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2014- SC- 000_558- DG

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COMMON_WEALTH OF KENTUCKY - APéELLANT/CROSS-APPELLEE

 

     

 

 

 

'- - ~oN REVIEW F'RoM coUR'r oF APFEALS
' v. - = cAsE No. 2012 cA-oo 1240 '
JEFFERSON cIRcUIT coURT No. 05 cR~000740

'TERRANCE_: MILEs `. ` APPELLEE/cRoss-APPELLANT

MEmonAnbum o_PmIoN or THE coun'r '
l ' REVERsmd ' d

Terrance Miles is currently serving `a fifty-year sentence following
convictions for the 'murder of Michael Teasley, for first-degree wanton _ .
endangerment, for tampering with- physical evidence,_ and for‘bei`ng a s.econd- l

degree Persistent Felony 'Offender (PFO). Miles moved-the trial court for relief

.from the judgment under Kentucky Rule of Criminal Proc_edure (RCr] 111 .42. - .
The trial court _condncted an evidentiary hearing o_n Teasle_r/’s claims, after
which it entered an order denying relief. -On apneal, the flourt'of Appeals
_ reversed the trial court’s order. n

We granted cross~motions for discretionary review. The C`ommonv`vealth
asserts the Court of Appeals erred 'in its conclusion that Miles had received

ineffective assistance `of trial counsel. Miles on the other hand, while agreeing

with the Court-of'Appeals’ reversal of the trial court’s order, argues in his
cross- -motion for discretionary review that it erred when it failed to find error in
the trial court’ s finding that trial counsel’s failure to call an important witness
at trial was not unreasonable trial strategy. k`
` For' the reasons below,' we reverse the decision of the Court of Appeals '
and reinstate the trial court’s order denying Miles’s"RCrl 1 1.4_2 motion.
_ i. FAc'i‘UAL _Aim rRocEDURAL'BAcKGRoU`ND.

-Michael Teasley, a club bouncer,` was shot and killed while trying to
disperse a crowd after the club had closed for the night Miles was tried and
convicted for killing Teasley, and this Court affirmed the judgment of conviction
and sentence on direct appeal. Miles filed a pro se motion under RCr 1 1.42 to
vacate his convictions, claiming tliat‘his trial counsel was ineffective. Before us.
are four of his eleven complaints made in the RCr 1 1.42 motion: (1) the . .
admission at trial of Miles’s_riick name ““OG” or “Onginal Ga:¢_igster”;l (2) the
failure of trial counsel to objectdto testimony about a gun-found at Miles’s
d residence-that indisputably had no connection to the crime; (3) the failure of
trial counsel to object to hearsay testimony; and (4) the~failure. of trial counsel
to call Heather St. Clair as a defense witness.

The trial court conducted a series of three separate evidentiary hearings,
spanning five days, to address Miles’ s RCr 1 1. 42 allegations The trial court
ultimately denied Miles’s motion. q '

The' Court of Appeals undertook review on appeal. Th`at court determined
that the trial court erred by denying »RCr 1 1142 relief to Miles because his trial
counsel was ineffective.- Mcre specifically, the ccui,‘t found that Miles’s counsel

was ineffective on three separate instances:_( 1) the admission of'Miles’s nick

_ name “OG” or “Oiiginal Gangster’f’; (2) the failure to object to testimony about a
gun found at Miles’ s residence; and (3) the failure to object to hearsay l
testimony. ‘l`hc courtnrema'n_ded the"case to the trial court for further
' proceedings v v n
_. _ ii. ANALYsil.
A. Standard` of 'Review. l '

A ciiininal defendant has a constitutional light t_o effective assistance of
'counsel. This right is'guaranteed under the Sixth'and Fourteenth amendments
of the Constitution of the United States and ‘Sec`t'i_on Eleveii of the Kentucky ‘
4 Coi"is't:itut;ion.1 A criminal defendant is entitled to" effective assistance 'of
counsel,,but he is not entitled to perfect counsel._2

This Court reviews an ineffective assistance of counsel claim under
Stn'cltland q. liifci.`sl'iington.,3 which we adopted in G`all v. Commoriwealtlt‘* The
"Strickland standard requires Miles to prove both prongs in a_ two-part analysis.
First, Miles must show tiial-couiisel’s performance was deficient Seccnd, Miles
_'must prove that the deficiency by counsel prejudiced his defense. 5 Strickland
further elaborated that “[t]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even to address

both components of the inquiry if the defendant makes an insufficient showing

t

 

1 U. S. Const. amend. XI; U. S. Const. amend. XIV; Ky. Con_st. § 11.

2 Si'nmions v. Comm,onwealth, 191 S. W. 3d 557, 561 (Ky. 2006) (“A defendant is
not guaranteed errorless counsel or counsel judged ineffective by hindsight, but
counsel likely to render and rendering reasonably effective assistance.” (citations

omitted]].
3 Stfickland v. WaShl'ngtOT|.', 466 U. S. 668 [1984].
4 Gall v. Comn_wnw€alth, 702 S.W.2d 37 (Ky. 1985].

' 5 Strickla_n,d, 466 U.S. at 687.'

on one. In particular, a court need not determine whether counsel’s '
performance was deficient before examining the prejudice suffered by'_ the
defendant as a result of the alleged deficiencies [i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect Will often be so, that course should be followed.'°'\'s
'Proving both deficient performance and prejudice is a substantial

burdcn, especially in the context that counsel’s conduct is presumed
reasonable and effective7 Ac_cording to.-Strickland, “def`icient perforrnance”
requires error “so serious that counsel was not functioning as the ‘cl`ounsel’
guaranteed the defendant by the‘ Sixth Amendment.’JB And`to prove prejudice,'
' Miles must demonstrate that “coun'sel’s errors were so serious as to deprive
l[hiin] of a fair trial, a trial whose result is reliable.”9 Stated another way, “the' n
defendant must show that__there is a reasonable probability that,' but for
_ counsel’s unprofessional errors, the result of the proceeding would have been n
different A reasonableprobability-isa probability sufficient toiindei'rninel
confidence in the outcome.""10

v 'As the Court of Appeals in this case noted, “[A] court must indulge a
‘strong presumption’ that counsel’s conduct falls within the wide range of

reasonable professional assistance because it is all too‘easy to conclude that a

 

6_1¢11. at 697. _ ' _ _ _
v Humph.vey v. commonwealth 692 s.w..zc_i 870,'873` (1<y. 1998). - `
a _Id. ' v ' '
9 1a , .

w smeldand 466 U.s.-`at 694. _

particular act or omission of counsel was unreasonable in the harsh light of

hindsight ”1.1
As Justice ll-lugl"ies wrote in Common_wealth v.' McGorman, “When faced

' mth\`an ineffective.assistancc of counsel claim in an RCr__ 1 1.42 appeal, a .

'. reviewing court first presumes that counsel’s performance was reasonable.”12

.'F_turthermore, ‘5We _r_nust analyzed counsel’s overall performance and'the totality
- . of circumstances therein in order to»determine if the challenged conduct can

l overcome the strong presumption that counsel’s performance was

reasonable ”13

Lastly, on appellate review of a trial court’s decision to deny an RCr
1 1 .42 motion, a reviewing court will only set aside the trial co_urt’s factual
determinations if they are found `to be clearly erroneous or unsupported by
substantial evidence14 This is similar to Kentucky Rule`s of Civil Procedure'
` [CR_]_ 62`.01, which specifically states that “Findings of fact shall not be set aside
unless clearly erroneous, and due regard_shall be given to_ the opportunity of n
the trial court to'judgethe credibility of the wimesses." After review of the trial
n court order, and its findings of fact, we cannot say that its findings were

unsupported by substantial evidence in the record.

 

11 Bell v. Cone, 535 U. S. 685, 702 (2002); (citing S_tri'ckland 466 U. S. at '699) '
12 Commonwealth v. McGomuzn, 489 S. W. 3d 731, 736 (Ky. 2016] (citations
omitted). .

13 1a

. 14 See Broi`vri v. Cammionweaith, 253 S. W. 3d 490, 500 (Ky. 2008);
Commonwealth v. Anderson, 934 S. W. 2d 276, 278 (Ky.1996].

5

B.'Counsel’_s failure to object to the introduction of Miles’s alias does
not rise to the level of. ine&'ective assistance of counsel.

Milcs asserts that trial counsel was ineffective when he failed to object to

the introduction of Miles’ s ni'clciiarrie, “O.G.’_’ or “Original Gangster.f’ l

d a Durin_g cross examination of defense witness Vernon Douglas, the
Commonwealth asked about Miles’ s nickname. lBefore this question, the only
' nickname discussed was “Cat Daddy,” which had been discussed by defense
_counsel' in his opening statement When asked about Miles’ s nickname,
'Douglas responded that Miles had been known in the past as “O.G.” or
“Original Gangster;” The Coii`iiiionwealth then referred to Miles by his aliases,
“Ol`d Gangster" and “Cat Daddy”' on three separate occasions in 'closingl_
argument l .

When the Court of Appeals reviewed Miles’s ineffective assistance of
counsel claim`, as it pertained to this issue, it found prosecutorial misconduct
The court then discussed whether the misconduct was flagrant and if so,

whether that created prejudice under Strickland. l

_The parties contest whether trial counsel should have objected to
'disclosure_of the nickiia_rne. Tiial counsel iii his testimony at the RCr 1 1142
' hearing testified that in hindsight he should have objected to the introduction

of the nickname, but he failed to do ‘so because of the speed in which the v
` questions were asked and answered. The Coinmonwealth asserts that even if
trial counsel had objected to the .testimony,' the niclniames would have been

admissible to show Miles-is state of mind and motive for the shooting.

_Following the guidance provided in Strickland, we address first the'

_ n prejudice prong.15 And once again, guided by Strickla`nd, Miles must show that

the use of his alias created a _“reasonable probability that, but for counsel’ 's

- . unprofessional errors, the result of the proceeding would have been different ”16 5
Miles and the Court of Appeals cite cases that found the use of an alias , y

created so much prejudice that it created _an unfair trial. For instance,\ Un_i'ted

Stcites v._. Fanner',fin which the Sec_ond Circuit Court of -Appeals found the use'of

the d_efendant’s nickname “Murdei:’f' was`overly prejudicial. _17 In Farmer, the n

court stated, “In our prior cases, theg`overnriient’s use of a defendant’s

. nickname was ‘occasio_nal’ [or] .‘brief and isolated.’ But Far-mer’ s nickname..

was the main rhetorical trope used by the prosecution to address the jury..

-[and was used] no fewer than thirty times. ”13

l Miles’ s facts are distinct from those' in Farmer. Miles’ s nickname was

used a total of three times after it was first mentioned in the testimony of a

defense witness. The present case is a farv cry_from.the “r_hetorical trop_e~ in '
Furthermore,- Miles cites Bro_wn v. Comrr`ionwealth for the proposition

that use of a nickname that suggests criminal activity .can be` prejudicial.19 lNe-.

do notl disagree But, Miles has failed to show that the Coinmonwealth’ s use of

his nickname “Old Gangster” prejudiced his case in any way. These 520mments,

 

15 strickland 466 U.s. at 697.

15 Id. at 694.
17 United S£ates v. Farm,er, 583 F. 3d 131,146_ (2nd Cir_'. 2009}.

18 Id
"19 Bmwn v. communicater 558 s. w. 2d 599, 603 (Ky.19.77)

7

in the context of an entire trial, were de minimis. Believ`i.ng the reference to
Miles’ s nickname somehow would have changed the course of his verdict' is
speculative._ l

' In finding there lwas no prejudice, w_e find counsel was not ineffective in
' failing `to object to the introduction and isolated use of Miles’s nickname.

C. Counsel was not ineH`ective when he failed to object to testimonial
hearsay.

Next, Miles asserts that trial counsel was ineffective when he failed to
object to certain testimony from Detective Ashby, arguing that the testimony ir'i
question.was testimonial hearsay without an exception. _

Whilc on the witness stand, Detective Ashby testified that a man named
.Reggie Bumey had identified Miles from a photo pack as being the individual in
' a fight with '_I‘easley on the night of his murder-. ~Miles argues that failing to have '
Bumey testify at trial abridged his constitutional rights'to confront witnesses.
Miles further argues failing to object"to Ashby’s reference to Bumey was an
error sufficiently egregious to constitute ineffective assistance of counsel.

The Court of Appeals opinion does little in its analysis cf this issue. lt
simply`states that if an objection had been made to Detective`Ashby’s '
testimony that it would have been 'sustair`ied. While acknowledging that other
eyewitness testimony identified Miles as being the individual who fought with
Teasley earlier in the night, the Court of Appeals found that Detective Ashby’s `
testimony was “not harmless when considered in conjunction with previous l
errors....” d - d _

We cannot,agree that the testimony by Detective Ashby was of such a

nature that Miles was denied effective assistance of counsel. Once again, Miles

8

` has failed ton show prejudice Other'eyewitnesses’ testimony at trial identified
Miles as the individual who fought Teasley the night of the murder. One of
those eyewitnesses was OiH_cer Hill, who testified that he observed Miles and
Teasley' in an altercation earlier' 111 the evening and that he believed that the
same individual was the one he saw running from the scene of the shooting.

_ D. Conosel was not ineffective in failing to object to a picture of a gun 1
being displayed.

Miles argues trial counsel was ineffective when he failed to object to the
discussion and photograph of an unrelated gun found at Miles’ s residence

The Common`wea_lth referenced this gun in its opening statement, saying
'“’l`hey also found a gun under the mattress which we later found out was not
the same gun used' in the murder but he did 1n fact have a gun. ”Furthennore, '
the gun was discussed during the testimony of Detective A`shby, who admitted
on the stand that the gun found at Miles’ s residence was not the gun used to
d kill Teasley and was not connected _to the case. This is not before the .~ '
Comrnonwealth published ar picture of the gun via a projector during Detective
Ashby’s testimony. However, defense -counsel_did object when the s
Commonwealth sought to have the picture of the gun admitted into evidence.
The trial court, agreeing with defense counsel, found that the gun was d
irrelevant evidence and sustained defense counsel’ s objection. ll .

The Commonwealth argues that defense counsel did not object to the
discussion of the gun by Detective Ashby and projecting a photograph as a
deliberate trial strategy.' Emphasizing that on cross_-examination, defense
counsel was able to have Detective Ashby testify that the gun had no

connection with the murder of Te'asley, thereby strengthening Miles’s defense,

9

displaying the lack of substantive evidence_.: Miles argues that references to the _
4 gun and defense counsel’s failure to object at its mention were not only done in
error-but prejudiced Miles to the extent to be ineffective as counsels l
'l`he Court of Appeals correctly noted that weapons unrelated to the crime _
, charged are generally inadmissible20 ’l`he Ciour,t of Appeals also recognized that
. _ when"defense questioning made clear to the jury that the weapon in question 1
was`not the murder weapon, the discussion of it and the publication of the .
photograph of it _was hannless. 21 v
We agree with the trial court that the gun is irrelevant, but proving that
the introduction of the gun resulted in prejudice` is critical to lour a.nal_ysis.22
Whi_le on the stand during cross-examination by defense counsel, Detective
Ashby admitted that the gun in question was not connected Teasley’s murder.
Further, the Court of Appeals stated in pits opinion that “the jury was repeatedly 7
informed the gun was unrelated to the murder... .” _And lastly, the gun itself was
not allowed to be submitted into evidence, a fact that further dampens Miles’ s
claim of prejudice. l
Finding Miles has failed to prove prcjudice, we need not,discuss the first
prong of Stn'ckland. 23 Accordingly, we find that trial counsel was not ineffective

" in failing to object to the discussion of the gun found at Miles’ s residence.

 

20 Hanis v. commonweal¢h, 348 s. w. 3d 117, 123 24 (Ky 2o12).
21 Id. at 125_.
22 Hum,pmey, 692 s. w. 2d at s73.
23 smckzand, 466 u.s.|at 697.

‘ 10

§. Fai_lnre to call Heather St. Clair was not ineH'ective.
Lastly, Miles contends that the Court of Appeals erred when it found no

error in the trial’s court’ s ruling that defense counsel’s failure to call Heather
St. Clair as a defense witness was not ineffective representation

St., Clair was a cocktail waitress a_t the club where Teasley worked, and
she was working the night of his murder. Sh`e.was familiar with Milesand _
recognized him by sight because he was a regular at the club. St. Clair testified '
at Miles’ s bond hearing. Miles asserts that St. Clair’ s testimony would be_
directly contradictory to that of several of the Commonwealth’s' witnesses. More .
specifically, Miles asserts that St.lClair would testify that he was not wearing `
` the outfit like the one worn by the person identified as the shooter and the '
person who picked a fight with Teaslcy. n

-We must “affirniatively entertain the range of possible ‘reasons [Miles ’s]
counsel may have proceeded as [he] did. "”24 And as the Court of Appe__als noted
in its decision, failure to call St. Clair as a witness was not error. A decision
whether or.not` to call a certain witness is presumed to- be'purposefu.l trial
stratey and will not be second-guessed.25 _
' At Miles’s RCr 1 1.42 evidentiary hcaring, trial counsel testified that'he
purposely chose not to call St.,Clair to .testifyi lHe stated that he initially

l believed St.' Clair’s testimony would be helpful to the defense, but after the

bond hearing he carrie to believe that calling her as a witness at trial would be

inconsistent with the defense theory presented at tiial. Furthermore, trial

 

24 cullen v. mhalsrer, 563 U. s. 170, 196 (201 1) (quosng Pinholster v. Ayers,
590 F. 3d 651`, 692 (9111 cir. 20_09).

25 Sayior v. Comnwnwealth, 357 S. W. 3d 567, 571 (Ky. App. 2012).
‘ ' ' 1 1

counsel testified that as proof unfolded at`tiial, he believed St. Cllair’s testimony
to be less valuable than at the bond hearing because of alleged inconsistenciesf

While one can speculate‘on the possible value of St. Clair’s testimony at .
tiial, we must resist the temptation to devise trial strategy with the benefit of
hindsight Given our strong deference to a trial attorney’s decision to call
certain witnesses, and the fact that Miles did not show that failure to call St.
Clair was either deficient or prejudicial to his case, we find no error.

F. Miles i_s not entitled to a new_ti'ial. because of C_nmulative Erroi'..
Miles is not entitled to RCr 1 1.42_ relief.based on a finding of cumulative

_ error.. As the Commonwealth notes, and Miles does not`refute, we find no cases
- where cumulative error has formed the basis for RCr 11.42 relief. Cumulative
eiror may be found only when “the individual errors were themselves _
substantial, bordering, at least, on the prejudicial ”26 As in Parrish v.
Commonwealth, we reject Miles's argument of cumulative eri:'or.Q'7 Without
v establishing legitimate error in any of his arguments singly, it is nonsensical to
accept Miles’_s asertion.that their aggregation constitutes a separate ground
for relief.
III. ' 4 CONCLUIIOH.

For the foregoing reasons, we reverse the decision of the Court of Appeals

and reinstate the trial court’s order denying Miles’ s RCr 1 1-. 42 motion for relief

lfrom the judgment

 

35 Brown v. Comm.onwealth, 313_ S. W. 3d 577. 631 (Ky. 20_10}.
27 Parrr'sh `v. Commonwealth, 272 S. W. 3d 161,1_80 (Ky. 2008].

t12

' :All~ sitting-.. Minton,.C.J.; Hughes, Keller, VanMeter,` Venters and Wright,

JJ., concur. Cunningham, J., concurs in result only."'

' coUNsEL FoR APPELLANT/caoss?APPELLEE: '

Andy`Besh'ear -
Attome'y General' of Kentucky

Jaines Colenian Shackelford
Assistant Attorney General

cou`NsEL.FoR APPELLLEE/cRoss-APPELLAN§F: ' `,

. Margaret Ann_e Ivie
Assistant Public. Advocate

.13

 

§npreme Trinri of §§eii uckg'

2014- SC- 000558- DG
85
’. 2015- SC- 000321- DG

COMMONWEALTH OF KENTUCKY APPELLANT/CROSS- APPELLEE '

- ON REVIEW FROM COURT OF APPEALS
V. . CASE NO._ 2012-CA-001240 .
` JEFFERSON CIRCUIT COURT NO. 05-CR-OOO74O

TERRANCE MILES. ' ` _ APPELLEE/CROSS-APPELLANT .

ORDER DENYING PETITIOH FOR MODIFICA_TION
AND MODIFYIHG OPINION

1 The Petition for Modification, filed by the Appellee/'Cross-Appellant, of
the Memorandum Opinion of the Court, rendered March 23, 2017,-is DENIED;`
_ however; the opinion is modified and replaced with the attached opinion. The
modifications ldo not affect the holding '

All _sitting. All concur. ‘

ENTERED: Augusr 24, 2017.

 

