RENDERED: OCTOBER 13, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0814-MR
CHRISTOPHER GRIBBINS APPELLANT
APPEAL FROM MARION CIRCUIT COURT v. HONORABLE KAELIN G. REED, JUDGE ACTION NO. 12-CR-00128
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Christopher Gribbins appeals pro se from the Marion
Circuit Court’s denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42
motion for postconviction relief. We affirm.
Gribbins was convicted at trial of wanton murder and sentenced to
twenty years’ imprisonment. Our Supreme Court affirmed on direct appeal.
Gribbins v. Commonwealth, 483 S.W.3d 370 (Ky. 2016). Gribbins then filed an RCr 11.42 motion alleging his trial counsel was ineffective. The trial court denied
the motion after holding a lengthy evidentiary hearing. This appeal followed.
To demonstrate ineffective assistance of counsel, Gribbins “must
show that his counsel’s performance was deficient and that but for the deficiency,
the outcome would have been different. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).” Teague v. Commonwealth,
428 S.W.3d 630, 633 (Ky. App. 2014). Of course, there is a “strong presumption
that counsel’s performance was reasonable” and “the trial court’s factual findings
and determinations of witness credibility are granted deference by the reviewing
court.” Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016). Indeed,
“when reviewing a trial court’s findings of fact following an RCr 11.42 evidentiary
hearing, an appellate court utilizes the clearly erroneous standard set forth in
Kentucky Rules of Civil Procedure (CR) 52.01.” Saylor v. Commonwealth, 357
S.W.3d 567, 570-71 (Ky. App. 2012).
Of course, no attorney’s representation can be absolutely perfect in all
respects, especially in hindsight. Accordingly, the United States Supreme Court
has explained that “[t]he question is whether an attorney’s representation amounted
to incompetence under prevailing professional norms, not whether it deviated from
best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105,
131 S. Ct. 770, 788, 178 L. Ed. 2d 624 (2011) (internal quotation marks and
-2- citation omitted). Particularly relevant here, “[t]o show ineffective assistance of
counsel, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. A
defense attorney must enjoy great discretion in trying a case, especially with regard
to trial strategy and tactics.” Vincent v. Commonwealth, 584 S.W.3d 762, 770 (Ky.
App. 2019) (internal quotation marks and citations omitted).
In other words, “strategic choices made after [a] thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable . . . .” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. So, “a trial
counsel’s choice of whether to call witnesses is generally accorded a presumption
of deliberate trial strategy and cannot be subject to second-guessing in a claim of
ineffective assistance of counsel.” Saylor, 357 S.W.3d at 571. Because counsel is
“entitled to formulate a strategy that was reasonable at the time and to balance
limited resources in accord with effective trial tactics and strategies[,]”
Harrington, 562 U.S. at 107, 131 S. Ct. at 789, we will not “usurp or second guess
counsel’s trial strategy.” Vincent, 584 S.W.3d at 771 (internal quotation marks and
citations omitted). In short, the ineffective assistance of counsel test is “a very
difficult standard to meet.” Id. at 769.
We begin by quickly rejecting Gribbins’ argument that counsel was
ineffective for not insisting that the indictment be read to the jury. First, Gribbins
-3- failed to address this issue at all during the evidentiary hearing. Thus, he has
waived it. Foley v. Commonwealth, 17 S.W.3d 878, 889 (Ky. 2000)1 (“Next, Foley
asserts that the prosecutor met with prosecution witnesses prior to trial, provided
them with portions of the discovery and instructed them on their testimony. . . .
We agree with the trial judge that this claim has been waived because post-
conviction counsel has not introduced any evidence to substantiate this allegation
at the evidentiary hearing.”).
Second, the claim fails on the merits. Under the former Criminal
Code of Practice, the indictment was required to be read to the jury. Farris v.
Commonwealth, 111 Ky. 236, 63 S.W. 615, 617 (1901). Even though Farris has
not been overruled, the more modern Rules of Criminal Procedure “abandoned this
requirement.” Calhoun v. Commonwealth, 378 S.W.2d 222, 223 (Ky. 1964). See
also Lewis v. Commonwealth, 642 S.W.3d 640, 643 (Ky. 2022) (“Before adoption
of the Kentucky Rules of Criminal Procedure in 1963, Section 219 of the Criminal
Code of Practice required either the clerk of the court or the Commonwealth’s
Attorney to read the indictment to the jury at some point before the conclusion of
the Commonwealth’s evidence. The failure to comply with this rule was grounds
1 Foley was overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307, 310 (Ky. 2005); Stopher was overruled by Hodge v. Coleman, 244 S.W.3d 102 (Ky. 2008). The overruling of Foley and Stopher revolved around whether an indigent postconviction petitioner may receive state funds under Kentucky Revised Statute (KRS) 31.185 – an issue not present here.
-4- for reversal of the defendant’s conviction. Kentucky has since adopted the Rules
of Criminal Procedure, and RCr 9.42 replaced Section 219. RCr 9.42 makes
reading the indictment to the jury an optional responsibility of the
Commonwealth’s Attorney.”) (footnotes and citations omitted). 2
Counsel cannot be ineffective for failing to insist on compliance with
an already repealed requirement. Moreover, Gribbins has not shown how he
suffered any concrete prejudice whatsoever due to the indictment not having been
read to the jury. We affirm the denial of RCr 11.42 relief on this claim.
Gribbins’ claim that his counsel was ineffective for not “request[ing]
the trial court to inform the jurors that they would be allowed to take notes with
them during deliberations” is similarly without merit. Appellant’s Brief, p. 9 (all
caps and bold font omitted). Gribbins again waived this claim by not addressing it
at the evidentiary hearing. Foley, 17 S.W.3d at 889. In any event, Gribbins cannot
demonstrate any prejudice stemming from his counsel’s not asking the court to tell
the jurors that they were permitted to take their notes into their deliberations.
Because it is plain that Gribbins has not demonstrated prejudice, “we need not
2 RCr 9.42(a) now only requires the Commonwealth to “state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it . . . .” Gribbins has not shown error in the trial court’s finding that the Commonwealth met that burden.
-5- determine whether [Gribbins’] counsel’s performance was adequate . . . .” Hilton
v. Commonwealth, 603 S.W.3d 864, 868 (Ky. App. 2020).
Jurors are permitted under RCr 9.72 to take into their deliberations
“any notes they may have made during the course of the trial . . . .” But Gribbins is
unable to cite to any specific prejudice he suffered from the jurors not being told
by the court that they could take their notes into their deliberations. The jurors’
notes would not have altered the strong evidence against Gribbins. Indeed, our
Supreme Court stressed on direct appeal that there were multiple witnesses who
gave testimony supporting an instruction on intentional murder and multiple
witnesses who gave testimony supporting an instruction on wanton murder.
Gribbins, 483 S.W.3d at 376. In short, there were a host of witnesses who gave
testimony damning to Gribbins and so there is not a reasonable probability that the
result of the trial would have been different had the jurors been instructed that they
could take their notes – which, of course, would logically have discussed the legion
of damning testimony – into their deliberations.
In order to satisfy the prejudice prong of an ineffective assistance of
counsel claim, an RCr 11.42 petitioner must demonstrate counsel made errors “so
serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.
Prejudice is found under this standard when the defendant has shown that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
-6- proceeding would have been different.” Commonwealth v. Searight, 423 S.W.3d
226, 230 (Ky. 2014) (internal quotation marks, footnotes, and citations omitted).
Gribbins offers nothing specific to explain how there is a reasonable
probability that the result of the trial would have been different if his counsel had
asked the court to instruct the jurors that they could take their notes with them into
their deliberations. As our Supreme Court has held, “the question should be absent
counsel’s errors, would the factfinder have had a reasonable doubt respecting
guilt? . . . The critical issue is not whether counsel made errors but whether
counsel was so thoroughly ineffective that defeat was snatched from the hands of
probable victory.” Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008)
(internal quotation marks and citations omitted). Stated alternatively, “only if the
factfinder would have had a reasonable doubt respecting guilt absent counsel’s
deficient performance is sufficient prejudice established.” Ford v. Commonwealth,
628 S.W.3d 147, 160 (Ky. 2021).
We disagree with Gribbins that he has satisfied the stringent
ineffective assistance of counsel standards simply because there were numerous
witnesses and the jurors attempted to ask the court questions during deliberations.
The trial did not last for such an exceedingly long time that the jurors were likely
unable to recall with clarity the evidence presented. Also, the fact that the jurors
apparently attempted to ask the court questions while deliberating is not
-7- remarkable, does not unmistakably pertain to the lack of taking their notes into
their deliberations, and does not satisfy the prejudice prong.
Finally, to satisfy the prejudice prong, Gribbins must show that he
was deprived of a fair, reliable trial by counsel’s error. Searight, 423 S.W.3d at
230. But our Supreme Court has already held that a trial court’s improper refusal
to allow jurors to take their notes into their deliberations – a much more blatant
violation of RCr 9.72 than the situation described by Gribbins – was not an error
which rendered the trial fundamentally unfair. McCleery v. Commonwealth, 410
S.W.3d 597, 605 (Ky. 2013). The failure to ask the trial court to instruct the jurors
that they could take their notes into their deliberations simply did not snatch defeat
from the hands of probable victory. Brown, 253 S.W.3d at 500.
In short, Gribbins offers only speculation that the jurors not being
instructed that they could take their notes into their deliberations impacted the
verdict negatively (from his perspective). Accordingly, Gribbins has failed to
satisfy the prejudice prong. See, e.g., Hilton, 603 S.W.3d at 869 (holding that
speculation is insufficient to demonstrate prejudice).
Next, we find no error in the trial court’s denial of relief based on
Gribbins’ claim that his counsel was ineffective for failing to address properly a
plea offer allegedly made by the Commonwealth. It is undisputed that the
-8- Commonwealth and Gribbins engaged in unsuccessful mediation prior to trial. But
what actually occurred at mediation is disputed.
Gribbins asserts that, at mediation, the Commonwealth offered him a
plea agreement recommending a total sentence of thirteen years’ imprisonment to
resolve both the murder charge and an assault charge stemming from another
altercation in which Gribbins pistol-whipped another person earlier on the same
day that he killed the murder victim. Gribbins presented what purported to be a
document prepared by a defense investigator detailing the thirteen-year offer as
well as a letter purportedly written by one of Gribbins’ counsel to the
Commonwealth discussing the thirteen-year offer. Gribbins further alleges counsel
was ineffective for not making a counteroffer to the thirteen-year offer.
On the other hand, the Commonwealth relies on the testimony of the
attorney who participated in the mediation on behalf of the Commonwealth and
both of Gribbins’ trial attorneys that the mediator recommended a thirteen-year
total sentence, but the Commonwealth did not make that offer to Gribbins. The
attorney for the Commonwealth testified that he did not make that offer to Gribbins
because the murder victim’s family was adamantly opposed to it. Further, the
investigator flatly described as a forgery the document purporting to be a note by
him discussing the thirteen-year plea offer. Gribbins’ trial counsel similarly
-9- testified that the letter purportedly written by him to the Commonwealth discussing
the thirteen-year offer was also a forgery.
Faced with those diametrically opposed versions of events, the trial
court had to believe one while rejecting the other. The trial court chose to believe
the evidence presented by the Commonwealth and so concluded there was no
thirteen-year plea offer and the documents purporting to discuss that offer were
forgeries. Though Gribbins decries that conclusion, it is the trial court’s sole
prerogative to determine which evidence to believe and which to reject.
McGorman, 489 S.W.3d at 736. The trial court’s conclusions are amply supported
by the evidence presented at the hearing.
Thus, Gribbins’ counsel could not have been ineffective in failing to
convey, and explain properly, an offer to Gribbins which the court reasonably
concluded was non-existent. Similarly, counsel cannot be ineffective for failing to
submit a counteroffer to a non-existent offer. Because Gribbins has shown neither
deficient performance nor prejudice, we affirm the denial of relief on all claims
stemming from counsel’s handling of the alleged plea offer.
The final main issue raised by Gribbins is his contention that his
counsel was ineffective for failing to present evidence at trial regarding the murder
victim’s alleged bad character and propensity for violence. Gribbins also relatedly
-10- argues that counsel failed to meet with him sufficiently, did not provide him with
the discovery, and failed to keep him properly abreast of their trial strategy.
Postconviction petitioners frequently argue that their counsel
performed an inadequate investigation, but it is undisputed that Gribbins’ counsel,
via their investigator, interviewed numerous potential witnesses. However,
counsel chose to call no witnesses besides Gribbins at trial.
At the hearing, the investigator testified that he met with Gribbins at
the jail on many occasions. Gribbins’ trial counsel each testified that they
discussed the defense strategy with Gribbins in detail and he knew why they chose
to not call the potential witnesses. Namely, counsel did not want to risk opening
the door to the Commonwealth being able to introduce rebuttal evidence of
Gribbins having pistol-whipped another person on the same day he shot and killed
the murder victim. Scott Hayworth, one of Gribbins’ attorneys, testified that
Gribbins never said he wanted additional witnesses to testify. Hayworth also
testified that counsel sufficiently discussed trial strategy with Gribbins.
James Lowry, Gribbins’ additional trial counsel, testified that the
defense was able to get its theory of the case (which involved alleged threats
against Gribbins’ place of business) before the jury via cross-examining the
Commonwealth’s witnesses, thus eliminating the need to call their own witnesses
and thereby running the risk of opening the door to introduction of evidence
-11- regarding the pistol-whipping. In addition, the investigator and Lowry both
testified that they did not leave discovery materials at the jail because Gribbins did
not want them to do so. The investigator added that Gribbins did not want the
materials to remain at the jail because he did not trust other inmates.
Gribbins bears an especially heavy burden to receive relief based on
the decision to not call additional witnesses because “a trial counsel’s choice of
whether to call witnesses is generally accorded a presumption of deliberate trial
strategy and cannot be subject to second-guessing in a claim of ineffective
assistance of counsel.” Saylor, 357 S.W.3d at 571. Here, counsel testified that
they believed they were able to get their theory of the case into evidence via cross-
examining the Commonwealth’s witnesses and thus intentionally decided not to
call their own witnesses to avoid potentially allowing the Commonwealth to
introduce evidence of the pistol-whipping.
In other words, the decision to refrain from calling additional
witnesses was undeniably strategic. In hindsight, perhaps that strategy was wise.
Perhaps it was not.3 But it was conscious, deliberate, and based upon Gribbins’
3 The trial court held that presenting evidence of the murder victim’s character would not have allowed the Commonwealth to have introduced evidence of Gribbins having pistol-whipped another person shortly before shooting the murder victim. We need not examine the merits of that ruling nor definitively address whether the failure to call witnesses to testify about the victim’s alleged bad character was sufficient to satisfy the deficient performance prong because Gribbins cannot satisfy the prejudice prong. Hilton, 603 S.W.3d at 868 (“In the instant case, we need not determine whether Hilton’s counsel’s performance was adequate on the issue raised on
-12- attorneys’ perceptions of the law and the negative potential consequences for
Gribbins if the defense presented evidence of the murder victim’s character.
Appellate courts generally decline to second guess trial counsel’s
knowingly strategic decisions. As our Supreme Court held:
On review, as a court far removed from the passion and grit of the courtroom, we must be especially careful not to second-guess or condemn in hindsight the decision of defense counsel. A defense attorney must enjoy great discretion in trying a case, especially with regard to trial strategy and tactics. Under Strickland, supra, it is not enough that counsel erred and Appellant’s trial reached an unfavorable result. Instead, Appellant must demonstrate that, absent counsel’s errors, there exists a “reasonable probability” the jury would have reached a different verdict. Id. Inasmuch as we might not necessarily agree with trial counsel’s trial strategy and may likely have employed other tactics, we do not believe that in light of all of the circumstances his performance was “outside . . . the wide range of professionally competent assistance.” Id. at 690, 104 S. Ct. at 2066.
Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). We therefore are
highly skeptical that the decision to not call additional witnesses to attack the
victim’s alleged bad character was sufficient to constitute deficient performance.
However, even if we were to assume (solely for purposes of
argument) that Gribbins has satisfied the deficient performance prong, he has not
this appeal because Hilton fails to demonstrate prejudice resulting from counsel’s alleged deficient performance.”).
-13- satisfied the prejudice prong of the ineffectiveness test. The evidence against
Gribbins was damning. Our Supreme Court noted that three witnesses gave
testimony to support giving an intentional murder instruction, including one who
testified that Gribbins “initially tried to strike [the victim] with the gun, but failed
to make contact” and another who testified that he saw Gribbins “walk towards
[the victim], brandish a gun, and shoot him.” Gribbins, 483 S.W.3d at 376.
Multiple other witnesses gave testimony to support the wanton murder conviction.
Id. (“As Gribbins readily acknowledges, multiple witnesses testified to Gribbins’s
pistol whipping of [the murder victim]. In using a loaded handgun, as a club to
beat [the victim], Gribbins consciously disregarded a substantial and unjustifiable
risk that the handgun might accidentally be discharged and his conduct plainly
created a grave risk of death to [the victim] under circumstances manifesting an
extreme indifference to human life.”). Given that overwhelming evidence and the
minimum sentence he received, Gribbins has not demonstrated a reasonable
probability that calling witnesses to testify about the murder victim’s character
would have changed the outcome of the trial.
We also affirm the denial of relief regarding the alleged insufficient
consultations with Gribbins by counsel and alleged failure to provide him with
discovery. There was ample testimony at the hearing to support the trial court’s
conclusion that counsel was not deficient as they met with Gribbins sufficiently,
-14- adequately discussed trial strategy with him, and declined to leave discovery at the
jail at his request.
Finally, we affirm denying relief on the cumulative error claim. “The
defense counsel was not ineffective as a result of cumulative error. In view of the
fact that the individual allegations have no merit, they can have no cumulative
value.” McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986).4
For the foregoing reasons, the Marion Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher Gribbins, pro se Daniel Cameron La Grange, Kentucky Attorney General of Kentucky
Stephanie L. McKeehan Assistant Attorney General Frankfort, Kentucky
4 We reject Gribbins’ request for relief on the scattershot issues presented in his brief which are not discussed herein. For example, Gribbins now seems to argue that his offense did not constitute wanton murder. In addition to not showing where he raised that argument in his RCr 11.42 motion, Gribbins’ argument is directly contrary to our Supreme Court’s holding on direct appeal that “there was sufficient evidence presented at trial to justify the wanton murder instruction.” Gribbins, 483 S.W.3d at 376. In sum, any issue in Gribbins’ brief which is not discussed in this Opinion was not adequately presented to the trial court, is redundant, or is otherwise without merit.
-15-