Bronston v. Commonwealth , 481 S.W.2d 666 ( 1972 )

CATINNA, Commissioner.

This is an appeal from an order denying, without a hearing, appellant’s motion for relief under RCr 11.42. James L. Bron-ston, Leon Bush, and Harry Smith were convicted of the crimes of armed assault and malicious shooting and wounding with intent to kill. They each received prison sentences of life and twenty-one years to run concurrently. Their conviction was affirmed in Bush v. Commonwealth, Ky., 457 S.W.2d 495 (1970).

Bronston’s motion raises the following five issues: (1) He was convicted on the uncorroborated testimony of a witness; (2) he was denied a separate trial from his codefendants; (3) there was not sufficient evidence on which the jury could return a verdict of guilty; (4) he was denied a fair and impartial trial on the basis of excessive pretrial publicity; and (5) he was denied due process of law in that certain members of the jury discussed the case at a time when the trial was recessed.

Grounds (1), (2), and (3) were raised and considered by this court on the original appeal. Grounds (4) and (5) were not raised on the original trial, although these matters were well known to Bronston and, presumably, his counsel at the time of trial. There is no allegation that Bronston did not have competent, adequate, and effective counsel.

This court, in considering RCr 11.42 motions, will not retry issues that have been before it on a direct appeal. Nor will it permit a convicted defendant to employ the RCr 11.42 proceeding as a means of trying or retrying issues which could and should have been raised in the original proceedings when the competency, adequacy, and effectiveness of his own counsel are not in good faith questioned, and where the grounds of his motion are matters which must have been known to him at the time of trial. See Hoskins v. Commonwealth, Ky., 420 S.W.2d 560 (1967); and Thacker v. Commonwealth, Ky., 476 S.W.2d 838 (1972).

Since Grounds (4) and (5) were trial errors, they were susceptible to appellate review. Neither of them rises to the dignity which would characterize it as a denial of due process. Under these circumstances these grounds are not appropriate bases for relief under RCr 11.42. Lee v. Commonwealth, Ky., 389 S.W.2d 241 (1965).

None of the grounds stated in Bronston’s RCr 11.42 motion is sufficient to justify vacating the judgment of conviction.

The judgment is affirmed.

All concur.