Tahjee Winters v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: June 18, 2026
• Docket: 2024-CA-0196
• Status: Unpublished

Opinion

RENDERED: JUNE 18, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0196-MR

TAHJEE WINTERS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY ANNE VANMETER, JUDGE ACTION NO. 16-CR-01078-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.

JONES, A., JUDGE: Tahjee Winters (“Winters”), pro se, appeals the denial by the

Fayette Circuit Court of his Kentucky Rule of Criminal Procedure (“RCr”) 11.42

motion without an evidentiary hearing. Having reviewed the briefs, the record, and

the judgment below, we affirm. I. BACKGROUND

The Kentucky Supreme Court recounted the facts of this case in its

unpublished opinion stemming from Winters’ direct appeal:

[A] string of five robberies occurred in Lexington between September 7, 2016 and September 17, 2016. The first involved a residential home and four victims, two parents and two children. A Toyota Camry was stolen from the home and later recovered with a .40S&W caliber round discovered in the car. One of the victims, Nakia Talbert, positively identified Winters and his co- defendant, Deverious Jones, as two of the three assailants. The second and third robberies occurred on September 8 and 13, respectively, involving a total of seven victims. Both involved different Hibbett Sports stores. The final two robberies occurred on September 17 and involved Shell and Marathon gas stations just minutes apart from one another, with a total of four victims. The Marathon robbery culminated in the shooting of an employee, Charles Moore. He was shot five times and is permanently paralyzed from the waist down. Shells recovered from the scene prove the calibers of the weapons used were .9mm and .40S&W.

Winters and his co-defendant were eventually arrested. Jones was arrested on September 22, 2016 in Lexington in possession of a .9mm Smith and Wesson. Winters was arrested four days later in Bowling Green in possession of a .40 Smith and Wesson with an extended magazine. While testing could not conclusively prove Winters’ gun was used in the Marathon shooting, neither did it exclude it. Testing did confirm the .9mm of Jones’ was used in the shooting.

Both men were indicted in a single indictment for the robberies except for the Hibbett Stores; only Jones was charged with those robberies, a total of seven charges. Thus, of fifteen total charges, Winters was

-2- charged with six first-degree robberies, one first-degree assault, and one first-degree burglary. Jones faced those charges as well, plus seven additional first-degree robbery charges.

Winters v. Commonwealth, No. 2020-SC-0238-MR, 2022 WL 574976, at *1 (Ky.

Feb. 24, 2022) (unpublished).

Following a seven-day trial, a jury convicted Winters of one count of

robbery in the first degree, five counts of complicity to robbery in the first degree,

one count of burglary in the first degree, and one count of assault in the first

degree. Id. The trial court followed the jury’s sentencing recommendation and

sentenced Winters to an aggregate sentence of 28 years’ imprisonment. Id.

After our Supreme Court affirmed Winters’ conviction and sentence

on direct appeal, Winters filed his RCr 11.42 motion and memorandum alleging

ineffective assistance of trial counsel on May 24, 2023. The Commonwealth filed

its response on August 4, 2023. On November 7, 2023, the circuit court denied

Winters’ motion without an evidentiary hearing, concluding that his ineffective

assistance of counsel claims could be resolved on the face of the record. Winters

filed a timely appeal.

II. ANALYSIS

On appeal, Winters argues that he is entitled to relief under RCr 11.42

due to his trial counsel’s ineffectiveness in (1) failing to retain an expert witness to

testify about eyewitness identification; (2) failing to object to introduction of the

-3- photographic lineup connected with the Hibbett Stores robberies; (3) failing to

move for a directed verdict on the charge of first-degree assault; and (4) failing to

challenge the sufficiency of the evidence supporting the first-degree assault in the

jury instructions. Finally, Winters argues that he was entitled to an evidentiary

hearing.

A. Standard of Review

Claims of ineffective assistance of counsel are reviewed under the

two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in Gall v.

Commonwealth, 702 S.W.2d 37 (Ky. 1985). Both prongs must be satisfied to

merit relief. Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016)

(citing Strickland, 466 U.S. at 687). “Under the Strickland framework, an

appellant must first show that counsel’s performance was deficient. A ‘deficient

performance’ contains errors ‘so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.’” Id. (quoting

Strickland, 466 U.S. at 687).

The second prong requires an appellant to “show that counsel’s

deficient performance prejudiced his defense at trial. ‘This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687) (citations

-4- omitted). To show actual prejudice, the appellant must establish a “reasonable

probability” that, but for counsel’s deficient performance, the outcome of the

proceeding would have been different. Haley v. Commonwealth, 586 S.W.3d 744,

750 (Ky. App. 2019) (citing Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky.

1998)). “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. (quoting Teague v. Commonwealth, 428 S.W.3d

630, 633 (Ky. App. 2014)).

Defendants attempting to satisfy the Strickland standard face no small

hurdle. “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.” McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell,

226 S.W.3d 96, 103 (Ky. 2007)). To determine whether this presumption of

reasonableness can be overcome, we consider counsel’s overall performance and

the totality of circumstances. Id. (citing 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 review counsel’s performance under the de novo

standard. Id.

Additionally, not every claim of ineffective assistance merits an

evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993).

The law on this issue is clear: the circuit court need only conduct an evidentiary

-5- hearing if (i) the movant establishes that the error, if true, entitles him or her to

relief under RCr 11.42; and (ii) the motion raises an issue of fact that “cannot be

determined on the face of the record.” Parrish v. Commonwealth, 272 S.W.3d

161, 166 (Ky. 2008). In other words, “an evidentiary hearing is not required when

the record refutes the claim of error or when the allegations, even if true, would not

be sufficient to invalidate the conviction.” Cawl v. Commonwealth, 423 S.W.3d

214, 218 (Ky. 2014).

When the record fails either to prove or to refute a material issue of

fact, a hearing is required. “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). “The hearing ensures a

defendant the protections of due process in securing his right to effective assistance

of trial counsel. To that end, he is permitted to call witnesses and present evidence

in support of his motion, to cross-examine the witnesses for the Commonwealth,

and to be represented by counsel.” Knuckles v. Commonwealth, 421 S.W.3d 399,

401 (Ky. App. 2014).

B. Trial Counsel’s Failure to Retain an Eyewitness Identification Expert

Winters first contends that his trial counsel was ineffective for failing

to retain an expert to testify at trial about the unreliability of eyewitness

identification. This expert testimony, according to Winters, could have discredited

-6- the testimony of Nakia Talbert (“Talbert”), a victim from the first robbery who

identified Winters and his co-defendant as suspects. Both Winters and the trial

court noted counsel’s attempt to suppress the identification pretrial and to attack

Talbert’s credibility by cross examination at trial. Winters, however, asserts that

the proper strategy after the unsuccessful suppression motion was to retain an

expert witness for trial instead of merely relying on cross examination. To this

end, Winters draws from federal and state caselaw to argue that an expert was

necessary to educate the jury on how perception and memory are vulnerable to

factors, such as the passage of time and discovery of post-event information.

Winters argues that such an education would have enabled jurors to properly assess

Talbert’s confidence in her identification and prevented them from attributing

undue weight to her testimony.

Regarding the performance prong of Strickland, the trial court found

the decision to forgo presentation of expert testimony to be one of trial strategy and

Winters failed to demonstrate how that decision fell “outside the normal bounds of

professional norms.” The court noted that Winters only established the

admissibility of such testimony and that “[s]howing the permissibility of an

alternative strategy on its own does not overcome the strong presumption of

efficacy granted to normal trial strategy.”

-7- The trial court did not hold an evidentiary hearing on Winters’ RCr

11.42 motion, and therefore, “[w]e have no way to determine from the record

whether counsel’s decision ‘was trial strategy, or an “abdication of advocacy.”’”

Haley, 586 S.W.3d at 751 (quoting Hodge v. Commonwealth, 68 S.W.3d 338, 345

(Ky. 2001)). However, our Supreme Court has held that an evidentiary hearing is

unnecessary when the appellant cannot show prejudice as required by Strickland:

“Where the record is clear that an ineffective assistance of counsel claim would

ultimately fail the prejudice prong of Strickland, regardless of the outcome of a

hearing on the deficiency prong, the trial court should be affirmed even in the

absence of such a hearing.” Id. (citing Commonwealth v. Searight, 423 S.W.3d

226, 231 (Ky. 2014)).

Here, the trial court held that Winters failed to show that he suffered

prejudice to the extent of undermining the outcome of trial, observing that

Talbert’s testimony was not the sole evidence of Winters’ guilt regarding the first

robbery. The trial court detailed other evidence connecting Winters to the incident,

including but not limited to cell phone records placing Winters’ phone in the

subject area and Winters’ corresponding statement to the police that his phone

remained in his possession on the day of the crime; another witness’ testimony that

the suspects spoke with Southern accents and Winters is from Mississippi; and

evidence that Winters sent and received text messages related to the home

-8- invasion. The court also pointed to evidence of Winters’ attempt to flee Kentucky

after the robbery, citing the common-law rule that evidence of flight is indicative

of guilt. See Rodriguez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003).

Given the other evidence linking Winters to the crime, we cannot say

that trial counsel’s failure to retain an expert on eyewitness identification rendered

Winters’ trial fundamentally unfair or the result thereof unreliable. “Based on the

foregoing, we cannot conclude that there was ‘a reasonable probability that . . . the

result of the proceeding would have been different’ or that ‘a probability sufficient

to undermine confidence in the outcome’ of this case existed.” Haley, 586 S.W.3d

at 752 (alterations in original) (quoting Teague, 428 S.W.3d at 633).

C. Trial Counsel’s Failure to Object to the Introduction of Photo Lineups

Associated with the Hibbett Sports Robberies

Winters next claims that his trial counsel was ineffective for failing to

object at trial to the Commonwealth’s introduction of photo lineups compiled in

connection with the robberies occurring at Hibbett Sports stores. The lineups

contained photos of both men, and after viewing the photo array, eyewitnesses

positively identified the co-defendant for his involvement but did not implicate

Winters. Accordingly, Winters was not charged in connection with these

robberies, and the related counts of the indictment pertained solely to his co-

defendant.

-9- Prior to trial, Winters’ counsel moved to sever his charges from those

of his co-defendant. The trial court denied that motion, and the Kentucky Supreme

Court affirmed that denial on Winters’ direct appeal. Winters, 2022 WL 574976,

at *1. Winters now claims that he was prejudiced by counsel’s failure to object to

the introduction of the lineups, thus permitting the jury to view his photo during

the Commonwealth’s presentation of evidence against the co-defendant and in

relation to charges he did not face.

As noted by the trial court, the success of an ineffective assistance of

counsel claim based on counsel’s failure to object hinges on showing that the

proffered objection should have been sustained. See Bratcher v. Commonwealth,

406 S.W.3d 865, 870 (Ky. App. 2012) (citing Commonwealth v. Davis, 14 S.W.3d

9, 11 (Ky. 1999)) (“In evaluating counsel’s failure to object, we are mindful that

counsel is not required to make useless objections and failure to do so is not

ineffective assistance of counsel.”). By affirming the trial court’s denial of

Winters’ motion to sever, our Supreme Court foreclosed any relief based on this

claim: “[T]he trial court rul[ed] that the robberies were similar acts or transactions

and the jury would not be overcome with prejudice by the inclusion of some

robberies for which Winters was not charged, but his co-defendant was. RCr 6.20

clearly allows for this.” Winters, 2022 WL 574976, at *2. The failure to object to

evidence that was clearly relevant and admissible against his co-defendant cannot

-10- amount to deficient performance. See Williams v. Commonwealth, 336 S.W.3d 42,

47 (Ky. 2011) (“An attorney cannot be ineffective for failing to raise a non-

meritorious claim.”).

Moreover, given our Supreme Court’s opinion in Winters, the ability

to satisfy Strickland’s second prong is relegated to the same fate: “The failure of

Winters to show where actual, undue prejudice occurred leads to the sound

conclusion that it did not occur.” Winters, 2022 WL 574976, at *3. The trial court

did not err when it denied RCr 11.42 relief on this issue.

