RENDERED: MAY 2, 2008; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR

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1 RENDERED: MAY 2, 2008; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR CARLOS HARRIS APPELLANT v. APPEAL FROM KENTON CIRCUIT COURT HONORABLE STEVEN R. JAEGER, JUDGE ACTION NO. 99-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; BUCKINGHAM, 1 SENIOR JUDGE. NICKELL, JUDGE. Carlos Harris ( Harris ), pro se, appeals from the Kenton Circuit Court s denial of his motion for post-conviction relief pursuant to RCr We affirm. Harris was indicted by a Kenton County Grand Jury on October 1, 1999, for the intentional murder of Jualana Kirtley ( Kirtley ). A jury trial was held on November 30 through December 3, The jury heard testimony from Harris; Leslie Ayers ( Ayers ), a friend of Harris who was present on the night of Kirtley s murder; Dr. 1 Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) Kentucky Rules of Criminal Procedure.

2 Charles Stephens ( Dr. Stephens ), a forensic pathologist and expert for the Commonwealth; and Dr. Carl Parrott ( Dr. Parrott ), the coroner from Hamilton County, Ohio, an expert for Harris. Dr. Stephens testified Kirtley s cause of death was manual strangulation. He further testified she had suffered a torsional or twisting injury to her neck. Following Dr. Stephens testimony, Harris trial attorneys moved the court to call Dr. Parrott as a rebuttal expert witness. The Commonwealth objected to the testimony stating it had not been notified that Dr. Parrott was a potential witness. Although Harris attorneys had requested the court to grant them funds to hire Dr. Parrott as a consultant, they did not request he be allowed to testify and never listed him as a potential witness. The defense countered they were unaware of the need to call Dr. Parrott until the conclusion of Dr. Stephens testimony, and sought to have him testify as to alternative theories related to the cause of death. Following three conferences outside the presence of the jury between the trial court, the Commonwealth s Attorney, defense counsel, and Dr. Parrott, the trial court found the defense attorneys had violated the pretrial reciprocal discovery order entered on September 12, 1999, by failing to notify the Commonwealth of their intent to call Dr. Parrott. The trial court further found Dr. Parrott did not attribute the neck injury to the actual cause of death. As a result, the trial court held Dr. Parrott s testimony would be limited to discussion regarding Kirtley s cause of death, and was specifically to exclude the neck injury. The trial court allowed defense counsel to place Dr. Parrott s testimony into the record via an avowal. Ultimately, the jury found Harris guilty of intentional murder and fixed his punishment at life imprisonment. The trial court followed the jury s recommendation and sentenced Harris in conformity therewith. The Supreme Court of Kentucky affirmed Harris conviction on direct appeal. 2

3 On July 9, 2004, Harris filed a motion pursuant to RCr alleging his trial counsel was ineffective for failing to give proper notice of its intent to call Dr. Parrott at his trial. The trial court held an evidentiary hearing on July 20, 2005, and received testimony from Harris lead trial counsel, Mary Rafizadeh ( Rafizadeh ). She testified her trial strategy was to conduct a cross-examination of Dr. Stephens in such a way that no further expert testimony would be necessary. The trial court also considered Dr. Parrott s avowal testimony presented during the trial. After the hearing, the trial court denied Harris motion, specifically finding there was not a reasonable probability the result of Harris trial would have been different had the jury been able to hear the testimony of Dr. Parrott in toto. This appeal followed. Before this court, Harris contends he received ineffective assistance of counsel and was denied due process by virtue of (1) his trial counsel s failure to comply with the trial court s reciprocal discovery order resulting in the limitation of testimony by an expert witness, (2) the trial court s disallowance of a certain portion of Harris expert s testimony from being presented to the jury, and (3) the unprofessional testimony by the Commonwealth s medical expert. After a careful review of the record, we disagree. First, Harris argued only the first of his three arguments to the trial court. As his latter two arguments are presented for the first time in this appeal, we will not address them. Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky.App. 1996) (citing White v. Commonwealth, 695 S.W.2d 438 (Ky.App. 1985)). Thus, we will discuss only Harris singular remaining allegation of error. Pursuant to RCr 11.42(6), after the evidentiary hearing the trial court made findings relating to all material facts and entered a final order accordingly. We review such findings for clear error. CR Factual findings are not clearly erroneous if 3 Kentucky Rules of Civil Procedure. 3

4 they are supported by substantial evidence; that is, when taken alone or in light of all of the evidence, there is sufficient probative value to induce the minds of reasonable men. See Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1965). Further, a trial court is in the best position to judge the credibility of witnesses and the weight to be given to their testimony and we grant substantial deference to those findings. Bronk v. Commonwealth, 58 S.W.3d 482, 487 (Ky. 2001). We review a trial court's legal rulings de novo. See McQueen v. Scroggy, 99 F.3d 1302, (6th Cir. 1996). In order to establish ineffective assistance of counsel, a defendant must allege and prove his counsel was deficient and that such deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). There is a strong presumption that a trial counsel s conduct was reasonably competent and we look only to whether counsel s performance fell outside the wide range of reasonable professional assistance. Id. In addition, there must be a reasonable probability that the outcome of the trial would have been different but for counsel s alleged deficiencies in order for us to find actionable prejudice occurred. Id. Harris contends his trial counsel s failure to abide by the trial court s reciprocal discovery order prejudiced his defense and changed the outcome of his trial. His argument before this court is merely a reiteration of the contention he made before the trial court. The trial court noted Harris trial counsel conducted effective crossexamination, introduced appropriate evidence, made proper objections and arguments, and were otherwise well-prepared for the trial. The trial court concluded the trial counsel s performance was well within professional limits. Further, the trial court found a complete lack of evidence that the outcome of Harris trial would have been different had Dr. Parrott s testimony been allowed. After a careful review of the record, we 4

5 conclude the trial court s conclusions were supported by substantial evidence and are thus not clearly erroneous. Harris trial counsel made a strategic choice to name Dr. Parrott as only a consultant. They testified they did not believe Dr. Parrott s testimony would be necessary until after hearing Dr. Stephens testimony. In hindsight, their assessment of the case was in error. However, an error in judgment is insufficient to sustain burden of showing trial counsel s performance was deficient. As was artfully noted by the trial court, the distorting effects of hindsight are to be eliminated. Harris has failed to produce any evidence the outcome of his trial would have been different had the jury been allowed to hear all of Dr. Parrott s testimony, and thus he has failed to articulate any actionable prejudice. Strickland, supra. For the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Carlos Harris, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Gregory D. Stumbo Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky 5