LARRY WAYNE TAYLOR APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

LARRY WAYNE TAYLOR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000548–MR

Decided: January 20, 2012

BEFORE:  TAYLOR, Chief Judge;  COMBS and NICKELL, Judges. BRIEF FOR APPELLANT:  Joshua A.K. McWilliams Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Larry Taylor appeals from an order of the Knox Circuit Court that denied his motion for funds to obtain an expert witness.   He also appeals an order denying his motion for relief pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42.   After our review, we affirm.

On August 11, 2006, Taylor entered a plea of guilty to the charges of murder and tampering with physical evidence.   He admitted that he had beaten David Messer to death with a baseball bat and had then attempted to dispose of Messer's body and the murder weapon.   Taylor is now serving a sentence of thirty-five years.

On December 22, 2008, Taylor filed a motion to vacate his plea based on a claim of ineffective assistance of counsel.   Although Taylor stated several grounds for the motion, pertinent to this appeal was his allegation that trial counsel failed to inform him of the potential for a claim of self defense if he had gone to trial.   The court denied the motion, and Taylor appealed to this court.

In an opinion rendered on July 9, 2010, a divided panel of this court affirmed most of the trial court's findings.   However, it remanded:

for the limited purpose of conducting a hearing to determine:  (1) whether [Taylor's] trial attorney did in fact advise him on the possibility of asserting a self-protection defense and (2) if not, whether failure to do so constituted ineffective assistance of counsel.

Taylor v. Commonwealth, 2010 WL 2696340 at *6 (Ky.App. July 9, 2010).

The trial court conducted an evidentiary hearing on February 25, 2011.   Taylor's trial counsel testified that on at least two occasions, he had discussed with Taylor the possible use of a self-protection defense.   Taylor testified that he did not recall any such discussion.   On March 4, 2011, the trial court entered an order denying Taylor's motion, finding that counsel's testimony was more credible than Taylor's.   It found that counsel had “competently and thoroughly” advised Taylor regarding the self-protection defense.   This appeal follows.

We first address Taylor's contention that it was error to deny his motion for funds for an expert witness.   The record shows that Taylor had requested the funds in order for an expert to examine his competency.   However, Taylor's competency was not an issue in this proceeding.   The opinion of the Court of Appeals explicitly limited its remand to the issue of whether Taylor had received certain advice.   Since his competency was not at issue, the court did not err in denying Taylor's motion for funds for an expert witness to evaluate his competency.   We affirm on this point.

We address Taylor's remaining arguments together.   He believes that the court erred in excluding the testimony of his mother and sister, in finding that their testimony was not credible, and in ruling that trial counsel was not ineffective for failing to discover the victim's violent history.

The same analysis applies to each contention.   The Court of Appeals remanded the case for one very narrow issue – whether his counsel had advised Taylor of the self-protection defense.   None of Taylor's arguments has any bearing on that sole issue.   Only Taylor and his trial counsel had knowledge of discussions concerning the issue of self-defense.   The scope of counsel's investigation was not a question before the court.   Therefore, the arguments concerning testimony of any person other than counsel are irrelevant.

In reviewing for clear error, we must examine whether the court's decision was supported by substantial evidence.  Miller v. Eldridge, 146 S.W.3d 909, 918 (Ky.2004).   Kentucky Rule[s] of Civil Procedure (CR) 52.01 provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

In this case, the court explained that it did not find Taylor to be credible.   Taylor admitted on the stand that he had lied under oath in previous proceedings.   Additionally, he testified that he had not informed his counsel of the violent nature of the victim.   The court observed that if that testimony were true, it was Taylor's own fault if his attorney had not been aware of that circumstance.   In addition, Taylor was not forthcoming with his responses during his cross-examination.   The court did not err in finding that the testimony of his counsel was more credible than that of Taylor himself.

Finding no error, we affirm the judgment of the Knox Circuit Court.

ALL CONCUR.

COMBS, JUDGE: