Opinion
NO. 2014-CA-000944-MR
02-19-2016
WALTER R. GEORGE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Walter R. George, Pro Se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 09-CR-00241 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Walter George appeals from the McCracken Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. Finding no error, we affirm.
We note that George has already directly appealed his convictions for reckless homicide and persistent felony offender in the first degree (PFO I) to this Court. Accordingly, we will utilize the description of facts from our opinion, which became final on February 22, 2013, after the Kentucky Supreme Court denied discretionary review.
On April 1, 2009, George and his girlfriend Debra Hollowell were driving to his mother's residence located on Park Avenue. Around this time, Artavius Chunn, Ricky Ragsdell, Devonte Woods, and Ben Pryor left a cookout and proceeded to walk to Ragsdell's residence also on Park Avenue. When George and his girlfriend arrived at his mother's residence, the couple crossed paths with the group of men. In the weeks prior to this encounter, George and Chunn had multiple hostile dealings regarding money that George allegedly owed Chunn.
Although the testimony at trial varied among the witnesses, it is undisputed that George and Chunn exchanged words. Punches were thrown by one or both parties before George was struck on the head. George then pulled out a pocket knife and stabbed Chunn in the left side of the chest. Chunn realized that he had been stabbed and began to leave the scene but collapsed. Chunn later died.
In May 2009, the McCracken County Grand Jury indicted George on one count of murder and one count of being a PFO I. The case went to trial, and the jury found George guilty of the lesser included offense of reckless homicide and of being a PFO I. The jury recommended that George serve eighteen years' imprisonment. George was sentenced per the jury's recommendation on April 20, 2010. As noted above, George directly appealed his conviction, and this Court affirmed.
After the Supreme Court denied discretionary review, George filed a motion to vacate his conviction under RCr 11.42. The trial court denied the motion without an evidentiary hearing, finding that George's claims were refuted by the record. George timely filed the instant appeal.
The McCracken Circuit Court appointed the Department of Public Advocacy to represent George. The DPA reviewed George's case and subsequently filed a motion with this Court for permission to withdraw, arguing that George's appeal was not a "proceeding that a reasonable person with adequate means would be willing to bring at his own expense." This Court entered an order on October 30, 2014, granting the DPA's motion to withdraw as counsel on George's behalf. In the order, this Court noted that although George had received notice of the DPA's motion to withdraw, he had not filed an objection or a response.
George first argues that this Court improperly granted the DPA's motion to withdraw as counsel. In support of this argument, George argues that because this proceeding is the first proceeding in which he can challenge his conviction on the ground that he received ineffective assistance of counsel, he is entitled to representation by an attorney. George contends that this Court's order allowing the DPA to withdraw amounts to a deprivation of his constitutional rights to counsel.
The Commonwealth argues that George failed to object or file a response to the DPA's motion to withdraw and that a failure to raise a timely objection waives any subsequent claim of error, citing Collett v. Commonwealth, 686 S.W.2d 822, 823 (Ky. App. 1984).
We agree with the Commonwealth that a failure to object to the DPA's motion to withdraw as counsel does amount to a waiver of George's argument before this Court. See Blount v. Commonwealth, 392 S.W.3d 393, 398 (Ky. 2013). Even assuming that George did not waive this argument, the Kentucky Supreme Court has held that a defendant does not have a constitutional right to counsel in an appeal from a collateral attack proceeding. See Moore v. Commonwealth, 199 S.W.3d 132, 136 (Ky. 2006). Because this is an appeal from a collateral attack, George does not have a constitutional right to counsel.
For his second argument, George contends that he received ineffective assistance of counsel when his trial attorney failed to move to suppress all the out-of-court statements and identifications made by witnesses involved in the case. George argues that his counsel should have moved to suppress the testimony of witnesses who were present when the fight between him and Chunn took place; namely, Ricky Ragsdell, Devonte "Bubba" Woods, and Ben Pryor. George argues that the witnesses were drunk at the time of the stabbing, and thus his counsel should have moved to suppress their statements because they were not reliable and were unduly prejudicial.
The Commonwealth argues that George improperly characterizes this issue as trial counsel's failure to suppress the statements made against him. Instead, the Commonwealth contends that George is arguing that the witnesses who testified against him were not competent and were therefore not credible because they were intoxicated at the time of the stabbing incident.
We initially note that in order to make a successful ineffective assistance of counsel claim, a defendant must prove both that trial counsel's performance was deficient and that this deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). See also Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985).
Furthermore, we agree with the Commonwealth that George is actually arguing that the witnesses were not credible and mischaracterizes his argument as a suppression issue. Nonetheless, George argues to this Court that his trial attorney should have moved to suppress the statements of witnesses Ragsdell, Woods, and Pryor because they were intoxicated at the time of the events in question and that counsel's failure to do so prejudiced his defense. In its order denying George's motion for relief, the trial court noted that George had not offered any proof that Ragsdell, Woods, or Pryor were actually intoxicated at the time the stabbing occurred, and the record reflects that George based his argument that they were intoxicated on the fact that evidence of alcohol and marijuana were found in victim Chunn's system at the time of his death. We agree with the Commonwealth and the trial court that, without some evidence that the witnesses were intoxicated at the time of the incident, George has not demonstrated that his counsel was ineffective for failing to file a motion to suppress all statements by those witnesses. Furthermore, George is not arguing that the witnesses misidentified him due to their intoxication. He acknowledges that the witnesses were present at the scene and that they all knew each other. Instead George is arguing that their memory as to the sequence of events cannot be trusted because they were intoxicated at the time they observed the events taking place.
We also agree that this was a credibility issue and that defense counsel did not make a motion to suppress because it likely would have been denied. It was the jury's role to determine the credibility of the testifying witnesses based on the totality of the circumstances at the time of the incident and at trial. We cannot say that George received ineffective assistance of counsel in this regard or that he was prejudiced by his trial counsel's decision not to file a motion to suppress.
Next, George argues that the trial court improperly denied his motion with regard to his claim that he received ineffective assistance of counsel because his counsel failed to assert a "no duty to retreat" defense. As the Commonwealth stated in its brief, this particular argument is hard to follow. George initially argues that his counsel was ineffective for failing to investigate a self-protection defense and to secure a "no duty to retreat" instruction. However, as the trial court's order reflects, defense counsel did in fact pursue a self-protection defense and requested a "no duty to retreat" instruction from the court. This request was successful, and the jury convicted George of the lesser charge of reckless homicide. However, George goes on to argue that his counsel was ineffective for requesting the lesser included instruction of reckless homicide. George does not appear to have made this latter argument to the trial court, as his motion for RCr 11.42 relief states that his argument "is not based on whether or not trial counsel fulfilled his obligation to his client by getting him convicted of a lesser included offense."
Because his arguments are difficult to follow, we are somewhat hesitant to reach a conclusion that George is making a different argument to this Court than he did to the trial court. However, we cannot deduce any error by trial counsel in seeking out an instruction on self-defense and the lesser included offense of reckless homicide. Trial strategy is left to the judgment of the trial attorney. See Strickland, 466 U.S. at 690-91. Furthermore, as common sense dictates, this Court is usually presented with the argument that trial counsel failed to request a lesser included offense instruction and that such a failure amounted to ineffective assistance of counsel. George is arguing the reverse here, at least in part. In Simms v. Commonwealth, 2015 WL 1433298 (Ky. App. March 27, 2015), this Court held that a trial counsel's request for a lesser included instruction was a "classic lesser included offense strategy" and that the trial court had properly denied the defendant's motion for relief. Id. at *5.
In the instant case, we agree that the facts of the case support trial counsel's decision to request a lesser included offense instruction. George admitted to stabbing Chunn, and the only issue was whether George feared for his life and acted in self-protection or whether he misperceived a threat and committed reckless homicide. We find no deficient performance by George's counsel with regard to requesting a lesser included offense jury instruction, and the trial court properly denied George's claims to the contrary. Furthermore, such a conclusion was supported by the record, and thus an evidentiary hearing was not warranted.
Because George has not presented evidence that he received ineffective assistance of counsel that cannot be refuted by the record, the trial court properly denied his motion for RCr 11.42 relief without an evidentiary hearing. Accordingly, we affirm the trial court's May 14, 2014, order denying George's motion for post-conviction relief.
ALL CONCUR. BRIEF FOR APPELLANT: Walter R. George, Pro Se
Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky