RENDERED: DECEMBER 19, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1282-MR
SAMUEL D. HUNTER APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE JOSEPH ROARK, JUDGE ACTION NO. 16-CR-00411
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, A. JONES, AND LAMBERT, JUDGES.
JONES, A., JUDGE: Samuel Hunter appeals from the McCracken Circuit Court’s
order denying his motion to vacate his sentence pursuant to RCr1 11.42 following
1 Kentucky Rules of Criminal Procedure. his conviction for first-degree rape of a child under twelve years of age.2 Having
reviewed the record and the law, we affirm.
I. BACKGROUND
A complete recitation of the facts of this case may be found in the
Kentucky Supreme Court’s unpublished opinion stemming from Hunter’s direct
appeal:
In 2016, seven-year-old Stacy[3] lived with her father, stepmother, and grandmother. After school on Friday, May 27, 2016, Stacy went to stay with her biological mother for the weekend. Hunter lived in the same trailer as Stacy’s biological mother and the mother’s live-in boyfriend. Stacy came home early from the visit on Saturday. Stacy subsequently began complaining of itching and burning with urination. Her step-mother examined her and noticed Stacy’s underwear was caked with mucus. Her step-mother collected the underwear, placed them in a zippered plastic bag, and stored them in the refrigerator.
On Thursday, June 2, 2016, Stacy went to the Pediatric Group of Paducah for an office visit where vaginal discharge and a rash were observed, and her mucus-caked underwear was presented for medical professionals to see. Lab testing was ordered, and on June 6, 2016, Stacy was diagnosed with gonorrhea. After Stacy told her pediatrician, Dr. Elizabeth McGregor, someone had touched her private area and identified the perpetrator as Hunter, the doctor contacted social 2 Kentucky Revised Statutes (KRS) 510.040, a Class A felony. 3 As the Kentucky Supreme Court stated in its opinion, “Stacy is a pseudonym used in place of the victim’s actual name to protect her privacy.” Hunter v. Commonwealth, No. 2019-SC- 000165-MR, 2020 WL 5103864, at *1 n.2 (Ky. Aug. 20, 2020). This Opinion follows the Supreme Court’s example and uses “Stacy” as the pseudonym for the child victim in this case.
-2- services who in turn sought police intervention. Topical creams were applied, and an injection of antibiotics was administered to treat Stacy’s infection.
McCracken County Sheriff’s Detective Sarah Martin spoke with Stacy, her father, and stepmother on June 6, 2016. Two days later, Stacy underwent a forensic interview at the Purchase Area Sexual Assault and Child Advocacy Center (“PASAC”). Stacy informed the interviewer what happened, where it happened, and who hurt her, claiming Hunter had hurt her “pee spot.” Stacy was interviewed a second time at PASAC a couple of months later and provided the same information to the interviewer, including the name of her abuser as being Hunter. Testing on Stacy’s underwear revealed the presence of DNA from a source other than Stacy, but an insufficient quantity existed to make any match. Presumptive human blood and saliva were also found during testing but again, no match could be made.
Detective Martin interviewed numerous individuals during her investigation. When questioned, Hunter denied any sexual contact with Stacy but admitted he saw the girl on the night the rape occurred. He speculated a former girlfriend was trying to frame him. Hunter consented to undergo a rape test kit. He subsequently tested positive for gonorrhea. Hunter was arrested and indicted for raping Stacy.
A three-day jury trial was convened on December 18, 2018. Evidence presented included the facts previously stated, albeit in significantly greater detail. Additional, conflicting evidence was likewise adduced. Pertinent to this appeal, Stacy’s pediatrician and the forensic interviewer were permitted to testify Stacy spoke to them about the assault and provided them the name of the assailant; the trial court did not permit either witness to specify the individual Stacy identified. Hunter presented an alternative perpetrator defense, asserting a friend of the step-mother or a co-worker of the father had
-3- committed the rape; he was prohibited from introducing copies of the uniform citation of a charge against one of the men or certified copies of the criminal conviction of either man. Hunter’s motions for directed verdict, wherein he asserted the Commonwealth had presented insufficient evidence of penetration, were denied. The jury returned a guilty verdict and recommended a sentence of life imprisonment.
