Stanford v. Com.
| Decision Date | 21 January 1993 |
| Docket Number | No. 90-SC-000913-TG,90-SC-000913-TG |
| Citation | 854 S.W.2d 742 |
| Parties | Kevin STANFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Joseph Vincent Aprile, II, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.
Chris Gorman, Atty. Gen., Elizabeth A. Myerscough, David A. Smith, Asst. Atty. Gen., Office of Atty. Gen., Frankfort, for appellee.
On January 7, 1981, Barbel Poore was raped, sodomized and murdered in connection with robbery of a service station in Louisville. Appellant, Kevin Stanford, was indicted for murder, first degree robbery, first degree sodomy and receiving stolen property over the value of $100. Trial, August 2-13, 1982, resulted in a jury verdict of guilty of capital murder, first degree robbery, first degree sodomy and receiving stolen property over the value of $100. The jury fixed punishments of death on the murder conviction and maximum sentences of twenty years on the robbery and sodomy convictions and five years on the receiving stolen property conviction. On September 28, 1982, the Court sentenced Stanford in accordance with the punishments which the jury had fixed. This Court affirmed the judgment of conviction and sentences. Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987). The United States Supreme Court granted certiorari and affirmed the decision of this Court. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). In 1990, Stanford's counsel filed a motion in the Jefferson Circuit Court to vacate, set aside or correct the judgments entered against him, as permitted by RCr 11.42. The motion was 25 pages long and raised 50 grounds for relief. On June 28, 1990, the circuit court judge, who was not the judge who tried the case, entered an order overruling Stanford's motion. This is an appeal from that order.
We affirm the circuit judge's order overruling the motion and will discuss the eight arguments for reversal which Stanford's counsel urged in briefs and oral argument.
evidentiary hearing on the RCr 11.42 motion.
Even in a capital case, an RCr 11.42 movant is not automatically entitled to an evidentiary hearing. Skaggs v. Commonwealth, Ky., 803 S.W.2d 573, 576 (1990).
If the record refutes the claims of error, there is no basis for granting an RCr 11.42 motion. Glass v. Commonwealth, Ky., 474 S.W.2d 400, 401 (1971).
Section (5) of RCr 11.42 requires a hearing on the motion only "if the answer raises a material issue of fact that cannot be determined on the face of the record." Section (6) requires findings only "at the conclusion of the hearing or hearings." It follows, as decided in the last two cited cases, that a hearing is required only if there is an issue of fact which cannot be determined on the face of the record. If there is no hearing, then no findings are required. As will be seen, later in this opinion, the record refutes the specific claims which are the bases of appellant's contentions that he should have had a hearing and findings.
While the record herein does not demonstrate error in the trial court's failure to conduct a hearing pursuant to RCr 11.42(5), this Court would emphasize that trial courts generally should hold such hearings to determine material issues of fact presented.
motions without giving any explanation as to the
grounds for the decision.
What has been said in point I., above, generally disposes of this contention. The specific bases for rejecting this general contention will appear in following sections of this opinion.
1. Error in the interpretation of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
2. Ineffective counsel in failing to argue:
a. the Enmund interpretation;
b. for a trial of Stanford, separate from that of his co-defendant Buchanan;
c. for the disqualification of the circuit judge;
d. all of the foregoing alleged errors on the appeal.
Stanford claims that the trial court erroneously interpreted Enmund to foreclose the giving of a death sentence to a non-trigger man. The evidence was that Stanford, and not his co-defendant Buchanan, actually shot Barbel Poore. Subsequent interpretations of Enmund particularly in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), clarified Enmund to mean that there is no automatic exemption of the non-trigger man from the death penalty. Rather, the circumstances of the non-trigger man's participation in the crime should be considered and, if they are of such gravity as to make the death penalty appropriate, then imposition of the death penalty is not forbidden.
Stanford argues that the clarifying rule in Tison is applicable to his case because that decision was rendered in 1987 before the death sentence for Stanford became final in 1989, with the decision of the United States Supreme Court, affirming this Court, rendered that year. Stanford is correct in this contention.
It does not follow, however, that the error in interpreting Enmund to give an automatic exemption to Buchanan from the death penalty is an error redounding to Stanford's benefit.
That the Commonwealth's attorney agreed with the interpretation of Enmund, which Buchanan's trial counsel urged, is immaterial. The Commonwealth's attorney had the discretion to determine whether to seek the death penalty against Buchanan. Commonwealth v. Self, Ky.App., 802 S.W.2d 940, 942 (1991). A joint trial in which the death penalty is sought against only one of the co-defendants is permissible. Foster v. Commonwealth, Ky., 827 S.W.2d 670, 679-680 (1992).
As to ineffective counsel's failing to argue:
(a) Error as to Enmund.
What has been said, above, disposes of that contention, since regardless of the reason, the Commonwealth's attorney had discretion to proceed with a joint trial, seeking the death penalty against only one of the co-defendants.
(b) As to seeking a separate trial for Stanford.
The record shows that his counsel sought a separate trial for him before the joint trial began and repeated the demand after the trial was in progress. (c) As to disqualifying the trial judge on the basis
that he was a candidate for election to this Court.
Counsel fails to support this bare charge with even a speculative basis for the judge's candidacy's having, in any way, affected the conduct of the trial. Followed to a logical conclusion, counsel's contention would mean that incumbent judges running for reelection would have to stop trying cases until after the election, an intolerable burden upon the judicial system.
(d) As to failure to argue any of the foregoing points on appeal.
As just shown, the foregoing contentions are without merit. Reiterating them on an earlier appeal would have likewise been fruitless.
Appellant contends that trial counsel, who were staff members of the public defender's office, had an interest in perpetuating the trial court's erroneous interpretation of Enmund, as prohibiting the application of the death penalty to the non-trigger man. His reasoning is that, since trial counsel would be handling other murder cases, it would be advantageous to future non-trigger men defendants to be able to proceed with their cases, guaranteed against imposition of the death penalty.
In opposing this argument, the Commonwealth contends that Stanford had no "standing" to object to the prosecutor's decision not to seek the death penalty against his co-defendant Buchanan. The argument misses appellant's point, which is not to have acquiesced in more lenient treatment of Buchanan, but to maintain that leniency extended to Buchanan was prejudicial to Stanford. We do not accept the Commonwealth's contention. Stanford had the right to show, if he could, prejudice to him resulting from the presentation and submission of the case on the basis that the jury could not fix Buchanan's punishment as death but could punish Stanford with death.
In the light of this holding, does it follow that Stanford was entitled to an evidentiary hearing to attempt to develop that his trial counsel, influenced by a desire to avoid the death penalty for other clients in other cases ineffectively defended Stanford?
To answer this question, the Court will presume that an evidentiary hearing would have established the fact that Stanford's counsel had in their minds a desire to keep the erroneous Enmund ruling in their arsenal of defense for future clients.
Review of the record of trial counsel's and appellate counsel's arguments about the prejudicial effect on Stanford of presenting and submitting his case, in the joint trial with Buchanan, on the basis that Buchanan was exempt from the death penalty and that Stanford could be punished with death reveals vigorous arguments, well supported by reason, fact and authority. All of this, this Court considered in affirming Stanford's conviction and punishment in Stanford v. Commonwealth, Ky., 734 S.W.2d 781, 787 (1987). There is no basis in the record that Stanford's counsel, even though they lost the point, could have, somehow, done better had they not had in mind later cases and other clients. This Court "will not examine anew an appeal reviewed, considered and decided by this Court." See Hicks v. Commonwealth, Ky., 825 S.W.2d 280, 281 (1992), a case, like this, in which the issue was whether appellant had "effective assistance of counsel on appeal." (Ibid.)
voir dire him and establish that his remark was intended.
Appellant complains of ineffective representation because his trial counsel failed to object adequately to Detective Chesser's testimony, to voir dire him out of the jury's presence, to establish that the improper comment was intentional...
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