Opinion
NO. 2012-CA-001240-MR
08-22-2014
TERRANCE MILES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Margaret A. Ivie Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 05-CR-000740
OPINION
REVERSING AND REMANDING
BEFORE: COMBS, LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Terrance Miles appeals the denial of his motion for postconviction relief on the basis of ineffective assistance of counsel after an evidentiary hearing.
Following the shooting death of a bouncer outside a Louisville nightclub, Miles was convicted of murder, wanton endangerment, tampering with physical evidence and being a second-degree persistent felony offender (PFO II). The Kentucky Supreme Court summarized the underlying facts as follows:
On the night of February 27, 2005, Michael Teasley, a bouncer at Club 502, was shot and killed outside the club as he attempted to clear the parking lot after the club had closed. Earlier that same evening, after another bouncer had removed Terrance Miles from the club for smoking marijuana, Miles and Teasley got into a fight. Teasley's wife, Crystal, who also worked at the club, testified that after the fight, Miles grinned and said to her husband, "you might have whipped my ass, but I'm going to get you."Miles v. Commonwealth, 2007-SC-000298-MR, 2009 WL 160435, 1 (Ky. 2009) (unpublished). After Miles was found guilty, he was sentenced to serve fifty years' incarceration. Miles's conviction was affirmed on appeal.
Officer Frank Hill of the Louisville Metro Police Department, who was working extra security for the club while off duty, observed the fight between Teasley and Miles. While Hill did not witness the actual shooting, he heard the gunshots and then looked in the direction of the gunshots and saw a male running across the parking lot dressed in all dark clothing and wearing a toboggan hat. Officer Hill testified that the man he observed running across the parking lot was the same man who had been fighting with Teasley earlier in the night. Hill gave chase in his patrol car with the assistance of another bouncer and at one point located the suspect behind a dumpster in back of the club. However, Hill eventually lost sight of the suspect.
A number of items were collected from the crime scene, including a black toboggan hat and a cell phone. The number of the cell phone matched the number Miles gave to Enterprise Rent-a-Car when he switched his rental vehicle the day after the murder. The hat was ultimately sent by the Commonwealth to the Kentucky State Police forensic lab for DNA testing to see if trace evidence on the hat matched Miles' DNA. The results of the testing were ultimately determined to be negative for Miles' DNA.
Miles filed a motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 alleging ineffective assistance of counsel and requesting an evidentiary hearing. Miles argued that his trial counsel was ineffective as follows: (1) failing to call Heather St. Claire, who testified at his bond hearing that Miles was wearing all tan and had been thrown out of a different door than the shooter; (2) failing to call Dalco Lanier and Andre Judkins, who would have testified Miles was wearing tan, and the shooter was wearing all black and ran off in a different direction than other witnesses testified; (3) failing to call him to testify on his own behalf because he believed his testimony was key in refuting the prosecution's case; (4) denying him the right to testify after he asked to testify; (5) failing to object to Officer Ashby's testifying that Reggie Burney picked Miles out of a photopack as being in a fight with Teasley earlier where Burney did not testify and Burney was available as a witness; (6) failing to object and move for an admonition or mistrial for the introduction of his nickname of "O.G." for "Original Gangster" and the Commonwealth's repeated references to him as "Old Gangster" during its closing argument; (7) failing to object to the introduction of evidence about his unrelated gun which had been excluded as the murder weapon; and (8) failing to strike a biased juror who admitted having a conversation with an officer involved in the case while she was serving on the jury. He argued each incident of trial counsel's ineffectiveness was individually prejudicial and, when considered together, were cumulatively prejudicial. At an evidentiary hearing, the trial court heard testimony from Miles's trial counsel, Miles and potential defense witness Lanier.
Miles's trial counsel testified as to the choices he made in calling certain witnesses, pursuing certain defenses and his failure to object to the admission of certain types of evidence. He stated he was hindered by lack of access to his file, which had been delivered to Miles and destroyed in a prison fire, and imperfect recollection. He testified he made a number of mistakes, which in hindsight seemed significant.
Trial counsel could not remember why he did not call St. Claire and now believed he should have done so because pursuing inconsistent defenses may have been a better strategy. He explained St. Claire could have refuted Officer Hill's identification of Miles, because she would have testified consistent with her bond hearing testimony that Miles was ejected out of a different door than the person who was in a fight with Teasley and that Miles was wearing a tan hat and a tan Dickie outfit.
Further, trial counsel recalled advising Miles not to testify because he believed he could establish mistaken identity more effectively without Miles's testimony, which would contradict the defense theory he was presenting to the jury. Miles could also be impeached by his earlier statement which would not come into evidence unless Miles testified.
It appears trial counsel was attempting to challenge the Commonwealth's theory that Miles had been thrown out of the bar, had been in a fight with Teasley earlier and then killed him to defend his honor by showing the weakness of the various links of identification used to establish he was the shooter, including the absence of his DNA on the shooter's hat. However, St. Claire would testify Miles was thrown out of the club and Miles would testify he did get in an earlier fight with Teasley outside the club, thus weakening the defense theory of mistaken identity.
Trial counsel testified he vigorously attempted to locate and interview all the witnesses Miles told him about. He was not able to reach Lanier and Judkins, but their testimony would have been problematic because they were former felons who had close relationships with Miles and did not come forward at the time of the shooting.
He believed he should have objected to the testimony regarding Miles's nickname, but explained he only knew about Miles's nickname as "Cat Daddy" and did not expect the defense witness to testify on cross-examination that Miles's nickname was "O.G." for "Original Gangster" and this testimony came out too quickly for him to object. He believed he erred by failing to move to suppress the gun found at Miles's home and allowing Ashby to testify that Burney had identified Miles as the shooter.
Miles testified he consistently told his trial counsel he needed to testify but believed the decision was ultimately up to trial counsel, who laughed at Miles and told him "no" when Miles asked to testify. Trial counsel never informed him it was his right to decide whether or not to testify and during opening statement trial counsel told the jury he was the quarterback and if Miles didn't testify to blame him.
Miles testified about the events that gave rise to the charges against him, which he asserted would have established his innocence. He stated he was at the club that night but was not inebriated, was not using drugs and did not get thrown out of the club for using drugs. Instead, he left on his own around midnight. He talked to Teasley in the club parking lot. He had known Teasley since he was seventeen years old and, although they were not friends, they were on good terms. Miles testified that on the night of the shooting, they were talking and joking when Teasley, who was high on cocaine, took offense at Miles's comment that Teasley had been knocked out of a tough man contest. Teasley pushed Miles. Miles reactively hit Teasley, but realized it was a mistake because he did not want to fight and there was no one to break up the fight. They were fighting when Officer Hill intervened and separated them. Miles testified he was not angry at Teasley and told him "Man, it was a good fight, you won fair and square." He then left the parking lot and never returned. Miles testified Teasley's wife, Crystal, lied when she testified she saw the fight and heard him threaten Teasley because she was not present.
Miles also testified he could have explained his actions after the shooting that seemed suspicious. He returned his rental car the day after the shooting because it was due back and he could have returned it the day before, had he been attempting to evade the police. He secured a new car at that time because his lease was up on the previous car.
Miles testified he told trial counsel about Lanier and Judkins, and informed him they had exculpatory evidence because they would testify he was wearing tan rather than black like the shooter, and saw the shooter run in a different direction than other witnesses indicated. He stated trial counsel told him he did not have time to interview them and never interviewed them. Trial counsel told him St. Claire offered favorable evidence at Miles's bond hearing and he would call her to testify at trial but did not call her.
Lanier testified he was friends with Miles and saw him at the club wearing tan or khaki clothes. He was outside the club when Teasley was shot, heard the gunshot, saw Teasley fall and saw someone running off who was dressed in black wearing a hoody. He could not see the shooter's face. He was on probation and not supposed to be at the club, so he did not report what he had seen.
The trial court determined Miles failed to establish ineffective assistance of counsel, making the following findings of fact and rulings of law: trial counsel made a strategic decision not to call St. Claire; trial counsel tried to contact Lanier and Judkins and failed but, even had he succeeded, Miles failed to show their testimony would have changed the outcome of the trial; Miles failed to inform the trial court he was prevented from testifying and the decision to not testify was strategic; use of Miles's nickname did not prejudice his substantial rights considering the totality of the proof; Miles failed to establish any reason for the juror to be struck; and there was no error, individual or cumulative.
When an evidentiary hearing has been held pursuant to RCr 11.42, we review the trial court's findings of fact for abuse of discretion. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986). The trial court is in the best position to judge the credibility of the witnesses and determine the weight to be given their testimony. Id. We may set aside the factual findings of the trial court only if they are clearly erroneous. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Findings are clearly erroneous if they are not supported by substantial evidence. Id.
In order to be entitled to the extraordinary relief of RCr 11.42, Miles must establish he was deprived of his constitutional right to counsel. Brown, 253 S.W.3d at 500. Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), Miles must show his counsel's performance was incompetent and prejudiced him because it fell below an objective standard of reasonableness and there is a reasonable probability that the result of the proceeding would have been different but for counsel's errors. Hatcher v. Commonwealth, 310 S.W.3d 691, 696 (Ky.App. 2010).
Proving deficient performance and prejudice is a heavy burden, especially given the presumption that counsel's conduct was reasonable and effective. Humphrey v. Commonwealth, 962 S.W.2d 870, 873 (Ky. 1998). "The focus of the inquiry must be on whether trial counsel's decision not to pursue evidence or defenses was objectively reasonable under all the circumstances." Robbins v. Commonwealth, 365 S.W.3d 211, 214 (Ky.App. 2012). "[A] court must indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 1854, 152 L.Ed.2d 914 (2002).
We first discuss trial errors that trial counsel admitted resulted from his deficient performance in failing to object: the introduction of Miles's nickname and the Commonwealth's repeated references to it during its closing argument; the introduction of evidence about Miles's unrelated gun; and testimonial identification hearsay that violated the confrontation clause.
Miles argues trial counsel should have objected and requested an admonition or mistrial when the Commonwealth (1) elicited testimony from a defense witness on cross-examination that Miles's nickname was "O.G." for "Original Gangster" and (2) made repeated references to him as "Old Gangster" during its closing argument. Miles argues the Commonwealth had no need to elicit testimony as to this nickname or use it during its closing argument because the nickname was not being used to establish his identity.
Miles is essentially arguing a claim for prosecutorial misconduct that was not preserved for appeal due to trial counsel's failure to object to the use of his nickname. We note that while this error could have been raised on Miles's direct appeal under the palpable error standard, it is appropriate to raise it as an ineffective assistance of counsel claim. Martin v. Commonwealth, 207 S.W.3d 1, 4-5 (Ky. 2006).
Miles raised an unpreserved claim of prosecutorial misconduct in his direct appeal based on statements made during the Commonwealth's closing argument. The Kentucky Supreme Court determined prosecutorial misconduct took place as to the Commonwealth's statement in its closing argument that Miles was lying, because he was not a witness in the case. However, the Supreme Court "adjudge[d] that in this case such misconduct was neither flagrant nor of such an egregious nature to deny Miles his constitutional right to due process of law, especially given the absence of a contemporaneous objection to the comment." Miles v. Commonwealth, 2007-SC-000298-MR, 2009 WL 160435, 6 (Ky. 2009).
Use of a nickname which suggests criminal activity may be prejudicial. See Brown v. Commonwealth, 558 S.W.2d 599, 603 (Ky. 1977). We agree with those courts which have held that it is error for the government to elicit testimony of a nickname strongly suggestive of a criminal disposition, where the nickname is not needed to establish identity, the defendant has not put his reputation into issue and the nickname has no reasonable relationship to the crimes charged. United States v. Farmer, 583 F.3d 131, 146 (2nd Cir. 2009); United States v. Williams, 739 F.2d 297, 299-300 (7th Cir. 1984); Commonwealth v. Martin, 442 Mass. 1002, 809 N.E.2d 536, 537-538 (2004); State v. Paduani, 307 N.J. Super. 134, 147, 704 A.2d 582, 589 (App. Div. 1998). Here, the Commonwealth had no legitimate purpose in eliciting Miles's nickname of "Original Gangster" or calling him "Old Gangster" in its closing argument.
When considering whether trial counsel was ineffective for failing to object to improper questioning of a defense witness by the prosecutor, prejudice cannot result where "proof of the defendant's guilt was not such as to render the misconduct harmless" or "the misconduct was flagrant and was such as to render the trial fundamentally unfair." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). In Brown, our Supreme Court determined a single inappropriate reference to the nickname "Killer" by a Commonwealth witness that was not directly elicited on direct examination was harmless because it was not necessarily pejorative, a strong admonition was given and the totality of the evidence supported the conviction, including Brown's confession. Brown, 558 S.W.2d at 603. Therefore, a single mention of Miles's nickname by a defense witness on cross-examination is not necessarily sufficient to show prejudice. When considered in isolation, the neutral question eliciting this answer does not establish flagrant misconduct or render the trial fundamentally unfair. Thus, trial counsel's failure to object, request an admonition or move for a mistrial, does not establish prejudice.
We note that once a nickname has been uttered, counsel may not want to draw attention to it by use of an admonition. Therefore, it may be appropriate trial strategy not to request an admonition to prevent attracting further attention to the nickname. Charles v. Commonwealth, 2006-SC-000185-MR, 2008 WL 2484958, 5 (Ky. 2008) (unpublished).
The use by the prosecution of Miles's nickname during closing argument is more problematic. In closing argument, the prosecutor referred to Miles three times as "Old Gangster" and "Cat Daddy" to discuss Miles's motive for the murder to stigmatize Miles as someone who had to protect his "gangster" reputation. The prosecutor's statements referencing the nickname were as follows:
They're not going to kick him out, this is his club, this is "Cat Daddy," "Old Gangster." He gets back in, he is angry.We have no difficulty in determining such use constituted prosecutorial misconduct.
. . . .
He's known by "Cat Daddy" there, he's known by "Old Gangster." But that night was different. He was publically humiliated. His motive was revenge.
. . . .
Who dunnit? . . . It points to "Cat Daddy," it points to the "Old Gangster." He's sitting right there.
We apply the Strickland standard to prosecutorial misconduct. Under this standard, Miles must demonstrate his trial counsel was deficient in failing to object to the prosecutorial misconduct during closing arguments, move for an admonition or request a mistrial and, but for that failure, there is a reasonable probability that the result of the trial would have been different. On direct appeal, "[r]eversal is proper only if the prosecutorial misconduct is so serious as to render the trial fundamentally unfair." Parker v. Commonwealth, 291 S.W.3d 647, 659 (Ky. 2009). A trial is fundamentally unfair "only when the misconduct is 'flagrant,' or when all of the following elements are satisfied: (1) proof of defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with sufficient admonishment." Goncalves v. Commonwealth, 404 S.W.3d 180, 194 (Ky. 2013). In determining whether a prosecutor's misconduct was "flagrant," reviewing courts consider "(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 before the jury; and (4) the strength of the evidence against the accused." Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010) (quoting United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994)).
We consider whether the prosecutorial misconduct that occurred was flagrant because the alternative test is inapplicable to an ineffective assistance of counsel claim. Accordingly, if the misconduct was flagrant and would be corrected had counsel made an appropriate objection, there is a reasonable probability that the result of the trial would have been different but for counsel's error.
In determining whether prosecutorial misconduct was flagrant in admitting a prejudicial nickname, it is useful to review cases in other jurisdictions that determined whether prosecutorial misconduct in using a prejudicial nickname warranted reversal. In the following cases, the defendant's conviction was reversed on direct appeal due to inappropriate use of a prejudicial nickname. In Farmer, 583 F.3d at 146-148, "prosecutors' frequently repeated, gratuitous invocation of Farmer's nickname ['Murder'] in their address to the jury . . . invited the jurors to infer that the defendant had earned the nickname among his gang colleagues as a result of his proclivity to commit murder" for a crime lacking conclusive evidence. In Martin, 442 Mass at 1002, 809 N.E.2d at 538, "the repeated references to Martin's prior use of an alias before and during the Commonwealth's case-in-chief (compounded by further references in the Commonwealth's rebuttal case and closing argument) constituted a gratuitous, improper, and prejudicial attack on the defendant's character and credibility."
In the following ineffective assistance of counsel cases, prejudice was established based on trial counsel's failure to object to: the prosecution's repeated use of the nickname "Killer" and prosecutor's use of the nickname in summation to encourage the jury to consider the nickname as evidence that the defendant committed murder in People v. Collier, 114 A.D.3d 1136, 1137, 979 N.Y.S.2d 726, 728 (2014); testimony elicited on cross-examination of a defense witness that defendant's nickname was "Threat" and this nickname was used on summation to establish that "the jury should consider his nickname as evidence that he possessed the weapon at issue" in People v. Webb, 90 A.D.3d 1563, 1564-1565, 935 N.Y.S.2d 423, 424 (2011); and prosecutor's repeated references to defendant's nickname "Homicide" in People v. Lauderdale, 295 A.D.2d 539, 540-541, 746 N.Y.S.2d 163, 165-166 (2002).
The prosecutorial misconduct that took place during the closing argument was flagrant because the remarks tended to mislead the jury and prejudice Miles by inviting the jury to find him guilty based on protecting his gangster reputation, and while the remarks were somewhat isolated, they were deliberately placed before the jury and the evidence against Miles was relatively weak. We conclude trial counsel's failure to object to the Commonwealth's references to Miles as "Old Gangster" constituted ineffective assistance of counsel. We determine that this error, considered in conjunction with other errors, rendered the trial fundamentally unfair and reverse.
The evidence to support Miles's conviction required the jury to believe (1) the person who fled the scene of the shooting was in fact the shooter; (2) the witnesses had a sufficient view of that person to recognize that he was the same person earlier ejected through a particular door who fought Teasley; (3) the person who fought Teasley earlier was in fact Miles; (4) Miles was dressed in black like the shooter; and (5) the fight was a sufficient motive for Miles to shoot Teasley. Countering this evidence was uncertainty in every supposition and a real danger in misidentification because the identification of the assumed fleeing shooter took place at a distance, at night, and resulted in a description of the shooter wearing a toboggan hat. This description suggested another person may have been the shooter because the recovered toboggan hat did not contain Miles's DNA; the prosecution was left to argue that the hat identified with the shooter was in fact irrelevant and not associated with the shooter, but connect the black clothing with Miles. There was absolutely no physical evidence tying Miles to the crime. While the discovery of Miles's phone in the parking lot placed him in the area that evening, his presence at the club and in the parking lot earlier was undisputed, this area was used by all the club's patrons and did not establish that Miles had anything to do with the shooting. While Miles's exchange of the rental car appeared to be an attempt to cover up evidence or flee, nothing was recovered from the previous rental car to tie him to the crime. Additionally, witness testimony not presented at trial could have countered which door Miles was ejected from, establish he was wearing all tan, defuse a motive by discrediting eyewitness testimony as to who observed the fight and Miles's reaction to it, and provide an innocent explanation as to why Miles exchanged his rental car.
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Cumulative error is sufficient to overturn a conviction where the individual errors are substantial and bordering on prejudicial, none of them individually is sufficient to overturn a conviction, but when considered together they establish that the trial was fundamentally unfair. Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012).
Miles argues trial counsel was ineffective for allowing the introduction of evidence about his gun, which was excluded from being the murder weapon. Evidence relating to weapons not connected to the crime charged is inadmissible. Harris v. Commonwealth, 384 S.W.3d 117, 123-124 (Ky. 2012). However, in Harris, the Supreme Court held when it is made clear to the jury that the weapon admitted was not the murder weapon, its admission is harmless error. Id. at 125.
While we are obligated to follow Harris, we believe in certain circumstances use of an unrelated gun is not automatically harmless and can be prejudicial. See United States v. Williams, 585 F.3d 703, 709-710 (2nd Cir. 2009). Here, even though the jury was repeatedly informed the gun was unrelated to the murder, the prosecutor's deliberate elicitation of testimony about this gun, in conjunction with other inadmissible evidence about Miles's nickname, was used to paint him as a criminal and could allow a conviction based upon a gun-wielding-gangster reputation, rather than based on the evidence relating to the crimes charged. Therefore, trial counsel's failure to bring a motion in limine to exclude mention of the gun was prejudicial when considered in conjunction with other errors.
Miles argues trial counsel erred by allowing testimonial identification hearsay that violated the confrontation clause. It is undisputed trial counsel failed to object to Officer Ashby's testimony that Burney picked Miles out of a photopack as being in a fight with Teasley earlier and, if trial counsel had properly objected to this testimony, it would have been excluded as inadmissible hearsay and violating the confrontation clause. Kentucky Rules of Evidence (KRE) 801A(a); KRE 804(a); Flatt v. Commonwealth, 468 S.W.2d 793, 794-795 (Ky. 1971). Although other eyewitness testimony also identified Miles as being in a fight with Teasley earlier, this violation was not harmless when considered in conjunction with previous errors to improperly strengthen the case against him. Cumulative error made the trial fundamentally unfair.
Having concluded that these errors cumulatively require reversal, we briefly address Miles's other claims of ineffective assistance of counsel: failing to call St. Claire, Lanier, Judkins and Miles as witnesses; denying Miles the right to testify; and failing to strike a biased juror.
The decision whether to call certain witnesses is presumed to be deliberate trial strategy and will not be second-guessed. Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky.App. 2012). The evidence submitted at the evidentiary hearing supports the trial court's finding that trial counsel did not call St. Claire and Miles as witnesses as a matter of trial strategy because their testimony was not in accordance with the defense strategy being pursued. The evidence also supports the trial court's finding that trial counsel made a reasonable effort to locate Lanier and Judkins, and did not call them to testify because they could not be located.
Miles failed to establish he received ineffective assistance of counsel by being denied his constitutional right to testify where there is no evidence in the record to show he did not waive his right to testify and trial counsel failed to respect his right to testify. Hodge v. Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009). "[The defendant's] present allegations that he wanted to testify and was prevented from doing so do not suffice to overcome the presumption that he assented to the tactical decision that he not testify." Id. See Kinder v. Commonwealth, 269 S.W.2d 212, 214 (Ky. 1954).
Miles argues the trial court erred by denying his request to call a juror to testify at his RCr 11.42 hearing to determine whether she should have been excluded from the jury on the basis of bias, and trial counsel erred by failing to inquire further into her possible bias and striking her from the jury. The record established the juror approached the trial court to inform it she knew one of the police officers involved in the case and had spoken to him. As a result, the trial court allowed the parties to question her regarding possible bias. When the Commonwealth told the juror the officer would not be testifying in the case, the juror was satisfied she could serve and trial counsel did not inquire further.
Under these facts, Miles fails to establish any prejudice from counsel's failure to inquire further because there is no constitution prohibition against a juror's knowing the parties involved, being acquainted with a testifying officer, being related to a prosecuting witness or having advanced knowledge of the case, so long as a juror can remain impartial. See Hodge v. Commonwealth, 17 S.W.3d 824, 838 (Ky. 2000); Sanders v. Commonwealth, 801 S.W.2d 665, 670 (Ky. 1990); Dupin v. Commonwealth, 404 S.W.2d 280, 281 (Ky. 1966).
Accordingly, we reverse and remand the Jefferson Circuit Court's order denying Miles's motion for RCr 11.42 relief based on cumulative error.
ALL CONCUR. BRIEFS FOR APPELLANT: Margaret A. Ivie
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky