Opinion
NO. 2013-CA-001727-MR
04-10-2015
SHAWNTELE JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shawntele Cortez Jackson West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CR-001673
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Appellant Shawntele Jackson appeals the Jefferson Circuit Court's September 9, 2013 order denying his motion requesting relief pursuant to Kentucky Rules of Civil Procedure (RCr) 11.42 due to ineffective assistance of counsel. We affirm.
I. Facts and Procedure
In 2007, Jackson was convicted of murder and tampering with physical evidence, and was sentenced to fifty years' imprisonment. Jackson appealed as a matter of right to the Kentucky Supreme Court; the Court affirmed Jackson's convictions. Jackson v. Commonwealth, 2007-SC-000392-MR, 2010 WL 252244 (Ky. Jan. 21, 2010). In the interest of judicial economy, we recount here the Supreme Court's thorough recitation of the relevant facts:
In May of 2006, Richard Lee Washington [Victim] was fatally shot in the area of the Iroquois housing projects in Louisville. He was twenty-seven years old. [Jackson], twenty years old at the time, was living in one of the apartments with his girlfriend, Dominique Rudolph [Girlfriend]. At trial, it was the Commonwealth's theory that [Jackson] intentionally shot and killed [Victim] without excuse or justification. [Jackson's] defense was that [Victim] first assaulted him and that [Victim] was unintentionally shot in the course of defending and struggling over a handgun.
[In the wee morning hours on May 16, 2006, Victim drove Jackson and two other individuals - D'Angelo Scott and Dora Ditto - to a local convenience store. On the way there, all four individuals consumed various drugs. Before leaving the convenience store, Jackson and Victim] began a verbal argument which continued until the group returned to Iroquois. According to [Jackson, Victim] started the argument because he wanted more "dope." According to Ditto, [Jackson] accused [Victim] of stealing his cell phone.
Back at Iroquois, [Victim] pulled the car into a parking spot. According to [Jackson], who was still seated in the back seat, [Victim] and Ditto exited the car and walked toward the trunk. He stated that Ditto then removed a
black handgun from the trunk and handed it to [Victim]. At this point, [Jackson] claimed that he awoke Scott and told him to get up. [Jackson] then exited the car and stepped up onto the sidewalk before resuming his argument with [Victim]. [Victim] allegedly approached [Jackson] and [Jackson] told [Victim] that he saw Ditto hand him the gun. [Jackson] stated that [Victim] threatened to kill him before the two began to yell and shove one another, with [Victim] pushing [Jackson] first and [Jackson] then pushing back. At some point thereafter, [Jackson] saw [Victim] draw a handgun and [Jackson] immediately grabbed [Victim's] wrists and the two men struggled for possession of the handgun. During this struggle, [Jackson] explained that the gun was in [Victim's] right hand when it fired, striking [Victim] in the back of the head.
The testimony of the other witnesses differed markedly from [Jackson's] version of events. Ditto stated that [Jackson] was the first to exit the car and that he went toward a group of apartments before returning, saying that he had found his cell phone. He then asked [Victim] for another ride, but [Victim] refused. [Jackson] insisted that [Victim] would do so, and [Victim] again refused. According to Ditto, [Jackson] then hit [Victim] with a handgun that she assumed came from his pocket. [Victim] ordered Ditto to get on the sidewalk, after which [Jackson] told [Victim] that he "ought to kill him." With the handgun in his right hand, [Jackson] then hit [Victim] again with the gun and it fired, killing [Victim]. Similarly, Scott stated that he remembered the two fighting, though he recalled [Victim] yelling more than [Jackson]. He testified that [Jackson] backed up and charged at [Victim], swinging his right arm and hitting [Victim] in the face. Scott then heard a gun fire, though he did not recall seeing anyone in the group with a firearm that night.
[Jackson] stated that after the shooting he ran to [Girlfriend's] apartment because he was scared and high. Once there, he claimed that he passed out on her bed, not waking or leaving for approximately thirty-six hours. According to Ditto, [Jackson] immediately ran from the
scene with a gun in his hand. Scott testified that he, too, went to [Girlfriend's] apartment and slept, but remembered [Jackson] arriving sometime later. On this point, the Commonwealth presented the testimony of . . . a former girlfriend of [Jackson]. [Former Girlfriend] stated that she was at her apartment when [Jackson] arrived within ten to fifteen minutes of the shooting looking scared. She claimed that he looked out of her screen door for approximately twenty minutes before leaving.Jackson, 2010 WL 252244, at *1-2 (footnotes omitted).
It was determined that the shooting occurred at around 12:42 a.m. and the cause of [Victim's] death was a gunshot wound to the lower back right part of his skull, with the bullet traveling toward the left eye and slightly downward without exiting. He died instantaneously. Though police never recovered a weapon, the bullet was consistent with a .45 caliber automatic handgun. The medical examiner noted that [Victim] did not have any defensive wounds but did have a contusion over his left eyebrow and lacerations over his left cheekbone.
On January 31, 2011, Jackson moved, pro se, to vacate his conviction under RCr 11.42 alleging seven claims of ineffective assistance of counsel. He also requested an evidentiary hearing and appointment of counsel, which the circuit court granted. After counsel declined to supplement the motion, Jackson filed supplemental pro se RCr 11.42 motions raising three additional grounds of ineffective assistance.
An evidentiary hearing was held on July 19, 2013. Jackson's trial counsel testified that the agreed-upon defense theory at trial was self defense. She explained to Jackson that, for the defense to succeed, he would need to testify. Trial counsel clarified that it was always Jackson's choice to testify and she left the decision to him. Jackson testified that trial counsel told him that the facts of his case met the requirements of self defense, that the self-defense theory would only work if he testified at trial, and that Senate Bill 38 would apply to him. Jackson claimed he did not wish to pursue a self-defense theory and did not want to testify at trial because he was under the influence of drugs when the events giving rise to his criminal charges occurred. Jackson also testified that trial counsel never told him that he had the right not to testify.
Trial counsel also testified that, at the time of trial, she was in possession of telephone numbers for Jackson's parents, but was unable to get in touch with them or other family members. Her understanding was that Jackson was estranged from his parents. Trial counsel clarified that she did not have any witnesses to present during the sentencing phase that had not already testified during the guilt phase. She felt that adequate evidence of mitigation had been presented during the guilt phase through Jackson's own testimony describing his background and childhood, and the testimony of Jackson's purported "godmother."
Jackson's sister, Rokia Cain, testified that their parents were holy, Christian people and that their father was a preacher. Cain described Jackson as more mature now than when he was younger, and testified she had seen a big change in him. Jackson likewise testified that he had no discussions with trial counsel about the sentencing phase or possible mitigation witnesses.
In a detailed order entered September 9, 2013, the circuit court denied Jackson's RCr 11.42 motion. Jackson timely appealed.
II. Standards Governing Our Review
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 688, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).
Under Strickland, the movant must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
To establish that counsel's "deficient performance prejudiced the defense," the movant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. Strickland defines reasonable probability as "a probability sufficient to undermine confidence in the outcome[,]" thereby depriving "the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 694, 104 S.Ct. at 2064, 2068.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S.Ct. at 2065. In the course of our review, we must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.; Fegley, 337 S.W.3d at 659.
Finally, when the trial court conducts an evidentiary hearing we must defer to the trial court's determinations of fact and witness credibility. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). We review the trial court's factual findings for clear error. Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013). If the trial court's findings are supported by substantial evidence, then they are not clearly erroneous. Id.
With the above standards in mind, we turn to Jackson's allegations of ineffective assistance.
III. Analysis
Jackson presents five claims of ineffective assistance of counsel. Jackson argues that trial counsel was deficient when she: (1) failed to move the trial court for separate verdict forms on intentional and wanton murder; (2) blatantly misadvised Jackson of the law as to the no-duty-to-retreat doctrine to secure his testimony at trial; (3) failed to call mitigation witnesses during the trial's penalty phase; (4) failed to object to the jury's consideration during deliberation of the crime scene video that contained narration; and (5) failed to request a cautionary instruction when a police officer offered both lay and expert testimony. Jackson also claims cumulative error. We address each argument in turn.
A. Special Verdict Form in Light of Combined Jury Instruction
Jackson first argues that trial counsel was ineffective when, in light of the combined jury instruction for intentional and wanton murder, she failed to move the court for a separate "verdict form" which would have required the jury to specify whether it was finding Jackson guilty of intentional or wanton murder. Confusingly, Jackson declares that he is not attacking the combined murder instruction, but rather is asserting that the evidence submitted at trial was insufficient to support the two theories of murder. (Appellant's Brief at 4). We interpret Jackson's argument as this: because there was perceptible doubt as to the sufficiency of the evidence to support both theories, it was essential that trial counsel request a verdict form requiring the jury to identify under which theory (intentional or wanton) it was finding guilt, and counsel was deficient when she failed to request such a form. We disagree.
Jackson was accused of murder in violation of KRS 507.020. Under KRS 507.020, a person is guilty of murder if he acts intentionally or wantonly under circumstances manifesting extreme indifference to human life. KRS 507.020(1). Following the model instruction contained in 1 Cooper, Kentucky Instructions to Juries (Criminal), § 3.24, the circuit court gave the jury the option of finding Jackson "guilty of either intentional or wanton murder without requiring it to specify which theory it chose." Malone v. Commonwealth, 364 S.W.3d 121, 130 (Ky. 2012). "Such an instruction, often referred to as a 'combination' instruction, permits a guilty verdict even though some of the jurors believed the killing intentional and others wanton." Id. Provided there is evidentiary support for each theory of murder, a combination jury instruction, such as the one given in this case, does not violate the unanimous verdict requirement. Id.; Hatcher v. Commonwealth, 310 S.W.3d 691, 689-99 (Ky. App. 2010).
Kentucky Revised Statutes
However, the Kentucky Supreme Court has repeatedly cautioned that, while a combination jury instruction is perfectly appropriate in certain cases, "the preferred practice is to include a form verdict that requires the jury to state whether guilt is found under the theory of intentional murder or under the theory of wanton murder." Benjamin v. Commonwealth, 266 S.W.3d 775, 786 (Ky. 2008); Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998). Jackson's deficiency claim relates solely to trial counsel's failure to move for a verdict form as described in Hudson and like cases. (Appellant's Brief at 4). While it might have been the "preferred practice" to request a verdict form that required "the jury to specify on the verdict upon which theory they" found guilt, Benjamin, 266 S.W.3d at 786, we cannot say counsel abandoned her constitutional duty to render reasonably effective counsel when she chose not to do so. Trial counsel's conduct did not fall below an objective standard of reasonableness. Jackson has therefore failed to establish the first prong of the Strickland test. We affirm the circuit court's order on this issue.
B. Self Defense and No Duty to Retreat
Jackson next claims trial counsel coerced him into testifying by misadvising him as to the law of self-defense and its related components.
Kentucky has long adhered to the principle that a person "was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground[.]" Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d 936, 936 (1931) (quoting Beard v. United States, 158 U.S. 550, 564, 15 S.Ct. 962, 967, 39 L.Ed. 1086 (1895)). Simply put, "it is [a] tradition that a Kentuckian never runs. He does not have to." Id. This principle originated in our common law. Further, the enactment of the Kentucky Penal Code in 1974 did not nullify or repudiate it. Hannah v. Commonwealth, 306 S.W.3d 509, 514 (Ky. 2010). However, over time, Kentucky courts have moved away from, but not abolished, the no duty to retreat doctrine. Significantly, Kentucky courts have held "that when the trial court adequately instructs on self-defense, it need not also give a no duty to retreat instruction." Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky. 2005) (citation omitted).
In 2006, in an effort to preserve the no duty to retreat principle, the Kentucky legislature, by means of Senate Bill (SB) 38, "amended Kentucky's criminal statutes to codify "the pre-existing 'no duty to retreat'". Hannah, 306 S.W.3d at 514; see also KRS 503.055 and KRS 503.050(4). It was not until 2009 that the Kentucky Supreme Court declared "that the substantive provisions of the 2006 self-defense amendments (including those portions dealing with 'no duty to retreat')" did not operate retroactively. Id. (citing Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009)). Thus, SB 38 was not applicable to conduct that occurred before its effective date.
SB 38 was not limited to the no duty to retreat doctrine but "extensively amended the self-defense provisions of KRS Chapter 503." Rodgers v. Commonwealth, 285 S.W.3d 740, 749-50 (Ky. 2009).
For the sake of thoroughness, we pause to point out that the Supreme Court has recently held that, "in light of the [codification of the no duty to retreat doctrine in] KRS 503.055 and KRS 503.050(4), we now agree that when presented with circumstances in which the provisions of those statutes are applicable, and upon the request of one of the parties, the trial court must include among the jury instructions, a "no duty to retreat" instruction[.]" Commonwealth v. Hasch, 421 S.W.3d 349, 364 (Ky. 2013).
Turning to the case before us, Jackson claims his trial counsel was deficient when she incorrectly advised him that SB 38 and the 2006 amendments, which she thought would apply to his trial, supported a "no duty to retreat" jury instruction. Jackson argues that trial counsel's statements tricked him into testifying at trial, despite his misgivings.
As found by the Supreme Court on direct appeal, because "the conduct for which [Jackson] was prosecuted occurred before July 12, 2006 - the effective date of Senate Bill 38 and the 2006 self-defense amendments" - SB 38 did not apply retroactively to Jackson's case. Jackson, 2010 WL 252244, at 12 n.5. Despite trial counsel's incorrect assumption that SB 38 would apply to Jackson's trial, we find no deficiency. As noted above, when examining the reasonableness of counsel's decisions, we "evaluate the conduct from counsel's perspective at that time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It was not unreasonable for trial counsel, in light of SB 38, to seek a no duty to retreat instruction. Even absent a specific "no duty to retreat" instruction, it was the law in Kentucky at the time of Jackson's trial that he had no duty to retreat, see Hannah, 306 S.W.3d at 514, and "whether the assailed should stand his ground or give back [was] a question for the jury." Hilbert, 162 S.W.3d at 926 (citation omitted). Trial counsel explained during the evidentiary hearing that, in her view, it would have been almost impossible to establish a claim of self-defense - of which no duty to retreat is a component, Rodgers, 285 S.W.3d 765 - without Jackson's testimony. She ultimately left the decision to testify to Jackson, who agreed to do so. Jackson has failed to establish the first prong of the Strickland test. We therefore affirm the trial court's order as to this issue.
C. Mitigation Witnesses
It is Jackson's position that trial counsel rendered ineffective assistance when she failed to call any mitigation witnesses during the sentencing phase of his trial. We do not find this argument persuasive.
KRS 532.055(2)(b) allows a defendant "to introduce evidence in mitigation or in support of leniency[.]" The Kentucky Supreme Court has held that, under Strickland, "defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007) (citation omitted). "The reasonableness of counsel's investigation depends on the circumstances of the case." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001).
Jackson claims that, prior to the penalty phase of his trial, he informed trial counsel that two of his sisters were available and willing to testify. However, at the evidentiary hearing, trial counsel testified that she was not aware of any possible mitigation witnesses to present on Jackson's behalf, despite the DPA investigator's interview of numerous witnesses. Trial counsel explained that she had phone numbers for some of Jackson's family members, but was unable to get in contact with them. It was also her understanding that Jackson was estranged from his parents. Further, trial counsel reiterated that mitigation testimony had already been presented during the guilt phase through Jackson's own testimony and the favorable testimony of Jackson's so-called "godmother." To the extent Jackson and trial counsel offered conflicting testimony during the evidentiary hearing, "[t]he trial court had a right to resolve the credibility issue against appellant[.]" McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky.1986).
Department of Public Advocacy
Our suspicions are naturally heightened when trial counsel chooses not to call any mitigation witnesses during the penalty phase of a trial. But this decision alone does not constitute deficient performance without first examining the record. Having done so, we find that Jackson has not "overcome the presumption that counsel provided a reasonable trial strategy." Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008). Therefore, Jackson has not met the first prong of Strickland and we affirm the circuit court's order as to this issue.
D. Crime Scene Video
Jackson maintains that trial counsel's failure to object to the jury's consideration of the crime scene video, containing recorded audio narration, which had been specifically excluded by the trial court amounted to ineffective assistance.
Prior to trial, trial counsel moved that the audio from the crime scene DVD be excluded from play at trial. The Commonwealth agreed and the trial court sustained the motion. At trial, the Commonwealth played the muted DVD for the jury without objection. [While the video was playing, the lead defective offered simultaneous live narration from the witness stand]. The Commonwealth then moved to admit the DVD into evidence and trial counsel did not object.Jackson, 2010 WL 252244, at *7. As he did on direct appeal, Jackson now argues that the jury was able to make use of inadmissible evidence during its deliberations and therefore, that trial counsel was ineffective when she failed to object to the admission of the crime scene video.
Kentucky courts "have allowed narrative testimony from in court witnesses providing 'simultaneous commentary' of crime scene video, see Milburn v. Commonwealth, 788 S.W.2d 253, 257 (Ky.1989), whereas we have found error in pre-recorded narrative video when such narration contained inadmissible hearsay." Cuzick v. Commonwealth, 276 S.W.3d 260, 265 (Ky. 2009). Even assuming that trial counsel performed deficiently, to prevail, Jackson must still show that trial counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As referenced above, prejudice sufficient to warrant RCr 11.42 relief is that which indicates "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2064. We find no such prejudice in this case.
It is unquestioned that the jury was not privy to the recorded narration during trial. There is also no evidence that, despite the admission of the crime scene video with the recorded narration intact, that the jury ever viewed the video or listened to the audio portion of the video during deliberations. Further, the jury already had the benefit of the police officer's live narration, and there was more than sufficient evidence presented by the Commonwealth of Jackson's guilt. We are not convinced that the recorded narration on the crime scene video, even if viewed by the jury, altered the outcome of Jackson's trial. We therefore affirm the circuit court's order as to this issue.
E. Cautionary Instruction
Jackson next argues that trial counsel was ineffective because she did not request a cautionary instruction when a police officer allegedly offered both lay and expert testimony at trial. The Sixth Circuit has found clear error when a trial court refused to give the jury a cautionary instruction on a witness's dual roles as a fact and expert witness. United States v. Lopez-Medina, 461 F.3d 724, 744 (6th Cir. 2006). Nonetheless, we reject Jackson's claim for two reasons.
A cautionary instruction is, in essence, "a jury instruction on the weight to be given to opinion testimony is sufficient to safeguard against jury confusion." United States v. Maxwell, 948 F. Supp. 2d 749, 758 (E.D. Ky. 2013).
First, Jackson has not directed us to, nor have we located, any Kentucky authority requiring a cautionary instruction be given when a witness offers both opinion and expert testimony. In fact, in the context of accomplice testimony, our Supreme Court has rejected the argument that a cautionary instruction must be given because such an instruction tends to "overemphasize particular aspects of the evidence." Peak v. Commonwealth, 197 S.W.3d 536, 545 (Ky. 2006). "Evidentiary matters should be omitted from the instructions and fleshed out during closing arguments." Id. In this regard, trial counsel was certainly not deficient for not requesting a cautionary instruction given that case law not only does not support the argument, but even suggests a cautionary instruction might have been improper.
Second, there is no evidence in this case that any witness testified as both a lay and expert witness. During trial, a Louisville Metro Police (LMP) Officer testified that, in his opinion, the Victim's body did not appear to have been in a struggle. A second LMP Officer similarly testified that, based on his observations, the position of Victim's body was inconsistent with a fight or struggle. On direct appeal, the Supreme Court concluded - despite a statement by the trial court, outside the presence of the jury, that one officer qualified as an expert - that the officers' testimony was admissible lay, not expert, opinion testimony because "the witnesses rationally drew an inference from their first-hand perceptions at the scene." Jackson, 2010 WL 252244, at *5.
Accordingly, even if a cautionary instruction was a viable option, which we do not find today, trial counsel was still not deficient for choosing not to request a cautionary instruction absent a witness testifying in dual capacities.
F. Cumulative Error
Jackson's final claim is cumulative error. Cumulative error "is the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The doctrine of cumulative error is only invoked, however, "where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id. In this case, none of the claimed errors identified by Jackson "raise any real questions of prejudice" to him. Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). We find no cumulative error.
IV. Result
For the foregoing reasons, we affirm the Jefferson Circuit Court's September 9, 2013 order denying Jackson's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Shawntele Cortez Jackson
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky