RENDERED: AUGUST 12, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0777-MR

WILLIAM TERRY JAMISON APPELLANT 

v. 

APPEAL FROM FULTON CIRCUIT COURT

HONORABLE TIMOTHY A. LANGFORD, JUDGE

ACTION NO. 16-CR-00113

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

REVERSING AND 

REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.

COMBS, JUDGE: Appellant, William Terry Jamison, appeals from an order of 

the Fulton Circuit Court denying his RCr1 11.42 motion following an evidentiary 

hearing. After our review, we reverse and remand for a new trial.

1 Kentucky Rules of Criminal Procedure. 
-2-

The underlying facts are summarized in the direct appeal, Jamison v. 

Commonwealth, No. 2017-SC-000622-MR, 2019 WL 1172971, at *1 (Ky. Feb. 14, 

2019). Because Jamison received a sentence of 20 years, his direct appeal was 

heard by the Kentucky Supreme Court, which affirmed his conviction. The 

Supreme Court recited as follows:

In late September 2016, Jamison was driving on a 

highway when Mark Williams drove up on his bumper 

chasing him at speeds over 80 to 90 miles per hour. 

Jamison immediately reported the incident to the Lake 

County, Tennessee, Sheriff’s Department. Even before 

the incident, the Jamison and Williams’ [sic] families did 

not get along. On October 1, 2016, Jamison shot and 

killed Williams when Williams drove up on a tract of 

farmland where Jamison was working in Fulton County, 

Kentucky. No one witnessed the shooting. Jamison 

called 911 and reported “a guy [had] come up to kill 

[him].” When local law enforcement arrived, Jamison 

stated that “Mark Williams pulled in behind me, raised 

his hand with a piece of metal and said he was going to 

kill me. He’s down here under his truck sir.” After 

seeing Williams’ body, Deputy Thomas read Jamison his 

Miranda[2]rights and asked whether he would like to 

speak with officers. Jamison invoked his right to remain 

silent until he had spoken with an attorney. Deputy 

Thomas then handcuffed Jamison and took him to the 

Hickman Police Department.

Jamison was subsequently tried by a Fulton Circuit 

Court jury. The jury was instructed on murder, firstdegree manslaughter, second-degree manslaughter, 

reckless homicide, and the self-protection statute, KRS[3]

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Kentucky Revised Statutes.
-3-

503.050, respectively. Jamison was convicted of murder, 

and the trial court imposed a punishment of twenty years’

imprisonment.

On November 20, 2019, Jamison filed a motion to vacate judgment 

under RCr 11.42. Jamison explained that “there were no issues of fact as to 

whether [he] shot and killed the victim. . . . The only issue at trial was whether 

[Jamison] appropriately exercised his right of self-protection.” Jamison argued

that trial counsel’s actions and inactions constituted ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), as adopted in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). 

Jamison has alleged numerous bases of deficient performance by 

counsel. He argued that trial counsel’s performance was deficient in not objecting 

to references made by the prosecutor and witnesses to Jamison’s exercise of his 

Fifth Amendment right not to make a statement at the time of his arrest. He also 

argued that trial counsel’s performance was deficient because he raised that very

issue himself in opening statement, again on cross-examination, and on direct 

examination as well. 

Jamison argued that defense counsel’s performance was deficient in 

failing to object to and in not requesting a curative instruction regarding the 

prosecution’s misstatement to the jury regarding the burden of proof as it pertains 

to self-protection. 
-4-

Jamison also contended that trial counsel’s performance was deficient 

with respect to the testimony of certain state-of-mind witnesses; and in not 

investigating, calling, or contacting potential character witnesses who would have 

testified to the victim’s reputation for violent and threating actions -- or who would 

have testified to Jamison’s reputation for truthfulness or peacefulness. In addition, 

Jamison argued that trial counsel was deficient in failing to object to and to request 

a curative instruction regarding inadmissible opinion and hearsay testimony from 

the victim’s brother, which trial counsel had elicited, and upon which the 

prosecution relied in final argument. 

Jamison also asserted that trial counsel was deficient in failing to 

object to or to request a curative instruction regarding a statement that the 

prosecutor made in closing argument about his personal belief. Finally, Jamison 

argued that trial counsel was deficient for failing to tender an instruction on firstdegree manslaughter.

On September 21, 2020, the circuit court conducted an evidentiary 

hearing on the RCr 11.42 motion. On June 28, 2021, the court entered findings of 

fact, conclusions of law (FFCL), and order denying Jamison’s motion which we 

discuss in our analysis below. 
-5-

On July 1, 2021, Jamison filed a notice of appeal to this Court. We 

have clear precedential guidelines governing our review of matters brought 

pursuant to RCr 11.42. 

Claims of ineffective assistance of counsel are evaluated 

under the two-part standard of Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), adopted by this Court in Gall v.

Commonwealth, 702 S.W.2d 37 (1985).

Strickland first requires that a defendant “must show that 

counsel’s performance was deficient.” 466 U.S. at 687, 

104 S. Ct. 2052. This is done by “showing that counsel 

made errors so serious that counsel was not functioning 

as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment,” id. or “that counsel’s representation fell 

below an objective standard of reasonableness.” Id. at 

688, 104 S. Ct. 2052. But this review is “highly 

deferential” to trial counsel, and thus a “court must 

indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional 

assistance; that is, the defendant must overcome 

the presumption that, under the circumstances, the 

challenged action might be considered sound trial

strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation 

marks omitted). A defendant is not guaranteed errorless 

counsel or counsel that can be judged ineffective only by 

hindsight, but rather counsel rendering reasonably 

effective assistance at the time of trial. Id. . . . .

Next, the defendant “must show that the deficient 

performance prejudiced the defense.” Strickland, 466 

U.S. at 687, 104 S. Ct. 2052. “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. To make this showing, “[t]he defendant 

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 
-6-

proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694, 104 S. Ct. 2052.

A reviewing court must consider the totality of the 

evidence before the jury and assess the overall 

performance of counsel throughout the case to determine 

whether the specifically complained-of acts or omissions 

are prejudicial and overcome the presumption that 

counsel rendered reasonable professional 

assistance. Id. at 695, 104 S. Ct. 2052 . . . .

Finally, “[u]nless a defendant makes both showings, it 

cannot be said that the conviction . . . resulted from a 

breakdown in the adversary process that renders the 

result unreliable.” Strickland 466 U.S. at 687, 104 S. Ct. 

2052.

Commonwealth v. McKee, 486 S.W.3d 861, 867 (Ky. 2016).

Where, as here, an evidentiary hearing is held on a RCr 11.42 motion, 

we review the trial court’s factual findings under the clearly erroneous standard. 

CR4 52.01. “Findings of fact are clearly erroneous if they are not supported by 

substantial evidence. Even though claims of ineffective assistance of counsel are 

subject to de novo review, a reviewing court should defer to the determination of 

facts made by the trial judge.” Logan v. Commonwealth, 446 S.W.3d 655, 658-59 

(Ky. App. 2014) (citations omitted).

First, we consider and dispose of Jamison’s arguments at pages 23-24 

of Appellant’s brief captioned, “G. Other Prosecutorial Misconduct” and “H. Lack 

4 Kentucky Rules of Civil Procedure.
-7-

of Request for First-Degree Manslaughter Jury Charge[.]” We note that they are 

not preserved for our review. Jamison states that the trial court did not address 

either of these issues in its findings. RCr 11.42(6) provides as follows:

At the conclusion of the hearing or hearings, the court 

shall make findings determinative of the material issues 

of fact and enter a final order accordingly. If it appears 

that the movant is entitled to relief, the court shall vacate 

the judgment and discharge, resentence, or grant him or 

her a new trial, or correct the sentence as may be 

appropriate. A final order shall not be reversed or 

remanded because of the failure of the court to make 

a finding of fact on an issue essential to the order 

unless such failure is brought to the attention of the 

court by a written request for a finding on that issue 

or by a motion pursuant to Civil Rule 52.02.

(Emphasis added.) Jamison did not make a written request or motion for findings 

on these issues as required by the rule. Accordingly, we may not review them.

We now turn to Jamison’s first argument found at pages 16-17 of 

Appellant’s brief captioned, “B. Fifth Amendment violations[.]” Jamison contends 

that the prosecutor made statements or elicited testimony from witnesses about 

Jamison’s refusal to give a statement at the time of his arrest. Further, he notes 

that his trial counsel not only failed to object to this misconduct, but he

compounded the error by commenting upon it himself. 

In its FFCL and order, the circuit court determined that:

While [Jamison] may have intelligently invoked his right 

to speak to a lawyer, [he] was very cooperative with the 

sheriff’s deputies. The defendant himself called to report 
-8-

the incident and clearly cooperated with the authorities in 

every respect. This set the ability of the defense trial 

counsel to argue that they were being completely 

transparent with the jury. 

(Appendix “A” to Appellant’s brief at p. 10.)

Jamison argues that the circuit court’s finding -- “that the failure to 

object allowed trial counsel to be ‘completely transparent with the jury’” -- is 

unsupported in the record as defense counsel did not state that this was his strategy. 

Appellant’s brief at p. 16. However, in its review of the direct appeal, the Supreme 

Court addressed this issue and held that the failure to object was indeed trial 

counsel’s strategy:

Before trial, defense counsel became worried 

about what the jury might think if it learned 

that Jamison did not give a statement to police. . . . When 

the trial court asked if defense counsel wanted an 

admonition if the issue arose, defense counsel stated, “I 

think it’s in my client’s best interest to [let the jury know 

about Jamison not giving a statement].”

Jamison, 2019 WL 1172971, at *3. On direct appeal, Jamison sought palpable 

error review. The Commonwealth argued that Jamison had waived5the issue. Our 

Supreme Court agreed, explaining as follows:

Jamison’s defense counsel clearly knew of his client’s 

Fifth Amendment rights and determined that his strategy 

at trial was to acknowledge Jamison’s constitutional right 

5 Waived or invited errors which reflect the knowing relinquishment of a right are not subject to 

appellate review. Mullins v. Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011). 
-9-

to not give a statement to police. Regardless of our 

thoughts concerning this strategy, Jamison’s defense 

counsel knew of the curable trial defect -- Jamison’s right 

to silence -- and deliberately chose not to object each 

time the prosecution raised the issue. Therefore, the 

issue was waived.

Jamison, 2019 WL 1172971, at *4-5. Therefore, this issue is beyond the scope of 

our review since the Supreme Court has addressed it. 

With regard to this highly disturbing course of conduct by trial 

counsel, two separate concurring opinions follow this majority opinion. They are 

wholly devoted to discussing the “ridiculousness” of any determination that we 

might be precluded from declaring counsel’s conduct on this issue to be anything 

other than prejudicial deficiency. 

There is no doubt that commenting on a defendant’s right to remain 

silent is forbidden and that it is of constitutional magnitude. However, the 

Supreme Court clearly and directly addressed the issue, agreeing with the trial 

court that counsel’s election to maintain silence was strategic, deliberate, and 

sound -- thus essentially waiving the issue. Two dissenting opinions on this very 

matter followed the Supreme Court’s Opinion on direct appeal. 

Out of an abundance of caution to comply with the mandate that the 

Court of Appeals is bound by the authority of the Supreme Court (as set forth at 

SCR 1.030(8)(a)), this opinion has declined to elaborate further. It has done so 

despite extreme reservation about the “soundness” of the alleged strategy, a 
-10-

“strategy” that has succeeded in camouflaging what the members of this panel all 

perceive to be a prejudicial deficiency. However, arguably the Supreme Court 

Opinion has precluded our consideration of the matter.

In granting the RCr 11.42 relief sought by Jamison, this portion of the 

majority opinion has elected to rely on other error as discussed below about which 

there can be no allegation of waiver or preclusive effect of the Supreme Court 

Opinion.

Jamison’s next argument at pages 17-18 of Appellant’s brief is

captioned, “C. Burden of Proof Regarding Self-Defense[.]” Jamison charges that

allowing the prosecutor to misstate to the jury (both in opening and in closing

argument) that Jamison had the burden of proving self-defense -- without objection

or request for curative instruction -- was egregious and flagrant error. 

However, this issue was also addressed by the Supreme Court on

direct appeal. Jamison had argued that the prosecution’s actions amounted to

prosecutorial misconduct warranting reversal, and the Supreme Court analyzed the 

issue as follows:

Defense counsel did not object to any of the statements 

Jamison alleges constituted prosecutorial misconduct. 

Therefore, the misconduct must have been flagrant to 

warrant reversal. Four factors are used to determine 

whether misconduct is flagrant: “(1) whether the 

remarks tended to mislead the jury or to prejudice the 

accused; (2) whether they were isolated or extensive; (3) 

whether they were deliberately or accidentally placed 
-11-

before the jury; and (4) the strength of the evidence 

against the accused.”

Jamison, 2019 WL 1172971, at *2 (citing Bowling v. Commonwealth, 553 S.W.3d

231, 243 (Ky. 2018)). The Supreme Court concluded that the prosecutor’s 

misstatement was not flagrant in light of the totality of the proceedings:

Jamison contends, and the Commonwealth 

acknowledges, that during closing the prosecutor 

misstated the law regarding the level of proof needed for 

self-defense. 

. . . 

Although the prosecutor’s statement here was 

misleading, that factor is not dispositive to our analysis.

We must also consider that this single comment

by the prosecution was extremely isolated. It is critical 

to note that the actual instructions provided to the jury 

during deliberations contained a proper recitation of the 

relevant law concerning self-protection. In fact, after 

reading the instructions to the jury, the trial judge urged 

the jury to read them on their own once in the jury room. 

Also, after the misstatement of the law by the prosecutor, 

he subsequently picked up the correct instructions and reread them to the jury on his own. As such, it strains 

credulity to claim that the jury was influenced by the 

prosecutor’s brief misstatement.

Third, the misstatement of law was not deliberately 

placed in front of the jury. As previously discussed, the 

prosecutor misspoke during closing argument. Nothing 

from the record indicates that the prosecutor intended to 

mislead the jury.

Jamison, 2019 WL 1172971, at *2-3 (emphases added). 
-12-

Jamison argues that “[t]he Kentucky Supreme Court opinion only

discovered one such statement in the closing argument, and ultimately found it to

be an ‘isolated,’ ‘single comment.’” He continues: “because the misstatement also

occurred in the prosecution’s opening statement, it was not in fact an ‘isolated’ or

‘single comment,’ and likely resulted in the jury assuming this to be the law

throughout the trial.” Jamison explains that in its FFCL and order, the circuit court

addressed the issue “by simply citing some of the language in the Kentucky

Supreme Court opinion which as stated previously, failed to appreciate that two

statements were made.” 

From our review, it is not apparent that Jamison actually argued on

direct appeal that the prosecution misstated the burden of proof both in opening

and in closing statements. Regardless, Jamison’s argument selectively ignores

those portions of the Supreme Court’s analysis -- which the circuit court

incorporated into its FFCL and order -- that are unfavorable to him. We are not at

liberty to re-visit or alter the reasoning of the Supreme Court.

Jamison’s third argument beginning at page 18 of his brief is 

captioned, “D. Self-Defense/Decedent’s Character for Threatening and/or Violent 

Behavior[.]” 

“In self-defense cases, fear by the defendant of the 

victim is an element of the defense and can be proved 

by evidence of violent acts of the victim, threats by the 

victim, and even hearsay statements about such 
-13-

threats, provided that the defendant knew of such 

acts, threats, or statements at the time of the 

encounter.” Robert G. Lawson, The Kentucky Evidence

Law Handbook, § 2.15[4][d] (4th ed. 2003). Such 

evidence is admissible because it is not offered to prove 

the victim’s character or to show action in conformity 

therewith, but to prove the defendant’s state of mind --

his fear of the victim -- at the time he acted in selfdefense. Saylor v. Commonwealth, 144 S.W.3d 812, 816 

(Ky.2004).

Ordway v. Commonwealth, 391 S.W.3d 762, 779 (Ky. 2013) (emphases added). 

This concept enjoys a sacrosanct position in our jurisprudence. “There is no 

controversy about this important and ancient principle that has been consistently 

observed in our case law.” Id. at 779 n.9. 

Jamison identifies numerous state-of-mind witnesses who should have 

been called to testify at trial. He asserts that these witnesses would have testified 

about Williams’s threatening behavior and that they had made Jamison aware of 

the danger to him prior to the shooting. Furthermore, he notes that although his

trial counsel knew about these witnesses before trial, none was called other than 

Walter Goodman -- and the jury never heard Goodman’s testimony about an 

incident where Williams threated to “whip his ass.” 

We have reviewed the Supreme Court’s holding with respect to state 

of mind on the direct appeal. The Court explained that the trial court sustained 

objections to the testimony of three witnesses who, according to Jamison, should 

have been allowed to testify regarding state of mind. The Supreme Court only 
-14-

considered the claim of error as to one witness -- a deputy sheriff (Bryan Bargery) 

-- because Jamison had only raised claims of error as to two of the witnesses in his 

brief, one of which the Court considered as waived. 

The deputy sheriff would have testified that Jamison had related 

information to him about the driving incident days before the shooting -- when 

Williams drove up on Jamison’s bumper chasing him at 80-90 miles per hour. The 

Commonwealth had objected on hearsay grounds. The trial court sustained the 

objection, but it allowed defense counsel to recall the deputy after Jamison 

testified. 

On direct appeal, the Supreme Court held that it was an abuse of 

discretion for the trial court to sustain the objection to the sheriff’s testimony 

because it would have been offered to prove Jamison’s state of mind -- his fear of 

Williams -- prior to the shooting. Nonetheless, the Supreme Court held that the 

error was harmless because Jamison had testified about the driving incident 

himself, and the sheriff’s testimony would merely have been cumulative. 

Furthermore, defense trial counsel made no effort to recall the deputy. Thus, as to 

his testimony alone, the Supreme Court found that any error was “waived or 

harmless.” Jamison, 2019 WL 1172971, at *6.

Walter Goodman was one of the other three witnesses. He was not

allowed to testify at trial about an incident in which Williams had threatened him 
-15-

(Goodman). It appears that issue was waived; therefore, the Supreme Court did 

not address it. 

The crux of our inquiry at this juncture is an analysis of other 

witnesses who were never called at trial and whose purported relevance to the case 

was never reviewed by the Supreme Court on the direct appeal.

Numerous potential witnesses were identified -- whose testimony 

would have related to the critical issue of Jamison’s defense of self-defense by way 

of establishing state of mind. The proposed testimony of these state-of-mind 

witnesses is summarized in Jamison’s Statement of the Case (Appellant’s brief at

pp. 4-8). We do not repeat it all here. 

Rob Shumate

Among them, Rob Shumate testified at the RCr 11.42 hearing that he 

had run into Jamison at a restaurant prior to the shooting and that he told Jamison 

about a conversation that he (Shumate) had had with Mark Williams; i.e., that 

Williams said that the next time he saw Jamison, he was going to beat the living 

sense out of him. (Video Record (VR) 9/21/20 1:26:20.) In his affidavit, Shumate 

stated that he was visiting Williams at his home and that Williams said he was 

going to whip Jamison’s ass: “show him who was boss . . . and beat him 

unconscious.” Shumate testified that this was approximately six weeks to two 

months before the shooting. 
-16-

In its FFCL and order, the circuit court found that:

Despite post trial counsel’s exhaustive efforts to 

find witnesses who could testify and establish that the 

victim had a reputation for violence, they were unable to 

produce even one single witness to testify that the victim, 

Mark Williams, had committed any violent act. Trial 

counsel and the trial investigator also were unable to 

produce or present any witnesses that could testify to any 

violent acts of the victim. The defendant’s post trial 

counsel at the 11.42 hearing called several witnesses, 

including, David Lusk, Neil Botts, Van Cole, Charles 

Archie, B.J. Stanley, Walt Goodman and Bill Curlin.

