RENDERED: FEBRUARY 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0583-MR
SIMEON MCKINNIE APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 15-CR-00199-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE,
JUDGES.
GOODWINE, JUDGE: Simeon McKinnie (“McKinnie”) appeals a Kenton Circuit
Court order denying his motion to alter, amend, or vacate his conviction under
RCr1 11.42 and for an evidentiary hearing. After careful review, finding no error,
we affirm.
1
Kentucky Rules of Criminal Procedure.
The Supreme Court of Kentucky summarized the facts of the case as
follows:
On January 21, 2015, Simeon McKinnie sought to
obtain a half-pound of marijuana. He contacted Matthew
Bowling, who then contacted David Abney. Abney, in
turn, contacted Ronald Hudson, who he knew sold
marijuana. The next day, Abney met with Bowling, and
the two went to pick up McKinnie on Holman Street in
Covington. McKinnie was unexpectedly accompanied
by DeLaun Hayes. The four – Abney, Bowling,
McKinnie, and Hayes – traveled together from Holman
Street en route to Hudson’s house on Hand’s Pike.
In the meantime and unbeknownst to Abney and
Bowling, McKinnie had another plan. He had contacted
Charles Knox prior to joining Abney and Bowling.
McKinnie asked Knox to give him a ride to obtain
marijuana; however, McKinnie never intended to ride
with Knox, rather, he intended for Knox to follow him to
Hudson’s. Knox, not owning a car, contacted Tara Little,
who agreed to drive Knox to the drug deal in exchange
for gas money. When Knox and Little arrived at Hayes’s
house to pick up McKinnie, he was not there. Instead,
McKinnie’s step-brother, John Palmer, got in the car and
said McKinnie was in a truck around the corner.
Confused, Knox called McKinnie, who told him to
follow the truck.
Both vehicles made their way to Hudson’s house.
Along the way, Little’s vehicle was separated from
Bowling’s, and Hayes called Knox to see where he was.
Hayes told Knox they would wait for him at a Speedway
gas station on Madison Avenue; McKinnie told Bowling
to stop at the gas station so he could get something to
drink. After Little’s vehicle caught up to Bowling’s, the
two vehicles continued to Hudson’s.
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When the group arrived at Hudson’s house,
Bowling parked in the driveway, while Little parked on a
side street and waited with her engine running.
McKinnie and Hayes told Abney that they wanted to see
the marijuana before they bought it. Abney, not wanting
to bring someone new into Hudson’s home, went inside
alone and brought a small amount of the marijuana out to
McKinnie and Hayes. The two then told Abney that they
wanted to see the entire amount weighed. Abney
conveyed this information to Hudson, who told Abney to
take McKinnie and Hayes to the garage, where he would
meet them.
Abney, Bowling, McKinnie, and Hayes got out of
the car and headed into Hudson’s garage. After they
entered, Hayes asked again to look at the marijuana.
Hudson gave him the bag and then asked if “the deal was
going to go down.” Hayes responded, “Yeah, but it’s
going to go down like this” and both Hayes and
McKinnie pulled out pistols. Abney then lunged for
Hayes, attempting to knock the marijuana and gun from
his hand. While it is clear from witness testimony that
both Hayes and McKinnie fired their pistols, it is unclear
who shot whom. Ultimately, however, both Abney and
Hudson were shot, and Hudson died of his wounds.
After the shots were fired, McKinnie took the
marijuana, and he and Hayes ran from the garage. The
two ran to Little’s car, and the group drove to Hayes’s
grandmother’s house, where McKinnie, Hayes, Palmer,
and Knox divided up the marijuana, and McKinnie and
Hayes disposed of their pistols. McKinnie was charged
with first-degree manslaughter, first-degree assault, and
two counts of first-degree robbery, and these proceedings
commenced.
McKinnie v. Commonwealth, No. 2016-SC-000348-MR, 2017 WL 2591810, at *1-
2 (Ky. Jun. 15, 2017) (footnotes omitted).
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McKinnie’s jury trial began on April 19, 2016. A jury found him
guilty of first-degree manslaughter, principal, or accomplice; first-degree assault,
principal or accomplice; and two counts of first-degree robbery. The jury
recommended a total sentence of 55 years, which the circuit court imposed. The
Kentucky Supreme Court affirmed McKinnie’s conviction on direct appeal. Id.
On May 1, 2018, McKinnie filed a pro se motion to vacate conviction
and sentence under CR2 60.02(f), arguing a new affidavit by Knox recanting his
trial testimony was of such extraordinary nature that it justified relief. The circuit
court denied the motion finding the motion was “factually a CR 60.02(c) motion”
and was untimely. Record (“R.”) at 531. The court also found Knox’s affidavit
was “not sufficient or specific enough to determine” if Knox’s affidavit or new
testimony was truthful. Id. McKinnie did not appeal this order.
On May 8, 2019, McKinnie filed pro se motions to vacate, set aside,
or correct sentence under RCr 11.42, for an evidentiary hearing, to proceed in
forma pauperis, and for appointment of counsel. He raised three issues: (1) trial
counsel should have moved to dismiss the assault charge because it was a double
jeopardy violation when charged along with robbery;3 (2) trial counsel’s failure to
investigate his case, specifically that counsel failed to elicit testimony from his
2
Kentucky Rules of Civil Procedure.
3
McKinnie did not raise the double jeopardy issue on appeal.
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codefendants that comported with his theory of the case; and (3) trial counsel was
ineffective for failing to obtain a qualified expert under Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
The Commonwealth filed a timely response in opposition to the motion, and
McKinnie timely replied.
On April 22, 2021, the circuit court entered an order denying
McKinnie’s motion.4 First, the circuit court found the Kentucky Supreme Court
addressed McKinnie’s double jeopardy argument on direct appeal. Further,
counsel was not ineffective for failing to move to dismiss the assault charge as
constituting double jeopardy when charged along with robbery because these are
two separate charges. Second, regarding trial counsel’s failure to investigate his
case, the circuit court found McKinnie’s argument lacked specific facts and trial
counsel zealously advocated for McKinnie. Third, the circuit court found trial
counsel brought forth a potential witness to testify to show gunshot wounds
inflicted on the victims only came from one gun, but the circuit court found the
testimony did not meet the standards of Daubert. The circuit court found an
evidentiary hearing was not required because the allegations could be resolved on
the face of the record. This appeal followed.
4
The record does not indicate the reason for delay in ruling on the motion.
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On appeal, McKinnie argues: (1) trial counsel was ineffective for
failing to move to dismiss the assault charge and failing to elicit favorable
testimony from Knox and Hayes; (2) the circuit court went outside the bounds of
RCr 11.42 by making findings outside the record; and (3) the circuit court erred in
denying his request for an evidentiary hearing.
“We review the trial court’s denial of an RCr 11.42 motion for an
abuse of discretion.” Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App.
2014). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
A successful claim of ineffective assistance of counsel must survive
the twin prongs of “performance” and “prejudice.” Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), accord Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985).
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. 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. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
show prejudice, the defendant must show there is a
reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is [a]
probability sufficient to undermine the confidence in the
outcome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
695.
Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002). “The burden is on
the movant to establish convincingly that he has been deprived of some substantial
right which would justify the extraordinary relief afforded by post-conviction
proceedings.” Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009) (citing Dorton v. Commonwealth, 433 S.W.2d 117 (Ky. 1968)).
First, McKinnie argues trial counsel was ineffective for failing to
move to dismiss the assault charge and failing to elicit favorable testimony from
Knox and Hayes. McKinnie abandoned the double jeopardy violation aspect of
this argument on appeal. He now simply argues counsel failed to move for
dismissal of first-degree assault. This precise argument is unpreserved and refuted
by the video record.
After the Commonwealth rested its case-in-chief and after the close of
all evidence, trial counsel moved for a directed verdict on all counts, including
first-degree assault. The circuit court found the Commonwealth presented
sufficient evidence to overcome the motion. During closing argument, trial
counsel instructed the jury they could return not guilty verdicts for McKinnie on all
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charges, including assault and argued McKinnie did not assault either of the
victims. As counsel did what McKinnie argues he failed to do, he fails to prove
deficient performance.
McKinnie also argues counsel was ineffective in failing to elicit
testimony from Knox and Hayes at trial that McKinnie did not possess or shoot
anyone during the incident. In support of this argument, McKinnie attached
affidavits by Knox and Hayes recanting their trial testimony. At trial, both Knox
and Hayes testified McKinnie had a gun. In his affidavit, Knox stated he did not
see anyone with a gun, and McKinnie did not go to Hayes’s house to split the
marijuana. Hayes’s affidavit stated he did not see McKinnie shoot anyone and did
not see him with a gun during or after the incident.
The circuit court denied McKinnie’s argument finding trial counsel
zealously attempted to obtain statements from Knox and Hayes supporting
McKinnie’s position that he did not possess or fire a gun during the incident. Trial
counsel moved to compel production of statements by Knox and Hayes to police,
which the circuit court denied. Trial counsel also moved to exclude the testimony
of Knox and Hayes at trial, which the circuit court denied. Additionally, the circuit
court noted it previously addressed the effect of recanted testimony in its order
denying McKinnie’s CR 60.02 motion.
-8-
“Affidavits in which witnesses recant their testimony are quite
naturally regarded with great distrust and usually given very little weight.”
Hensley v. Commonwealth, 488 S.W.2d 338, 339 (Ky. 1972) (citing Thacker v.
Commonwealth, 453 S.W.2d 566 (Ky. 1970)). “[T]he trial judge is in the best
position to make the determination because he has observed the witnesses and can
often discern and assay the incidents, the influences and the motives that prompted
the recantation; and his rejection of the recanting testimony will not lightly be set
aside by an appellate court.” Thacker, 453 S.W.2d at 568. The circuit court
weighed the recanted testimony and was unpersuaded by it. We will not set aside
the circuit court’s decision to disregard Knox’s and Hayes’s recanted testimony.
Additionally, the circuit court pointed out that because McKinnie was
found guilty of first-degree assault as either principal or accomplice, it was not
necessary for the jury to find that he possessed or shot the gun in order to find him
guilty. Thus, McKinnie failed to meet his burden of proving trial counsel was
ineffective.
Second, McKinnie argues the circuit court went outside the bounds of
RCr 11.42 in making findings outside the record. Above, we held the circuit court
did not err in its findings or conclusions denying McKinnie’s ineffective assistance
of counsel claims. These findings were based on evidence in the record. Thus, we
hold this unsupported argument lacks merit.
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Finally, McKinnie argues the circuit court erred in denying his request
for an evidentiary hearing. A trial court is not required to hold an evidentiary
hearing on a motion under RCr 11.42. Stanford v. Commonwealth, 854 S.W.2d
742, 743 (Ky. 1993). “An evidentiary hearing is not necessary to consider issues
already refuted by the record in the trial court. Conclusory allegations which are
not supported with specific facts do not justify an evidentiary hearing
because RCr 11.42 does not require a hearing to serve the function of
discovery.” Hodge, 116 S.W.3d at 468 (citation omitted). Based on our review of
McKinnie’s ineffective assistance of counsel claims, they were refuted by the
record. Thus, the circuit court correctly denied McKinnie’s motion for an
evidentiary hearing.
For the foregoing reasons, we affirm the order of the Kenton Circuit
Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Darrell Cox Daniel Cameron
Noah P. Wentz Attorney General of Kentucky
Covington, Kentucky
Matthew F. Kuhn
Solicitor General
Brett R. Nolan
Principal Deputy Solicitor General
Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky
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