William Terry Jamison v. Commonwealth of Kentucky

RENDERED: AUGUST 12, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2021-CA-0777-MR

WILLIAM TERRY JAMISON APPELLANT

APPEAL FROM FULTON CIRCUIT COURT
v. HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 16-CR-00113

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
REVERSING AND
REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.

COMBS, JUDGE: Appellant, William Terry Jamison, appeals from an order of

the Fulton Circuit Court denying his RCr1 11.42 motion following an evidentiary

hearing. After our review, we reverse and remand for a new trial.

1
Kentucky Rules of Criminal Procedure.
 The underlying facts are summarized in the direct appeal, Jamison v.

Commonwealth, No. 2017-SC-000622-MR, 2019 WL 1172971, at *1 (Ky. Feb. 14,

2019). Because Jamison received a sentence of 20 years, his direct appeal was

heard by the Kentucky Supreme Court, which affirmed his conviction. The

Supreme Court recited as follows:

In late September 2016, Jamison was driving on a
highway when Mark Williams drove up on his bumper
chasing him at speeds over 80 to 90 miles per hour.
Jamison immediately reported the incident to the Lake
County, Tennessee, Sheriff’s Department. Even before
the incident, the Jamison and Williams’ [sic] families did
not get along. On October 1, 2016, Jamison shot and
killed Williams when Williams drove up on a tract of
farmland where Jamison was working in Fulton County,
Kentucky. No one witnessed the shooting. Jamison
called 911 and reported “a guy [had] come up to kill
[him].” When local law enforcement arrived, Jamison
stated that “Mark Williams pulled in behind me, raised
his hand with a piece of metal and said he was going to
kill me. He’s down here under his truck sir.” After
seeing Williams’ body, Deputy Thomas read Jamison his
Miranda[2] rights and asked whether he would like to
speak with officers. Jamison invoked his right to remain
silent until he had spoken with an attorney. Deputy
Thomas then handcuffed Jamison and took him to the
Hickman Police Department.

Jamison was subsequently tried by a Fulton Circuit
Court jury. The jury was instructed on murder, first-
degree manslaughter, second-degree manslaughter,
reckless homicide, and the self-protection statute, KRS[3]

2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
Kentucky Revised Statutes.

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 503.050, respectively. Jamison was convicted of murder,
and the trial court imposed a punishment of twenty years’
imprisonment.

On November 20, 2019, Jamison filed a motion to vacate judgment

under RCr 11.42. Jamison explained that “there were no issues of fact as to

whether [he] shot and killed the victim. . . . The only issue at trial was whether

[Jamison] appropriately exercised his right of self-protection.” Jamison argued

that trial counsel’s actions and inactions constituted ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), as adopted in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).

Jamison has alleged numerous bases of deficient performance by

counsel. He argued that trial counsel’s performance was deficient in not objecting

to references made by the prosecutor and witnesses to Jamison’s exercise of his

Fifth Amendment right not to make a statement at the time of his arrest. He also

argued that trial counsel’s performance was deficient because he raised that very

issue himself in opening statement, again on cross-examination, and on direct

examination as well.

Jamison argued that defense counsel’s performance was deficient in

failing to object to and in not requesting a curative instruction regarding the

prosecution’s misstatement to the jury regarding the burden of proof as it pertains

to self-protection.

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 Jamison also contended that trial counsel’s performance was deficient

with respect to the testimony of certain state-of-mind witnesses; and in not

investigating, calling, or contacting potential character witnesses who would have

testified to the victim’s reputation for violent and threating actions -- or who would

have testified to Jamison’s reputation for truthfulness or peacefulness. In addition,

Jamison argued that trial counsel was deficient in failing to object to and to request

a curative instruction regarding inadmissible opinion and hearsay testimony from

the victim’s brother, which trial counsel had elicited, and upon which the

prosecution relied in final argument.

Jamison also asserted that trial counsel was deficient in failing to

object to or to request a curative instruction regarding a statement that the

prosecutor made in closing argument about his personal belief. Finally, Jamison

argued that trial counsel was deficient for failing to tender an instruction on first-

degree manslaughter.

On September 21, 2020, the circuit court conducted an evidentiary

hearing on the RCr 11.42 motion. On June 28, 2021, the court entered findings of

fact, conclusions of law (FFCL), and order denying Jamison’s motion which we

discuss in our analysis below.

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 On July 1, 2021, Jamison filed a notice of appeal to this Court. We

have clear precedential guidelines governing our review of matters brought

pursuant to RCr 11.42.

Claims of ineffective assistance of counsel are evaluated
under the two-part standard of Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), adopted by this Court in Gall v.
Commonwealth, 702 S.W.2d 37 (1985).

Strickland first requires that a defendant “must show that
counsel’s performance was deficient.” 466 U.S. at 687,
104 S. Ct. 2052. This is done by “showing that counsel
made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” id. or “that counsel’s representation fell
below an objective standard of reasonableness.” Id. at
688, 104 S. Ct. 2052. But this review is “highly
deferential” to trial counsel, and thus a “court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the
challenged action might be considered sound trial
strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation
marks omitted). A defendant is not guaranteed errorless
counsel or counsel that can be judged ineffective only by
hindsight, but rather counsel rendering reasonably
effective assistance at the time of trial. Id. . . . .

Next, the defendant “must show that the deficient
performance prejudiced the defense.” Strickland, 466
U.S. at 687, 104 S. Ct. 2052. “This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.” Id. To make this showing, “[t]he defendant
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the

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 proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694, 104 S. Ct. 2052.
A reviewing court must consider the totality of the
evidence before the jury and assess the overall
performance of counsel throughout the case to determine
whether the specifically complained-of acts or omissions
are prejudicial and overcome the presumption that
counsel rendered reasonable professional
assistance. Id. at 695, 104 S. Ct. 2052 . . . .

Finally, “[u]nless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the
result unreliable.” Strickland 466 U.S. at 687, 104 S. Ct.
2052.

Commonwealth v. McKee, 486 S.W.3d 861, 867 (Ky. 2016).

Where, as here, an evidentiary hearing is held on a RCr 11.42 motion,

we review the trial court’s factual findings under the clearly erroneous standard.

CR4 52.01. “Findings of fact are clearly erroneous if they are not supported by

substantial evidence. Even though claims of ineffective assistance of counsel are

subject to de novo review, a reviewing court should defer to the determination of

facts made by the trial judge.” Logan v. Commonwealth, 446 S.W.3d 655, 658-59

(Ky. App. 2014) (citations omitted).

First, we consider and dispose of Jamison’s arguments at pages 23-24

of Appellant’s brief captioned, “G. Other Prosecutorial Misconduct” and “H. Lack

4
Kentucky Rules of Civil Procedure.

-6-
of Request for First-Degree Manslaughter Jury Charge[.]” We note that they are

not preserved for our review. Jamison states that the trial court did not address

either of these issues in its findings. RCr 11.42(6) provides as follows:

At the conclusion of the hearing or hearings, the court
shall make findings determinative of the material issues
of fact and enter a final order accordingly. If it appears
that the movant is entitled to relief, the court shall vacate
the judgment and discharge, resentence, or grant him or
her a new trial, or correct the sentence as may be
appropriate. A final order shall not be reversed or
remanded because of the failure of the court to make
a finding of fact on an issue essential to the order
unless such failure is brought to the attention of the
court by a written request for a finding on that issue
or by a motion pursuant to Civil Rule 52.02.

(Emphasis added.) Jamison did not make a written request or motion for findings

on these issues as required by the rule. Accordingly, we may not review them.

We now turn to Jamison’s first argument found at pages 16-17 of

Appellant’s brief captioned, “B. Fifth Amendment violations[.]” Jamison contends

that the prosecutor made statements or elicited testimony from witnesses about

Jamison’s refusal to give a statement at the time of his arrest. Further, he notes

that his trial counsel not only failed to object to this misconduct, but he

compounded the error by commenting upon it himself.

In its FFCL and order, the circuit court determined that:

While [Jamison] may have intelligently invoked his right
to speak to a lawyer, [he] was very cooperative with the
sheriff’s deputies. The defendant himself called to report

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 the incident and clearly cooperated with the authorities in
every respect. This set the ability of the defense trial
counsel to argue that they were being completely
transparent with the jury.

(Appendix “A” to Appellant’s brief at p. 10.)

Jamison argues that the circuit court’s finding -- “that the failure to

object allowed trial counsel to be ‘completely transparent with the jury’” -- is

unsupported in the record as defense counsel did not state that this was his strategy.

Appellant’s brief at p. 16. However, in its review of the direct appeal, the Supreme

Court addressed this issue and held that the failure to object was indeed trial

counsel’s strategy:

Before trial, defense counsel became worried
about what the jury might think if it learned
that Jamison did not give a statement to police. . . . When
the trial court asked if defense counsel wanted an
admonition if the issue arose, defense counsel stated, “I
think it’s in my client’s best interest to [let the jury know
about Jamison not giving a statement].”

Jamison, 2019 WL 1172971, at *3. On direct appeal, Jamison sought palpable

error review. The Commonwealth argued that Jamison had waived5 the issue. Our

Supreme Court agreed, explaining as follows:

Jamison’s defense counsel clearly knew of his client’s
Fifth Amendment rights and determined that his strategy
at trial was to acknowledge Jamison’s constitutional right

5
Waived or invited errors which reflect the knowing relinquishment of a right are not subject to
appellate review. Mullins v. Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011).

-8-
 to not give a statement to police. Regardless of our
thoughts concerning this strategy, Jamison’s defense
counsel knew of the curable trial defect -- Jamison’s right
to silence -- and deliberately chose not to object each
time the prosecution raised the issue. Therefore, the
issue was waived.

Jamison, 2019 WL 1172971, at *4-5. Therefore, this issue is beyond the scope of

our review since the Supreme Court has addressed it.

With regard to this highly disturbing course of conduct by trial

counsel, two separate concurring opinions follow this majority opinion. They are

wholly devoted to discussing the “ridiculousness” of any determination that we

might be precluded from declaring counsel’s conduct on this issue to be anything

other than prejudicial deficiency.

There is no doubt that commenting on a defendant’s right to remain

silent is forbidden and that it is of constitutional magnitude. However, the

Supreme Court clearly and directly addressed the issue, agreeing with the trial

court that counsel’s election to maintain silence was strategic, deliberate, and

sound -- thus essentially waiving the issue. Two dissenting opinions on this very

matter followed the Supreme Court’s Opinion on direct appeal.

Out of an abundance of caution to comply with the mandate that the

Court of Appeals is bound by the authority of the Supreme Court (as set forth at

SCR 1.030(8)(a)), this opinion has declined to elaborate further. It has done so

despite extreme reservation about the “soundness” of the alleged strategy, a

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“strategy” that has succeeded in camouflaging what the members of this panel all

perceive to be a prejudicial deficiency. However, arguably the Supreme Court

Opinion has precluded our consideration of the matter.

In granting the RCr 11.42 relief sought by Jamison, this portion of the

majority opinion has elected to rely on other error as discussed below about which

there can be no allegation of waiver or preclusive effect of the Supreme Court

Opinion.

Jamison’s next argument at pages 17-18 of Appellant’s brief is

captioned, “C. Burden of Proof Regarding Self-Defense[.]” Jamison charges that

allowing the prosecutor to misstate to the jury (both in opening and in closing

argument) that Jamison had the burden of proving self-defense -- without objection

or request for curative instruction -- was egregious and flagrant error.

However, this issue was also addressed by the Supreme Court on

direct appeal. Jamison had argued that the prosecution’s actions amounted to

prosecutorial misconduct warranting reversal, and the Supreme Court analyzed the

issue as follows:

Defense counsel did not object to any of the statements
Jamison alleges constituted prosecutorial misconduct.
Therefore, the misconduct must have been flagrant to
warrant reversal. Four factors are used to determine
whether misconduct is flagrant: “(1) whether the
remarks tended to mislead the jury or to prejudice the
accused; (2) whether they were isolated or extensive; (3)
whether they were deliberately or accidentally placed

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 before the jury; and (4) the strength of the evidence
against the accused.”

Jamison, 2019 WL 1172971, at *2 (citing Bowling v. Commonwealth, 553 S.W.3d

231, 243 (Ky. 2018)). The Supreme Court concluded that the prosecutor’s

misstatement was not flagrant in light of the totality of the proceedings:

Jamison contends, and the Commonwealth
acknowledges, that during closing the prosecutor
misstated the law regarding the level of proof needed for
self-defense.

...

Although the prosecutor’s statement here was
misleading, that factor is not dispositive to our analysis.

We must also consider that this single comment
by the prosecution was extremely isolated. It is critical
to note that the actual instructions provided to the jury
during deliberations contained a proper recitation of the
relevant law concerning self-protection. In fact, after
reading the instructions to the jury, the trial judge urged
the jury to read them on their own once in the jury room.
Also, after the misstatement of the law by the prosecutor,
he subsequently picked up the correct instructions and re-
read them to the jury on his own. As such, it strains
credulity to claim that the jury was influenced by the
prosecutor’s brief misstatement.

Third, the misstatement of law was not deliberately
placed in front of the jury. As previously discussed, the
prosecutor misspoke during closing argument. Nothing
from the record indicates that the prosecutor intended to
mislead the jury.

Jamison, 2019 WL 1172971, at *2-3 (emphases added).

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 Jamison argues that “[t]he Kentucky Supreme Court opinion only

discovered one such statement in the closing argument, and ultimately found it to

be an ‘isolated,’ ‘single comment.’” He continues: “because the misstatement also

occurred in the prosecution’s opening statement, it was not in fact an ‘isolated’ or

‘single comment,’ and likely resulted in the jury assuming this to be the law

throughout the trial.” Jamison explains that in its FFCL and order, the circuit court

addressed the issue “by simply citing some of the language in the Kentucky

Supreme Court opinion which as stated previously, failed to appreciate that two

statements were made.”

From our review, it is not apparent that Jamison actually argued on

direct appeal that the prosecution misstated the burden of proof both in opening

and in closing statements. Regardless, Jamison’s argument selectively ignores

those portions of the Supreme Court’s analysis -- which the circuit court

incorporated into its FFCL and order -- that are unfavorable to him. We are not at

liberty to re-visit or alter the reasoning of the Supreme Court.

Jamison’s third argument beginning at page 18 of his brief is

captioned, “D. Self-Defense/Decedent’s Character for Threatening and/or Violent

Behavior[.]”

“In self-defense cases, fear by the defendant of the
victim is an element of the defense and can be proved
by evidence of violent acts of the victim, threats by the
victim, and even hearsay statements about such

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 threats, provided that the defendant knew of such
acts, threats, or statements at the time of the
encounter.” Robert G. Lawson, The Kentucky Evidence
Law Handbook, § 2.15[4][d] (4th ed. 2003). Such
evidence is admissible because it is not offered to prove
the victim’s character or to show action in conformity
therewith, but to prove the defendant’s state of mind --
his fear of the victim -- at the time he acted in self-
defense. Saylor v. Commonwealth, 144 S.W.3d 812, 816
(Ky.2004).

Ordway v. Commonwealth, 391 S.W.3d 762, 779 (Ky. 2013) (emphases added).

This concept enjoys a sacrosanct position in our jurisprudence. “There is no

controversy about this important and ancient principle that has been consistently

observed in our case law.” Id. at 779 n.9.

Jamison identifies numerous state-of-mind witnesses who should have

been called to testify at trial. He asserts that these witnesses would have testified

about Williams’s threatening behavior and that they had made Jamison aware of

the danger to him prior to the shooting. Furthermore, he notes that although his

trial counsel knew about these witnesses before trial, none was called other than

Walter Goodman -- and the jury never heard Goodman’s testimony about an

incident where Williams threated to “whip his ass.”

We have reviewed the Supreme Court’s holding with respect to state

of mind on the direct appeal. The Court explained that the trial court sustained

objections to the testimony of three witnesses who, according to Jamison, should

have been allowed to testify regarding state of mind. The Supreme Court only

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considered the claim of error as to one witness -- a deputy sheriff (Bryan Bargery)

-- because Jamison had only raised claims of error as to two of the witnesses in his

brief, one of which the Court considered as waived.

The deputy sheriff would have testified that Jamison had related

information to him about the driving incident days before the shooting -- when

Williams drove up on Jamison’s bumper chasing him at 80-90 miles per hour. The

Commonwealth had objected on hearsay grounds. The trial court sustained the

objection, but it allowed defense counsel to recall the deputy after Jamison

testified.

On direct appeal, the Supreme Court held that it was an abuse of

discretion for the trial court to sustain the objection to the sheriff’s testimony

because it would have been offered to prove Jamison’s state of mind -- his fear of

Williams -- prior to the shooting. Nonetheless, the Supreme Court held that the

error was harmless because Jamison had testified about the driving incident

himself, and the sheriff’s testimony would merely have been cumulative.

Furthermore, defense trial counsel made no effort to recall the deputy. Thus, as to

his testimony alone, the Supreme Court found that any error was “waived or

harmless.” Jamison, 2019 WL 1172971, at *6.

Walter Goodman was one of the other three witnesses. He was not

allowed to testify at trial about an incident in which Williams had threatened him

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(Goodman). It appears that issue was waived; therefore, the Supreme Court did

not address it.

The crux of our inquiry at this juncture is an analysis of other

witnesses who were never called at trial and whose purported relevance to the case

was never reviewed by the Supreme Court on the direct appeal.

Numerous potential witnesses were identified -- whose testimony

would have related to the critical issue of Jamison’s defense of self-defense by way

of establishing state of mind. The proposed testimony of these state-of-mind

witnesses is summarized in Jamison’s Statement of the Case (Appellant’s brief at

pp. 4-8). We do not repeat it all here.

Rob Shumate

Among them, Rob Shumate testified at the RCr 11.42 hearing that he

had run into Jamison at a restaurant prior to the shooting and that he told Jamison

about a conversation that he (Shumate) had had with Mark Williams; i.e., that

Williams said that the next time he saw Jamison, he was going to beat the living

sense out of him. (Video Record (VR) 9/21/20 1:26:20.) In his affidavit, Shumate

stated that he was visiting Williams at his home and that Williams said he was

going to whip Jamison’s ass: “show him who was boss . . . and beat him

unconscious.” Shumate testified that this was approximately six weeks to two

months before the shooting.

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 In its FFCL and order, the circuit court found that:

Despite post trial counsel’s exhaustive efforts to
find witnesses who could testify and establish that the
victim had a reputation for violence, they were unable to
produce even one single witness to testify that the victim,
Mark Williams, had committed any violent act. Trial
counsel and the trial investigator also were unable to
produce or present any witnesses that could testify to any
violent acts of the victim. The defendant’s post trial
counsel at the 11.42 hearing called several witnesses,
including, David Lusk, Neil Botts, Van Cole, Charles
Archie, B.J. Stanley, Walt Goodman and Bill Curlin.
Each of these witnesses testified in regard to specific
acts or threats that the victim made to them in
specific instances. “A threat to kill or injury [sic]
someone which is specifically directed at some individual
other than the deceased is inadmissible, as it shows only
a special malice resulting from a transaction with which
the deceased had no connection.[”] Driver v.
Commonwealth 361 S.W.3d 877, 885-86 (Ky. 2012)][.]
None of these witnesses called at the 11.42 hearing
established that the victim was the initial aggressor. . . .

The defense post trial counsel’s expert, [retired
Circuit Court Judge,] Hon. David Jernigan, testified at
the 11.42 hearing, after thorough review of the record,
that none of the witnesses for the defense were [sic] able
to relate a single incident of the victim committing a
violent act against another person.[6]

Defense counsel was aware of this prior to trial
and wisely decided not to try to put the victim’s
character into evidence. Defense counsel, who has

6
The circuit court asked Judge Jernigan whether he had seen anything in the affidavits
accompanying the RCr 11.42 motion indicating that Williams committed an act of violence
against another person. Judge Jernigan testified that “it was mostly in terms of being a bully, or
threatening, or threatening acts.” VR 10/12/20 3:14:13.

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 practiced for many years, knew that any attempt to try
and prove this directly regarding victim’s character
would play into the hand of the Commonwealth to be
able to exploit this inability to show the victim had ever
been the initial aggressor . . . .

(Appendix “A” to Appellant’s brief at pp. 2-3) (emphases added).

In addition to a rather excessive deference to trial counsel’s presumed

trial strategy, the circuit court misperceived the issue before it by confusing

admissible state of mind evidence (which was crucial to Jamison’s defense) as an

attempt to put the victim’s character into evidence.

The circuit court relied upon Driver, 361 S.W.3d 877. However, we

are persuaded that Driver is wholly inapposite to the case before us.

Driver involved the admissibility of evidence of prior bad acts

committed by the defendant, who was convicted of the first-degree assault of his

wife. On appeal, the issue was whether trial court erred in admitting KRE7 404(b)

prior bad act evidence of Driver’s previous violence against both his wife (the

victim) and his ex-wife. On discretionary review, the Supreme Court explained

that KRE 404(b) standards are different for a victim versus a third party. The

Court held that admission of Driver’s prior acts of violence against his ex-wife was

error because they were remote in time and because a “threat to kill or injure

someone which is specifically directed at some individual other than the deceased

7
Kentucky Rules of Evidence.

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is inadmissible, as it shows only a special malice resulting from a transaction with

which the deceased had no connection.” Id. at 886. Thus, Driver is inapplicable

because the threat in the case before us was directed at Jamison himself -- not

against a third party.

Mike Hopper and the Victim’s Father, Garland Williams

In addition, the circuit court made an erroneous finding of fact and

misperceived the issue before it with respect to trial counsel’s failure to call either

Mike Hopper or the victim’s father to testify at trial. The court explained that:

The post trial counsel produced at the 11:42 [sic]
hearing a witness, Mike Hopper, who testified in regard
to a statement made by the victim’s father following the
death of the victim. The statement was apparently made
by the victim’s father at the local construction business
where Mr. Hopper worked. Mr. Hopper, who was from
Lake County, the home county of the defendant, knew
both the victim, victim’s father and family, and the
defendant. Hopper stated that he thought it was an
unusual statement for a victim’s father to have made and
that he had related it to the investigator for defendant’s
trial counsel prior to trial. His statement were words in
effect that the victim’s father wished he had told the
victim not to go around the defendant or confront the
defendant because the defendant would shoot or whip
the victim. Apparently, the victim’s father related he
even thought about trying to intercept the victim on the
day of the shooting. This revelation to the Court was
very concerning to the Court in that it appeared to be
evidence that could have been used to help the
defendant at trial. The defendant’s trial counsel
during his 11.42 testimony stated that he knew about
the statement made by the victim’s father after the
shooting. However, this Court’s analysis did not need

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 to be thought about so long since the answer is very
plain, Mr. Null is a seasoned trial counsel. The
victim’s father was not called to testify by defendant’s
post trial counsel, and again that decision is obvious to
the Court.

(Appendix “A” to Appellant’s brief at pp. 7-8) (bold-face emphases added).

Also incorrect is the trial court’s finding that Hopper’s statement

“were words in effect that the victim’s father wished he had told the victim not to

go around the defendant or confront the defendant because the defendant would

shoot or whip the victim.” On the contrary, it was Williams who stated that he

was going to “whip Jamison’s ass.” Apparently, both the court and “the seasoned

trial counsel” misperceived a critical matter of fact; nevertheless, the court

correctly and duly noted its potential usefulness to defendant in establishing his

claim of self-defense.

Jamison explains that the second paragraph of Hopper’s affidavit was

admitted in lieu his of testimony at the RCr 11.42 hearing so as not to embarrass

Williams’s father (Garland Williams), who was present in the court room. Hopper

testified that the contents of the second paragraph of his affidavit are true and

correct. They are as follows:

Subsequent to Mark Williams being shot by Terry
Jamison on October 1st, 2016 I was in the office at
Coffee Construction Company in Hickman, Kentucky
when Garland Williams came into the business and
made the statement in front of me and Justin Morris, a
fellow employee, that Mark Williams, his son, on the

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 day that he was shot told his father, Garland
Williams, that he was going down to where Terry
Jamison was working in a field and “whip his ass.”
Justin Morris and I both heard Garland Williams make
this statement and we discussed, between us, why he
would make such a statement. Garland Williams further
stated that he told Mark to leave Terry Jamison alone,
that he was “going to shoot you.” Garland Williams
further stated that he was glad he did not go down to
where Terry Jamison was because he may have shot him
too.

(Record on Appeal, No. 21-CA-0777-MR, Vol. II, at p. 233, Defendant’s Exhibit

“K”) (bold-face emphases added).

The critical importance of the existence of a threat has been

highlighted by Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky. 1997): “Even an

uncommunicated threat by the deceased against the defendant is admissible to

show the deceased’s state of mind prior to the killing and as evidence to prove

who was the aggressor.” (Emphasis added.) In Brock, our Supreme Court

explained as follows:

[T]he primary evidentiary fact to be decided by the jury
as framed by the instruction on self-protection was which
party was the initial aggressor. Evidence that shortly
before the encounter, the deceased told his mother
that he was going to Appellant’s house with a purpose
to kill him was more than just cumulative evidence of
“bad blood.” It was evidence which the jury may well
have found decisive on Appellant’s claim of self-
defense. Exclusion of this evidence on grounds that it
was cumulative was outside the discretion normally
exercised by a trial judge in performing the KRE 403
balancing test.

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Id. (bold-face emphases added).

Clearly, this evidence was significant. “It was evidence which the

jury may well have found decisive on Appellant’s claim of self-defense.” Id.

Thus, we must consider that the circuit court erred in summarily concluding that

trial counsel’s failure to call these witnesses was a matter of sound or even

minimally correct strategy.

Honorable David Jernigan

Honorable David Jernigan -- whose testimony the circuit court failed

to address other than by a passing reference -- testified about the critical role of the

witnesses testifying as to state of mind. Judge Jernigan opined that it was within

the realm of professional norms to have introduced this type of evidence during a

self-defense criminal trial -- and that the failure to call these witnesses was a

deviation from the standard of care in the prevailing professional norms.

Furthermore, Judge Jernigan noted that this testimony was important to Jamison’s

defense of self-defense, state of mind, and the opportunity to give the jury the

information it needed to conclude whether or not Jamison was afraid of the

decedent. Judge Jernigan believed that all of these deficiencies on the part of trial

counsel created a reasonable probability that the results of the trial would have

been different absent the deficiencies. Judge Jernigan’s opinions were expressed

within a reasonable degree of legal certainty.

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 We are satisfied from our review that Jamison met his burden of

proving both the deficiency and prejudice prongs of Strickland. We find the

reasoning in a decision of one of our sister states to be relevant and persuasive:

Without the relevant state-of-mind evidence, the core of
the defendant’s case was not put before the jury, thereby
denying the defendant the opportunity to effectively
mount his defense. . . . The jury should have been
allowed to hear why he had that belief. They would then
be free to accept or reject it; but it was error to keep it
from them. This deprived the defendant of a fair trial.

People of Illinois v. Hamilton, 2019 IL App (1st) 170019, 147 N.E.3d 922, 933 (Ill.

App. Ct. 2019).

As a result of trial counsel’s deficiencies, the core of Jamison’s case

was not put before the jury, thereby denying Jamison the opportunity to effectively

mount his defense. The jury should have been allowed to hear the testimony of the

state-of-mind witnesses. The result of this deficiency was prejudicial in that it

created a “probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In light of our decision, we need

not address Jamison’s remaining arguments.

We reverse the decision of the Fulton Circuit Court that denied

Jamison’s RCr 11.42 motion, and we remand this case for a new trial.

CLAYTON, CHIEF JUDGE, CONCURS AND FILES SEPARATE
OPINION.

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 DIXON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE
OPINION.

CLAYTON, CHIEF JUDGE, CONCURRING: I concur with the majority’s well-

reasoned opinion. However, I write separately to express my concern that trial

counsel’s failure to object to the “Fifth Amendment Violations” was trial strategy.

I agree with the majority that in the direct appeal, the Kentucky Supreme Court

referred to the trial counsel’s failure to object as trial strategy. Nevertheless, I do

not believe that this language was the holding of the case.

The Kentucky Supreme Court has stated “[v]iolations of constitutional

rights, the same as of other rights, may be waived by failure to make timely and

appropriate objection.” Futrell v. Commonwealth, 437 S.W.2d 487, 488 (Ky.

1969) (citations omitted). Moreover, a separate panel of this Court held:

[w]hen a defendant’s attorney is aware of an issue and
elects to raise no objection, the attorney’s failure to
object may constitute a waiver of an error having
constitutional implications. In the absence of exceptional
circumstances, a defendant is bound by the trial strategy
adopted by his counsel even if made without prior
consultation with the defendant. The defendant’s counsel
cannot deliberately forego making an objection to a
curable trial defect when he is aware of the basis for an
objection.

Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977) (citations

omitted). Although the Kentucky Supreme Court in Jamison’s direct appeal

referenced trial strategy the holding concerns waiver. Furthermore, Strickland, 466

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U.S. at 689, 104 S. Ct. at 2065, requires sound trial strategy. It is hard to believe

that a strategy that involves ignoring a constitutional right is sound strategy.

Further, the Supreme Court held in Martin v. Commonwealth that:

When an appellate court engages in a palpable error
review, its focus is on what happened and whether the
defect is so manifest, fundamental and unambiguous that
it threatens the integrity of the judicial process.
However, on collateral attack, when claims of ineffective
assistance of counsel are before the court, the inquiry is
broader. In that circumstance, the inquiry is not only
upon what happened, but why it happened, and whether it
was a result of trial strategy, the negligence or
indifference of counsel, or any other factor that would
shed light upon the severity of the defect and why there
was no objection at trial. Thus, a palpable error claim
imposes a more stringent standard and a narrower focus
than does an ineffective assistance claim. Therefore, as a
matter of law, a failure to prevail on a palpable error
claim does not obviate a proper ineffective assistance
claim.

207 S.W.3d 1, 5 (Ky. 2006).

Based on the foregoing reasons, I believe that we could address these

deficiencies. However, the majority’s decision that we are precluded from doing

so does not hinder our remanding this case to the trial court -- a decision with

which I fully concur.

DIXON, JUDGE, CONCURRING IN RESULT: While I agree with the majority

on almost all points of this opinion, I do not agree that the Supreme Court’s ruling

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concerning Jamison’s trial counsel’s failure to object precluded the claim of

ineffective assistance of counsel due to counsel’s “trial strategy.”

First, the Supreme Court’s Opinion on the issue indicates the

magnitude of the Fifth Amendment violation:

Before trial, defense counsel became worried about what
the jury might think if it learned that Jamison did not give
a statement to police. The trial court assured counsel that
if it became an issue, it would admonish the jury. The
prosecutor stated that he only intended to demonstrate
that Jamison did not give a statement to police, and
nothing further. When the trial court asked if defense
counsel wanted an admonition if the issue arose, defense
counsel stated, “I think it’s in my client’s best interest to
[let the jury know about Jamison not giving a
statement].” Later in the pre-trial hearing, regarding the
same issue, the trial court stated:

Trial Court: Are you going to acknowledge [that
Jamison did not give a statement]?

Defense Counsel: Yes.

....

Trial Court: Alright, so it sounds like a non-issue
at this point.

Defense Counsel: Right.

Trial Court: If it develops into an issue,
gentlemen, bring it to my attention and I’ll rule
accordingly.

Defense Counsel: Okay.

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During trial, Jamison’s refusal to give a statement at the
scene turned into a focal point for the prosecution. On
eight separate instances, the prosecutor stated or elicited
a statement from a witness regarding the lack of a
statement by Jamison; specifically, the prosecutor elicited
testimony from law enforcement officers that the first
thing a police officer would do if he was involved in a
shooting would be to give a statement. These statements
and elicited responses occurred at every stage of trial;
once during opening argument, four times during the
Commonwealth’s case in chief, once on cross-
examination of Jamison, and twice during closing
argument.

During his opening statement the prosecutor stated, “We
don’t know what happened [to the trailer hitch] because
he declined to comment to police.”

During re-direct of Officer Joey Adams:

Commonwealth: He talked to you about an officer
shooting, which has absolutely nothing to do with
this case. But, the fact of the matter is, what’s the
first thing that happens when an officer is involved
in a shooting? Does he give a statement?

Sgt. Adams: Yes. I gave a statement to my
lieutenant at the time.

Commonwealth: So you gave a statement?

Sgt. Adams: Explaining what happened yes.

During direct examination of lead Detective Hamby:

Commonwealth: Were you able to talk to
[Jamison] at any time?

Det. Hamby: I did attempt to talk to him later in
the evening, but not immediately, no.

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 Commonwealth: Did you receive any information
when you talked to [Jamison]?

Det. Hamby: No, he chose not to make a
statement.

On re-direct of Detective Hamby:

Commonwealth: What is the first thing that
happens when an officer is involved in a shooting?

Det. Hamby: They are typically interviewed.

Commonwealth: They give a statement about
what happened is that what you are saying?

Det. Hamby: That’s correct.

Commonwealth: The very first thing?

Det. Hamby: In probably 99% of the cases, yes.

On cross-examination of Jamison:

Commonwealth: Why did you need time before
you made your statement?

Jamison: Sir, my mind wasn’t clear and I was
scared.

Commonwealth: Of Deputy Thomas?

Jamison: No, just from the incident.

Commonwealth: But you didn’t give a statement
to Deputy Thomas of what happened?

Jamison: They read me my rights, and told me to
[sic] I had the right . . . [.]

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 Commonwealth: So, you exercised your right not
to say anything?

Jamison: Yes sir, I remained silent, yes sir.

Commonwealth: After you shot a man down in
cold blood[?]

Jamison: No sir.

Commonwealth: Nothing further.

During closing argument, the prosecution drew an
analogy between what law enforcement officers do and
what Jamison did not do after involvement in a shooting:

Commonwealth: What is the first thing an officer
is required to do [when involved in a shooting]?
Give a statement. We didn’t have a statement
here. So, Det. Hamby had to go on what
information he had.

And finally, later in closing:

Commonwealth: And then he met Deputy
Thomas. Deputy Thomas read him his rights, and
he declined to talk any further, and he had that
right. Cory Hamby began his investigation on
what he had, what information he had that night.

Throughout the entire trial, defense counsel never
objected to the prosecutor’s questions, statements, or
elicited testimony regarding Jamison’s refusal to give a
statement. Defense counsel also allowed the
Commonwealth to play a body cam video of Jamison
being read his Miranda rights, asking for an attorney, and
being placed in handcuffs. Furthermore, defense counsel
raised Jamison’s refusal to give a statement on his own
during his opening statement, during cross-examination

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 of the Commonwealth’s main witness, and during direct
examination of Jamison.

Defense counsel did not object to any statements made
by the prosecution regarding Jamison’s election to speak
with an attorney prior to giving a statement. In his brief,
Jamison seeks palpable error review under RCr 10.26.
The Commonwealth asserts that Jamison waived any
review on appeal because of the above statements made
by defense counsel during pre-trial hearings and the lack
of objection during trial. Indeed, when not waived by
lack of objection, comments such as those made by the
Commonwealth have been held to have eviscerated a
defendant’s Fifth Amendment rights, requiring
reversal. See, e.g., Doyle v. Ohio, 426 U.S. 610, 618
(1976).

Jamison, 2019 WL 1172971, at *3-5.

As noted by the majority opinion, the Supreme Court determined that

a constitutional right may be waived. Citing West v. Commonwealth, 780 S.W.3d

600 (Ky. 1989), the Court determined trial strategy may constitute a waiver.

However, the Court also inferred it was troubled about this waiver: “[r]egardless

of our thoughts concerning this strategy, Jamison’s defense counsel knew of the

curable trial defect -- Jamison’s right to silence -- and deliberately chose not to

object each time the prosecution raised the issue.” Jamison, 2019 WL 1172971, at

*5.

I believe the majority opinion misapprehends the import of the

Supreme Court’s holding on direct appeal. I agree, the Supreme Court held

Jamison’s defense counsel waived the Fifth Amendment right at trial. But it is

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counsel’s very decision to waive Jamison’s Fifth Amendment rights that Jamison

now contends was ineffective assistance of counsel. The Supreme Court’s

decision on direct appeal did not -- and indeed could not -- make any ruling on this

issue. This issue was not before it. Furthermore, on this basis, Chief Judge

Clayton’s succinct analysis in her concurring opinion makes clear this issue alone

merits reversal. Defense counsel’s “trial strategy” herein resulted in not only

mentioning but clearly weaponizing a fact which Jamison had every constitutional

right to claim. By doing so, the violation was egregious and merits reversal, and

Jamison is entitled to a new trial with perhaps a new trial strategy.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Stacey A. Blankenship Daniel Cameron
Paducah, Kentucky Attorney General of Kentucky

Charles S. Kelly Perry T. Ryan
Dyersburg, Tennessee Assistant Attorney General
Frankfort, Kentucky
Joe G. Riley
Ridgely, Tennessee

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