Prescott v. Commonwealth
572 S.W.3d 913
| Ky. Ct. App. | 2019Background
- Kit Prescott was convicted after a jury trial of possession and multiple trafficking counts and classified as a PFO I; he received concurrent sentences totaling ten years and appealed.
- A prior panel of the Court of Appeals affirmed the convictions in part on direct appeal, vacating only court costs without determining indigency; the affidavit supporting the no‑knock warrant was initially missing from the record but later included.
- Prescott filed an RCr 11.42 motion alleging ineffective assistance of trial and appellate counsel, plus motions to recuse and for an evidentiary hearing; the trial court denied relief and Prescott appealed pro se.
- The trial court made detailed findings addressing 14 discrete claims (e.g., discovery of text messages, missing affidavit, failure to investigate, Faretta/hybrid representation, jury instructions, video narration, uncharged conduct, voir dire, PSI, alibi witnesses).
- The Court of Appeals reviewed for abuse of discretion as to RCr 11.42 denial, applied Strickland’s two‑prong test for ineffective assistance, and limited review to properly preserved and supported claims.
Issues
| Issue | Prescott's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Ineffective assistance standard / entitlement to hearing | Trial court used an impermissibly high prejudice standard; Prescott needed a hearing | Trial court applied Strickland correctly; record conclusively resolved prejudice so no hearing required | Denied — Strickland applied; no reasonable probability of different outcome; no hearing warranted |
| Failure to investigate (military witnesses, CI credibility) | Counsel failed to investigate witnesses (e.g., Percival), which presumed prejudice under Cronic | Allegations vague; counsel did investigate and cross‑examined; no specific missing evidence shown | Denied — vague assertions; no showing what additional investigation would have produced; not entitled to presumed prejudice |
| Missing affidavit / validity of warrant / suppression | Affidavit supporting search warrant absent from appellate record; warrant may have lacked probable cause | Prior panel found probable cause without affidavit; affidavit later made part of record; suppression claim was addressed on direct appeal | Denied — issue was litigated on direct appeal and decided on the merits; not relitigable collateral attack |
| Admission/narration of video and uncharged conduct | CI narration and references to uncharged gun/drug purchases were improper and counsel failed to object | CI had firsthand knowledge; narration clarified poor‑quality recordings; objections were made to other narrators; trial court instructed jury on use of such evidence | Denied — narration admissible; counsel’s strategy acceptable; no prejudice shown |
| Jury instructions / lesser included offenses | Counsel failed to secure lesser‑included or facilitation instructions and altered verdict via amended judgment | Jury found trafficking; Prescott elected certain instruction strategy; amendment reflected HB 463 and benefitted Prescott | Denied — no reasonable probability instructions would have produced different result; amendment not prejudicial |
| Voir dire / inability to remove jurors | Would have struck jurors; counsel ineffective in voir dire | Identifying jurors one would have struck is insufficient to prove prejudice | Denied — no demonstrable prejudice shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance test)
- Cronic v. United States, 466 U.S. 648 (identifies rare circumstances where prejudice is presumed)
- Padilla v. Kentucky, 559 U.S. 356 (comments on difficulty of meeting Strickland standard)
- Phon v. Commonwealth, 545 S.W.3d 284 (Ky. 2018) (standard of review for RCr 11.42 denials)
- Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002) (explaining Strickland in Kentucky)
- Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) (distinguishing palpable‑error review from collateral ineffective‑assistance claims)
- Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005) (vague allegations of failure to investigate do not merit an evidentiary hearing)
- Brewster v. Commonwealth, 723 S.W.2d 863 (Ky. App. 1986) (trial court may assess prejudice from the record and deny hearing)
- Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (abuse of discretion standard explained)