Opinion
No. 2003-CA-001093-MR.
April 1, 2005.
Appeal from Laurel Circuit Court, Honorable Lewis B. Hopper, Judge, Indictment No. 98-CR-00137.
Harold S. Brown, pro se, Beattyville, Kentucky, Brief for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Brian T. Judy, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: JOHNSON and McANULTY, Judges; HUDDLESTON, Senior Judge.
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
OPINION
On March 25, 1999, after a jury trial in Laurel Circuit Court, both Harold Sanford Brown and his co-defendant, Leslie Lee Lawson, were convicted of second-degree arson and second-degree burglary. Because Brown was also found guilty of being a persistent felony offender, the trial court sentenced him to a total of eighty years' imprisonment. Brown and Lawson appealed to the Supreme Court of Kentucky, but that Court affirmed their convictions.
See Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001).
In 2000, Brown filed pro se a Kentucky Rules of Criminal Procedure (RCr) 11.42 motion seeking to have Laurel Circuit Court vacate his conviction and set aside his sentence. Brown insisted that his trial attorney, Bruce Lominac, rendered ineffective assistance of counsel. According to Brown, Lominac failed to present alibi witnesses; failed to confront Tony Griffith, a witness for the Commonwealth, with a photograph of Darrell Blevins; failed to object to misstatements made by the Commonwealth; failed to object to the introduction of prior bad acts; failed to exploit the fact that Barbara Flannelly, one of the Commonwealth's witnesses, had previously made false accusations against him; and failed to impeach Flannelly with a prior inconsistent statement. When the court denied Brown's motion without holding an evidentiary hearing, he appealed to this Court.
In an unpublished opinion rendered on July 5, 2002, we held that the record failed to resolve three issues, namely: why Lominac failed to call Brown's alleged alibi witnesses; why Lominac failed to confront Griffith with a photograph of Darrell Blevins, and why Lominac failed to address Flannelly's prior false accusations against Brown. Thus, we vacated the order denying Brown's RCr 11.42 motion and remanded the case to Laurel Circuit Court for an evidentiary hearing to consider these issues.
Following remand, Brown employed private counsel who filed a supplement to his RCr 11.42 motion. In the supplement, Brown argued that the trial court violated RCr 9.40 by assigning an insufficient number of peremptory challenges to the two defendants. The court had assigned nine peremptory challenges to the defense although, according to RCr 9.40(1), (2) and (3), the two defendants were entitled to thirteen such challenges. In support of this argument, Brown cited Springer v. Commonwealth, in which the Supreme Court held that when a trial court assigns an insufficient number of peremptory challenges, it errs. Such an error, the Court said, can never be harmless and will be grounds for reversal as a matter of law. Brown argued that Lominac rendered ineffective assistance of counsel since he failed to object when the trial court erroneously allotted an insufficient number of peremptory challenges to the two defendants.
998 S.W.2d 439, 445 (Ky. 1999).
As directed in this Court's opinion, the circuit court conducted a lengthy evidentiary hearing, giving Brown an opportunity to present arguments and witnesses in support of his RCr 11.42 motion. However, the court remained unconvinced and again denied Brown's motion. Brown responded by appealing to this Court a second time.
On appeal, Brown renews his argument that Lominac rendered ineffective assistance of counsel because he failed to object to the trial court's allotment of an insufficient number of peremptory challenges to him and his co-defendant.
As the Commonwealth points out, Brown raised the issue of peremptory challenges in his direct appeal to the Supreme Court. We agree with the Commonwealth that RCr 11.42 motions cannot be used to re-litigate issues previously argued on direct appeal and that such motions are strictly limited to issues that either were not or could not have been raised on direct appeal. However, we will consider this issue since Brown has raised it in the context of ineffective assistance of counsel and since, on direct appeal, the Supreme Court did not analyze Lominac's request for more strikes under RCr 9.22 or Kentucky Rules of Civil Procedure (CR) 46, did not address the issue of peremptory challenges on its merits and did not analyze it under RCr 10.26 as palpable error.
Bowling v. Commonwealth, 80 S.W.3d 405, 416 (Ky. 2002), quoting Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001).
Lawson, supra, note 2, at 544. A similar issue, failure to object to alleged prosecutorial misconduct, was raised inMartin v. Commonwealth, 2002-CA-002529-MR, an unpublished opinion rendered by this Court on January 23, 2004. In November 2004, the Supreme Court, in case number 2004-SC-000130-D, granted discretionary review to consider the issue. In Martin, the Supreme Court had considered the unpreserved issue on direct appeal and decided that there was no palpable error under RCr 10.26. In Brown's direct appeal, as will be seen, the same Court refused to consider the issue because it was not preserved.
To succeed with a claim of ineffective assistance of counsel, a criminal defendant must show that his trial counsel's performance was both deficient and prejudicial. To establish prejudice, the defendant must show with reasonable probability that the outcome of his trial could have been different absent trial counsel's deficient performance.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id., 466 U.S. at 694.
The record of Brown and Lawson's trial reveals that during a bench conference, prior to the interrogation of potential jurors and the exercise of any strikes, the trial court told counsel for the two defendants, "You all may share your challenges then." Although Lominac immediately responded, "Your honor, we'd like to ask for extra strikes," the court denied the request.
Brown apparently did not argue on appeal to the Supreme Court that this request was sufficient under RCr 9.22 or CR 46 to preserve the error in failing to assign the two defendants the peremptory challenges to which they were entitled. The rules, which are identical, provide, in pertinent part, that "for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action he desires the court to take or his objection to the action of the court, and on request of the court, his grounds therefore. . . ."
Upon considering the issue of peremptory challenges, the Supreme Court held on Brown's direct appeal that:
Neither Brown nor Lawson objected to the trial court's determination of the number of challenges authorized by RCr 9.40. We held in Kentucky Farm Bureau Mut. Ins. Co. v. Cook that a trial court's improper allocation of peremptory strikes "requires reversal as a matter of law if the issue is properly preserved by the adversely affected litigant." Only a contemporaneous objection to the trial court's improper allocation of peremptory challenges will preserve such an error for our review, and [Lominac's] request for "bonus" challenges does not meet this standard. Although Brown contends that his counsel's vague request for additional peremptory challenges could have been a claim to entitlement under RCr 9.40, we find no difficulty distinguishing between properly preserved RCr 9.40 objections and requests for additional challenges as a matter of grace. [S.Ct. FN 25] Brown's trial counsel did not claim that the trial court denied Brown his "fair share," but rather requested an additional portion. Accordingly, we decline to review Appellants' allegation of error with respect to the allocation of peremptory challenges. FN25. The distinction is as clear as the one between a demand for one's "fair share" and a request for "some more." See CHARLES DICKENS, OLIVER TWIST, 55-58 (Peter Faircloth ed., Penguin Classics 1985) (1837-9): The room in which the boys were fed was a large stone hall, with a copper at one end, out of which the master, dressed in an apron for the purpose, and assisted by one or two women, ladled the gruel at meal-times; of which composition each boy had one porringer, and no more — except on festive occasions, and then he had two ounces and a quarter of bread besides. . . . A council was held; lots were cast who should walk up to the master after supper that evening, and ask for more; and it fell to Oliver Twist.
See infra, note 11.
Citation omitted.
The evening arrived; the boys took their places. The master, in his cook's uniform, stationed himself at the copper; his pauper assistants ranged themselves behind him; the gruel was served out; and a long grace was said over the short commons. The gruel disappeared; the boys whispered each other, and winked at Oliver, while his next neighbors nudged him. Child as he was, he was desperate with hunger, and reckless with misery. He rose from the table, and advancing to the master, basin and spoon in hand, said; somewhat alarmed at his own temerity: 'Please, sir, I want some more.'
Supreme Court FN 26 citing Lawson, supra, note 2, at 545.
Inasmuch as the Supreme Court has determined that Lominac failed to properly object and, thus, preserve the issue of the correct number of peremptory challenges to which Brown was entitled, Lominac's performance was deficient. Therefore, the first part of the Strickland test has been satisfied.
Peremptory challenges have been part of the trial process in the Commonwealth since 1830, and their purpose has always been to ensure that parties receive a fair trial. Brown correctly observes that when a trial court assigns an insufficient number of peremptory challenges, it errs, and such an error is grounds for automatic reversal for a new trial. Furthermore, when a party has received an insufficient number of strikes, he does not have to show actual prejudice in order to obtain a new trial. Given that actual prejudice is not required, the second part of theStrickland test has been automatically satisfied. Since Lominac failed to object when the trial court assigned an insufficient number of peremptory challenges to the two defendants, he rendered ineffective assistance of counsel. Thus, the circuit court erred when it denied Brown's RCr 11.42 motion.
Kentucky Farm Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (Ky. 1979).
Springer, supra, note 3, at 444.
Kentucky Farm Bureau Mut. Ins. Co., supra, note 11, at 877.
Because we reverse on this issue, we need not address Brown's remaining arguments.
The order denying Brown's RCr 11.42 motion is reversed, and this case is remanded to Laurel Circuit Court with directions to grant Brown a new trial.
ALL CONCUR.