McQueen v. Com.

• Decision Date: 25 September 1986
• Docket Number: No. 85-SC-867-TG,85-SC-867-TG
• Citation: 721 S.W.2d 694
• Parties: Harold McQUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 694

721 S.W.2d 694

Harold McQUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 85-SC-867-TG

Supreme Court of Kentucky.

Sept. 25, 1986.

Rehearing Denied Jan. 22, 1987.

Linda K. West, Randall L. Wheeler, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

David L. Armstrong, Virgil W. Webb II, Penny R. Warren, Asst. Attys. Gen., Thomas J. Smith, III, Sp. Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from an Order overruling an RCr 11.42 motion alleging ineffective assistance of counsel and challenging a conviction of murder and robbery and a sentence of death.

The murder occurred in 1980 during an armed robbery of a convenience grocery store. The store clerk was shot in the face and then in the back of the neck. Evidence of guilt was overwhelming. We affirmed the conviction in McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984).

The United States Supreme Court refused to review the case. Thereafter a motion pursuant to RCr 11.42 was filed. A two-day hearing was conducted, and in 1985, the trial judge entered an extensive 27-page order overruling the motion. This appeal followed.

At trial McQueen was represented by appointed counsel, Jerome Fish, who has practiced law since 1957. McQueen was jointly tried with his half-brother Burnell, who was represented by retained counsel, John Lackey.

This case is controlled by the Federal case on the constitutional right to effective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A leading Kentucky case is Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985). The twin standard for such review is the proper measure of attorney performance or simple reasonableness under prevailing professional norms and whether the alleged errors of the attorney resulted in prejudice to the accused. The defendant must demonstrate that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the trial would have been different.

McQueen now argues that he was deprived of his Sixth and Fourteenth Amendment rights to the Federal Constitution and Section Eleven of the Kentucky Constitution because counsel did not advise him that he had a right to testify at the penalty phase of his trial; that his attorney relied on the attorney for his co-defendant whose interests were conflicting to take care of any pretrial motion practice and to interview witnesses; that counsel failed to seek a separate trial even though the defenses were allegedly antagonistic; that counsel failed to investigate the composition of the grand and petit juries; and that counsel failed to object to the trial court's reception of allegedly extra-judicial communications concerning a juror's views of the death penalty and of failing to poll the jury in that respect. He also argues that he was denied due process of law by the trial court's refusal to allow him to present evidence even by avowal concerning the juror's discharge; that the trial court's prohibition against further contact with jurors without permission of the court was improper; that he was denied a fair trial by the refusal of the trial court to consider the testimony of Richard Recever, a purported expert in the trial of death penalty cases; and that the trial judge improperly excluded evidence of prior inconsistent statements of trial defense counsel; and that it was error for the trial court to refuse to order the compulsory attendance of out-of-state witnesses; that it was error to refuse to order the provision of funds for necessary expert witnesses for the RCr 11.42 hearing and that the prosecution was improperly permitted to cross-examine McQueen on matters not covered on direct and on matters that were incriminating.

Strickland, supra, provides that the defendant must show that counsel's performance was deficient. This requires errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. 466 U.S. at 687, 104 S.Ct. at 2064, 2065. Also, the defendant must show that counsel's deficient performance prejudiced the defense i.e., that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.

McQueen argues that Fish rendered ineffective assistance of counsel by failing to adequately advise him of his right to testify at the penalty phase of his trial, and had he been adequately advised of this opportunity, he would have testified as to his history of drug abuse and to the host of social and psychological maladies that beset him as a result of his drug abuse.

McQueen readily admits that he was fully advised by Fish and the trial court of his right to testify, and now, McQueen says that he understood his right to testify at the trial but that he did not specifically know that he could testify during the penalty phase of the bifurcated proceedings. At the time of trial McQueen unequivocally refused to testify and did not thereafter inform counsel that he wished to testify.

Counsel for McQueen asks Attorney Fish, "Did you discuss the possibility of McQueen testifying at trial?" Fish responded, "I discussed that possibility with Harold several times and Harold absolutely ... did not want to testify and his brother was not going to testify; We discussed that several times." Counsel for McQueen then asked, "when did you have those discussions?" Fish answered. "why ... My gosh ... all during the period." Fish was not asked the single question upon which McQueen now bases his appeal and his argument that the evidence is unrefuted to support his contention. McQueen contends that the record of the RCr 11.42 hearing shows that Fish never stated that he advised McQueen that he had a right to testify at the penalty phase. The reason Fish never stated that had so advised McQueen is that Fish was never asked such a specific question at the 11.42 hearing. Under these circumstances the failure to specifically advise McQueen of his right to testify at the penalty-phase did not constitute ineffective assistance of counsel.

The totality of the circumstances surrounding the original trial and the subsequent RCr 11.42 hearing provides ample evidence of the trial court's opportunity to see the witnesses and observe their demeanor on the stand, and recognition must be given to its superior position to judge their credibility and the weight to be given their testimony. Kotas v. Commonwealth, Ky., 565 S.W.2d 445 (1978).

The trial court had a right to resolve the credibility issue against appellant, and having found no abuse of the trial court's discretion, the first prong of the Strickland test is not met.

Secondly, McQueen has failed to establish prejudice required by Strickland. His proposed testimony sheds no light on the facts of the case and the defense of intoxication was established through other witnesses.

McQueen next contends that attorney Fish rendered him ineffective assistance by counsel's abdication of his independent professional responsibility to his client.

McQueen argues that Fish relied on counsel for McQueen's co-defendant Burnell for the pretrial motion practice and for the interviewing of potential witnesses. McQueen asserts that Fish relied too much on attorney Lackey, and that this reliance prejudiced his defense. Lackey's strategy in defense of Burnell was to convince the jury that his client was not the "triggerman." It is this strategy that presents the conflict of interest that McQueen claims to be unconstitutionally prejudicial.

The conduct complained of by McQueen does not amount to an abrogation of counsel's duty to act as McQueen's personal advocate. The testimony was that Lackey and Fish agreed to have Lackey submit pretrial motions to the court which would be joined by Fish and be equally binding on each defendant. Further, the trial court allowed that any benefit arising from the pretrial motion of one party would inure equally to the other co-defendant. This conduct on the part of Fish does not indicate a sacrifice of McQueen's interests, nor does the testimony indicate that Fish in any way deferred to Lackey's judgment to the detriment of McQueen.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) does not support McQueen's contention that prejudice to the defendant need not be demonstrated where a conflict of interest actually affects the adequacy of representation and that McQueen, therefore, need not prove prejudice. See also, Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Culyer, supra, involved multiple representation as did Glasser, supra. In Glasser, the court held that until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance of counsel. See Glasser, at 72-75, 62 S.Ct. 457, 465, 467, 86 L.Ed. 680. This proposition is reaffirmed in Cuyler. McQueen fails to establish that his counsel actively represented conflicting interests. There is no evidence of deficiency in Fish's performance. McQueen fails to point out any motion that may have benefited him that Fish failed to file because of his alleged over-reliance on Lackey, nor is there any evidence of any unpreparedness on the part of Fish with regard to any witness. In short, there is no showing that Fish made errors so serious that he was not functioning as the "counsel" guaranteed McQueen by the Sixth Amendment. There is also no showing of prejudice to the defense. Strickland, supra.

It is worth noting that the defendant asserted intoxication as his defense. It is uncontroverted and the record bears witness to the fact that Fish was prepared for trial and that witnesses were called by the defense to establish McQueen's intoxication.

McQueen's third contention is that attorney Fish rendered him ineffective assistance of counsel by failing...