Opinion
NO. 2015-CA-001774-MR
03-09-2018
JAYSON HARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Michael L. Goodwin Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 10-CR-00585-001 MEMORANDUM OPINION AFFIRMING
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BEFORE: MAZE, SMALLWOOD, AND TAYLOR, JUDGES.
Jayson Harris brings this pro se appeal from an October 27, 2015, order of the Fayette Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. We affirm.
The facts underlying this case were summarized in an opinion rendered by this Court on August 23, 2013, in Harris's and co-defendant Nathaniel Tyrone Barnes' direct appeal of their convictions, as set forth below:
The Commonwealth arranged for Lance Burton, a confidential informant who was facing his own trafficking charges, to perform an undercover buy from [Nathaniel] Barnes. On March 18, 2010, Burton called Barnes to arrange a purchase of cocaine. Barnes agreed to sell Burton two ounces of crack cocaine for $2,300. Burton and Barnes agreed to meet outside a Home Depot. Barnes arrived at the location with his girlfriend, Olivia Major. Major went inside the Home Depot while Barnes conducted the transaction with Burton. The police interrupted the buy after Barnes showed the cocaine to Burton. Officers found the crack cocaine in Barnes's pockets.
According to the Commonwealth, after Barnes was arrested, Major agreed to cooperate with the police. Major told Detective Curtsinger that she had been with Barnes when he received the cocaine from "J-Man" at a gas station. She identified Harris as "J-Man" from a photo that the police showed her. The police arranged for Major to call Harris and tell him that Barnes needed more cocaine.
After Harris was called by Major, police surveillance identified Harris's rented car pulling into the garage of a residence leased by Adrianne Parker, Harris's alleged girlfriend, and leaving shortly thereafter. Harris then drove to the Home Depot.
When Harris arrived at the Home Depot, the police blocked in his vehicle but Harris fled on foot. He was captured near a creek where the police found a torn and empty baggie. Later, Parker's residence was searched pursuant to a warrant and the search uncovered drugs, paraphernalia and cash.
On May 11, 2010, Harris and Barnes were jointly indicted as follows: count one: first-degree trafficking in a controlled substance (Harris and Barnes for the cocaine Barnes tried to sell Burton); count two: first-degree trafficking in a controlled substance (Harris for the drugs found at Parker's residence); count three: tampering with physical evidence (Harris for the empty baggie indicating he had disposed of drugs); count four: possession of drug paraphernalia (Harris for paraphernalia found at Parker's residence); count five: second-degree fleeing or evading police (Harris for running from the police outside the Home Depot); count six: possession of marijuana (Barnes); count seven: first-degree persistent felony offender (PFO-1) (Harris); and count eight: PFO-1 (Barnes). Later, the indictment was amended to change count eight to second-degree persistent felony offender (PFO-2).
At trial, the evidence was overwhelming that Barnes had trafficked in cocaine. However, a major issue during the trial was whether Barnes was acting in concert with Harris or acting on behalf of his friend Sean "Biggs" Bigelow and, therefore, less responsible for his actions. Barnes attempted to establish he was only guilty of facilitating the sale of cocaine between Burton and Bigelow. Bigelow waived his Fifth Amendment rights to testify on Barnes's behalf.
The Commonwealth claimed that Harris was the source of Barnes's cocaine based upon Major's statements to police at the Home Depot. However, at trial, Major recanted these statements and testified she did not remember what she had told the police or what happened at the Home Depot because she was extremely intoxicated at the time.
Bigelow and Burton both testified that Burton called Bigelow several times trying to purchase some cocaine from Bigelow and that Bigelow referred Burton to Barnes. Burton testified he was not aware of Barnes as a source of drugs before talking to Bigelow.
The accounts from Burton and Bigelow differed as to what Barnes's role was in the transaction. Burton testified that Bigelow referred him to Barnes as an alternative source of drugs. Burton testified that Barnes made all the arrangements with him for the sale of the cocaine and their recorded phone conversations were introduced at trial.
Bigelow testified he was Barnes's source and Barnes was doing him a favor when Barnes delivered the drugs to Burton. Bigelow testified he knew Burton from when they had previously used drugs together and wanted to help Burton when Burton called him about cocaine. Bigelow testified that Burton sounded desperate to buy cocaine. Bigelow testified he purchased the cocaine for Burton from another source and was passing the cocaine on to help Burton. He testified he could not meet with Burton because he had to go to work, but asked his close friend Barnes to deliver the drugs. After Barnes agreed, Bigelow gave Barnes's number to Burton.
Major testified regarding the arrangements between Barnes and Bigelow, claiming that she had a better memory about what happened earlier in the day because she was less intoxicated at that time. Major testified that Bigelow requested that Barnes do him a favor by delivering cocaine to one of his friends. According to Major, Barnes was not going to get any money out of the deal, but was just doing a favor for Bigelow. Burton and Major agreed that Burton was the one who called Barnes to arrange the deal.
At the close of the Commonwealth's case, Harris moved for a directed verdict on counts one, two and three. The motion was granted as to count three, tampering with physical evidence.
. . . .
Harris received a mixed verdict. Harris was acquitted on count one: trafficking in a controlled substance first degree (based upon the cocaine Barnes had) and count four: possession of drug paraphernalia.
The jury found Harris guilty of count two: trafficking in a controlled substance first degree (based upon the evidence found at Parker's house); count five: second-degree fleeing or evading the police; and count seven: PFO-1. Harris was sentenced to ten-years' imprisonment enhanced to thirteen.Harris v. Commonwealth, Appeal Nos. 2011-CA-002336-MR and 2012-CA-000024-MR, 2013 WL 4508002 (August 23, 2013). This Court affirmed Harris's conviction.
. . . .
Harris argues the trial court erred by refusing to sever his trial. He argues his convictions were the result of guilt by association when he was tried together with Barnes.
Joinder is permissible for defendants charged in the same indictment who are alleged to have participated in the same act or transaction or same series of acts or transactions constituting the offense or offenses. RCr 6.20; Burdell v. Commonwealth, 990 S.W.2d 628, 633 (Ky. 1999). Generally, defendants who are jointly indicted should be tried together and joint trials are preferred. Bratcher v. Commonwealth, 151 S.W.3d 332, 340 (Ky. 2004); Burdell, 990 S.W.2d at 633.
. . . .
Harris failed to establish improper joinder. The Commonwealth alleged that Barnes and Harris were both guilty of the count one trafficking charge and Harris's fleeing and tampering with evidence charges resulted from his aborted attempt to bring Barnes more cocaine. This is a sufficient connection for joinder.
On January 9, 2015, Harris filed the instant pro se RCr 11.42 motion to vacate his sentence of imprisonment, alleging ineffective assistance of trial counsel. Harris then obtained counsel and filed a supplemental brief on April 14, 2015. By order entered October 27, 2015, the circuit court denied Harris's RCr 11.42 motion without an evidentiary hearing, finding that the issues raised by Harris could be resolved on the face of the record. This appeal follows.
Harris argues on appeal that the trial court erred when it failed to conduct an evidentiary hearing on his RCr 11.42 motion. Harris also argues that his trial attorney was ineffective for the following reasons: 1) failing to call witnesses to testify he did not live at the address where the police discovered the cocaine; 2) failing to timely move to sever his case from his co-defendant's case; 3) failing to file a motion to suppress the results of the search of his person; 4) failing to file a motion to suppress the evidence discovered under the search warrant because it was based on a tip by a confidential informant who had not been proven to be reliable; 5) failing to impeach Detective David Lewis after he testified inconsistently with his affidavit; and 6) failing to object to prejudicial statements in the Commonwealth's closing arguments concerning a threat made to Major.
To prevail on his appeal, Harris must demonstrate that trial counsel's performance was deficient and that such deficiency was prejudicial. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Com., 702 S.W.2d 37 (Ky. 1985). Prejudice occurs when, absent trial counsel's deficient performance, there exists a reasonable probability that the jury would have reached a different result. Norton v. Com., 63 S.W.3d 175 (Ky. 2001), as modified (Jan. 17, 2002). It was incumbent upon Harris to demonstrate that absent counsel's alleged errors, the jury would have reached a different result. Bowling v. Com., 981 S.W.2d 545 (Ky. 1998). A defendant has a heavy burden to establish that trial counsel's performance was ineffective or unreasonable, and this burden is subject to the presumption that counsel's conduct falls within the acceptable range of reasonable and effective assistance of counsel. Humphrey v. Com., 962 S.W.2d 870 (Ky. 1998). And, an evidentiary hearing is only required if Harris's allegations cannot be resolved upon the face of the record. See Fraser v. Com., 59 S.W.3d 448 (Ky. 2001).
In this case, the circuit court thoroughly addressed the issues raised in Harris's motion and the applicable law in its order denying the motion. With the exception of Harris's argument regarding counsel's failure to seek severance of his case from his co-defendant, which was resolved on direct appeal, all of Harris's grounds are premised in some manner upon counsel's trial strategy. As noted, the trial court thoroughly analyzed and addressed these claims based upon the record below and found no legal basis to support the arguments. We are in total agreement with the trial court. In overruling or denying the motion, the trial court stated:
Harris is attempting to collaterally attack a jury verdict based upon his disagreement with strategic decisions that were made during the course of trial.
Harris' [sic] has failed to meet the burden that he must overcome a "strong presumption" that the strategic decisions Wright made during the course of the trial were within the "wide range" of acceptable representation. Strickland [v. Washington, 466 U.S. 668, 698, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984)] and Tollett v. Henderson, 411 U.S. 258, 266 (1973) quoting McMann v. Richardson, 397 U.S. 759, 771 (1970).October 27, 2015, Order at 4-5.
Harris also argues the statements made by his co-defendant, Nathanial Barnes, as well as testimony given by detectives in the case and the witness, Olivia Major, were prejudicial and that Wright did not object to those statements. Again, this behavior does not on its face represent an error that rises to the level of "ineffective representation." First, a jury trial represents two opposing sides of an issue and therefore, testimony for one side is inherently favorable for one party and not for the other. Second, the Court is well aware of the Rules of Evidence and there may be more than one reason that an attorney does not object to testimony. Again, Harris has not shown that Wright's representation was so deficient that it "fell below an objective standard of reasonableness." Strickland, supra. Harris, is therefore, not entitled to the relief provided by RC[r] 11.42.
Accordingly, we adopt and incorporate the trial court's analysis and conclusion that Harris failed to meet his burden to establish that counsel's performance at trial was ineffective. As concerns the allegations regarding the failure of counsel to sever Harris's case at trial from his co-defendant, this issue was resolved against Harris in his direct appeal by another panel of this Court which remains the law of the case and may not be raised again in Harris's RCr 11.42 motion. Luna v. Com., 460 S.W.3d 851 (Ky. 2015).
Finally, we simply note that Harris was not entitled to an evidentiary hearing insofar as his motion did not raise any material issues of fact that could not be determined on the face of the record below. RCr 11.42(5).
For the foregoing reasons, the order of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael L. Goodwin
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky