Moore v. Com.

• Decision Date: 19 November 1998
• Docket Number: No. 97-SC-79-MR,97-SC-79-MR
• Citation: 983 S.W.2d 479
• Parties: Brian Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 479

983 S.W.2d 479

Brian Keith MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 97-SC-79-MR.

Supreme Court of Kentucky.

Nov. 19, 1998.

Karen Shuff Maurer, Margaret F. Case, Department of Public Advocacy, Frankfort, William Yesowitch, Frockt & Klingman, LLP, Louisville, Counsel for Appellant.

A.B. Chandler III, Attorney General, Connie V. Malone, Paul D. Gilbert, Assistant Attorneys General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

STUMBO, Justice.

Appellant, Brian Keith Moore, appeals the denial of his RCr 11.42 and CR 60.02 motions to vacate his convictions and sentence of death for murder, kidnapping, and robbery.

Appellant has twice been convicted and sentenced to death for the murder, kidnapping, and robbery of Virgil Harris, a seventy-seven-year-old man, in 1979. This Court reversed Moore's first conviction and remanded for a new trial. Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982). Moore was retried in October 1984, and was again convicted and sentenced to death. This Court affirmed that conviction and sentence in Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 774 (1990).

In September 1990, Moore filed a motion, pursuant to RCr 11.42, alleging ineffective assistance of counsel in his second trial. After numerous delays, an evidentiary hearing on the RCr 11.42 motion began on September 6, 1995. On October 2, 1995, Appellant filed a CR 60.02 motion for a new trial based on newly discovered evidence, and the court permitted him to present testimony in support of this motion during the ongoing RCr 11.42 hearing. In January of 1997, the Jefferson Circuit Court denied both the RCr 11.42 and the CR 60.02 motions. Appellant now appeals that denial to this Court as a matter of right.

Appellant has raised thirty-one alleged instances of ineffective assistance and newly discovered evidence which he insists require us to vacate his convictions and/or sentence and to grant him a new trial. While we have examined all of the issues raised both during oral argument and in Appellant's brief, we will discuss only those which have any substance. We have found those issues not discussed herein to be without merit.

Because the facts of this particular case have been discussed in detail in the prior two published opinions, Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982) and Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1989), we will not rehash those facts here. Only those facts essential to a full understanding of this opinion will be addressed, as needed, throughout our discussion.

We begin by setting forth the standard under which all claims of ineffective assistance of counsel must be analyzed. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court announced the now familiar two-pronged test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Strickland requires a strong presumption that counsel acted reasonably and effectively:

Judicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

....

[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95 (citations omitted).

Appellant's first allegation of ineffective assistance of counsel is by far the most troubling of all the issues raised. During both his first and second trial, Appellant's primary strategy was to create doubt in the jurors' minds by pointing the finger at another possible suspect, Appellant's friend, Kenny Blair. Blair, however, had an alibi for his whereabouts close to the time the crime was committed--he claimed he was getting his driver's licence in front of several witnesses. Blair testified that he was at the driver's license office, thirteen miles away from the scene of the victim's abduction, as early as 11:30 a.m. and that he had returned home about noon. Eyewitnesses placed the time of the abduction at approximately 11:45 a.m. During Appellant's second trial, in 1984, Doris Riddle, an employee of the license bureau, testified that she recalled waiting on Blair and his girlfriend in the license office sometime between 11:00 a.m. and 12:30 p.m. on the day in question, thus shoring up Blair's alibi.

The problem with Riddle's testimony is that it was inconsistent with her earlier statement to an investigating officer, made just three days after the murder occurred. In her statement to the officer, Riddle stated that she could not recall the exact time that she had seen Blair in the license office. Furthermore, another employee of the license bureau, Faye Thomas, told the detective (three days after the murder) that she had gone to lunch between 1:00 and 1:45 p.m and that when she returned, her co-workers told her about a couple (Blair and his girlfriend) who had been in the office while she was gone. All of this information was available to Appellant's counsel by way of the police report in his possession, yet counsel failed to spot the inconsistencies between the report and Riddle's testimony.

Appellant now argues that by failing to use the information in the police report to impeach Riddle, trial counsel permitted Riddle's testimony to stand unscathed, thus devastating Appellant's "Kenny Blair did it" defense and eliminating any doubt in the jurors' minds about Appellant's guilt. Furthermore, if the defense had called Faye Thomas to the stand in its case in chief, not only would her statement have impeached Riddle's testimony, but it also would have confirmed Appellant's version of events--that Blair abducted and murdered the victim, then gave Appellant the victim's car and asked him to drive it to another county while Blair went to get his driver's license (thus placing Blair in the license bureau around 1:00 p.m.).

The Commonwealth argues that Appellant's complaints amount to "Monday morning quarterbacking" and that his insistence that counsel's performance on this issue was ineffective has merit only with the benefit of hindsight. Defense counsel had no reason to believe Riddle's testimony would be so crucial to the Commonwealth's case because Riddle was not an eyewitness to the crime and could not corroborate any of Appellant's claims. More importantly, counsel had no way to anticipate Riddle's testimony at trial, five years after the murder, would be so much more specific than her statement to the officer immediately following the crime. Thus, defense counsel had no reason to prepare a rebuttal to those inconsistencies. Likewise, without knowledge that Riddle's testimony would make time a crucial issue in the case, the defense had no reason to anticipate the need to call Thomas to the stand to corroborate Appellant's version of the timing at issue.

We believe this explanation too readily dismisses Appellant's concerns. Based on the evidence introduced in Appellant's first trial, counsel surely knew that Blair's involvement in the crime would be the a crucial issue in the second trial, and that the timing of Blair's presence in the license office was vital to the defense's attempt to break his alibi. Though we agree counsel had no way to know that Riddle's testimony would be so specific, and thus had no way to anticipate the need to impeach her, we believe counsel could and should have done more to impeach her after she testified to the specific times. This is especially true given the fact that counsel had Riddle's previous statement to the detective in his hands while he was cross-examining her, yet never once asked her about her prior inconsistent statement. Furthermore, we can discern no reason which might be labeled "trial strategy" for not preparing to call Faye Thomas to the stand to confirm Appellant's version of the timing of events. In short, we find counsel's performance on this issue to be deficient.

Having satisfied the first prong of Strickland, Appellant must now overcome the second prong, that of showing counsel's deficient performance prejudiced his case to such a degree that it cannot be said Appellant received a fair trial. Stated another way, Appellant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. It is here that Appellant's argument must fail.

Although Riddle's testimony did, to some extent, bolster Blair's alibi, it did not render that alibi air-tight. Riddle testified that she recalled seeing Blair in the license office between 11:00 a.m. and 12:30 p.m. Thus, Blair could have been in Riddle's office as early as 11:00 a.m., stayed for several minutes, and still have had time to arrive at the site of the abduction around 11:45 a.m. Thus, though Riddle's testimony certainly did not help the defense, neither did it completely destroy its trial strategy. Secondly, Riddle was not the only person who confirmed...