Haight v. Com.

• Decision Date: 26 April 2001
• Docket Number: No. 1998-SC-0931-MR.,1998-SC-0931-MR.
• Parties: Randy HAIGHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

41 S.W.3d 436

Randy HAIGHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-0931-MR.

Supreme Court of Kentucky.

April 26, 2001.

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Daniel T. Goyette, Jefferson District Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Jefferson District Public Defender, Louisville, Counsel for Appellant.

A.B. Chandler III, Attorney General, Susan Roncarti, Assistant Attorney General, Kent T. Young, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

WINTERSHEIMER, Justice.

This appeal seeks post-conviction relief from an order denying Haight a hearing on his RCr 11.42 motion, denying him an opportunity to amend or supplement his motion, denying a request for discovery, denying him funds for experts, as well as denying the motion itself.

Haight has been the subject of three published Opinions of this Court. His first conviction was reversed by a majority of this Court in Haight v. Commonwealth, Ky., 760 S.W.2d 84 (1988). Subsequently, Haight sought a ruling that would require the Commonwealth not to seek the death penalty upon retrial. This Court resolved that issue against him in Haight v. Williamson, Ky., 833 S.W.2d 821 (1992). After the case was removed from Garrard County to Jefferson County and a special judge appointed, Haight was again convicted of two intentional murders and sentenced to death. He was also sentenced to two concurrent terms of twenty years in prison for two counts of first degree robbery and five years imprisonment for possession of a handgun by a convicted felon. The conviction and sentences were affirmed in Haight v. Commonwealth, Ky., 938 S.W.2d 243 (1996).

In this RCr 11.42 appeal, Haight raises twelve issues and identifies as one of the more significant issues, the question of whether he was entitled to an evidentiary hearing on his motion. The essential facts are that after having escaped from a county jail, and in the course of committing first-degree robbery, Haight killed two victims in a parked car by inflicting multiple gunshot wounds upon them. Haight admitted at trial that he killed the two people and moved their car to enable him to continue his flight. This Court has reviewed each of the twelve arguments presented on appeal.

We believe it is valuable to again set out the standard of review of claims raised in a collateral attack under RCr 11.42, alleging ineffective assistance of counsel at the original trial. Such a motion is limited to the issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be relitigated in these proceedings by simply claiming that it amounts to ineffective assistance of counsel. Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998); Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990) and Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993).

The standards which measure ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985); Sanborn, supra. In order to be ineffective, performance of counsel must be below the objective standard of reasonableness and so prejudicial as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992). The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory. Morrow, supra. The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983).

In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial.

In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968). Even when the trial judge does conduct an evidentiary hearing, a reviewing court must defer to the determination of the facts and witness credibility made by the trial judge. Sanborn; McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996).

I. Lack of Evidentiary Hearing

Haight filed a 55-page motion to vacate the judgment pursuant to RCr 11.42 on October 14, 1997. The Commonwealth responded to each claim and indicated that there were no grounds which would warrant an evidentiary hearing. In any event, on March 16, 1998, a hearing was held to consider issues such as the discovery motion and the motion to amend. On September 9, 1998, the trial judge entered an order denying the RCr 11.42 motion and the discovery motion and also declined to have any ex parte hearing for expert funding. During this process, the trial judge entered an order stating that the March 16th hearing was for the purpose of determining whether the matters in the RCr 11.42 motion required a hearing. The trial judge asked counsel during the March 16th hearing, what claims he planned to submit in an amendment and defense counsel indicated that he could not state with specificity what those issues would be.

An evidentiary hearing is not required to consider issues already refuted by the record in the trial court. Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery. Sanborn, citing Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993); Stanford, citing Skaggs v. Commonwealth, Ky., 803 S.W.2d 573 (1990), stands for the proposition that even in a capital case, a RCr 11.42 motion is not automatically entitled to receive an evidentiary hearing. Sanborn states in pertinent part, "An evidentiary hearing is not required about issues refuted by the record of the trial court ...." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), supported the conclusion that an evidentiary hearing is not always required in an ineffective assistance of counsel claim.

Haight was not entitled to a hearing on the motion, and he was not denied a full and fair opportunity to present his claim. As stated in Bowling v. Commonwealth, Ky., 981 S.W.2d 545 (1998), citing Stanford, "If the record refutes the claims of errors, there is no need for an evidentiary hearing."

Many of the claims of Haight have already been raised and disposed of on direct appeal and are not to be heard now under the ruse of ineffective assistance of counsel. Some of the allegations are based on speculation or are not pled with the degree of particularity required by RCr 11.42(2). Haight failed to prove prejudice on any of the claims. He received a fair trial and is not entitled to an evidentiary hearing. He had a complete opportunity to present all of his claims which he did in a lengthy and detailed RCr 11.42 motion accompanied by a hundred pages of exhibits. An examination of these documents indicates that the trial judge was correct in determining that no valid claims were presented. The trial judge was also correct when he determined that the sentence was not constitutionally invalid for lack of due process, for ineffective assistance of counsel or for any other reason ascertainable by the trial court.

There is no indication that Haight was denied due process under either the federal or state constitution. His motion raised numerous factual issues about defense counsel's failure to properly investigate, present relevant and important evidence, refusal to carry out the wishes of the defendant, failure to seek remedies for prejudicial occurrences at trial and failure to raise and preserve errors during and after trial. None of his arguments are persuasive.

The post-conviction relief afforded by this rule is not a substitute for appeal and does not permit review of alleged trial errors which fall short of a denial of due process. Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967). Clearly, the trial judge was able to resolve the issues from the face of the record or determine that the allegations, even if true, were not sufficient to invalidate the convictions. Wilson v. Commonwealth, Ky., 975 S.W.2d 901 (1998). It should be remembered that the special judge who presided over the RCr 11.42 proceedings was the same judge who presided over the trial.

As noted in Sanborn, the collateral attack authorized by RCr 11.42, is limited to issues that were not and could not be raised on direct appeal. Any issue raised and rejected on direct appeal may not be relitigated in such proceedings by claiming that they amount to ineffective assistance of counsel. Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990); Stanfor...