Opinion
NO. 2018-CA-001016-MR
09-27-2019
CHARLES KIMBLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Charles Kimble, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE
ACTION NO. 11-CR-001711 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND NICKELL, JUDGES. CLAYTON, CHIEF JUDGE: Charles Kimble, pro se, appeals the Jefferson Circuit Court's order denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. For the following reasons, we affirm.
BACKGROUND
The Kentucky Supreme Court summarized the facts of the case in the direct appeal as follows:
On May 20, 2011, apartment manager Sherry Corley was on duty when James Gray, a resident at the apartment complex, entered her office. Gray appeared shaken and was screaming. Electrical cords hung from Gray's bloodied arms and wrists. After Gray told Corley his girlfriend's cousin had robbed him, Corley called 911. Gray then told the 911-operator that Appellant Charles Kimble had beaten him, tied him to a chair, and held a butcher knife to his throat before leaving with Gray's truck, jewelry, and money.
On June 2, 2011, Charles Kimble was indicted for the offenses of robbery in the first degree, kidnapping, intimidating a participant in the legal process, wanton endangerment in the first degree, and tampering with physical evidence. A Grand Jury bench warrant was issued for Kimble on the same day. Kimble was subsequently arrested and arraigned on March 14, 2012.
Kimble's trial commenced on May 7, 2013. The Commonwealth called five witnesses in its case-in-chief. Gray testified that Kimble had been staying at his apartment for several weeks while visiting from Chicago. Gray explained that on the morning of May 20, 2011, he left his apartment to go to a dialysis treatment and a doctor's appointment. Upon returning from his appointments, Kimble told Gray that he needed help with one of the computers in the bedroom. Gray testified that he entered the bedroom and was promptly struck in the head by Kimble. He was then thrown onto the bed where Kimble continued to punch him in the head and chest. Gray stated that Kimble threatened to kill him, held a knife to his throat, and cut him behind his ear. He testified that Kimble pulled various wires and electrical
cords from beneath the bed and used the cords to tie Gray to a chair. Gray explained that Kimble took $200 from his wallet, $8,000 from beneath Gray's dresser, as well as various pieces of jewelry. The attack, according to Gray, lasted roughly forty-five minutes before Kimble left the apartment in Gray's truck. Gray testified that the $8,000 represented money saved toward the purchase of a home. On cross-examination, Kimble's defense counsel read from a letter that Gray sent to the "America's Most Wanted" television program. In the letter, which contained details of the robbery, Gray claimed that the $8,000 was money that he had saved for his son's college education.
Sherry Corley testified and described the injuries to Gray's arms and wrists as "deep cord marks." Corley's 911 call was played for the jury. April Kimble, Gray's fiancé and Kimble's cousin, confirmed that Kimble was staying at the apartment she shared with Gray at the time of the alleged attack. She stated that diamond earrings and a DVD player were missing from the apartment after the robbery. She further testified that she observed Kimble's mother wearing the missing earrings at a family reunion a year later. The ER doctor who treated Gray after the attack testified that Gray suffered injuries to his head, back, chest, and behind his ear. The lead investigator in the case, Detective Jonathan Scott Irish, testified that Gray identified Kimble from a photo array. He stated that Gray reported three rings, a necklace, his truck, and $150 in cash as stolen. Detective Irish testified that Gray did not report as stolen the diamond earrings or the $8,000 in cash.
Kimble took the stand in his own defense, testifying that he stayed with Gray in Louisville while he was looking for work. Kimble explained that he was uncomfortable staying with Gray and that his mother had sent him a bus ticket so that he could return to Chicago. He testified that Gray returned to the apartment on May 20 and immediately fell asleep. While Gray slept,
Kimble packed his personal belongings and placed them in Gray's truck. He explained that he then drove himself to the Greyhound station in Gray's truck and returned to Chicago by bus. Kimble testified that he did not ask for Gray's permission to take the truck, nor did he call Gray before leaving Louisville to tell him where his truck could be found.Kimble v. Commonwealth, No. 2013-SC-000593-MR, 2016 WL 2604730, at *1-2 (Ky. May 5, 2016) (footnotes omitted). In that direct appeal, Kimble alleged the trial court abused its discretion by excluding his testimony of alleged prior illegal drug activity in the victim's home. The Kentucky Supreme Court affirmed the trial court, holding that Kimble's "totally unsubstantiated testimony that the robbery was related to a drug deal was properly excluded by the trial court, and the exclusion of that testimony did not prevent Kimble from having a fair trial. RCr 10.02." Id. at *5.
The jury found Kimble guilty of first-degree robbery, kidnapping, and terroristic threatening in the third degree. Following the penalty phase of the trial, the jury found Kimble guilty of being a persistent felony offender in the first degree. Kimble moved for a new trial, but the trial court denied Kimble's motion and imposed the jury's recommended sentence of twenty-years imprisonment.
Kimble then filed a pro se RCr 11.42 motion to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel. The trial court denied Kimble's motion. This appeal followed.
ANALYSIS
For this appeal, Kimble claims the trial court erred in denying his RCr 11.42 motion and raises the following issues:
1. His counsel failed to properly investigate the facts and circumstances of the case;
2. His counsel failed to have evidence collected and tested for DNA and fingerprints;
3. His counsel failed to file for suppression of the crime scene photographs;
4. His counsel failed to independently investigate the persistent felony offender in the first degree (PFO I) indictment;
5. His counsel failed to file pretrial motions to introduce character evidence of the victim;
6. His counsel failed to impeach Dr. Robert Couch and object to his testimony;
7. His counsel failed to request jury instructions on lesser offenses;
8. The foregoing cumulative errors violated his rights under the United States and Kentucky Constitutions;
9. His appellate counsel failed to properly brief and argue all issues; and
10. He is "actually innocent" and being held in prison falsely.
As a preliminary matter, we note an RCr 11.42 "motion is limited to issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). An RCr 11.42 motion is not designed to give a convicted defendant an additional appeal or a review of trial errors that should have been addressed upon the direct appeal. Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky. App. 1989). If a trial error is asserted in an RCr 11.42 motion, it must rise to the level of a constitutional deprivation of due process. Id. The movant has the burden to convincingly prove he was deprived of a substantial right to justify the extraordinary relief afforded by RCr 11.42 post-conviction proceedings. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). Further, the motion "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." RCr 11.42(2). "We review the trial court's factual findings only for clear error, but its application of legal standards and precedents we review de novo." Stiger v. Commonwealth, 381 S.W.3d 230, 234 (Ky. 2012) (citing Brown v. Commonwealth, 253 S.W.3d 490 (Ky. 2008)).
RCr 11.42 motions challenge whether defendant was afforded his Sixth Amendment right to effective assistance of counsel at trial. U.S. CONST. AMENDS. VI, XIV; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance are governed by the well-known standard set forth in Strickland, which was adopted by Kentucky courts in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Under this standard, defendant must show "both that his counsel provided deficient assistance and that there was prejudice as a result." Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). The deficient performance prong requires counsel's errors to be so serious that he or she was not functioning as required by the Sixth Amendment. Id. The prejudice prong requires a reasonable probability that the outcome of the case would have been different without those errors and defendant had been deprived of a fair trial. Id. at 104-05, 131 S.Ct. at 787-88. "The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 6, 157 L.Ed.2d 1 (2003).
1. Kimble's claim that his counsel failed to properly investigate the facts and circumstances of the case.
Kimble claims his counsel failed to search for witnesses who could testify they heard no noise in the apartment complex at the time of the crime. He claims that the victim lived in the upstairs apartment, with tenants below him, and witnesses would have heard a fight.
The Commonwealth notes that Kimble failed to identify any witness who may have testified in his favor and can only speculate that such a witness even exists. Furthermore, Kimble admitted to his attorney, as noted in the attorney's "investigative report," that he got into a fight with the victim over money before he left town. Finally, the Commonwealth notes that the apartment manager, Sherry Corley, who called 911 after the victim came to her office, testified that she did not receive any complaints of noises, screaming, or yelling that day.
As the trial court properly concluded, Kimble's claim fails to meet either prong of the Strickland test. Kimble is only speculating that someone must have heard a fight and an investigation would have uncovered evidence of what did or did not happen in the apartment that day. However, Kimble admitted that he got into a fight with the victim. And, Ms. Corley testified she received no noise complaints. See Edmonds v. Commonwealth, 189 S.W.3d 558, 569 (Ky. 2006) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)) ("The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."). No prejudice occurred to Kimble by the action or inaction of his counsel finding unspecified witnesses.
