RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-1469-MR
FARAND SKINNER APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT v. HONORABLE KENNETH HAROLD GOFF, II, JUDGE ACTION NO. 18-CR-00012
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: KAREM, MCNEILL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Farand Skinner appeals from the November 13, 2024, Order of the Breckinridge Circuit Court which denied his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction relief. We affirm.
BACKGROUND
In 2019, Skinner was convicted by a jury for murder and sentenced to twenty-three years in prison in accordance with the jury verdict. He appealed directly to the Kentucky Supreme Court which affirmed his conviction in an unpublished decision. Skinner v Commonwealth, No. 2019-SC-0589-MR, 2021 WL 732963 (Ky. Feb. 18, 2021) (unpublished). That decision sets forth the underlying facts as follows:
Farand Skinner, the victim, Paul Harrison, and the sole eyewitness, Timothy1 Day, were roommates. They had been friends for years, and Skinner allowed the other two men to stay at his home. According to Day, Skinner and Harrison frequently argued, and Skinner made Harrison move out.
Harrison’s moving out ignited an exchange of contentious text messages between Harrison and Skinner about when Harrison could retrieve his belongings from Skinner’s house. Harrison texted that he was “going to take things to the extreme,” “get physical,” “knock his teeth down his throat” and that Skinner was going to have to “end up killing him,” he was “ready to die,” and “[I’m] bring aload [sic] of my shit out[,] shoot me[,] or do whatever[,] but I’m going to get my shit.”
Day accompanied Harrison to Skinner’s house to help him move his belongings. How the events unfolded upon their arrival is disputed. Skinner’s residence was equipped with a home-surveillance camera, and footage from that camera—despite low-quality video and no audio—shows Skinner emerging from the house as Harrison and Day arrive, Harrison exiting the vehicle and
1 The eyewitness’ name was Theodore “Teddy” Day.
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approaching Skinner, Skinner shooting Harrison once, and Harrison collapsing briefly before retreating to the vehicle. Once Harrison was inside the vehicle, Skinner shot at least twice into the vehicle, killing Harrison.
Skinner’s defense at trial was self-defense. He claimed that Harrison got out of the car, threatened to kill him, approached him aggressively with a knife, and in a manner that made Skinner fear for his life.
Day did not testify that Harrison threatened to kill Skinner. He could only testify that Harrison was angry and the two argued immediately upon arrival. But in Day’s initial interview with police, he indicated that Harrison may have threatened Skinner.
After the shooting, Skinner reentered the house and called 911. He identified himself, his address, and reported that he had shot Harrison. The grand jury indicted Skinner for Harrison’s murder.
Skinner v. Commonwealth, 2021 WL 732963, at *1.
Following the direct appeal, on January 27, 2023, Skinner, acting pro se, timely filed a motion pursuant to RCr 11.42 for post-judgment relief asserting ineffective assistance of counsel. The Department of Public Advocacy (DPA) was appointed to review and supplement the motion. The parties entered an Agreed Order on May 22, 2023, giving defense counsel ninety days to review the record and supplement the motion. Record at 672. Thereafter, an attorney from DPA filed a motion to withdraw pursuant to Kentucky Revised Statutes (KRS) 31.110(2)(c), and allow Skinner to pursue his claims pro se. The court granted the motion and gave Skinner additional time to hire counsel and file a supplemental
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brief in support of his motion. On July 23, 2024, newly retained private counsel filed a supplemental brief in support of Skinner’s RCr 11.42 motion, which primarily argued that the allegations raised by Skinner required an evidentiary hearing. Although the filing of the supplemental brief fell outside of the three-year time limit provided for in RCr 11.42(10) to file a motion, the trial court determined that the supplemental brief would be considered since the original motion was timely and the supplemental brief was “based on multiple continuances agreed to by the Commonwealth[.]” November 13, 2024, Order, Record at 734. Additionally, the court denied the RCr 11.42 motion in the November 13, 2024, Order. This appeal followed.
STANDARD OF REVIEW
The Kentucky Supreme Court has set forth the following standard for review of RCr 11.42 ineffective assistance of counsel claims:
We evaluate ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by this Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Under the Strickland framework, an appellant must first show that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct.
2052. A “deficient performance” contains errors “so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.
Second, the appellant must show that counsel’s deficient performance prejudiced his defense at trial. Id. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
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is reliable.” Id. An appellant must satisfy both elements of the Strickland test in order to merit relief. Id.
When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel’s performance was reasonable. Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007) (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009)). We must analyze counsel’s overall performance and the totality of circumstances therein in order to determine if the challenged conduct can overcome the strong presumption that counsel’s performance was reasonable. Haight, 41 S.W.3d at 441-42. In addition, the trial court’s factual findings and determinations of witness credibility are granted deference by the reviewing court. Id. Finally, we apply the de novo standard when reviewing counsel’s performance under Strickland. Bussell, 226 S.W.3d at 100.
Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).
An evidentiary hearing is required if there is a material issue of fact that cannot be conclusively proved or disproved by an examination of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); see also RCr 11.42(5). If an evidentiary hearing is not held, as here, our review is limited 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.” McGaha v. Commonwealth, 469 S.W.3d 841, 846 (Ky. App. 2015) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). Our review proceeds accordingly.
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ANALYSIS
Skinner makes seven claims of ineffective assistance of trial counsel in this appeal: (1) counsel misadvised him as to what facts he could have testified to, which affected his decision not to testify, (2) counsel should have called Skinner’s doctor to testify about the effects of his recent stroke, (3) counsel should have sought DNA testing of drug paraphernalia allegedly belonging to the victim, (4) counsel should have called an expert witness to describe the effects of methamphetamine use by the victim, (5) counsel failed to fully review the video evidence, (6) counsel ineffectively cross-examined the eyewitness, and (7) counsel failed to object to false statements in the prosecution’s closing arguments. We will discuss each as follows.
As for the question of how Skinner was advised about testifying, the trial court correctly observed that the decision whether to call the accused to testify is “complex” and grounded in the discretion of counsel. November 13, 2024, Order, Record at 739. When reviewing counsel’s conduct, the court indulges a strong presumption that it “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.” Commonwealth v. McKee, 486 S.W.3d 861, 867 (Ky. 2016) (quoting Strickland, 466 U.S. at 689). But Skinner argues on appeal that he was misadvised by counsel
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that he should not testify at trial about his fear of Harrison, the victim, citing case law to the contrary (Saylor v. Commonwealth, 144 S.W.3d 812, 815 (Ky. 2004)) (prior acts of violence by victim known to a defendant claiming self-defense are admissible) and Wilson v Commonwealth, 880 S.W.2d 877, 878 (Ky. App. 1994).
Skinner’s allegations in his pro se RCr 11.42 motion, regarding this error are vague at best. Based on our review of the record, the decision for Skinner to not testify looked to avoiding the potentially damaging cross-examination of Skinner at trial. The police report showed that when Skinner was asked in his initial interview “if he and Paul had ever been involved in any type of physical altercation,” Skinner answered “no.” Record at 53. Testimony about prior altercations with the victim would have conflicted with his statement to police. This would also have affected his self-defense argument since he told police he did not recall the victim having a weapon. Record at 52. The trial court concluded that the strategy to keep Skinner off the witness stand and not subject to cross- examination was reasonable trial strategy. We agree. At trial, the defense relied on the text messages and Skinner’s police interview as evidence of the victim’s disdain for Skinner which did not require Skinner to testify. Accordingly, Skinner failed to demonstrate that he received any ineffective assistance regarding the decision not to testify at trial. Furthermore, Skinner failed to demonstrate any prejudice resulting from him not testifying, especially given that the jury sentenced
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him to the lower range of imprisonment for the crime committed. Thus, there was no necessity for an evidentiary hearing to discover what may have been counsel’s trial strategy. See Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014).
Skinner’s second claim of error was that his attorney should have called his physician to testify about the mental or physical defects that would have resulted from the stroke he had just 22 days before the shooting. At trial, defense counsel introduced Skinner’s medical records relating to his treatment for a stroke. Defense Exhibit #1; Video Record (V.R.) August 13, 2019, Trial at 1:05-1:14. Moreover, as the trial court noted, the home security video evidence was available for the jury to determine whether Skinner displayed any physical impairment when emerging from his residence and following the victim to his car on the night of the shooting. November 13, 2024, Order, Record at 737-738. Additional testimony from his doctor on this matter would have been duplicative at best and thus would not have changed the outcome at trial. Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). The fact that defense counsel elected not to present cumulative testimony was not ineffective assistance.
Skinner raises several claims that arise from his assertion that counsel should have presented evidence that the victim, Harrison, was using drugs at the time of the shooting. However, Harrison’s drug use was introduced at trial and in
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fact was a point of emphasis by the defense at trial. The autopsy revealed that Harrison had methamphetamines and amphetamines in his system, which the defense introduced through the cross-examination of the investigating officer, Detective Borders. V.R. August 14, 2019, Trial 9:20. The defense also elicited from eyewitness Teddy Day that Harrison was using methamphetamine. V.R. August 14, 2019, Trial at 4:04. As the trial court observed, counsel was able to adduce evidence from other sources that the victim was under the influence and was an addict. But Skinner argues that his attorney should have called an expert to testify as to the effects of these drugs on Harrison. Skinner fails to name any expert that counsel should have called as a witness, or what he expected the expert’s testimony would demonstrate. Under RCr 11.42, a movant is required to state specifically the facts in support of his claims, which he failed to do. See RCr 11.42(2). Any additional evidence regarding the effect of drugs taken by Harrison would also have been cumulative. Thus, we find no error by the trial court.
Skinner also argues that his attorney should have had DNA testing done on a so-called “junk kit” containing drug paraphernalia and methamphetamine found in Skinner’s home months after the police search warrant was executed that purportedly belonged to Harrison. The trial court excluded all evidence at trial about the “junk kit” following the Commonwealth’s motion in
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limine,2 and its exclusion was not challenged on direct appeal. Thus, there was no reason for Skinner’s counsel to pursue this fruitless line of inquiry. The failure of an attorney to perform a futile act does not constitute ineffective assistance of counsel. Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002).
Next, Skinner argues that his trial counsel failed to thoroughly review all the home security videotape that was introduced at trial because it appears that the eyewitness, Teddy Day, was seen taking items out of the vehicle after the shooting but before police arrived. No other witnesses who reviewed the home security video made reference to Day’s alleged tampering with the crime scene, including law enforcement and the Commonwealth’s Attorney. Skinner alleges that Day might have been removing drugs, weapons, or cell phones from the vehicle. Skinner believes this may have affected Day’s credibility as a witness. The trial court below concluded that even if Day had removed items from the vehicle, cross examination of Day by counsel on this issue would not have been relevant to his defense. We agree. The trial court correctly observed that if something was removed from the car it occurred after the shooting. Thus, we agree with the trial court that a gun in the victim’s car, unknown to Skinner, could not have been a source of fear or threat of harm to him. November 13, 2024,
2 The Commonwealth’s argument against admission was based on lack of authentication, chain of custody issues, and that the object was more prejudicial than probative and would tend to confuse or mislead the jury. Motion in Limine, Record at 310.
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Order, Record at 736. Skinner’s allegations are speculative at best and did not constitute ineffective assistance by counsel.
Skinner further argues that Day’s alleged furtive movements around the car demonstrated duplicity on his part that counsel should have also used to undermine his credibility. However, Skinner’s counsel did cross-examine Day at trial on any inconsistencies in his statements, and Skinner fails to demonstrate how any further questioning regarding Day’s credibility would have changed the outcome of the proceeding. Since Skinner relied in part on Day’s testimony in corroboration of Skinner’s defense,3 the method of cross-examining this witness was a matter of trial strategy. Again, this does not fall outside the bounds of reasonable trial strategy.
Skinner also argues that there were other questions his attorney should have asked Day that would have been more effective. This is hindsight speculation that relates to issues that were actually addressed during the trial, and Skinner once again does not point to any specific evidence or testimony that would have changed the outcome of the trial.
Finally, Skinner argues that it was prejudicial error for his counsel to fail to object to false statements by the prosecutor in closing argument. First, we
3 As noted in the Supreme Court’s direct appeal, “Day’s testimony does support Skinner’s defense in some regards, but not enough to overcome the steep burden of a directed verdict for self-defense.” Skinner, 2021 WL 732963, at *3.
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note that the Supreme Court on direct appeal already determined that there was no prosecutorial misconduct established. Skinner v. Commonwealth, 2021 WL 732963, at *3-7. As to the statements Skinner now challenges, these were factual observations that have some basis in the record. Thus, Skinner cannot show that any objection would have been sustained and that his trial’s outcome would have been different. It is well-settled that counsel is granted wide latitude during closing argument. Murphy v. Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017). Moreover, as to Skinner’s belief that the closing argument by the prosecution was prejudicial to him, the significant evidence presented to the jury was the video of the shooting and testimony from Day, the eyewitness, not character attacks on Skinner. This evidence overwhelmingly pointed to Skinner’s guilt. To the extent counsel erred in not objecting to the prosecutor’s alleged misstatement about the duration of time Harrison lived with Skinner or his purported stroke, such error was harmless. See Robinson v. Commonwealth, 647 S.W.3d 136, 144 (Ky. 2002).
For the foregoing reasons, the Breckinridge Circuit Court did not err in failing to conduct an evidentiary hearing and the court’s November 13, 2024, Order denying RCr 11.42 relief is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael L. Goodwin Russell Coleman Louisville, Kentucky Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General Office of the Solicitor General Frankfort, Kentucky