Background
Between September 7 and 17, 2016, a series of five robberies occurred in Lexington, Kentucky, targeting a residential home, two Hibbett Sports stores, and two gas stations. The Marathon gas station robbery culminated in the shooting of an employee, Charles Moore, who was struck five times and permanently paralyzed. Tahjee Winters and co-defendant Deverious Jones were arrested within days of the final robberies — Winters in Bowling Green, in possession of a .40 Smith & Wesson with an extended magazine. Ballistics testing could not conclusively connect Winters’ weapon to the Marathon shooting but could not exclude it either.
Following a seven-day joint trial in Fayette Circuit Court, a jury convicted Winters of one count of first-degree robbery, five counts of complicity to first-degree robbery, one count of first-degree burglary, and one count of first-degree assault. The court sentenced him to 28 years’ imprisonment in accordance with the jury’s recommendation. The Kentucky Supreme Court affirmed on direct appeal in 2022.
On May 24, 2023, Winters filed a pro se motion for post-conviction relief under Kentucky Rule of Criminal Procedure 11.42, alleging four theories of ineffective assistance of trial counsel. The Fayette Circuit Court denied the motion on November 7, 2023 without holding an evidentiary hearing, concluding that all claims could be resolved on the face of the record. Winters appealed.
The Court’s Holding
The Kentucky Court of Appeals affirmed the circuit court’s denial on all four ineffective-assistance claims. On the failure to retain an eyewitness-identification expert, the court agreed with the circuit court that even if counsel’s performance were deficient, Winters could not satisfy Strickland’s prejudice prong: abundant other evidence — cell phone records, text messages, witness descriptions, ballistics, and evidence of flight — corroborated the first-robbery eyewitness identification, making it impossible to find a reasonable probability that an expert would have changed the outcome.
On the failure to object to admission of the Hibbett Sports photo lineups, the court held that counsel cannot be faulted for not making a meritless objection. The Kentucky Supreme Court had already ruled on direct appeal that the joint trial was proper and that the photo evidence was relevant and admissible against the co-defendant; no sustainable objection was available to Winters’ counsel. Winters’ third claim — that counsel failed to move for a directed verdict on the assault charge — was flatly refuted by the record, which showed counsel moved for a directed verdict at the close of the Commonwealth’s case, renewed it at the close of the defense’s case, and moved for judgment notwithstanding the verdict, all unsuccessfully. On the fourth claim, the court held that counsel’s failure to object to Jury Instruction No. 10(A) was not deficient because the evidence — surveillance footage, matching footwear, eyewitness description, and cell phone data — was sufficient to support giving the instruction.
Because all substantive claims either failed Strickland’s prejudice prong or were affirmatively refuted by the record, the court also affirmed the circuit court’s decision to deny an evidentiary hearing. The panel concurred unanimously.
Key Takeaways
- A defendant alleging trial counsel was ineffective for not retaining an eyewitness-identification expert must still show Strickland prejudice; where the challenged eyewitness testimony was corroborated by substantial independent evidence, that burden is not met.
- Counsel cannot be ineffective for failing to lodge an objection that would not have been sustained — particularly where an appellate court has already held the challenged evidence was properly admitted.
- An RCr 11.42 evidentiary hearing is unnecessary when the movant’s claims either fail the prejudice prong on the face of the record or are affirmatively contradicted by the trial record.
- A factual claim in an RCr 11.42 motion that is directly refuted by the trial record — such as a claim that counsel never moved for a directed verdict — can be dismissed without a hearing.
Why It Matters
This decision reinforces the high bar Kentucky defendants face in post-conviction proceedings. The opinion illustrates how courts apply the prejudice-first shortcut from Strickland: even where a performance question might otherwise require a hearing, courts may skip directly to prejudice and deny relief — and deny a hearing — when the record makes clear that no reasonable probability of a different outcome exists. Defense practitioners should note that challenging a strategic omission like failure to hire an expert requires more than showing the expert’s testimony would have been admissible; it requires demonstrating that the testimony would likely have overcome all other evidence of guilt.
The case also underscores the binding effect of direct-appeal rulings in collateral proceedings. Because the Kentucky Supreme Court had already upheld the joint trial and the admission of the Hibbett Sports evidence, those determinations foreclosed parallel ineffective-assistance theories on collateral review — a dynamic that limits the utility of RCr 11.42 motions as a vehicle to relitigate evidentiary rulings dressed up as attorney-error claims.