D. Trial Counsel’s Failure to Move for a Directed Verdict on Assault 1st

In his third claim of ineffectiveness, Winters centers his argument on

trial counsel’s failure to move for a directed verdict on the charge of first-degree

assault. As noted by both the trial court and Commonwealth, this claim is refuted

by the record in that counsel did in fact move for a directed verdict on the very

grounds Winters proffers on appeal. In its order, the trial court observed that

counsel made a motion for a directed verdict on the first-degree assault charge at

the close of the Commonwealth’s evidence, renewed this motion at the close of the

defense’s evidence, and moved for judgment notwithstanding the verdict after the

jury returned its verdict. All were denied by the trial court. Again, the trial court

did not err in denying RCr 11.42 relief on this claim.

-11- E. Trial Counsel’s Failure to Object to the Sufficiency of Evidence

Regarding Jury Instruction No. 10(A)

Winters’ fourth contention of ineffective assistance of counsel is

based on counsel’s failure to object to the sufficiency of evidence supporting the

jury instruction provided for the first-degree assault charge. Winters argues that

the Commonwealth produced insufficient evidence for him to be held responsible

for shooting at and inflicting serious physical injury upon the gas station employee

during the Marathon robbery. Winters purports that no eyewitness identified him,

and his supposed appearance on the surveillance video is supported only by

circumstantial evidence, i.e., his possession of a similar sweatshirt worn by one of

the suspects. Winters also compares the ballistics evidence regarding the two

retrieved handguns to argue that it is more likely that the co-defendant shot the

victim. But for counsel’s failure to object to the jury instruction, Winters claims

that the trial outcome and sentence would have been different.

In denying relief on this claim, the trial court observed that Winters

did not object to the actual wording of the instruction, which outlined the basic

elements of first-degree assault, but only that there was insufficient evidence to

find him guilty beyond a reasonable doubt. The court cited to Taylor v.

Commonwealth, for the tenet that “it is the duty of the trial judge to prepare and

give instructions on the whole law of the case, and this rule requires instructions

-12- applicable to every state of the case deducible or supported to any extent by the

testimony.” 995 S.W.2d 355, 360 (Ky. 1999) (citations omitted). Concluding that

the instruction was supported by the evidence, the trial court observed that

surveillance video from the Marathon robbery showed two men shot at the victim,

and one of the shooters wore distinctive shoes like those worn by Winters in a

photo retrieved from his cell phone. Additionally, one of the eyewitnesses gave a

general description of one of the suspects that matched Winters, i.e., “a 5’8” light

skinned male with a slim build.” Regarding the ballistics evidence, the court

acknowledged that testing did not confirm use of the .40 S&W in the Marathon

robbery but also observed, as did the Kentucky Supreme Court, that testing did not

exclude it. Finally, the court detailed other circumstantial evidence connecting

Winters to the Marathon robbery, including cell phone data and possession of

similar clothing. Certainly, the evidence was merely circumstantial, but that is all

the law requires to support an instruction. The alleged insufficiency of admissible

evidence is not a valid basis upon which to object to an otherwise proper jury

instruction.

As with the claimed error to object to the photo lineup, Winters fails

to establish that counsel’s performance was deficient in this regard, and the trial

court did not err in denying Winters relief on this claim.

-13- F. Trial Court’s Failure to Hold an Evidentiary Hearing

The trial court concluded that there was no issue of material fact that

could not be resolved by the record. Regarding the presentation of expert

testimony, we agree with the trial court’s ruling that Winters failed to meet the

prejudice prong of the Strickland standard. See Searight, 423 S.W.3d at 231. As

to Winters’ remaining claims of ineffective assistance of counsel, we agree that

those issues were definitively refuted by the record.

III. CONCLUSION

Accordingly, we AFFIRM the judgment of the Fayette Circuit Court

denying relief under RCr 11.42.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Tahjee Winters, pro se Russell Coleman Eddyville, Kentucky Attorney General of Kentucky

Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

-14-