Henderson v. Com.

Decision Date06 July 1982
Citation636 S.W.2d 648
PartiesAldean HENDERSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Jack Emory Farley, Public Advocate, Edward C. Monahan, Asst. Public Advocate, Frankfort, for appellant.

Aldean Henderson, pro se.

Steven L. Beshear, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appellee.

O'HARA, Justice.

This case comes before us as a matter-of-right appeal by Aldean Henderson on a four count indictment charging him with robbery in the first degree, burglary in the first degree, sexual abuse in the first degree, and being a first degree persistent felony offender. After a bifurcated jury trial, the Appellant was sentenced, on the jury's recommendation, to concurrent terms of life, life and twenty (20) years, respectively.

From this conviction review is sought in which the public advocate notices thirteen errors allegedly occurring in the trial. 1 We have considered the multiple urgings of the Appellant as set out in both the public advocate's briefs and the briefs filed pro se, and find only those discussed in this opinion as having any merit.

The pertinent facts of this case are as follows: On December 12, 1979, the Appellant and a co-conspirator 2 knocked on the apartment door of Leroy Barnes, stuck a gun in his face and forced their way into the house. Unlike his co-conspirator, Appellant made no attempt to conceal his identity. After ransacking the first floor of the apartment, Appellant went upstairs where he found Regina Garth in bed with her infant child. She was told to wrap her naked body in a sheet and accompany the Appellant downstairs, where she observed Leroy Barnes lying face down on the floor. Leaving Ms. Garth downstairs, the Appellant went back upstairs where he ransacked the area, apparently looking for something. Returning downstairs for a second time, he ordered Ms. Garth upstairs to the bedroom where he forced her to lie, naked, on the bed. Ms. Garth, who was pregnant at the time, protested, but Appellant nonetheless forced her to raise her leg, whereupon he inserted his finger into her vagina and sucked on her breast. Finally, Appellant ordered her to put the sheet around her, then took her back downstairs where he tied her up. After collecting various items of personal property belonging to the victims, the two men left the apartment. From the testimony at trial, it appears that the two men were originally searching for "dope."

The first argument meriting discussion is the Appellant's expressed dissatisfaction with his assigned counsel, first noted at the inception of the trial. Although this dissatisfaction is described in the record in a variety of terms, it can be synopsized in the Appellant's own words: "He never told me nothing." After hearing and evaluating the Appellant's protests, the trial court concluded that "You seem to be more concerned with what he tells you, and not what he actually does."

The trial began, and the record clearly reflects that Appellant's counsel was active, alert, imaginative and resourceful. He conducted an active voir dire; made a logical opening statement; made numerous timely objections, many of which were sustained; made a motion to test the legality of the arrest; conducted thorough cross-examination of all witnesses; and made a motion for directed verdict of acquittal at the close of the Commonwealth's case. For the Appellant's case, his counsel called two available defense witnesses, 3 as well as putting the Appellant himself on the stand. Defense counsel presented the defense of alibi to the jury, utilizing the testimony of the Appellant, his mother, and the local probation and parole officer. At the close of the Appellant's case, counsel again renewed his motion for a directed verdict of acquittal. Closing argument was substantial (in light of the overwhelming evidence), and the jury was polled after the verdict was rendered. Post-trial motions for a new trial and a judgment notwithstanding the verdict were timely filed. During the PFO portion of the trial, counsel was again most aggressive, including but not limited to preserving the record on appeal.

In reaching a decision on the merits of Appellant's ineffective assistance of counsel argument, we have been urged to reconsider the holdings of Wahl v. Commonwealth, Ky., 396 S.W.2d 774 (1965) and Vaughan v. Commonwealth, Ky., 505 S.W.2d 768 (1974). In both Wahl and Vaughan, we held the test required to show ineffective assistance of counsel was "that the circumstances of the representation were such as to shock the conscience of the court and to render the proceedings a farce and mockery of justice." After a thorough reevaluation of the law in this area, we are of the opinion that the time has come to rid ourselves of the "shock the conscience of the court" and "farce and mockery of justice" test. We now adopt the more logical test of Beasley v. U. S., 491 F.2d 687 (6th Cir. 1974) wherein it was held "that the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance." Any inconsistent holdings such as those expressed in Wahl and Vaughan, supra, are hereby expressly overruled.

In the instant case, Appellant's complaint as previously alluded to was one of quantity of defense, completely disregarding the quality of the representation. In Daugherty v. Runner, Ky.App., 581 S.W.2d 12, our Court of Appeals, citing Prosser, Law of Torts, § 32 at 161-66 (4th ed. 1971) held:

"In determining whether that degree of care and skill exercised by the attorney in a given case meets the requirements of the standard of care aforementioned, the attorney's act, or failure to act, is judged by the degree of its departure from the quality of professional...

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28 cases
  • Henderson v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 13, 2018
    ...order denying was entered September 16, 2014). The next pretrial was set for October 2, 2014. The parties began scheduling a new trial but Henderson interrupted and requested that they wait to reschedule the jury trial until the next pretrial conference.On September 30, Henderson filed a pr......
  • Blane v. Commonwealth, No. 2010–SC–000713–MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • April 26, 2012
    ...of both the original and amended indictment is that of charging the Appellant of being a[PFO] in the first degree,” Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky.1982); and amending the indictment to change the date of the occurrence of the alleged offense, Stephens v. Commonwealth, 39......
  • Morton v. Com., SC-753-MR
    • United States
    • United States State Supreme Court — District of Kentucky
    • August 29, 1991
    ...held that the constitutional right to counsel does not embrace a right to be represented by a particular attorney. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982), Baker v. Commonwealth, Ky.App., 574 S.W.2d 325 (1978), and Hargrove v. Commonwealth, Ky., 362 S.W.2d 37 (1962). We reiter......
  • Kuhbander v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 14, 2019
    ...of his counsel and the appointment of substitute counsel except for adequate reasons or a clear abuse by counsel." Henderson v. Commonwealth, 636 S.W.2d 648, 651 (Ky. 1982) (citations omitted). "When an indigent defendant seeks to change his appointed counsel, he carries the burden of demon......
  • Request a trial to view additional results

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