Each of these witnesses testified in regard to specific 

acts or threats that the victim made to them in 

specific instances. “A threat to kill or injury [sic] 

someone which is specifically directed at some individual 

other than the deceased is inadmissible, as it shows only 

a special malice resulting from a transaction with which 

the deceased had no connection.[”] Driver v. 

Commonwealth 361 S.W.3d 877, 885-86 (Ky. 2012)][.] 

None of these witnesses called at the 11.42 hearing 

established that the victim was the initial aggressor. . . . 

The defense post trial counsel’s expert, [retired 

Circuit Court Judge,] Hon. David Jernigan, testified at 

the 11.42 hearing, after thorough review of the record, 

that none of the witnesses for the defense were [sic] able 

to relate a single incident of the victim committing a 

violent act against another person.[6]

Defense counsel was aware of this prior to trial 

and wisely decided not to try to put the victim’s 

character into evidence. Defense counsel, who has 

6 The circuit court asked Judge Jernigan whether he had seen anything in the affidavits 

accompanying the RCr 11.42 motion indicating that Williams committed an act of violence 

against another person. Judge Jernigan testified that “it was mostly in terms of being a bully, or 

threatening, or threatening acts.” VR 10/12/20 3:14:13. 
-17-

practiced for many years, knew that any attempt to try 

and prove this directly regarding victim’s character 

would play into the hand of the Commonwealth to be 

able to exploit this inability to show the victim had ever 

been the initial aggressor . . . .

(Appendix “A” to Appellant’s brief at pp. 2-3) (emphases added). 

In addition to a rather excessive deference to trial counsel’s presumed 

trial strategy, the circuit court misperceived the issue before it by confusing 

admissible state of mind evidence (which was crucial to Jamison’s defense) as an 

attempt to put the victim’s character into evidence. 

The circuit court relied upon Driver, 361 S.W.3d 877. However, we 

are persuaded that Driver is wholly inapposite to the case before us. 

Driver involved the admissibility of evidence of prior bad acts 

committed by the defendant, who was convicted of the first-degree assault of his 

wife. On appeal, the issue was whether trial court erred in admitting KRE7 404(b) 

prior bad act evidence of Driver’s previous violence against both his wife (the 

victim) and his ex-wife. On discretionary review, the Supreme Court explained 

that KRE 404(b) standards are different for a victim versus a third party. The 

Court held that admission of Driver’s prior acts of violence against his ex-wife was 

error because they were remote in time and because a “threat to kill or injure 

someone which is specifically directed at some individual other than the deceased 

7 Kentucky Rules of Evidence.
-18-

is inadmissible, as it shows only a special malice resulting from a transaction with 

which the deceased had no connection.” Id. at 886. Thus, Driver is inapplicable 

because the threat in the case before us was directed at Jamison himself -- not 

against a third party.

Mike Hopper and the Victim’s Father, Garland Williams

In addition, the circuit court made an erroneous finding of fact and 

misperceived the issue before it with respect to trial counsel’s failure to call either

Mike Hopper or the victim’s father to testify at trial. The court explained that:

The post trial counsel produced at the 11:42 [sic] 

hearing a witness, Mike Hopper, who testified in regard 

to a statement made by the victim’s father following the 

death of the victim. The statement was apparently made 

by the victim’s father at the local construction business 

where Mr. Hopper worked. Mr. Hopper, who was from 

Lake County, the home county of the defendant, knew 

both the victim, victim’s father and family, and the 

defendant. Hopper stated that he thought it was an 

unusual statement for a victim’s father to have made and 

that he had related it to the investigator for defendant’s 

trial counsel prior to trial. His statement were words in 

effect that the victim’s father wished he had told the 

victim not to go around the defendant or confront the 

defendant because the defendant would shoot or whip 

the victim. Apparently, the victim’s father related he 

even thought about trying to intercept the victim on the 

day of the shooting. This revelation to the Court was 

very concerning to the Court in that it appeared to be 

evidence that could have been used to help the 

defendant at trial. The defendant’s trial counsel 

during his 11.42 testimony stated that he knew about 

the statement made by the victim’s father after the 

shooting. However, this Court’s analysis did not need 
-19-

to be thought about so long since the answer is very 

plain, Mr. Null is a seasoned trial counsel. The 

victim’s father was not called to testify by defendant’s 

post trial counsel, and again that decision is obvious to 

the Court.

(Appendix “A” to Appellant’s brief at pp. 7-8) (bold-face emphases added). 

