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R_ENDERED. MARCH 23 2017

§11111'121112 Tn1111 of `

A B HED
. enBM A
2014- SC-000558- DG

2015- sc- 000321 DDATE_[Z‘MJ.KMJZHM DC.

. COMMONWEALTH OF I{ENTUCKY APPELLA_NT/CROSS-APPELLEE

   

 

 

" ` 1 ON REV_IEW FROM COURT OF APPEALS
' V. z CASE NO. 2012- CA- 001240 '
JEFFERSON CIRCUIT COURT NO._ .-05 CR-OOO740.

'TERRANC_E MILEs ` ` APPELLEE/cRoss-APPELLANT

MEHORAHlJUH O_PINIOH OF THE COU'RT
` _ REVERsm________c _ '

Terrance Miles is currently serving `a fifty-year sentence following
convictions for the 'murder of `Michael Teasley, for iirs_t-degree wanton _ .-
endangerinent, for tampering with physical evidence, and for being a second-

degree Persistent Felony Oii`ender (PFO). Miles moved the trial court for relief
-from the judgment under Kentucky Rule of Criminal Proc_edure (RCr) 1 1. 42. l
The trial court conducted an evidentiary hearing on Teasley’ s claims, after
whichl it entered an order denying relief. -On a`pneal, the Courtof Ap_peals
_ reversed the trial courtis order. l
,` Wel granted cross-motions for discretionary review.~ The .C'ommopnwealth‘
asserts the Court of Appeals erred in its conclusion 1:hat Miles had received ~ v

ineffective assistance of trial counsel. Miles on then 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 lind error in
n the trial cour't’ s finding that trial counsel’s failure to call an important witness
'*-\

nat trial was not unreasonable trial strategy.
` For the reasons below, we reverse the decision of the Court of Appeals '
and reinstate the trial court’s order denying Miles’s'RCr.11.42 motion.
_ I. FACTUAL _AHD ll’ROCEDURAL-ABACKGROUND.

lMichael 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 that'his trial counsel was ineffective Before us.
are four of his eleven complaints made in the RCr 11.42 'rnotion: (1) the . n
admission at trial of Miles’s_nick name “OG” or “Odginal Gangster”;` (2) the
failure of trial counsel to object to testimony about a gun_found at Miles’s
- 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. l l

The‘ Court of Appeals undertook review o_n appeal. ’I'hat court determined
thatl the trial court erred by denying »RCr 1 1..42 relief to Miles because his trial
counsel was ineffective.- More specifically, the court found that Miles*s counsel

was ineffective on three separate instances: _(1) the admission of-Miles’s nick
, . 2 _ . _ .

‘ name “OG” or “Original Gangster”; (2] the failure to object to testimony about a
gun found at Miles’ s residence; and (3) the failure to object to hearsay v
testimony. '1`he court_remanded tlie'case to the trial court for further

' proceedings - - l

_' j n. ANALYsi¢.

A. Standard` of `Review. l ` 1 _
A criminal defendant has a constitutional right to lefi`ect:ive assistance of

Acounsel. This right is'guaranteed- under the S_ixth‘and Fourteenth nmendments.
of the Constitution of the Unit_ed St_ates and `Sec'tion Eleven of the Kentucky '

4 Constitution. 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'clcland v. Washington,'~" Which we adopted` 1n Gall v. Commonwealth.‘* The

‘ Strickland standard requires Miles to prove both prongs in a, two-part analysis.

First, Miles must show trial-counsel’s performance was deficient Second, Miles

_'must prove that tl'ie`deficiency by counsel prejudiced his defense.-5 Stricicland

further elaborated that “[t]here isno 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

 

' 1 U. s. const amond. xI; U. s. const amond. xiv; Ky. const § 11.

2 Simmons v. Commonwealth., 191 S. W. 3d 557, 561 (Ky. 2006] (“A defendant is
not guaranteed errorless counsel or counsel judged ineffective by hindsight, but
counsel likely t_o render and rendering reasonably eH`ective assistance.” (citations

omitted)).
3 Stn`ckland v`. Washington, 466 U. S. 668 (1984).
4 Gall v. Commonwealth, 702 S. W. 2d 3'_7 {Ky.1985).

-5 So-ioklo_nd, 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 byj 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 follo\ived."'6

ll:’roving both deficient performance and prejudice is a substantial
burden, especially in the contextthat counsel’s conduct is presumed
reasonable ‘and effective." nccording to Stn'ckland, “deficient performance”
requires error “so serious that counsel was not functioning as the fcicunsel’z
guaranteed the defendant by the Sixth Amendment."’8 And to prove prejudice,'
' Miles must demonstrate that “coun'sel’s errors were so serious as to deprive
l[hirn] of a fair trial, a trial whose resulti_s reliable.”9 Stated another way, “the' .
defendant must 'show that there is a reasonable probability that; but for
counsel’s unprofessional errors, the result of the proceeding would have been

different A reasonable probability' is a probability sufficient to undermine

confidence' in the outcome.’°l0

_ 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 Id. at 697.

7 Hurrrphrey v. Commonwealth, 692 S`. W. 2d 870, 873 (Ky.1998].
9 _Id.

9 Id.

10 S!n’ckland466 U. S at 694.

particular act or omission of counsel was unreasonable in the harsh light of
hindsight ”1.1 ' '
As Ju_stice Hu_ghe_s wrote in Comm,onwealth v. McGorman, “When faced
` with an ineffective assistance of counsel claim iri an RCr 1 1 .42 appeal, a
'. reviewing court first presumes that counsel’s performance was reasonable."’12
-'I~"T'urthermore, ‘FWe _r_nust analyze counsel’s overall performance and'the totality
. . of circumstances therein in order to-determine if the challenged conduct can
' overcome the strong presumption that counsel’s performance was
reasonable.”13 _ 1 f
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 thetrial court’s factual
determinations if they are found`to be clearly erroneous or unsupported by
substantial evidence.l‘l This is similar to Kentuck:y Rules of Civil Procedure‘
‘ (CRj 62'.01, which specifically states that “Findings of fact shall not be set aside
unless clearly err'oneous, and due regard.shall be given to_ the opportunity of .
the trial court to'judge§the credibility of the witnesses.” After review of the trial
n court order, and its f'mdings of fact, we cannot say that its findings were

unsupported by substantial evidence iii the record.

 

_ 11 sea v. cono, 535 U. s. 685 7_02 (2002); (oiang strickland 466 U. s. at~699). ~
12 Commonwaalth v. McGorman, 489 S. W. 3d 731, 736 _[Ky. 2016) [citations
omitted]. _

13 Id_

. 14 See Broi.`un v. Comm.onwealth, 253 S. W. 3d 490, 500 (Ky. 2008);
Comrnonwealth 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. ineffective assistance of counsel.

Miles asserts that trial counsel was ineffective when he failed to object to
the introduction of Miles’ s nickname, “O.G.` or “Original Gangster.”
` y Durin_g cross examination of defense witness Vernon Douglas, the
Commonwealth asked about-Miles’s nickname. lBef'ore 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 Con`imonwealth then referred to Miles by his aliases,
“Old Gangster” and “Cat Daddy” on three separate occasions in closing
argument l
When the Court of Appeals reviewed Miles’s ineffective assistance of
counsel clairn`, 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 Stn'ckland. h
The parties contest whether trial counsel should have objected to
'disclosure_of the nickna_me. Trial counsel in his testimony at the RCr 1 1;42
` hearing testified that i_n hindsight he should have objected to the introduction
of the nickname, but he failed to do so because of the speed in which the
' questions were asked and answered. The Commonwealth asserts that even if '
trial counsel had objected to the testimony,' the nicknames would have been

admissible to show Miles’s state of mind and motive for the shooting

Following the guidance provided' in Strickland, we address first the
_ prejudice prong.15 _And once again, guided by Stri'ckland, Miles must show that
the use of his alias created a _“reasonable probability that, but for counsel’s
- l unprofessional eirors, the result of the proceeding would have been difi`erent. ”16 ,

Miles and the Court of Appeals cite cases that found the use of an alias n n
created so much prejudice that it created an unfair trial. For instance, Unr`ted
States v_. Famen-in which the Second Circuit Cou_rt of-Appeals found the use"of`
the defendant’s- nickname “Murder_’_’ was'overly prejudicial _17 ln Farrrler, the nn t
court stated, “‘In our prior cases, the goveninient’s use of a defendant’s
. nickname was ‘occasi_onal’ [or] .'brief and isolated."But Farmer’s nickname ._..
was the main rhetorical trope used by,the prosecution to address the jury .`..
-[and was used] no fewer than thirty times. ”18 t

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 far cry_from"the “rhetorical trop_c- in,'
Farl'neri 4 _ d 7 a

Furthermore,' Miles cites Brown ll. Commonwealth for __the proposition
that use of a nickname that suggests criminal activity can be` prejudicial.19 iJVe.
do not disagree But, Miles has failed to show that the Commonwealth’ s use of

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

 

15 s¢_nolcland 466 u.s. or 697.

15 Id at 694. .
17 Unit_ed States v. Farmer, 583 F. 3d 131, 146 (2nd Cir. 2009).

18 _fd
'19 lawton o. commonwealth 558 s. w. 2d 599, _60"3 {Ky. 1977).

7

s

in the context of an entire trial, were de minimis. Believing the reference to
Miles’s niclmame somehow would have changed the course of his verdict is
speculative._ .

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

' c. counsel was not ineireecive when he failed co object to teetimoniai
hearsay. ` ‘

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

AWhile on the witness 'stand, Detective Ashby testified that a man named
'Reggie Burney had identified Miles from a phote pack as being the individual in
' a fight with Teasley on the night of his murder-. -Miles argues that failing to have '
Burney testify at trial abridged his constitutional iights'to confi‘ont witnesses.
Miles further argues failing to object`to Ashby’s reference to_ Bumey was an
error selliciently egregious to constitute ineffective assistance of counsel.

The Court of Appeals opinion does little in its analysis of this issue. It
simply.states that if an objection had been made to Detective`Ashby’s '
testimony that it would have been sustained 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 1
errors....” n ' l

We cannot.agiiee 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'eyewitness_es’ testimony attrial identified
Miles as the individual who fought Teasley the night of the murder. _One of
those eyewitnesses was th_eer Hill, who testified that he observed Miles and
Teasley' in a'n altercation earlier' in the evening and that he believed that the

. same individual was the one he saw running from the scene of the 'shooting.

_ D. Couns.el was not ineEective in failing to object to a picture of a gun y
being displayed

Miles argues trial counsel was ineffective when he failed to object to -t.he`
discussion and photograph of an unrelated gun found at Miles’s residence

The Commo`nwea_lth referenced-this gun in its opening statement, saying

"‘They also found a gun under _the mattress which we later found out was not
the same gun used' in the murder but he did in fact have a gun. ”Furtherm`ore, l
the gun was discussed during the testimony of Detective Ashby, who admitted
on the stand that the gun found at Miles‘s.residence was not the gun used to

l kill Teasley and was not connected to the case. This' is not before the __'
Commonwealth published a picture of the gun via a projector during Detective ,
Ashby’s stes`timony. However, defense counsel did object when the
Commonwealth sought to have the picture of the gun admitted into evidence.
_The trial court, agreeing with defense counsel, found that the gun was
irrelevant evidence and sustained defense counsel’s objection. ’

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 strateg.' Emphasiaing that on crossoexamination, defense
counsel was able to have l)etective Ashby testify that the gun had ne
connection with the murder of Teasley, thereby strengthening Miles’s defense,

-9

displaying the lack of substantive evidencel lVliles argues that references to the .
_ 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 counsel.i

'i`he _Court of Appeals correctly noted that weapons unrelated to the crime t

, charged are generally inadmissible20 'l`he lC.`ourt of Appeals also recognized that

. _ when'defense questioning made clear to the jury that the weapon in question -
was'not the murder weapon, the discussion of it and the publication of the .
photograph of it was hairnless.21

We agree with the trial court that the `gun is irrelevant, but proving thatl
the introduction of the gun resulted in prejudice is critical to ‘our anal_ysi¢.22
While on the sta__nd during cross-examination by defense counsel, Detective
Ashby admitted that the gun in question was notl connected Teasley’s murder.
Furt;her, the Court of Appe_als stated in its opinion that “the jury w.as repeatedly
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.

Finding Miles has failed to prove prejudiee, we need not discuss the first
prong of Stlickland. 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 Ham'e v. commonwealth 348 s. w. 3d 117, 123- 24 {Ky. 2o12).
21 Id at 126_.
22 Hampluey, 692 s. w. 2d at 373.
23 slnoleland, 466 u.s.lee 697.

' " 10

E. Fai_lure to ca11 I-Ieath_sr St. Clair was not ineffective
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 at the club where Teasley worked, ’a_nd
she was working the night of his murder. Sh`e was familiar with Milesand
recognized.hir_n by sight because he was a regular at the club. St. Clair testified .
at Miles’s bond hearing. Milel"_asseijts that St. Clair’s testimony would be_ v
directly contradictory to that of several of the Commonwealth’s' witnesses. More

specifically, Milesl asserts that St. Clair 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 Teasley. .

-We must “affirrristively entertain the range of possible ‘reasons [Miles ’s]
counsel may have proceeded as [he] did. ”’24 And as the Court of Appeals 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 purposeful trial
strategy and will not be second-guessed.25 .

h At Miles’s RCr 1 1.42 evidentiary hesring, trial lcounsel testified tl'iat`he
purposely chose not to call St.,Clair to -.testify._ `He stated that he initially

l believed St., Clair’s testimony would be helpful to the defense, but after the
bond hearing he came to believe that calling her as a witness at trial would be

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

 

24 Cullen v. R'nholster, 563 U. S. 170, 196 (20l1) [quoting P£nholster v. Ayers,
590 F. 3d 651`, 692 '(9¢1_1 cir. 20_09]._

25 Saylor v. Commonwealth, 357 S. W. 3d 567, 571 (Ky. App. 2012}.
" ` l l

counsel testified that as proof unfolded a`t`trial, he believed St. Clair’s testimony

to be less-valuable than at the bond hearing because of alleged inconsistencies,.
» While one can speculate'on the possible value of St. Clair’s testimony at

trial, we must resist the temptation to devise trial strategy with the benefit of

hindsight Given our strong deference to a trial attomey’s decision to call

' certain _witnesses, and the fact that Milesdid not show that failure to call St.

Clair was either deficient or prejudicial to his case, we find no error. d

F. Miles i_s not entitled to a new_trial. because of Cumulative Error..
Miles is _not entitled to RCr 11.42 relief.based on a finding of cumulative

_ erro_`r._i_\s the Cornmonwealth notes, and Miles does not refute, we find no cases
where cumulative error has formed the basis for RCr- 11.42 relief. Cumulative
error may be found only when “the individual errors were themselves

substantial, bordering, at least, on the prejudicial ”26 As` in Pariish v. .
Commonwealth, we reject Miles’s argument of cumulative error.27 `Wit.hout
establishing legitimate error in any .of his arguments singly, it is nonsensical to `
accept Miles’s assertion-that their aggregation constitutes a separate gound
for relief. _

n III. ` l CONCLUSION.

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

from the judgment

 

" 26 Broum v. commonwealth 313, s.w.sci 577.' 631 (Ky. 20_10).
27 Pom'sh o. commonwooiti'i, 272 s.w.sd 161, 130 (iry. 2008).4
' ‘ 12 `

' __'A]l' sitting. Minton,.C.J.; Hughes, Keller, VanMeter, Venters and Wright,

..lJ., concur. Cunningham, J., concurs in result only.-

' coUNsEL FoR ABPELi,ANr/caoss¢APPELLEE: "

Andy Besh'ear
Attorne'y General of. Kentucky

James coleman shackelford
Assist;ant Attorney General

coUNsEL-FOR APPELLEE/caoss-APPELLAN§F: ~ _

. Margaret Ann_e Ivie .. "
Assist_ant Public. Advocste

.13

 

§upreme Triurf of §§eiii uckg

2014- SC- 000558- DG
85
2015_- SC 000321-DG

COMMONWEALTH OF KENTUCKY APPELLANT/ CROSS-APPELLEE '

- ON REV]EW FROM COURT OF APPEALS _
V. . CASE NO, 20 12-CA-OO 1240 .
° JEFFERSON CIRCUIT COURT NO. 05-CR-00074O

TERRANCE MILES, ' ` l APPE_LLEE/CROSS_-APPELLANT` _

ORDER DENYING PE'I`ITION FOR MODIFICATIOH
ARD MODIFYING OPINION

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

All sitting. All concur. h

ENTERED: Augusc 24, 2017.

 

