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Court of Appeals of Kentucky.

Leondo HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2008-CA-001342-MR.

Decided: May 29, 2009

Before CAPERTON, KELLER, and LAMBERT, Judges. Leondo Harris, West Liberty, KY, appellant Pro Se. Jack Conway, Attorney General, Bryan D. Morrow, Assistant Attorney General, Frankfort, KY, for appellee.


Leondo Harris appeals the Jefferson Circuit Court's denial of his RCr 11.42 motion. For the following reasons, we affirm.

On January 23, 2007, Harris was convicted of first-degree rape, first-degree robbery, and first-degree sexual abuse of T.W. and was sentenced to a prison term of fifty years. The relevant facts of this case were sufficiently stated in the Kentucky Supreme Court's opinion which affirmed Appellant's conviction on direct appeal.

T.W. testified that as she was leaving a pay-phone near her home on Virginia Avenue in Louisville shortly before 9:00 p.m. on November 5, 1996, she was accosted by an African-American man wearing a black sweat-shirt with its hood pulled over his head and around his face. The man showed her a handgun and directed her to an unlighted alley between two buildings where he first robbed her of the small amount of cash in her possession, rummaged in her bra for more cash, ordered her to remove her shirt and lower her pants, and then vaginally raped her. During the assault, the man several times threatened T.W. with the gun and ordered her not to look at him. Once the man had fled, T.W. sought help at a nearby apartment, where the occupants helped her call 911. At trial, T.W., one of the persons who assisted her, and two of the police officers who responded to the 911 call all testified that in the immediate aftermath of the assault T.W. was distraught, that she was crying and sobbing uncontrollably, and that her clothes were disheveled. A short time later, T.W. was interviewed by the detective assigned to the case, but she had not recognized her assailant and was unable to provide more than a very general description. Following the interview, she was taken to the hospital where she was examined and a vaginal smear collected. The detective placed that evidence in storage. When no leads developed, the police eventually declared the case “cold” and placed it in abeyance.

In the meantime, advances in technology led to the Federal Bureau of Investigation's creation of the Combined DNA Index System (“CODIS”), “a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs,” United States v. Kincade, 379 F.3d 813, 819 (9th Cir.2004). Pursuant to CODIS, local law enforcement agencies collect DNA samples from, among other sources, crime scenes and individuals convicted of qualifying state offenses. See KRS 17.170-17.175. The DNA is analyzed, and the resulting profiles are incorporated in the database, making possible nationwide computer searches for matches between the evidence from different crime scenes as well as between the crime scene evidence and the known-offender profiles. In 2000, Congress passed the DNA Analysis Backlog Elimination Act, Pub.L. No. 106-546, 114 Stat. 2726 (2000), which provided grant money to the states to fund lab work in hopes of eliminating some of the enormous backlog of collected but unanalyzed samples. Tracey Maclin, Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? 33 J.L. Med. & Ethics 102 (Spring 2005). Due to one such grant, in 2005 the State Police Crime Lab in Frankfort reworked the evidence gathered in T.W.'s case and from semen present on the vaginal swabs obtained a male DNA profile that proved to be a perfect match with Harris's offender profile. T.W.'s case was reopened, and on August 4, 2005 a Jefferson County Grand Jury indicted Harris. Not long after the indictment, the Commonwealth obtained a new blood sample from Harris and confirmed the match between his DNA and that obtained from T.W.'s rape kit.

Harris's case was first called to trial on January 31, 2006, but at that time the Commonwealth admitted that it had not yet located T.W. and requested a continuance. Harris objected and moved that the case be dismissed without prejudice. The trial court apparently understood his motion as a demand for a speedy trial, but given the obvious importance of the witness, the seriousness of the charges, and the fact that the prosecution was then only about six months old, the trial court denied the motion to dismiss and rescheduled trial for June 27, 2006. On June 23, 2006, the Commonwealth again requested that the trial be continued. Although it had located T.W., another key witness-the detective initially assigned to T.W.'s case in 1996-was on vacation. Again Harris objected, but again the trial court rescheduled trial, this time for August 22, 2006. When that date rolled around, Harris requested more time-to file a KRE 412 motion and to interview witnesses-and so once again trial was postponed. Harris was finally tried in October 2006, about fourteen months after his indictment and almost ten years after the alleged offense.

Harris v. Commonwealth, Slip. Op. No.2007-SC-000142-MR, 2008 WL 2484934 (Ky., June 19, 2008).

Harris appealed his conviction to the Kentucky Supreme Court, claiming that he was denied his rights to a timely prosecution and a speedy trial. Harris also claimed that his trial was rendered unfair by: 1) the under-representation of African-American males on the venire from which the petit jury was chosen; 2) the exclusion of evidence that the complaining witness, T.W., was a convicted felon; 3) the use of jury instructions which understated the Commonwealth's burden of proof; and 4) the prosecutor's misuse of closing argument to suggest that Harris had to prove his innocence. The Supreme Court affirmed Harris' conviction and sentence on June 19, 2008.

While Harris' appeal was still pending, he filed a motion for post-conviction relief pursuant to RCr 11.42, alleging various claims of ineffective assistance of counsel. On May 14, 2008, the Jefferson Circuit Court denied Harris' motion because the case was pending on appeal, and the trial court had no record to review. Harris now appeals the denial of his RCr 11.42 motion.

We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be reconsidered in these proceedings by simply claiming that it amounts to ineffective assistance of counsel. Haight v. Commonwealth, 41 S.W.3d 436 (Ky.2001), citing Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky.1998).

Harris first claims that his counsel was ineffective for failing to preserve for appellate review his claim for a speedy trial. The Kentucky Supreme Court reviewed Harris' speedy trial claim on direct appeal and determined that he was not denied his right to a speedy trial. Since this issue was raised and rejected on direct appeal, Harris may not raise this issue now by claiming that it amounted to ineffective assistance of counsel. Haight, supra.

Harris next claims that he was denied his Sixth Amendment and Fourteenth Amendment rights to a fair trial by an impartial jury because the jury was not selected from a fair cross-section of the community. This claim was also raised and rejected by the Kentucky Supreme Court on direct appeal. Harris cannot now raise it in a post-conviction proceeding by claiming that his counsel was ineffective for failing to object to it during trial. Haight, supra.

Harris claims that his trial counsel was ineffective for failing to impeach a prosecuting witness with a prior felony conviction. Harris raised the substance of this issue on direct appeal, but the Court determined that he waived this issue. In his present appeal, Harris merely restates what the Kentucky Supreme Court ruled and never articulates how counsel's conduct was deficient or how he was prejudiced by such deficiency. RCr 11.42 requires Harris to state specifically the grounds upon which his claim is made. Because Harris fails to do this, we are unable to determine that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Next, Harris claims his counsel was ineffective for failing to interview and subpoena appropriate witnesses, claiming specifically that he gave his attorney the names of thirteen witnesses and a summary of their expected testimony and that such witnesses were not called or investigated. On appeal, Harris provides this Court with eight names of witnesses. According to Harris, those witnesses would have testified that they had previously seen Harris and the victim, T.W., together prior to the night of the rape and burglary. However, Harris' counsel did call Deborah Garnett to testify and Garnett testified that she had seen Harris and T.W. together in November of 1995. Further, counsel called Leondra Harris, Harris' sister, to testify, and she testified that she had previously met T.W. and saw Harris and T.W. together prior to the rape and burglary.

“Decisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight.” Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky.2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky.2005). At sentencing, Harris stated that his counsel did not call some witnesses because they were convicted felons. That statement, combined with the fact that the witnesses would have provided cumulative testimony regarding Harris' prior relationship with T.W., denotes that it was sound trial strategy for Harris' counsel not to call the remaining witnesses and we will not second guess that strategy on appeal. Therefore, we decline to say that not calling those witnesses amounts to ineffective assistance of counsel.

Harris next claims that he received ineffective assistance of counsel because his attorney failed to object when the prosecutor in his case engaged in what Harris deems prosecutorial misconduct. During his closing, the prosecutor told the jury about “a movement in our society called ‘Take Back the Night,’ ” a movement, he explained, in which rape and sexual abuse victims advocate social reforms aimed at making the streets safer for women. He suggested to the jury that it had an opportunity to contribute to this movement by finding Harris guilty. Harris did not object to the prosecutor's statements during the trial, the Supreme Court addressed his arguments under a palpable error standard and found no such error.

In Martin v. Commonwealth, 207 S.W.3d 1 (Ky.2006), the Supreme Court held that a finding that an error did not amount to palpable error did not prohibit a defendant from successfully maintaining an ineffective assistance of counsel claim based on the same claim of error. Accordingly, we will address Harris' claims that his counsel's failure to object to the prosecutor's conduct amounted to ineffective assistance of counsel.

In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Assuming that Harris' trial counsel's performance was deficient in not objecting to the prosecutor's conduct, we do not find that the trial counsel's performance prejudiced the defense. We agree with the Supreme Court that given the evidence in the case, there is no likelihood that the prosecutor's “Take Back the Night” argument affected the result or that Harris' counsel's failure to object to such a statement prejudiced the defense.

Finally, Harris claims his appellate counsel was ineffective for failing to hold his appeal in abeyance while he developed a record to demonstrate ineffective assistance of counsel. However, “[i]neffective assistance of appellate counsel is not a cognizable issue in this jurisdiction.” Lewis v. Commonwealth, 42 S.W.3d 605, 614 (Ky.2001), citing Hicks v. Commonwealth, 825 S.W.2d 280 (Ky.1992). We therefore decline to consider this issue further.

For the foregoing reasons, the Jefferson Circuit Court's denial of Harris' RCr 11.42 motion is affirmed.