2. Kimble's claim that his counsel failed to have evidence collected and tested for DNA and fingerprints.
Kimble argues his counsel made no pretrial motion to test the evidence for DNA or fingerprints. If this testing had happened, Kimble claims it would prove he never touched the knife, the victim's wallet, the chair to which the victim was tied, the extension cord with which the victim was tied up, or the dresser where the stolen money was hidden. Kimble also argues that his counsel failed to ensure a proper chain of custody for the evidence collected in the case, while simultaneously conceding no evidence was collected from the crime scene.
The Commonwealth claims that the Louisville Metro Police Department's failure to collect physical evidence at the scene of the crime does not equate to ineffective assistance of counsel. Also, the Commonwealth argues that Kimble created the circumstances under which his counsel could not ensure any evidence was collected because Kimble fled the jurisdiction immediately after committing the crimes and was not apprehended and returned to Jefferson County until almost ten months later.
Here, the police took photographs of the crime scene, which showed the knife, wallet, chair, extension cord, and dresser, but the items themselves were not collected into evidence or tested. Kimble's counsel could not move the trial court to have evidence, which was not collected, tested. Accordingly, Kimble's claim fails to meet either prong of Strickland.
3. Kimble's claim that his counsel failed to file for suppression of the crime scene photographs.
Kimble argues that his counsel should have moved to suppress the crime scene photographs, as they were not authenticated under Kentucky Rules of Evidence (KRE) 901. If the photographs were suppressed, Kimble claims he would have been acquitted or offered "a much sweeter deal not to go to trial."
The Commonwealth argues this claim lacks sufficient specificity and is contradicted by the record and the law for two reasons: (1) Kimble should have raised this issue in his direct appeal; and (2) the photographs were properly authenticated at trial. We agree.
First, as the trial court properly held, this issue could have been raised on direct appeal and, thus, is not a proper basis for RCr 11.42 relief. See Sanborn, supra; see also Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983) (holding "the proper procedure for a defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating every ground of error which it is reasonable to expect that he or his counsel is aware of when the appeal is taken"). Second, Kimble fails to assert any grounds for why the trial court should have suppressed the photographs. He also fails to specify which photographs he thinks should have been challenged. For a photograph to be admitted into evidence, the Kentucky Rules of Evidence only require that a witness with knowledge state that the photograph accurately depicts what it purports to be. KRE 901(a). In this case, the victim testified that the photographs accurately depicted the scene of the crime and his injuries. Thus, the photographs were properly authenticated. Accordingly, Kimble's claim fails to meet the Strickland prongs.
4. Kimble's claim that his counsel failed to independently investigate the PFO I indictment.
Kimble argues that his counsel did not investigate Kimble's past criminal charges because, if he had done so, he would have known Kimble could only be indicted as a PFO in the second degree, for one past conviction within the prior five years. Moreover, Kimble contends the Commonwealth did not prove he had a PFO first degree indictment.
The Commonwealth argues this claim should have been raised on direct appeal and, regardless, Kimble admitted he was a PFO I. We agree.
First, this claim could have been raised in Kimble's direct appeal and, thus, is not a proper basis for RCr 11.42 relief. See Sanborn, supra. Second, in his brief, Kimble admitted he had four previous felony convictions. He also admitted he could have been indicted under a PFO I, pursuant to Kentucky Revised Statutes (KRS) 532.080(2)(1), for his previous indictment out of Winnebago County, Illinois, in which that sentence ended in mid-2009. According to KRS 532.080(3)(c)1, a person is a PFO I if convicted of a felony after having previously been convicted of two or more previous felonies if the person "[c]ompleted service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted." As admitted, Kimble was convicted of four previous felonies and his most recent previous felony sentence ended in mid-2009. The crime at issue in this case was committed on May 20, 2011, which is within the five-year window of KRS 532.080(3)(c)1. Therefore, Kimble's claim that his counsel failed to investigate his PFO I status fails to meet the Strickland standard.
5. Kimble's claim that his counsel failed to file pretrial motions to introduce character evidence of the victim.
Kimble argues that his counsel knew the victim would testify and he had told his counsel that the victim dealt drugs out of his apartment. Therefore, Kimble claims his counsel should have moved the trial court to introduce this character evidence into trial.
