KRAMER, Judge.
Virgil L. Kelly appeals the Clark Circuit Court's order denying his RCr
Following a jury trial, Kelly was convicted of first-degree assault, first-degree sexual abuse, and of being a first-degree persistent felony offender (PFO-1st). Due to the PFO-1st conviction, his sentences for the other convictions were enhanced. Therefore, his enhanced sentence for first-degree assault was twenty-five years of imprisonment, and his enhanced sentence for first-degree sexual abuse was fifteen years of imprisonment.
Kelly appealed, and the Kentucky Supreme Court reversed in part regarding the circuit court's failure to conduct a competency hearing and remanded for a "retroactive competency hearing." Kelly v. Commonwealth, No. 2004-SC-000786-MR, 2006 WL 3386636, *1 (Ky. Nov. 22, 2006) (unpublished). The Kentucky Supreme Court affirmed the remainder of the circuit court's judgment. See id.
On remand, a competency hearing was held, in which Kelly's trial counsel and a doctor testified as witnesses. Following the hearing, the court wrote its findings on the docket sheet. Specifically, the court found that: (1) Kelly was not cooperating with his attorney or with the doctor who was hired to evaluate him; (2) Kelly did not agree with defense counsel's strategy; (3) Kelly wrote letters and filed motions pro se; and (4) Kelly was competent to cooperate with counsel and assist in his defense, but he chose not to cooperate until trial. Finally, the circuit court found that Kelly was criminally responsible and competent to stand trial.
Kelly again appealed to the Kentucky Supreme Court. The Supreme Court affirmed the circuit court's retrospective finding of competency. See Kelly v. Commonwealth, No. 2009-SC-000090-TG, 2010 WL 1005901, *1, *2 (Ky. March 18, 2010) (unpublished).
Kelly then filed a pro se motion to vacate his sentence pursuant to RCr 11.42. Counsel was appointed for him, and appointed counsel filed a supplemental RCr 11.42 motion. The circuit court took the motions under advisement and ultimately denied them.
Kelly now appeals, contending that the circuit court erred in denying his RCr 11.42 motion because: (a) defense counsel acted under a conflict of interest; (b) he received the ineffective assistance of counsel because counsel failed to investigate named witnesses to testify on Kelly's behalf as to character; (c) he received the ineffective assistance of counsel when counsel failed to investigate facts that the victim's state of mind and injuries may have been the result of self-inflicted injuries she suffered during "cocaine associated excited delirium"; (d) he received the ineffective assistance of counsel when counsel failed to investigate and obtain a forensic blood spatter specialist to present evidence of blood spatter grouping on persons in close proximity to the cutting; (e) defense counsel rendered ineffective assistance when counsel failed to contemporaneously object to jury instructions and failed to submit curing jury instructions, which would have preserved the jury instruction claim for direct appeal; (f) counsel rendered ineffective assistance when counsel failed to move for disqualification of the Commonwealth Attorney's office after the Commonwealth Attorney called an Assistant Commonwealth Attorney to testify that one witness previously committed perjury; and (g) the cumulative effect of the aforementioned errors resulted in a denial of Kelly's due process rights. We pause to note that in the circuit court, between Kelly's pro se RCr 11.42 motion and the supplemental motion filed by appointed counsel, Kelly raised twelve claims, but he does not raise all of those claims in this appeal. Therefore, the claims he and his counsel raised in the circuit court, but do not raise in this appeal, are deemed waived on appeal. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
Kelly first alleges that the circuit court erred in denying his RCr 11.42 motion because he received the ineffective assistance of counsel due to defense counsel's conflict of interest. Specifically, he contends that his attorney showed a lack of interest and diligence in advocating his version of the events, which caused conflict between them. He also asserts that defense counsel became very agitated towards him after he refused to accept a plea offer.
To prove he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Kelly must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further,
Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
The circuit court found that prior to the suppression hearing in this case, the court addressed various complaints Kelly had made about counsel. Based upon our review of the video recording of that hearing, we agree. During the hearing, the court informed Kelly that he could either proceed with defense counsel representing him, or he could proceed pro se. The court also informed Kelly of two prior cases in that circuit where the defendants chose to proceed pro se, and they achieved less-than-desirable results for themselves. Kelly acknowledged that he was incapable of representing himself, and he chose to continue to have defense counsel represent him. Thus, in reviewing this claim, the circuit court found that "this particular claim regarding [Kelly's] general dissatisfaction with counsel was previously made known to the court and it was resolved in open court." Based upon our review of the video recording of the proceedings at issue, we agree.
Moreover, the circuit court noted that to the extent Kelly alleged that "defense counsel may have engaged in a conflict of interest at some point during the case based upon the fact that she changed employment shortly after the trial and became an Assistant Commonwealth Attorney," the claim was merely speculative. Consequently, the circuit court held that this claim did not satisfy RCr 11.42(2), which requires that the motion "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." Again, we agree with the circuit court that this aspect of Kelly's conflict of interest claim is speculative and therefore, it lacks merit.
Kelly next contends that he received the ineffective assistance of counsel because counsel failed to investigate named witnesses to testify on his behalf as to character. Specifically, he asserts that defense counsel was aware before trial that "there were persons ready and willing to testify on [Kelly's] behalf to the fact that they had information which was in direct opposition of the Commonwealth's characterization of him."
Kelly alleges that "[e]ach witness possessed information that would have directly refuted the violent disposition that the Commonwealth depicted of [him]." Kelly contends that Paula Simmons was his live-in girlfriend, and that she would have testified that she knew him for years and that he was never violent, even when intoxicated. Kelly claims that Leslie Kelly (whom he says is no relation to him) was one of his former parole officers who would have testified that she had seen Kelly confronted combatively by Paula Simmons in the past, yet Kelly did not react violently. He asserts that Michael Puckett would have testified that when he subsequently retrieved Kelly's vehicle, he had no problem starting it, even though James Tackett, who was the manager of the apartment complex where the crimes occurred, testified that he heard Kelly unsuccessfully trying to start his car soon after the crimes were committed. Leanne Dyer's affidavit merely stated that she did not believe that Kelly could receive a fair and impartial trial in Clark County. Further, Amy Kelly's affidavit essentially alleged that defense counsel told her counsel would not talk about the case with her, and the affidavit contained various allegations of hearsay. Lee Gay's affidavit also contained nothing but hearsay. As for Gloria Taylor, whom Kelly contends should have been called as a character witness to testify that he was not a violent person, this Court did not find anything in the record saying what testimony Gloria Taylor might offer.
The circuit court found that if counsel had called the witnesses Kelly alleges should have been called to testify that he was not a violent person, this would have been a risky strategy because calling them to testify about Kelly's good behavior would have "`opened the door' for the Commonwealth to attack their credibility on cross-examination." For example, the court stated that calling witnesses to testify about Kelly's good character could have caused the Commonwealth to put otherwise inadmissible evidence before the jury, such as Kelly's prior felony conviction for first-degree robbery, unlawful imprisonment, and second-degree PFO. Therefore, without holding an evidentiary hearing on the matter, the circuit court held that "the decision not to call these witnesses to testify was reasonable trial strategy of defense counsel to prevent the possibility of such damaging testimony from reaching the jury."
We find the circuit court's determination that it was reasonable trial strategy on the part of defense counsel not to present the aforementioned evidence speculative. However, even if we were to assume that counsel performed deficiently by failing to present this evidence at trial, the result of the trial still would not have been different. A bloody knife covered in the victim's blood was found underneath the driver's seat of Kelly's car; the victim's blood was found on Kelly's glasses and sweatpants; and the victim testified that Kelly had committed the crimes against her. See Kelly, No. 2004-SC-000786-MR, 2006 WL 3386636, at *1-*3 (Ky. Nov. 22, 2006) (unpublished). Therefore, Kelly is unable to show that he was prejudiced by counsel's failure to present the aforementioned evidence at trial. Consequently, his ineffective assistance of counsel claim lacks merit.
Kelly next alleges that he received the ineffective assistance of counsel when counsel failed to investigate facts that the victim's state of mind and injuries may have been the result of self-inflicted injuries she suffered during "cocaine associated excited delirium." The circuit court found that Kelly provided no factual basis to support his theory that the victim suffered from "cocaine associated excited delirium." The court also found that "cocaine associated excited delirium" is a controversial theory, and because of this, there was "no guarantee that the theory would have been admissible at trial." Further, the circuit court noted that Dr. Candace Walker, a Staff Psychiatrist at KCPC, who testified during the competency hearing, did not testify concerning "excited delirium" or the truthfulness of Kelly's version of the events, but only whether Kelly could coherently state his version of the facts, which she opined he was able to do. Kelly had also submitted a memo to the court that he received from Dr. Morgan
The circuit court continued, noting that neither Dr. Walker nor Dr. Morgan had evaluated the victim, and they did not have "knowledge of the victim's state of mind or her behavior during this incident." Therefore, the court held that neither Dr. Walker nor Dr. Morgan would have been qualified to testify about the victim's state of mind due to their lack of knowledge concerning it.
We agree that Kelly pointed to no evidence in the record to show that the victim suffered from "cocaine associated excited delirium" and, therefore, we agree that his allegation that she suffered from it was speculative. Additionally, because Kelly has not shown that Dr. Walker or Dr. Morgan evaluated the victim, he has not demonstrated that they would have been qualified to testify about her state of mind and whether she suffered from "cocaine associated excited delirium." Further, as the circuit court found, there is no guarantee that the "cocaine associated excited delirium" theory would have been admissible at trial, because it is a controversial theory, as Dr. Morgan's memo to Kelly suggests. Moreover, even if we were to assume for the sake of argument that counsel acted deficiently in failing to investigate facts that the victim's state of mind and injuries may have been the result of self-inflicted injuries she suffered during "cocaine associated excited delirium," we cannot say that Kelly's defense was prejudiced by this failure. This is because, as previously noted, a bloody knife covered in the victim's blood was found underneath the driver's seat of Kelly's car; the victim's blood was found on Kelly's glasses and sweatpants; and the victim testified that Kelly had committed the crimes against her. See Kelly, No. 2004-SC-000786-MR, 2006 WL 3386636, at *1-*3 (Ky. Nov. 22, 2006) (unpublished). In other words, the other evidence against Kelly was significant, so we cannot find that counsel's failure to investigate the victim's state of mind prejudiced Kelly's defense. Therefore, this claim lacks merit.
Next, Kelly asserts that he received the ineffective assistance of counsel when counsel failed to investigate and obtain a forensic blood spatter specialist to present evidence of blood spatter grouping on persons in close proximity to the cutting. Kelly argues that the amount of blood spattered on his clothes was disproportional to the amount of blood found elsewhere in the apartment and, therefore, that a blood spatter expert should have been obtained to testify that Kelly could not have caused the victim's injuries because if he had, he would have had more blood on his clothes.
The circuit court found "that the defendant has failed to establish prejudice arising from the modest difference between the jury hearing this theory of defense through the efforts of defense counsel and hearing it through the mouth of a blood spatter expert. This issue was addressed at trial." The court continued, stating as follows:
Upon our review of the video tapes of the jury trial, it is apparent that the circuit court was correct in its summarization of the blood evidence produced during trial and defense counsel's arguments concerning the small amounts of blood found on Kelly's clothes in comparison to the large amounts of blood found elsewhere at the crime scene.
Even if we were to assume, arguendo, that defense counsel performed deficiently in failing to call a blood spatter expert, we do not find that this failure prejudiced Kelly's defense. This is because the jury heard the defense's argument about the small amount of blood on Kelly's clothes and that, based upon the large amount of blood at the crime scene, "whoever did this should have been covered in blood." Additionally, as previously noted, a knife covered in the victim's blood was found underneath the driver's seat of Kelly's car, and the victim testified that Kelly had committed the crimes against her. Consequently, Kelly did not receive the ineffective assistance of counsel due to counsel's failure to investigate and call a blood spatter expert.
Kelly next argues that defense counsel rendered ineffective assistance when counsel failed to contemporaneously object to jury instructions and failed to submit curing jury instructions, which would have preserved the jury instruction claim for direct appeal. Specifically, Kelly alleges that the circuit court should have fixed a term of years on the first-degree assault conviction before proceeding on to imposing an enhancement of that sentence due to the PFO-1st conviction.
To the extent that Kelly contends the circuit court erred in failing to fix a term of years on his assault conviction before imposing a sentence enhancement due to the PFO-1st conviction, this is a claim that could have and should have been brought on direct appeal. Accordingly, it is not properly before us in the present appeal. See Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159.
Kelly also argues that counsel rendered ineffective assistance by failing to contemporaneously object to the jury instructions and failing to submit curing jury instructions, which would have preserved the jury instruction claim for direct appeal. He alleges the sentence for the principal offense should have been imposed before and in lieu of the PFO enhancement.
In the jury instructions in this case, the jury was asked to first determine whether Kelly was guilty or not of the crimes of first-degree assault and first-degree sexual abuse. Once the jury found Kelly guilty of both of those crimes, they were asked to determine whether he was guilty of PFO-1st. The jury was then asked to determine Kelly's punishment for the crimes, depending on whether they had also found him guilty of PFO-1st or not. The penalty phase jury instruction for Kelly's first-degree assault conviction read as follows:
Further, the penalty phase jury instruction for Kelly's first-degree sexual abuse conviction read as follows:
Kelly contends that counsel should have objected to these jury instructions because the circuit court deviated from the sentencing structure of KRS
Pursuant to KRS 532.080(1),
Subsection (5) of KRS 532.080 pertains to people found guilty of PFO-2nd. However, Kelly was convicted of PFO-1st, so subsection (5) of the statute does not apply to him. Yet, subsection (6) does apply. It reads:
KRS 532.080(6). Kelly's first-degree assault conviction was a Class B Felony and his first-degree sexual abuse conviction was a Class D Felony. See KRS 508.010(2); KRS 510.110(2). Kelly was ultimately sentenced to the enhanced sentences of twenty-five years of imprisonment for the first-degree assault/PFO-1st conviction, and fifteen years of imprisonment for the first-degree sexual abuse/PFO-1st conviction. Both of these sentences fall within the statutory requirements for the crimes with which Kelly was convicted, pursuant to KRS 532.080(6), and he was only sentenced to the penalties prescribed by the PFO statute and not the penalties for the principal offenses, as required by Pace. Therefore, even if we were to assume for the sake of argument that counsel performed deficiently in failing to object to the jury instructions, Kelly cannot prove that he was prejudiced by counsel's failure to object to them because he was sentenced within the required guidelines set forth in the PFO statute, KRS 532.080. Consequently, this claim lacks merit.
Next, Kelly contends that counsel rendered ineffective assistance when counsel failed to move for disqualification of the Commonwealth Attorney's office after the Commonwealth Attorney called an Assistant Commonwealth Attorney to testify that one witness previously committed perjury. Specifically, Kelly alleges that Commonwealth Attorney Johnson called Assistant Commonwealth Attorney Heidi Engel to testify that Richie Bell committed perjury on May 21, 2004.
Even if we were to assume, arguendo, that defense counsel performed deficiently in failing to move for disqualification of the Commonwealth Attorney's office after the Commonwealth Attorney called an Assistant Commonwealth Attorney to testify that one witness previously committed perjury, Kelly still cannot show that he was prejudiced as a result of this alleged error. As noted by the circuit court, defense counsel first called Richie Bell to testify as a witness at the suppression hearing, and the Commonwealth called Assistant Commonwealth Attorney Heidi Engel as a rebuttal witness to impeach Richie Bell. The circuit court found that Bell had testified regarding what he saw and heard at the crime scene, but his testimony was in direct contradiction "to what he had previously told the Commonwealth Attorney's Office and the investigators." The court stated that "the Commonwealth called Detective [Stephen] Caudill to the stand immediately thereafter and his testimony as to what Bell told him was identical to that given by the Assistant Commonwealth Attorney." Therefore, the circuit court concluded that Kelly "suffered no prejudice as the same rebuttal testimony was introduced through Detective Caudill regardless of whether or not Heidi Engel testified."
Upon our review of the video recording of the suppression hearing, it was apparent that Richie Bell testified that he never told Detective Caudill or any other police officer that he saw Kelly go to or around his vehicle at the time of the events in question. Bell also testified that he did not hear Kelly's vehicle start. However, Assistant Commonwealth Attorney Heidi Engel testified that she recalled Bell telling her that he had heard Kelly's vehicle trying to start but being unable to start. Further, the Commonwealth called Detective Caudill to testify, and he attested that Bell had told him and others that at the time of the events in question, he heard Kelly's car trying to start and leave.
Consequently, we agree with the circuit court that Kelly is unable to show he was prejudiced by his counsel's failure to move to disqualify the Commonwealth Attorney because Detective Caudill testified to the same things as the Assistant Commonwealth Attorney had. Further, as we have previously noted, Kelly cannot show he was prejudiced because a bloody knife covered in the victim's blood was found underneath the driver's seat of his car; the victim's blood was found on Kelly's glasses and sweatpants; and the victim testified that Kelly had committed the crimes against her. Therefore, this claim lacks merit.
Finally, Kelly alleges that the cumulative effect of the aforementioned errors resulted in a denial of his due process rights. However, because none of Kelly's individual claims of error have merit, there can be no cumulative error. See Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006). Consequently, this claim lacks merit.
Accordingly, the order of the Clark Circuit Court is affirmed.
ALL CONCUR.
