RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2021-CA-1358-MR
SHAUN E. HILES APPELLANT
APPEAL FROM GRANT CIRCUIT COURT v. HONORABLE GREGORY M. BARTLETT, SPECIAL JUDGE ACTION NO. 14-CR-00213
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
JONES, JUDGE: Shaun Hiles appeals from the Grant Circuit Court’s order
denying his RCr1 11.42 motion. Because Hiles’s motion raises issues which
cannot be resolved by an examination of the record, we vacate the trial court’s
order of denial and remand for further proceedings, including an evidentiary
hearing.
1 Kentucky Rules of Criminal Procedure. I. BACKGROUND
On June 28, 2014, after several weeks of marital discord, Hiles shot
and killed his wife, Nicole Hiles and her friend, Larry Whiteker. Following his
trial, the jury found Hiles guilty of two counts of capital murder2 and two counts of
first-degree wanton endangerment.3 Consistent with the jury’s recommendation,
the trial court sentenced Hiles to two life terms without the possibility of parole
and to a term of five years for each wanton endangerment charge. The Kentucky
Supreme Court affirmed Hiles’s convictions and sentence on direct appeal in an
unpublished memorandum opinion. Hiles v. Commonwealth, No. 2016-SC-
000127-MR, 2017 WL 2600132 (Ky. Jun. 15, 2017). Hiles subsequently filed a
pro se motion to vacate his sentence under RCr 11.42. The trial court denied relief
in a written order entered on November 10, 2021, without conducting 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,
2 Kentucky Revised Statutes (KRS) 507.020. 3 KRS 508.060, a Class D felony.
-2- 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 “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). We review counsel’s performance under
Strickland de novo. McGorman, 489 S.W.3d at 736.
Hiles made several different claims in his pro se RCr 11.42 motion to
the trial court, but his counseled brief on appeal abandons several of those
-3- arguments. We consider the unbriefed claims to be waived here. “An appellant’s
failure to discuss particular errors in his brief is the same as if no brief at all had
been filed on those issues.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App.
1979); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
For his briefed issues, Hiles contends his trial counsel was ineffective
when he: (1) failed to adequately investigate and present a defense based on
extreme emotional disturbance (EED); and (2) failed to discover, through expert
testing, that Hiles suffers from “intermittent explosive disorder,” a psychiatric
condition which may have assisted in his EED defense. Hiles asserts that, had his
trial counsel conducted an adequate investigation, this information would have
sufficed to convince at least one juror to recommend a less severe sentence than
life without the possibility of parole.
We must note at the outset that Hiles’s trial counsel did not give an
opening statement or present any witnesses during the guilt phase of the trial.
Instead, trial counsel briefly cross-examined each of the Commonwealth’s
witnesses in order to inquire as to whether the witness could testify as to Hiles’s
state of mind when he shot Nicole and Larry. Because there were no psychiatric
experts testifying for the Commonwealth, the answers were generally negative.
Then, in the penalty phase, trial counsel called one witness, Hiles’s teenage
daughter, in order to ask her (1) whether she loves and misses her mother, (2)
-4- whether she loves and misses her father, and (3) if she would like the jury to show
compassion and give her father the minimum sentence.
It may be, as Hiles asserts, that his trial counsel utterly failed to
diligently investigate his case or present witnesses, including psychiatric experts,
who could have buttressed Hiles’s EED defense. If true, this could constitute
ineffective assistance of counsel. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” McQueen v. Commonwealth, 721 S.W.2d 694, 700 (Ky. 1986)
(quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). However, it is also
possible, as the Commonwealth contends, that Hiles’s counsel declined to pursue
expert psychiatric testimony due to the witness testimony presented previously,
during Hiles’s pretrial competency hearing. Dr. Amy Trivette at Kentucky
Correctional Psychiatric Center (KCPC) testified that Hiles was competent and
capable of participating in his defense, stating, “he does not suffer from a mental
illness or intellectual disability that would be expected to impair his ability to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law.” Furthermore, she testified that there was evidence that
Hiles had malingered during his psychiatric testing. Finally, a deputy jailer, Jason
Hankins, testified that he had overheard Hiles assert he would escape punishment
by manipulating the staff into believing he was mentally ill.
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RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2021-CA-1358-MR
SHAUN E. HILES APPELLANT
APPEAL FROM GRANT CIRCUIT COURT v. HONORABLE GREGORY M. BARTLETT, SPECIAL JUDGE ACTION NO. 14-CR-00213
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
JONES, JUDGE: Shaun Hiles appeals from the Grant Circuit Court’s order
denying his RCr1 11.42 motion. Because Hiles’s motion raises issues which
cannot be resolved by an examination of the record, we vacate the trial court’s
order of denial and remand for further proceedings, including an evidentiary
hearing.
1 Kentucky Rules of Criminal Procedure. I. BACKGROUND
On June 28, 2014, after several weeks of marital discord, Hiles shot
and killed his wife, Nicole Hiles and her friend, Larry Whiteker. Following his
trial, the jury found Hiles guilty of two counts of capital murder2 and two counts of
first-degree wanton endangerment.3 Consistent with the jury’s recommendation,
the trial court sentenced Hiles to two life terms without the possibility of parole
and to a term of five years for each wanton endangerment charge. The Kentucky
Supreme Court affirmed Hiles’s convictions and sentence on direct appeal in an
unpublished memorandum opinion. Hiles v. Commonwealth, No. 2016-SC-
000127-MR, 2017 WL 2600132 (Ky. Jun. 15, 2017). Hiles subsequently filed a
pro se motion to vacate his sentence under RCr 11.42. The trial court denied relief
in a written order entered on November 10, 2021, without conducting 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,
2 Kentucky Revised Statutes (KRS) 507.020. 3 KRS 508.060, a Class D felony.
-2- 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 “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). We review counsel’s performance under
Strickland de novo. McGorman, 489 S.W.3d at 736.
Hiles made several different claims in his pro se RCr 11.42 motion to
the trial court, but his counseled brief on appeal abandons several of those
-3- arguments. We consider the unbriefed claims to be waived here. “An appellant’s
failure to discuss particular errors in his brief is the same as if no brief at all had
been filed on those issues.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App.
1979); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
For his briefed issues, Hiles contends his trial counsel was ineffective
when he: (1) failed to adequately investigate and present a defense based on
extreme emotional disturbance (EED); and (2) failed to discover, through expert
testing, that Hiles suffers from “intermittent explosive disorder,” a psychiatric
condition which may have assisted in his EED defense. Hiles asserts that, had his
trial counsel conducted an adequate investigation, this information would have
sufficed to convince at least one juror to recommend a less severe sentence than
life without the possibility of parole.
We must note at the outset that Hiles’s trial counsel did not give an
opening statement or present any witnesses during the guilt phase of the trial.
Instead, trial counsel briefly cross-examined each of the Commonwealth’s
witnesses in order to inquire as to whether the witness could testify as to Hiles’s
state of mind when he shot Nicole and Larry. Because there were no psychiatric
experts testifying for the Commonwealth, the answers were generally negative.
Then, in the penalty phase, trial counsel called one witness, Hiles’s teenage
daughter, in order to ask her (1) whether she loves and misses her mother, (2)
-4- whether she loves and misses her father, and (3) if she would like the jury to show
compassion and give her father the minimum sentence.
It may be, as Hiles asserts, that his trial counsel utterly failed to
diligently investigate his case or present witnesses, including psychiatric experts,
who could have buttressed Hiles’s EED defense. If true, this could constitute
ineffective assistance of counsel. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” McQueen v. Commonwealth, 721 S.W.2d 694, 700 (Ky. 1986)
(quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). However, it is also
possible, as the Commonwealth contends, that Hiles’s counsel declined to pursue
expert psychiatric testimony due to the witness testimony presented previously,
during Hiles’s pretrial competency hearing. Dr. Amy Trivette at Kentucky
Correctional Psychiatric Center (KCPC) testified that Hiles was competent and
capable of participating in his defense, stating, “he does not suffer from a mental
illness or intellectual disability that would be expected to impair his ability to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law.” Furthermore, she testified that there was evidence that
Hiles had malingered during his psychiatric testing. Finally, a deputy jailer, Jason
Hankins, testified that he had overheard Hiles assert he would escape punishment
by manipulating the staff into believing he was mentally ill.
-5- It is also possible that trial counsel employed a strategy based on pure
cross-examination in order to avoid disclosing its defense to the Commonwealth.
See Vincent v. Commonwealth, 584 S.W.3d 762, 770-71 (Ky. App. 2019) (holding
that trial counsel’s decision to not hire an expert was valid strategy when RCr
7.24(3)(a) would have required disclosure to the Commonwealth of the test reports
and a summary of the expert’s testimony). As in this case, trial counsel in Vincent
was also confronted with a situation in which there was evidence of the defendant
malingering during psychiatric testing. If, like Vincent, trial counsel in this case
decided to avoid using expert testimony to prevent disclosure to the
Commonwealth, or to avoid the presentation of testimony to the jury regarding
Hiles’s malingering, then this would be a proper exercise of trial strategy and not
ineffective assistance of counsel. “It is not the function of this Court to usurp or
second guess counsel’s trial strategy.” Vincent, 584 S.W.3d at 771 (citations
omitted).
The trial court’s order asserts that Hiles’s RCr 11.42 claims are
refuted by the record, in that trial counsel did offer an EED defense to the jury.
However, with respect to the trial court, the question is not whether trial counsel
presented an EED defense, but whether trial counsel was ineffective in the
presentation of this defense in such a way that proved ultimately prejudicial to the
defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Unfortunately, because
-6- the trial court declined to order an evidentiary hearing on Hiles’s RCr 11.42
motion, the record presents no evidence as to trial counsel’s motives for an
allegedly lackluster performance or an analysis as to whether this performance was
ultimately prejudicial.
This, of itself, requires us to vacate the trial court’s dismissal of
Hiles’s RCr 11.42 motion. “A hearing is required 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. The trial judge may not simply disbelieve factual
allegations in the absence of evidence in the record refuting them.” Fraser v.
Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001) (citations omitted). “An
evidentiary hearing must be held in this case 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, 345 (Ky. 2001) (quoting Austin v. Bell,
126 F.3d 843, 849 (6th Cir. 1997)).
III. CONCLUSION
For the foregoing reasons, we vacate the Grant Circuit Court’s order
denying relief pursuant to RCr 11.42. We remand this matter for an evidentiary
hearing with counsel appointed for Hiles, as required by Fraser, and for further
proceedings not inconsistent with this Opinion.
ALL CONCUR.
-7- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
David L. Stewart Daniel Cameron La Grange, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
-8-