GARY GAMBLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
-- March 23, 2012
BRIEFS FOR APPELLANT: Gary Gamble, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
Gary Gamble appeals the Warren Circuit Court's order denying his motion to vacate, set aside, or correct sentence pursuant to RCr Double 11.42. After a careful review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gamble was indicted for murder, burglary in the first degree and being a persistent felony offender in the second degree. The charges stemmed from the following events: Gamble, his childhood friend, Charlie Morse, and Morse's girlfriend, Kristie Gonzales, decided to rob Kristie's former boyfriend, Chris Page, a drug dealer. Their plan was for Kristie Gonzales to meet with Page, while Gamble and Morse burglarized his apartment in Bowling Green. Gamble and Morse were not aware, however, that Page had been evicted from the apartment and that a new tenant, J. Corey Webster, was then in residence. After they knocked on the door of the apartment and heard no response, Gamble kicked the door open. Webster was lying on a couch near the door. The intruders fired one shot at Webster; the bullet passed through his foot and lodged in the back of his neck, causing his airway to swell shut. He later died. Gamble and Morse fled and were later arrested in Louisville. Gamble did not deny that he was involved in the burglary but claimed that he did not plan the scheme and that he was “just along for the ride.” Gamble and Morse each claim that the other fired the shot.
Gamble eventually entered a guilty plea to all three charges in exchange for the Commonwealth's recommendation of sentencing by a jury. The Commonwealth also agreed not to seek aggravated sentences of life without the possibility of parole or life without the possibility of parole for twenty-five years. A jury sentenced Gamble to fifty years in prison for murder and twenty years in prison for the burglary charge, to be served consecutively. As to the PFO charge, the jury recommended a sentence of forty years to be served in lieu of the burglary sentence. The trial court amended the total sentence of ninety years to seventy years, the statutory maximum. Gamble's conviction was affirmed by the Kentucky Supreme Court on direct appeal. See Gamble v. Commonwealth, 2006 WL 2456201 (Ky.2006) (2005–SC–0439–MR).
On November 30, 2006, Gamble, pro se, filed an RCr 11.42 motion, alleging ineffective assistance of counsel. The trial court appointed counsel, who subsequently filed a supplemental memorandum in support of Gamble's motion, raising additional claims of ineffective assistance of counsel. The trial court conducted an evidentiary hearing on the motion, at which testimony was heard from Gamble and from his defense counsel. The trial court denied the motion in an order entered on June 2, 2010. The trial court subsequently granted the Department of Public Advocacy's motion to withdraw from the case as Gamble's counsel. Gamble proceeded with this appeal, pro se.
II. STANDARD OF REVIEW
“The burden is upon the accused to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceedings provided in RCr 11.42.” Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky.1968).
The test for determining ineffective assistance of counsel on a guilty plea has two components:
(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
Sparks v. Commonwealth, 721 S.W.2d 726, 727 –728 (Ky.App.1986).
Furthermore, “[i]t is well established that the advice by a lawyer for a client to plead guilty is not an indication of any degree of ineffective assistance.” Beecham v. Commonwealth, 657 S.W.2d 234, 236–37 (Ky.1983).
Although “the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance,” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky.2008), when, as in this case, the trial court conducted an evidentiary hearing on the motion, its findings of fact will not be set aside unless they are clearly erroneous. CR Double 52.01; Adams v. Commonwealth, 424 S.W.2d 849, 851 (Ky.1968). Findings of fact are not clearly erroneous if supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky.1964). Furthermore, recognition must be given to the trial court's superior position to judge the credibility of the witnesses and the weight to be given their testimony. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky.1986).
Gamble argues that his guilty plea was not voluntary, knowing or intelligent because his counsel failed to interview witnesses; to procure expert witnesses; to review discovery; and to advise him regarding issues of parole eligibility and accomplice liability. He further claims that, even if none of these alleged errors is sufficient in itself to warrant post-conviction relief, when considered together they constitute cumulative error. He also argues that the trial court employed the wrong legal standard in assessing his counsel's performance and that the trial court failed to consider the impact that his counsel's alleged errors had on the voluntariness of his decision to enter a guilty plea.
A. Failure to interview witnesses
Gamble argues that his defense counsel was ineffective for failing to interview his codefendants Kristie Gonzales and Charlie Morse; Ralph Allen, who waited in the car while Gamble and Morse burglarized the apartment; and Tamika Faulkner, who accompanied Gonzales in meeting Chris Page. Gamble's counsel believed that Gonzales, Morse and possibly Faulkner were all represented by counsel at the time; and it was unlikely that they would have consented to be interviewed. Double Gamble alleges that there were discrepancies in the testimony of Gonzales and Morse and that counsel would have learned that they had a mutual interest in throwing blame on Gamble. He also describes them as unreliable, lacking in integrity and self-interested.
Based on the interviews they gave to police, Gonzales and Morse would have testified that Gamble helped them plan the burglary, and Morse would have testified that Gamble shot the innocent victim, Webster. Ralph Allen, by his own admission, remained in the car smoking marijuana and did not witness the shooting, and Faulkner was with Gonzales at the time of the burglary. Gamble does not explain why his counsel would have needed to interview these witnesses personally to arrive at the same conclusion, because she was well aware that they would try to implicate Gamble. Regarding Gonzales and Morse, their testimony would have been highly prejudicial under any circumstances. As to Allen and Faulkner, their testimony would have been of little or no probative value. Nevertheless, Gamble argues that the trial court's comments about the limited utility of Allen's testimony are purely “speculative” and that it was important for counsel to interview Allen to get a sense of the “mindset” of Morse and Gamble at the time of the burglary.
“[T]he stated purpose of the rule [RCr 11.42] is to provide a forum for known grievances, not to provide an opportunity to research for grievances.” Gilliam v. Commonwealth, 652 S.W.2d 856, 858 (Ky.1983). Gamble fails to explain how Allen's description of the “mindset” of his companions would have substantively assisted his defense. Allen's opinion as to the identity of the shooter, based as it would be on his own subjective impressions and not as an eyewitness, would be purely speculative. Allegations that are “vague and general ․ do not rise to the standards required by RCr 11.42(2).” Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky.2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009). The trial court did not err in concluding that defense counsel made a reasonable decision not to interview these witnesses and that the decision did not prejudice Gamble.
B. Failure to procure expert witnesses
As a general rule, it is not necessary for defense counsel to hire rebuttal expert witnesses to avoid being deemed ineffective. Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky.2005). Gamble contends that his attorney should have hired an expert in firearms or forensic pathology to testify that the shooter did not act with intent to kill because the victim was shot in the foot. Gamble never explains why the assistance of an expert would have been required to advance this theory. The fact that the victim was struck in the foot may only have shown that the killer was a poor shot. Moreover, as the trial court correctly stated, KRS 507.020(1)(b) provides that murder occurs when a person “wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” Discharging a handgun in an inhabited apartment, whether it was with intent to kill or not, meets the standard of wantonness necessary for a finding of murder. Gamble also argues, without further explanation, that an expert could have corroborated his assertion that he was not the shooter. Highly-damaging evidence existed that he was the shooter, however. At the RCr 11.42 hearing, Gamble's counsel testified that she and Gamble went to the Bowling Green Police Department where they reviewed a videotape made after the murder which showed Gamble getting out of a vehicle with what appeared to be a gun in the pocket of his sweatshirt. In light of this evidence, his attorney was not ineffective for choosing not to retain a firearms or forensic expert and for counseling Gamble to accept a plea offer from the Commonwealth.
C. Failure to review discovery
Gamble further argues that his counsel was ineffective for failing to review discovery. Gamble argues that his attorney may have had a firm grasp of the details of the case, but that she did not communicate her understanding to him. The trial court found that Gamble's attorney spent more hours working on the case than she was allowed to bill, that she accompanied Gamble to the Bowling Green Police Department to review the surveillance video, and she testified that she visited Gamble twenty-seven times in jail and would stay with him as long as he wanted in order to answer his questions. The trial court found his claim that she failed to review discovery was unbelievable and without merit. The trial court's findings are supported by substantial evidence and its conclusion will not be overturned.
In a related argument, Gamble contends that his attorney was ineffective for failing to advise him regarding the parole eligibility provision of KRS 439.3401(4), which provides that
A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony who is a violent offender shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.
At the RCr 11.42 hearing, Gamble cast doubt on his own assertion by testifying that he could not remember whether he was informed about the eighty-five percent eligibility rule. In any event, the allegation is disproved by the record, which indicates that, at his guilty plea colloquy, the trial court informed Gamble at some length about the rule and asked him very specifically if he understood its implications. Gamble agreed in open court that he had been informed of the rule and that he understood it. The United States Supreme Court has held that a defendant's statements in court in the course of entering a guilty plea are “a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 73–74, 97 S.Ct. 1621, 1629 (1977). We see no reason to believe that Gamble was not speaking the truth on that occasion.
Gamble also argues that his attorney was ineffective for failing to communicate the concept of accomplice liability under KRS 502.020. He argues that he was less culpable than Morse and Gonzales because he did not come up with the plan to rob Chris Page and was only brought in after the plan was complete. Even if this assertion is true, he fails to explain how it is exculpatory under the provisions of KRS 502.020, which imposes liability on members of a conspiracy for the actions of their co-conspirators. As the trial court correctly noted, Gamble's potential culpability was not diminished because he acted in unison with others.
D. Cumulative error, incorrect legal standard, and voluntariness of the plea
Because we agree with the trial court that defense counsel was not ineffective in any of the areas cited by Gamble, there was no cumulative error. As to Gamble's claim that the trial court applied the incorrect standard in assessing his claims, the trial court did include a quotation in its order from Penn v. Commonwealth, which stated that ineffective assistance of counsel could only be found when the circumstances were such as to “shock the conscience of the court and make the proceeding a farce and mockery of justice.” 427 S.W.2d 808, 809 (Ky.1968). In the rest of the order, however, the trial court repeatedly and correctly cited to and applied the two-pronged deficiency and prejudice test first set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Its brief citation to the Penn opinion did not shape its analysis or substantively affect its conclusions and did not therefore constitute an error of law.
Finally, Gamble argues that his plea was involuntary because he was inadequately counseled due to his counsel's alleged failures to investigate his case and procure expert witnesses. We have already determined that his attorney's performance in these areas was not professionally deficient and that advising him to accept the plea offer did not constitute ineffective assistance of counsel. At his guilty plea colloquy, every section of his plea agreement was reviewed with him in detail and at length by the trial court; and he was asked in open court whether he had been coerced into entering the plea; he was free to ask questions at any time and to change his mind at any time. Although Gamble may in hindsight regret entering the plea, such regret does not equate to finding that his counsel was ineffective or that his plea was involuntary.
For the foregoing reasons, the Warren Circuit Court's order denying Gamble's RCr 11.42 motion is affirmed.
MOORE, JUDGE: Double