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Mills v. Commonwealth5/19/2005
mance in this regard was reasonably effective. However, " efore any possible mitigating evidence can be weighed in a meaningful manner, that evidence first must be determined and delineated. This is the proper function of an evidentiary hearing." As such, we follow the ruling in Hodge and note that " n evidentiary hearing must be held in this case to determine whether the failure to introduce mitigating evidence was trial strategy, or an abdication of advocacy.''
V. OVERRULING MOTION TO RECUSE TRIAL JUDGE FROM PRESIDING OVER RCr 11.42 PROCEEDINGS
Appellant separately raises the issue of whether the trial judge erred by failing to recuse from the RCr 11.42 proceeding. We must first address the Commonwealth's argument that Appellant's recusal claim is procedurally defaulted because he did not avail himself of KRS 26A.020 after making a motion before the trial court under KRS 26A.015. We have previously rejected the Commonwealth's remedy exhaustion argument by noting that KRS 26A.020 is merely an alternative procedure to KRS 26A.015. As such, Appellant has not defaulted this claim, and we must address Appellant's various claims that the trial judge's impartiality might reasonably have been questioned, thus requiring him to recuse himself from the RCr 11.42 proceeding.
Appellant claims the trial judge should be recused because he had extra-judicial knowledge about some of the issues that could have affected his decision on the RCr 11.42 motion and because this knowledge made him a material witness in the RCr 11.42 proceeding. Appellant points to three areas in particular-the judge's knowledge of Sam Shepherd's other criminal cases, of his alleged meeting with jurors following the jury's death verdict, and knowledge of Appellant's juvenile record-all of which have been addressed already in part in Section V(A)(2) above. Because Appellant failed to raise colorable claims as to those issues, as addressed above, it was unnecessary for the trial judge to recuse himself from the RCr 11.42 proceeding.
VI. WHETHER THE TRIAL COURT ERRED IN FINDING THAT JUDICIAL PRIVILEGE BARRED THE TESTIMONY OF MS. BENZING
Appellant argues that the trial judge erred in finding that judicial privilege barred the testimony of his former law clerk, Ellen Benzing, because there is no judicial privilege under Kentucky law and because Ms. Benzing waived any such privilege by her disclosure while working at the DPA. As discussed above, in section V(A)(2)(c), the trial court correctly held that the record refutes Appellant's incomplete and vague allegations of an improper meeting. As such, we need not determine whether the trial judge was correct in ruling that there exists a judicial privilege that extends to judicial law clerks.
VII. WHETHER THE TRIAL JUDGE ERRED BY FAILING TO RECUSE FROM RULING ON THE JUDICIAL PRIVILEGE ISSUE
Appellant alleges that the trial judge also erred in failing to disqualify himself from ruling on the judicial privilege issue. This claim must fail for the same reason as the preceding claim. The judicial privilege issue was rendered moot by the fact that the record contradicted Appellant's allegations. Therefore, Appellant has not established convincingly that he was deprived of a substantial right.
VIII. CONCLUSION
For the reasons set forth above, we affirm the trial court's order overruling Appellant's RCr 11.42 motion, except as to Appellant's claims regarding his attorney's alleged ineffective assistance and the prosecutor's alleged misconduct relating to the possibility that another person killed the victim and possibility that exculpatory evidence was not turned over to the defense, and as to Appellant'
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