RENDERED: DECEMBER 3, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0468-MR

BRIAN EDMONDS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MARY M. SHAW, JUDGE

ACTION NO. 12-CR-000097 

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING IN PART,

VACATING IN PART, AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Brian Edmonds brings this appeal from a February 20, 2019, 

opinion and order of the Jefferson Circuit Court denying Edmonds’ motions under 

Kentucky Rules of Criminal Procedure (RCr) 11.42, RCr 10.02, and Kentucky 

Rules of Civil Procedure (CR) 60.02. We affirm in part, vacate in part, and 

remand.
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On December 10, 2011, Curtis Smith and Deshone Henry were shot 

and killed outside of Curtis Smith’s vehicle in Louisville, Kentucky. The bullets 

were fired from a single gun, and several calls to 911 indicated that two AfricanAmerican men were seen fleeing from the crime scene. In a recorded call with his 

girlfriend, Edmonds admitted to shooting both men because of a disagreement over 

a drug transaction. DNA evidence from Edmonds was underneath Curtis Smith’s 

fingernails, along with the DNA from an unknown male. 

Edmonds was indicted upon two counts of murder and with tampering 

with physical evidence. The Commonwealth also filed a Notice of Aggravating 

Circumstances indicating that Edmonds would be eligible for the death penalty. 

The jury convicted Edmonds upon two counts of murder, but before sentencing, 

Edmonds entered into a plea agreement with the Commonwealth. Thereunder, 

Edmonds would forego the right of appeal, and the Commonwealth would 

recommend a sentence of life imprisonment without parole for 25 years. By 

judgment entered December 21, 2015, Edmonds was sentenced in accordance with 

the agreement. 

On April 30, 2018, and August 2, 2018, Edmonds filed an RCr 11.42 

motion, an RCr 10.02 motion, and a CR 60.02 motion. In these motions, Edmonds

advanced three bases for relief. First, Edmonds alleged that in 2018 he discovered 

Brandon Smith had admitted to killing both Curtis Smith and Deshone Henry.
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Unbeknownst to him at the time of trial, Edmonds claimed that trial counsel had 

subpoenaed Brandon Smith to testify concerning his confession to killing the two 

men but ultimately failed to call him at trial. Edmonds attached Brandon Smith’s 

affidavit and statement to the motions; therein, Brandon Smith admitted to killing 

both Curtis Smith and Deshone Henry and admitted he was subpoenaed to testify 

at trial. Based upon this newly discovered evidence, Edmonds alleged he was 

entitled to a new trial. Second, Edmonds asserted that trial counsel was ineffective 

for refusing to permit Edmonds to testify in his own defense during trial, and third, 

Edmonds maintained trial counsel was ineffective for failing to present evidence of 

a mental deficiency. 

By opinion and order, the circuit court summarily denied Edmonds’ 

motions for relief. To support same, the circuit court reasoned: 

Mr. Edmonds’ first argument in his RCr 11.42 

motion-that trial counsel was ineffective because they 

failed to call Mr. [Brandon] Smith-fails because the 

record reflects that counsel made a tactical decision not 

to call him as a witness. Outside the presence of the jury 

trial counsel informed the Court Mr. Edmonds would put 

on no proof. Further, counsel stated they had Mr. 

[Brandon] Smith transported to Jefferson County “out of 

an abundance of caution” but that they did not “need” 

him. This statement creates a strong inference that trial 

counsel deliberated about whether to call Mr. [Brandon] 

Smith, a convicted felon who would be wearing a prison 

jumpsuit and subject to cross-examination by a skilled 

prosecutor, and decided he would not further Mr. 

Edmonds’ defense. Indeed, [Brandon] Smith’s testimony 

would have placed Mr. Edmonds at the crime scene and 
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raised several questions about his involvement given the 

physical evidence linking him to the shootings, not to 

mention his statement to his girlfriend that he was the 

shooter and acted alone. It is clear from the record that 

trial counsel made a reasoned strategic decision not to 

[c]all Mr. [Brandon] Smith as a witness.

Mr. Edmonds’ second argument-that trial counsel 

denied him his right to testify-fails because (1) he waived 

his right to testify and (2) it is insufficiently plead [sic]. 

“The right to testify is personal to the defendant, may be 

relinquished only by the defendant, and the defendant’s 

relinquishment of the right must be knowing and 

intentional. The defense counsel’s role is to advise the 

defendant whether or not the defendant should take the 

stand, but it is for the defendant, ultimately, to decide.” 

“Generally, a trial court does not need to address the 

voluntariness of a defendant’s waiver sua sponte unless 

there are statements or actions from the defendant 

indicating disagreement with counsel or the desire to 

testify.” . . . . 

The record reflects that Mr. Edmonds knew he had 

a right to testify (and the right to remain silent) because 

trial counsel discussed these rights during voir dire. 

Further, as noted above, he said nothing when trial 

counsel told the Court he would present no proof, and 

there was no indication that Mr. Edmonds desired to 

testify or had a disagreement with counsel about the 

matter. Accordingly, he waived his right to testify, and 

such a waiver forecloses the possibility of raising the

issue in a motion under RCr 11.42. 

Turning to sufficiency of Mr. Edmonds’ pleading, 

RCr 11.42 requires movants to file briefs that include 

factual support and sound rational [sic] instead of vague 

statements that the trial’s outcome would have been 

different had counsel done things differently. . . . 
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In his brief, Mr. Edmonds states the following 

about the testimony he would have provided if allowed to 

testify: 

[He would] advance and support his [alternative 

perpetrator] defense and explain the context of the 

statement he made after being arrested.

. . .

It was Edmonds [sic] desire to have Brandon 

Smith testify to the fact that he shot and killed the 

victims and then follow up his testimony with his 

own to put before the jury a comprehensive picture 

of the circumstances surrounding the murders, his 

presence at the crime scene and the statement he 

made after he was arrested.

These statements provide only a vague explanation of the 

strategy Mr. Edmonds states he wanted to implement 

during his trial; he does not provide facts as to what his 

testimony would have been or how they would have 

influenced the jury. . . .

The same rational [sic] applies for Mr. Edmonds’ 

argument that trial counsel failed to present evidence of a 

mental deficiency that could mitigate his culpability, 

provide context for his actions, and prevent him from 

understanding the implications of his sentencing 

agreement. Mr. Edmonds alludes to suffering a mental 

condition at the time of the shooting, but provides no 

evidence of such. The Court granted him leave to 

supplement his brief on May 22, 2018; the record reflects 

he has not acted upon this opportunity, and his motion 

remains insufficiently plead [sic].

. . . . 

Mr. Edmonds’ CR 60.02 motion relies upon 

subsections (d)-fraud affecting the proceedings-and (f)-a 
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reason of extraordinary nature. However, Mr. Edmonds’ 

brief exclusively addresses the purported new evidence in 

Brandon Smith’s affidavit and statement. Accordingly, 

Subsection (d) is inapplicable because Mr. Edmonds did 

not address fraud in his brief, and trial counsel’s decision 

not to call a witness does not amount to fraud affecting 

the proceedings as understood in the relevant case law. 

Subsection (f) is unavailable because subsection (b) 

addresses newly discovered evidence. A motion under 

CR 60.02(b) is time barred at this juncture, which could 

explain utilizing the other subsections.

A motion for a new trial on the grounds of newly 

discovered evidence under RCr 10.02 and 10.06 is not 

time barred if the movant can show good cause for filing 

the motion after the one-year limitations period. Related 

to the issue of good cause is the disclosure of facts 

relating to the movant’s attempt to discover the putative 

newly discovered evidence, which is at the heart of the 

Court’s concern about Mr. Edmonds’ motion: “a motion 

for new trial on the ground of newly discovered evidence 

will not be considered unless the defendant files his own 

affidavit showing [reasonable] diligence in attempting to 

discover the new evidence before the first trial.” This 

applies to trial counsel and the defendant: “On the 

question of newly discovered evidence it is necessary 

that the diligence of both be shown.” Mr. Edmonds did 

not file the requisite affidavit, so his motion must be 

denied. Nevertheless, the Court will evaluate whether he 

exercised reasonable diligence based upon his briefs and 

accompanying exhibits. 

Mr. Edmonds’ briefs assert that the contents of Mr.

[Brandon] Smith’s affidavit and statement are the newly 

discovered evidence. To this end, Mr. Edmonds avers 

that he did not know Mr. [Brandon] Smith told trial 

counsel that he shot the victims and would testify 

accordingly. In the absence of the requisite affidavit and 

taking Mr. [Brandon] Smith’s affidavit and statement as 

true, there are only two conclusions that can be drawn: 
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either (1) Mr. Edmonds did, in fact, know about Mr.

[Brandon] Smith’s confession and offer to testify before 

trial or (2) he simply failed to ask counsel about their 

investigation of his claim that Mr. [Brandon] Smith was 

the shooter. Either action cannot amount to good cause 

under the rule for filing a motion for a new trial on 

grounds of newly discovered evidence outside the 

prescribed time limit because the prior scenario does not 

entail newly discovered evidence and the latter involves 

insufficient diligence. Accordingly, the motion under 

RCr 10.02 and 10.06 must be dismissed.

February 20, 2019, opinion and order at 4-9 (footnotes and citations omitted).

This appeal follows.

Edmonds initially contends that the circuit court erred by denying his 

CR 60.02 and RCr 10.02 motions. Edmonds asserts that Brandon Smith’s 

confession to murdering the victims constitutes newly discovered evidence that 

Edmonds was not aware of at the time of trial. Edmonds maintains that Brandon 

Smith’s confession demonstrates Edmonds’ actual innocence of the murders. 

Edmonds believes he is entitled to a new trial under CR 60.02(f) and RCr 10.02

based upon newly discovered evidence.

We begin by setting forth relevant portions of Brandon Smith’s 

affidavit: 

AFFIDAVIT

I, Brandon L. Smith, declare under penalty of 

perjury that the following is true and correct to the best of 

my knowledge and belief: In 2015 I offered to testify on 

behalf of Brian D. Edmonds, that it was not him who 
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killed Curtis Smith and Deshawn [sic] Henry on 

December 10, 2011.

In 2015 representatives I assumed were for Mr. 

Edmonds came to Green River Correctional Complex, in 

which time I told them that it was me that killed the two 

victims, they told me they would return, they never came 

back but I was brought to court by Mr. Edmonds attorney 

to testify to the details enclosed in my hand written 

(statement attached to this affidavit) which state the 

details of the incident the night of Dec. 10, 2011. I 

awaited to testify in Mr. Edmonds trial but his attorney’s 

[sic] would later tell me that they no longer needed me to 

testify in behalf of Mr. Edmonds.

I swear that the statement attached to this affidavit 

is true and that I am not being coerced in any matter.

The following statement by Brandon Smith was attached to the affidavit: 

I Brandon L. Smith am writing this letter on my 

own will, neither am I under any influence of drugs or 

alcohol. On the date of December 10, 2011[,] at 

approximate[l]y 7:57 pm committed the double murder 

of Deshawn [sic] Henry and Curtis Smith. I Brandon 

Smith was over [at] the house of a [sic] ex-girlfriend 

when I seen [sic] a white pontiac pull up that I assumed 

was a buyer of crack cocaine. I Brandon L. Smith 

approach [sic] the passenger side to make a crack cocaine 

sell, when I opened the door I seen [sic] Brian D. 

Edmonds in the car with the victims. I Brandon L. Smith 

asked Brian D. Edmonds if I could talk to him for a 

second, after I noticed the victims were the ones that 

robbed me and stripped me naked days before. I had 

been notified via Facebook that Brian D. Edmonds had 

been hanging w/the victims but he continuo[u]sly lied to 

me, which left me in a state of rage and feeling of 

betrayal by a person I considered family. Brian D. 

Edmonds get [sic] out [of] the car and I Brandon L. 

Smith begun [sic] to shoot the driver Curtis Smith. 
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Deshawn [sic] Henry proceed [sic] to hurriedly get out 

the passenger seat and I fired shots thinking he was 

armed, striking him in the head. I Brandon L. Smith then 

went around to the drivers seat and pulled Curtis Smith 

out and checked his pockets for my five thousand they 

robbed me for days before. After which Brian D. 

Edmonds asked me what I was doing, I told him I felt he 

was playing both sides of fence, so you with them. I 

attempted to raise the gun Brian D. Edmonds grabbed it 

and I tried to fire the gun but it clicked, cause there was 

no more bullets in the gun. He let go of the gun [and] I 

struck him a few times then he fled, but Brian D. 

Edmonds is not responsibile [sic] for my actions.

Under CR 60.02(f), the “court may, upon such terms as are just, 

relieve a party . . . from its final judgment . . . upon . . . any other reason of an 

extraordinary nature justifying relief.” To prevail upon a claim of newly 

discovered evidence, the evidence must be “of such decisive value or force that it 

would, with reasonable certainty, have changed the verdict or that it would 

probably change the result.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 

2014) (quoting Jennings v. Commonwealth, 380 S.W.2d 284, 285-86 (Ky. 1964)). 

Evidence is considered newly discovered only if it “could not have been obtained 

at the time of trial through the exercise of reasonable diligence.” Foley, 425 

S.W.3d at 887 (quoting Commonwealth v. Harris, 250 S.W.3d 637, 642 (Ky. 

2008)).

And, a motion for new trial under RCr 10.02 permits a defendant to 

seek “a new trial for any cause which prevented the defendant from having a fair 
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trial, or if required in the interest of justice.” The discovery of new evidence may 

constitute a ground of relief. RCr 10.06(1); St. Clair v. Commonwealth, 451 

S.W.3d 597, 616 (Ky. 2014). However, such newly discovered evidence must 

have been “undiscoverable” at the time of trial. Commonwealth v. Carneal, 274 

S.W.3d 420, 432 (Ky. 2008). The motion must be accompanied by an affidavit by 

the defendant and by his counsel showing they exercised sufficient diligence in an 

attempt to discover the evidence before trial. We review the circuit court’s 

decision as to a CR 60.02 motion or an RCr 10.02 motion for abuse of discretion. 

Foley, 425 S.W.3d at 886; Bedingfield v. Commonwealth, 260 S.W.3d 805, 810 

(Ky. 2008).

According to Brandon Smith’s affidavit and statement, it is patently 

clear that Edmonds knew that Brandon Smith shot both victims, as he allegedly 

witnessed the same. Additionally, Edmonds alleged that Brandon Smith was 

subpoenaed by trial counsel to testify at trial as to shooting the victims; 

consequently, it is, likewise, clear that trial counsel knew of Brandon Smith’s 

alleged role in the murders. From these two facts alone, it is axiomatic that 

Brandon Smith’s affidavit and statement do not qualify as newly discovered 

evidence under CR 60.02(f) or under RCr 10.02. See Foley, 425 S.W.3d at 887; 

Carneal, 274 S.W.3d at 432. At the time of trial, Edmonds and trial counsel knew 

of Brandon Smith and of his alleged culpability for the murders. Thus, we 
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conclude the circuit court did not abuse its discretion by denying Edmonds’ CR 

60.02(f) and RCr 10.02 motions.

Edmonds next asserts that trial counsel rendered ineffective assistance 

at trial. In particular, Edmonds maintains that trial counsel was ineffective for 

failing to call Brandon Smith as a witness and for failing to allow Edmonds to 

testify in his own defense at trial. Edmonds states that “defense representatives 

interviewed Brandon Smith and, based on what he told them, trial counsel obtained 

an order of personal appearance for his presence for trial[.]” Edmonds Brief at 11-

12. Edmonds maintains that trial counsel erroneously failed to call Brandon Smith 

as a witness and failed to “put on any other proof for the defense.” Edmonds Brief 

at 12. Edmonds argues that Brandon Smith’s confession to the murders would 

have been pivotal evidence during trial. Additionally, Edmonds maintains that he 

wanted to testify in his own defense at trial, but trial counsel erroneously would not 

permit him to do so. 

To prevail upon a claim of ineffective assistance of counsel, Edmonds

must demonstrate that counsel’s performance was deficient and that such 

deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Trial counsel’s performance is considered deficient if “counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant 

by the Sixth Amendment” or his “representation fell below an objective standard 
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of reasonableness.” Commonwealth v. McKee, 486 S.W.3d 861, 867 (Ky. 2016) 

(quoting Strickland, 466 U.S. at 687-88). And, prejudice occurs where “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” McKee, 486 S.W.3d at 867 

(quoting Strickland, 466 U.S. at 694). A motion made pursuant to RCr 11.42 must 

specifically state the grounds for relief and the facts to support those grounds.

Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993). An RCr 11.42 motion is 

properly denied without an evidentiary hearing if the allegations raised are 

conclusively refuted upon the face of the record. Fuston v. Commonwealth, 217

S.W.3d 892, 895 (Ky. App. 2007). 

At trial, counsel’s defense theory centered upon Edmonds’ innocence 

and an alternate perpetrator. However, trial counsel offered no proof in support of

such defense theory at trial. In Brandon Smith’s affidavit and accompanying 

statement, he confessed to shooting both victims and explained that the victims had 

previously taken $5,000 from him. Brandon Smith averred that he was at his 

girlfriend’s home when a motor vehicle pulled up. Brandon Smith stated he 

believed the occupants wanted to buy crack cocaine; however, when he 

approached the vehicle, Brandon Smith recognized the three occupants. According 

to Brandon Smith, two of the occupants (the victims) had previously stolen $5,000 
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from him and left him naked. Brandon Smith averred that he shot both victims and 

then tried to shoot Edmonds, but the gun was out of bullets. Brandon Smith 

maintained that he and Edmonds briefly fought and Edmonds then ran away from 

the crime scene. 

It is beyond cavil that Brandon Smith’s statements would have 

constituted crucial evidence for Edmonds’ defense. Brandon Smith apparently 

would have confessed to the murders and would have also explained Edmonds’ 

presence at the crime scene. Based on these factors, we cannot justify trial 

counsel’s failure to call Brandon Smith as a witness at trial under the guise of trial 

strategy. Clearly, Edmonds’ allegations are not refuted on the face of the record. 

For these reasons, the circuit court erred by not conducting an evidentiary hearing 

to determine whether trial counsel rendered ineffective assistance for failing to call 

Brandon Smith as a witness at trial. 

As to Edmonds’ remaining contention concerning counsel’s failure to 

call him as a witness in his own defense, Edmonds fails to state what his testimony 

would have been at trial. Mere conclusory allegations of ineffective assistance of 

trial counsel are insufficient to support relief under RCr 11.42. Wedding v. 

Commonwealth, 468 S.W.2d 273, 274 (Ky. 1971).

Accordingly, we vacate in part and remand for the circuit court to 

conduct an evidentiary hearing to determine if trial counsel rendered ineffective 
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assistance by failing to call Brandon Smith as a witness at trial. We view all other 

contentions of error to be without merit.

For the foregoing reasons, we affirm in part, vacate in part, and 

remand for proceedings consistent with this Opinion.

ALL CONCUR.

BRIEF FOR APPELLANT:

Maureen Sullivan

Louisville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Frankfort, Kentucky

Matthew R. Krygiel

Assistant Attorney General

Frankfort, Kentucky