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Bowling v. Commonwealth3/21/2002
e police that he stopped briefly at the service station to buy cigarettes, but he changed his mind and drove off without going inside. As he was driving away, he saw a man run out of the service station, jump into an old green car, and drive away. While stopped at a red light, Harris was able to observe this man. While Harris could not identify the man, he was certain that it was not Bowling. According to Harris, these events occurred at approximately the same time that Jones's Chevron was robbed.
Harris was a convicted felon who resided at the time in Virginia. Defense counsel contacted Harris in Virginia and asked whether he would be willing to testify on Bowling's behalf. Harris indicated that he would not come voluntarily, but that he would honor a subpoena. Apparently, defense counsel began preparing a subpoena for Harris but never completed the task.
Bowling argues that defense counsel was deficient for failing to subpoena Harris as a witness under the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. KRS 421.230-270. In ruling on Bowling's RCr 11.42 motion, the trial court denied relief: "It is speculative as to whether or not [the KRS 421.2501 procedure would have been successful, and even if Mr. Harris' attendance had been procured, whether or not it would have affected the outcome . . . ."
KRS 421.250(1) requires that a motion be made with the trial court, in which a proceeding is pending, to certify that a witness is material and necessary to the proceeding. The party wishing to subpoena the witness has the burden of showing materiality. Dillinaham v. Commonwealth, Ky., 995 S.W.2d 377, 382 (1999). Once certification of materiality is obtained, it is presented to a court of record in which the witness is found. Id. The out-of-state court must then make an independent determination as to whether the witness is material and as to whether compelling the witness to attend would cause the witness undue hardship. Id. The ruling of the out-of-state court cannot be challenged in or reviewed by a court in the Commonwealth of Kentucky. Id.
The materiality of Harris's testimony - the out-of-state witness in this case - is far from apparent on its face. And, of course, there is no basis to consider how an out-of-state court would have ruled on the question of undue hardship. Therefore, we agree with the trial court that it is speculative as to whether Harris's attendance at Bowling's trial could have been secured under the Uniform Act. Consequently, whether Bowling was prejudiced by the failure to subpoena Harris cannot be determined. Just as there can be no ineffective assistance of counsel for failing to object to admissible evidence, Commonwealth v. Davis, Ky., 14 S.W.3d 9, 11 (1999), there can be no ineffective assistance for failing to attempt to introduce inadmissible evidence or in failing to subpoena a witness whose attendance at trial cannot be secured.
F. April Lunsford
April Lunsford testified for the defense and provided an alibi for Bowling for the time when the Hensley Spur Station crimes were committed. On cross-examination, the Commonwealth questioned her about a recent arrest, which was for operating a motor vehicle without a license. She was with Bowling's brother, John Bowling, when she was arrested. Additionally, the Commonwealth questioned her about a note found in her purse when she was arrested. The note read: "You are being watched by a .38 special, thank you, John Bowling."
Bowling argues that defense counsel should have learned the nature of Lunsford's arrest. Further, he argues that defense counsel should have moved for a continuance to question L
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