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Court of Appeals of Kentucky.


NO. 2010–CA–001644–MR

Decided: March 23, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  LAMBERT AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE:  Linda Dixon Bullock Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky



The Commonwealth of Kentucky appeals from an opinion and order vacating Lamar Lee Boyd's conviction and ordering a new trial as a result of a finding of ineffective assistance of counsel.   We affirm.

Following a jury trial, Boyd was convicted of wanton murder and wanton endangerment in the first degree and sentenced to twenty years in prison.   The Kentucky Supreme Court, in No.2005–SC–000512–MR, affirmed Boyd's wanton murder conviction but reversed his first-degree wanton endangerment conviction in an unpublished opinion.   Our Supreme Court set out a full exposition of the facts underlying Boyd's conviction, and we adopt these facts here:

Appellant and the victim, William Cliett, had been friends for several years when the relationship turned acrimonious.   Though the source of the disagreement was somewhat unclear, it apparently involved Appellant's good friend, Demarkus Hill. Following an encounter where Cliett pulled a gun on Appellant and Hill, Appellant believed that Cliett was going to kill him.   A neighborhood resident later confirmed that Cliett had threatened not only Appellant, but also his son.

Days later, Cliett repeated this threat to Appellant's father, who informed his son.   Appellant armed himself with a shotgun, and set out with Hill and three other friends to go to a party.   According to Appellant's testimony, if he encountered Cliett, he planned on flashing the weapon to scare him.   However, two passengers in the vehicle that evening testified that Appellant set out with the express purpose of finding Cliett and killing him.

When they located Cliett, he was on the street, leaning into a parked vehicle occupied by Franchella McCoy and Terri Lewis.   According to McCoy, she and Lewis were talking to Cliett when he suddenly stood up and turned towards the rear of the vehicle.   She heard a gunshot, then saw Cliett fall to the ground.   He was struck by a gunshot wound to the chest and died shortly thereafter.   He was unarmed.

At trial, Appellant admitted shooting Cliett with a single gunshot.   He testified that he intended to raise his gun in order to scare Cliett, but that he panicked and fired the gun because he thought Cliett was reaching for his own weapon.   He also testified that he only fired the gun one time, which was corroborated by several eyewitnesses.   It should be noted, however, that Demarkus Hill fired another weapon, also hitting Cliett.   These wounds were determined to be non-life threatening.

Appellant later turned himself into the police, was arrested and charged with murder for the death of Cliett and wanton endangerment in the first degree with respect to the numerous persons nearby at the time of the shooting.   Following a jury trial, Appellant was convicted of wanton murder and wanton endangerment in the first degree.   He was sentenced to twenty years and five years in prison, respectively, to be served concurrently.

After our Supreme Court's decision, Boyd filed a motion for post-conviction relief pursuant to RCr 11.42, alleging ineffective assistance of counsel.   Boyd's motion was denied without an evidentiary hearing.   In No.2008–CA–001654–MR, this Court affirmed in part and reversed in part the trial court's ruling.   We held that Boyd was entitled to an evidentiary hearing on his claim that his trial counsel coerced him to testify despite his desire not to testify.   We further held that the result of the trial might have been different if Boyd's allegation was true.

On remand, the trial court conducted an evidentiary hearing where Boyd and his trial counsel testified.   Boyd testified that his trial counsel coerced him into testifying in violation of his Fifth Amendment right to remain silent.   He testified that he never intended to testify but that his counsel changed the strategy and told him that he would spend the rest of his life in prison if he did not testify.

Boyd then produced scripted notes that he testified his counsel provided to him to aid in his testimony just before he went to the witness stand.   He testified that his defense strategy was to make the Commonwealth prove its case before his counsel compelled him to testify that he shot Cliett.   He further testified that he and his counsel neither prepared nor discussed his potential testimony because there was never a plan for him to testify in his defense.   He testified that the only planned defense witness was Boyd's father.

Kirk Bierbauer, Boyd's trial counsel, who was permanently disbarred for deceiving multiple clients and for his felony drug conviction, testified that he was appointed Boyd's counsel through the then-Fayette County Legal Aid Office. Double He testified that his strategy was to call Boyd as a witness and that Boyd desired to testify in his defense.   He testified that he and Boyd discussed Boyd's testimony.   He testified that he could have told Boyd that he would spend the rest of his life in prison if he did not testify but stated that he normally did not use this phrase.

Stephen Carter, Boyd's father, testified that Bierbauer informed him that he would be the only defense witness for Boyd's case-in-chief.   He testified that Bierbauer approached him in the courtroom during the trial and asked him to step out in the hall because Carter would be the next witness called.   He testified that he waited in the hallway to be called but was not summoned to testify.

At the conclusion of the hearing, the trial court issued an order finding that Boyd's counsel coerced him to testify in violation of Boyd's Fifth Amendment right against compelled self-incriminating testimony.   The trial court found that “Bierbauer concedes that he told Boyd something to the effect that ‘if you don't take the stand and testify, you're going to spend the rest of your life in prison.’ ”   The trial court further found that Boyd's compelled testimony affected the outcome of his trial and, thus, vacated Boyd's conviction and ordered a new trial.

The Commonwealth contends that the trial court's findings of fact were not supported by substantial evidence, because the testimony in the record refutes the trial court's findings.   Specifically, the Commonwealth argues that the trial court's finding regarding Bierbauer's testimony is inconsistent with his testimony contained in the record.

On review of an RCr 11.42 appeal, an appellate court must defer to the trial court's factual findings unless they are clearly erroneous.   Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky.2007).   A factual finding is not clearly erroneous if it is supported by substantial evidence.  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).   Substantial evidence is evidence which, taken alone or with all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.  Id. The trial court has the sole authority to judge the credibility of the witnesses and the weight to be given to testimony.  Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky.1999).

From a review of the record, the trial court's findings regarding Bierbauer's testimony were not entirely consistent with the record.   However, the trial court presided over this case from indictment to post-conviction proceedings, including Boyd's criminal trial.   The trial court observed counsel's actions and the interaction of counsel and Boyd. Additionally, the trial court observed the parties' testimony at the evidentiary hearing and noted the emotion of Boyd's testimony.

While the Commonwealth asks that we second guess the trial court's factual determinations, an appellate court cannot reevaluate the evidence and testimony of witnesses or substitute its judgment regarding the credibility of a witness for that of the trial court.  Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky.1987).   In particular, the Kentucky Supreme Court eloquently stated:

The totality of the circumstances surrounding the original trial and the subsequent RCr 11.42 hearing provides ample evidence of the trial court's opportunity to see the witnesses and observe their demeanor on the stand, and recognition must be given to its superior position to judge their credibility and the weight to be given their testimony.  Kotas v. Commonwealth, Ky., 565 S.W.2d 445 (1978).

McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky.1986).

In this case, the trial court presided over every aspect of Boyd's criminal proceeding and had significant opportunities to observe the witnesses.   In its findings of fact, the trial court noted that the Kentucky Supreme Court disbarred Bierbauer long before the evidentiary hearing.   Based on the unique facts of this case, we conclude that its finding that Bierbauer coerced Boyd to testify was supported by substantial evidence.   While the Commonwealth disagrees that Boyd's testimony was credible, the trial court was in a superior position to weigh Boyd's testimony and rely on it in making a factual finding.  Id.

The Commonwealth argues that the trial court did not address the first prong of the Strickland test because the trial court did not find that Bierbauer's representation was below the proper standard of performance.   We disagree.

The standard of review for claims of ineffective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Under this standard, the movant must show (1) that counsel made serious errors resulting in a performance outside the range of professionally competent assistance guaranteed by the Sixth Amendment;  and (2) that the deficient performance prejudiced the defense so seriously that there is a reasonable likelihood that the outcome of the trial would have been different absent the errors.  MacLaughlin v. Commonwealth, 717 S.W.2d 506, 507 (Ky.App.1986).

A reviewing court must focus on the totality of the evidence before the judge when assessing the performance of defense counsel and must presume that counsel rendered effective assistance of counsel.  Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).   Additionally, a defendant has the right to ultimately decide whether he will take the stand in his own defense and his decision must be respected.  Quarels v. Commonwealth, 142 S.W.3d 73, 79 (Ky.2004).   However, a defense counsel has the right to make reasonable tactical decisions which do not violate prong one of Strickland.  Gall v. Commonwealth, 702 S.W.2d 37, 40 (Ky.1985).   A defense counsel's advice to a defendant regarding whether he should testify can be deemed to be a reasonable tactical decision.  Brown v. Commonwealth, 253 S.W.3d 490, 501 (Ky.2008).

The trial court heard Boyd testify that he and Bierbauer only planned to call Boyd's father as a witness for his defense.   The trial court further heard Boyd testify that Bierbauer did not prepare him to testify and told him that he would spend the rest of his life in prison if he did not testify.   While advising a defendant to testify can be a reasonable tactical decision, the trial court believed that Bierbauer forced an unprepared, stunned, and frightened defendant to testify.   Under these facts, we conclude that the trial court did not abuse its discretion in finding that counsel's performance was outside the range of competent assistance.

Additionally, we conclude that the trial court's finding that there was a reasonable likelihood that Boyd's case would have been different was not an abuse of discretion.   The record reveals that the witnesses that gave incriminating police statements against Boyd recanted their testimony.   Thus, there was no witness, except Boyd, who would have provided consistent and uncontradicted testimony that he fired the shot killing Cliett.   While Boyd might have been found guilty absent his testimony, the trial court's ruling that his coerced testimony was constitutionally prejudicial was not an abuse of discretion.

For the foregoing reasons, we affirm the Fayette Circuit Court's opinion and order vacating Boyd's conviction and granting him a new trial.