TIMOTHY CARROLL APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

TIMOTHY CARROLL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001939–MR

Decided: June 01, 2012

BEFORE:  MOORE AND STUMBO, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Timothy Carroll, pro se Burgin, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Timothy Carroll was convicted of first-degree fleeing and evading and of being a persistent felony offender in the first degree (PFO I).   He received a sentence of five (5) years of imprisonment, enhanced to twenty (20) years by virtue of his status as a PFO I. The Kentucky Supreme Court affirmed his conviction on direct appeal.  Carroll v. Commonwealth, 2009 WL 160450 (2007–SC–000613–TG) (Ky.2009).   Thereafter, he filed a motion to alter, amend or vacate his conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, alleging ineffective assistance of counsel.   The trial court denied his motion without an evidentiary hearing.   Finding no error, we affirm.

The Supreme Court fully set forth the circumstances surrounding Carroll's conviction in its opinion on the direct appeal.   In summary, the charges arose from events which occurred on December 31, 2006, when Kentucky State Police Trooper Timmy Jewell attempted to pull over a white Pontiac Grand Prix that was speeding.   Instead of pulling over as directed, the driver accelerated and attempted to evade Trooper Jewell.   After an extended chase over back roads, the driver lost control of the car and skidded into a field.   Trooper Jewell approached the vehicle and observed Jerry Landrum in the passenger seat.   Carroll was eventually found hiding in the woods about a mile from the field.   At trial, Landrum testified that Carroll was driving the vehicle.   Carroll's defense was that Landrum was actually driving the car.

In his RCr 11.42 motion, Carroll argues that his trial counsel was ineffective in four ways:  (1) by failing to investigate evidence supporting this defense;  (2) failing to impeach Landrum's testimony;  and (3) failing to call Johnathan Fleming as an alibi witness;  and (4) through the cumulative effect of these errors.   The trial court found no evidence to support Carroll's assertion that his counsel's actions amounted to ineffective assistance.   We agree.

In order to prevail on an ineffective assistance of counsel claim, a movant must show that his counsel's performance was deficient and that, but for the deficiency, the outcome would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness.  Id. at 688–89, 104 S.Ct. at 2065.   A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.  Id. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance.  Id. at 690, 104 S.Ct. at 2066.

An evidentiary hearing is necessary only where the record does not conclusively refute the allegations in the motion.  Fraser v. Com., 59 S.W.3d 448, 452 (Ky.2001).   In reviewing the trial court's denial of a request for post-conviction relief without an evidentiary hearing, our inquiry is whether the motion states grounds for relief that could not be conclusively resolved from the face of the record, and which, if true, would invalidate the conviction.  Baze v. Com., 23 S.W.3d 619, 622 (Ky.2000), overruled on other grounds in Leonard v. Com., 279 S.W.3d 151 (Ky.2009).

Carroll first argues that his trial counsel failed to investigate defenses to the charge.   Particularly, he alleges that his trial counsel failed to consult with an expert to determine whether his fingerprints were found on the driver's side of the car.   He maintains that such evidence would have supported his defense that he was not driving at the time.

Counsel has a duty to conduct a reasonable investigation, including defenses to the charges.  Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471, 71 USLW 4560 (2003).   However, 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, 442 (Ky.2001), overruled on other grounds in Leonard v. Com., supra.   The focus of the inquiry must be on whether trial counsel's decision not to pursue evidence or defenses was objectively reasonable under all the circumstances.  Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536.

As the trial court noted in its opinion, there was no evidence that any fingerprints were recovered from the Grand Prix. Consequently, Carroll cannot show that his counsel's failure to pursue such evidence was unreasonable.   Furthermore, in the absence of any evidence that fingerprints were available, Carroll cannot show that he was prejudiced by failing to investigate this line of defense.

In his second argument, Carroll next contends that his trial counsel failed to impeach Landrum's testimony by pointing out that he had been previously convicted of a felony.   He correctly notes that Kentucky Rules of Evidence (KRE) 609 permits the introduction of evidence the witness has been convicted of a crime for purposes of impeaching the witness's credibility.   Carroll asserts that his trial counsel should have used Landrum's prior felony conviction to impeach his credibility.

Ordinarily, matters involving trial strategy will not be second-guessed by hindsight.  Moore v. Com., 983 S.W.2d 479, 484 (Ky.1998).   Landrum had previously admitted on direct examination that he had been convicted of a felony.   He also admitted that he was under house arrest, was subject to a curfew and was not permitted to drink.   Additional questioning on these points would not have been productive.   Furthermore, Carroll's counsel repeatedly challenged Landrum's credibility at trial during cross-examination, and also called two witnesses to rebut his testimony.   Therefore, we agree with the trial court that Carroll's counsel was not ineffective for failing to specifically impeach Landrum with his prior felony conviction.

In his third allegation of error, Carroll contends that his trial counsel failed to call Jonathan Fleming as an alibi witness.   He asserts that Fleming would have testified that he saw Carroll at a convenience store just minutes before the police chase.   However, Carroll did not submit an affidavit from Fleming setting out the content of his testimony or whether he would have been available to testify at trial.   In the absence of such evidence, Carroll's claim that his trial counsel was ineffective is merely speculative.   Furthermore, as the trial court pointed out, Carroll's counsel called two other witnesses at trial who testified that they saw Landrum driving that evening.   Consequently, we agree with the trial court that Carroll failed to establish that his trial counsel's performance was deficient or that he was prejudiced as a result.

Lastly, Carroll argues that he was prejudiced by the cumulative effect of these alleged errors by counsel.   Since we find no deficient performance in any of Carroll's claims of errors, there is no basis for his claim that he was unfairly prejudiced by a cumulative effect.  Furnish v. Com., 267 S.W.3d 656, 668 (Ky.2007).   Therefore, the trial court properly denied Carroll's motion without holding an evidentiary hearing.

Accordingly, the order of the Muhlenberg Circuit Court denying Carroll's RCr 11.42 motion is affirmed.

ALL CONCUR.

LAMBERT, SENIOR JUDGE: