Opinion
NO. 2019-CA-000667-MR
05-29-2020
JAMES DAVID ADKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Javier L. Esteve LaGrange, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OHIO CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE
ACTION NO. 07-CR-00033 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. DIXON, JUDGE: James Adkins appeals the denial of his RCr 11.42 motion to vacate judgment of his conviction entered by the Ohio Circuit Court on April 17, 2019, alleging ineffective assistance of his trial counsel. Applying the two-prong performance and prejudice standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court denied Adkins' motion, finding that he failed to show his trial counsel's performance was deficient or that his case was prejudiced by trial counsel's actions. Following a careful review, we affirm.
Kentucky Rules of Criminal Procedure.
FACTS AND PROCEDURAL BACKGROUND
Adkins previously filed a direct appeal from his judgment entered by the trial court convicting him of first-degree trafficking in a controlled substance and possession of drug paraphernalia. We adopt the facts, as follows:
On March 16, 2007, Captain Tracy Beatty of the Ohio County Sheriff's Department went to Adkins' home to serve a warrant for Adkins' arrest on an unrelated charge while Adkins was next door at his brother's house. Captain Beatty then went to Adkins' brother's house. Upon finding Adkins, Captain Beatty ordered him to come out of the house. After placing Adkins under arrest, Captain Beatty noticed an object in Adkins' pocket and asked Adkins about the object. Adkins responded that he did not know what it was. Captain Beatty searched Adkins' pocket and discovered a sock containing methamphetamine, a needle, several small plastic bags, and devices used to snort methamphetamine.
Adkins testified at trial that he found the sock of drugs in the driveway he shared with his brother after another individual, Nathan Edge, visited the property. Adkins testified he saw something fall from Edge's truck, which he assumed was trash. Adkins testified he took the sock to his brother's house intending to turn it in to law enforcement.
Following a jury trial, Adkins was convicted of first-degree trafficking in a controlled substance and
possession of drug paraphernalia. He was sentenced to a total of five years of imprisonment. Adkins appealed, and this Court reversed and remanded due to an error in a jury instruction. Adkins v. Commonwealth, No. 2008-CA-000359-MR, 2009 WL 3486640, *1 (Ky. App. Oct. 30, 2009) (unpublished). The Commonwealth sought discretionary review, which the Kentucky Supreme Court granted. The Kentucky Supreme Court affirmed this Court's decision. Commonwealth v. Adkins, 331 S.W.3d 260, 267 (Ky. 2011). Following the new trial on remand, Adkins was again convicted of first-degree trafficking in a controlled substance and possession of drug paraphernalia. This time, he was sentenced to ten years of imprisonment. This appeal followed.Adkins v. Commonwealth, No. 2013-CA-000433-MR, 2015 WL 4978991, at *1 (Ky. App. Aug. 21, 2015). That panel of our Court affirmed the judgment. Adkins subsequently filed the RCr 11.42 motion, and an evidentiary hearing was held. The trial court ultimately denied Adkins' motion, and this appeal followed.
STANDARD OF REVIEW
As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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.
[Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.] To show prejudice, the
defendant must show 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 the probability sufficient to undermine the confidence in the outcome.
Both Strickland prongs must be met before relief may be granted. "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." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In this case, we need not determine whether Adkins' trial counsel's performance was adequate because Adkins fails to demonstrate prejudice resulting from counsel's allegedly deficient performance.
[Id., 466 U.S. at 694, 104 S.Ct. at 2068.]
"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
To establish prejudice, a movant must show a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. at 2068. In short, one must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., 466 U.S. at 687, 104 S.Ct. at 2064. Fairness is measured in terms of reliability. "The likelihood of a different result must be substantial, not just conceivable." Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington v Ritcher, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011)).
Mere speculation as to how other counsel might have performed either better or differently without any indication of what favorable facts would have resulted is not sufficient. Conjecture that a different strategy might have proved beneficial is also not sufficient. Baze [v. Commonwealth, 23 S.W.3d 619 (Ky. 2000)]; Harper v. Commonwealth, 978 S.W.2d 311 (1998). As noted by Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc): "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel."Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "No conclusion of prejudice . . . can be supported by mere speculation." Jackson v. Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000) (citation omitted).
WITNESS TESTIMONY
On appeal, Adkins alleges that his trial counsel was ineffective for his failure to call four witnesses who testified at the first trial to testify at the second trial. Adkins claims the prior trial testimony of Julie McCarthy, Jeff Peach, and John Richardson corroborated his version of events that a white sock containing drugs and paraphernalia fell out of Nathan Edge's truck and into Adkins' driveway. However, none of those witnesses testified they saw a sock fall from Edge's truck, or Adkins pick up a sock. McCarthy testified she saw something she thought was a piece of white-colored trash fall from the truck as Edge was leaving, but not that she saw Adkins pick it up. She did testify she saw Ethan—Adkins' son—pick up a needle near the area where the white object fell from Edge's truck. Peach testified he saw Edge get out of his truck after he hit a trash can to adjust his tarp, but not that he saw anything fall from the truck. He also testified he saw Ethan pick up a needle in the driveway. Richardson neither testified that he saw Edge or his truck, nor that he saw Ethan pick up a needle in the driveway.
The first trial took place in January 2008. The second trial occurred on November 15-16, 2012.
At the evidentiary hearing Adkins' trial counsel testified that it had been over five years since the trial, and he did not remember much about it. Nevertheless, trial counsel asserted he was sure there were strategic reasons for his actions. Unfortunately, McCarthy died prior to the evidentiary hearing, and Peach testified at the hearing that he remembered nothing from the first trial or the day Adkins was arrested. Under Strickland, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted). Adkins has failed to overcome this presumption.
The evidentiary hearing was held on August 23, 2018.
Although Adkins believes the verdict could have been different had counsel performed better or differently, his assertions are speculative. He fails to establish a substantial likelihood the jury would have returned a different verdict absent counsel's failure to call McCarthy, Peach, and Richardson as witnesses. Instead, Adkins claims that the fact he received a higher sentence at the second trial is evidence of prejudice. However, Adkins was convicted of the felonies of first- and second-degree unlawful transaction with a minor between his first and second trials. The trial court did not err in determining that was the likely reason Adkins' sentence was higher, nor did it err in finding trial counsel's failure to call the witnesses did not constitute deficient performance or cause prejudice to Adkins' second trial. Adkins was not entitled to RCr 11.42 relief on this issue.
Sheriff Elvis Doolin also testified at the first trial. Adkins claims Sheriff Doolin's testimony corroborated that Adkins called him numerous times between when Adkins found the drugs and when he was arrested. Adkins did not speak to Sheriff Doolin during any of those calls, nor did he leave Sheriff Doolin any messages. In his brief, Adkins admits, "[d]uring the second trial, counsel made the correct decisions not to call Sheriff Doolin because the phone records better served Mr. Adkins." It is not contended that counsel's performance was deficient or that it prejudiced Adkins with respect to the failure to call Sheriff Doolin as a witness at the second trial. Consequently, the trial court did not err in denying Adkins RCr 11.42 relief on this issue.
WRITTEN STATEMENT
At the first trial Adkins was permitted to read the written statement of Chris Gilstrap, who claimed he overheard Edge tell Adkins, "thanks for not ratting him out over the drugs he dropped at James's house." The statement was not used during the second trial.
Once again, although Adkins believes the verdict could have been different had counsel performed better or differently, his assertions are speculative. He fails to establish a substantial likelihood the jury would have returned a different verdict absent counsel's failure to introduce Gilstrap's statement, and there is no evidence this created a prejudicial effect upon the outcome. Thus, the trial court did not err in denying Adkins RCr 11.42 relief on this issue.
COMMONWEALTH'S POST-HEARING RESPONSE BRIEF
Adkins claims the trial court erred when it failed to strike the Commonwealth's post-hearing response brief in opposition to his RCr 11.42 motion. Adkins takes issue with the Commonwealth's reference to him as a "convict" throughout its brief. This claim was clearly not presented to the trial court for consideration, and "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citations omitted).
CONCLUSION
Therefore, and for the foregoing reasons, the order entered by the Ohio Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Javier L. Esteve
LaGrange, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky