Baze v. Com.

• Decision Date: 20 April 2000
• Docket Number: No. 99-SC-0028-MR.,99-SC-0028-MR.
• Parties: Ralph S. BAZE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

23 S.W.3d 619

Ralph S. BAZE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 99-SC-0028-MR.

Supreme Court of Kentucky.

April 20, 2000.

Rehearing Denied August 24, 2000.

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Timothy T. Riddell, Milton C. Toby, Lexington, for appellant.

A.B. Chandler III, Attorney General, David A. Smith, Assistant Attorney General, Paul D. Gilbert, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.

GRAVES, Justice.

Appellant, Ralph S. Baze, Jr., appeals to this Court as a matter of right from the Rowan Circuit Court's denial of his RCr 11.42 motion seeking the vacation of his murder convictions and death sentences. The facts of this case are set forth in our opinion affirming Appellant's two death sentences on direct appeal. Baze v. Commonwealth, Ky., 965 S.W.2d 817 (1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998).

The trial court denied Appellant's RCr 11.42 motion, as well as a motion to reconsider, without an evidentiary hearing. Accordingly, our review at this time is confined to "whether the [RCr 11.42] motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967).

Appellant argues that the trial court's summary dismissal of his motion without a hearing denied him meaningful post-conviction review. Further, Appellant sets forth seven allegations of ineffective assistance of counsel which he claims precluded him from receiving a fair trial: (1) counsel's failure to exercise all nine peremptory strikes in jury selection; (2) inadequate pre-trial investigation to locate available mitigation witnesses; (3) failure to object to change of venue; (4) failure to provide pre-trial counseling; (5) failure to move for a mistrial or continuance; (6) inappropriate comments in closing arguments; and (7) failure to object to police officers' presence during trial.

I. TIME FOR PREPARATION OF RCr 11.42 MOTION

Appellant correctly states that although the Due Process Clause of the United States Constitution does not require states to provide a mechanism for post-conviction relief, Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), when a state chooses to do so the courts must construe and interpret available remedies in a manner which accords with the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Appellant argues, however, that the post-conviction scheme in Kentucky does not provide a uniform process for death row inmates to meaningfully develop and present their RCr 11.42 issues. Citing his case as an example of the disparate treatment of death row inmates, Appellant notes that his conviction became final on April 20, 1998, when the United States Supreme Court denied certiorari. An execution warrant was thereafter signed by the Governor on May 5, 1998, and Appellant's execution was scheduled for June 5, 1998. Appellant contends that upon the signing of the execution warrant, the three-year statute of limitations contained in RCr 11.42 and the one-year time period imposed under the AEDPA¹ became irrelevant, and the filing of an RCr 11.42 motion, however incomplete, was necessary to stay his execution.

Appellant's argument with respect to the need for additional time to prepare and file an RCr 11.42 motion is virtually identical to the argument raised and rejected in Bowling v. Commonwealth, Ky., 926 S.W.2d 667, 670 (1996), cert. denied, 517 U.S. 1223, 116 S.Ct. 1855, 134 L.Ed.2d 955 (1996), in which we stated:

We are aware of the complexities involved in preparing an RCr 11.42 motion that will adequately address any and all legal challenges a defendant may have. The rule states that the motion "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42. Moreover, any possible grounds that could have been raised will be lost if not presented in the same proceeding. Id. These requirements must be met or the motion may be summarily dismissed.

It is very clear that any defendant is entitled to a review of the conviction and death sentence by the Kentucky Supreme Court and the United States Supreme Court. KY CONST. § 110; KRS 532.075; U.S. CONST. art. III. Further, a defendant is entitled to pursue post-conviction remedies, and appeal, subject to the rules of this Court. Coupling the availability of these procedures with the gravity of the punishment involved, it is mandatory that a defendant raise all issues without delay. In recognition of the need for both speed and specificity, we hold that an RCr 11.42 motion must be filed in an expeditious manner and is subject to amendment, if appropriate, with leave of court. Due to the unquestioned right of defendants to have their contentions decided by a court, "leave [to amend] shall be freely given when justice so requires." CR 15.01.

The Department of Public Advocacy provided Appellant continuous competent counsel since the commencement of charges against him. Appellant had over fourteen months from the issuance of this Court's opinion affirming his conviction to prepare an RCr 11.42 motion. Although he argues that new witnesses were identified and "a comprehensive review of [his] medical history was undertaken for the first time," Appellant fails to identify a single issue he would have raised but for the time constraints. Reviewing federal appellate courts clearly expect work on a condemned prisoner's habeas petition to commence upon this Court's announcement of its opinion affirming the denial of RCr 11.42 relief. See In re Parker, 49 F.3d 204, 212 (6th Cir.1995). We have expressed a similar expectation where the next step in the attack on the judgment is from direct appeal to RCr 11.42. Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 909 (1998), cert. denied, 526 U.S. 1025, 119 S.Ct. 1266, 143 L.Ed.2d 361 (1999). Therefore, we "decline Appellant's invitation to revisit this issue." Bowling v. Commonwealth, Ky., 964 S.W.2d 803, 804 (1998).

II. COUNSEL'S FAILURE TO EXERCISE PEREMPTORY CHALLENGE

Appellant argues that his trial counsel was constitutionally deficient in negligently failing to exercise a ninth peremptory challenge available to the defense. As a result, a correctional officer the defense had intended to strike was allowed to serve on the jury, and a juror "who might have been disinclined to impose the death penalty" was removed by the trial court as if he was the ninth juror struck.

On direct appeal, we held that the trial court properly denied Appellant's request to use his ninth peremptory strike, as this request was made after Appellant's counsel had been furnished a list of the Commonwealth's intended peremptory challenges.

"Peremptory challenges shall be exercised simultaneously ...," RCr 9.36(2), and "[n]o prospective juror may be challenged after being accepted unless the court for good cause permits it." RCr 9.36(3). Thus, when Baze returned his list containing only eight peremptory challenges, his right to a ninth peremptory challenge was extinguished. Mitchell v. Commonwealth, Ky., 492 S.W.2d 878 (1973). One obvious reason for this rule is to preclude a party from saving his last peremptory challenge until after he has examined the opposing party's list to insure that he does not waste a peremptory challenge on a juror who also has been challenged by the other party.

Baze, supra, at 825. A similar claim was rejected by the Sixth Circuit in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996), where the ninth peremptory was lost not through omission, but through counsel's use of the challenge to remove a juror who, according to McQueen, should have been stricken for cause in the first place.

There is no constitutional right to peremptory challenges, see Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and there is no showing that had there been one more peremptory available, it would have had any effect on the trial at all, let alone that the lack of a peremptory (because it was used on Leo Johnson) resulted in an unconstitutionally biased jury. It is insufficient simply to claim that, had there been another peremptory available, a different juror would have been excluded, and the result might have been a more favorable jury for McQueen. In other words, it is not enough for a defendant to say "I would have been better off if ..." He must demonstrate that judicial or prosecutorial action (or inaction) resulted in a constitutional violation, not a tactical or strategic disadvantage. The constitution is not designed to afford either party a right to the most advantageous tactical or strategic situation possible. It is designed to insure that a person receives a fair trial by an impartial jury.

McQueen, supra, at 1320-1321.

Appellant argues that in this case, trial counsel's failure to exercise the ninth peremptory challenge was an oversight and cannot be excused under the guise of "trial strategy." Moreover, he contends that he was clearly prejudiced by trial counsel's error, as the correctional officer voted to convict him as well as sentence him to death.

Even assuming, however, Appellant's theory, this Court has repeatedly held that "[a]n issue raised and rejected on direct appeal may not be relitigated ... by claiming that it amounts to ineffective assistance of counsel." Sanborn, supra. Notwithstanding this fatal procedural deficiency, Appellant's claim also fails on its substantive merits.

The entirely speculative and self-serving assertion that, but for counsel's negligence, Appellant would have used the ninth challenge to strike the correctional officer, thereby altering the outcome of the trial is convenient...