RENDERED: AUGUST 15, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1384-MR
TAWAIIN LEWIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SARAH E. CLAY, JUDGE ACTION NO. 09-CR-002874
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, L. JONES, AND MCNEILL, JUDGES.
JONES, L., JUDGE: This case is before us following a remand for an evidentiary
hearing on the motion of Tawaiin Lewis (Lewis) to vacate his conviction pursuant
to RCr1 11.42. Following that evidentiary hearing, the trial court denied Lewis’s
motion. Lewis again appealed the trial court’s decision. We affirm.
1 Kentucky Rules of Criminal Procedure. I. FACTUAL AND PROCEDURAL BACKGROUND
Following a jury trial in 2014, Lewis was convicted of two counts of
Murder, two counts of Assault in the First Degree, and one count of Wanton
Endangerment. Consistent with the jury’s recommendation, Lewis was sentenced
to life imprisonment without the possibility of parole for twenty-five years on each
of the Murder convictions, twenty years on each count of Assault in the First
Degree, and five years on the count of Wanton Endangerment in the First Degree,
with all sentences to run concurrently. The Kentucky Supreme Court affirmed the
convictions and sentences in Lewis v. Commonwealth, 475 S.W. 3d 26 (Ky. 2015)
(Lewis I).
The Kentucky Supreme Court summarized the relevant facts as
follows:
On September 23, 2009, Lewis approached an apartment building on Saddlebrook Lane in Louisville, Kentucky. As they often did, Jonte Johnson (Jonte); his cousins, Dejuan Johnson (Dejuan) and Demarcus Johnson (Demarcus); and his friends Quinntin Knighton (Knighton) and Terry Matthews (Matthews) were sitting on the building’s porch. When Lewis approached, he had a handgun in his hand and had a short verbal confrontation with the men on the porch. During that confrontation, Seaundre Horsley (Horsley), who was carrying an assault rifle, came around the corner of the building and began firing at the men on the porch. Jonte and Knighton suffered multiple gunshot wounds and died as a result. Demarcus, Dejuan, and Mathews were wounded, but not fatally. The evidence at trial indicated that the fatal wounds to Jonte and Knighton were from
-2- bullets fired by the assault rifle. As to the non-fatal wounds, it was clear that some resulted from assault rifle bullets; however, the source of others was unclear.
Following an investigation, the police arrested both Horsley and Lewis, and charged them with two counts of murder, two counts of attempted murder, two counts of first degree assault, and one count of first degree wanton endangerment. Horsley claimed that he began firing the assault rifle because he thought someone on the porch had a gun and was about to start shooting. The Commonwealth offered to reduce the charges against Horsley to two counts of second degree manslaughter and two counts of second degree assault in exchange for a sentence of 10 years’ imprisonment. Horsley accepted the Commonwealth’s offer. Lewis proceeded to trial, and a jury found him guilty as set forth above.
Id. at 29-30 (footnotes omitted).
Of relevance to this appeal by Lewis, Seaundre Horsley (Horsley) set
forth a statement of facts to accompany his plea deal. That statement, as noted by
the Supreme Court, is as follows:
I was standing in the yard in front of the apartment building at 4908 Saddlebrook Lane on September 23, 2009, around 10:00 pm at night, here in Jefferson County, Kentucky. I was armed with a loaded Assault rifle. Tawaiin “Chum/Chub” Lewis was also standing in the yard. There were individuals on the stoop/porch at that address who were facing out into the yard where I was. When some or all of the five (5) individuals sitting or standing on the stoop/porch made sudden movements, I panicked and thought someone on the stoop/porch might be armed and have the intention of firing at me. I fired my weapon in the direction of the individuals on the porch. Although I did not know who was all on the porch at the time, I am now aware that the firing of the
-3- weapon by me caused the death of Quinntin Knighton and Jonte Johnson and injury to Demarcus Johnson and Dejuan Johnson. I am also now aware that Terry Matthews was the fifth individual on the stoop/porch that was put in danger by the firing of my weapon. I left the area after the shooting.
Id. at 30.
On July 18, 2016, Lewis filed a pro se Motion to Vacate Conviction
and Sentence Pursuant to RCr 11.42 (RCr 11.42 Motion). While Lewis made
several claims of ineffective assistance by both his trial and appellate counsel, the
only claims relevant to this appeal are Lewis’s claims that trial counsel failed to
interview Horsley and call him as a witness at trial. Lewis asserts Horsley’s
testimony would have refuted any claim that Lewis was acting in complicity with
Horsley. In that same RCr 11.42 Motion, Lewis also requested the trial court
appoint counsel and conduct an evidentiary hearing on his claims. The trial court
appointed counsel,2 and on January 23, 2019, the trial court entered an order
denying all of Lewis’s claims without holding an evidentiary hearing.3
A separate panel of this Court vacated the judgment of the trial court
and remanded the case for an evidentiary hearing on the issue of whether Lewis’s
2 While counsel from the Department of Public Advocacy (DPA) initially entered an appearance on behalf of Lewis, private counsel entered an appearance and represented Lewis through the proceedings at the trial court level prior to appeal of the trial court’s January 23, 2019 Order. 3 The trial court denied a Motion to Alter Amend or Vacate its January 23, 2019 Order.
-4- trial counsel erred by failing to interview Horsley and failing to call him to testify
at trial. Lewis v. Commonwealth, No. 2019-CA-1230-MR, 2022 WL 2281775 (Ky.
App. Jun. 24, 2022) (Lewis II). That panel noted an affidavit executed by Horsley
(not to be confused with the statement from Horsley’s plea which was cited by the
Kentucky Supreme Court in Lewis I), in which Horsley avers:4
That on [S]eptember 23, 2009, about 10:00 pm in Jefferson County, Kentucky. That I had been in a altercation with Terry Mathews and some of his friends. Terry is part of the Crips gang and I was a part of the Bloods. I had came by the residence where the altercation [happened] earlier, just in case I was jumped, I [brought] a weapon with me. When I got to the house [where] he was, there were five people of the porch and Tawaiin Lewis had just walked up. Some one on the porch made a sudden movement, and I thought that they may be reaching for a gun; and that they may have been firing on me. So I fired my weapon in the direction of the individuals on the porch. On the day of this incedent, [sic] I was not with, nor was my action in collaboration with, nor in concert with Tawaiin Lewis. I acted alone with out the assistance of Mr. Lewis or any other person in this misfortunate incedent [sic] which took the lives of two people; Quinntin Knighton and Jonte Johnson, and also injuring Demarcus Johnson and Dejuan Johnson.
Id. at *2.5
4 The prior panel does not note the date this affidavit was executed. Based on the contents, we believe it is an October 6, 2014 Affidavit, which was attached to Lewis’s pro se RCr 11.42 Motion. Horsley purportedly executed yet another affidavit regarding the events of the shooting and Lewis’s involvement on November 17, 2017. That affidavit was attached to Lewis’s supplement to his original RCr 11.42 Motion. However, at the evidentiary hearing subject to this appeal, Horsley denied executing the November 17, 2017 Affidavit. 5 The prior panel quoted the October 6, 2014 Affidavit “verbatim and without correction.” Id. at *2. Therefore, we do as well.
-5- That prior panel noted that none of the rounds that killed Jonte
Johnson and Quinntin Knighton came from any weapon that Lewis had, only from
Horsley’s weapon. Id. at *4. As such, that panel noted that Lewis could only be
convicted of murder under a theory that he acted “‘in complicity with another.’”
Id. That prior panel reasoned that “[i]f Horsley had been called to testify, and
testified in conformity with his affidavit, his testimony would have wholly refuted
the Commonwealth’s allegation that Lewis had been involved in a conspiracy that
resulted in murder.” Id. Noting that “the evidence at trial, while implicating a
conspiracy, does not necessarily prove one,” the prior panel held that “without
another witness testifying that the two defendants staged or otherwise planned a
combined assault on the victims beforehand, Lewis’s and Horsley’s mutual denials
[of a conspiracy] would have posed a significant defense to the charged offenses of
intentional murder by conspiracy.” Id.
Because no evidentiary hearing was held, the prior panel noted that
the record lacked any indication of an attempt by Lewis’s counsel to interview
Horsley or the reason they did not call him as a witness despite the possibility of
such favorable testimony. Id. at *5. Without such a hearing, the prior panel found
that “the trial court could not properly conclude from the record alone [whether
the] decisions made by Lewis’s counsel were the result of trial strategy.” Id.
-6- Following remand, the trial court held that evidentiary hearing on
May 8, 2023. Four witnesses testified: (1) Horsley’s attorney, (2) both attorneys
for Lewis, and (3) Horsley. Testimony adduced at the hearing showed that both of
Lewis’s trial counsel were very experienced public defenders, each with decades of
experience. All four witnesses agreed that Lewis’s trial counsel interviewed
Horsley after he entered his plea agreement, though Lewis’s trial counsel had
differing accounts from Horsley.6
Lewis’s trial counsel testified that they went to interview Horsley
soon after his plea was entered to determine if he was a viable witness for Lewis’s
defense. Lewis’s trial counsel had slightly different recollections of what occurred
at that interview. One testified that Horsley refused to answer any substantive
questions and refused to provide any information outside of his plea proffer.
Lewis’s other counsel testified that he recalled Horsley refused to answer any
questions at all. On the other hand, Horsley himself testified that Lewis’s trial
counsel visited him the day prior to Lewis’s trial and told Horsley they had no
defense prepared. Horsley testified that he told Lewis’s trial counsel that he
committed the murders himself and that Lewis had nothing to do with it.
6 Horsley’s trial attorney was not present for any interview, but confirmed at the RCr 11.42 hearing that Lewis’s trial counsel asked his permission to interview Horsley and that he approved.
-7- Following the interview, Lewis’s trial counsel concluded, based upon
their years of experience, that Horsley was an unreliable witness who could be far
more harmful than helpful to the Lewis’s defense. Thus, they decided Horsley’s
testimony was not worth the risk. In particular, one of Lewis’s trial counsel
testified he was concerned that Horsley might just as easily inculpate Lewis as
exculpate him. Counsel further testified that even if Horsley’s testimony at trial
was limited to what was contained in his proffer, the jury might still disbelieve
him, which would also jeopardize Lewis’s defense. Lewis’s other trial counsel
testified that they were concerned that they had no statements besides the proffer to
impeach Horsley if he took the witness stand and expanded on the facts in the
proffer.
At the evidentiary hearing, Horsley also testified to the events
surrounding the shooting. He claimed he had gone to the Saddlebrook apartments
that evening and that he had “gotten into it” with several of the individuals who
were shot. Horsley testified that he had two weapons with him that night, an AK-
47 rifle and a handgun; and that he shot at the individuals on the porch because he
was outnumbered and did not want them to attack him first. Regarding Lewis’s
involvement, Horsley specifically denied Lewis was present, or else Horsley
-8- “would have shot him too.”7 Horsley also claimed that he told his attorney from
the start that Lewis was not involved.
On cross-examination, the Commonwealth impeached Horsley with
his multiple different accounts of the shooting. From his plea proffer, the
Commonwealth noted that Horsley claimed Lewis was present at the time of the
shooting. When seeking parole in 2014, Horsley told the parole board that he had
“gotten caught up in an argument and shot a couple of people,” and that Lewis was
involved in that argument with the victims. The Commonwealth noted that in his
October 6, 2014 Affidavit, Horsley claimed that Lewis had “just walked up” when
Horsley arrived at the scene. The Commonwealth also attempted to impeach
Horsley with an affidavit purportedly executed by him on November 17, 2017,
referenced in n.3, supra. Horsley denied executing this affidavit. Furthermore,
Horsley’s attorney countered Horsley’s claim that Lewis was not present.
Horsley’s attorney stated that Horsley never said Lewis was innocent. In addition,
Horsley’s attorney testified that when drafting the plea proffer for Horsley, Horsley
specifically said that Lewis was present at the scene.
Following briefing, on October 20, 2023, the trial court entered an
Opinion and Order Denying Motion to Vacate (October 20, 2023 Order). In that
7 Lewis’s counsel asked for clarification as to whether Horsley’s recollection was that Lewis was not present at the scene of the shooting or whether Horsley did not recall whether Lewis was present. In answer, Horsley testified that Lewis was not present.
-9- Order, the trial court analyzed Lewis’s claims under the two prongs of Strickland v.
Washington, 466 U.S. 668, 687 (1984), which required Lewis to show that his trial
counsel’s performance was deficient and that he was prejudiced by such
deficiency, i.e., that his trial counsel’s “errors were so serious as to deprive [Lewis]
of a fair trial, a trial whose result[s are] reliable.” The trial court found that the
decision of Lewis’s counsel not to call Horsley as a witness in Lewis’s defense was
reasonable trial strategy based upon their extensive experience. The trial court
noted that Lewis’s trial counsel had concerns about what Horsley would say if
called, especially in light of Horsley’s “bare-bones plea proffer,” which provided
limited opportunity for impeachment if Horsley deviated from the proffered
statement. October 20, 2023 Order at 7-8. Regarding prejudice, the trial court
found Horsley’s credibility was non-existent, citing: (1) Horsley’s inconsistent
statements regarding the events of the shooting; (2) Horsley’s unlikely claim that
Lewis’s trial counsel waited until the day before trial to interview him and told him
specifically that they had not prepared a defense; (3) Horsley’s own attorney
partially contradicting Horsley’s claims; and (4) Horsley’s demeanor while
testifying. As such, the trial court reasoned that Lewis was not prejudiced by trial
counsel’s failure to call Horsley as Horsley was not credible, coupled with “all of
the other evidence that was introduced against Lewis at trial, which the Supreme
-10- Court has already found to be sufficient to prove complicity[.]” Id. at 8-9. From
that October 20, 2023 Order, Lewis filed this timely appeal.
On appeal, Lewis argues the trial court erred in finding that trial
counsel’s decision to not call Horsley as a witness was reasonable trial strategy.
Lewis further argues that the panel in Lewis II already determined that he was
prejudiced by the counsel’s decision, and that the trial court erred in finding
Horsley’s testimony not credible. We disagree.
II. STANDARD OF REVIEW
We review a trial court’s decision concerning ineffective assistance of
counsel under RCr 11.42 for abuse of discretion. Jackson v. Commonwealth, 567
S.W.3d 615, 619 (Ky. App. 2019). As explained in Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999), “[t]he test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.”
Ineffective assistance of counsel claims are analyzed using the two
Strickland factors. Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002).
Under the first prong, the defendant must first “show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”
Id. (citations omitted). Under the second prong, the defendant must show “the
-11- deficient performance prejudiced the defense. 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. at 412. Prejudice requires that the “defendant must
show there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id.
There is a strong presumption that trial counsel is effective. Id.
Likewise, a defendant is not guaranteed perfect performance by counsel. See
McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997) (“A defendant is not
guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but
counsel reasonably likely to render and rendering reasonably effective
assistance.”). Indeed, “[t]he 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.” Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky.
2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151
(Ky. 2009). With these principles in mind, we turn to Lewis’s arguments on
appeal.
III. ANALYSIS
Lewis argues on appeal that his trial attorneys’ decision was not
reasonable trial strategy, and thereby they rendered deficient performance. Lewis
argues that Horsley would have testified that his decision to fire his weapon the
-12- night of the offense was “borne out of panic, rather than premeditation and intent,
further clarifying that [Lewis] did not assist him in committing [the] crime.”
Appellant’s Brief at 12. Thus, Lewis claims Horsley would be “the only witness to
testify that there was no plan, agreement, aiding, abetting or any conspiracy
between him and [Lewis], and that he acted alone in shooting at the porch.” Id.
While Lewis acknowledges his trial counsel’s concerns about Horsley’s
unpredictability or that Horsley might turn hostile, Lewis argues that Horsley’s
proffer accompanying his plea agreement “provided ample grounds to impeach and
correct any inculpatory evidence [Horsley] may have offered.” Id. at 14.
We note that “‘[d]ecisions relating to witness selection are normally
left to counsel’s judgment and this judgment will not be second-guessed by
hindsight.’” Foley v. Commonwealth, 17 S.W. 3d 878, 885 (Ky. 2000), overruled
on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005) (citations
omitted). We also note that the prior panel in Lewis II does not disagree, instead,
that panel’s reason for remand was the lack of an evidentiary hearing: “[w]ithout
an evidentiary hearing, the trial court could not properly conclude from the record
alone that the decisions made by Lewis’s counsel were the result of trial strategy.”
2002 WL 2281775, at *5 (emphasis added). What interested the panel in Lewis II
was “why a man, who could offer a corroborating denial of the conspiracy and had
-13- already pled guilty to firing the deadly shots, was not called by Lewis’s counsel.”
Id. at *4.
There could be no deference when the bare record “does not show us
whether or not Lewis’s counsel interviewed Horsley or attempted to discover how
he would testify at trial.” Id. at *5. Lewis II acknowledged that there could be
“numerous reasons why a defense counsel might, as effective trial strategy, seek to
submit information to a jury without having to do so through the testimony of an
admitted gang member and killer who would also be subject to cross examination.”
Id. However, that panel found that without an evidentiary hearing, “on appellate
review, we cannot determine from the record whether counsel’s decision to not call
[Horsley8] to testify was trial strategy or an abdication of advocacy.” Id. (internal
quotation marks omitted). Now the reasons behind Lewis’s counsel decision not to
call Horsley are in the record, and those reasons are to be accorded the deference
they are due.
Lewis appears to argue that it was unreasonable for his counsel to
decide the possible risks of Horsley’s testimony outweighed the benefits, and that
any fears of Horsley going rogue could be assuaged by impeachment with his
proffer. Indeed, Lewis highlights a comment at the hearing from one of his
8 The quote from Lewis II states “decision not to call Lewis to testify,” but it is clear that the panel in Lewis II meant to refer to Horsley.
-14- counsel that he had called witnesses in the past who had refused to speak with him,
but that he had statements from those witnesses which could “make them say what
I needed.” Appellant Brief at 12.
There is no dispute that Lewis’s counsel interviewed Horsley and
while each of Lewis’s counsel differed slightly as to Horsley’s forthcomingness
(one counsel saying that Horsley kept referring them back to his proffer and the
other stating that Horsley refused to talk with them), it is clear they agree that
Horsley would not expand upon the statements in his brief proffer. Thus, Lewis’s
counsel could not be sure what Horsley might say if questioning exceeded the
narrow scope of the proffer; nor did the proffer provide a sufficient basis to
impeach Horsley if he testified to facts outside the proffer that were harmful to
Lewis. Moreover, Lewis’s counsel had concerns as to how Horsley would fare on
cross-examination and how credible the jury would find him. If the jury thought
Horsley was lying, counsel believed that would reflect poorly on Lewis.
This was a decision made by very experienced trial counsel due to
Horsley’s lack of forthcomingness and counsel’s concerns about his credibility.
While Lewis points out that his counsel has previously called witnesses at trial
whom he had not met with beforehand, he admits that counsel also indicated he
had statements from those witnesses which allowed him to know what they were
going to say, and which could be used to impeach them if they strayed from the
-15- path. Contrary to Lewis’s claim otherwise, this supports the trial court’s finding
that counsel made a reasoned decision in choosing not to call Horsley. Lewis
invites us to second guess that his attorneys’ decision, however, “[t]he tendency
and temptation to second guess is strong and should be avoided.” Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
We note as well that in lieu of calling Horsley to the stand, Lewis’s
counsel also tried to persuade the trial court to consider Horsley’s proffer as an
adoptive admissions and thus not subject to the hearsay rule. Lewis I, 475 S.W.3d
at 31. As the Kentucky Supreme Court noted, the issue was one of first impression
at the time of Lewis I. Id. at 31. While the trial court and the Kentucky Supreme
Court found that Horsley’s proffer was not admissible as an adoptive admission,
id. at 31-32, it still remains that a strategic decision is not rendered ineffective
assistance of counsel simply because it does not succeed. See Strickland, 466 U.S.
at 690. The fact that this strategy did not work did not remove any of counsel’s
concerns regarding Horsley. Thus, the trial court correctly concluded that Lewis’s
trial attorneys did not provide deficient performance.
We also agree with the trial court that Lewis suffered no prejudice.
First, however, we must address Lewis’s claim that the prior panel in Lewis II “left
no real question as to whether [Lewis] was prejudiced by trial counsel’s failure to
-16- call Horsley as a witness.” Appellant’s Brief at 15. This is a misreading of Lewis
II.
The panel in Lewis II was reviewing the trial court’s January 23, 2019
Order that denied Lewis’s RCr 11.42 Motion without a hearing. 2022 WL
2281775, at *2. A hearing is not required if the record refutes the claims in an RCr
11.42 Motion or those allegations, even if true, would not warrant relief. Bowling
v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998). While the panel in Lewis II
discussed the possible effects Horsley’s proffer could have on Lewis’s case, that
panel also noted that “[w]here, as here, an RCr 11.42 hearing is denied, appellate
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.’” 2022 WL 2281775, at *3 (emphasis added) (citation omitted). The
panel in Lewis II simply found that the record on its face did not conclusively
refute Lewis’s claims and remanded for an evidentiary hearing to test Lewis’s
claims.
Our conclusion is supported by the fact that “both parts of the
Strickland test . . . involve mixed questions of law and fact[.]” Brown v.
Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Thus, logically, if remand and a
hearing with factual findings and conclusions of law were required for one half of
the Strickland test, such hearing is required for the other half. Furthermore,
-17- appellate courts are not fact finders. Calhoun v. CSX Transp., Inc., 331 S.W.3d
236, 245 (Ky. 2011). Also, “[a]s an appellate court, we review judgments; we do
not make them.” Klein v. Flanery, 439 S.W.3d 107, 122 (Ky. 2014) (citations
omitted). The panel in Lewis II did not specifically find that Lewis had established
prejudice, as to have done so would have been an improper exercise in fact finding
or judgment making by an appellate court. Thus, we find that the question of
prejudice was not previously decided in Lewis II; rather it was a question remanded
to be one answered by the trial court following findings of fact and conclusions of
law.
As to the merits, Lewis argues that the trial court erred in finding
Horsley not credible and “giving virtually no weight” to his testimony.9 Appellant
Brief at 16. While acknowledging that there were inconsistencies between
Horsley’s many different accounts of the night of the murders, Lewis argues that
Horsley never wavered on “the portion of his testimony that had any bearing on the
elements of the offense[,]” namely “(1) that [Horsley] was the shooter, (2) that he
9 The trial court stated in its order “[I]t is axiomatic that when a movant asserts in an [RCr] 11.42 motion that the testimony of a witness would have changed the outcome of a case, that testimony must be credible. The Court must therefore assess the credibility of a witness when their testimony is the basis of a motion for a new trial. Commonwealth v. Crumes, 630 S.W.3d 630 (Ky. 2021).” We note that Crumes dealt with a trial court’s assessment of recanted testimony. Id. at 647-48. The present case is one where a witness never actually testified. However, Lewis does not challenge the trial court’s reliance on Crumes, but instead challenges whether the trial court erred in finding Horsley not credible. Thus, we will address Lewis’s arguments and not perform a deeper dive on the standard for cases similar to the present case.
-18- fired out of panic, and (3) that he did not plan his crimes with [Lewis].” Id. at 17.
Thus, Lewis argues it was error for the trial court to disbelieve Horlsey’s account
of the shooting. We disagree.
“As a reviewing court, we must defer to findings of fact and
determinations of witness credibility made by the trial judge. Thus, unless the trial
court’s findings of fact are clearly erroneous, those findings must stand.”
Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007) (footnotes and citations
omitted). The trial court’s factual findings are only clearly erroneous if they are
not supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky.
2003). “Substantial evidence is evidence that a reasonable mind would accept as
adequate to support a conclusion and evidence that, when taken alone or in the
light of all of the evidence, . . . has sufficient probative value to induce conviction
in the minds of reasonable men.” Id. (internal quotation marks and citations
omitted). Moreover, “the trial court, as the finder of fact, has the responsibility to
judge the credibility of all testimony, and may choose to believe or disbelieve any
part of the evidence presented to it.” K.R.L. v. P.A.C., 210 S.W.3d 183,187 (citing
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977)).
We find that the trial court’s conclusion that Horsley lacked
credibility is supported by substantial evidence. Not only did the trial court note
-19- the inconsistencies in Horsley’s account of the night of the shooting,10 the trial
court noted Horsley’s combative demeanor when confronted with inconsistencies.
October 23, 2023 Order at 9. The trial court also found that Horsley’s claim that
Lewis’s trial counsel “came to visit him the day before trial and proclaimed to him
that they had no defense and needed his help defies imagination.” Id. It was in the
trial court’s province to believe Horsley in whole or in part, and substantial
evidence exists to support the trial court’s conclusions that Horsley lacked
credibility. Nothing required the trial court to believe any part of Horsley’s
testimony. Thus, we agree that Lewis suffered no prejudice.11
IV. CONCLUSION
This case was remanded previously because the prior panel in Lewis II
found that an evidentiary hearing was required to discover why Lewis’s counsel
did not call Seaundre Horsley to testify when it appeared Horsley’s testimony was
crucial to Lewis’s defense. That evidentiary hearing provided multiple reasons for
10 Lewis takes issue with the trial court’s use of Horsley’s statement to the Kentucky Parole Board in its findings as to Horsley’s credibility in light of Commonwealth v. Clark, 528 S.W.3d 342, 348 (Ky. 2017). We need not and do not analyze whether the trial court was correct in using such testimony in its findings; even discounting Horsley’s statements to the Parole Board for the sake of argument, the trial court’s conclusions are supported by substantial evidence. 11 We note in passing that when analyzing a claim under RCr 11.42, we analyze the circumstances that exist at the time of trial counsel’s decisions. Strickland, 466 U.S. at 680. None of Horsley’s subsequent accounts of the shooting would have existed when Lewis was tried. However, logically if a new trial had been ordered, Horsley would have been subject to cross-examination with those statements and it was proper for the trial court to consider such in assessing Horsley’s credibility.
-20- counsel’s decision which were reasonable based upon counsel’s extensive
experience. Nor did Lewis suffer prejudice from counsel’s decision because
Horsley’s testimony lacked credibility. Thus, the trial court did not abuse its
discretion when denying Lewis’s RCr 11.42 motion.
We view any remaining contentions of error as moot, unpersuasive,
unpreserved, or without merit.
For the foregoing reasons, the judgment of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron P. Riggs Russell Coleman Assistant Public Advocate Attorney General of Kentucky LaGrange, Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
-21-