RENDERED: DECEMBER 10, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1041-MR

STEVEN PETTWAY APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 11-CR-003052-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Steven Pettway appeals from the Jefferson Circuit 

Court’s summary denial of his motion for Kentucky Rules of Criminal Procedure 

(RCr) 11.42 relief. We affirm as Pettway’s arguments are either foreclosed by the 

decisions in his prior appeals, do not contain the required specificity, are refuted by 

the record, and/or do not establish prejudice.
-2-

The relevant facts in the underlying criminal case are as follows:

Troya Sheckles was shot and killed in Shelby Park 

in Louisville around 7:30 p.m. on March 23, 2009. 

Several people saw the shooting, and they all gave 

largely consistent descriptions of the shooter as being a 

male in dark clothing with a bandana tied around his 

face.

Steven Pettway and codefendant Dejuan 

Hammond were eventually charged with Sheckles’s 

murder, as well as intimidating a participant in the legal 

process under [Kentucky Revised Statutes (KRS)]

524.040 and retaliating against a participant in the legal 

process under KRS 524.055.

The Commonwealth’s theory of the case was that 

Pettway killed Sheckles at Dejuan Hammond’s direction 

to prevent her from testifying in the upcoming murder 

trial of his younger brother, Lloyd Hammond. Sheckles 

had witnessed the killing of William Sawyers in her 

home in 2006 and had identified Lloyd Hammond as the 

killer. Pettway was friends with the Hammonds, and the 

then-sixteen-year-old Pettway looked up to the much 

older Dejuan Hammond as a sort of mentor. The 

Commonwealth’s evidence showed, among other things, 

that Pettway and Dejuan Hammond knew Sheckles was 

the essential witness for the Commonwealth in Lloyd 

Hammond’s upcoming murder trial and had stashed a 9-

mm pistol (the same kind used in Sheckles’s shooting) at 

a friend’s house about a month before the murder. There 

was also testimony about numerous statements made by 

Pettway following the murder admitting that he had shot 

Sheckles so that she could not testify against Lloyd 

Hammond.

The jury ultimately convicted Pettway of murder 

and intimidating a participant in the legal process (but 

found him not guilty of the retaliation charge) and 

recommended a 50-year prison sentence for murder and 
-3-

five-year sentence for the intimidation conviction to run 

consecutively. The trial court sentenced him to a total of 

55 years’ imprisonment in accordance with the jury’s 

recommendations.

Pettway v. Commonwealth, 470 S.W.3d 706, 707-08 (Ky. 2015) (Pettway I) 

(footnote omitted). 

In his direct appeal, Pettway was partially successful. The Court 

concluded, even though the issue was not preserved, that Pettway could not be 

properly convicted of intimidating a participant in the legal process under KRS 

524.040 for intentionally killing Sheckles. It reversed that conviction and five-year 

sentence. Id. at 708-10. 

However, the Kentucky Supreme Court declined to give Pettway any 

relief from his murder conviction based upon his argument that “delayed 

disclosures of discovery material by the Commonwealth constituted arbitrary state 

action prohibited by Section 2 of the Kentucky Constitution warranting dismissal 

of the charges against him.” Pettway I, 470 S.W.3d at 707. We discuss why the 

Kentucky Supreme Court declined to grant him relief on this issue as it is relevant 

to this RCr 11.42 appeal.

As Pettway’s argument at least implicitly 

concedes, he has no grounds on which to claim that the 

trial court’s actions regarding the discovery violations by 

the Commonwealth below were error. The court granted 

his motion for a mistrial as a result of the first violation. 

Similarly, the trial court acted well within its discretion 

in declining to dismiss with prejudice the charges against 
-4-

Pettway following the second delayed disclosure. And 

the trial court ordered appropriate relief by excluding the 

belatedly disclosed evidence (potentially subject to a 

missing evidence instruction) when Pettway, going 

against the advice of trial counsel to seek a continuance, 

chose to proceed to trial despite the delayed disclosure. 

He, therefore, received all the relief to which he was 

entitled under Criminal Rules 7.24 and 7.26 and has no 

cause to complain further. See RCr 7.24(9).

Nevertheless, Pettway claims this extraordinary 

remedy is justified to cure the prosecution’s allegedly 

arbitrary actions in inadvertently failing to timely turn 

over discovery materials (which, incidentally, have not 

been shown to contain any exculpatory evidence). 

Ironically, this would require the Court itself to act 

arbitrarily. Pettway has already received appropriate 

judicial remedies in the form of a mistrial and exclusion 

of evidence. To pile on [by granting him the relief to 

have this Court dismiss his indictment with prejudice to 

remedy the two discovery violations] would be nothing 

but arbitrary. And such action would raise significant 

separation-of-powers concerns. While we acknowledge 

the observation of Chief Justice Palmore that 

“[s]ometimes, as Holmes remarked, because the 

constable blundered the criminal must go free, that being 

the most effective method of helping the constable not to 

blunder the next time,” Reid v. Cowan, 502 S.W.2d 41, 

42 (Ky. 1973), this is not one of those times. There was 

no blunder that could not be appropriately addressed, as 

the trial court did here, under our rules of procedure. 

This claim has no merit.

Pettway I, 470 S.W.3d at 711-12.

After Pettway learned of another discovery violation, which came to 

light during the trial of his codefendant, Pettway filed a motion for a new trial. 

The relevant facts as to that discovery violation are as follows:
-5-

In a separate trial, Dejuan Hammond was also 

convicted of Sheckles’[s] murder. One of the witnesses 

who testified at [Pettway’s] trial was Dejuan Hammond’s 

girlfriend, Princess Bolin. Bolin had told police that she 

was at Shelby Park with a friend when Sheckles was 

killed and that she had seen [Pettway] commit the crime. 

When asked at [Pettway’s] trial to repeat what she had 

seen, Bolin balked. The incriminating assertion was then 

presented to the jury through the prior statement she had 

given to the police.

During the appeal of [Pettway’s] conviction to this 

Court, his attorney received notice from the prosecutors 

that Bolin had made a different, and previously 

undisclosed, pre-trial statement to police detective Roy 

Stalvey. The failure to make a more timely disclosure of 

Bolin’s other statement appears to have been inadvertent. 

It was uncovered during the subsequent trial of 

codefendant Dejuan Hammond.

In that statement, contrary to what was presented 

at [Pettway’s] trial, Bolin denied knowing anything about 

Sheckles’[s] murder. [Bolin] told Detective Stalvey that 

she was with Dejuan Hammond buying shoes at the 

Jefferson Mall when Sheckles was murdered. Although 

this belatedly-disclosed statement provides an alibi for 

Dejuan, it does not exonerate [Pettway]. Nevertheless, it 

would have been a useful impeachment tool for 

undermining the trial testimony that Bolin saw [Pettway]

shoot Sheckles. The Commonwealth conceded that 

[Pettway] should have received the report of the 

statement prior to his trial.

Pettway v. Commonwealth, No. 2016-SC-000392-TG, 2017 WL 2591813, at *1-2

(Ky. Jun. 15, 2017) (Pettway II) (unpublished) (footnotes omitted).
-6-

On appeal, the Kentucky Supreme Court explained its decision to 

decline to give Pettway relief as follows, quoting extensively from the trial court’s 

decision and agreeing with its assessment:

While the Court agrees this evidence may 

have provided [Pettway] with another avenue to 

impeach the statements of Princess Bolin regarding 

the crime, that statement only provided an alibi for 

Dejuan Hammond, and was not supported by other 

witnesses or information in the case. The newly 

discovered evidence contains information very 

remote from the issues related to [Pettway].

To any observer of [Pettway’s] trial, 

Princess Bolin was already a witness frustratingly 

rife with a plethora of contradictions. Kayonia 

Thomas’[s] testimony [which was to the effect that 

she saw Pettway and Hammond driving near 

Shelby Park at the time of the shooting] was not 

related to the investigative letter, and she could not 

realistically be impeached with one of Princess 

Bolin’s out of court statements. The Court not 

only finds that the new evidence here was not 

likely to change the outcome of the trial, but for 

the above reasons, would not have made any 

significant difference in the trial of this case. 

There was a substantial amount of information 

involved in this trial. Given the totality of the 

other evidence presented, as well as the already 

inconsistent nature of Bolin’s testimony, the Court 

does not find the information would have changed 

the outcome of the jury’s decision to convict 

[Pettway] on the one count of murder.

Trial Court’s Nov. 20, 2015, Order, pgs 5-7.

We agree with the trial court’s assessment. The 

substance of Bolin’s undisclosed statements provided 
-7-

Dejuan Hammond with an alibi for the shooting, but it 

did not exculpate [Pettway]. It would have aided 

[Pettway’s] effort to impeach Bolin’s other statement, but 

as the trial court noted, she had already been shown to be 

an uncooperative, contradictory, and inconsistent 

witness. Given the level of impeachment material 

already available to discredit Bolin, this new information 

would have been only marginally helpful.

Moreover, since Sheckles was apparently killed to 

prevent her from testifying against Lloyd Hammond, the 

credibility of Bolin’s initial disclaimer of any knowledge 

about the shooting is burdened by the appearance that she 

was falsely distancing herself from the crime to avoid a 

similar fate. The exculpatory effect of the statement 

would no doubt be blunted by the Commonwealth’s 

ability to point out Bolin’s incentive to deny knowledge 

of the murder.

In summary, we agree with the trial court that 

[Pettway] is not entitled to a new trial under the 

applicable standard for obtaining relief under RCr 10.02 

in that the new information was not “of such decisive 

value or force that it would with reasonable certainty” 

have changed the verdict, or “would probably change the 

result if a new trial should be granted.” Jennings [v. 

Commonwealth], 380 S.W.2d [284,] 285-86 [(Ky. 

1964)].

For similar reasons, [Pettway] is not entitled to 

relief under a Brady v. Maryland[, 373 U.S. 83, 83 S.Ct. 

1194, 410 L.Ed.2d 215 (1963),] analysis. The evidence 

satisfies the first two prongs of the Strickler v. Greene[, 

527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999),]

test because it was useful to discredit Bolin and was 

erroneously withheld; nevertheless, [Pettway] fails to 

satisfy the third prong of the inquiry as he was not 

substantially prejudiced by the Commonwealth’s failure 

to timely turn over the Bolin interview information. 
-8-

Goben [v. Commonwealth], 503 S.W.3d [890,] 914 [(Ky. 

2016)].

2017 WL 2591813, at *3-4.

In 2018, Pettway filed a motion to vacate, set aside, or correct his 

sentence pursuant to RCr 11.42, raising several issues.

1

 Pettway argued he was 

entitled to a new trial because the Commonwealth wrongfully withheld material 

exculpatory evidence. Pettway also argued he received ineffective assistance of 

counsel where counsel: (1) failed to investigate and present evidence of Pettway’s 

alibi defense at trial; (2) directed him not to testify at trial; (3) failed to obtain 

exculpatory discoverable evidence from the prosecution; and (4) failed to confront 

and impeach witness Dontez Hurt with his prior inconsistent statements. Pettway 

requested an evidentiary hearing and a new trial.

The trial court summarily denied Pettway’s motion and Pettway 

appealed. 

To be entitled to the extraordinary relief of RCr 11.42, Pettway must 

establish he was deprived of his constitutional right to counsel. Brown v. 

Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Under Strickland v. 

Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), 

Pettway must show his counsel’s performance was incompetent and prejudiced 

 

1 We only discuss the arguments below that Pettway continues to argue on appeal.
-9-

him because it fell below an objective standard of reasonableness and there is a 

reasonable probability that the result of his jury trial would have been different but 

for counsel’s errors. 

“A perfect trial is never required. What is required is a fair trial.” 

Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993). “[T]he question

should be absent counsel’s errors, would the factfinder have had a reasonable 

doubt respecting guilt?” Brown, 253 S.W.3d at 499. “[T]he threshold issue is not 

whether [appellant]’s attorney was inadequate; rather, it is whether he was so 

manifestly ineffective that defeat was snatched from the hands of probable 

victory.” Cherry v. Commonwealth, 545 S.W.3d 318, 323 (Ky.App. 2018)

(quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (bold 

emphasis added in Cherry)). “Counsel is constitutionally ineffective only if 

performance below professional standards caused the defendant to lose what he 

otherwise would probably have won.” Commonwealth v. Bussell, 226 S.W.3d 96, 

103 (Ky. 2007) (quoting Morrow, 977 F.2d at 229).

In making such a determination, we acknowledge that “a verdict or 

conclusion which has little evidentiary support is more likely to have been affected 

by counsel’s error than a verdict which is supported by substantial evidence.” 

Brown, 253 S.W.3d at 499-500. Conversely, a verdict with substantial support 

absent counsel’s errors would make it difficult for a defendant to satisfy “the 
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burden of showing that the decision reached would have been reasonably likely to 

be in his favor absent the errors.” Id. at 500.

“[T]o be entitled to relief under RCr 11.42, the movant must ‘state 

specifically the grounds on which the sentence is being challenged and the facts on 

which the movant relies in support of such grounds.’ RCr 11.42(2).” Roach v. 

Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). If this specificity requirement 

is not satisfied, summary dismissal is appropriate. Id.

RCr 11.42(5) only requires a hearing “[i]f the answer raises a material 

issue of fact that cannot be determined on the face of the record[.]” See Parrish v. 

Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008). “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). 

Accordingly, “[i]f the record refutes the claims of error, there is no 

need for an evidentiary hearing. A hearing is also unnecessary where the 

allegations, even if true, would not be sufficient to invalidate the conviction.” 

Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998) (citations omitted).

“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 
-11-

absence of such a hearing.” Haley v. Commonwealth, 586 S.W.3d 744, 751 

(Ky.App. 2019).

Pettway argues that he is entitled to a new trial based on discovery 

violations. However, relief on this argument is foreclosed based on law of the case 

given the legal rulings the Kentucky Supreme Court made in Pettway I and 

Pettway II.

In Pettway I, Pettway argued he was entitled to have his charges 

dismissed based on the delayed receipt of discovery on two matters. The Kentucky 

Supreme Court determined that Pettway received all the relief he was entitled to in 

Pettway I where the first delayed disclosure resulted in the granting of a mistrial 

and the second delayed disclosure resulted in the exclusion of the belatedly 

disclosed evidence from trial. 470 S.W.3d at 711-12. 

In Pettway II, Pettway argued he was entitled to a new trial because 

the Commonwealth denied him exculpatory evidence in violation of Brady by 

failing to produce Bolin’s first statement to police in which she denied seeing the 

shooting take place. The Kentucky Supreme Court determined that while this was 

a Brady violation, it was harmless. 2017 WL 2591813, at *4.

Under the law-of-the-case doctrine, we are bound by the prior 

decisions of the Kentucky Supreme Court in this case and “the legal questions thus 

determined by the appellate court will not be differently determined on a 
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subsequent appeal in the same case.” Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 

1982). As the Pettway I and Pettway II decisions “settled the matter[,]” as to 

whether discovery violations entitled Pettway to any relief, those resolutions are

conclusive and established the law of the case, so these claimed errors “cannot be 

relitigated.” Gossett v. Commonwealth, 441 S.W.2d 117, 119 (Ky. 1969).

Pettway argues he should have been granted an evidentiary hearing on 

his alibi defense as he raised an issue of fact that cannot be resolved from the 

record. We disagree.

Pettway failed to plead with specificity that the witnesses he named 

are available to be called, would be willing to testify, and to what they would 

testify. Besides naming his mother, brother, and girlfriend (none of them by name) 

and stating they would testify he was home on the evening of the murder, Pettway 

has provided no other specifics or other supporting evidence such as affidavits 

from these persons. Instead, it appears that Pettway is generally asserting what he 

hopes their testimony would be, without making any effort to establish if this is 

correct or not. This is insufficient specificity.

Additionally, in regard to each witness, record evidence suggested 

those witnesses would not provide an alibi and/or would be problematic if they did 

testify. As to Pettway’s brother, Eric Pettway’s testimony at trial highlights 

several potential problems with his possible testimony as an alibi witness. Eric 
-13-

testified he was Pettway’s “oldest brother;” Pettway only lived with him for about 

a month and a half in 2008; and Eric continued to live in Frankfort in 2009. 

During 2009, the year when the shooting took place, Eric testified he only saw 

Pettway twice, once in Frankfort and once in Louisville. Eric clarified that the first 

visit in 2009 was when Pettway “came down once with his brother.” 

This testimony indicates that Pettway has at least two brothers if not 

more. If Pettway was stating that Eric could act as an alibi witness, Eric’s 

testimony seems to refute this fact as according to Eric’s own testimony he did not 

live with Pettway and his mother, and had only seen Pettway twice in 2009, only 

once in Louisville. If Pettway is attempting to reference another brother as his 

alibi, Pettway has not been specific enough in identifying who this is. 

As to Pettway’s mother, Denise Pettway, as was discussed at trial in a 

bench conference during Pettway’s aunt’s testimony, Denise was schizophrenic.2 

As testified to by Pettway’s aunt, Pettway was unable to live with his mother all 

the time due to her “special problems” and in 2008 lived with his father, his oldest 

brother, the aunt’s mother, and then in 2009 was living with his mother part of the 

time and in a foster home part of the time. Therefore, there is nothing to clarify 

 

2 This is backed up by investigative reports, particularly that of Pettway’s grandmother, who the 

detective reported stated that Denise has schizophrenia, had been recently institutionalized for 

treatment when she did not take her medicine, and that Pettway had not been able to live with his 

mother because of her condition and was supposed to be living with a foster mother. While this 

report is hearsay, Pettway has not disputed that his mother has schizophrenia. 
-14-

whether Pettway was living with his mother at the time the shooting took place. If 

Pettway were living with his mother on the day of the shooting, it is unclear 

whether she would have been sufficiently stable at that time to accurately observe 

his presence; whether if she testified she would be sufficiently stable to testify 

well; her veracity and credibility could be questioned based on her condition; and 

there were additional indications that she would not be the best witness for him

based on the knowledge she had regarding Pettway’s illegal activities and 

relationship with Hammond.

3

In considering Pettway’s girlfriend’s possible testimony, given 

Pettway’s bald general assertions as to what she would testify to without him 

offering any evidentiary support such as an affidavit, we believe it is appropriate to 

consider evidence from the police investigative report in which Pettway’s 

girlfriend’s statements were recorded.

4 The contents of the report suggest that she

 

3

In the investigative report of the interview with Denise, there were further indications about her 

mental instability, but she also had a lot of information about Pettway’s relationship with 

Hammond, including Pettway’s selling drugs he got from Hammond, how Pettway would do 

things for Hammond in exchange for getting Pettway high, and that Pettway’s loyalty to 

Hammond was such that he “once took a drug charge for Doo Wop’s girlfriend . . . for cocaine.” 

While this information may not have been admissible, had Denise testified consistently with this 

report, it seems likely that Pettway would not have been painted in the best light. 

4 The Commonwealth attached investigative reports of Denise and Pettway’s girlfriend to its 

appellate brief. Pettway argues in his reply that these reports should not be considered because 

they were not part of the record. He is incorrect, they are located in the discovery Redweld that 

is contained in the record, just as the Commonwealth noted. While these reports are hearsay, 

Pettway does not dispute the accuracy of his mother’s and his girlfriend’s statements as 

contained therein or argue we should not consider them because they are inadmissible hearsay.
-15-

would not be a helpful witness for Pettway, much less establish the alibi he claims.

According to the summary of her statements, Pettway was supposed to be living 

with a foster mother but instead Pettway and the girlfriend lived together near but 

not with Pettway’s mother; this contradicts Pettway’s assertion that his mother, 

brother, and girlfriend were jointly home with him on the day of the shooting. 

Pettway’s girlfriend also stated that although she was with Pettway part of the day 

of the shooting, she was not with him between 4:00 p.m. and 9:00 p.m. This was 

significant as based on eyewitness testimony to the murder, it was believed to have 

taken place at around 7:30 p.m.

5

 

Given the lack of specificity and the problems with their potential 

testimony that we have identified, Pettway has failed to establish that his brother, 

mother, or girlfriend would provide him with an alibi or be effective witnesses. 

Furthermore, during the eight-day trial there was eyewitness testimony linking 

Pettway to the crime as well as extensive testimony that Pettway admitted to 

committing the murder. We believe that it is unlikely that alibi testimony, without 

 

5

In the interview with Pettway’s girlfriend, which was a summary of an audio recording the 

police made of it, she stated she and Pettway lived in a house to the right of his mother’s house 

that Hammond had rented for Pettway. She made statements about witnessing Hammond and 

Pettway selling crack many times and noted that Pettway usually carries a red bandana hanging 

out of his back pocket (this was significant as witnesses identified the shooter as wearing a red 

bandana over his face as a mask). She also stated she was with Pettway on the day of the 

shooting but last saw him at 3:00-4:00 p.m., when he left with Hammond; she next saw him at 

Hammond’s house after Hammond picked her up at around 9:00 p.m. Pettway’s girlfriend 

admitted to seeing Pettway with a handgun several times and stated she broke up with him when 

he pointed a handgun at her and threatened to kill her. 
-16-

any objective proof that Pettway was home during the murder, would be persuasive 

to the jury under these circumstances. Compare with Wilson v. Cowan, 578 F.2d 

166, 168 (6th Cir. 1978) (explaining “that under the facts of this case, counsel’s 

failure to call an alibi witness who was ready and willing to testify, when coupled 

with arguably less egregious errors, did deprive appellant of effective assistance of 

counsel.”). Therefore, Pettway cannot establish that failure to investigate or call 

his mother, brother, or girlfriend as witnesses would satisfy the prejudice prong of 

Strickland, especially given the strong evidence against him. 

Pettway argues he was denied the right to testify, the decision of 

whether or not to testify was his decision to make, and this argument requires an 

evidentiary hearing as it cannot be refuted by the record. While we agree that the 

decision as to whether to testify belongs to the defendant, we disagree that Pettway 

has established that there is a factual dispute on this issue that requires an 

evidentiary hearing. 

As is noted in Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 

2708, 97 L.Ed.2d 37 (1987), “it cannot be doubted that a defendant in a criminal 

case has the right to take the witness stand and to testify in his or her own 

defense.” The right of a defendant to testify on his own behalf is established by the 

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, 

Section 11 of the Kentucky Constitution, and KRS 421.225. Quarels v. 
-17-

Commonwealth, 142 S.W.3d 73, 79 (Ky. 2004); Crawley v. Commonwealth, 107 

S.W.3d 197, 199 (Ky. 2003). This right cannot be waived by counsel and any 

waiver by the defendant must be knowing and intelligent. Riley v. Commonwealth,

91 S.W.3d 560, 562 (Ky. 2002).

We agree with the Sixth Circuit’s analysis of this issue as set out in 

United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000), and Hodge v. 

Haeberlin, 579 F.3d 627, 639 (6th Cir. 2009), as it is consistent with the analysis 

of Kentucky’s then highest Court regarding the availability of a writ of coram

nobis in Kinder v. Commonwealth, 269 S.W.2d 212, 213-14 (Ky. 1954).6 

Webber explains that a defendant who wishes to testify despite 

counsel’s advice to the contrary must alert the court to his desire to testify or 

disagreement with counsel’s advice. Webber, 208 F.3d at 551. “When a defendant 

does not alert the trial court of a disagreement, waiver of the right to testify may be 

inferred from the defendant’s conduct.” Id.

 

6 This analysis has also been adopted by our Court in Baker v. Commonwealth, No. 2013-CA000256-MR, 2014 WL 2040163, at *3 (Ky.App. May 16, 2014) (unpublished). See also 

Robinson v. Commonwealth, No. 2013-CA-000509-MR, 2015 WL 3826210, at *3 (Ky.App. Jun. 

19, 2015) (unpublished) (referencing Webber for the presumption regarding waiver of the right 

to testify).
-18-

Hodge explains that in reviewing an ineffective assistance of counsel 

claim regarding the denial of the right to testify, the reviewing court presumes: (1) 

the defendant “waived his right to testify unless the record contains evidence 

indicating otherwise” and (2) “trial counsel adhered to the requirements of 

professional conduct and left the final decision about whether to testify with the 

client.” Hodge, 579 F.3d at 639. “[The defendant’s] present allegations that he 

wanted to testify and was prevented from doing so do not suffice to overcome the 

presumption that he assented to the tactical decision that he not testify.” Id.

Similarly, under the writ of coram nobis, relief did not lie for a 

defendant’s claim that counsel denied him the right to testify when counsel advised 

the defendant not to testify because the defendant was presumed to have acted on 

the advice of counsel. Kinder, 269 S.W.2d at 213-14. As explained therein, the 

Court proclaimed:

[W]e shall not permit the attempted use of this 

extraordinary writ to be perverted to allow an accused to 

act on the advice of his counsel, and take his chance 

before a jury, and then when convicted, claim that he was 

denied his constitutional right to testify. Should we 

recognize such a claim, then in every criminal case the 

accused could merely not testify and, after conviction, 

claim he did not know he had the right to testify, and 

apply to the court for a writ of coram nobis. We will not 

sanction such a procedure.

Id. at 214.
-19-

We presume Pettway was following the advice of defense counsel not 

to testify because he made no effort to alert the trial court to his wish to testify.

Pettway has presented nothing to counter the presumption that he chose not to 

testify. He is bound by his previous decision and does not get a “redo” because he 

is dissatisfied with the results of his trial.

Additionally, this claim lacks specificity because Pettway does not 

explain how counsel denied him of his right to testify. He ambiguously states that 

trial counsel directed him not to testify and that he wanted to testify and would 

have done so “had his counsel not told him he could not testify.” Pettway does not 

allege that he was unaware of his right to testify, told his counsel he wanted to 

testify but was told that this was counsel’s decision rather than his, or that counsel 

did something to prevent him from asking the trial court to let him testify. The 

evidence suggests that Pettway knew he had the right to testify based on him being 

present during jury selection when his counsel stated that Pettway may or may not 

take the stand. The evidence also suggests that he was willing to act against the 

advice of counsel when he believed the situation warranted it. See Pettway I, 470 

S.W.3d at 711 (explaining Pettway went against the advice of counsel in choosing 

to proceed to trial rather than seek a continuance due to a delayed discovery 

disclosure).
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As for what he wanted to testify about, Pettway only states that if he 

had testified, he would have been able to explain to the jury that he was not 

involved in the murder and “was at home on the day of the crime, with his mother, 

brother and girlfriend.” As we have already discussed, there is no reason to 

believe that Pettway’s mother, brother, and girlfriend would testify to this fact;

therefore it would be Pettway’s testimony alone available to establish he was 

home. 

Pettway also had a credibility problem which would not be aided if he 

took the stand and had been confronted with his admissions to other witnesses 

about committing the murder and his own problematic statements to the police 

when he was interviewed.

7

 Given these problems, and the substantial evidence 

which supported the jury’s finding that Pettway murdered Sheckles, Pettway’s

testifying that he was not involved would be unlikely to persuade the jury.

 

7 We acknowledge, again, that the statements relayed in these investigative reports are hearsay. 

However, at minimum, these statements could have been used to impeach Pettway’s potential 

testimony. 

In the first interview when confronted about being Sheckles’s shooter, Pettway denied 

knowing anything about her or a murder in Shelby Park, laughed when he denied shooting her, 

said he had not heard about it, but then contradicted his lack of knowledge when he said he had 

heard the shooter was wearing a mask and no one knew who he was. According to the detective, 

when he asked Pettway where he was the day of the murder “he sarcastically said that he could 

not remember. He then laughed.” When the detective told Pettway that Hammond was locked 

up and would be telling on him about Pettway’s committing the murder, the detective noted 

Pettway said “[Hammond’s] my brother and he won’t say sh*t.”
-21-

Additionally, if his counsel believed that by testifying Pettway would 

be lying, his counsel would have faced “trying to balance the client’s constitutional 

rights [to testify, to counsel, and to a fair trial] and the duty to keep the client’s 

confidences with the duty of candor to the court.” Brown v. Commonwealth, 226 

S.W.3d 74, 78 (Ky. 2007). “When a lawyer determines that her client is about to 

offer false testimony, all sources agree that the lawyer should first seek to persuade 

the client that such evidence should not be offered.” Id. at 79. “There is no 

constitutional or permissible right of a defendant to testify falsely. When defense 

counsel attempts to persuade a defendant to testify truthfully, counsel is not 

depriving the defendant of his right to counsel nor the right to testify truthfully.” 

Id. at 83 (quoting Commonwealth v. Mitchell, 438 Mass. 535, 551, 781 N.E.2d 

1237, 1250 (2003)). If this is what occurred and counsel’s discussion with Pettway 

resulted in Pettway’s deciding not to testify, this would be an appropriate action 

rather than ineffective assistance of counsel, as counsel would have avoided the 

various pitfalls present in such a situation as set out in Brown. Id. at 79-85.

Pettway argues that his defense counsel was ineffective for failing to 

discover that the Commonwealth was committing discovery violations and not 

obtaining such information earlier. To the extent that Pettway attempts to recast 

the arguments he made regarding discovery delays in his direct appeal, Pettway I, 

and the Brady violation regarding the failure to disclose Bolin’s previous statement 
-22-

at all in the appeal of the denial of the motion for new trial, Pettway II, into a claim 

of ineffective assistance of counsel, because there was no prejudice as established 

in his prior appeals, he cannot receive relief for them now. This is because “[t]he 

‘reasonable probability’ standard of Strickland is the same ‘reasonable probability’

standard used to prove a Brady violation, viz., a ‘probability sufficient to 

undermine confidence in the outcome.’” Bussell, 226 S.W.3d at 103 (quoting 

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). 

While we understand Pettway’s frustration with the outcome of those 

proceedings, Pettway cannot have another bite at the apple where the Kentucky 

Supreme Court, while acknowledging the withholding of this material was in error, 

determined he either received appropriate relief or the error was harmless. 

Therefore, while we can consider whether Pettway’s counsel was ineffective 

because counsel should have known that this evidence was being withheld and 

failed to act on such knowledge to discover this omitted material, even if Pettway’s

counsel erred, the error cannot satisfy the second prong of Strickland where any 

error was not prejudicial.

Pettway argues that his counsel was ineffective for never impeaching 

Hurt with inconsistencies from his prior statement to police and states he was 

prejudiced because “[i]f trial counsel would have effectively cross-examined Mr. 
-23-

Hurt, his testimony, credibility, and identification of Steven Pettway would have 

been destroyed.” We disagree.

Pettway states that Hurt told the jury he was able to identify Pettway 

because his mask came off during the incident, and Pettway pointed the gun at 

Hurt, looked him in the face, and then pointed back at Sheckles. Pettway claims 

this testimony was inconsistent with Hurt’s prior statement in which he said the 

shooter had a mask on, never mentioned it coming off, said the shooter had 

dreadlocks, focused the entire time on Sheckles, and never pointed the gun at Hurt. 

Typically, the method of how to cross-examine a witness is a tactical 

decision which will not be second-guessed in an RCr 11.42 proceeding. 

Hodge v. Commonwealth, 116 S.W.3d 463, 473 (Ky. 2003), overruled on other 

grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). 

Furthermore, the video record from the trial shows that counsel did vigorously 

cross-examine Hurt and repeatedly had him read his prior inconsistent statements.8 

This included inconsistencies about what the shooter looked like as presented at 

trial when compared with his previous description including that the shooter had 

“dreads” or braids, was about his size (Hurt was far taller than Pettway, as 

 

8 Pettway failed to cite to where in the record Hurt’s previous statements could be found despite 

the requirement in Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v) which states that the 

argument must have “ample supportive references to the record and citations of authority 

pertinent to each issue of law[.]” The only portions of Hurt’s prior statement that we have found 

are those which Hurt read during cross-examination at trial, as part of Pettway’s counsel’s 

impeachment with prior inconsistent statements.
-24-

established by Pettway’s family members testifying that at the time of the shooting 

he was a small, skinny guy, only reaching the shoulder of his five-foot-six-inch tall 

aunt, and always had short hair), and having his face concealed by a bandana. 

Counsel also had Hurt read his prior statements that the shooter had never aimed at 

him. Therefore, everything Pettway complains was insufficiently raised in crossexamination was in fact raised, thereby refuting his claim. 

Additionally, Hurt was able to reconcile some of his statements on 

redirect. He explained that while in his initial interview he reported the shooter 

had braids or dreads, he did not actually see braids or dreads, but because the 

sweatshirt hood that the shooter was wearing puffed out, he assumed that meant 

the shooter had braids or dreads. He demonstrated with a tissue that what he meant 

by the shooter’s bandana coming down was that the shooter’s face was uncovered

to just below his top lip, but that it was still on the shooter’s face. Therefore, 

coming down did not mean coming off. Hurt also clarified that when he was 

interviewed right after the shooter appeared that he was still under shock from 

seeing Sheckles shot and the unsuccessful attempts to save her through CPR; he 

had passed out from this event and he was not as coherent or clear about what had 

happened at the time as he was later.

Although Hurt agreed he had not previously identified Pettway as the 

shooter prior to trial, he said this was because he did not know Pettway at the time 
-25-

of the shooting but put it all together when he saw him. While Pettway’s counsel 

diligently tried to discredit Hurt’s identification of Pettway as the shooter, 

Hurt remained steadfast on this key point. 

As noted in Stanford, 854 S.W.2d at 748, “[a]fter every trial, win or 

lose, candid lawyers can think of ways they might have done better. A perfect trial 

is never required. What is required is a fair trial.” While, perhaps, an even better 

cross-examination of Hurt could have taken place, Pettway was not deprived of his 

right to counsel from the skilled cross-examination that did take place. 

Additionally, there is no showing of prejudice as there is no reason to believe that a 

better cross-examination would have resulted in Hurt stating he was mistaken in 

his identification of Pettway, or in the jury disbelieving him. Therefore, a 

summary denial on this issue was appropriate.

In summation, we are confident that there are no material issues of 

fact raised by adequate allegations that cannot be conclusively resolved by an 

examination of the record. Additionally, we believe that Pettway was not 

prejudiced in any event. See Moore v. Commonwealth, 983 S.W.2d 479, 484 (Ky. 

1998) (discussing how “in light of all of the evidence presented at trial,” the jury 

would have to disbelieve several witnesses and, therefore, the Court believed that a 

failure to impeach one witness’s testimony and a failure to present testimony from 

another witness “did not alter the entire evidentiary picture in [a]ppellant’s trial.”). 
-26-

Therefore, an evidentiary hearing was not required, and the trial court acted 

appropriately. 

Accordingly, we affirm the Jefferson Circuit Court’s summary denial 

of Pettway’s motion for RCr 11.42 relief.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Michael Lawrence Goodwin

Louisville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

James Coleman Shackelford

Assistant Attorney General

Frankfort, Kentucky