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Court of Appeals of Kentucky.


NO. 2009–CA–002281–MR

Decided: June 24, 2011

BEFORE:  COMBS AND MOORE, JUDGES;  ISAAC, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Gene Lewter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky



William Dillard Smith appeals from a Laurel Circuit Court order which denied his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction relief after conducting an evidentiary hearing.   We affirm.

A jury convicted Smith of sodomy in the first degree, two counts of sexual abuse in the first degree, sexual abuse in the second degree, sexual abuse in the third degree and two counts of incest.   The victims were Smith's two stepdaughters.   His convictions were affirmed on direct appeal to the Kentucky Supreme Court.   See Smith v. Commonwealth, 2006 WL 734008 (2004–SC–0259–MR) (Ky.2006).

Smith filed a motion pursuant to RCr 11.42 alleging ineffective assistance of counsel arising from trial counsel's failure to interview several potentially exculpatory witnesses.   In August 2009, the trial court set a hearing on the motion for October 23, 2009.   At 4:00 p.m. on the day before the hearing, Smith served a subpoena on Leslie Brown (now Markelonis), one of his former trial attorneys.   Until that time, Smith had not mentioned her as a possible witness nor had he criticized her trial performance in his motion.   Brown moved to quash the subpoena on the grounds that she received less than 24 hours notice, she lives three hours away and had no opportunity to make arrangements to transport her young child to school, and she was never notified that an RCr 11.42 motion had been filed, had never seen it and was unaware of the allegations it contained.   The trial court granted her motion but reserved its ruling on whether to bifurcate the proceedings in order to secure Brown's presence at a later date.

At the hearing, Smith's lead trial counsel, Steve Cessna, testified that Leslie Brown was hired for the defense because he believed it was more appropriate to have a young female attorney cross-examine the victims.   Cessna initially testified that he did not remember whether the first of the two victims to testify had actually been cross-examined.   He then recalled that after the victim's direct testimony, “some issues came up;” they broke for lunch and he and his co-counsel went to his office to do some research.   They subsequently chose not to cross-examine the witness.   When asked by the Commonwealth Attorney whether this decision was trial strategy, Cessna stated, “Of course.”

Smith's son, Joe, testified at the hearing that he told Cessna that he had had sexual relations with the two victims and that he had expected to be called as a witness at the trial.   Cessna testified that he chose not to call Joe as a witness because he feared Joe might get in trouble and also because he was not convinced that Joe was being truthful.

At the conclusion of the hearing, the trial court refused to resubpoena Brown.   In its order denying the RCr 11.42 motion, the trial court stated that Smith had not explained how he would have benefited from cross-examining her.   The trial court concluded that Smith had failed to meet either prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a finding of professional deficiency and actual prejudice.   As to Cessna's decision not to call Joe as a witness, the trial court described Joe's testimony regarding specific instances of conduct with the victims as “vague and evasive,” and concluded that Cessna's decision was sound trial strategy.   This appeal followed.

“[W]hen the trial judge [conducts] an evidentiary hearing, a reviewing court must defer to the determination of the facts and witness credibility made by the trial judge.”  Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 158–59 (Ky.2009).

In Strickland, the United States Supreme Court set forth a two-part test to be used in determining whether the performance of a convicted defendant's trial counsel was so deficient as to merit relief from that conviction:

First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Under the second, “prejudice” prong of the test,

[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., 466 U.S. at 694, 104 S.Ct. at 2068.

Smith argues that Cessna's explanation that the decision not to cross-examine one of the victims was “trial strategy” is inadequate because it is impossible to discern whether it was a reasonable choice among alternatives.   He contends that it was arbitrary to deny a continuance in order for the court to hear the testimony of Leslie Brown on this issue.   We agree with the trial court, however, that Smith failed to allege with any specificity how he would have benefited from the cross-examination of the victim or how he was prejudiced by the decision not to cross-examine her.  “[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).   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).

We also disagree with Smith's contention that an attorney who chooses not to cross-examine a witness should bear the burden of explaining the decision and that it is axiomatic that a decision not to cross-examine a witness constitutes ineffective assistance of counsel.  “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).  “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (internal quotation marks and citation omitted).   Smith simply failed to overcome this presumption.

Smith also argues that Cessna's decision not to call Joe as a witness because he thought he was untruthful was not “his call to make.”   Assessing the quality and potential impact of a witness's testimony is one of the fundamental tasks of defense counsel;  it was certainly Cessna's “call to make.”  “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 8787, 885 (Ky.2000), overruled on other grounds by Stopher v. Conliffe, 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 v. Commonwealth, 279 S.W.3d 151 (Ky.2009).   Cessna's decision not to use him as a witness falls well within the scope of professional competency, especially when it is considered in light of the trial court's finding that Joe's testimony was vague and evasive.

The order of the Laurel Circuit Court denying Smith's RCr 11.42 motion is affirmed.