Humphrey v. Com.

• Decision Date: 19 February 1998
• Docket Number: No. 96-SC-330-MR,96-SC-330-MR
• Citation: 962 S.W.2d 870
• Parties: Michael HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 870

962 S.W.2d 870

Michael HUMPHREY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-330-MR.

Supreme Court of Kentucky.

Feb. 19, 1998.

Robert A. Thomas, Harlan, Warren N. Scoville, Scoville, Cessna & Associates, London,for Appellant.

A.B. Chandler II, Attorney General, Michael L. Harned, Assistant Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

J. Vincent Aprile, II, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Amicus Curiae, Department of Public Advocacy.

LAMBERT, Justice.

Appellant was indicted for three counts of rape in the first degree, involving three different female children, all under the age of twelve (12). The Harlan Circuit Court directed a verdict of not guilty for appellant as to Count II of the indictment, and submitted the other counts to the jury. The jury convicted appellant of sexual abuse in the first degree as a lesser included offense under Count I, and of rape in the first degree under Count II. Appellant was sentenced to life imprisonment on the first degree rape conviction and to a concurrent five year term of imprisonment on the first degree sexual abuse conviction. Appellant now appeals to this Court as a matter of right.

On this direct appeal, appellant broadly contends that he received ineffective assistance of counsel both prior to and during his trial. He has cited numerous examples of actions taken or not taken by trial counsel which allegedly infringed upon his constitutional right to effective assistance of counsel. Only four of the numerous claims appellant makes were preserved for review, and this was by motion for a new trial. The trial court overruled appellant's motion for new trial and found no merit in his ineffective assistance claims. Appellant's wholly unpreserved claims will not be considered on this direct appeal but this does not preclude their consideration in a proper collateral attack proceeding. Hennemeyer v. Commonwealth, Ky., 580 S.W.2d 211 (1979).

As a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal from the trial court's judgment, because there is usually no record or trial court ruling on which such a claim can be properly considered. Appellate courts review only claims of error which have been presented to trial courts. Caslin v. Commonwealth, Ky., 491 S.W.2d 832 (1973). Moreover, as it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons, KBA Op. E-321 (July 1987), and due to the brief time allowed for making post trial motions, claims of ineffective assistance of counsel are best suited to collateral attack proceedings, after the direct appeal is over, and in the trial court where a proper record can be made. This is not to say, however, that a claim of ineffective assistance of counsel is precluded from review on direct appeal, provided there is a trial record or an evidentiary hearing is held on motion for a new trial, and the trial court rules on the issue. Hopewell v. Commonwealth, Ky., 641 S.W.2d 744 (1982); Wilson v. Commonwealth, Ky., 601 S.W.2d 280, 284 (1980).

Appellant brought some of his ineffective assistance of counsel claims in a motion for a new trial and the trial court duly ruled thereon. As to these, appellant's appeal is not improper. However, a better approach would have been to have presented the unpreserved errors, if such could have been done in good faith, as palpable error under RCr 10.26. If that approach had been taken unsuccessfully, an ineffective assistance of counsel claim based on those unpreserved errors would still be available in a collateral attack proceeding.

When a claim of ineffective assistance of counsel is raised, the standard of review is a two-pronged test. "First, the defendant must show that the counsel's performance was deficient.... Second, the defendant must show the deficient performance prejudiced the defense." Gall v. Commonwealth, Ky., 702 S.W.2d 37, 39 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant has a heavy burden in proving that trial counsel's performance was ineffective or unreasonable. Adding to this burden is the presumption that counsel's conduct falls within the acceptable range of reasonable and effective assistance of counsel, as guaranteed by the Constitution.

Appellant initially argues that his trial counsel was ineffective because counsel failed to provide required reciprocal discovery to the Commonwealth, resulting in a testimonial limitation upon appellant's medical witness, Dr. Lovett. This argument, is contradicted by the record. When appellant called Dr. Lovett to testify, the Commonwealth objected due to the fact that reciprocal discovery had not been provided as to this witness, and as required by the Discovery Order issued by the trial court. Both counsel approached the bench and the Commonwealth requested to confer with appellant's counsel prior to the trial court's ruling on the Commonwealth's objection. When counsel returned to the bench, the Commonwealth informed the trial court that it was going to withdraw its previous objection based on appellant's counsel's assurance that Dr. Lovett had been called to testify only as to blood and pain that would be present in the victims, if events actually occurred as the victims explained.

The trial court was never advised that Dr. Lovett was expected to serve any other purpose or to testify as to any other matter. The trial court also noted that Dr. Lovett testified to these matters "extensively" and "almost to a point of advocacy." Therefore, it is clear from the record that appellant's counsel was in no way limited from pursuing her stated goal with Dr. Lovett's testimony.

Appellant next contends that he received ineffective assistance of counsel in that there was no objection to the testimony of the Commonwealth's medical expert, Dr. Bates, who allegedly invaded the province of the jury and testified as to the ultimate issue in the case. Dr. Bates testified as to her findings upon a medical examination of the victims. Of the three victims, Dr. Bates testified that her findings were conclusive only as to one victim, K.H., and that those findings were that the victim had been injured in her vaginal area by some type of penetration. The doctor never attempted to say what was used to effect the penetration, nor did she ever suggest who might have caused the penetration. In fact, Dr. Bates specifically testified that she could not tell how K.H. had been penetrated. Dr. Bates' testimony gave the jury necessary information, but left it to the jury to decide what type of penetration had occurred to cause the injuries that she had observed in K.H.

As noted by the trial court, Dr. Bates did not invade the province of the jury. She stated only her medical findings--she offered no opinions, never suggested that any of the victims were sexually...