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Mills v. Commonwealth5/19/2005
at such testimony would consist of. Discovery is not authorized in an RCr 11.42 proceeding. Appellant has, in effect, asked this Court to allow him to engage in the sort of "fishing expedition" that we have consistently rejected. We refuse to alter the rule on this matter.
b. Lack of Investigation and Failure to Present More Evidence of Intoxication
Appellant also argues that his trial lawyer was deficient because he "conducted no investigation in this case." Appellant offers little support for this statement, and, in fact, did not raise this specific issue in his RCr 11.42 motion. Instead, this claim appears to be part and parcel of most of Appellant's other claims. To the extent that this claim undergirds Appellant's other claims, we address it with those other issues, and simply note that we have previously held that vague allegations, including those of failure to investigate, do not warrant an evidentiary hearing and warrant summary dismissal of the RCr 11.42 motion.
Appellant does make one specific and extended allegation in this regard in his brief. He claims that his lawyer was ineffective in not having more fully investigated and presented evidence of Appellant's intoxication. In Norton v. Commonwealth, we previously held that a failure to present testimony establishing that a defendant was intoxicated could be grounds for an evidentiary hearing regarding deficiency of counsel. In Norton, the defense lawyer did not call any of the three witnesses who were willing to testify that appellant was intoxicated at the time of his arrest even though intoxication was appellant's only defense at tria1. This Court reversed the trial court's rejection of appellant's RCr 11.42 motion because the intoxication defense was vital to the defendant's strategy. Unlike in Norton, however, ample evidence of intoxication was presented to the jury, as discussed above. It is unlikely that more evidence of Appellant's intoxication would have changed the outcome at trial. As such, any failure on his lawyer's part to more fully investigate and present the intoxication defense does not rise to the level of ineffective assistance of counsel. Nonetheless, because Appellant has raised several specific factual claims in this regard in his brief, we address those claims individually.
Appellant claims that his lawyer should have presented the testimony of Deputy Tom Gray, who filled out an affidavit in which he stated that Appellant "smelled strongly of alcohol and was slurring his speech" at the time of his arrest. Again, as noted above, the jury heard ample evidence of Appellant's intoxication. Detective Hall testified at trial that Appellant was intoxicated at the time of his arrest, and, more importantly, the jury saw Appellant's videotaped confession, which allowed them to see for themselves that Appellant was slurring his speech and behaving in an intoxicated manner. Deputy Gray's testimony would have been redundant and likely would not have changed the outcome of the proceeding.
Though much later in the his brief, Appellant also claims that his lawyer should have more fully cross-examined Detective Partin, who had testified before the grand jury and at the suppression hearing that Appellant was very intoxicated such that he could barely stand up and had to be helped by officers so that he would not fall down. Again, this testimony would have been redundant given that there was other evidence of Appellant's level of intoxication, including a videotape taken of Appellant at or near the same time that Detective Partin observed him.
Appellant also alleges that his lawyer should have introduced a toxicology report from the University of Kentucky Hospital showing tha
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