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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2008-CA-001123-MR JACK RAMEY STAMPER, JR. APPELLANT

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 02-CR-002191 APPELLEE

COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING ** ** ** ** ** BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SPECIAL JUDGE. NICKELL, JUDGE: Jack Ramey Stamper (Stamper), pro se, appeals from the Jefferson Circuit Court's order denying his motion for post-conviction relief under Kentucky Rules of Criminal Procedure (RCr) 11.42. On appeal, Stamper argues his trial counsel was ineffective because counsel failed to: (1) investigate and
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Senior Judge William R. Harris 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) 21.580.

discover facts necessary to develop a defense strategy and aid in proper crossexamination of witnesses; (2) discuss possible defense strategies with him; and (3) retain an independent expert to assist in his defense. For the reasons set forth below, we affirm the circuit court's denial of Stamper's RCr 11.42 motion. Procedural History Stamper was indicted by a Jefferson County grand jury on two counts of rape in the first degree,2 one count of burglary in the first degree,3 two counts of kidnapping,4 one count of arson in the first degree,5 one count of assault in the fourth degree,6 one count of violation of a protective order,7 and two counts of terroristic threatening in the third degree.8 In a separate indictment, Stamper was charged with being a persistent felony offender in the first degree (PFO I).9 The charges against Stamper proceeded to a jury trial, after which he was convicted on all counts as charged, except the jury convicted him of the lesser offense of arson in the third degree10 rather than arson in the first degree.
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KRS 510.040, a Class B felony. KRS 511.020, a Class B felony. KRS 509.040, a Class B felony. KRS 513.020, a Class A felony. KRS 508.030, a Class A misdemeanor. KRS 403.763, a Class A misdemeanor. KRS 508.080, a Class A misdemeanor. KRS 532.080. KRS 513.040, a Class D felony.

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The jury fixed a sentence of ninety-five years' imprisonment on the underlying offenses which was then enhanced to 185 years by virtue of the PFO I conviction. Stamper's subsequent motion for a new trial was denied and the trial court ultimately sentenced him to the statutory maximum term of seventy years' imprisonment. Stamper then appealed his conviction to the Supreme Court of Kentucky as a matter of right. In his direct appeal, Stamper contended: (1) he was unduly prejudiced by evidence admitted at trial which tended to show a long-standing pattern of domestic violence perpetrated by him against his estranged wife, Brenda, and that such evidence was inadmissible under KRS 404(b)(1); (2) the trial court erroneously instructed the jury, thus depriving him of the presumption of innocence and relieving the Commonwealth of the burden of proving each crime beyond a reasonable doubt; (3) the trial court erred in finding that KRS 509.050, also known as the kidnapping exemption statute, was inapplicable in this case; and (4) the trial court applied an incorrect and overly burdensome standard of review in determining that the kidnapping exemption statute was inapplicable. The Supreme Court held all of Stamper's claims were without merit and affirmed his conviction. After the Supreme Court rendered its opinion, Stamper filed a motion to vacate the judgment pursuant to RCr 11.42 in the circuit court, arguing a variety of errors by both the trial court and trial counsel. He claimed his trial counsel failed to investigate and discover facts necessary to develop a defense strategy and aid in the proper cross-examination of witnesses; discuss possible defense -3-

