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Whobrey v. Commonwealth9/3/2004
AFFIRMING
In 2003-CA-000428-MR, Terry Wayne Whobrey appeals from an order of the Jefferson Circuit Court entered on January 15, 2003 in which the trial court denied his motion, pursuant to RCr 11.42, to vacate his criminal conviction. In 2003-CA-000686-MR, Kenneth Davidson appeals from an order of the Jefferson Circuit Court entered on March 11, 2003, in which the trial court denied his pro se motion, pursuant to CR 60.02(f), to correct his sentence.
On appeal, Whobrey argues that his trial counsel rendered ineffective assistance of counsel because he failed to tender instructions regarding Extreme Emotional Disturbance ("EED") and voluntary intoxication. Also, Whobrey argues that the trial court erred when it failed to sua sponte instruct the jury on EED and voluntary intoxication. Finally, Whobrey argues the trial court erred when it denied his RCr 11.42 motion without holding an evidentiary hearing since he insists that his allegations cannot be clearly refuted by the record. Finding no error, we affirm the trial court's denial of the RCr 11.42 motion.
On the night of March 23, 1998, Johnnie Hightower and his friend John Rosenbarger went to a local bar, JR's. When the two friends arrived at the bar at approximately 11:30 p.m., they found Terry Whobrey, Gregory Curtis, and Bobby Whobrey already there.
According to the evidence presented at trial, Whobrey approached Rosenbarger. There was a brief exchange between the two in which Whobrey told Rosenbarger that what was to transpire did not concern him. At this point, Davidson struck Hightower with a pool cue. (It is unclear whether Davidson was already at the bar or if he arrived shortly after Hightower and Rosenbarger.) Bobby and Curtis began to strike Hightower with pool cues as well. Hightower fled the bar but the four attackers pursued him. They quickly caught Hightower. While Curtis and Bobby continued to strike Hightower with pool cues, Whobrey stabbed Hightower multiple times. Davidson either helped Whobrey stab Hightower or continued to strike Hightower; regardless, they continued the assault. After the attack, Hightower was transported to a local hospital where he died the next day from multiple stab wounds.
Whobrey was indicted on one count of capital murder, KRS 507.020, and one count of being a persistent felony offender in the second degree, KRS 532.080. Curtis, Davidson, and Bobby were indicted as Whobrey's co-defendants. The four proceeded to a jury trial which lasted from January 12 to January 21, 1999. At trial, Whobrey and his co-defendants claimed that they had acted in self-defense. The jury convicted Whobrey of intentional murder and of being a persistent felony offender in the second degree.
Whobrey appealed his conviction, but the Supreme Court of Kentucky affirmed his conviction in 1999-SC-0396-MR. On April 9, 2001, Whobrey filed a pro se motion, pursuant to RCr 11.42, to vacate his conviction. The trial court appointed counsel for Whobrey and gave his counsel an opportunity to supplement the pro se motion. On October 2, 2002, Whobrey's appointed counsel filed a supplemental memorandum and argued that Whobrey's trial counsel was ineffective since he failed to tender jury instructions regarding EED and voluntary intoxication. Whobrey's appointed counsel also argued that the trial court should have instructed the jury on both EED and voluntary intoxication given the evidence which came to light at trial. The trial court denied Whobrey's RCr 11.42 motion and Whobrey appealed to this Court.
On appeal, Whobrey, through appointed counsel, argues that his trial counsel rendered ineffective assistance of counsel because he failed to tender jury instr
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