Commonwealth v. Tamme , 83 S.W.3d 465 ( 2002 )

WINTERSHEIMER, Justice.

This appeal is from a decision of the Fayette Circuit Court vacating Tamme’s convictions for two capital murders and sentence of death and ordering a new trial.

The history of this proceeding is lengthy. In 1985, a jury found Tamme guilty of two counts of intentional murder, and he was sentenced to death for each of the murders. His convictions were reversed by a majority of this Court in Tamme v. Commonwealth, Ky., 759 S.W.2d 51 (1988). Tamme was tried again in 1994, and again found guilty of two intentional murders and sentenced to death. This Court affirmed the second conviction in Tamme v. Commonwealth, Ky., 973 S.W.2d 13 (1998). In 1999, the United States Supreme Court declined review of Tamme II. Tamme v. Kentucky, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999).

After having been twice convicted of capital murder and twice been sentenced to death, Tamme sought a new trial pursuant to RCr 10.02 and 10.06 and also moved separately to vacate his conviction under RCr 11.42. He was granted a stay of execution pending resolution of his post-conviction motions. The circuit judge determined that the misrepresentation by counsel of the holding in Tamme I and subsequent failure to make a record in regard to the interwoven relationships of Tamme and his principal accusers in the drug business was ineffective representation that cannot be excused as strategy. The circuit judge also stated that although the testimony of Armstrong corroborates Woodward and might not be sufficient grounds for a new trial alone, when coupled with RCr 11.42 issues, this testimony emphasizes the need for a new trial. Accordingly, she vacated the conviction and ordered a third trial. This appeal by the Commonwealth followed.

The Commonwealth argues that the circuit judge erred by overruling the decision of this Court in Tamme I, by holding that the evidence of Tamme’s marijuana farming operation should have been admitted at a second trial. The Commonwealth maintains that this is a law of the ease situation. It contends that the circuit judge abused her discretion by applying an incorrect, more lenient legal standard when granting Tamme his third trial; that the circuit judge erred by commingling the standards under RCr 11.42 with the new trial standards under RCr 10.02 and 10.06 for newly discovered evidence; that the circuit judge erred by granting a new trial based solely upon the cumulative impeachment testimony of a single newly discovered witness; and that the circuit judge erred in failing to dismiss the new trial motion as untimely because good cause was not shown. Finally, the Commonwealth claims that the circuit judge erred by granting the RCr 11.42 motion because of a failure to satisfy either the deficient performance or prejudice prong of the Strickland test.

Counsel for Tamme responds that this Court should affirm the opinion of the circuit judge granting the RCr 11.42 motion because his trial counsel rendered ineffective assistance of counsel which resulted in prejudice. Tamme also argues that this Court should affirm the opinion of the circuit judge granting him a new trial on the basis of newly discovered evidence pursuant to RCr 10.02 and 10.06; that this Court lacks jurisdiction to grant the relief requested by the Commonwealth; that the circuit judge applied the correct legal standard in granting him a new trial based on newly discovered evidence; that the opinion of the circuit judge granting him a new trial on that basis was within her discretion and that the testimony of Armstrong would probably change the result if a new trial was granted; and that his testimony was not cumulative, and is newly discovered.

The crux of the facts of this case is that Buchanan, a business partner of Tamme’s in September of 1984, came forward and told police that he witnessed Tamme shoot both victims and dispose of their bodies in 1983. Tamme testified in his own defense and denied the killings. The case has occupied the dockets of the Court of Justice since 1984.

I. Law of the Case

Tamme was successful in his first appeal by claiming that the evidence of his marijuana farming operation was irrelevant and prejudicial and that his due process rights were violated by its introduction. This Court ruled that his case should be retried with no mention of the marijuana farming. Now, Tamme argues that the marijuana farming evidence should have come in at his second trial and that it was a due process violation when the evidence was not admitted. The only reasonable and legally correct interpretation of Tamme I is that evidence regarding the marijuana farming was not to be allowed. Williamson v. Commonwealth, Ky., 767 S.W.2d 323 (1989) states:

It is fundamental that when an issue is finally determined by an appellate court, the trial court must comply with such determination. The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision.

This admonition, which prevents a RCr 11.42 movant from relitigating issues which were raised and decided in the direct appeal or which could have been raised, was not followed. See Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998); Thacker v. Commonwealth, Ky., 476 S.W.2d 838 (1972).

In addition, the doctrine of law of the case applies here so as to defeat the arguments of Tamme. It has long been recognized that the final decisions of the court are binding on the parties, the trial court and this Court. See Haight v. Commonwealth, Ky., 938 S.W.2d 243 (1996), citing Martin v. Frasure, Ky., 352 S.W.2d 817 (1961); Taylor v. Mills, Ky., 320 S.W.2d 111 (1958). Obviously, the law of the case doctrine is intended to prevent defendants from endlessly litigating the same issue in appeal after appeal. It also prevents a dissatisfied party from presenting piecemeal issues to the appellate courts so that no decision is ever final. See Marshall v. Merrifield, Ky., 474 S.W.2d 99 (1971), citing Sowders v. Coleman, 223 Ky. 633, 4 S.W.2d 731 (1928)

It was reversible error for the circuit judge to grant a new trial in this matter. The trial court should have adjudicated all claims raised by Tamme rather than piecemeal the case by ruling on only two of the many issues raised in the RCr 11.42 procedure.

II. Incorrect legal standard

The correct legal standard for adjudicating a motion for a new trial based on newly discovered evidence may be found in Collins v. Commonwealth, Ky., 951 S.W.2d 569 (1997):

Newly discovered evidence must be of such decisive value or force that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.

Similar pronouncements may be found in Coots v. Commonwealth, Ky., 418 S.W.2d 752 (1967) and Wheeler v. Commonwealth, Ky., 395 S.W.2d 569 (1965). The trial judge did not use this rigorous standard and therefore is in error for granting the new trial. The trial judge indicated that the applicable standard is whether the testimony could reasonably result in a different verdict and whether this testimony could be reasonably persuasive as a part of the entire defense theory. Such is a more liberal standard at variance with the requirements of this Court as previously noted. No precedent was cited supporting the standard used.

The trial judge also mixed the standards for adjudicating RCr 11.42 motions with those for adjudicating RCr 10.02 and 10.06 new trial motions. The combination of these standards produced reversible error. We find no precedent for allowing a defendant to combine an insufficient new trial motion with an insufficient RCr 11.42 motion so as to grant a new trial. In this case, the trial judge admitted that the newly discovered evidence, which was the testimony by Armstrong, did not meet the new trial standard, thus it was error to grant such a new trial.

Moreover, the trial judge erred by granting a new trial based solely on the cumulative impeachment testimony of a single newly discovered witness, Armstrong. See Moore v. Commonwealth, Ky., 983 S.W.2d 479 (1998). This Court has held in Foley v. Commonwealth, Ky., 55 S.W.3d 809 (2000), that the granting of a new trial is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature. The reference to Foley v. Commonwealth, Ky., 17 S.W.3d 878 (2000), was inappropriate.

Contrary to the claim by Tamme, this Court has jurisdiction to reinstate the jury verdict in this case. See Commonwealth v. Brindley, Ky., 724 S.W.2d 214 (1986). Reliance on Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984), is misplaced. Here, the Commonwealth is not appealing from a verdict of acquittal.

III. Deficient Performanee/Prejudice

The trial judge misapplied the legal standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland, supra, holds that the appropriate question to be considered by a trial court is whether the defendant received representation that fell below an objective standard of reasonableness under the totality of the circumstances. It was error for the trial judge to conclude that Tamme had received ineffective assistance of counsel based solely on the interpretation of Tamme I by defense counsel.

Tamme has the burden of demonstrating that defense counsel denied him his Sixth Amendment right to effective assistance of counsel and that this prejudiced his trial. Foley v. Commonwealth, Ky., 17 S.W.3d 878 (2000); Strickland. He must also demonstrate that counsel made errors that were so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment and that the deficient performance prejudiced the defense and deprived him of a fair trial and produced an unreliable result. See Harper v. Commonwealth, Ky., 978 S.W.2d 311 (1998).

In our view, trial counsel for Tamme used a reasonable trial strategy and rendered effective assistance of counsel. The argument that the original decision of this Court was intended to limit any reference to drug activities only to the prosecution, but permit the defense to impeach the credibility of the prosecution’s witness with evidence of involvement in the drug operation is absurd. Clearly, the door would be opened and could not stand ajar for the benefit of one of the parties. The trial judge failed to consider the proper standard and Tamme failed to demonstrate how he received an inadequate defense.

The trial counsel defending Tam-me presented a reasonable performance under all the circumstances. The comment by the trial judge that “Counsel’s misinterpretation of the holding in Tam-me I and the subsequent failure to make a record in regard to the interwoven relationships of Tamme and his principal accusers in the drug business was ineffective representation that cannot be excused on mere strategy grounds” is unconvincing. The real issue was whether the defense performance was reasonably effective assistance of counsel as required by Strickland. As stated by this Court, “The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory.” Foley v. Commonwealth, Ky., 17 S.W.3d 878 (2000).

There is always a strong presumption that the conduct of counsel is within the acceptable range of reasonable and effective assistance. Humphrey v. Commonwealth, Ky., 962 S.W.2d 870 (1998). Keeping the evidence out was consistent with the strategy to present an alibi defense and to portray Tamme as a solid citizen in the community. As testified by defense counsel, he believed that the introduction of the drug activity among the witnesses might actually cause Tamme more harm than good. Clearly, this was a tactical or strategic decision made by defense counsel, perfectly acceptable under Strickland.

The argument accepted by the circuit judge is based on the type of hindsight decried by Chandler v. United States, 218 F.3d 1305 (11th Cir.2000). A careful review of the testimony from Tamme I supports the defense theory at the time it was presented. Here, both counsel were experienced and knowledgeable in criminal defense work and exhibited all the skill necessary to ensure that Tamme received a fair trial.

Tamme also failed to show the required prejudice as set out in Strickland. He did not demonstrate that the errors alleged against defense counsel were so serious as to deprive him of a fair trial which would produce an unreliable result. Here, Tam-me presented only a conclusory claim that but for the misinterpretation of Tamme I by defense counsel he would not have been convicted the second time. We find no support for such a conclusion. There was no proof offered as to how the conduct of defense counsel failed to produce a reasonable defense and thus deprived him of a fair trial at the second trial. Cf. Williams v. Taylor, 529 U.S. 362,120 S.Ct. 1495,146 L.Ed.2d 389, (2000). It was error for the trial judge to grant the RCr 11.42 motion.

The decision of the circuit court which granted Tamme post-conviction relief and a new trial is reversed. This case is remanded for consideration of the other issues raised in the RCr 11.42 motion, but not originally addressed by the trial court.

COOPER, GRAVES, JOHNSTONE, JJ., concur. STUMBO, J., concurs in result only. KELLER, J., concurs by separate opinion joined by LAMBERT, C.J.