strategies with him; and investigate and present facts to the jury through the testimony of key witnesses. Stamper further argued the court erred in the wording of the jury instructions; the application of KRS 509.050; and permitting the Commonwealth to introduce unduly prejudicial evidence of other crimes, wrongs and bad acts pursuant to KRE 404(b). Stamper's RCr 11.42 motion was denied without a hearing. The court found the claims regarding its alleged errors were baseless and inappropriate as they had been addressed on direct appeal. Further, the court found the contentions against counsel to be meritless, stating that Stamper "has presented no evidence to indicate that defense trial counsel failed to advocate actively and zealously on behalf of his interest." Ultimately, the trial court held Stamper failed to meet his burden of proving his trial counsel was ineffective. This appeal followed. Facts For the sake of clarity and brevity, we hereby adopt the historical facts as set forth by our Supreme Court in Stamper v. Commonwealth, No. 2005-SC0410-MR, 2006 WL 2455960, at *1 (Ky. August 24, 2006) (designated not-to-be published): The crimes for which Appellant was convicted stem from a brutal attack on Appellant's estranged wife, Brenda, and her boyfriend. Brenda had separated from Appellant after twenty-one years of marriage. Prior to Appellant's attack, Brenda sought and was granted a Domestic Violence Order which required Appellant to vacate the trailer in which they lived, to stay one thousand (1,000) feet away from Brenda at all times, and to refrain from damaging property. After entry of the Domestic -4-

Violence Order, Brenda changed all the locks on the trailer and continued to occupy the marital residence. On the night of September 29, 2002, Brenda and her boyfriend were sleeping in the trailer. At about four o'clock in the morning, Brenda awoke to the sensation of her breast being fondled. When she opened her eyes, Appellant was standing over her and her boyfriend. Appellant proceeded to berate the couple and threaten them with a concrete trowel. Brenda testified that she believed that Appellant was going to kill both her and her boyfriend. Appellant demolished the room and then attacked Brenda, beating her with his fists. Both Brenda's eyes were blackened and her nose was broken. After beating her, he forced her to kneel on the floor while brutally raping her in front of the boyfriend. After the rape, Appellant questioned the couple for some time about their relationship. He then forced the boyfriend into the bathroom, telling him that he would kill Brenda if he left the bathroom. Appellant proceeded to rape Brenda a second time. After the second rape, Appellant left the trailer. Upon Appellant's departure, Brenda dressed and left the trailer. She immediately went to a neighbor's trailer to ask for help. When she returned to her own trailer, she saw Appellant with a gas can. Appellant poured gasoline throughout the trailer and then set it on fire. The boyfriend managed to escape the trailer prior to its being set on fire. Appellant fled from the area and remained at large for approximately five months. At trial, Appellant testified on his own behalf. He acknowledged being aware of the Domestic Violence Order. He also admitted breaking into the trailer that night, assaulting Brenda, threatening to kill both her and her boyfriend, and setting the trailer on fire. However, he disputes raping her, alleging the sex was consensual. He further admitted having the concrete trowel with him in the bedroom, but testified that he did not threaten anyone with it. -5-

Standard of Review The standard of review for denial of an RCr 11.42 motion for postjudgment relief is well-settled. To establish ineffective assistance of counsel, a defendant must satisfy a two-part test showing: 1) counsel's performance was deficient; and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000). The defendant must bear the burden of proof to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances counsel's action might be considered "trial strategy." Strickland, supra, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998); Sanborn v. Commonwealth, 975 S.W.2d 905, 912 (Ky. 1998). A court must be highly deferential in reviewing defense counsel's performance and should avoid second-guessing counsel's actions based on hindsight. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). In assessing counsel's performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 470; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). "`A defendant is not

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guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" Sanborn, 975 S.W.2d at 911 (quoting McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997)). To establish actual prejudice, a defendant must show a reasonable probability that but for his counsel's deficient performance, the outcome of the proceeding would have been different or was rendered fundamentally unfair and unreliable. Strickland, supra, 466 U.S. at 694; Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).

Analysis Stamper argues the trial court erred in not finding trial counsel failed to investigate and discover facts necessary to develop a defense strategy and aid in the proper cross-examination of witnesses; failed to discuss possible defense strategies with him; and failed to retain an independent expert to assist in his defense. We will address each of his allegations in turn. In addition to challenging the trial court's rejection of his various claims, Stamper argues the trial court erred in failing to conduct an evidentiary hearing on his RCr 11.42 motion. An evidentiary hearing on an RCr 11.42 motion is not an automatic entitlement; there must be an issue of fact which cannot be determined on the face of the record. Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993). "Where the movant's allegations are refuted on the face of the record -7-

as a whole, no evidentiary hearing is required." Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986) (citing Hopewell v. Commonwealth, 687 S.W.2d 153, 154 (Ky. App. 1985)). Our review indicates all of Stamper's allegations are clearly refuted on the face of the record, and thus the trial court did not err in refusing to hold an evidentiary hearing. I. Failure to Investigate Stamper claims the trial court erred in finding trial counsel did not fail to investigate and discover facts necessary to develop a defense strategy and aid in the proper cross-examination of witnesses. He alleges trial counsel failed to investigate the Commonwealth's evidence of his alleged prior bad acts, investigate a previously unreported assault perpetrated against him by Brenda with a knife, investigate the importance of a pack of cigarettes found in his wife's pocket, and interview witnesses and potential witnesses. However, Stamper fails to refer to any specific place in the record supporting any of his contentions. We are convinced no such support exists. First, "[i]t is an established principle that this Court will not address as issue which has been raised in a direct appeal or which should have been raised in a direct appeal." Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990). See also, Baze v. Commonwealth, 23 S.W.3d 619, 626 (Ky. 2000). Additionally, RCr 11.42 motions are "limited to the issues that were not and could not be raised on direct appeal." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003).

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On direct appeal, Stamper argued the trial court erred in allowing the Commonwealth to introduce evidence of his prior acts of violence against Brenda. The Supreme Court stated, "Appellant's contention that evidence of previously issued EPOs was not relevant to prove his motive or intent the night he broke into the trailer is without merit" and further stated, "the potential for prejudice did not outweigh the probative value of the above referenced evidence." Stamper, 2006 WL 2455960, at *2. In his RCr 11.42 motion, Stamper raised the same issue, again alleging that the trial court had erred in admitting the evidence. He did not allege his counsel was ineffective in any way. This allegation is presented for the first time in this appeal, and as such is improper. Grundy v. Commonwealth, 25 S.W.3d 76, 84 (Ky. 2000). We will not allow Stamper "to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1977) (citations omitted). Thus, as Stamper has raised the same issue on collateral attack regarding the prosecution's use of evidence of his prior bad acts which the Supreme Court already addressed on direct appeal, he is now prohibited from raising it again under the guise of an ineffective assistance of counsel claim. Next, Stamper has offered only conclusory and self-serving allegations regarding counsel's failure to investigate a previously unreported assault, interview witnesses and potential witnesses, and investigate the importance of the pack of cigarettes found in Brenda's pocket on the night of the attack. These allegations are either wholly without merit or are clearly refuted on the face of the -9-

record. At trial, the first witness for the defense was a staff investigator employed by the Department of Public Advocacy, who testified as to the pretrial investigation she conducted. Most, if not all, of the "witnesses and potential witnesses" Stamper alleges should have been interviewed actually testified at trial or gave recorded or written statements. The Commonwealth introduced certified court records to establish a prior criminal proceeding concerning a prior assault on Brenda. Stamper now baldly asserts Brenda was the aggressor and he was the victim, although no such allegations were previously made. Regardless, no criminal conviction resulted from the incident and the factual findings from the proceedings were simply read into the record in the case at bar. Stamper has not identified any mitigating evidence which would have been uncovered by the interviews and investigations he claims counsel failed to complete. Further, he offers the unsupported contention that the open pack of cigarettes found on Brenda's person the night of the attack were not her usual brand, and this fact should have been used to impeach her credibility and discredit her version of the evening's events. However, Stamper has not shown that counsel's failure to focus on such a miniscule piece of evidence to discredit the victim of a vicious physical and sexual assault was anything other than sound trial strategy. As correctly noted by the trial court, Stamper produced no evidence that his counsel's work was inadequate or incomplete, and therefore did not overcome the strong presumption counsel's actions were reasonable and competent or the result of sound trial strategy. Stamper offered no facts to demonstrate that the -10-

