Opinion
NO. 2015-CA-000998-MR
06-30-2017
STEWART JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christine Foster Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NO. 05-CR-00113 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT AND STUMBO, JUDGES. DIXON, JUDGE: Appellant, Stewart Johnson, appeals the Powell Circuit Court's order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his sentence. He alleges that the trial court abused its discretion when it found that his trial counsel was not ineffective for failing to object to or tender instructions on lesser-included offenses and on voluntary intoxication. After careful review of the record, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In its opinion denying Johnson's direct appeal, the Kentucky Supreme Court presented the facts of the case as follows:
According to Johnson, after a pleasant evening of drinking and "man talk," Dotson suddenly turned violent and repeatedly attacked him without provocation. According to Johnson, Dotson grabbed his neck and belt, slammed his head into a wall, stomped him, tried to kick his face, pinned him to the floor, and then tried to choke him. Johnson stated that after his attempts to reason with Dotson failed, he warned Dotson that he would shoot. But Dotson's attacks persisted. In the course of escaping from Dotson, Johnson shot Dotson five times.
Hearing the commotion, Dotson's ex-wife, who lived with him, went out back to investigate. She found Dotson lying on the floor of the outbuilding, and she heard someone else warning her to go away. She could not see the speaker, but she could see through the open door a man's hands holding Dotson's radio. She called Dotson's father, who arrived in minutes to find Dotson dead on the floor of the outbuilding.
Meanwhile, Johnson had gone home. The next day, he was not surprised when the police came to question him. He immediately told police he had shot Dotson in self-defense, emptying the .40 caliber handgun he had carried with him to Dotson's home of its eleven bullets. He later claimed that he was so distraught during initial questioning by the police that he overestimated the number of shots fired in self-defense. He also claimed that police told him that Dotson's family had said that Dotson tended to be mean when drunk.
Back at the outbuilding, police found a .22 near Dotson's body and a .357 under Dotson's body. Apparently, both of these guns belonged to Dotson. An autopsy revealed five gunshot wounds and the presence of a .22 bullet still inside Dotson's body. Testing revealed that the .22 bullet could not have come from the .22 found near the body.Johnson v. Commonwealth, No. 2007-SC-000612-MR, 2008 WL 4691694, (Ky. Oct. 23, 2008).
Johnson admitted to owning a .22 semi-automatic weapon. According to him, this weapon was never subjected to testing. Police found spent .22 shells in Johnson's truck but no .22 casings at the scene of the shooting. Some .38 caliber bullets found in the area could have come from the .357 but could not have come from Johnson's .40 caliber handgun according to expert testimony. No bullets from a .40 caliber handgun were found. Autopsy results showed that Dotson had a blood alcohol level of .18 and confirmed that he had also ingested cocaine and marijuana.
After a trial by jury, Johnson was convicted of murder and sentenced to twenty-five years of imprisonment. He appealed to the Kentucky Supreme Court who affirmed the trial court's judgment and sentence.
Johnson then filed his pro se RCr 11.42 motion requesting, inter alia, that the trial court's judgment be vacated due to ineffective assistance of counsel for his counsel's failure to tender instructions on lesser-included offenses and voluntary intoxication or to object to the trial court's instructions. The trial court denied Johnson's motion without an evidentiary hearing and Johnson appealed.
On appeal, we determined that the evidence supported instructions for second-degree manslaughter and reckless homicide and may have supported an instruction on voluntary intoxication. We could not, however, determine the reason trial counsel failed to request such instructions. Accordingly, we reversed and remanded for an evidentiary hearing to determine why lesser-included and voluntary intoxication instructions were not requested.
On remand, the trial court conducted an evidentiary hearing at which trial counsel testified that it was his strategic decision to not request lesser-included instructions. Johnson called no other witnesses at the hearing and he declined to testify on his own behalf. Following the hearing, the trial court entered an order once again denying Johnson's RCr 11.42 motion. The court found that trial counsel's failure to request lesser-included and voluntary intoxication instructions amounted to reasonable trial strategy. It is from that order that Johnson now appeals.
On appeal, Johnson maintains that trial counsel was ineffective for failing to request lesser-included instructions. Specifically, he argues that trial counsel's decision to not request lesser-included and voluntary intoxication instructions was unreasonable. He contends that he was prejudiced because had instructions been included, the jury would likely have convicted him of those charges instead of wanton murder.
STANDARD OF REVIEW
We review allegations of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant must prove both that his counsel's performance was deficient in that it contained errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[;]" and that the deficiency was so serious that it "deprived the defendant of a fair trial, a trial whose results are reliable. Id. at 687, 104 S.Ct. 2052.
We are mindful that our review of trial counsel's performance must be highly deferential. Id. at 689, 2065. The burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances counsel's action "might be considered sound trial strategy." Id. at 689, 2065 (citation omitted). Not all defense strategies, however, constitute effective assistance of counsel. "The relevant question is not whether counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); See also Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007) (recognizing that even where a strategic decision has been made, a court must still determine if the acts or omissions of counsel were outside the range of competent professional assistance).
In our analysis, we focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the strong presumption that counsel rendered reasonable professional assistance. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Even though ineffective assistance claims are subjected to a de novo review, we defer to factual determinations made by the trial court. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986).
ANALYSIS
At the conclusion of a criminal trial, the trial court is required to give every instruction supported to any extent by the testimony, including giving instructions for lesser-included offenses. Taylor v. Commonwealth, 995 S.W.2d 355, 360-62 (Ky. 1999). Despite this duty, trial courts are not required to provide instructions on lesser-included offenses if the defense declines this option due to trial strategy. McKinney v. Commonwealth, 60 S.W.3d 499, 507 (Ky. 2001).
Waiving the right to lesser-included jury instructions can at times be reasonable. An "all or nothing" strategy prevents the jury from reaching a compromise verdict on a lesser-included offense when the defendant believes he sowed sufficient seed of doubt as to an element of the charged offense for an outright acquittal. See Garland v. Commonwealth, 127 S.W.3d 529, 536-37 (Ky. 2003), overruled on other grounds by Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005). See also RCr 9.54(2).
Here, during the evidentiary hearing, trial counsel testified that he and Johnson discussed "at length" lesser-included offenses and their accompanying instructions. He stated that Johnson was adamant about not being convicted of a felony because he did not want to lose his right to possess a firearm. He testified that, after their conversation, he and Johnson both agreed not to ask for lesser-included instructions because they had a solid self-defense case. Trial counsel further testified that he believed Johnson did not want lesser-included instructions because he rejected a very favorable plea offer that carried less time than any of the lesser-included charges.
Johnson concedes that counsel's action was trial strategy, but he insists that the strategy was not reasonable. He argues that counsel's goal should have been to minimize Johnson's risk of being convicted of murder. Therefore, an all-or-nothing strategy was objectively unreasonable. We disagree and hold that, under the circumstances, defense counsel's decision not to pursue a lesser-included instruction was a reasonable trial tactic, and his performance was not deficient.
Johnson was charged with murder, which required the jury to find that he intentionally killed Dotson with a firearm. The jury was specifically instructed that the absence of the privilege to act in self-protection was an element of the offense that the Commonwealth had to prove beyond a reasonable doubt. During trial, Johnson claimed that he shot Dotson in self-defense and testified in accordance with that claim. The lead detective testified that based on his observations of the scene, Johnson's only motive for the shooting was self-defense. The detective also testified that the scene and Johnson's torn clothing and wounds corroborated Johnson's statement. The jury also heard evidence of Dotson's propensity for violence when intoxicated. The jury heard a recording of Johnson's interview with the police in which Officer Gibbs stated that according to Dotson's father, Dotson can be a "bully" when intoxicated. Additionally, trial counsel solicited testimony from an expert concerning the effect of intoxication on Dotson's behavior on the evening of the shooting.
Given the testimony and circumstantial evidence substantiating Johnson's claim of self-defense, along with Johnson's insistence that he not be convicted of a felony, we agree that pursuing an all-or-nothing approach in this case was a reasonable trial strategy. Trial counsel reasonably believed that he had proven Johnson was privileged to act in self-defense and that the inclusion of lesser-included offenses would have diminished Johnson's chances for acquittal. Indeed, trial counsel explained at the evidentiary hearing that he and Johnson both believed that if lesser-included instructions were offered to the jury, it would have the effect of increasing Johnson's likelihood of being convicted of something. They both wanted to force the jury into an all-or-nothing choice.
Of course, in hindsight, it may have been a better strategy to request that the jury instructions include lesser-included offenses. However, we do not second-guess a trial attorney's actions based on the consequences of those actions. Harper v Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). "A fair assessment of attorney performance requires that every effort be made 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." Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (citation omitted). At the close of all the evidence in this case, it was not unreasonable for trial counsel to believe that he had presented sufficient evidence of self-defense such that the Commonwealth failed to prove its absence. Consequently, it was not unreasonable for trial counsel to forgo a request to include lesser-included offenses, but rather go for an all-or-nothing strategy in hopes of securing an acquittal.
CONCLUSION
Because the all-or-nothing strategy was objectively reasonable under the circumstances, trial counsel's performance was not deficient. The decision of the Powell Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Christine Foster
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky