NOT TO BE PUBLISHED

OPINION

NICKELL, Judge.

Richard Earl Thomas, II ("Ricky") has appealed from the Bullitt Circuit Court's denial of his motion for post-conviction relief pursuant to RCr1 11.42 following an evidentiary hearing. After a careful review, we affirm.

Following a jury trial, Ricky was convicted of the murder2 of his father, Richard Thomas ("Richard"), theft by unlawful taking over $300,3 and burglary in the third degree.4 He received an aggregate sentence of twenty years' imprisonment. His conviction was upheld on direct appeal to the Supreme Court of Kentucky in an unpublished Opinion.5 Thereafter, Ricky filed a pro se RCr 11.42 motion seeking relief from his conviction based on allegations of ineffective assistance of trial counsel. The motion was supplemented by appointed counsel and an evidentiary hearing was convened on January 5, 2011. The trial court denied relief and this appeal followed.

Ricky presents four allegations of error in seeking reversal. He contends the trial court erred in not finding his counsel was ineffective for failing to: 1) move to suppress statements he made during police questioning resulting from impermissible "question-first" tactics; 2) object to trial testimony offered by his girlfriend and stepmother; and 3) call favorable defense witnesses. In the alternative, he alleges the cumulative effect of these errors requires reversal.

"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).

Id. at 687. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690. 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.

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. CR6 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). Additionally, we note 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. "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).

Ricky first contends trial counsel was ineffective in failing to seek suppression of statements and a confession he made to police on grounds that the officers engaged in a "question first" tactic to obtain the statements, a practice condemned by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Essentially, Ricky alleges he was subjected to a lengthy custodial interrogation and was read his Miranda7 warnings only after he had made incriminating statements regarding the burglary. He contends the actions of the investigating officers fell squarely within the prohibition laid out in Seibert, and that his counsel was ineffective in failing to so argue. Ricky alleges he was prejudiced by counsel's failure when his recorded statements were played to the jury and on direct appeal when the Supreme Court refused to consider his allegation of error as it was unpreserved.

At the evidentiary hearing, trial counsel indicated her focus in moving to suppress Ricky's statements was on whether his rights had been properly administered and whether the interrogation was custodial in nature. She recalled her belief that the entire argument for suppression was based on the fact that Ricky had been questioned before being read his Miranda warnings but could not recall why she had not cited Seibert or specifically referenced the "question first" tactic in support of the argument. In its order denying relief, the trial court concluded Seibert was factually distinguishable from the instant matter and found counsel's actions fell within the range of constitutionally effective assistance. Ricky contends the trial court's decisions were incorrect and contrary to the evidence adduced at the evidentiary hearing. We disagree.

As previously stated, to prevail on his ineffective assistance claim, it is incumbent upon Ricky to show the outcome would have been different but for counsel's alleged ineffectiveness. Strickland. Here, he must allege and prove he would have prevailed on the suppression issue had counsel raised Seibert and relied on its holding as the basis for suppression. He has failed to do so.

As the trial court correctly found, Seibert is factually distinguishable from the case at bar and therefore inapplicable. In Seibert, officers coerced the defendant into fully inculpating himself and giving a complete statement prior to administering his constitutional rights. The officers then led Seibert to believe his subsequent written or recorded confession was merely a continuation of the earlier, pre-warning statements and used deceptive statements to create the impression Seibert had no choice but to continue talking. Those facts are strikingly different from the ones presented in the instant matter.

On direct appeal, in ruling the trial court's denial of the suppression motion was supported by substantial evidence, the Supreme Court ruled Ricky had voluntarily agreed to speak with the officers, his interrogation was not custodial in nature, he was immediately read his constitutional warnings upon making incriminating statements, and he had, in fact, waived his rights. Thus, although the Supreme Court refused to consider the Seibert issue because it was unpreserved and Ricky failed to request palpable error review, it is clear to this Court that the coercive tactics condemned in Seibert were not utilized by the investigating officers. Thus, Seibert is inapplicable and Ricky is not entitled to relief based thereon as the trial court correctly concluded.

Next, Ricky argues trial counsel was ineffective in failing to object to portions of trial testimony elicited from his girlfriend, Amy Coble, regarding their relationship and a letter Ricky wrote to her following his arrest, as well as testimony from his stepmother, Malissa Thomas, regarding a confrontation between Ricky and Richard a few days prior to Richard's death. Ricky claims the challenged statements constituted hearsay, were prejudicial and irrelevant, and counsel's failure to object to them constituted ineffective assistance. We disagree.

A court must be highly deferential in reviewing defense counsel's performance and should avoid second-guessing counsel's actions based on hindsight. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). "`A defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" Sanborn v. Commonwealth, 975 S.W.2d 905, 911 (Ky. 1998) (quoting McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997)).

On direct appeal, the Supreme Court ruled the introduction of the challenged statements did not rise to the level of palpable error, specifically found Coble's statements were not hearsay, and determined introduction of Malissa's statements was harmless at best and did not unduly influence the jury. At the evidentiary hearing, trial counsel stated her decision not to object was a strategic decision so as to not draw additional attention to the statements. Based on the record before us, we must conclude counsel's strategic decision was sound, was not outside the realm of reasonably competent professional assistance, and did not result in prejudice. The trial court did not err in so finding.

Third, Ricky alleges trial counsel was ineffective in failing to call favorable defense witnesses. He claims the failure to procure testimony from Craig Brown, a pawnbroker, and Courtney White, a man from whom Ricky had stolen tools, was prejudicial to his defense, as these two men would have testified regarding Richard's knowledge of Ricky's actions in stealing and pawning tools to obtain the money to fuel his drug habit. He claimed the pair's testimony that Richard routinely "cleaned up" after Ricky when he engaged in these activities would have negated Ricky's motive for killing his father and would likely have impeached some of Malissa's testimony. Again, we disagree.

There can be no doubt that defense counsel has an obligation to make an investigation that is reasonable under the circumstances. Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001); Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). However, decisions related to trial strategy and witness selection are generally left to counsel's discretion and cannot be assessed using the benefit of hindsight. Foley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000) (overruled on other grounds by Stopher v. Commonwealth, 170 S.W.3d 307 (Ky. 2005)). "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel." Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003) (overruled on other grounds by Leonard, supra.)).

Trial counsel testified she intentionally did not call the two challenged witnesses as she believed their testimony would be detrimental to Ricky's defense. She believed White could only testify as to Ricky's drug habits and his own criminal record would be detrimental to his credibility. As to Brown, she believed his testimony, while possibly positively impacting the burglary charge, could have easily had the opposite effect on the more serious murder charge. In assessing counsel's performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland, 466 U.S. at 688-89; Commonwealth v. Tamme, 83 S.W.3d 465, 470 (Ky. 2002); Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). Based on the record before us, we cannot say counsel's decisions were anything other than sound trial strategy nor that they fell outside prevailing professional norms. Further, to establish actual prejudice, a movant must show reasonable probability the outcome of the proceeding would have been different or was rendered fundamentally unfair and unreliable. Strickland, 466 U.S. at 694; Bowling, 80 S.W.3d at 411-12. Ricky has failed to do so and is not entitled to the relief he seeks.

Finally, Ricky argues the trial court's denial of his RCr 11.42 motion was erroneous because the cumulative effect of the alleged errors entitles him to relief. Cumulative error is "the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Cumulative error may be found only when "the individual errors were themselves substantial, bordering, at least, on the prejudicial. Where, as in this case, however, none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice." Id. (internal citations omitted). Ricky is not entitled to relief under the cumulative error doctrine.

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

ALL CONCUR.