dissenting.
Respectfully, I must dissent. I fully agree with the Court of Appeals’ decision that this case must be remanded to the trial court for an evidentiary hearing on one of the issues raised in the RCr 11 .42 motion. In my opinion, the trial court should have held an evidentiary hearing on the reason for trial counsel’s failure to place the proffered evidence of gang activity on the part of the victim into the record by way of avowal.
The language of RCr 11.42 states that a criminal defendant is entitled to a hearing if there is “a material issue of fact that cannot be determined on the face of the record.” Without a hearing there is no way to develop a record in order to review and determine why an issue is not made part of the direct appeal from a criminal conviction. This Court has held that on review of an RCr 11.42 motion, we are “confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). Counsel’s performance must be shown to have been deficient, and the Appellant must prove that he was so prejudiced by the deficiencies that there is a reasonable likelihood that, absent his counsel’s errors, the result of his trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As the Court of Appeals noted in its opinion, an avowal would have permitted the appellate court, on direct appeal, to have reviewed the issue for error. It seems clear that Appellant was prejudiced by the trial court’s refusal to permit the testimony, as the evidence had a direct bearing on the reasonableness of Appellant’s belief that he had need to act in self preservation. While it is true that Appellant himself testified as to the victim’s status as a member of the “Outlaw Posse,” it is evident to me that hearing this same information from a police officer who has no personal involvement in the events involved is far more likely to impress a jury. A hearing and the introduction of evidence was required to determine whether counsel was ineffective in failure to properly preserve the issue for appellate review.
I would affirm the opinion of the Court of Appeals and remand this matter to the Kenton Circuit Court for an evidentiary hearing.