Opinion
NO. 2018-CA-000360-MR
02-22-2019
CLAUDE ISAAC APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Claude Isaac, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE JOHNNY RAY HARRIS, SPECIAL JUDGE
ACTION NO. 13-CR-00266-002 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING WITH INSTRUCTIONS
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BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES KRAMER, JUDGE: Claude Isaac appeals the Pike Circuit Court's order denying his motion to vacate, set aside, or correct sentence pursuant to RCr 11.42. After a careful review of the record, we affirm in part, reverse in part, and remand with instructions as set forth below.
Kentucky Rules of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
The U.S. Bank located in Virgie, Kentucky, was robbed just after 9:30 a.m. on November 13, 2013. Isaac and Anthony Gillespie arrived at the bank on the morning of the robbery on a Honda four-wheeler operated by Isaac. Gillespie entered the bank, pointed a handgun at a customer's head, and threatened to kill the customer if bank employees did not give him the money he was demanding. The bank employees complied, and Gillespie exited the bank with over $8,000 cash in his possession. After exiting the bank, Gillespie got back onto the four-wheeler where Isaac was still waiting; the pair then drove away.
On November 27, 2013, Isaac and Gillespie were indicted by the Pike County grand jury. Isaac was charged with first-degree robbery; theft by unlawful taking (value greater than $500, less than $10,000); and persistent felony offender (PFO), first degree. At trial, the jury returned a guilty verdict for the charges of first-degree robbery and theft by unlawful taking for both defendants. At that point, Isaac entered into a plea agreement with the Commonwealth for the PFO charge rather than continue to the sentencing portion of the trial. During his plea colloquy, Isaac testified that he was satisfied with his counsel's representation. In exchange for his plea to the PFO charge, the Commonwealth recommended a sentence totaling twenty years' imprisonment.
Twenty years' imprisonment for first degree robbery and five years' imprisonment for theft by unlawful taking, to run concurrently.
After the trial, but prior to sentencing, Isaac filed a motion for judgment notwithstanding the verdict (JNOV), motion for mistrial, and motion for new trial. After a hearing, the trial court denied his motions. Isaac was sentenced to twenty years' imprisonment on September 3, 2014. He filed a timely direct appeal and the Kentucky Supreme Court upheld his conviction.
On October 27, 2016, Isaac filed a pro se motion alleging ineffective assistance of counsel pursuant to RCr 11.42 on numerous grounds. He eventually retained new counsel to represent him on the claim. The trial court conducted an evidentiary hearing on March 9, 2017. Isaac was present and represented by counsel. He did not testify at the hearing. Isaac's trial counsel was present and testified. The trial court denied relief to Isaac after the hearing. Isaac then filed a pro se "motion for findings of fact and conclusions of law pursuant to CR 52.01, CR 52.02, and 52.04." Isaac's counsel filed a separate "motion to alter, amend, or vacate order." The trial court conducted a hearing and again denied relief to Isaac. This appeal followed. Further facts will be developed as necessary.
Isaac's counsel eventually filed a separate memorandum in support of Isaac's pro se motion.
Kentucky Rule of Civil Procedure.
The Kentucky Supreme Court provides a detailed summary of the underlying facts of the case in its opinion upholding Isaac's conviction. See Isaac v. Commonwealth, 2014-SC-000587-MR, 2016 WL 1068614 (Ky. Mar. 17, 2016).
II. STANDARD OF REVIEW
We review a trial court's denial of an RCr 11.42 motion as to whether the denial constituted an abuse of that court's discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). Abuse of discretion is defined as arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Because the trial court conducted an evidentiary hearing on the motion, its findings of fact will not be set aside unless they are clearly erroneous. CR 52.01; Adams v. Commonwealth, 424 S.W.2d 849, 851 (Ky. 1968). Findings of fact are not clearly erroneous if supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).
III. ANALYSIS
Isaac cites nine instances of what he asserts amounted to ineffective assistance of counsel. His claims are that trial counsel: (a) inadequately investigated Thomas McNeil; (b) made misrepresentations to the trial court during the evidentiary hearing; (c) failed to call a juror in question to testify during the hearing on Isaac's motions for mistrial and retrial; (d) failed to object to the testimony of Carrie and Greg Hall; (e) failed to object, or bring to the trial court's attention, that his convictions for robbery and theft by unlawful taking violated his right of protection against double jeopardy; (f) failed to move for a continuance; (g) failed to compel the testimony of Detective Tommy Tackett; (h) failed to object when the prosecution "continually and prejudicially made references to KRE 404(b) matters"; and (i) failed to object to the prosecution's "derogatory reference to Appellant's silence at trial and burden-shifting."
In his pro se brief, Isaac identifies issues labeled as numbers 1-5, but then identifies the remaining issues as 6(a)-(d).
Kentucky Rules of Evidence.
To prevail on a claim made pursuant to RCr 11.42, 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 the defendant 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, i.e., a trial whose result is reliable. Unless 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The proper standard for attorney performance is that of reasonably effective assistance and the inquiry must be whether counsel's assistance was reasonable considering all of the circumstances. Id. 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. at 2065.
A. Inadequate investigation of Thomas McNeil
Isaac argues that his defense counsel was ineffective because he inadequately investigated Thomas McNeil, witness for the Commonwealth. Specifically, Isaac states that his counsel failed to follow-up on Isaac's assertion to him that McNeil was "nuts" because counsel failed to obtain McNeil's medical and court records. Isaac claims that these records could have been used to discredit McNeil. He also argues that counsel's performance was deficient because he did not meet with McNeil prior to trial to show him the bank security surveillance video. We disagree.
An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). In evaluating whether counsel has discharged this duty to investigate, develop, and present mitigating evidence, we follow a three-part analysis. First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. If the choice was not tactical and the performance was deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id.
McNeil had been playing poker with Isaac and Gillespie the night before the bank robbery. In his statement to police, McNeil said that Isaac and Gillespie arrived at the poker game on a light green Honda four-wheeler with a black toolbox on the back. He also stated that he saw Isaac and Gillespie pass by his home on the same four-wheeler the next morning (i.e., the morning of the bank robbery). They were wearing the same clothes they had been wearing at the poker game. However, at trial, McNeil testified that he did not think the person driving the four-wheeler, as seen in the bank's security video, was Isaac. He testified that the driver of the four-wheeler, as seen in the video, did not appear to be wearing the same clothes Isaac had been wearing on the night of November 12, 2013, and the morning of November 13, 2013. McNeil further testified that Isaac had a broken zipper on his pants that went all the way up to his waist and that he did not see that in the bank's video. When McNeil gave his initial statement to police, he had not seen the bank's security video. He did not see the bank's video until the Commonwealth showed it to him on the morning of trial.
At the evidentiary hearing, Isaac's counsel testified that he had hired a private investigator to investigate McNeil and that he had conducted his own check of court records. Counsel did not recall Isaac informing him about any specific diagnosis, mental or physical, related to McNeil, but was aware that McNeil wore glasses and received Social Security Disability benefits. He further testified that he specifically chose not to cross-examine McNeil at trial. Counsel testified that McNeil "was the defendant's best witness" because he told the jury that the person on the four-wheeler in the bank's security video was not Isaac. Counsel's testimony was unrefuted.
The trial court did not abuse its discretion in finding that Isaac's trial counsel conducted a reasonable investigation into McNeil. Furthermore, counsel's decision not to put forth any evidence regarding McNeil's alleged mental and physical health through cross-examination was a reasonable tactical choice. McNeil testified that he did not believe it was Isaac in the bank's security video. It is unclear what benefit Isaac believes would have resulted had his trial counsel chose to impeach McNeil or further question his credibility. Although McNeil's credibility was certainly questionable (the Commonwealth pointed out McNeil's inconsistent statements during direct examination), credibility is a question for the jury. Cochran v. Downing, 247 S.W.2d 228, 229-30 (Ky. 1952). At the close of the Commonwealth's case-in-chief, Isaac's counsel moved for a directed verdict based, in part, on McNeil's testimony that it was not Isaac in the bank's security video. The motion was denied by the trial court. There is no evidence in the record that trial counsel's performance was deficient with regard to investigation of McNeil. Therefore, this argument fails.
B. Counsel's misrepresentations to the trial court during the evidentiary hearing
Isaac claims that his counsel misled the trial court during the evidentiary hearing conducted on March 9, 2017. He asserts that counsel misrepresented exactly when McNeil had recanted his identification of Isaac as the person in U.S. Bank's security video and led the trial court to believe that McNeil had recanted the identification prior to trial, rather than in his testimony on the morning of the trial. We disagree.
McNeil's initial statement to police indicated only that he had seen Isaac and Gillespie at the poker game the night before the robbery and again the following morning when they drove past his home on the four-wheeler. He never recanted this statement or gave conflicting testimony. He also did not recant or give conflicting testimony regarding his statement that Isaac was dressed the same way on the morning of November 13, 2013, as he was at the poker game. He never recanted or gave conflicting testimony regarding the description of the four-wheeler that he had seen Isaac and Gillespie riding on both days. McNeil did not at any point tell the police or testify at trial that the person on the four-wheeler in the bank security video was Isaac.
The purpose of the effective assistance guarantee of the Sixth Amendment is simply to ensure that criminal defendants receive a fair trial. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even if we accept Isaac's assertion as true, counsel's testimony at the evidentiary hearing as to when McNeil recanted his identification of Isaac is irrelevant to whether he provided effective assistance to Isaac during the trial. "[T]he stated purpose of [RCr 11.42] is to provide a forum for known grievances, not to provide an opportunity to research for grievances." Gilliam v. Commonwealth, 652 S.W.2d 856, 858 (Ky. 1983). Isaac's argument that counsel's performance was deficient and prejudicial based on what may have been incorrect testimony regarding the exact timing of certain events—that occurred almost three years prior to the evidentiary hearing—is meritless. Isaac used the evidentiary hearing to search for additional grievances against his trial counsel. The trial court did not abuse its discretion in denying relief to Isaac.
Although he did not offer sworn testimony, Isaac addressed the trial court on September 25, 2017, on his motion to alter, amend, or vacate. It was at this time that he brought counsel's alleged misleading statements at the evidentiary hearing to the trial court's attention.
C. Failure to call a juror in question to testify
On direct appeal, the Kentucky Supreme Court held that the trial court properly denied Isaac's motions for a mistrial, or alternatively, a new trial, due to a juror's alleged failure to disclose pertinent information on his juror qualification form. Briefly, the juror answered "No" to the question of whether he or a family member had "been a defendant, witness, or complainant in a criminal case." It was discovered after trial that the juror's wife was a bank teller whose employer bank had been robbed in an unrelated incident. The trial court acknowledged possible confusion around the meaning of the word "witness" on the juror qualification form. However, on appeal the Kentucky Supreme Court held that "witness," in the context of the question presented on the juror form, supported the interpretation of someone who had testified during a trial, rather than someone who had simply seen a crime occur. Isaac v. Commonwealth, 2014-SC-000587-MR, 2016 WL 1068614 at *7 (Ky. Mar. 17, 2016). The criminal case pertaining to the unrelated robbery (also in Pike Circuit Court) did not go to trial, and the juror's wife was never called to testify as a witness. Even if she had testified, the Kentucky Supreme Court has held that automatic excusal of a juror is not warranted just because a juror or a juror's family member has been the victim of a crime similar to that charged against the defendant. See, e.g., Richardson v. Commonwealth, 161 S.W.3d 327, 330 (Ky. 2005). Isaac now contends, in the context of his RCr 11.42 motion, that his counsel's performance fell below an objective standard of reasonableness when he declined to have the juror in question testify at the hearing on his motion for a mistrial. We disagree.
A separate collateral claim of ineffective assistance of counsel may be maintained even after the alleged error has been addressed on direct appeal, so long as they are actually different issues. Leonard v. Commonwealth, 279 S.W.3d 151, 156-59 (Ky. 2009).
Trial counsel testified that he did not believe it would have been beneficial to Isaac to have the juror testify at the motion for mistrial. He testified that there was a question of whether the juror's wife was actually present on the day her employer bank was robbed. Counsel expressed concerns that the juror would have, in fact, undermined the argument he was trying to make. Counsel had spoken to the juror after the trial and learned that he did not intentionally lie or answer untruthfully on the juror qualification form. Furthermore, he was concerned that the juror would have testified that his wife's experience had no effect on him and did not bias him. Counsel also testified that he could not say for certain that he would have stricken the juror had he known about his wife's experience. Isaac also had the opportunity to call the juror in question to testify at the evidentiary hearing related to his RCr 11.42 motion, but did not. Therefore, trial counsel's testimony was unrefuted.
Isaac has not demonstrated that trial counsel's performance fell below an objective standard of reasonableness because he did not call the juror to testify at the hearing regarding the motion for mistrial. The record does not indicate that Isaac was prejudiced because the juror did not testify, or that the result would have been different if he had. The trial court did not abuse its discretion in denying relief to Isaac related to this claim.
D. Failure to object to the testimony of Carrie and Greg Hall
Isaac argues that his counsel provided ineffective assistance because he did not object to the testimony of Carrie and Greg Hall during the trial. We disagree.
Isaac's argument revolves around missing video surveillance footage from the Hall's Community Market on the day of the robbery and his contention that, "[d]espite the allegations of the Hall's [sic], trial counsel. . . failed and/or refused to challenge either Hall as to any just cause to believe Isaac to be anything other than a customer willing to purchase over-priced goods from a store his family had frequented for many years."
The record refutes Isaac's assertions. Briefly, the Halls sent a copy of what they believed to be surveillance video from the time that Isaac was in their market on the day of the bank robbery. However, when the Kentucky State Police reviewed the video several weeks later, they discovered that the Halls had provided video from the wrong time period. In the interim, the store's surveillance system had overwritten the recording from the day of the robbery. The issue of the missing surveillance video from Hall's Community Market was addressed at length by Isaac's trial counsel on cross-examination of Carrie Hall, Greg Hall, and Detective Jason Merlo. Counsel also motioned the trial court for a missing evidence jury instruction which was denied. The record does not show that trial counsel had any reason to object to the testimony of either Carrie or Greg Hall and defendant's argument is without merit. Counsel addressed the issues now raised by Isaac during cross-examination at trial. The trial court did not abuse its discretion in denying relief to Isaac related to this claim in his RCr 11.42 motion.
E. Failure to raise the issue of double jeopardy
Isaac contends that his trial counsel failed to raise the issue of double jeopardy and, therefore, he was wrongfully convicted of both first-degree robbery and theft by unlawful taking. After careful review of the record, we agree. Accordingly, we reverse and remand with instructions as set forth below.
Pursuant to Section 13 of the Kentucky Constitution, "[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb[.]" A person may not be convicted of both theft by unlawful taking and robbery based on the same underlying theft. Lloyd v. Commonwealth, 324 S.W.3d 384, 390-91 (Ky. 2010). Theft by unlawful taking is a lesser-included offense of robbery. Roark v. Commonwealth, 90 S.W.3d 24, 38 (Ky. 2002). The record shows that the issue of double jeopardy was not raised at trial. The jury instructions did not indicate that Isaac could be found guilty of either first-degree robbery or theft by unlawful taking, but not both. However, neither the co-defendants nor the Commonwealth objected to the jury instructions. Trial counsel, who also handled Isaac's direct appeal, did not raise the issue on appeal and the Kentucky Supreme Court did not address the matter. Isaac obtained new counsel for his motion pursuant to RCr 11.42, and the issue was raised at that time.
At the evidentiary hearing, the Commonwealth agreed that Isaac's conviction for both first-degree robbery and theft by unlawful taking violated his right of protection against double jeopardy. Although the Commonwealth acknowledged that double jeopardy had occurred, it argued that it was immaterial because Isaac received no extra time on his sentence for the charge of theft by unlawful taking (i.e., five years' imprisonment to run concurrent with his sentence of twenty years' imprisonment for first-degree robbery). In the "Commonwealth's Memorandum Opposing Isaac's 11.42 Motion" filed with the trial court on May 4, 2017, the Commonwealth again acknowledged that Isaac's convictions for both first-degree robbery and theft by unlawful taking were improper; that the conviction for theft by unlawful taking should be dismissed; and that a new final judgment should be entered reflecting the dismissal.
Trial counsel testified at the evidentiary hearing that the jury could have found Isaac guilty of theft only. However, careful review of the record shows that the jury instructions in no way made the jury aware that theft by unlawful taking is a lesser-included offense of first-degree robbery. The trial court made no findings of fact or conclusions of law as to why it did not grant relief to Isaac regarding his double jeopardy claim, other than to say that counsel, "did in fact serve adequately as counsel, performed the appropriate investigation and performed his duties with merit."
The Commonwealth is correct in its assertion that the conviction of theft by unlawful taking adds no additional time to Isaac's sentence. However, overall length of sentence is not the only factor to be considered. The United States Supreme Court has ruled that the separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and carries the societal stigma accompanying any criminal conviction. Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment. Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 1673, 84 L. Ed. 2d 740 (1985).
While we agree with Isaac's argument that he is prejudiced by having both convictions on his record, we also acknowledge that the evidence submitted to the jury would have been the same regardless of whether trial counsel had raised the issue of double jeopardy. There was still sufficient evidence to convict Isaac of first-degree robbery.
Isaac's convictions for both first-degree robbery and theft by unlawful taking violated his right of protection against double jeopardy. This is impermissible, even though the theft conviction adds no additional time to his sentence. Accordingly, we reverse and remand with instructions to enter a new judgment vacating Isaac's conviction for theft by unlawful taking. See Brown v. Commonwealth, 297 S.W.3d 557, 562-63 (Ky. 2009).
F. Failure of trial counsel to move for a continuance
Isaac argues that his trial counsel failed to move for a continuance prior to trial. The assertion is refuted by the record. Counsel filed a motion to sever on July 11, 2014. He renewed the motion and asked for a continuance in chambers on the morning of the trial, at which time Gillespie's counsel stated that they were ready to proceed even if the court granted Isaac's motion to sever. The trial court denied Isaac's motions. Counsel testified that he did not include an affidavit with his motion to continue because he was waiting until the last minute to see if certain lab results would be completed prior to trial. This testimony was unrefuted. Accordingly, the trial court did not err when it denied relief to Isaac because the claim is meritless.
Counsel was waiting on analysis of a gun used in an unrelated crime that he claimed could possibly tie Gillespie to at least one other bank robbery in the area.
G. Failure to compel the testimony of Detective Tommy Tackett
Isaac argues that he was denied a fair trial because counsel failed to subpoena Detective Tommy Tackett to testify. We disagree.
When McNeil realized that he possibly had information regarding the suspects in the bank robbery, he reached out to Detective Tommy Tackett of the Kentucky State Police. Although Tackett was present at McNeil's interview, only Detective Merlo conducted the interview and asked questions. Merlo was the lead detective in the case and there is no evidence that Tackett was involved beyond being the initial point of contact and attending the interview. Isaac asserts that Tackett would have testified to his "recognition and manipulation of McNeil's mental condition and/or infirmities." Isaac merely speculates what Tackett's testimony would have been. There is no evidence in the record that Tackett could have been considered a medical or mental health expert and any testimony by him to that effect would have been inadmissible. Counsel's unrefuted testimony is that he believed McNeil was the defense's "best witness." Therefore, there would have been no benefit in using Tackett's testimony to call into question McNeil's credibility, physical condition, and/or mental stability during the trial.
There is no evidence that trial counsel's performance was deficient for failing to compel Tackett to testify at trial, nor is there evidence that Isaac was prejudiced by counsel's decision in this respect. The trial court did not abuse its discretion in denying relief to Isaac under this claim.
H. Failure to object to "KRE 404(b) matters"
Isaac argues that, during closing arguments, the Commonwealth referenced the Halls' testimony that they feared Isaac might rob them based on the way he was dressed when he entered their market on the day of the bank robbery. Isaac asserts that his trial counsel's failure to object to these statements by the Commonwealth amounted to ineffective assistance of counsel and refers to this as "KRE 404(b) matters." Isaac's argument misses the mark.
The purpose of KRE 404(b) "is to prohibit unfair inferences against a defendant" by excluding "evidence of other crimes, wrongs, or acts. . . to prove the character of a person in order to show action in conformity therewith." Conrad v. Commonwealth, 534 S.W.3d 779, 781 (Ky. 2017) (citations omitted). At no time did the Commonwealth reference other crimes, wrongs, or acts of Isaac in opening or closing arguments. Nor did the Commonwealth elicit such evidence from the testimony of any witness. The testimony of the Halls merely referenced their observations and trepidation in light of how Isaac was dressed when he walked into the store and their knowledge of other unrelated crimes that had taken place at businesses in the area. There was simply no violation of KRE 404(b) to which trial counsel should have objected. The trial court did not abuse its discretion in denying relief to Isaac for this claim.
I. Failure to object to the prosecution's "derogatory reference to [Isaac's] silence at trial and burden-shifting."
Isaac argues that the Commonwealth referenced the fact that he did not testify in its closing argument and that trial counsel's failure to object amounted to ineffective assistance of counsel pursuant to RCr 11.42. This argument is completely refuted by the record. At no time in its closing argument did the Commonwealth make mention of the fact that Isaac did not testify. Moreover, Jury Instruction No. 4 states "[a] defendant is not compelled to testify, and the fact that the Defendant did not testify in this case cannot be used as an inference of guilt and should not prejudice him in any way." Isaac's argument is meritless.
It is unclear precisely what Isaac is referring to in the record when he states that counsel failed to object to "burden-shifting." However, after careful review, we note that Gillespie's trial counsel objected during the Commonwealth's closing argument. The Commonwealth had stated that Gillespie could have subpoenaed one or more individuals with whom Gillespie claimed he was working on the day of the robbery, but did not. In her objection, Gillespie's counsel argued that the defense was not required to put on any evidence or call any witnesses. The trial court overruled the objection, holding that the Commonwealth only stated that the defense had the opportunity to present alibi witnesses. After Gillespie's objection was overruled, the Commonwealth continued its closing argument and made reference to the fact that Isaac could have called his girlfriend at the time as a witness, but did not.
Gillespie's wife testified that someone she did not know picked Gillespie up for work in a black truck on the morning of the bank robbery.
Isaac's mother, Maxine Newsome, testified that Isaac had left her home on the morning of the bank robbery in the company of his then-girlfriend. --------
During closing argument, "[a] prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). The record is clear that the Commonwealth was commenting on the defense tactic to not call additional witnesses to support an alibi. At no time did the Commonwealth state or imply that Isaac should have called additional witnesses or that he had an obligation to call witnesses. At no time did the Commonwealth shift the burden of proof to either defendant. Isaac's trial counsel had no reason to object to the Commonwealth's closing argument, particularly because the trial court had overruled Gillespie's objection to same. The trial court did not abuse its discretion in denying relief to Isaac under this claim.
IV. CONCLUSION
For the foregoing reasons, we affirm in part, reverse in part, and remand with instructions to enter a new judgment vacating the conviction for theft by unlawful taking.
ALL CONCUR. BRIEFS FOR APPELLANT: Claude Isaac, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky