LEONARD MARTIN APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

LEONARD MARTIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–000671–MR

Decided: March 09, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEF FOR APPELLANT:  Leonard Martin, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General Perry T. Ryan Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Leonard Martin, proceeding pro se, appeals from a March 4, 2010, order of the Floyd Circuit Court denying his motion for post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42.   We affirm.

In 2003, Martin, a former Floyd County Sherriff's deputy, was indicted by a Floyd County grand jury on three counts of first-degree sexual abuse and one count of first-degree sodomy.   In each charge, the victim was the granddaughter of Martin's wife.   At his second trial in June 2004, Martin was found guilty of the charges and sentenced to a total of twenty-five years' imprisonment. Double

Martin directly appealed his convictions to the Kentucky Supreme Court, which affirmed the Floyd Circuit Court judgment of conviction on August 25, 2005.   Martin v. Com., 170 S.W.3d 374 (Ky.2005).

On August 10, 2006, Martin, proceeding pro se, moved the trial court to vacate his convictions pursuant to RCr 11.42. Double In his motion, Martin claimed that his convictions were the result of ineffective assistance of trial counsel.   On October 10, 2010, defense counsel filed a supplemental memorandum of law in support of Martin's previous RCr 11.42 motion.   The trial court granted an evidentiary hearing on the motion.

At the hearing, the trial court heard testimony from Martin's trial counsel and several witnesses who claimed that they would have testified as character witnesses had Martin's trial counsel called them to testify.   The court denied Martin's request for post-conviction relief.   The trial court concluded,

Based in all of the foregoing and review of the record herein, this court does conclude, as a matter of law, that not only was the legal assistance of the trial counsel not ineffective, but rather was reasonable under the facts of this case.   Additionally, this court would conclude, as a matter of law, that even had trial counsel been ineffective, (which this court does not find), as claimed by the Defendant, the Defendant would not have been prejudiced and the result of the proceedings would have been the same.   The evidence was clearly overwhelming against the Defendant, with both his granddaughter and daughter testifying as to the criminal sexual acts of the Defendant Martin.

Martin now appeals the trial court's denial of his RCr 11.42 motion.

Our review of a trial court's decision regarding an ineffective assistance of counsel claim is governed by a two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   The Strickland test was adopted by the Kentucky Supreme Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985).   The test first requires the defendant to show that trial counsel's performance was deficient.  Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064.   The second prong of the Strickland analysis requires the defendant to show that trial counsel's deficient representation prejudiced his or her case.   Id.

Our review does not extend to reasonable, strategic choices made by trial counsel.   Trial counsel's “actions are to be viewed in light of what was known at the time of trial and his acts are to be given great deference.”  Brown v. Com., 253 S.W.3d 490, 501–502 (Ky.2008).  “An RCr 11.42 motion is not an exercise in second guessing counsel's trial strategy.”  Parrish v. Com., 272 S.W.3d 161, 170 (Ky.2008) (internal quotations omitted).  “Conjecture that a different strategy might have proved beneficial is also not sufficient.”   Hodge v. Com., 116 S.W.3d 463, 470 (Ky.2003)(overruled on other grounds by Leonard v. Com., 279 S.W.3d 151 (Ky.2009).

First, Martin claims that his trial counsel failed to adequately investigate potential defenses and call certain witnesses. Double

[C]ounsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary under all the circumstances and applying a heavy measure of deference to the judgment of counsel.   A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct.   The investigation must be reasonable under all the circumstances.

Haight v. Com., 41 S.W.3d 436, 446 (Ky.2001)(overruled on other grounds by Leonard v. Com., 279 S.W.3d 151, 159 (Ky.2009)(internal citations omitted).

To support his claim, Martin called several witnesses to testify at the evidentiary hearing and claimed that they would have testified on Martin's behalf if his trial counsel had contacted them.   Each witness claimed they had known Martin for a significant period of time and that he was a good, moral person.

Only one witness, Avorn Hamilton, claimed to know anything about the underlying facts of the case, but his testimony merely assumed that Martin's wife, Iris, lied to police because she intended to move back to Michigan.   This assumption was based upon Iris's failure to register her automobile in Floyd County.   In light of the Commonwealth's decision not to call Iris to testify at the second trial and the highly speculative nature of the testimony by Hamilton, Martin has not demonstrated how failing to call Hamilton was prejudicial to his case or would have otherwise affected the outcome of the trial.

During the hearing, Martin's trial counsel testified that he did not call any of these witnesses because he believed that their respective testimony lacked relevance and was inadmissible.   He also testified that his experience has shown that multiple character witnesses can have a negative effect on a jury.   The Kentucky Rules of Evidence (KRE) 404(a)(1) expressly permits character evidence “of a pertinent trait of character or of general moral character offered by an accused․”  However, “[a]n accused who elects to defend by use of character evidence must produce evidence of character that tends logically to prove that he or she did not commit the specific crimes charged.”   Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.15[3][b] at 99 (4 th ed.2011).

Although testimony concerning Martin's high moral character may have been admissible, trial counsel's decision not to call character witnesses was not unreasonable.   The witnesses' testimonies were vague and held no probative value concerning the underlying facts.   Trial counsel's focus on the aforementioned defenses was not an unreasonable trial strategy.

Martin claims that his trial counsel should have called Iris to testify at the second trial in order to impeach her credibility.   In the first trial, Iris testified for the Commonwealth.   During the evidentiary hearing, trial counsel testified that he was pleased that Iris did not testify in the second trial because he felt that her testimony was damaging.   Trial counsel's decision not to call Iris was reasonable given the circumstances of this case.

Martin also makes a variety of claims against the trial court in the conduct of his RCr 11.42 hearing, including that the trial court erroneously limited the evidentiary hearing and failed to address all issues raised in Martin's pro se RCr 11.42 motion.   He also asserts that the hearing should have been postponed to allow Martin additional time to obtain records proving his innocence, and that the trial judge should have recused from the case.   None of these issues were raised before the trial court and have not been properly preserved for our review.

RCr 10.26 provides:

A palpable error which affects the substantial rights of a party may be considered ․ by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon determination that manifest injustice has resulted from the error.

In Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky.2000)(quoting Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky.App.1986)), the Kentucky Supreme Court explained, that:

Under this rule, an error is reversible only if manifest injustice has resulted from the error.   That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.

Our review of the record indicates that Martin mischaracterized his claims that the trial court improperly limited the evidentiary hearing and failed to address the issues that Martin raised in his pro se motion.   Our review of the hearing indicates that the trial court did not limit the evidentiary hearing and specifically addressed the issues raised in Martin's pro se motion.

Further, Martin's claim that the trial court should have recused from the case is also without merit.   During the evidentiary hearing, the trial court notified Martin's trial counsel, the Commonwealth, and Martin that he had known one of the defense witnesses for many years and considered him a friend.   Neither attorney objected or requested that the court recuse.   In addition, the trial court questioned Martin about the recusal and he expressly agreed to the trial judge going forward in the hearing.   Therefore, Martin's claims that the trial court should have recused from the hearing are unfounded.

Following our careful review of Martin's brief and the record, we conclude that Martin was given an ample opportunity to present his claims and present any relevant evidence on his behalf at the evidentiary hearing.   We also conclude there was no palpable error rising to the level of manifest injustice in the conduct of the evidentiary hearing below.  “The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for grievances.”  Hodge, 116 S.W.3d at 468.

Accordingly, the Floyd Circuit Court's denial of Martin's RCr 11.42 motion is affirmed.

ALL CONCUR.

TAYLOR, CHIEF JUDGE: