RENDERED: JULY 22, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1116-MR

ALASTAIR MARTEL COUCH APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 10-CR-00212

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

MAZE, JUDGE: Alastair Martel Couch (Couch) appeals the denial of his motion 

for postconviction relief without an evidentiary hearing in accordance with RCr1

11.42(5). Finding no error in the decision of the Franklin Circuit Court, we affirm.

1 Kentucky Rules of Criminal Procedure.
-2-

Tomma Graves, a long-time friend of Couch, was reported missing on 

July 31, 2010. Two days later, her body was recovered. She had been shot in the 

skull, arm, and hand.

Through witness testimony, the Commonwealth showed that she had 

been seen with Couch on the morning of her death. Later that day, a witness saw a 

black male running near the parking lot where Graves’ body was eventually 

recovered. Another testified to seeing a black male walking in that area while 

talking on a cell phone, giving directions. That witness indicated that the man 

appeared to be holding a blood-stained shirt. He observed the black male getting 

into a red truck with a farm plate.

Dusty Whitis, a key prosecution witness, testified that he had 

scheduled a drug deal with Couch on the morning of the murder, but that Couch 

changed the location several times, afraid that “someone had seen him.” Whitis 

saw Couch remove spent shell-casings from a handgun and dispose of them. The 

pair then traveled to the home of Whitis’ girlfriend, where Couch burned a bloodstained shirt and a cell phone. Couch then left the home with Bryce Hodges and 

Michael Williams. The three men drove out into the country where Couch was 

observed disposing of something over a cliff. After receiving a tip, police officers 

recovered a revolver from that area. It was later determined to be the murder 

weapon.
-3-

In his trial testimony, Couch told the jury that on the morning of the 

murder, a masked man entered Graves’ truck and forced him into the back seat, 

instructing her to drive. During a struggle between Couch and the attacker, the gun 

went off and Graves screamed. When the vehicle halted, the assailant ran off and 

Couch discovered that Graves was dead. 

As an admitted drug dealer, he was too frightened to call the police. 

He parked the car in downtown Frankfort, collected Graves’ cell phone, his 

weapon and the one used by the attacker. The latter he disposed of in the manner 

testified to by Whitis.

Following a jury trial, Couch was convicted of murder, tampering 

with physical evidence, and being a persistent felony offender, second degree. In 

accordance with the jury’s recommendation, he was sentenced to fifty (50) years 

for murder, five (5) years for tampering with physical evidence, enhanced to ten 

(10) years by the persistent felony offender conviction, for a total sentence of sixty 

(60) years. The Supreme Court affirmed his conviction in an unpublished 

opinion.2 His arguments that his trial counsel allowed references to his alleged 

involvement in the drug trade and that trial counsel failed to object to the 

Commonwealth’s “send a message” statement during voir dire were rejected on 

direct appeal.

2 Couch v. Commonwealth, No. 2011-SC-000603-MR, 2013 WL 658151 (Ky. Feb. 21, 2013).
-4-

On March 11, 2016, Couch sought postconviction relief by filing a 

motion pursuant to RCr 11.42. He alleged that his trial counsel, Mark Bubenzer,

was ineffective by 1) allowing repeated references to his involvement in the drug 

trade; 2) failing to object to the Commonwealth’s “send a message” argument 

during voir dire; 3) failing to properly advise and prepare him for his testimony 

and cross-examination in the guilt phase of his trial; and 4) for failing to 

investigate and present mitigation evidence in the penalty phase. 

On August 13, 2020, the trial court denied his motion without 

conducting an evidentiary hearing, noting that a hearing is only required where 

there is a question of fact that cannot be resolved by an examination of the record. 

Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). The trial court then 

applied the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984) (adopted in Gall v. Commonwealth, 702 S.W.2d 37 

(Ky. 1985)), denying Couch’s postconviction motion on the merits. However, in 

so doing, the trial court considered the affidavit of Couch’s trial counsel as 

tendered by the Commonwealth in support of its response.

In Knuckles v. Commonwealth, 421 S.W.3d 399 (Ky. App. 2014), the 

movant sought postconviction relief, an evidentiary hearing and appointment of 

counsel. Although the Commonwealth argued that no hearing was necessary, it 

did tender the affidavits of Knuckles’ trial counsel and his investigator in support 
-5-

of its response. The trial court then relied upon those affidavits in denying 

Knuckles’ motions.

On appeal, this Court concluded that:

The Commonwealth’s supplementation of the record by 

providing the circuit court affidavits was essentially an 

admission that the record was insufficient for resolution 

of Knuckles’ motion. If the Commonwealth had truly 

believed the record was sufficient, then its objection to 

the RCr 11.42 motion . . . should have referred to that 

record alone, and should not have required supplemental 

affidavits. If, on the other hand, the Commonwealth 

believed the record was insufficient and necessitated 

sworn statements by trial counsel and the investigator, 

then it should have raised no objection to Knuckles’ 

request for a hearing and conceded that one was 

necessary.

Id. at 401.

In Knuckles, as here, the case of Commonwealth v. Elza, 284 S.W.3d 

118 (Ky. 2009), was cited in support of the use of affidavits in the resolution of 

RCr 11.42 cases. The Knuckles Court dismissed this argument as dispositive on 

the issue, stating that, “Nowhere, however, did the Supreme Court state that the use 

of affidavits could take the place of a hearing.” Knuckles, 421 S.W.3d at 402.

In Commonwealth v. Searight, 423 S.W.3d 226, 231 (Ky. 2014), the 

Kentucky Supreme Court noted that, where, as here, no evidentiary hearing is held, 

the appellate court’s review is “limited to determining ‘whether the motion on its 

face states grounds that are not conclusively refuted by the record and which, if 
-6-

true, would invalidate the conviction.’” Therefore, this Court will proceed with its 

analysis of the arguments raised in Couch’s motion.

The trial court found that trial counsel’s references to his drug dealing 

history during voir dire were not evidence of incompetence but were in fact a 

useful tool in enabling him to determine which potential jurors should be stricken 

from the panel. Further, there was substantial, admissible evidence of record 

regarding Couch’s drug dealing activities including those of which the defense was 

given notice pursuant to KRE3 404(c), the testimony of Dusty Whitis, and Couch’s 

own testimony. Clearly, the record as it pertains to evidence of Couch’s drug 

dealing contains no facts which would warrant invalidating his conviction.

Next, Couch once again cites trial counsel’s failure to object to the 

Commonwealth’s improper “send a message” argument during voir dire as error. 

However, this argument has already been considered and rejected by the Kentucky 

Supreme Court. The Court held that:

the improper comment was made in an effort to 

encourage potential jurors to set aside their reluctance to 

participate in the jury process by underscoring the 

important role of a juror. The Commonwealth did not 

directly reference Couch or the charges against him in 

conjunction with the statement. Considered within 

context, we do not believe this brief and isolated 

comment undermined the overall fairness of the 

proceedings. Reversal is not required. 

3 Kentucky Rules of Evidence.
-7-

Couch, 2013 WL 658151 at 3.

Next, Couch’s argument that trial counsel erred by failing to prepare 

and advise him in advance of his trial testimony is without merit. He stated at trial 

and on the record that his decision to testify was a mutual one between him and his 

trial counsel. Trial counsel’s conduct in the preparation and advice given to Couch 

regarding his testimony did not demonstrate incompetence and there has been no 

showing that Couch was prejudiced by this conduct or that different conduct would 

have resulted in a different outcome. 

Finally, Couch has alleged error as to his trial counsel’s performance 

during the penalty phase of the trial. As noted by the trial court, Couch’s criticism 

of counsel’s conduct in allowing the persistent felony offender charge to be proven 

by affidavit rather than certified court records was properly preserved and should 

have been presented on direct appeal. Further, the record reflects that the 

Commonwealth’s misstatement concerning the issue of parole eligibility for the 

murder conviction was cured by allowing the jury to take a copy of the parole 

eligibility guidelines into their deliberations.

Finally, this Court has reviewed the affidavits of Couch’s proposed 

mitigation witnesses. His parents and sister indicated that they would have come 

to Frankfort to testify during trial. They further stated that no one had ever 

contacted them about coming to Frankfort to testify in either phase of the trial, that 
-8-

Couch was a good son/brother, that he was a good father, that he had no juvenile 

history, and, in fact, performed well in school and received a full scholarship. 

Further, they indicated that they could have provided the names of other mitigation 

witnesses. Here, as in Searight, we find that Couch was “not prejudiced by the 

alleged error in failing to present mitigation evidence, because even if true, the 

proffered testimony would not have undermined confidence in his sentence.” 423 

S.W.3d at 234. Indeed, as argued by the Commonwealth, the testimony may well 

have been prejudicial to Couch in and of itself since the jury could have found him 

“more culpable” since he came from such a “loving family[.]” Johnson v. Bell, 

344 F.3d 567, 574 (6th Cir. 2003).

This Court further finds that counsel’s decisions with regard to the use 

of mitigation witnesses during the penalty phase were ones of “trial strategy.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. As stated in Hodge v. 

Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (citing Porter v. Singletary, 14 

F.3d 554,557 (11th Cir. 1994), cert. denied, 513 U.S. 1009, 115 S. Ct. 532, 130 L.

Ed. 2d 435 (1994)), such “tactical choice[s]” by counsel are granted a “strong 

presumption of correctness,” and, if the court makes such a determination, then the 

“inquiry is generally at an end.” In Searight, supra, this Court had held that the 

matter of trial strategy should have been remanded to the trial court for an 

evidentiary hearing. However, the Kentucky Supreme Court held that, “[if] the 
-9-

trial court properly denied Searight’s RCr 11.42 motion on prejudice grounds 

without a hearing, [then] the Court of Appeals erred in ordering a nugatory hearing 

to determine trial strategy.” 423 S.W.3d at 231.

This Court must conclude, as did the trial court, that Couch was 

unable to demonstrate either the incompetence of counsel or the prejudice required 

under Strickland, supra. There has simply been no showing that, if trial counsel 

had performed in accordance with the proposals made by Couch in hindsight, the 

result herein would have been any different. Strickland, 466 U.S. at 694, 104 S. 

Ct. at 2068.

Accordingly, the opinion and order entered by the Franklin Circuit 

Court on August 13, 2020, is affirmed.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Samuel N. Potter

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Jeffrey A. Cross

Deputy Solicitor General

Frankfort, Kentucky