misconduct or untruthfulness. Nothing of the sort occurred here. Gaither's attempt to call the jurors some eight years after they completed their service for the purpose of proving "the prejudice caused to him by the Commonwealth's improper and prejudicial statements" was a thinly veiled effort at circumventing the plain language of CR 10.04. The trial court was correct to prohibit solicitation of such testimony.

Finally, Gaither argues the trial court improperly denied his motion to supplement his RCr 11.42 motion to add additional claims. Citing CR 15.01, he contends the interests of justice required the trial court to grant his motion to supplement. We have reviewed the trial court's ruling for an abuse of discretion, Penman v. Commonwealth, 194 S.W.3d 237, 245 (Ky. 2006), and discerned none. While we seriously question whether the supplemental motion was properly before the trial court or whether it instead constituted an unauthorized, subsequent motion seeking RCr 11.42 relief, it is clear in either event that Gaither is not entitled to relief.

Gaither's comprehensive RCr 11.42 motion raised twenty-five allegations of error on the part of his counsel. After reviewing the trial court's resolution of all of those claims, we affirmed in part, reversed in part and remanded the matter with specific instructions regarding three issues to be decided. The scope was narrowly set and clearly demarcated as Gaither acknowledged in arguing his motion to supplement. The trial court denied Gaither's motion stating it was unpersuaded that "the interests of justice will be promoted by the hearing of additional issues." It then undertook a comprehensive review of the issues we ordered it to determine. Although Gaither argues his motion to supplement raised additional issues entitling him to relief and should have been granted, it would have clearly been improper for the trial court to consider new issues on remand that were far afield of the strictures of our Opinion. Gaither offers no support to the contrary. Thus, we conclude there was no error.

For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed.

ALL CONCUR.