Steven Pettway v. Commonwealth of Kentucky

RENDERED: DECEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1041-MR
STEVEN PETTWAY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 11-CR-003052-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Steven Pettway appeals from the Jefferson Circuit
Court’s summary denial of his motion for Kentucky Rules of Criminal Procedure
(RCr) 11.42 relief. We affirm as Pettway’s arguments are either foreclosed by the
decisions in his prior appeals, do not contain the required specificity, are refuted by
the record, and/or do not establish prejudice.
The relevant facts in the underlying criminal case are as follows:
Troya Sheckles was shot and killed in Shelby Park
in Louisville around 7:30 p.m. on March 23, 2009.
Several people saw the shooting, and they all gave
largely consistent descriptions of the shooter as being a
male in dark clothing with a bandana tied around his
face.
Steven Pettway and codefendant Dejuan
Hammond were eventually charged with Sheckles’s
murder, as well as intimidating a participant in the legal
process under [Kentucky Revised Statutes (KRS)]
524.040 and retaliating against a participant in the legal
process under KRS 524.055.
The Commonwealth’s theory of the case was that
Pettway killed Sheckles at Dejuan Hammond’s direction
to prevent her from testifying in the upcoming murder
trial of his younger brother, Lloyd Hammond. Sheckles
had witnessed the killing of William Sawyers in her
home in 2006 and had identified Lloyd Hammond as the
killer. Pettway was friends with the Hammonds, and the
then-sixteen-year-old Pettway looked up to the much
older Dejuan Hammond as a sort of mentor. The
Commonwealth’s evidence showed, among other things,
that Pettway and Dejuan Hammond knew Sheckles was
the essential witness for the Commonwealth in Lloyd
Hammond’s upcoming murder trial and had stashed a 9-
mm pistol (the same kind used in Sheckles’s shooting) at
a friend’s house about a month before the murder. There
was also testimony about numerous statements made by
Pettway following the murder admitting that he had shot
Sheckles so that she could not testify against Lloyd
Hammond.
The jury ultimately convicted Pettway of murder
and intimidating a participant in the legal process (but
found him not guilty of the retaliation charge) and
recommended a 50-year prison sentence for murder and
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five-year sentence for the intimidation conviction to run
consecutively. The trial court sentenced him to a total of
55 years’ imprisonment in accordance with the jury’s
recommendations.
Pettway v. Commonwealth, 470 S.W.3d 706, 707-08 (Ky. 2015) (Pettway I)
(footnote omitted).
In his direct appeal, Pettway was partially successful. The Court
concluded, even though the issue was not preserved, that Pettway could not be
properly convicted of intimidating a participant in the legal process under KRS
524.040 for intentionally killing Sheckles. It reversed that conviction and five-year
sentence. Id. at 708-10.
However, the Kentucky Supreme Court declined to give Pettway any
relief from his murder conviction based upon his argument that “delayed
disclosures of discovery material by the Commonwealth constituted arbitrary state
action prohibited by Section 2 of the Kentucky Constitution warranting dismissal
of the charges against him.” Pettway I, 470 S.W.3d at 707. We discuss why the
Kentucky Supreme Court declined to grant him relief on this issue as it is relevant
to this RCr 11.42 appeal.
As Pettway’s argument at least implicitly
concedes, he has no grounds on which to claim that the
trial court’s actions regarding the discovery violations by
the Commonwealth below were error. The court granted
his motion for a mistrial as a result of the first violation.
Similarly, the trial court acted well within its discretion
in declining to dismiss with prejudice the charges against
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Pettway following the second delayed disclosure. And
the trial court ordered appropriate relief by excluding the
belatedly disclosed evidence (potentially subject to a
missing evidence instruction) when Pettway, going
against the advice of trial counsel to seek a continuance,
chose to proceed to trial despite the delayed disclosure.
He, therefore, received all the relief to which he was
entitled under Criminal Rules 7.24 and 7.26 and has no
cause to complain further. See RCr 7.24(9).
Nevertheless, Pettway claims this extraordinary
remedy is justified to cure the prosecution’s allegedly
arbitrary actions in inadvertently failing to timely turn
over discovery materials (which, incidentally, have not
been shown to contain any exculpatory evidence).
Ironically, this would require the Court itself to act
arbitrarily. Pettway has already received appropriate
judicial remedies in the form of a mistrial and exclusion
of evidence. To pile on [by granting him the relief to
have this Court dismiss his indictment with prejudice to
remedy the two discovery violations] would be nothing
but arbitrary. And such action would raise significant
separation-of-powers concerns. While we acknowledge
the observation of Chief Justice Palmore that
“[s]ometimes, as Holmes remarked, because the
constable blundered the criminal must go free, that being
the most effective method of helping the constable not to
blunder the next time,” Reid v. Cowan, 502 S.W.2d 41,
42 (Ky. 1973), this is not one of those times. There was
no blunder that could not be appropriately addressed, as
the trial court did here, under our rules of procedure.
This claim has no merit.
Pettway I, 470 S.W.3d at 711-12.
After Pettway learned of another discovery violation, which came to
light during the trial of his codefendant, Pettway filed a motion for a new trial.
The relevant facts as to that discovery violation are as follows:
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In a separate trial, Dejuan Hammond was also
convicted of Sheckles’[s] murder. One of the witnesses
who testified at [Pettway’s] trial was Dejuan Hammond’s
girlfriend, Princess Bolin. Bolin had told police that she
was at Shelby Park with a friend when Sheckles was
killed and that she had seen [Pettway] commit the crime.
When asked at [Pettway’s] trial to repeat what she had
seen, Bolin balked. The incriminating assertion was then
presented to the jury through the prior statement she had
given to the police.
During the appeal of [Pettway’s] conviction to this
Court, his attorney received notice from the prosecutors
that Bolin had made a different, and previously
undisclosed, pre-trial statement to police detective Roy
Stalvey. The failure to make a more timely disclosure of
Bolin’s other statement appears to have been inadvertent.
It was uncovered during the subsequent trial of
codefendant Dejuan Hammond.
In that statement, contrary to what was presented
at [Pettway’s] trial, Bolin denied knowing anything about
Sheckles’[s] murder. [Bolin] told Detective Stalvey that
she was with Dejuan Hammond buying shoes at the
Jefferson Mall when Sheckles was murdered. Although
this belatedly-disclosed statement provides an alibi for
Dejuan, it does not exonerate [Pettway]. Nevertheless, it
would have been a useful impeachment tool for
undermining the trial testimony that Bolin saw [Pettway]
shoot Sheckles. The Commonwealth conceded that
[Pettway] should have received the report of the
statement prior to his trial.
Pettway v. Commonwealth, No. 2016-SC-000392-TG, 2017 WL 2591813, at *1-2
(Ky. Jun. 15, 2017) (Pettway II) (unpublished) (footnotes omitted).
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On appeal, the Kentucky Supreme Court explained its decision to
decline to give Pettway relief as follows, quoting extensively from the trial court’s
decision and agreeing with its assessment:
While the Court agrees this evidence may
have provided [Pettway] with another avenue to
impeach the statements of Princess Bolin regarding
the crime, that statement only provided an alibi for
Dejuan Hammond, and was not supported by other
witnesses or information in the case. The newly
discovered evidence contains information very
remote from the issues related to [Pettway].
To any observer of [Pettway’s] trial,
Princess Bolin was already a witness frustratingly
rife with a plethora of contradictions. Kayonia
Thomas’[s] testimony [which was to the effect that
she saw Pettway and Hammond driving near
Shelby Park at the time of the shooting] was not
related to the investigative letter, and she could not
realistically be impeached with one of Princess
Bolin’s out of court statements. The Court not
only finds that the new evidence here was not
likely to change the outcome of the trial, but for
the above reasons, would not have made any
significant difference in the trial of this case.
There was a substantial amount of information
involved in this trial. Given the totality of the
other evidence presented, as well as the already
inconsistent nature of Bolin’s testimony, the Court
does not find the information would have changed
the outcome of the jury’s decision to convict
[Pettway] on the one count of murder.
Trial Court’s Nov. 20, 2015, Order, pgs 5-7.
We agree with the trial court’s assessment. The
substance of Bolin’s undisclosed statements provided
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Dejuan Hammond with an alibi for the shooting, but it
did not exculpate [Pettway]. It would have aided
[Pettway’s] effort to impeach Bolin’s other statement, but
as the trial court noted, she had already been shown to be
an uncooperative, contradictory, and inconsistent
witness. Given the level of impeachment material
already available to discredit Bolin, this new information
would have been only marginally helpful.
Moreover, since Sheckles was apparently killed to
prevent her from testifying against Lloyd Hammond, the
credibility of Bolin’s initial disclaimer of any knowledge
about the shooting is burdened by the appearance that she
was falsely distancing herself from the crime to avoid a
similar fate. The exculpatory effect of the statement
would no doubt be blunted by the Commonwealth’s
ability to point out Bolin’s incentive to deny knowledge
of the murder.
In summary, we agree with the trial court that
[Pettway] is not entitled to a new trial under the
applicable standard for obtaining relief under RCr 10.02
in that the new information was not “of such decisive
value or force that it would with reasonable certainty”
have changed the verdict, or “would probably change the
result if a new trial should be granted.” Jennings [v.
Commonwealth], 380 S.W.2d [284,] 285-86 [(Ky.
1964)].
For similar reasons, [Pettway] is not entitled to
relief under a Brady v. Maryland[, 373 U.S. 83, 83 S.Ct.
1194, 410 L.Ed.2d 215 (1963),] analysis. The evidence
satisfies the first two prongs of the Strickler v. Greene[,
527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999),]
test because it was useful to discredit Bolin and was
erroneously withheld; nevertheless, [Pettway] fails to
satisfy the third prong of the inquiry as he was not
substantially prejudiced by the Commonwealth’s failure
to timely turn over the Bolin interview information.
-7-
Goben [v. Commonwealth], 503 S.W.3d [890,] 914 [(Ky.
2016)].
2017 WL 2591813, at *3-4.
In 2018, Pettway filed a motion to vacate, set aside, or correct his
sentence pursuant to RCr 11.42, raising several issues.1 Pettway argued he was
entitled to a new trial because the Commonwealth wrongfully withheld material
exculpatory evidence. Pettway also argued he received ineffective assistance of
counsel where counsel: (1) failed to investigate and present evidence of Pettway’s
alibi defense at trial; (2) directed him not to testify at trial; (3) failed to obtain
exculpatory discoverable evidence from the prosecution; and (4) failed to confront
and impeach witness Dontez Hurt with his prior inconsistent statements. Pettway
requested an evidentiary hearing and a new trial.
The trial court summarily denied Pettway’s motion and Pettway
appealed.
To be entitled to the extraordinary relief of RCr 11.42, Pettway must
establish he was deprived of his constitutional right to counsel. Brown v.
Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Under Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984),
Pettway must show his counsel’s performance was incompetent and prejudiced
1
We only discuss the arguments below that Pettway continues to argue on appeal.
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him because it fell below an objective standard of reasonableness and there is a
reasonable probability that the result of his jury trial would have been different but
for counsel’s errors.
“A perfect trial is never required. What is required is a fair trial.”
Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993). “[T]he question
should be absent counsel’s errors, would the factfinder have had a reasonable
doubt respecting guilt?” Brown, 253 S.W.3d at 499. “[T]he threshold issue is not
whether [appellant]’s attorney was inadequate; rather, it is whether he was so
manifestly ineffective that defeat was snatched from the hands of probable
victory.” Cherry v. Commonwealth, 545 S.W.3d 318, 323 (Ky.App. 2018)
(quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (bold
emphasis added in Cherry)). “Counsel is constitutionally ineffective only if
performance below professional standards caused the defendant to lose what he
otherwise would probably have won.” Commonwealth v. Bussell, 226 S.W.3d 96,
103 (Ky. 2007) (quoting Morrow, 977 F.2d at 229).
In making such a determination, we acknowledge that “a verdict or
conclusion which has little evidentiary support is more likely to have been affected
by counsel’s error than a verdict which is supported by substantial evidence.”
Brown, 253 S.W.3d at 499-500. Conversely, a verdict with substantial support
absent counsel’s errors would make it difficult for a defendant to satisfy “the
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burden of showing that the decision reached would have been reasonably likely to
be in his favor absent the errors.” Id. at 500.
“[T]o be entitled to relief under RCr 11.42, the movant must ‘state
specifically the grounds on which the sentence is being challenged and the facts on
which the movant relies in support of such grounds.’ RCr 11.42(2).” Roach v.
Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). If this specificity requirement
is not satisfied, summary dismissal is appropriate. Id.RCr 11.42(5) only requires a hearing “[i]f the answer raises a material
issue of fact that cannot be determined on the face of the record[.]” See Parrish v.
Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008). “The trial judge may not
simply disbelieve factual allegations in the absence of evidence in the record
refuting them.” Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001).
Accordingly, “[i]f the record refutes the claims of error, there is no
need for an evidentiary hearing. A hearing is also unnecessary where the
allegations, even if true, would not be sufficient to invalidate the conviction.”
Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998) (citations omitted).
“Where the record is clear that an ineffective assistance of counsel claim would
ultimately fail the prejudice prong of Strickland, regardless of the outcome of a
hearing on the deficiency prong, the trial court should be affirmed even in the
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absence of such a hearing.” Haley v. Commonwealth, 586 S.W.3d 744, 751
(Ky.App. 2019).
Pettway argues that he is entitled to a new trial based on discovery
violations. However, relief on this argument is foreclosed based on law of the case
given the legal rulings the Kentucky Supreme Court made in Pettway I and
Pettway II.
In Pettway I, Pettway argued he was entitled to have his charges
dismissed based on the delayed receipt of discovery on two matters. The Kentucky
Supreme Court determined that Pettway received all the relief he was entitled to in
Pettway I where the first delayed disclosure resulted in the granting of a mistrial
and the second delayed disclosure resulted in the exclusion of the belatedly
disclosed evidence from trial. 470 S.W.3d at 711-12.
In Pettway II, Pettway argued he was entitled to a new trial because
the Commonwealth denied him exculpatory evidence in violation of Brady by
failing to produce Bolin’s first statement to police in which she denied seeing the
shooting take place. The Kentucky Supreme Court determined that while this was
a Brady violation, it was harmless. 2017 WL 2591813, at *4.
Under the law-of-the-case doctrine, we are bound by the prior
decisions of the Kentucky Supreme Court in this case and “the legal questions thus
determined by the appellate court will not be differently determined on a
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subsequent appeal in the same case.” Inman v. Inman, 648 S.W.2d 847, 849 (Ky.
1982). As the Pettway I and Pettway II decisions “settled the matter[,]” as to
whether discovery violations entitled Pettway to any relief, those resolutions are
conclusive and established the law of the case, so these claimed errors “cannot be
relitigated.” Gossett v. Commonwealth, 441 S.W.2d 117, 119 (Ky. 1969).
Pettway argues he should have been granted an evidentiary hearing on
his alibi defense as he raised an issue of fact that cannot be resolved from the
record. We disagree.
Pettway failed to plead with specificity that the witnesses he named
are available to be called, would be willing to testify, and to what they would
testify. Besides naming his mother, brother, and girlfriend (none of them by name)
and stating they would testify he was home on the evening of the murder, Pettway
has provided no other specifics or other supporting evidence such as affidavits
from these persons. Instead, it appears that Pettway is generally asserting what he
hopes their testimony would be, without making any effort to establish if this is
correct or not. This is insufficient specificity.
Additionally, in regard to each witness, record evidence suggested
those witnesses would not provide an alibi and/or would be problematic if they did
testify. As to Pettway’s brother, Eric Pettway’s testimony at trial highlights
several potential problems with his possible testimony as an alibi witness. Eric
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testified he was Pettway’s “oldest brother;” Pettway only lived with him for about
a month and a half in 2008; and Eric continued to live in Frankfort in 2009.
During 2009, the year when the shooting took place, Eric testified he only saw
Pettway twice, once in Frankfort and once in Louisville. Eric clarified that the first
visit in 2009 was when Pettway “came down once with his brother.”
This testimony indicates that Pettway has at least two brothers if not
more. If Pettway was stating that Eric could act as an alibi witness, Eric’s
testimony seems to refute this fact as according to Eric’s own testimony he did not
live with Pettway and his mother, and had only seen Pettway twice in 2009, only
once in Louisville. If Pettway is attempting to reference another brother as his
alibi, Pettway has not been specific enough in identifying who this is.
As to Pettway’s mother, Denise Pettway, as was discussed at trial in a
bench conference during Pettway’s aunt’s testimony, Denise was schizophrenic.2
As testified to by Pettway’s aunt, Pettway was unable to live with his mother all
the time due to her “special problems” and in 2008 lived with his father, his oldest
brother, the aunt’s mother, and then in 2009 was living with his mother part of the
time and in a foster home part of the time. Therefore, there is nothing to clarify
2
This is backed up by investigative reports, particularly that of Pettway’s grandmother, who the
detective reported stated that Denise has schizophrenia, had been recently institutionalized for
treatment when she did not take her medicine, and that Pettway had not been able to live with his
mother because of her condition and was supposed to be living with a foster mother. While this
report is hearsay, Pettway has not disputed that his mother has schizophrenia.
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whether Pettway was living with his mother at the time the shooting took place. If
Pettway were living with his mother on the day of the shooting, it is unclear
whether she would have been sufficiently stable at that time to accurately observe
his presence; whether if she testified she would be sufficiently stable to testify
well; her veracity and credibility could be questioned based on her condition; and
there were additional indications that she would not be the best witness for him
based on the knowledge she had regarding Pettway’s illegal activities and
relationship with Hammond.3
In considering Pettway’s girlfriend’s possible testimony, given
Pettway’s bald general assertions as to what she would testify to without him
offering any evidentiary support such as an affidavit, we believe it is appropriate to
consider evidence from the police investigative report in which Pettway’s
girlfriend’s statements were recorded.4 The contents of the report suggest that she
3
In the investigative report of the interview with Denise, there were further indications about her
mental instability, but she also had a lot of information about Pettway’s relationship with
Hammond, including Pettway’s selling drugs he got from Hammond, how Pettway would do
things for Hammond in exchange for getting Pettway high, and that Pettway’s loyalty to
Hammond was such that he “once took a drug charge for Doo Wop’s girlfriend . . . for cocaine.”
While this information may not have been admissible, had Denise testified consistently with this
report, it seems likely that Pettway would not have been painted in the best light.
4
The Commonwealth attached investigative reports of Denise and Pettway’s girlfriend to its
appellate brief. Pettway argues in his reply that these reports should not be considered because
they were not part of the record. He is incorrect, they are located in the discovery Redweld that
is contained in the record, just as the Commonwealth noted. While these reports are hearsay,
Pettway does not dispute the accuracy of his mother’s and his girlfriend’s statements as
contained therein or argue we should not consider them because they are inadmissible hearsay.
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would not be a helpful witness for Pettway, much less establish the alibi he claims.
According to the summary of her statements, Pettway was supposed to be living
with a foster mother but instead Pettway and the girlfriend lived together near but
not with Pettway’s mother; this contradicts Pettway’s assertion that his mother,
brother, and girlfriend were jointly home with him on the day of the shooting.
Pettway’s girlfriend also stated that although she was with Pettway part of the day
of the shooting, she was not with him between 4:00 p.m. and 9:00 p.m. This was
significant as based on eyewitness testimony to the murder, it was believed to have
taken place at around 7:30 p.m.5
Given the lack of specificity and the problems with their potential
testimony that we have identified, Pettway has failed to establish that his brother,
mother, or girlfriend would provide him with an alibi or be effective witnesses.
Furthermore, during the eight-day trial there was eyewitness testimony linking
Pettway to the crime as well as extensive testimony that Pettway admitted to
committing the murder. We believe that it is unlikely that alibi testimony, without
5
In the interview with Pettway’s girlfriend, which was a summary of an audio recording the
police made of it, she stated she and Pettway lived in a house to the right of his mother’s house
that Hammond had rented for Pettway. She made statements about witnessing Hammond and
Pettway selling crack many times and noted that Pettway usually carries a red bandana hanging
out of his back pocket (this was significant as witnesses identified the shooter as wearing a red
bandana over his face as a mask). She also stated she was with Pettway on the day of the
shooting but last saw him at 3:00-4:00 p.m., when he left with Hammond; she next saw him at
Hammond’s house after Hammond picked her up at around 9:00 p.m. Pettway’s girlfriend
admitted to seeing Pettway with a handgun several times and stated she broke up with him when
he pointed a handgun at her and threatened to kill her.
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any objective proof that Pettway was home during the murder, would be persuasive
to the jury under these circumstances. Compare with Wilson v. Cowan, 578 F.2d
166, 168 (6th Cir. 1978) (explaining “that under the facts of this case, counsel’s
failure to call an alibi witness who was ready and willing to testify, when coupled
with arguably less egregious errors, did deprive appellant of effective assistance of
counsel.”). Therefore, Pettway cannot establish that failure to investigate or call
his mother, brother, or girlfriend as witnesses would satisfy the prejudice prong of
Strickland, especially given the strong evidence against him.
Pettway argues he was denied the right to testify, the decision of
whether or not to testify was his decision to make, and this argument requires an
evidentiary hearing as it cannot be refuted by the record. While we agree that the
decision as to whether to testify belongs to the defendant, we disagree that Pettway
has established that there is a factual dispute on this issue that requires an
evidentiary hearing.
As is noted in Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704,
2708, 97 L.Ed.2d 37 (1987), “it cannot be doubted that a defendant in a criminal
case has the right to take the witness stand and to testify in his or her own
defense.” The right of a defendant to testify on his own behalf is established by the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution,
Section 11 of the Kentucky Constitution, and KRS 421.225. Quarels v.
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Commonwealth, 142 S.W.3d 73, 79 (Ky. 2004); Crawley v. Commonwealth, 107
S.W.3d 197, 199 (Ky. 2003). This right cannot be waived by counsel and any
waiver by the defendant must be knowing and intelligent. Riley v. Commonwealth,
91 S.W.3d 560, 562 (Ky. 2002).
We agree with the Sixth Circuit’s analysis of this issue as set out in
United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000), and Hodge v.
Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009), as it is consistent with the analysis
of Kentucky’s then highest Court regarding the availability of a writ of coram
nobis in Kinder v. Commonwealth, 269 S.W.2d 212, 213-14 (Ky. 1954).6
Webber explains that a defendant who wishes to testify despite
counsel’s advice to the contrary must alert the court to his desire to testify or
disagreement with counsel’s advice. Webber, 208 F.3d at 551. “When a defendant
does not alert the trial court of a disagreement, waiver of the right to testify may be
inferred from the defendant’s conduct.” Id.6
This analysis has also been adopted by our Court in Baker v. Commonwealth, No. 2013-CA-
000256-MR, 2014 WL 2040163, at *3 (Ky.App. May 16, 2014) (unpublished). See also
Robinson v. Commonwealth, No. 2013-CA-000509-MR, 2015 WL 3826210, at *3 (Ky.App. Jun.
19, 2015) (unpublished) (referencing Webber for the presumption regarding waiver of the right
to testify).
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Hodge explains that in reviewing an ineffective assistance of counsel
claim regarding the denial of the right to testify, the reviewing court presumes: (1)
the defendant “waived his right to testify unless the record contains evidence
indicating otherwise” and (2) “trial counsel adhered to the requirements of
professional conduct and left the final decision about whether to testify with the
client.” Hodge, 579 F.3d at 639. “[The defendant’s] present allegations that he
wanted to testify and was prevented from doing so do not suffice to overcome the
presumption that he assented to the tactical decision that he not testify.” Id.Similarly, under the writ of coram nobis, relief did not lie for a
defendant’s claim that counsel denied him the right to testify when counsel advised
the defendant not to testify because the defendant was presumed to have acted on
the advice of counsel. Kinder, 269 S.W.2d at 213-14. As explained therein, the
Court proclaimed:
[W]e shall not permit the attempted use of this
extraordinary writ to be perverted to allow an accused to
act on the advice of his counsel, and take his chance
before a jury, and then when convicted, claim that he was
denied his constitutional right to testify. Should we
recognize such a claim, then in every criminal case the
accused could merely not testify and, after conviction,
claim he did not know he had the right to testify, and
apply to the court for a writ of coram nobis. We will not
sanction such a procedure.
Id. at 214.
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We presume Pettway was following the advice of defense counsel not
to testify because he made no effort to alert the trial court to his wish to testify.
Pettway has presented nothing to counter the presumption that he chose not to
testify. He is bound by his previous decision and does not get a “redo” because he
is dissatisfied with the results of his trial.
Additionally, this claim lacks specificity because Pettway does not
explain how counsel denied him of his right to testify. He ambiguously states that
trial counsel directed him not to testify and that he wanted to testify and would
have done so “had his counsel not told him he could not testify.” Pettway does not
allege that he was unaware of his right to testify, told his counsel he wanted to
testify but was told that this was counsel’s decision rather than his, or that counsel
did something to prevent him from asking the trial court to let him testify. The
evidence suggests that Pettway knew he had the right to testify based on him being
present during jury selection when his counsel stated that Pettway may or may not
take the stand. The evidence also suggests that he was willing to act against the
advice of counsel when he believed the situation warranted it. See Pettway I, 470
S.W.3d at 711 (explaining Pettway went against the advice of counsel in choosing
to proceed to trial rather than seek a continuance due to a delayed discovery
disclosure).
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As for what he wanted to testify about, Pettway only states that if he
had testified, he would have been able to explain to the jury that he was not
involved in the murder and “was at home on the day of the crime, with his mother,
brother and girlfriend.” As we have already discussed, there is no reason to
believe that Pettway’s mother, brother, and girlfriend would testify to this fact;
therefore it would be Pettway’s testimony alone available to establish he was
home.
Pettway also had a credibility problem which would not be aided if he
took the stand and had been confronted with his admissions to other witnesses
about committing the murder and his own problematic statements to the police
when he was interviewed.7 Given these problems, and the substantial evidence
which supported the jury’s finding that Pettway murdered Sheckles, Pettway’s
testifying that he was not involved would be unlikely to persuade the jury.
7
We acknowledge, again, that the statements relayed in these investigative reports are hearsay.
However, at minimum, these statements could have been used to impeach Pettway’s potential
testimony.
In the first interview when confronted about being Sheckles’s shooter, Pettway denied
knowing anything about her or a murder in Shelby Park, laughed when he denied shooting her,
said he had not heard about it, but then contradicted his lack of knowledge when he said he had
heard the shooter was wearing a mask and no one knew who he was. According to the detective,
when he asked Pettway where he was the day of the murder “he sarcastically said that he could
not remember. He then laughed.” When the detective told Pettway that Hammond was locked
up and would be telling on him about Pettway’s committing the murder, the detective noted
Pettway said “[Hammond’s] my brother and he won’t say sh*t.”
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Additionally, if his counsel believed that by testifying Pettway would
be lying, his counsel would have faced “trying to balance the client’s constitutional
rights [to testify, to counsel, and to a fair trial] and the duty to keep the client’s
confidences with the duty of candor to the court.” Brown v. Commonwealth, 226
S.W.3d 74, 78 (Ky. 2007). “When a lawyer determines that her client is about to
offer false testimony, all sources agree that the lawyer should first seek to persuade
the client that such evidence should not be offered.” Id. at 79. “There is no
constitutional or permissible right of a defendant to testify falsely. When defense
counsel attempts to persuade a defendant to testify truthfully, counsel is not
depriving the defendant of his right to counsel nor the right to testify truthfully.”
Id. at 83 (quoting Commonwealth v. Mitchell, 438 Mass. 535, 551, 781 N.E.2d
1237, 1250 (2003)). If this is what occurred and counsel’s discussion with Pettway
resulted in Pettway’s deciding not to testify, this would be an appropriate action
rather than ineffective assistance of counsel, as counsel would have avoided the
various pitfalls present in such a situation as set out in Brown. Id. at 79-85.
Pettway argues that his defense counsel was ineffective for failing to
discover that the Commonwealth was committing discovery violations and not
obtaining such information earlier. To the extent that Pettway attempts to recast
the arguments he made regarding discovery delays in his direct appeal, Pettway I,
and the Brady violation regarding the failure to disclose Bolin’s previous statement
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at all in the appeal of the denial of the motion for new trial, Pettway II, into a claim
of ineffective assistance of counsel, because there was no prejudice as established
in his prior appeals, he cannot receive relief for them now. This is because “[t]he
‘reasonable probability’ standard of Strickland is the same ‘reasonable probability’
standard used to prove a Brady violation, viz., a ‘probability sufficient to
undermine confidence in the outcome.’” Bussell, 226 S.W.3d at 103 (quoting
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068).
While we understand Pettway’s frustration with the outcome of those
proceedings, Pettway cannot have another bite at the apple where the Kentucky
Supreme Court, while acknowledging the withholding of this material was in error,
determined he either received appropriate relief or the error was harmless.
Therefore, while we can consider whether Pettway’s counsel was ineffective
because counsel should have known that this evidence was being withheld and
failed to act on such knowledge to discover this omitted material, even if Pettway’s
counsel erred, the error cannot satisfy the second prong of Strickland where any
error was not prejudicial.
Pettway argues that his counsel was ineffective for never impeaching
Hurt with inconsistencies from his prior statement to police and states he was
prejudiced because “[i]f trial counsel would have effectively cross-examined Mr.
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Hurt, his testimony, credibility, and identification of Steven Pettway would have
been destroyed.” We disagree.
Pettway states that Hurt told the jury he was able to identify Pettway
because his mask came off during the incident, and Pettway pointed the gun at
Hurt, looked him in the face, and then pointed back at Sheckles. Pettway claims
this testimony was inconsistent with Hurt’s prior statement in which he said the
shooter had a mask on, never mentioned it coming off, said the shooter had
dreadlocks, focused the entire time on Sheckles, and never pointed the gun at Hurt.
Typically, the method of how to cross-examine a witness is a tactical
decision which will not be second-guessed in an RCr 11.42 proceeding.
Hodge v. Commonwealth, 116 S.W.3d 463, 473 (Ky. 2003), overruled on other
grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009).
Furthermore, the video record from the trial shows that counsel did vigorously
cross-examine Hurt and repeatedly had him read his prior inconsistent statements.8
This included inconsistencies about what the shooter looked like as presented at
trial when compared with his previous description including that the shooter had
“dreads” or braids, was about his size (Hurt was far taller than Pettway, as
8
Pettway failed to cite to where in the record Hurt’s previous statements could be found despite
the requirement in Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v) which states that the
argument must have “ample supportive references to the record and citations of authority
pertinent to each issue of law[.]” The only portions of Hurt’s prior statement that we have found
are those which Hurt read during cross-examination at trial, as part of Pettway’s counsel’s
impeachment with prior inconsistent statements.
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established by Pettway’s family members testifying that at the time of the shooting
he was a small, skinny guy, only reaching the shoulder of his five-foot-six-inch tall
aunt, and always had short hair), and having his face concealed by a bandana.
Counsel also had Hurt read his prior statements that the shooter had never aimed at
him. Therefore, everything Pettway complains was insufficiently raised in cross-
examination was in fact raised, thereby refuting his claim.
Additionally, Hurt was able to reconcile some of his statements on
redirect. He explained that while in his initial interview he reported the shooter
had braids or dreads, he did not actually see braids or dreads, but because the
sweatshirt hood that the shooter was wearing puffed out, he assumed that meant
the shooter had braids or dreads. He demonstrated with a tissue that what he meant
by the shooter’s bandana coming down was that the shooter’s face was uncovered
to just below his top lip, but that it was still on the shooter’s face. Therefore,
coming down did not mean coming off. Hurt also clarified that when he was
interviewed right after the shooter appeared that he was still under shock from
seeing Sheckles shot and the unsuccessful attempts to save her through CPR; he
had passed out from this event and he was not as coherent or clear about what had
happened at the time as he was later.
Although Hurt agreed he had not previously identified Pettway as the
shooter prior to trial, he said this was because he did not know Pettway at the time
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of the shooting but put it all together when he saw him. While Pettway’s counsel
diligently tried to discredit Hurt’s identification of Pettway as the shooter,
Hurt remained steadfast on this key point.
As noted in Stanford, 854 S.W.2d at 748, “[a]fter every trial, win or
lose, candid lawyers can think of ways they might have done better. A perfect trial
is never required. What is required is a fair trial.” While, perhaps, an even better
cross-examination of Hurt could have taken place, Pettway was not deprived of his
right to counsel from the skilled cross-examination that did take place.
Additionally, there is no showing of prejudice as there is no reason to believe that a
better cross-examination would have resulted in Hurt stating he was mistaken in
his identification of Pettway, or in the jury disbelieving him. Therefore, a
summary denial on this issue was appropriate.
In summation, we are confident that there are no material issues of
fact raised by adequate allegations that cannot be conclusively resolved by an
examination of the record. Additionally, we believe that Pettway was not
prejudiced in any event. See Moore v. Commonwealth, 983 S.W.2d 479, 484 (Ky.
1998) (discussing how “in light of all of the evidence presented at trial,” the jury
would have to disbelieve several witnesses and, therefore, the Court believed that a
failure to impeach one witness’s testimony and a failure to present testimony from
another witness “did not alter the entire evidentiary picture in [a]ppellant’s trial.”).
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Therefore, an evidentiary hearing was not required, and the trial court acted
appropriately.
Accordingly, we affirm the Jefferson Circuit Court’s summary denial
of Pettway’s motion for RCr 11.42 relief.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael Lawrence Goodwin Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
James Coleman Shackelford
Assistant Attorney General
Frankfort, Kentucky
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