alleged errors by counsel were objectively unreasonable under the circumstances existing at the time of trial. Nor did Stamper demonstrate that the alleged errors of counsel prejudiced his right to a fair trial. The circuit court properly found Stamper did not meet his burden of proof. II. Defense Strategies Stamper's second major contention is that counsel failed to discuss defense strategies with him, in particular, the defenses of extreme emotional distress (EED) and voluntary intoxication. Stamper contends the EED defense would have negated an element of the assault in the fourth degree charge and a voluntary intoxication defense should have been used as a mitigating defense. Stamper admitted on the stand and in his brief to this Court, that he assaulted Brenda. Counsel's alleged failure to explore with him an EED defense as to the assault in the fourth degree charge does not amount to ineffective assistance of counsel. First, Stamper has failed to show the defense would have been applicable to him had it been raised. An EED instruction is justified only when evidence reveals: 1) a sudden and uninterrupted triggering event; 2) resulting in an intense emotional disturbance; and 3) the defendant acted under the influence of such disturbance. Spears v. Commonwealth, 30 S.W.3d 152, 155 (Ky. 2001). Stamper simply has not produced evidence supporting his entitlement to this defense. He has also failed to show that counsel's decision to forego requesting an EED instruction was anything other than sound trial strategy. Further, even if the jury had been instructed on EED, such a defense is inapplicable -11-

to any of the numerous felony charges for which Stamper stood accused. At best, the assault in the fourth degree may have been reduced from a Class A misdemeanor to a Class B misdemeanor, the sentence for which would still merge into his felony sentence with no reduction in his total penalty. Stamper has failed to satisfy the prejudice prong of Stickland. Therefore, his claim does not rise to ineffective assistance of counsel. As to the voluntary intoxication defense, Stamper argues the fact he testified to drinking only a few beers is unsupported by the evidence. Therefore, counsel should not have believed he was not intoxicated and should have asked for the instruction. Besides this vague allegation that counsel should have divined that Stamper was more intoxicated during the incident than his testimony reflected, Stamper fails to provide this Court with any evidence to meet his burden of proof. Based on his testimony, this Court fails to understand why Stamper believes his counsel acted unreasonably by not asking for a voluntary intoxication defense when he personally testified he was not intoxicated. As previously noted, Stamper carries the burden of showing that counsel's alleged failures amounted to ineffective assistance of counsel and he has again failed to carry that burden. Strickland.

III. Retention of Independent Expert

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Finally, Stamper contends counsel erred by failing to retain an independent expert to assist in his defense. The leading case on whether a defendant is entitled to a mental health expert is Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the United States Supreme Court determined that if sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent mental health expert who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. Binion v. Commonwealth, 891 S.W.2d 383, 385 (Ky. 1995). Sanity at the time of the offense was not an issue in this case. Stamper admitted to the assault, arson, terroristic threatening, burglary, and having intercourse with Brenda. The only thing Stamper argues is that the intercourse was consensual and did not constitute rape. He does not allege incompetence or mental illness. Thus, trial counsel could not have properly petitioned the court for funds to retain an expert witness. Nevertheless, at his counsel's request, the court did, in fact, hold a competency hearing. As a result of the hearing, the trial court adopted a fifteen-page competency evaluation finding Stamper competent to stand trial and noting no mental illness. Further, Stamper's bare allegations that a psychiatrist "might have noted" and "might have been able to" are too vague to prove he was prejudiced by his counsel's failure to request funding for a psychiatric expert. Stamper's generalized allegations do not meet the standards required by Strickland. Thus, we -13-

hold counsel's actions were not objectively unreasonable under the circumstances. Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005). Conclusion It appears Stamper has abandoned the remaining issues raised in his RCr 11.42 motion before the trial court as they are not included in his brief to this Court. "Failure of appellant to discuss the alleged errors in its brief is the same as if no brief had been filed in support of its charges." R.E. Gaddie, Inc. v. Price, 528 S.W.2d 708, 710 (Ky. 1975). Therefore, we will not discuss the other allegations of error as they are not properly before us for review For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT: Jack Ramey Stamper, pro se West Liberty, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky

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