THOMPSON, JUDGE
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC J. COWAN, JUDGE
ACTION NO. 07-CR-003112 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 07-CR-003112 OPINION
AFFIRMING
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BEFORE: DIXON, JONES AND THOMPSON, JUDGES. THOMPSON, JUDGE: Ronny D. Walker appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion and an order denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion requesting the trial court to vacate its order denying RCr 11.42 relief.
Walker was accused of beating and strangling to death Derek Scott, who resided with Lisa Thomas, Walker's estranged girlfriend and the mother of his four children. In a police interview with Detective Finch, Walker admitted killing Scott but claimed it was unintentional. Walker was convicted of murder, first-degree burglary, tampering with physical evidence, intimidating a participant in the legal process, and tampering with a witness. For murder, Walker was sentenced to life in prison without the possibility of parole for twenty-five years. Walker was also found to be a first-degree persistent felon and sentenced for the other offenses to a total of fifty-five years in prison to be served concurrently with the life sentence.
Walker and Thomas lived together before becoming estranged in 2012. Initially, Walker and the children moved to Georgia but in 2006, Thomas regained custody of the children. She began seeing Scott in 2007. Later in that same year, Walker saw the children on several occasions and, according to his police statement, was attempting to reestablish a relationship with Thomas.
On the morning of September 15, 2007, Walker entered Thomas's apartment and found Scott and the children asleep in the master bedroom. According to Walker's police statement, at the sight of his children in the same bed with Scott, he became enraged and attacked Scott.
The children's testimony as to the events that occurred was summarized by the Supreme Court in Walker v. Commonwealth, 349 S.W.3d 307, 309-10 (Ky. 2011), as follows:
One of the children testified to being awakened by a fight between the two men, and another testified that he came from the bathroom and saw the men fighting. At Scott's urging, the two older ones sought help from Scott's cousin who lived nearby, but they were unable to rouse him. When they returned home, they saw Scott lying motionless on the bedroom floor. Walker chided them for not being on his "team" and told them at one point that they had seen and heard nothing. He later told them to say that Scott had raped them. They testified that Walker then looped a belt around Scott's neck and dragged him down the steps to the basement. From the basement they heard loud noises, and a short time later Walker came back upstairs.
In addition to the children's testimony, the jury heard Thomas's description of what occurred when she returned home at about 6:00 a.m. on September 15.
She described being surprised at the door by Walker and his taking her to the basement, where she saw Scott's body lying on the laundry room floor and saw blood spattered "everywhere," on the walls and even on the ceiling. She testified that Walker insisted that Scott was not dead, but only unconscious, and that he would not let her call 911. Eventually, however, Walker fell asleep on the living room sofa. Thomas then fled with the children to her uncle's house, and her uncle summoned the police.
Id. at 310.
The Commonwealth introduced the medical examiner's testimony, who opined that Scott died from multiple blunt force injuries to the head and from strangulation. Thomas's description of the bloody laundry room was confirmed by police testimony. Id.
Walker appealed to the Kentucky Supreme Court alleging "that the trial court erred (1) by permitting the video recording of his police interview to be shown to the jury; (2) by advising the jurors, before opening statements how they might go about assessing the credibility of witnesses; and (3) by mis-instructing the jury with regard to the alleged burglary." Walker, 349 S.W.3d at 309. The Court found no reversible error and affirmed.
The Supreme Court affirmed Walker's judgment of conviction and sentence on September 22, 2011. On August 7, 2012, Walker filed a pro se RCr 11.42 motion alleging trial counsel was ineffective by failing to: (1) move the trial court to strike the jury as not being a fair cross-section of the community; (2) move the trial court to strike juror 931 for cause; and (3) object to the introduction of photographs taken during Scott's autopsy. He requested appointment of counsel and an evidentiary hearing. On August 9, 2012, the Department of Public Advocacy was appointed to represent Walker.
After the appointment of counsel, Walker filed a pro se motion to supplement his RCr 11.42 motion to assert additional claims of ineffective assistance of counsel. Specifically, he alleged trial counsel was ineffective by failing to: (1) present mitigation evidence during the penalty phase; (2) investigate and present an alternative perpetrator defense; (3) properly object to Detective Finch's comments made during Walker's interview which was played to the jury; (4) object to the trial court's evaluation of the children's competency to testify; and (5) cumulative error.
On August 20, 2012, the trial court denied Walker's request to supplement on the basis that counsel had been appointed and must file pleadings. Appointed counsel raised the same claims in a subsequent motion requesting an evidentiary hearing. After the Commonwealth filed a response, on December 19, 2014, the trial court denied the motion without an evidentiary hearing. Walker appealed.
While his appeal from the order denying RCr 11.42 relief was pending, on July 15, 2015, Walker filed a motion pursuant to CR 60.02 (d) and (f) alleging he was denied effective assistance of post-conviction counsel when appointed counsel failed to amend or supplement Walker's pro se RCr 11.42 motion to assert additional claims of ineffective assistance of trial counsel, failed to advise him concerning his right to timely file a motion for additional findings of facts and conclusions of law and, upon moving to withdraw from the case, failing to notify him of his right to object and appeal any orders granting counsel's request to withdraw. That motion was denied and Walker appealed.
Initially, we note that in his appellate brief, Walker intertwines the claims of ineffective assistance of trial counsel raised in his RCr 11.42 motion and those of ineffective assistance of counsel asserted in his CR 60.02 motion. He also does not set forth the specific issues raised on appeal so that they are readily discernible. To avoid confusion, we first address his claims of ineffective assistance of counsel in his CR 60.02 motion.
Our Supreme Court has specifically stated that there is no right to the effective assistance of counsel in post-conviction proceedings in Kentucky, and we are bound by that decision. Harper v. Commonwealth, 978 S.W.2d 311, 318 (Ky. 1998). The United States Supreme Court's decision in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), does not alter that law.
Martinez involved a prisoner's federal habeas corpus petition, which the Federal District Court refused to decide pursuant to the doctrine of "procedural default" after counsel declined to raise any claims of ineffective assistance of trial counsel at the collateral stage. Under Arizona law, that was the only stage at which such claims could be raised. Id. at 4-5, 132 S.Ct. at 1313. The United States Supreme Court held that "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. at 17, 132 S.Ct. at 1320 (emphasis added).
We previously addressed an argument similar to that presented by Walker and concluded Martinez did not change existing Kentucky law that an ineffective assistance claim based on the assistance of post-conviction counsel is not available in Kentucky. In Shane v. Commonwealth, 2012-CA-000914-MR, 2013 WL 6198353 at 4 (Ky.App. 2013) (internal citations, footnotes and quotations omitted), we stated:
Martinez came to the United States Supreme Court via the State of Arizona, where, unlike Kentucky, a convicted person alleging ineffective assistance of trial counsel can only bring such a claim in a state collateral proceeding, not on direct appeal. This function of Arizona law was the impetus for the
Martinez Court's willingness to lower the procedural bar a defendant would otherwise encounter.
The same procedural bar which exists in Arizona does not exist in Kentucky. The Martinez Court went to great lengths to limit its ruling with this difference in mind, making it clear that its decision would not apply to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons. The few courts in Kentucky who have taken up the issue since Martinez have consistently and exclusively held that Kentucky is such a state. Additionally, courts within the Sixth Circuit and other federal circuits have further held that in states like Kentucky, Martinez does not control.
Walker cannot claim he was denied effective assistance of post-conviction counsel in this appeal, whether raised by way of RCr 11.42 or CR 60.02.
Additionally, in his CR 60.02 appeal, Walker maintains he was denied effective assistance of counsel due to the allegedly heavy caseloads maintained by attorneys with the Kentucky Department of Public Advocacy (DPA). The Commonwealth argues that Walker was represented at trial and on direct appeal by the Louisville Metro Public Defenders Program, not DPA. In either event, Walker is precluded from raising the issue in his CR 60.02 motion because it could have been raised in his previously filed RCr 11.42 motion. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Our focus is upon the remaining claims of ineffective assistance of trial counsel raised in his RCr 11.42 motion.
RCr 11.42 relief based on ineffective assistance of counsel is extraordinary and only available if the movant meets the "performance" and "prejudice" prongs set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Unless 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." Id. at 687, 104 S.Ct. at 2064.
The "performance" prong requires that the movant show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 688, 104 S.Ct. at 2064. There is 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. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).
The prejudice prong requires that the movant show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The reasonable probability under the prejudice prong is a probability "sufficient to undermine confident in the outcome." Id.
An RCr 11.42 movant is not automatically entitled to an evidentiary hearing. RCr 11.42(5) states in part that if there is a "material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing[.]" When considering whether an evidentiary hearing is required, "[a] 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). Where no evidentiary hearing is held, our review is restricted to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Under these established principles, we address Walker's remaining arguments. First, he argues that the trial court's order denying his RCr 11.42 motion is "vague and ambiguous."
Essentially, Walker argues that the trial court failed to make sufficient findings of fact and conclusions of law. While that might be true if an evidentiary hearing was held, if there is no RCr 11.42 evidentiary hearing, no findings are required. Stanford v. Commonwealth, 854 S.W.2d 742, 744 (Ky. 1993). Therefore, Walker's claim could have merit only if he was entitled to an RCr 11.42 hearing.
Walker incorrectly assumes that because he was appointed counsel, he was entitled to a hearing. Simply because the trial court appointed counsel, it does not necessarily follow that Walker was entitled to an evidentiary hearing. While counsel must be appointed if a movant is entitled to an RCr 11.42 hearing, Fraser, 59 S.W.3d at 453, counsel may be appointed even if no hearing is required. A trial court has the discretion to appoint counsel at any time during the proceedings even if counsel is not required by the constitution, statute, or rule. Id. As noted, a hearing is never automatic and is required only "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Id. at 452.
Walker argues trial counsel was ineffective by failing to challenge the jury venire as not containing a "fair-cross-section" of the community. It is an essential principle of criminal law that a jury must be drawn from a representative cross-section of the community to satisfy the Sixth Amendment's guarantee of a fair and impartial jury. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). However, Walker has the burden to establish a prima facie violation of the fair-cross-section requirement. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). A prima facie violation is established by showing "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 364, 99 S.Ct. at 668.
Walker argues that the original venire did not constitute a fair and reasonable number of African Americans compared to the number of African Americans in Jefferson County. It is well established that for purposes of a fair-cross-section claim, African Americans are a distinctive group within the community. Mash v. Commonwealth, 376 S.W.3d 548, 552 (Ky. 2012). However, Walker cannot meet the second and third parts of the Duren standard.
Walker did not set forth facts to establish the venire was not a fair and reasonable representation of African Americans in Jefferson County. In fact, he states just the opposite. Walker alleges that the original venire consisted of 87 people, nine who were African American. He further alleges that African Americans comprised eight percent of the population of Jefferson County based on the 2010 census. Based on Walker's statements, he failed to set forth a prima facia violation of the fair-cross-section requirement. Counsel cannot be deemed to have been ineffective for failing to make a futile fair-cross-section challenge.
The record clearly refutes Walker's allegation that trial counsel was ineffective when he failed to strike juror 931. During voir dire, Juror 931 was randomly struck from the jury panel by the trial court. Even if there was some merit to Walker's claim that Juror 931 should have been struck by use of a challenge by counsel, there could be no prejudice where that juror never decided Walker's fate.
Walker also alleges he was denied the right to due process and a fair trial by the admission of autopsy photos of the victim. However, Walker readily acknowledged in his RCr 11.42 motion that counsel objected to the photographs on the basis they were cumulative, gruesome and highly inflammatory. Therefore, the issue was one that should have been brought in his direct appeal and is not a proper basis for an RCr 11.42 motion based on ineffective assistance of counsel. Gross, 648 S.W.2d at 857.
Walker also argues that trial counsel was ineffective for failing to present mitigation evidence at sentencing. It is a basic premise that an RCr 11.42 movant must state facts in support of the ground for relief raised. Stanford, 854 S.W.2d at 748.
While Walker alleges his mother, aunt, and sister could have offered mitigation testimony if called, he does not state the content of their possible testimony or how their testimony would have changed the sentences imposed. Additionally, this is not a case where trial counsel sat silent during the penalty phase. Counsel urged the jury to consider evidence presented during the guilt phase, including that Walker suffers from schizophrenia and evidence of extreme emotional disturbance.
Despite Walker's statements to police that he killed Scott unintentionally, the damaging testimony from the children who witnessed the killing and Thomas's description of the events immediately after the killing, Walker argues trial counsel should have pursued an alternative perpetrator defense. Walker advances no theory regarding who such a person might be or, if counsel had investigated, what evidence would have been discovered. In light of the undisputed facts in the record, it was certainly reasonable for trial counsel to pursue an extreme emotional defense and argue the killing was unintentional.
Walker argues that trial counsel was ineffective by failing to object to the admission of Detective Finch's comments during his interview. This issue was raised on direct appeal and resolved unfavorably against Walker. He argued the comments by Detective Finch during the interview that Walker was lying, those made regarding other evidence, and those relating to the detective's personal life should have been excluded. The Supreme Court noted that the issue was not preserved and proceeded with review under a palpable error analysis.
As to the admissibility of the comments, the Court found no error. It concluded that the trial court did not err in admitting "those segments of the interrogation during which the detective described his personal feelings." Walker, 349 S.W.3d at 312. Therefore, we must conclude that trial counsel was not ineffective for failing to object to admissible evidence.
However, the Supreme Court's inquiry into the issue did not end with the admissibility of the evidence. It noted, that although admissible, there was a risk that "the jury might give substantive credit to an interrogator's statement admitted only as evidence of context" and that Walker was entitled to an admonishment that Detective Finch's personal remarks were offered only to provide context for Walker's responses. Id. However, the Court found the error was not palpable. It reasoned:
Even without an admonishment, the jury would readily understand that the detective's personal remarks were employed only in an attempt to establish rapport with Walker and to encourage him to be forthcoming. Nor were those remarks at all likely to have influenced the jury's findings, which had overwhelming support in the other evidence.
Id.
Although the Supreme Court found no palpable error, Walker is not precluded from raising the counsel's failure to preserve the issue as ineffective assistance of counsel. Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009), overruled previous case law holding that failure to prevail on direct appeal barred any claim for relief on related issues through RCr 11.42. The Court "noted that the standards for evaluating potential palpable errors on direct appeal and claims of ineffective assistance of counsel [are] substantially different, with the palpable error standard being more stringent." Id. at 157. Therefore, "appellate resolution of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective assistance of counsel." Id. at 158.
However, it does not necessarily follow that an appellate court's ruling that the trial court erred but that such error was not properly preserved compels a finding that RCr 11.42 relief is warranted. Even if Walker's claim that the failure to object to the detective's comments constituted deficient performance, he must still meet the prejudice prong of Strickland. As noted in Brewster v. Commonwealth, 723 S.W.2d 863, 864-65 (Ky.App. 1986):
The trial court is permitted to examine the question of prejudice
before it determines whether there have been errors in counsel's performance. In making its decision on
actual prejudice, the trial court obviously may and should consider the totality of the evidence presented to the trier of fact. If this may be accomplished from a review of the record the defendant is not entitled to an evidentiary hearing.
Likewise, on appellate review, if the trial court properly denied Walker's RCr 11.42 motion on prejudice grounds without a hearing, there is no need for this Court to order a "nugatory hearing to determine trial strategy."
Commonwealth v.
Searight, 423 S.W.3d 226, 231 (Ky. 2014).
As our Supreme Court observed in its lengthy opinion on direct appeal, Walker's statements to police, the children's testimony, Thomas's testimony and the medical evidence constituted overwhelming evidence of guilt and the additional personal comments by the detective had little impact on the jury. The lack of an admonition did little, if anything, to contribute to the jury's finding of guilt and, therefore, the record refutes Walker's claim of prejudice sufficient to meet the prejudice prong of Strickland.
Walker's final contention is that trial counsel was ineffective by failing to object to the court's evaluation of the children's competency to testify. A review of the record reveals that trial counsel challenged the competency of the children to testify and a hearing was held. The trial court determined they were competent under Kentucky Rules of Evidence 601. When each child was called at trial, the trial court asked if each recalled talking with the court and if each promised to tell the truth in their testimony. The trial court properly administered an appropriate oath after determining the children's competency. Counsel's failure to make a meritless objection was not ineffective assistance of counsel.
Because we conclude there is no merit to Walker's ineffective assistance of counsel claims, there cannot be a cumulative prejudicial effect.
Based on the forgoing, the orders of the Jefferson Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Ronny D. Walker, pro se
West Liberty, Kentucky BRIEFS FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky