Opinion
NO. 2010-CA-002295-MR
10-26-2012
KEVIN HENDERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aubrey Williams Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 97-CR-002403
OPINION
AFFIRMING
BEFORE: COMBS AND STUMBO, JUDGES; LAMBERT, SENIOR JUDGE. STUMBO, JUDGE: Kevin Henderson appeals from an order of the Jefferson Circuit Court denying his motion for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42. Appellant contends that the circuit court erred in denying his motion without an evidentiary hearing. After reviewing the record and the parties' briefs, we conclude that Appellant was not entitled to a hearing on his motion. Thus, we affirm.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes ("KRS") 21.580.
Facts and Procedural History
In 1997, Appellant and Cedric O'Neal were charged with the murder and robbery of Quinton Hammond. On May 27, 1998, a Jefferson County jury found both Appellant and O'Neal guilty of wanton murder and robbery in the first degree. Appellant was sentenced to concurrent terms of life imprisonment on the murder conviction and twenty years' imprisonment on the robbery conviction. The Supreme Court of Kentucky affirmed Appellant's convictions in a Memorandum Opinion rendered on December 20, 2001. Appellant subsequently filed a motion for post-conviction relief pursuant to Kentucky Rules of Civil Procedure ("CR") 60.02, but his motion was denied on January 28, 2004, and the decision was affirmed on appeal.
On February 1, 2005, while his CR 60.02 appeal was pending, Appellant filed a pro se motion for post-conviction relief pursuant to RCr 11.42 on the grounds that he had received ineffective assistance of counsel at trial. Appellant subsequently filed a pro se motion to amend and supplement his original RCr 11.42 motion. In support of his allegation that he had received ineffective assistance of counsel, Appellant claimed that his trial counsel: (1) failed to object to improper jury instructions; (2) failed to raise certain preserved issues on direct appeal; (3) failed to conduct an adequate pre-trial investigation; and (4) failed to seek dismissal of the indictment against him due to alleged irregularities in the grand jury proceedings. Specifically, Appellant claimed that his indictment was based on false testimony because a detective erroneously testified that Appellant had a record of prior weapons charges and drug arrests. Appellant also claimed that he was entitled to post-conviction relief because the circuit court failed to instruct the jury on complicity or facilitation and because the Commonwealth committed prosecutorial misconduct during the grand jury proceedings.
The circuit court declined to conduct a hearing or to appoint counsel to represent Appellant, and on March 11, 2005, it entered an order stating that the "'Motion to Amend Arguments within Movant's Submitted Pro Se RCr 11.42 with Additional Supplemental Argument' be and is hereby DENIED." No other order was entered with respect to Appellant's RCr 11.42 motion and no other pleadings were filed. On appeal, this Court concluded that the circuit court had not actually ruled on Appellant's RCr 11.42 motion in its order of March 11, 2005. Therefore, because there had been no final disposition of the motion, we dismissed the appeal.
On July 13, 2010, Appellant renewed his RCr 11.42 proceedings in the circuit court by moving for an evidentiary hearing on his original motion and his first supplement to that motion. Appellant also asked the circuit court to allow him to present a second supplement to his motion. In that proposed supplement, Appellant raised additional grounds for relief that had not been presented in the original motion or the first supplement. On November 18, 2010, the circuit court denied Appellant's motion without conducting an evidentiary hearing. This appeal followed.
Analysis
Appellant contends that the circuit court erred in denying his RCr 11.42 motion without conducting an evidentiary hearing. He offers two primary arguments in support of his position that trial counsel was ineffective and that a hearing would have established such: (1) counsel failed to properly investigate the facts behind certain testimony presented to the grand jury; and (2) counsel failed to seek dismissal of his indictment due to false, misleading, or perjured testimony presented to the grand jury.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth a two-pronged analysis to be used in determining whether the performance of a convicted defendant's trial counsel was so deficient as to merit relief from that conviction.
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 the defendant 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Id., 466 U.S. at 687, 104 S. Ct. at 2064. The U.S. Supreme Court further held that "[t]he defendant must show that 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 a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S. Ct. at 2068. These standards were recognized and adopted by the Supreme Court of Kentucky in Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. "In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. Appellant is "not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997). In considering a claim of ineffective assistance of counsel under RCr 11.42, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Ultimately, Appellant "has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding." Id.
Because an evidentiary hearing was not held in this case, "[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). RCr 11.42 requires an evidentiary hearing "[i]f the answer raises a material issue of fact that cannot be determined on the face of the record[.]" RCr 11.42(5); see also Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "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, 452-53 (Ky. 2001). However, there is no need for an evidentiary hearing if the record refutes the claims of error or if the defendant's allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
Appellant first contends that his trial counsel was ineffective for failing to investigate a "lead" provided in a piece of testimony given by a Jefferson County detective during grand jury proceedings. That testimony, which was recounted in a narrative statement approved by the circuit court on February 27, 2009, for purposes of appeal, provided as follows:
Detective Eastham testified in substance that the only thing that Quenton Hammond did wrong was wearing a pair of brand new Reeboks to school the day before he was murdered. He explained to the grand jurors that he would describe how one of [the] police's suspects had seen those shoes and decided that he was going to get them and that the following day Quenton Hammond was killed (August 20, 1997).
Appellant contends that this testimony shows that "something happened the day before" that had attracted the killers/robbers to the victim's shoes and that "it raised questions that demanded answers, answers which could have exonerated" Appellant. Appellant fails to specify what those answers would have been and his argument, frankly, is difficult to interpret, but he seems to suggest that they could have shown that another man - Billy McAtee - was involved in the murder and robbery instead of him. McAtee was a prosecution witness who implicated Appellant and O'Neal in the subject crimes. Appellant alleges that because his trial counsel failed to adequately pursue this potential avenue of investigation, he received ineffective assistance at trial.
We first note that Appellant did not raise this claim in his original RCr 11.42 motion and supplement, which were filed in 2005. Instead, he presented it in his second supplement to that motion, which was not filed until 2010. Arguably, then, the issue was not timely raised within three years of his judgment of conviction becoming final and, therefore, it should not be considered on appeal. See RCr 11.42(10). However, since the trial court chose to consider the claim on its merits, out of an abundance of caution we shall do so as well.
In another case, Roach v. Commonwealth, No. 2008-CA-001961-MR, this Court held that while issues raised in an RCr 11.42 motion filed within three years of the judgment of conviction becoming final could be considered, any issues raised in a supplement to the motion filed more than three years after finality were time-barred pursuant to RCr 11.42(10). However, this case is not final and is currently being considered by the Supreme Court of Kentucky on discretionary review.
After considering Appellant's claim on its merits, we conclude that it is too vague and non-specific to have necessitated an evidentiary hearing. Appellant asserts that it was significant that "somebody had seen [Quenton] somewhere the day before, otherwise the detective would not have said what he did," but the testimony in question appears rather clear that the "somebody" was one of the accused, so Appellant's point is difficult to follow. Ultimately, Appellant's argument amounts to speculation that further investigation of this matter "might have" revealed exculpatory information helpful to his case. However, Appellant fails to specify who, if anyone, had additional information regarding interest in the victim's shoes on the day before his murder beyond those witnesses - including McAtee - who testified at trial, or how that information would have been exculpatory. Mere speculation or conclusory allegations do not constitute grounds for an evidentiary hearing as "RCr 11.42 does not require a hearing to serve the function of a discovery deposition." Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard, supra.
Moreover, it is apparent that defense counsel actually spent time at trial exploring the possibility that McAtee - not Appellant - was involved in the subject crimes. Cross-examination of McAtee revealed that he had given multiple statements to police and that those statements often conflicted with one another. Some of them failed to implicate Appellant as a participant, and in one of them McAtee even admitted to being at the crime scene with O'Neil when the victim was shot. As a result, the jury was presented with reason to conclude that McAtee was involved in the crimes instead of Appellant. Appellant fails to specify what more should have been done in this regard. Therefore, his contention that he was entitled to an evidentiary hearing on this issue is rejected. See RCr 11.42(2).
Appellant next argues that he was entitled to an evidentiary hearing on his RCr 11.42 motion and relief from his convictions because a Jefferson County detective falsely testified to the grand jury that Appellant had previously been charged with weapons and drug offenses when Appellant had never been charged with such. Citing to Commonwealth v. Baker, 11 S.W.3d 585 (Ky. App. 2000), Appellant contends that he would not have been indicted in the absence of this false testimony and, therefore, he suffered actual prejudice meriting dismissal of the indictment. Therefore, because his trial counsel failed to raise this issue below, Appellant asserts that he received ineffective assistance of counsel.
Notably, Appellant's brief does not cite directly to any record of the grand jury proceedings to support his argument. The only "official" record of those proceedings is contained in a narrative statement approved by the circuit court, but that statement contains no reference to the testimony in question. Consequently, we are within our rights to ignore Appellant's argument altogether; however, since the circuit court addressed the issue in its order denying Appellant's RCr 11.42 motion, we shall do the same.
In support of his RCr 11.42 motion, Appellant presented a proposed transcript of the grand jury proceedings, but that transcript was apparently rejected in favor of the narrative statement referenced above.
In Baker, this Court held that "[a] court may utilize its supervisory power to dismiss an indictment where a prosecutor knowingly or intentionally presents false, misleading or perjured testimony to the grand jury that results in actual prejudice to the defendant." Id. at 588. Expounding upon these requirements, we quoted United States v. Roth, 777 F.2d 1200 (7th Cir. 1985), as follows:
The first requirement, that the government know the evidence was perjured, is intended to preserve the principle that an indictment cannot be challenged on the basis of the insufficiency of the evidence on which the grand jury acted.... What makes the government's knowing use of perjured testimony different is that it involves an element of deceit, which converts the issue from the adequacy of the indictment's evidentiary basis to fraudulent manipulation of the grand jury that subverts its independence. The second requirement in the cases, that the indictment would not have been issued except for the perjured testimony, confines judicial intervention to cases of prejudicial misconduct, that is, to cases where the misconduct made a difference to the defendant.Baker, 11 S.W.3d at 588-89, quoting Roth, 777 F.2d at 1204.
Thus, even if we were to assume, for the sake of argument, that false, misleading, or perjured testimony was presented to the grand jury, Appellant still would have been required to show that the indictment would not have been issued in the absence of this testimony in order to prevail on any claim that the indictment should have been dismissed. Id. We fail to see how this standard could have been met in this case. The narrative statement of the grand jury proceedings reveals that ample evidence was presented to the grand jury implicating Appellant in the subject murder and robbery:
Detective Eastham testified that he took a statement from Billy McAtee, who described himself as Cedric O'Neal's best friend, and that McAtee confessed that he was with O'Neal when he shot Hammond, but it was an accident. McAtee tells another story about being in O'Neal's room when he asks Henderson if he has gotten the weapon in
because he wants to do a robbery on this kid that's got some new shoes that he wants.
Detective Eastham testified to the grand jury that the police had witnesses who had stated that they heard Kevin Henderson threaten Cedric with death if he mentioned his name to the police, and that he was scared to death of Henderson.
Detective Eastham testified to the grand jurors that Kathy, Cedric O'Neal's sister[,] gave a statement that she saw Henderson and O'Neal go out the door about five minutes before Quenton was killed.
Detective [Eastham] testified further that the police had testimony from family members and witnesses, eye witnesses, who would say that they saw Kevin give Cedric the weapon and heard the conversation that they were going to do a robbery to get Quenton Hammond's tennis shoes.
In sum, Detective Eastham's testimony reflected that Appellant's co-defendant had implicated Appellant in the robbery and murder and that other witnesses had placed Appellant with O'Neal on the morning of the murder. Accordingly, even absent the testimony complained of by Appellant, the other testimony presented to the grand jury was plainly sufficient to support an indictment, and Appellant could not have shown actual prejudice supporting dismissal. We further note that even if the evidence had been effectively challenged and the indictment dismissed, the Commonwealth would still have been able to re-indict Appellant, which negates any claim of actual prejudice for purposes of Appellant's RCr 11.42 motion. Pierce v. Commonwealth, 902 S.W.2d 837, 838 (Ky. App. 1995). Consequently, Appellant's claim that his trial counsel was ineffective for failing to seek dismissal of his indictment was rightfully rejected without an evidentiary hearing since the claim could be resolved on the record as it stood.
Any remaining arguments made by Appellant were not presented to the circuit court at any point during the lengthy RCr 11.42 proceedings. As such, they are unpreserved and will not be considered herein since this Court "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); see also Dever v. Commonwealth, 300 S.W.3d 198, 202 (Ky. App. 2009).
Conclusion
For the foregoing reasons, the order of the Jefferson Circuit Court denying Appellant's RCr 11.42 motion for post-conviction relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Aubrey Williams
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky