Opinion
NO. 2012-CA-000090-MR
01-03-2014
QUINCY BAILEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE ROBERT J. HINES, JUDGE
ACTION NO. 04-CR-00361
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Quincy Bailey challenges the summary denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion alleging ineffective assistance of counsel. Because Bailey failed to establish prejudice, we affirm.
On August 2, 2004, Bailey killed Billy Askew. At the jury trial, Bailey presented evidence this killing was justified as self-defense. The Commonwealth presented evidence that Bailey deliberately confronted and killed Askew. Bailey was convicted of murder and sentenced to life in prison. His conviction and sentence were affirmed on direct appeal. Bailey v. Commonwealth, 2006-SC-000785-MR, 2009 WL 1830808 (Ky. 2009) (unpublished) (Bailey I). Bailey then filed a Kentucky Rules of Civil Procedure (CR) 60.02 motion that was denied and this Court affirmed. Bailey v. Commonwealth, 2010-CA-000425-MR, 2011 WL 5244935, 2-3 (Ky.App. 2011) (unpublished) (Bailey II).
Bailey filed the instant motion under RCr 11.42 for relief of judgment based on ineffective assistance of counsel. The circuit court denied his motion without conducting an evidentiary hearing. Bailey appealed.
The Kentucky Supreme Court summarized the trial evidence as follows:
[Bailey] and Askew were at an area of Paducah known as "The Set" on the evening of August 2, 2004. A large crowd was present. Askew, angry that Bailey had refused to sell drugs for Askew's gang, confronted [Bailey]. After pulling a gun, Askew then patted down [Bailey's] pockets and removed $500. He ordered [Bailey] to leave and threatened to kill him if he returned to the area. [Bailey] left, but returned about forty-five minutes later to pick up his wife at her request, as she was fearful after the prior confrontation. [Bailey] carried a loaded 9mm pistol in his pocket.Bailey I, 2009 WL 1830808 at 1-2.
According to [Bailey's] testimony, as he walked around The Set looking for his wife, he spotted Askew. He testified that Askew approached him quickly and flashed a weapon tucked into his waistband. He drew his own weapon and shot Askew in the leg to stop him. However, as Askew continued to advance, [Bailey] continued to fire shots. He then fled. Two other defense witnesses testified that just prior to [Bailey's] arrival, Askew made
comments about [Bailey] to the effect that he would harm [Bailey] if he returned.
Uvander Hunter, Askew's cousin, contradicted this version of events. She testified that Askew was talking to friends when [Bailey] returned to The Set, and that he did not see [Bailey] approaching him from behind. Immediately before the first shot was fired, she heard [Bailey] say, "Now what? I'm back." Askew only fired his weapon after [Bailey] had fired, according to Hunter. Two other witnesses testified that Askew was lying on his stomach firing his gun, not advancing towards [Bailey].
The Commonwealth also called Johnny Harmon, who had given a prior recorded interview to police. In that statement, Harmon said that [Bailey] walked towards the victim and said: "Do you want to pull a pistol? Or wanna pull a pistol, or gun, or something?" Harmon then heard gunshots. In the interview, Harmon told police that Askew "never knew what was coming." At trial, however, Harmon recanted his entire prior statement, saying that he was coerced into making it after investigators told him they could "make stuff go away." Harmon interpreted this statement to mean the police had information upon which they could potentially bring criminal charges against him. He testified that he did not see anything that night, despite the fact that he identified himself as an eyewitness to police officers responding to the scene and gave a brief interview to police the day after the incident. Harmon, though, also admitted that he and his family were threatened about testifying at the trial. Due to the continual need to refresh Harmon's memory with the recorded statement, the jury heard its substance, though it was not introduced into evidence.
The physical evidence established that Askew died of multiple gunshot wounds, though it was undetermined in what order the shots were fired. Gunshot residue testing revealed that he was twice shot from a distance of two feet or less.
Following the shooting, Uvander Hunter took Askew's gun from the scene, though she gave it to investigators about two days later. [Bailey] fled Paducah and was apprehended a year later in Texas.
Bailey must establish he was deprived of his constitutional right to counsel in order to be entitled to the extraordinary relief of RCr 11.42. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), Bailey must show his counsel's performance was incompetent and prejudiced him because it fell below an objective standard of reasonableness and there is a reasonable probability the result of the proceeding would have been different but for counsel's errors. Hatcher v. Commonwealth, 310 S.W.3d 691, 696 (Ky.App. 2010). Proving deficient performance and prejudice is a heavy burden, especially given the presumption that counsel's conduct was reasonable and effective. Humphrey v. Commonwealth, 962 S.W.2d 870, 873 (Ky. 1998). Counsel's errors must have prevented the jury from having reasonable doubt, thus resulting in defeat when there should have been victory. Brown, 253 S.W.3d at 499.
On appeal, we examine counsel's performance and any resulting deficiencies de novo. Id. at 500. When an evidentiary hearing is not held on an RCr 11.42 motion, "[o]ur review is confined 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). "In seeking post-conviction relief, the movant must aver facts with sufficient specificity to generate a basis for relief." Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971).
A hearing is required if there is a material issue of fact that cannot be determined on the face of the record; a hearing is not necessary "[i]f the record refutes the claim of error" or if "the allegations, even if true, would not be sufficient to invalidate the conviction." Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). "The 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, 452-453 (Ky. 2001).
Bailey's first argument is his trial counsel erred by failing to investigate fifty-two potential witnesses disclosed in discovery. Bailey specifically states his counsel was told about Lakin Bradford and Gloria Harris, but failed to interview them or subpoena them to testify. Bailey claims Bradford would have testified she was with Hunter and Askew, and Askew told her he had a gun and was looking for Bailey to kill him over their argument. Bailey states Bradford's testimony would have contradicted Hunter's testimony that she did not know Askew had a gun until he pulled it. Bailey also states Harris would have testified regarding Askew's violent behavior and state of mind.
Bailey does not claim the absence of the testimony of these witnesses prejudiced him. He argues the extent of the prejudice he incurred is undeterminable because the circuit court failed to appoint counsel to investigate his allegations, speak to all potential witnesses and hold a hearing.
Bailey's counsel had an obligation to conduct a reasonable investigation under the circumstances. Wiggins v. Smith, 539 U.S. 510, 521-522, 123 S. Ct. 2527, 2535-2536, 156 L. Ed. 2d 471 (2003); Parrish v. Commonwealth, 272 S.W.3d 161, 169 (Ky. 2008). However, counsel is not ineffective for failing to interview witnesses who would merely provide duplicative evidence to that introduced at trial. Johnson v. Commonwealth, 180 S.W.3d 494, 498-499 (Ky.App. 2005).
Bradford's potential testimony was cumulative to that given by other defense witnesses which also contradicted Hunter's version of the events. Harris's potential testimony was duplicative of other testimony and less relevant. Neither woman's testimony would have provided evidence on the key issue as to whether Askew threatened Bailey with his gun before Bailey fired. Therefore, we cannot say their testimony would have altered the outcome of Bailey's trial.
Bailey fails to make allegations as to the testimony the unnamed potential witnesses would have given. We do not know whether their testimony would have furthered Bailey's claim of self defense or provided further evidence of his guilt. "[Bailey's] failure to specify precisely what exculpatory or mitigating evidence these additional witnesses . . . would have provided is fatal to his claim that he was prejudiced by the ostensible lack of investigation by counsel of those witnesses." Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011).
Bailey's second argument is counsel erred by failing to consult a ballistics expert who could have established which gun fired three bullets found at the scene. Bailey asserts an evidentiary hearing was needed to determine whether the failure to employ such an expert constituted deficient performance and prejudiced him.
Bailey does not claim these bullets were from Askew's gun, but such an inference is necessary for this evidence to benefit him. While evidence that these unfired bullets came from Askew's gun could have supported Bailey's claim that Askew was attempting to shoot him when Bailey shot Askew, such an inference could be made simply from the ballistics expert's testimony he did not know whose gun these bullets were from and other witness testimony that Askew returned fire. However, such evidence would not reveal whether Askew threatened Bailey with a gun before Bailey shot him. Accordingly, Bailey cannot demonstrate prejudice from his counsel's failure to obtain evidence on the source of these bullets.
Bailey's third argument is his counsel was deficient during the sentencing phase of his trial by failing to make an opening statement, failing to investigate or present any mitigation evidence, presenting inaccurate evidence as to the possible sentence he could face and failing to explain and request a minimum sentence. Bailey claims his counsel never discussed mitigation with him and, if asked, his mother and the mother of his children would have testified on his behalf. Bailey does not state the nature of their testimony or how it would have benefited him. He states counsel's actions led the jury to incorrectly believe it had to impose a life sentence.
"A trial counsel's failure to make an opening statement . . . does not automatically establish the ineffective assistance of counsel." Moss v. Hofbauer, 286 F.3d 851, 863 (6th Cir. 2002). Even if counsel was deficient by failing to make an opening statement, Bailey failed to allege he would have received a different sentence. Id. at 864.
A failure to investigate and present mitigation evidence may constitute ineffective assistance of counsel depending upon whether counsel's decision was reasonable under the circumstances. Wiggins, 539 U.S. at 523, 533, 123 S.Ct. at 2536, 2541; Parrish, 272 S.W.3d at 169. However, prejudice under Strickland must still be established. Wiggins, 539 U.S. at 534, 123 S.Ct. at 2542.
Assuming Bailey's counsel was deficient in failing to call these family members to testify, Bailey's failure to state with specificity their potential testimony precludes a finding of prejudice. Additionally, counsel's failure to offer basic general mitigation evidence regarding Bailey's family relationships and background is dissimilar to the type of omitted mitigation evidence sufficient to show prejudice or a reasonable probability of a different outcome. Gillard v. Mitchell, 445 F.3d 883, 896-897 (6th Cir. 2006).
The Commonwealth argues Bailey's assertion that improper testimony regarding the length of sentence which could be imposed was not properly presented before the trial court. However, if this argument were properly raised, Bailey failed to show prejudice because the jury learned its options for sentencing him and chose to impose a life sentence. The Supreme Court recounted the jury's sentencing recommendation process:
The jury originally returned a sentencing recommendation of "25 years to life." The trial court explained that the allowable sentences for murder were either a term of years between 20 and 50 years or life imprisonment. KRS 532.060(2)(a). The jury returned a revised recommendation of "life."Bailey I, 2009 WL 1830808 at 7. Therefore, no prejudice resulted because the jury received accurate information before it imposed the longest possible sentence.
Bailey's fourth argument is his counsel erred by failing to object to errors in the jury instructions and verdict form, the trial court's polling of the jury and the trial court's order interpreting the jury's verdict. Bailey claims he was prejudiced because if his counsel had made an objection, he would have been entitled to clarification of whether the verdict was for murder or manslaughter, which may have resulted in a conviction for manslaughter.
Whether the jury's verdict was ambiguous or it intended to convict him of manslaughter instead of murder has been addressed on direct appeal and in a CR 60.02 motion. On direct appeal, Bailey argued the verdict was irregular and contradictory and, therefore, void due to typographical errors in the jury instruction packet and verdict form. Because no objection was made to these errors, the Supreme Court reviewed the verdict for palpable error, explaining the circumstances of the errors as follows:
The jury instructions were numbered in this case. . . . Four homicide instructions were given: murder (Instruction 3); first-degree manslaughter (Instruction 4); second-degree manslaughter (Instruction 5); and reckless homicide (Instruction 6). . . . Each instruction was printed on a separate sheet of paper. The trial court correctly read the jury instructions to the jury and a packet of instructions was provided to each juror. However, in that packet, the first-degree manslaughter instruction was erroneously placed before the murder instruction. That is, the first six written instructions were given to the jury in the following order: Instruction 1 (presumption of innocence); Instruction 2 (definitions); Instruction 4 (first-degree manslaughter); Instruction 3 (Murder); Instruction 5 (second-degree manslaughter); and Instruction 6 (reckless homicide). Undoubtedly, this was an administrative mistake.Bailey I, 2009 WL 183080 at 5-6. The Supreme Court carefully reviewed the circumstances surrounding the verdict and determined there was no error in upholding a verdict of murder:
Unfortunately, the verdict form compounded this error. The written verdict form directed the jury to execute only one of five possible verdicts. The jury executed, and the foreperson signed, the first verdict statement: "We, the jury, find the Defendant, Quincy D. Bailey, guilty of Murder under Instruction No. 4." As stated above, Instruction 4 relates to first-degree manslaughter, not murder, though it was the first homicide instruction in the packet. Thus, on the face of the verdict form, two equally plausible interpretations exist: that the jury found [Bailey] guilty of murder, though the instruction erroneously refers to Instruction No. 4; or that the jury found [Bailey] guilty of first-degree manslaughter under Instruction No. 4, though the instruction erroneously refers to murder.
The ambiguity in the verdict form was not recognized at trial. The trial court accepted the verdict without objection from either party and polled the jury as to their finding of murder. Judgment was entered. Apparently, the trial court later realized the error in the verdict and issued an order the following week which stated: "The jury was polled as to their finding. Although, there is a typographical error in the verdict form, that both the Commonwealth and the defense counsel over looked
(sic), it does not effect (sic) the outcome of the jurors (sic) clear verdict of murder." [Bailey's] final sentencing occurred about a month later and, again, defense counsel made no objection regarding the verdict form.
It is our conclusion that the jury intended to find [Bailey] guilty of murder. The evidence adduced at trial strongly supported the finding that [Bailey] returned to The Set with the intention of killing Askew in revenge. When polled as to the finding of murder, no juror objected or attempted to correct the trial court. The jury's recommended sentence reflects a belief that the crime was so egregious as to warrant the highest possible sentence. Even after the verdict's deficiency was revealed, all parties proceeded with final sentencing under the belief that [Bailey] was found guilty of murder. In light of these circumstances, the jury's intent can be fairly ascertained.Id. at 8.
Bailey then filed a CR 60.02 motion raising this same issue. The Court affirmed the circuit court's denial of Bailey's motion, reasoning as follows:
In Bailey's case, the issue of the ambiguous verdict form was fully reviewed and resolved by the Supreme Court on direct appeal. It may not, therefore, be reconsidered under CR 60.02.Bailey II, 2011 WL 5244935 at 2-3.
. . . .
Moreover, since the Supreme Court has already ruled that the verdict of murder was not compromised by any errors in the instructions, the imposition of a life sentence as a result of that verdict was similarly without error.
In light of these previous rulings, it is evident that even if Bailey's counsel was deficient in failing to object to these errors regarding the verdict, no prejudice resulted because the jury's verdict would not have changed. The jury both intended and did convict him of murder, regardless of any irregularities.
Bailey's final argument is the above errors by counsel when considered cumulatively require reversal. We disagree because none of the claimed errors resulted in prejudice to Bailey.
Accordingly, we affirm the McCracken Circuit Court's denial of Bailey's RCr 11.42 motion for relief of judgment due to ineffective assistance of counsel.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky