STEVEN K. LANE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 24, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002143-MR
STEVEN K. LANE
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 98-CR-00443
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Steven K. Lane appeals from an order
entered by the Daviess Circuit Court denying his motion pursuant
to RCr1 11.42 to vacate his conviction.
He argues that the trial
court erred in denying his claims of ineffective assistance of
trial counsel without conducting an evidentiary hearing.
After
a careful review of the record, we affirm.
Lane and his friend, Ray Bolin, together murdered
Thomas Puckett on November 21, 1998 by bludgeoning and stabbing
1
Kentucky Rules of Criminal Procedure.
him to death.
They dumped his body along with the knife they
used for the murder into the river near Owensboro.
Several days
later, Puckett was found floating in the Ohio River.
Lane soon
talked with the police concerning his involvement in Puckett’s
death and gave them two statements, which he allowed to be
recorded.
In his first statement of December 1, 1998, Lane told
investigating officers that he, Bolin, and Puckett were fishing
and drinking alcohol on the day of Puckett’s death.
When
Puckett and Bolin began arguing, Puckett attempted to strangle
Bolin, who was smaller than Puckett.
Fearing for Bolin’s life,
Lane hit Puckett in the back of the head with a brick, breaking
the brick in half.
Lane said that he left the scene while
Puckett was still alive.
Although he urged Bolin to go with
him, Bolin refused to leave and stayed behind.
Bolin later told
Lane that he had slit Puckett’s throat and then rolled his body
into the river.
After giving this information to the police, Lane
cooperated with them in gathering evidence against Bolin by
wearing a wire and recording conversations with his friend.
After Bolin’s arrest, he not only confessed to murdering
Puckett, but he also implicated Lane as having plotted with him
to kill Puckett.
On December 3, 1998, confronted with Bolin’s
confession, Lane gave police a second statement.
He now
admitted that Puckett was sitting on the ground when he struck
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him with the brick and that Puckett had not assaulted Bolin that
day.
He also acknowledged that he and Bolin had planned the
murder prior to picking Puckett up to go fishing.
Both Lane and Bolin were indicted and charged with
murder.
Bolin pled guilty and was sentenced to serve twenty-
four years in prison.
Lane proceeded to trial.
Prior to his trial, Lane moved to suppress the
statements he had given to police by arguing that they were not
made voluntarily.
After an evidentiary hearing, the trial court
found that Lane had made a “knowing, intelligent, and voluntary
waiver of his rights” and allowed the statements to be admitted
into evidence.
Bolin testified for the Commonwealth and repeated
Lane’s involvement in planning and carrying out the murder.
Lane essentially told the jury the same story that he had
related to police in his first statement.
He claimed that he
struck Puckett for fear that Puckett was going to harm Bolin.
He said that he had no idea that Bolin intended to kill Puckett.
As to his second statement in which he had confessed to planning
Puckett’s death, he explained that he made the harmful
admissions because his integrity had been destroyed and he had
no hope that the officers would believe anything else.
He also
called three witnesses who characterized Puckett as a troubled,
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combative alcoholic.
They also testified that they had
witnessed Puckett assault Bolin several times in the past.
The jury was instructed on protection of another,
intentional murder, wanton murder, and the lesser degrees of
homicide (first-degree manslaughter, second-degree manslaughter,
and reckless homicide).
The jury convicted Lane of wanton
murder, and he was sentenced to twenty years in prison.
After the Kentucky Supreme Court affirmed his
conviction, Lane filed an RCr 11.42 motion.
He alleged that he
was denied a fair trial based on errors of his trial counsel.
He claimed that trial counsel rendered ineffective assistance by
failing to call witnesses who could testify that he himself had
been stabbed three years before the murder of Puckett.
Although
Puckett had not been involved in his earlier injury, Lane argued
that the evidence of that fight would have helped the jury
understand his state of mind at the time of his assault on
Puckett; that is, that he did not want himself or his friends to
be victimized by violent behavior.
He also alleged that trial counsel rendered poor
representation by failing to call Puckett’s brother, Jesse
Puckett, to testify about Puckett’s violent behavior toward
family members.
He observed that counsel failed to call any
witnesses at the suppression hearing.
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Finally, he argued that
the evidence at trial had been insufficient to support the
jury’s verdict.
The trial court rejected all of Lane’s arguments and
denied the motion without an evidentiary hearing.
It determined
that any evidence that Lane was assaulted three years before
Puckett’s death was not relevant to the issues in the murder
trial.
The court observed that trial counsel had called three
witnesses to testify about Puckett’s violent history toward
Bolin and that any additional testimony about Puckett’s violent
tendencies would have been merely cumulative.
The court also
held that any issue concerning the admission of Lane’s taped
confessions was procedurally barred by the doctrine of res
judicata.
Finally, the trial court concluded that the issue of
the sufficiency of the evidence was a matter that should have
been raised on direct appeal.
In this appeal, Lane once again argues that his
counsel was ineffective for failing to call Jesse Puckett in
order to bolster his defense that he justifiably feared that
Puckett would harm Bolin.
Lane believes that if the jury had
heard Puckett’s brother testify, he might have been convicted of
one of the lesser-included offenses of murder.
By failing to
conduct an evidentiary hearing, the trial court could not
determine whether he suffered prejudice by counsel’s failure to
call Jesse Puckett as a defense witness.
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Lane also argues that his trial counsel rendered
ineffective assistance by failing to present proper evidence at
the suppression hearing.
He contends that his confession was
coerced because one of the officers who took his statements had
a grudge against him.
He claims that his signature on the
waiver form was forged.
He blames counsel for failing to
request funds to employ a handwriting expert in order to
establish the forgery.
He last argues that counsel’s performance was
deficient for failure to require the Commonwealth to “meet the
Burden of Proof, pursuant to KRS2 500.070,” and by omitting to
move for a directed verdict of acquittal at the close of the
Commonwealth’s case. (Appellant’s brief, p. 9.)
In reviewing a claim of ineffective assistance of
counsel, we are compelled to defer to the presumed strategy and
ability of counsel absent a clear showing of incompetence that
prejudiced his client:
Judicial review of the performance of
defense counsel must be very deferential to
counsel and to the circumstances under which
they are required to operate. There is
always a strong presumption that the conduct
of counsel falls within the wide range of
reasonable professional assistance because
hindsight is always perfect.
2
Kentucky Revised Statutes.
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Hodge v. Commonwealth, Ky., 116 S.W.3d 463, 469 (2003).
The
test to be applied to claims of ineffective assistance as
established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), is dual:
the claimant must show
(1) that counsel’s performance was deficient and (2) that the
defendant was prejudiced to such a degree that
there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome.
Id., 466 U.S. 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; see
also, Moore v. Commonwealth, Ky., 983 S.W.2d 479, 482 (1998).
When a trial court has denied such a motion without an
evidentiary hearing, we are required to determine whether there
are any “material issue[s] of fact that cannot be conclusively.
. . proved or disproved, by an examination of the record.”
Fraser v. Commonwealth, Ky., 59 S.W.3d 448, 452 (2001).
After
our review, we believe that the trial court properly determined
that each of Lane’s claims of ineffective assistance of counsel
has been conclusively refuted on the face of the record.
The record reveals that Lane’s trial counsel
challenged the sufficiency of the evidence.
Contrary to Lane’s
allegations, counsel did move for a directed verdict at the
close of the Commonwealth’s case and again at the completion of
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all the evidence.
Additionally, as the Commonwealth correctly
observes, the sufficiency of the evidence is an issue that must
be raised on direct appeal rather than in a collateral
proceeding.
Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983).
The trial court also ruled correctly in determining
that Lane’s attempt to re-argue the admissibility of his
confession is procedurally barred since it had been raised and
rejected in his direct appeal.
The Kentucky Supreme Court
thoroughly addressed Lane’s claim that his confession was not
voluntary.
In concluding that the trial court did not err in
failing to suppress Lane’s confession of December 3, 1998, in
which he admitted to planning Puckett’s death, the Court
reasoned as follows:
We find no evidence of impermissibly
coercive conduct on the part of the
investigating police officers when they
confronted [Lane] with Bolin’s version of
the events after [Lane] had assisted their
investigation of Bolin. While [Lane]
emphasizes his state of mind at the time of
the confession – specifically, his dismay
that officers whom he had trusted and
assisted had “turned” upon him – we have
held that “a defendant’s mental condition,
by itself and apart from its relation to
official coercion, should [n]ever dispose of
the inquiry into constitutional
voluntariness.” And, in Commonwealth v.
Vanover,[Ky., 31 S.W.3d 885, 890 (2000)], we
affirmed the trial court’s admission of the
defendant’s confession where “the confession
was more a product of the accused’s being
confronted with the totality of available
evidence rather than his will being
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undermined by repeated and continuous
questioning.” We find substantial evidence
to support the trial court’s determination
that [Lane] voluntarily confessed on
December 3, 1998.
Lane v. Commonwealth, 2000-SC-0216-MR, rendered August 22, 2002,
p. 8-9.
An issue raised and rejected on direct appeal may not
be re-litigated by way of a claim of ineffective assistance of
counsel in an RCr 11.42 proceeding.
Ky., 89 S.W.3d 380, 385 (2002).
Sanders v. Commonwealth,
The voluntariness of Lane’s
confession is now subject to the doctrine of res judicata and
has become the law of the case.
We are barred from re-visiting
this issue.
Finally, the record conclusively resolves any issue
with respect to the strategic decision of counsel not to call
Puckett’s brother, Jesse Puckett, as a defense witness.
A trial
counsel’s choice of whether to call witnesses is generally
accorded a presumption of deliberate trial strategy and cannot
be subject to second-guessing in a claim of ineffective
assistance of counsel.
Strickland, 466 U.S. at 689; Russell v.
Commonwealth, Ky.App., 992 S.W.2d 871, 875 (1999).
But even if
the trial court had conducted an evidentiary hearing and had
determined that counsel’s failure to call the witness was
defective performance rather than a strategic decision, Lane
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would have no claim because he has failed to meet the prejudice
prong of the Strickland test.
The jury heard from Lane about Puckett’s violent
nature and tendencies -- and specifically his bullying and prior
beatings of Bolin.
It also heard this same testimony from Bolin
himself and from three other defense witnesses.
Therefore, the
trial court correctly determined that Jesse Puckett’s testimony
would have been merely cumulative evidence about the victim’s
character.
We agree that the outcome of the trial most likely
would not have been different even if counsel had called Jesse
Puckett to testify for the defense.
We affirm the order of the Daviess Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven Lane, pro se
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Frankfort, Kentucky
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
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