CAPERTON, Judge.
The Appellant, Michael Dean Fugate, appeals the March 27, 2012, judgment of the Powell Circuit Court, denying his motion to vacate, set aside, or correct his February 1988 sentence for murder and abuse of a corpse, and request for an evidentiary hearing pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
According to the evidence presented at the initial trial of this matter, Fugate and two friends decided to skip some of their afternoon classes at high school and go shooting near Fugate's home instead. As stated by our Kentucky Supreme Court in the direct appeal of this matter:
Fugate v. Commonwealth, Case No. 91-SC-881, May 22, 1997, p. 2). Fugate later returned with an ax to sever and dispose of Collins's head in a nearby dump on a mountain in an adjoining county in an effort to conceal Collins's identity. However, enough of Collins's lower jaw remained that the body could be identified by dental records, as well as with a wallet containing Collins's school lunch ticket. Additionally, the other individuals involved in the murder and abuse of Collins's corpse provided evidence and testimony regarding Fugate's role in the crimes, including the individual who had driven Fugate to dispose of Collins's head, who was wearing a wire and taped a conversation with Fugate regarding the crimes.
During the several-year investigation of the case, there were dozens of people interviewed and other individuals who were treated as potential suspects. One such alternate suspect was Tommy Logan, a person who was brought to the attention of police by Logan R. Sizemore, nicknamed, "Brownie." Sizemore originally gave a statement indicating that he saw and heard certain things which led him to believe that Logan was possibly involved in the murder of Collins. Logan was actually arrested by police following Sizemore's initial statement, and a search warrant was executed. No evidence was discovered to support any link between Logan and the murder of Collins, and a statement obtained by police from Sizemore a few days later revealed that he had "made up the stories" about Logan because he thought he might have been one of the two people that had killed Collins. Evidence was also presented at trial concerning alternate perpetrators that may have committed the offense, including Fugate's own testimony. As recognized by our Kentucky Supreme Court on direct appeal:
Fugate v. Commonwealth, Case No. 91-SC-881, May 22, 1997, p. 3.
On December 18, 1984, Fugate was indicted by a Perry County Grand Jury on one count of murder and one count of abuse of a corpse. Fugate entered a plea of not guilty on January 9, 1984. Fugate made a motion for a change of venue, and that motion was granted. The case was then transferred to Powell County.
The original trial date in this matter was continued due to the fact that lead counsel for Fugate withdrew from the case, and another attorney working on the case had to take over. A special judge was assigned to preside at the trial, and a second continuance of trial was granted pursuant to a motion by Fugate's counsel. Ultimately, Fugate was represented by Honorable J. Douglas Graham, who had many years of experience in criminal law, including having previously served as a prosecutor and for many years as a circuit court judge.
During the course of the trial below, from February 8 to 10, 1988, evidence was admitted consisting of the testimony of White, who claimed to have been with Fugate at the time of the shooting and who played a part in the shooting. Additionally, evidence was admitted through Fugate's friend Joann Moore, with whom he had discussed the murder of Collins and who picked Fugate up approximately a month following the murder to assist him in disposing of Collins's head. One of those conversations was taped and played for the jury at trial. In that tape, Fugate is heard to state his belief that the police would not have any evidence to go on as long as Moore and White kept their mouths shut. Fugate went on to state that if White said anything to the police, Fugate would "kill him deader than hell," and "show him." This tape was admitted as evidence for the jury's consideration.
As noted, at the conclusion of the trial below, Fugate was found guilty of the charges as set forth in the indictment. The judgment sentencing imprisonment for murder and a twelve-month sentence for abuse of a corpse was entered on February 16, 1988, with the sentences to be served concurrently.
Fugate made no attempt to appeal his conviction until 1998. At that time, he filed a motion to file a belated appeal.
In that motion, Fugate asserted that counsel was ineffective for failing to call seven witnesses who had seen Collins after he was alleged to have been shot, and for failing to call David Crum, who would have testified that, contrary to the Commonwealth's allegations and White's testimony, he had not driven White, Collins, and Fugate to Fugate's home on September 3, 1982. In an order dated October 12, 1998, the Powell Circuit Court denied Fugate's motions, specifically finding that counsel "was reasonably likely to render and did render effective assistance of counsel to defendant."
Fugate pursued an appeal from that order. On September 1, 2000, this Court rendered an unpublished, unanimous opinion affirming the circuit court's order. In that opinion, the Court of Appeals relied in part on the opinion of Robbins v. Commonwealth, 719 S.W.2d 742 (Ky. App. 1986)(overruled by Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2001)), which was good caselaw at the time that this matter was decided. However, during the pendency of Fugate's appeal, our Kentucky Supreme Court rendered opinions which slightly shifted the standard of review to be used in cases involving an RCr 11.42 motion, requiring instead that a defendant claiming error by his counsel for failing to call witnesses at trial must prove that "absent the errors by trial counsel, there is a `reasonable probability' that the jury would have reached a different result." Norton v. Commonwealth, 63 S.W.3d 175, 177 (Ky. 2001).
Subsequently, on February 13, 2002, the Kentucky Supreme Court entered an opinion and order granting discretionary review of this matter, and summarily remanding it to the Powell Circuit Court for additional proceedings in light of the Court's rulings in Fraser
Fugate v. Commonwealth, Powell Circuit No. 86-R-7, Judgment (March 27, 2012). It is from that order that Fugate now appeals to this Court.
Prior to reviewing the arguments of the parties, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
Bowling at 411-412.
Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might have been considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2066.
On the issue of whether an evidentiary hearing is necessary, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling in this matter. Under Fraser, Fugate is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved upon the face of the record. Further, we note that in determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452-53. We review the arguments of the parties with these standards in mind.
As his first basis for appeal, Fugate argues that counsel was ineffective for failing to call eight exculpatory witnesses, including David Crum, to refute the Commonwealth's allegations. Fugate asserts that his counsel had received reports from police interviews of several witnesses during the course of discovery, including Logan R. Sizemore, Mary Lee Collins, Maudie Standafer, Starla Fannin, Paula Price, Sherman Collet, David Lee Hughes, Tammy Rickett, and Lawrence Combs. Fugate asserts that each of these witnesses had informed police that they had seen Collins on September 3, 1982, after the time of day in which White alleged that Fugate had killed him.
Fugate further asserts that Sizemore told police that another individual named Tommy Logan had been the actual perpetrator, and that he had witnessed the shooting. Fugate states that rather than call any of the aforementioned witnesses, counsel questioned Officer Caudill, the lead investigator on the case, as to the existence of the witnesses. According to Fugate, Caudill stated that there had been seven people
Fugate also asserts that had Sizemore been called to testify, he would have testified that Logan killed Collins, and that other individuals would have testified as to the motive Logan had for doing so. Specifically, Fugate asserts that Karen Sams informed police that Collins was involved in selling drugs, and that Starla Fannin would have provided similar testimony. Fugate argues that Paula Price would have testified that she talked to Logan approximately one week after Collins had disappeared, and that Logan had informed her that Collins had been selling drugs for him and keeping the money.
While acknowledging that wide latitude is normally given to counsel in making tactical decisions, Fugate argues that in the matter sub judice, counsel had no strategic reason for failing to call these witnesses. Fugate argues that absent an evidentiary hearing to determine what evidence was not presented by counsel, the trial court erred in assuming that counsel's actions were strategic. Fugate asserts that there could not have been any reasonable trial strategy for failing to present the testimony of so many witnesses who could have provided what he argues would have been exculpatory testimony. Fugate argues that had counsel called the aforementioned witnesses, there would have been more than a reasonable probability that the result of the trial would have been different.
In response to the arguments made by Fugate, the Commonwealth argues that the trial court properly denied his RCr 11.42 motion without an evidentiary hearing. First, the Commonwealth argues that the issues presently raised by Fugate are not the proper subject of an RCr 11.42 motion, and should have instead been raised on direct appeal.
Alternatively, the Commonwealth asserts that contrary to Fugate's claims, he had a very experienced attorney who attempted to present the defense that Fugate wanted concerning Moore's and White's alleged attempts to "pin" the crime on him. However, the Commonwealth argues that despite counsel's attempts, Fugate could simply not overcome the overwhelming and compelling evidence against him, including a tape in which he confessed to the crime. The Commonwealth argues that upon review of the entire record, it is clear that Fugate's counsel provided effective assistance, that he received a fundamentally fair trial, and that the jury found him guilty based on compelling and overwhelming evidence.
Further, the Commonwealth notes that this case was already previously addressed by the Powell Circuit Court, but because of a change in caselaw setting forth the standard of review for post-conviction challenges concerning a failure to present testimony from certain witnesses, the case was remanded for additional review under the updated standard. The Commonwealth asserts that a remand is not an opportunity for an appellant to raise new claims or new arguments, other than those which were previously raised in the post-conviction. The Commonwealth asserts that sub judice, the claims properly before the lower court on remand were the claims raised in Fugate's post-conviction motion filed in 1998, with the court on remand simply reviewing the claims and facts and applying the updated law. The Commonwealth argues that the court below did so in this case, and was within its discretion in finding that the previous decision of the Powell Circuit Court was accurate and adequately addressed the issues and the overwhelming nature of Fugate's guilt in denying his motion. The Commonwealth argues that there is ultimately no reasonable probability that the jury would have reached a different result had they heard the testimony at issue and, accordingly, there was no error in denying the motion.
In reviewing the arguments of the parties, this Court first notes our disagreement with the Commonwealth's assertion that Fugate's arguments are procedurally barred and are not properly the subject of an RCr 11.42 appeal. In so finding, we note that the claims Fugate currently makes, that counsel failed to call witnesses who had seen Collins alive after the time he was allegedly murdered, and testimony that Crum had not driven White, Collins, and Fugate on the day of the murder, were the very same claims Fugate brought in his initial RCr 11.42 motion. Indeed, in Kentucky, a claim of ineffective assistance of counsel is precluded from review on direct appeal unless there is a trial record of the claim or an evidentiary hearing was held on a motion for a new trial and the trial court ruled on the issue. Humphrey v. Commonwealth, 962 S.W.2d 870, 872-3 (Ky. 1998). Fugate's claim is a claim based upon trial counsel's failure to call witnesses at trial. Accordingly, the testimony of these witnesses would not have been in the court record to have been evaluated on direct appeal. Thus, we believe that Fugate's claims are properly before our Court, and we now turn to a discussion of the merits of same.
Having reviewed the record, the arguments of the parties, and the applicable law, this Court is of the opinion that the standard set forth in Robbins v. Commonwealth, 719 S.W.2d 742, 743 (Ky. App. 1986), was correctly applied below in denying Fugate's initial RCr 11.42 motion, as "merely failing to produce witnesses in the appellant's defense is not error in the absence of any allegation that their testimony would have compelled an acquittal." On remand, the court was instructed to apply the newer standards of review set forth in Fraser and Norton, supra, and in so doing, still found that the failure to produce the witnesses in question would not have resulted in any reasonable probability that the jury in this case would have reached a result different than the one that they did. Norton at 177.
While Fugate claims that the witnesses he refers to would have allegedly testified to the fact that they saw Collins after the time that the murder allegedly occurred, or that the parties were not transported to the murder site in the way that White alleges, this Court is in agreement with the Commonwealth that such evidence alone would not have resulted in a reasonable probability of a different result, particularly in light of the other damning evidence submitted against Fugate, including an audiotape in which he describes his role in the crime in his own words.
Certainly, Fugate's allegations are subject to the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. This is particularly so in light of the fact that Fugate's trial counsel is now deceased, and cannot speak for himself as to his trial strategy and the reason he defended the case in the manner that he did. McKinney v. Commonwealth, 445 S.W.2d 874 (Ky. 1969).
In light of the foregoing, this Court is in agreement with the court below that there is simply no probability, reasonable or otherwise, that the outcome of the trial in this matter would have resulted in anything other than Fugate's conviction for Collins's murder. Having so found, we affirm.
Wherefore, for the foregoing reasons, we hereby affirm the March 27, 2012, judgment of the Powell Circuit Court, denying Fugate's motion for post-conviction relief pursuant to RCr 11.42, the Honorable Frank Fletcher, presiding.
ALL CONCUR.