Also incorrect is the trial court’s finding that Hopper’s statement 

“were words in effect that the victim’s father wished he had told the victim not to 

go around the defendant or confront the defendant because the defendant would 

shoot or whip the victim.” On the contrary, it was Williams who stated that he 

was going to “whip Jamison’s ass.” Apparently, both the court and “the seasoned 

trial counsel” misperceived a critical matter of fact; nevertheless, the court 

correctly and duly noted its potential usefulness to defendant in establishing his 

claim of self-defense.

Jamison explains that the second paragraph of Hopper’s affidavit was 

admitted in lieu his of testimony at the RCr 11.42 hearing so as not to embarrass 

Williams’s father (Garland Williams), who was present in the court room. Hopper 

testified that the contents of the second paragraph of his affidavit are true and 

correct. They are as follows:

Subsequent to Mark Williams being shot by Terry 

Jamison on October 1st, 2016 I was in the office at 

Coffee Construction Company in Hickman, Kentucky 

when Garland Williams came into the business and 

made the statement in front of me and Justin Morris, a 

fellow employee, that Mark Williams, his son, on the
-20-

day that he was shot told his father, Garland 

Williams, that he was going down to where Terry 

Jamison was working in a field and “whip his ass.”

Justin Morris and I both heard Garland Williams make 

this statement and we discussed, between us, why he 

would make such a statement. Garland Williams further 

stated that he told Mark to leave Terry Jamison alone, 

that he was “going to shoot you.” Garland Williams 

further stated that he was glad he did not go down to 

where Terry Jamison was because he may have shot him 

too.

(Record on Appeal, No. 21-CA-0777-MR, Vol. II, at p. 233, Defendant’s Exhibit 

“K”) (bold-face emphases added). 

The critical importance of the existence of a threat has been 

highlighted by Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky. 1997): “Even an 

uncommunicated threat by the deceased against the defendant is admissible to 

show the deceased’s state of mind prior to the killing and as evidence to prove 

who was the aggressor.” (Emphasis added.) In Brock, our Supreme Court 

explained as follows:

[T]he primary evidentiary fact to be decided by the jury 

as framed by the instruction on self-protection was which 

party was the initial aggressor. Evidence that shortly 

before the encounter, the deceased told his mother 

that he was going to Appellant’s house with a purpose 

to kill him was more than just cumulative evidence of 

“bad blood.” It was evidence which the jury may well 

have found decisive on Appellant’s claim of selfdefense. Exclusion of this evidence on grounds that it 

was cumulative was outside the discretion normally 

exercised by a trial judge in performing the KRE 403 

balancing test.
-21-

Id. (bold-face emphases added).

Clearly, this evidence was significant. “It was evidence which the 

jury may well have found decisive on Appellant’s claim of self-defense.” Id. 

Thus, we must consider that the circuit court erred in summarily concluding that 

trial counsel’s failure to call these witnesses was a matter of sound or even 

minimally correct strategy. 

Honorable David Jernigan

Honorable David Jernigan -- whose testimony the circuit court failed 

to address other than by a passing reference -- testified about the critical role of the 

witnesses testifying as to state of mind. Judge Jernigan opined that it was within 

the realm of professional norms to have introduced this type of evidence during a 

self-defense criminal trial -- and that the failure to call these witnesses was a 

deviation from the standard of care in the prevailing professional norms. 

Furthermore, Judge Jernigan noted that this testimony was important to Jamison’s 

defense of self-defense, state of mind, and the opportunity to give the jury the 

information it needed to conclude whether or not Jamison was afraid of the 

decedent. Judge Jernigan believed that all of these deficiencies on the part of trial 

counsel created a reasonable probability that the results of the trial would have 

been different absent the deficiencies. Judge Jernigan’s opinions were expressed 

within a reasonable degree of legal certainty.
-22-

We are satisfied from our review that Jamison met his burden of 

proving both the deficiency and prejudice prongs of Strickland. We find the 

reasoning in a decision of one of our sister states to be relevant and persuasive:

Without the relevant state-of-mind evidence, the core of 

the defendant’s case was not put before the jury, thereby 

denying the defendant the opportunity to effectively 

mount his defense. . . . The jury should have been 

allowed to hear why he had that belief. They would then 

be free to accept or reject it; but it was error to keep it 

from them. This deprived the defendant of a fair trial.

People of Illinois v. Hamilton, 2019 IL App (1st) 170019, 147 N.E.3d 922, 933 (Ill. 

App. Ct. 2019).

As a result of trial counsel’s deficiencies, the core of Jamison’s case 

was not put before the jury, thereby denying Jamison the opportunity to effectively 

mount his defense. The jury should have been allowed to hear the testimony of the 

state-of-mind witnesses. The result of this deficiency was prejudicial in that it

created a “probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In light of our decision, we need 

not address Jamison’s remaining arguments.

We reverse the decision of the Fulton Circuit Court that denied

Jamison’s RCr 11.42 motion, and we remand this case for a new trial.

CLAYTON, CHIEF JUDGE, CONCURS AND FILES SEPARATE 

OPINION.
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DIXON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE 

OPINION.

CLAYTON, CHIEF JUDGE, CONCURRING: I concur with the majority’s wellreasoned opinion. However, I write separately to express my concern that trial 

counsel’s failure to object to the “Fifth Amendment Violations” was trial strategy. 

I agree with the majority that in the direct appeal, the Kentucky Supreme Court 

referred to the trial counsel’s failure to object as trial strategy. Nevertheless, I do 

not believe that this language was the holding of the case. 

The Kentucky Supreme Court has stated “[v]iolations of constitutional 

rights, the same as of other rights, may be waived by failure to make timely and 

appropriate objection.” Futrell v. Commonwealth, 437 S.W.2d 487, 488 (Ky. 

1969) (citations omitted). Moreover, a separate panel of this Court held:

[w]hen a defendant’s attorney is aware of an issue and 

elects to raise no objection, the attorney’s failure to 

object may constitute a waiver of an error having 

constitutional implications. In the absence of exceptional 

circumstances, a defendant is bound by the trial strategy 

adopted by his counsel even if made without prior 

consultation with the defendant. The defendant’s counsel 

cannot deliberately forego making an objection to a 

curable trial defect when he is aware of the basis for an 

objection.

Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977) (citations 

omitted). Although the Kentucky Supreme Court in Jamison’s direct appeal 

referenced trial strategy the holding concerns waiver. Furthermore, Strickland, 466 
-24-

U.S. at 689, 104 S. Ct. at 2065, requires sound trial strategy. It is hard to believe 

that a strategy that involves ignoring a constitutional right is sound strategy. 

Further, the Supreme Court held in Martin v. Commonwealth that:

When an appellate court engages in a palpable error

review, its focus is on what happened and whether the 

defect is so manifest, fundamental and unambiguous that 

it threatens the integrity of the judicial process. 

However, on collateral attack, when claims of ineffective 

assistance of counsel are before the court, the inquiry is 

broader. In that circumstance, the inquiry is not only 

upon what happened, but why it happened, and whether it 

was a result of trial strategy, the negligence or 

indifference of counsel, or any other factor that would 

shed light upon the severity of the defect and why there 

was no objection at trial. Thus, a palpable error claim 

imposes a more stringent standard and a narrower focus 

than does an ineffective assistance claim. Therefore, as a 

matter of law, a failure to prevail on a palpable error

claim does not obviate a proper ineffective assistance 

claim.

207 S.W.3d 1, 5 (Ky. 2006).

Based on the foregoing reasons, I believe that we could address these 

deficiencies. However, the majority’s decision that we are precluded from doing

so does not hinder our remanding this case to the trial court -- a decision with

which I fully concur.

DIXON, JUDGE, CONCURRING IN RESULT: While I agree with the majority 

on almost all points of this opinion, I do not agree that the Supreme Court’s ruling 
-25-

concerning Jamison’s trial counsel’s failure to object precluded the claim of 

ineffective assistance of counsel due to counsel’s “trial strategy.” 

First, the Supreme Court’s Opinion on the issue indicates the 

magnitude of the Fifth Amendment violation:

Before trial, defense counsel became worried about what 

the jury might think if it learned that Jamison did not give 

a statement to police. The trial court assured counsel that 

if it became an issue, it would admonish the jury. The 

prosecutor stated that he only intended to demonstrate 

that Jamison did not give a statement to police, and 

nothing further. When the trial court asked if defense 

counsel wanted an admonition if the issue arose, defense 

counsel stated, “I think it’s in my client’s best interest to 

[let the jury know about Jamison not giving a 

statement].” Later in the pre-trial hearing, regarding the 

same issue, the trial court stated:

Trial Court: Are you going to acknowledge [that 

Jamison did not give a statement]?

Defense Counsel: Yes.

. . . .

Trial Court: Alright, so it sounds like a non-issue 

at this point.

Defense Counsel: Right.

Trial Court: If it develops into an issue, 

gentlemen, bring it to my attention and I’ll rule 

accordingly.

Defense Counsel: Okay.
-26-

During trial, Jamison’s refusal to give a statement at the 

scene turned into a focal point for the prosecution. On 

eight separate instances, the prosecutor stated or elicited 

a statement from a witness regarding the lack of a 

statement by Jamison; specifically, the prosecutor elicited 

testimony from law enforcement officers that the first 

thing a police officer would do if he was involved in a 

shooting would be to give a statement. These statements 

and elicited responses occurred at every stage of trial; 

once during opening argument, four times during the 

Commonwealth’s case in chief, once on crossexamination of Jamison, and twice during closing 

argument.

During his opening statement the prosecutor stated, “We 

don’t know what happened [to the trailer hitch] because 

he declined to comment to police.”

During re-direct of Officer Joey Adams:

Commonwealth: He talked to you about an officer 

shooting, which has absolutely nothing to do with 

this case. But, the fact of the matter is, what’s the 

first thing that happens when an officer is involved 

in a shooting? Does he give a statement?

Sgt. Adams: Yes. I gave a statement to my 

lieutenant at the time.

Commonwealth: So you gave a statement?

Sgt. Adams: Explaining what happened yes.

During direct examination of lead Detective Hamby:

Commonwealth: Were you able to talk to 

[Jamison] at any time?

Det. Hamby: I did attempt to talk to him later in 

the evening, but not immediately, no.
-27-

Commonwealth: Did you receive any information 

when you talked to [Jamison]?

Det. Hamby: No, he chose not to make a 

statement.

On re-direct of Detective Hamby:

Commonwealth: What is the first thing that 

happens when an officer is involved in a shooting?

Det. Hamby: They are typically interviewed.

Commonwealth: They give a statement about 

what happened is that what you are saying?

Det. Hamby: That’s correct.

Commonwealth: The very first thing?

Det. Hamby: In probably 99% of the cases, yes.

On cross-examination of Jamison:

Commonwealth: Why did you need time before 

you made your statement?

Jamison: Sir, my mind wasn’t clear and I was 

scared.

Commonwealth: Of Deputy Thomas?

Jamison: No, just from the incident.

Commonwealth: But you didn’t give a statement 

to Deputy Thomas of what happened?

Jamison: They read me my rights, and told me to 

[sic] I had the right . . . [.]
-28-

Commonwealth: So, you exercised your right not 

to say anything?

Jamison: Yes sir, I remained silent, yes sir.

Commonwealth: After you shot a man down in 

cold blood[?]

Jamison: No sir.

Commonwealth: Nothing further.

During closing argument, the prosecution drew an 

analogy between what law enforcement officers do and 

what Jamison did not do after involvement in a shooting:

Commonwealth: What is the first thing an officer 

is required to do [when involved in a shooting]?

Give a statement. We didn’t have a statement 

here. So, Det. Hamby had to go on what 

information he had.

And finally, later in closing:

Commonwealth: And then he met Deputy 

Thomas. Deputy Thomas read him his rights, and 

he declined to talk any further, and he had that 

right. Cory Hamby began his investigation on 

what he had, what information he had that night.

Throughout the entire trial, defense counsel never 

objected to the prosecutor’s questions, statements, or 

elicited testimony regarding Jamison’s refusal to give a 

statement. Defense counsel also allowed the 

Commonwealth to play a body cam video of Jamison 

being read his Miranda rights, asking for an attorney, and 

being placed in handcuffs. Furthermore, defense counsel 

raised Jamison’s refusal to give a statement on his own 

during his opening statement, during cross-examination 
-29-

of the Commonwealth’s main witness, and during direct 

examination of Jamison.

Defense counsel did not object to any statements made 

by the prosecution regarding Jamison’s election to speak 

with an attorney prior to giving a statement. In his brief, 

Jamison seeks palpable error review under RCr 10.26.

The Commonwealth asserts that Jamison waived any 

review on appeal because of the above statements made 

by defense counsel during pre-trial hearings and the lack 

of objection during trial. Indeed, when not waived by 

lack of objection, comments such as those made by the 

Commonwealth have been held to have eviscerated a 

defendant’s Fifth Amendment rights, requiring 

reversal. See, e.g., Doyle v. Ohio, 426 U.S. 610, 618 

(1976).

Jamison, 2019 WL 1172971, at *3-5.

As noted by the majority opinion, the Supreme Court determined that 

a constitutional right may be waived. Citing West v. Commonwealth, 780 S.W.3d 

600 (Ky. 1989), the Court determined trial strategy may constitute a waiver. 

However, the Court also inferred it was troubled about this waiver: “[r]egardless 

of our thoughts concerning this strategy, Jamison’s defense counsel knew of the 

curable trial defect -- Jamison’s right to silence -- and deliberately chose not to 

object each time the prosecution raised the issue.” Jamison, 2019 WL 1172971, at 

*5.

I believe the majority opinion misapprehends the import of the 

Supreme Court’s holding on direct appeal. I agree, the Supreme Court held 

Jamison’s defense counsel waived the Fifth Amendment right at trial. But it is 
-30-

counsel’s very decision to waive Jamison’s Fifth Amendment rights that Jamison 

now contends was ineffective assistance of counsel. The Supreme Court’s 

decision on direct appeal did not -- and indeed could not -- make any ruling on this 

issue. This issue was not before it. Furthermore, on this basis, Chief Judge 

Clayton’s succinct analysis in her concurring opinion makes clear this issue alone 

merits reversal. Defense counsel’s “trial strategy” herein resulted in not only 

mentioning but clearly weaponizing a fact which Jamison had every constitutional 

right to claim. By doing so, the violation was egregious and merits reversal, and 

Jamison is entitled to a new trial with perhaps a new trial strategy.

BRIEFS FOR APPELLANT:

Stacey A. Blankenship

Paducah, Kentucky

Charles S. Kelly

Dyersburg, Tennessee

Joe G. Riley

Ridgely, Tennessee

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Perry T. Ryan

Assistant Attorney General 

Frankfort, Kentucky