Hunter v. Commonwealth, No. 2019-SC-000165-MR, 2020 WL 5103864, at *1-2
(Ky. Aug. 20, 2020) (hereinafter Hunter I). Following its review, the Kentucky
Supreme Court affirmed Hunter’s conviction and sentence. Id. at *5.
On January 5, 2023, Hunter moved to vacate his sentence pursuant to
RCr 11.42, arguing he suffered numerous instances of ineffective assistance by his
trial and appellate counsel. After receiving the Commonwealth’s response, the
trial court entered an order denying Hunter’s RCr 11.42 motion without an
evidentiary hearing. This appeal followed.
II. ANALYSIS
A successful petition for relief under RCr 11.42 based on ineffective
assistance of counsel must survive the twin prongs of “performance” and
“prejudice” provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky.
1985). The “performance” prong of Strickland requires as follows:
Appellant must show that counsel’s performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the
-4- “counsel” guaranteed the defendant by the Sixth Amendment, or that counsel’s representation fell below an objective standard of reasonableness.
Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (internal quotation
marks and citations omitted). The “prejudice” prong requires a showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Commonwealth v. McGorman, 489 S.W.3d 731, 736
(Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).
Both Strickland prongs must be met before relief pursuant to RCr
11.42 may be granted. “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, 466 U.S. at 687, 104 S. Ct. at 2064.
This is a very difficult standard to meet. “Surmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473,
1485, 176 L. Ed. 2d 284 (2010).
Hunter presents three issues on appeal. First, he contends the trial
court erroneously denied him an evidentiary hearing on his allegations that trial
counsel failed to conduct adequate investigation and preparation on several issues
in his case. Second, Hunter argues he suffered ineffective assistance when his trial
counsel failed to object to prosecutorial misconduct during the trial. Third, Hunter
contends he suffered ineffective assistance of appellate counsel (IAAC) when his
-5- appellate counsel chose an unpreserved argument regarding the directed verdict
motion instead of the argument preserved by trial counsel. We discuss each
argument in turn below.
In his first argument, Hunter contends the trial court erroneously
denied him an evidentiary hearing regarding the investigation and preparation
conducted by his trial counsel. This argument contains several specific subparts:
(1) during the guilt phase, trial counsel inadequately investigated and prepared for
his alternate perpetrator defense; (2) during the penalty phase, trial counsel failed
to present mitigating evidence; and (3) trial counsel failed to move for a
continuance to conduct necessary investigations into his alternate perpetrator
defense and to find mitigating evidence.
A claim of ineffective assistance based on the reasonableness of trial
counsel’s preparation and investigation will frequently require an evidentiary
hearing because trial counsel’s actions in this regard do not ordinarily form part of
the trial record. The Kentucky Supreme Court has ruled that the trial court must
conduct an evidentiary hearing on an RCr 11.42 motion, “if there is a material
issue of fact that cannot be conclusively resolved, i.e., conclusively proved or
disproved, by an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d
448, 452 (Ky. 2001) (citations omitted). However, the Supreme Court has also
ruled that an evidentiary hearing is unnecessary when the movant cannot show
-6- prejudice under the second prong of Strickland, reasoning that “[t]he Strickland
test requires the movant to carry the burden of meeting both prongs in order to
succeed with an ineffective assistance of counsel argument.” Commonwealth v.
Searight, 423 S.W.3d 226, 231 (Ky. 2014) (citations omitted). In short, when no
prejudice is present, an evidentiary hearing on the reasonable effectiveness of trial
counsel’s strategy would be nugatory. Id.
For the first part of this argument, Hunter contends that he was
entitled to an evidentiary hearing on the adequacy of his trial counsel’s efforts
regarding his alternate perpetrator defense. Hunter asserts his trial counsel could
have done more “to develop the evidence related to the suggested alternate
perpetrators, [failed] to subpoena these individuals, and [failed] to investigate other
potential alternate perpetrators.” (Appellant’s Brief at 6.) However, the trial court
did not err in denying an evidentiary hearing, as this issue is refuted by the record.
The Kentucky Supreme Court’s opinion on direct appeal shows that Hunter’s trial
counsel adequately pursued the alternate perpetrator theory, finding two alternate
perpetrators, who happened to be sex offenders, in relative proximity to Stacy’s
family. Hunter I, 2020 WL 5103864, at *5. Ultimately, the Supreme Court
determined that the trial court properly excluded evidence of the crimes committed
by the two proposed alternate perpetrators, as the “convictions were more than
twenty years old and no evidence of subsequent bad acts was offered.” Id.
-7- Hunter contends his trial counsel might have done more to further this
alternate perpetrator defense, but such an argument is not sufficient to warrant an
evidentiary hearing. “The issue on a claim of ineffective assistance is not whether
additional assistance from DPA would have provided Appellant with a better
defense, but whether trial counsel was functioning as ‘counsel’ guaranteed a
defendant by the Sixth Amendment.” McQueen v. Commonwealth of Kentucky,
949 S.W.2d 70, 71 (Ky. 1997) (citations omitted). Perfection is not required, and
there is nothing to indicate that Hunter’s trial counsel did not function as counsel
on this issue. “A defendant is not guaranteed errorless counsel, or counsel
adjudged ineffective by hindsight, but counsel reasonably likely to render and
rendering reasonably effective assistance.” Id. Hunter’s trial counsel cannot be
found ineffective in hindsight merely because the alternate perpetrator theory, as
presented, did not succeed. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Hunter also contends he was entitled to an evidentiary hearing
because his trial counsel was ineffective based on a failure to present mitigating
evidence during the penalty phase of his trial. Hunter asserts that trial counsel
could have submitted evidence and witnesses regarding his background and mental
health history, and that trial counsel should have been aware of these potential
avenues from a review of Hunter’s evaluation by the Kentucky Correctional
Psychiatric Center (KCPC).
-8- For its part, the Commonwealth contends Hunter’s mitigation
argument lacks specificity, in that Hunter fails to identify who might have called to
testify regarding information in the KCPC report. The Commonwealth also
contends that the evidence in the KCPC report is not inherently mitigating, as the
report contained information about Hunter’s substance abuse issues.
(Commonwealth’s Brief at 13.) Furthermore, in an intriguing argument, the
Commonwealth contends that presenting this type of mitigation evidence would
have contradicted the alternate perpetrator defense he presented during the guilt
phase of his trial, citing Fields v. Jordan, 86 F.4th 218 (6th Cir. 2023):
Fields identifies no Supreme Court precedent holding that counsel acts unreasonably by omitting known mitigating evidence that could have conflicted with the decision to pursue a “lingering doubt” defense at the penalty phase. To the contrary, circuit decisions have credited this residual-doubt theory. And much of the testimony from Drs. Schilling and Adams would have sought to ‘justify[] the crime’ rather than support the theory that Fields did not do it. As counsel explained, this testimony could have harmed a residual-doubt defense. The jurors might have looked unfavorably on the contradictory penalty-phase claim that “I’m innocent, but oh, now, let me tell you why I did it.”
Id. at 246-47 (citations omitted). Finally, the Commonwealth argues that Hunter
cannot satisfy the prejudice prong of the Strickland test because the putative
mitigation evidence is greatly outweighed by the aggravating evidence in this case.
-9- It is a close question as to whether Hunter should be granted relief in
the form of an evidentiary hearing on this issue. An evidentiary hearing is
frequently necessary “to determine whether the failure to introduce mitigating
evidence was trial strategy, or ‘an abdication of advocacy.’” Hodge v.
Commonwealth, 68 S.W.3d 338 (Ky. 2001) (quoting Austin v. Bell, 126 F.3d 843,
849 (6th Cir. 1997)). Under the facts of this case, however, we are inclined to
agree with the Commonwealth that the purported mitigation evidence cannot
overcome the impact of the aggravating evidence. At the end of the guilt phase of
the trial, the jury concluded that Hunter was guilty of raping a seven-year-old child
and inflicting a sexually transmitted disease in the process. The jury heard from
the child that Hunter hurt her “pee spot.” Hunter I, 2020 WL 5103864, at *1.
Finally, the Commonwealth presented evidence during the penalty phase that
Hunter had prior convictions in Alabama for child abuse and manslaughter.
The aggravating evidence against Hunter is significant enough that
Searight, 423 S.W.3d 226, is instructive. In Searight, the Kentucky Supreme
Court determined that the trial court did not err in denying an evidentiary hearing
regarding trial counsel’s purported failure to call mitigation witnesses. Searight’s
jury convicted him for first-degree possession, first-degree fleeing and evading
police, and being a first-degree persistent felony offender (PFO). Id. at 229. In his
RCr 11.42 motion, Searight argued his trial counsel should have presented
-10- mitigation evidence pleading for leniency based on his issues with drug addiction.
Id. at 233. The Supreme Court noted that, at the time of the offenses, Searight had
an “extensive criminal history[,] . . . had been paroled four months before his arrest
and was, in fact, still on parole at the time of his arrest.” Id. The Kentucky
Supreme Court ultimately found that “the record compels a finding that Searight
was not prejudiced by the alleged error in failing to present mitigation evidence
because even if true, the proffered testimony would not have undermined
confidence in his sentence.” Id. at 234.
The aggravating factors in this case are even more compelling than
Searight in outweighing the mitigating evidence which Hunter argues his trial
counsel should have provided. Even if trial counsel had made Hunter’s mental
health history available as mitigation, such testimony would have been easily
countered by the nature of this offense and the offenses for which Hunter was
previously convicted in Alabama. It is our opinion that trial counsel’s failure to
offer the proffered mitigation evidence does not undermine confidence in the jury’s
sentence. Accordingly, pursuant to Searight, we discern no error in denying a
nugatory evidentiary hearing when the prejudice prong of Strickland could not be
overcome. Id. at 231.
Hunter’s final subordinate argument under his first issue is that the
trial court erroneously denied him an evidentiary hearing based on assertions that
-11- his trial counsel should have moved for a continuance. According to Hunter, a
continuance would have allowed trial counsel to further develop his alternate
perpetrator defense and his mitigation evidence. Hunter’s argument is conclusory,
in that it presumes that the trial court would have granted the continuance and that
the indeterminate results from granting such a continuance would have altered the
result of the trial. An appellant’s assertion of “conclusory allegations unsupported
by specifics is subject to summary dismissal, as are contentions that in the face of
the record are wholly incredible.” Williams v. Commonwealth, 336 S.W.3d 42, 50
(Ky. 2011) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629,
52 L. Ed. 2d 136 (1977)). The trial court did not err in denying relief on this basis.
In Hunter’s second overarching argument, he asserts his trial counsel
was ineffective for failing to object to prosecutorial misconduct during the trial.
According to Hunter, one of the flaws in the prosecution’s case during trial was
testimony that the incubation period for gonorrhea is longer than two days; he
argues this incubation period did not align with the Commonwealth’s timeline
regarding the attack on Stacy and her subsequent symptoms from the disease.
Hunter contends the Commonwealth tried to address this indication of reasonable
doubt during closing argument by arguing that Hunter may have sexually assaulted
Stacy before the weekend referenced in the indictment. Hunter extends this
argument by asserting that the Commonwealth’s improper comments violated his
-12- right to a unanimous verdict, as some jurors may have found him guilty of
victimizing Stacy on prior weekends not specified in the indictment.
The Commonwealth correctly points out that the Kentucky Supreme
Court has already held there was nothing improper in the Commonwealth’s closing
argument commenting on the incubation period of gonorrhea:
“[O]pening and closing arguments are not evidence and prosecutors have a wide latitude during both. ‘A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of the defense position.’” Stopher [v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001)], (quoting Slaughter [v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)]. The Commonwealth’s closing statement included no misconduct because the challenged comment represented a legitimate inference drawn from the evidence. The overall fairness of the trial cannot reasonably be said to have been undermined by the prosecutor’s statement.
Hunter I, 2020 WL 5103864, at *5. The Kentucky Supreme Court’s ruling in
Hunter I serves as the law of the case for this issue on the RCr 11.42 motion.
“[O]n remand from a higher court a lower court must obey and give effect to the
higher court’s express or necessarily implied holdings and instructions.” Brown v.
Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010) (citations omitted). Because the
Supreme Court determined there was no misconduct in the Commonwealth’s
closing argument, Hunter’s trial counsel cannot be said to have given deficient
performance by failing to object. “An attorney cannot be ineffective for failing to
raise a non-meritorious claim.” Williams v. Commonwealth, 336 S.W.3d 42, 47
-13- (Ky. 2011). The trial court did not err when it denied RCr 11.42 relief on this
issue.
In Hunter’s third and final issue on appeal, he contends his appellate
counsel gave ineffective assistance by choosing an unpreserved argument
regarding the directed verdict motion instead of the argument preserved by trial
counsel. Trial counsel’s motion for a directed verdict asserted that the
Commonwealth had failed to provide sufficient evidence of penetration for the
rape charge. Hunter I, 2020 WL 5103864, at *2. On appeal, however, Hunter’s
appellate counsel abandoned the penetration argument and instead chose to argue
that Hunter “was entitled to a directed verdict based on the incubation period for
gonorrhea.” Hunter I, 2020 WL 5103864, at *5 (Lambert, J., concurring). In her
concurrence, now-Chief Justice Lambert pointed out that the preserved argument
regarding penetration was a better argument than the one now posed by appellate
counsel. Id.
Based on the grounds cited by Chief Justice Lambert, Hunter now
argues that his appellate counsel provided ineffective assistance pursuant to Hollon
v. Commonwealth, 334 S.W.3d 431 (Ky. 2010):
To succeed on [an ineffective assistance of appellate counsel] claim, the defendant must establish that counsel’s performance was deficient, overcoming a strong presumption that appellate counsel’s choice of issues to present to the appellate court was a reasonable exercise of appellate strategy. . . . [O]nly when ignored
-14- issues are clearly stronger than those presented, will the presumption of effective assistance be overcome.
Id. at 436 (internal quotation marks and citations omitted). Even if there is a
successful demonstration of deficient performance by appellate counsel, the
movant must still succeed in showing prejudice, i.e. “that absent counsel’s
deficient performance there is a reasonable probability that the appeal would have
succeeded.” Id. at 437 (citation omitted).
The Commonwealth correctly contends that Hunter cannot
demonstrate prejudice on this issue. The long-established standard of review for a
directed verdict motion is as follows:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purposes of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “So long as the
Commonwealth produces more than a mere scintilla of evidence to support the
charges, a defendant’s motion for directed verdict should be denied.” Riggle v.
Commonwealth, 686 S.W.3d 105, 117 (Ky. 2023) (quoting Taylor v.
Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020)).
-15- Based on these principles, for Hunter’s appellate counsel to have been
ineffective to the point of prejudice, Hunter must show that the penetration
argument omitted by appellate counsel had a reasonable probability of success on
appeal. In Hunter I, the Kentucky Supreme Court succinctly analyzed the state of
the evidence faced by the trial court during the directed verdict motion:
The trial court utilized the appropriate standard in ruling on Hunter’s motions for directed verdict and analyzed the evidence in the light most favorable to the Commonwealth. Hunter and Stacy were present in the same mobile home on the weekend of May 27, 2016; Stacy’s mother’s live-in boyfriend testified he was awakened on the night of May 27 by a child’s scream and her mother told him the next day someone had “touched” Stacy; Stacy and Hunter both tested positive for gonorrhea, a disease which testimony revealed can only be transmitted by secretions during sexual contact; and Stacy named Hunter as her assailant who “hurt her pee spot.” Based on these facts alone, a reasonable juror could conclude Hunter was guilty of the rape.
Hunter I, 2020 WL 5103864, at *3 (emphasis added). Viewing the evidence as
summarized by the Supreme Court, the Commonwealth successfully presented
more than a scintilla of evidence to defeat a directed verdict motion at trial under
Benham. As a result, even if we accept Hunter’s argument that he suffered
deficient performance by appellate counsel, the record reflects that he suffered no
prejudice as a result of his appellate counsel’s choice of arguments on this issue.
-16- III. CONCLUSION
For the foregoing reasons, we affirm the McCracken Circuit Court’s
order denying relief under RCr 11.42.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Elias Kang-Bartlett Russell Coleman LaGrange, Kentucky Attorney General of Kentucky
J. Grant Burdette Assistant Attorney General Frankfort, Kentucky
-17-