Shegog v. Com.

• Decision Date: 25 July 2008
• Docket Number: No. 2007-CA-000680-MR.,2007-CA-000680-MR.
• Citation: 275 S.W.3d 728
• Parties: Kevin SHEGOG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

275 S.W.3d 728

Kevin SHEGOG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-CA-000680-MR.

Court of Appeals of Kentucky.

July 25, 2008.

As Modified September 19, 2008.

Discretionary Review Denied by Supreme Court February 11, 2009.

Kevin Shegog, Sandy Hook, KY, pro se.

Gregory D. Stumbo, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Frankfort, KY, for appellee.

Before CAPERTON, LAMBERT, and THOMPSON, Judges.

OPINION

THOMPSON, Judge.

Kevin Shegog appeals from an order of the Campbell Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. For the reasons stated herein, we affirm.

On May 28, 2001, Joy Powell, a customer inside a BP gas station, observed an African-American man wearing a red and white sports jacket and a nylon stocking on his head walk past the front window and enter the store. After entering the store, the man grabbed Powell and announced that he had a gun as he pulled the nylon stocking down over his face.

He then ordered Powell to join the store clerk behind the counter where both were ordered to lie on the floor. After taking money from the cash register, the man exited the store and drove away in a dark colored vehicle. Steve Powell, Joy's husband, who was watching from outside the gas station, called 911 and informed police that the getaway car had a vanity license plate bearing the name "Shegog."

The following day, Powell was shown a photo line-up but she was unable to identify the robber due to the poor quality of the computer-generated images. After she was shown a second line-up of color photos, Powell identified Shegog as the robber. After Shegog was indicted, Mr. Steven Dowell, Shegog's defense attorney, filed a motion requesting the appropriation of funds for the purpose of procuring an eyewitness identification expert.

The trial court advised Mr. Dowell that eyewitness identification expert witnesses and funding to procure such witnesses were not proper under then-current law. Based on this off-the-record statement by the court, Mr. Dowell withdrew the request for funding, and the case proceeded to trial on April 2, 2002. The jury found Shegog guilty of first-degree robbery, and the trial court sentenced him to twenty years' imprisonment. On direct appeal, the Supreme Court affirmed his conviction in Shegog v. Commonwealth, 142 S.W.3d 101 (Ky.2004).

On December 8, 2004, Shegog filed a motion for post-conviction relief pursuant to RCr 11.42. After the Commonwealth's response, the trial court denied Shegog's motion without granting a hearing. Following the trial court's denial of this motion, in Case No. 2005-CA-000367-MR, this Court reversed the lower court after concluding that Shegog's allegation regarding his defense counsel's failure to impeach a material witness was not refuted by the record and, thus, necessitated the granting of an evidentiary hearing. After an evidentiary hearing was conducted on remand, the trial court again denied Shegog's motion for post-conviction relief. This appeal followed.

On appellate review of a claim of ineffective assistance of counsel, we are governed by the standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the movant must demonstrate (1) that counsel made serious errors resulting in a performance outside the range of professionally competent assistance guaranteed by the Sixth Amendment and (2) that the deficient performance prejudiced the defense so seriously that there is a reasonable likelihood that the outcome of the trial would have been different absent the errors. MacLaughlin v. Commonwealth, 717 S.W.2d 506, 507 (Ky.App.1986).

"In determining whether the degree of skill exercised by the attorney meets the proper standard of care, the attorney's performance is judged by the degree of its departure from the quality of conduct customarily provided by the legal profession." Centers v. Commonwealth, 799 S.W.2d 51, 55 (Ky.App.1990). Finally, "[i]n considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance." Haight v. Commonwealth, 41 S.W.3d 436, 441-442 (Ky.2001).

Shegog first contends that his defense counsel rendered ineffective assistance when counsel withdrew the funding request for an eyewitness identification expert. Specifically, he contends his defense counsel should have recognized the necessity of an eyewitness identification expert due to the importance of Joy Powell's eyewitness testimony. Therefore, Shegog contends his defense counsel was obligated to obtain a ruling on the admissibility and funding of eyewitness identification expert testimony. We disagree.

When Shegog's trial began on April 2, 2002, the question of whether criminal defendants could obtain and introduce testimony from eyewitness identification experts during trial was unsettled in our Commonwealth. While Shegog is correct that this Court rendered an opinion on this question prior to his trial, our Supreme Court granted discretionary review of our decision and resolved the question in Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002), wherein the court held that funding for eyewitness identification witnesses could be granted when appropriate pursuant to Kentucky Rules of Evidence (KRE) 702 and 403. Id. at 492. Therefore, until the Christie decision, there was no published precedent on this issue.

The trial court in the instant case advised defense counsel that the admission of eyewitness identification expert testimony was not supported by law. As previously noted, the Christie decision subsequently rendered this off-the-record legal pronouncement invalid. Notwithstanding the Christie decision, we strongly note that the trial court's advice was not errant at the time it was given. While Mr. Dowell could have obtained a ruling on the funding request, presumably a denial, it cannot be said that it was a...