Norton v. Com., 2000-SC-0462-DG.

• Decision Date: 25 October 2001
• Docket Number: No. 2000-SC-0462-DG.,2000-SC-0462-DG.
• Parties: Roger Scott NORTON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

63 S.W.3d 175

Roger Scott NORTON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2000-SC-0462-DG.

Supreme Court of Kentucky.

October 25, 2001.

As Modified January 17, 2002.

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Albert B. Chandler III, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

LAMBERT, Chief Justice.

Pursuant to CR 76.20, this Court granted discretionary review to consider whether Appellant, Roger Scott Norton, was entitled to an evidentiary hearing on his RCr 11.42 motion to vacate his conviction. Appellant contends that such a hearing is warranted because the only defense presented by his trial counsel was voluntary intoxication, yet his trial counsel failed to call any witnesses in support thereof and failed to argue in support of the tendered intoxication instruction. The instruction was not given to the jury despite the fact that Appellant was charged with alcohol intoxication, and despite testimony from prosecution witnesses indicating that Appellant was intoxicated upon arrest.

In the early morning hours of July 13, 1996, Appellant was arrested outside Regina's II, a bar in Paducah. He was indicted on the offenses of Alcohol Intoxication, Giving a Police Officer a False Name, Resisting Arrest, two counts of Fourth. Degree Assault, Third Degree Criminal Mischief, First Degree Promoting Contraband, and of Being a First Degree Persistent Felony Offender. Appellant's defense at trial was that he was too intoxicated to know what he was doing.¹ Appellant's trial counsel argued both in her opening statement and her closing argument that Appellant was "very drunk" and "too drunk to know what he was doing." Moreover, the two arresting police officers, Officers Long and Baker, testified at trial that Appellant obviously had been drinking or that he was intoxicated. Officer Baker, however, specifically stated his personal opinion that Appellant "wasn't intoxicated to the point that he wasn't aware of what was going on." Despite intoxication being Appellant's only defense, his trial counsel failed to request that the tendered intoxication instruction be given and failed to call three witnesses who would have verified his intoxication. The instruction was not given to the jury.

Appellant was found guilty on all counts except Alcohol Intoxication, of which he was acquitted. After the sentencing phase, Appellant was convicted of being a First Degree Persistent Felony Offender and sentenced to twenty years in prison. Appellant's direct appeal was affirmed on September 25, 1997.

On August 14, 1998, Appellant filed a "Motion to Vacate, Set Aside or Correct Sentence Pursuant to RCr 11.42," stating multiple reasons therein as to why his trial counsel was ineffective and requesting an evidentiary hearing on the matter. One of the stated reasons, and the reason at issue herein, was that his trial counsel failed to call certain witnesses who allegedly would have given exculpatory testimony, i.e., that Appellant was intoxicated at the time of the offenses. The trial court denied the motion without holding an evidentiary hearing.

The Court of Appeals affirmed, holding that the trial court did not abuse its discretion in denying Appellant's request for an evidentiary hearing and in overruling the RCr 11.42 motion. In reaching this conclusion, the Court of Appeals reasoned that although Appellant had shown that the potential witnesses' testimony would have assisted his defense, he had failed to show that the testimony would have compelled an acquittal, as Robbins v. Commonwealth² articulates the requirement for a successful ineffective assistance of counsel claim under these circumstances.

Appellant now claims that the Court of Appeals erred by relying on Robbins. Appellant contends that the standard for ineffective assistance of counsel claims set out in Robbins is different and higher than that promulgated by the United States Supreme Court in Strickland c. Washington³ and adopted by this Court in Gall v. Commonwealth.⁴ The Strickland standard requires that a movant show that counsel's performance was deficient and that the deficient performance prejudiced the defense.⁵ The movant must also demonstrate that, absent the errors by trial counsel, there is a "reasonable probability" that the jury would have reached a different result.⁶ In contrast, Robbins states that "merely failing to produce witnesses in the appellant's defense is not error in the absence of any allegation that their testimony would have compelled an acquittal."⁷

Appellant is correct in his claim that the standard used in Robbins is different and higher than the Strickland standard. Whereas the Strickland standard requires a "reasonable probability" of a different result, Robbins requires that the allegedly deficient performance by trial counsel compel acquittal. The Strickland standard relies on probabilities, while the Robbins standard requires certainty. In other words, it would be far easier to prove a reasonable probability of a different result than to prove that acquittal would have been the only option,

We do not believe, however, that the Robbins Court intended to announce a new, more stringent standard for ineffective assistance of counsel claims for the following reason. Robbins announced its adherence to Strickland just prior to the statement at issue. Thus, it appears that the language regarding the necessity of a compelled acquittal was merely an attempt to rephrase the Strickland standard, not to revise it. Nonetheless, we are compelled to overrule Robbins to the extent that it conflicts with Strickland, albeit inadvertently.

Having determined that the standard applied by the Court of Appeals was not consistent with controlling law, we must now turn to the merits of Appellant's claim. The essence of his claim is in the nature of a paradox: although he was indicted and tried for the crime of alcohol intoxication, the jury was not instructed on the defense of voluntary intoxication as it pertained to other charges — allegedly due to trial counsel's failure to develop supporting testimony and to argue for such an instruction. We wonder why the Commonwealth's evidence of alcohol intoxication did not suffice to authorize the intoxication instruction. Appellant contends however, and the record reveals, that there were three witnesses who had been with Appellant before and during the time of his arrest who had informed Appellant's trial counsel well before trial that they were willing to testify to Appellant's extreme intoxication. Given these circumstances, there are material issues of fact that cannot be determined on the face of the record,⁸ and an evidentiary hearing on the motion is warranted.

For the foregoing reasons, the opinion of the Court of Appeals is reversed, and this cause is remanded to the McCracken Circuit Court for an evidentiary hearing on Appellant's RCr 11.42 motion.

COOPER, JOHNSTONE, KELLER, and STUMBO, JJ., concur.

GRAVES, J., dissents by separate opinion in which WINTERSHEIMER, J., joins.

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