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Bowles v. Commonwealth12/17/2004
REVERSING AND REMANDING
Edward T. Bowles appeals from an opinion and judgment entered by the Christian Circuit Court denying his RCr 11.42 motion. We reverse and remand for a new trial. Bowles was convicted of murder following a trial by jury. The judgment and sentence on plea of not guilty adjudging Bowles guilty of murder and sentencing him to life in prison was entered on October 4, 1996. Thereafter, his conviction was affirmed by the Supreme Court of Kentucky in a not-to-be-published memorandum opinion of the court rendered April 16, 1998. On May 27, 1998, Bowles filed a pro se motion to vacate judgment pursuant to RCr 11.42. While his RCr 11.42 motion was pending, his trial attorney, Joel R. Embry was indicted on several criminal charges. During the pendency of the criminal charges against him, Embry refused to consult with the Commonwealth Attorney's office relative to Bowles's RCr 11.42 motion. As such, the pending RCr 11.42 motion was placed on hold until Embry's criminal charges were resolved. Once the conflict had been resolved, the circuit court held a two-day evidentiary hearing and permitted the parties to file supplemental briefs. Thereafter, the Christian Circuit Court entered its opinion and judgment denying Bowles's RCr 11.42 motion. This appeal followed.
On appeal, Bowles raises the following five allegations of ineffective assistance of counsel as to Embry's trial representation: (1) Counsel's failure to properly address and preserve for appellate review the issue of hit and run evidence; (2) counsel's failure to be able to introduce James [Bowles's] Maryland court opinion of his rape conviction; (3) counsel's failure to investigate and call witnesses and to attack the character and credibility of James Bowles, including counsel's failure to utilize readily available work product of predecessor counsel and information from first trial; (4) counsel's failure to seek a jury instruction for First Degree Manslaughter; and (5) cumulative error. We shall address each allegation separately and in the order presented by Bowles.
Before we review the issues raised by Bowles on appeal, it is necessary to set forth the standard of review applicable to an appellate review of a RCr 11.42 motion. The Supreme Court of Kentucky recently revisited the issue of RCr 11.42 post-conviction proceedings in Haight v. Commonwealth, Ky., 41 S.W.3d 436 (2001). In Haight, the Court held:
We believe it is valuable to again set out the standard of review of claims raised in a collateral attack under RCr 11.42, alleging ineffective assistance of trial counsel at the original trial. Such a motion is limited to the issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be relitigated in these proceedings by simply claiming that it amounts to ineffective assistance of counsel. Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998); Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990) and Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993).
The standards which measure ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985); Sanborn, supra. In order to be ineffective, performance of counsel must be below the objective standard of reasonableness and so prejudicial as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). The critical iss
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