The Commonwealth argues that Kimble's counsel did, indeed, try to introduce such character evidence into trial and the trial court ruled it improper character evidence. Also, the Commonwealth notes that Kimble already argued this issue in his direct appeal. We agree.
Kimble's counsel attempted to introduce such evidence at trial. The Commonwealth objected and that objection was sustained by the trial court. Kimble then raised this issue of the victim's status as an alleged drug dealer in his direct appeal to the Kentucky Supreme Court, which was denied. Kimble's claim fails to satisfy the Strickland standard.
6. Kimble's claim that his counsel failed to impeach Dr. Robert Couch and object to his testimony.
Kimble argues that his counsel failed to impeach Dr. Robert Couch, the emergency room doctor who saw the victim after the incident. Kimble claims the medical records do not reflect that the victim sustained a cut behind his ear, which allegedly proves that Kimble never struck the victim behind his ear with a knife or that he even had a knife.
The Commonwealth argues that the record refutes this claim and, therefore, no good faith basis for impeachment existed. Accordingly, Kimble could not be prejudiced by this alleged performance, or non-performance, by his counsel. We agree.
In his brief, Kimble quotes from the victim's medical records to show that a cut to the ear is not mentioned. However, Kimble quotes from a radiology report explaining the victim's head CT. "CT" stands for computed tomography, which is a diagnostic medical imaging test used to examine the inside of a patient's body, not the outside. The fact that a cut to the ear is not mentioned in this report is not proof that the victim was not injured. More importantly, Dr. Couch testified that he examined the victim after the incident and saw an abrasion on the left side of the victim's head behind his ear. The victim's medical records also contain a diagram depicting a wound to the victim's head behind the left ear. Accordingly, Kimble's claim is contradicted by the record and fails to satisfy either prong of Strickland.
7. Kimble's claim that his counsel failed to request jury instructions on lesser offenses.
Kimble argues that his counsel failed to submit jury instructions on lesser offenses. This argument relies on one of Kimble's other arguments that his counsel should have submitted the knife for DNA and fingerprint testing. If the knife had been excluded, Kimble claims the jury could have been instructed on robbery in the second degree instead of robbery in the first degree because the "deadly weapon" or "dangerous weapon" element would be missing. Also, Kimble argues that the jury should have been instructed on unlawful imprisonment in the first and second degree.
First, the Commonwealth argues, and we agree, that the evidence precluded an instruction for robbery in the second degree. Under KRS 515.020, robbery in the first degree is defined as:
(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
Under KRS 515.030, robbery in the second degree is defined as:(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
(1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.Therefore, the two crimes are similar except that robbery in the first degree adds the aggravating factors contained in subsections (a)-(c), whereas robbery in the second degree excludes these either-or factors.
Here, for the trial court to have given an instruction on the lesser offense of robbery in the second degree, the facts would have to be that the victim did not suffer an injury. However, both the victim and Dr. Couch testified that the victim suffered physical injuries during the robbery. Given this evidence of the victim's physical injuries, even if the jury disbelieved that Kimble used a knife, they could still convict him under subsection (a) of KRS 515.020. As the trial court properly held, as the facts alleged against Kimble conformed to the elements of robbery in the first degree, Kimble's counsel could not have possibly requested an instruction on robbery in the second degree.
Second, the Commonwealth argues that Kimble fails to specify how he was prejudiced by his counsel not requesting an unlawful imprisonment instruction and that the decision not to request such an instruction was a strategic trial decision. We agree.
Based on the record, Kimble's counsel tried to have the kidnapping charge excluded pursuant to KRS 509.050, which states:
A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another's liberty that occurs incidental to the commission of a criminal escape.This "exemption statute" is designed to prevent misuse of the kidnapping statute to secure greater punitive sanctions for offenses like robbery, where the crime itself inherently involves restraint done to accomplish the crime. Stinnett v. Commonwealth, 364 S.W.3d 70, 76 (Ky. 2011). The exemption statute also applies to unlawful imprisonment, as set forth in KRS 509.050. Therefore, if Kimble's counsel requested an instruction for unlawful imprisonment, this would have been inconsistent with his trial strategy to argue for an exemption of these types of charges. As the trial court properly held, Kimble's counsel's failure to request instructions on unlawful imprisonment was simply a matter of sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (holding that "a court must indulge a strong presumption" that counsel's actions "might be considered sound trial strategy"). Kimble's claim that his counsel failed to request instructions on the lesser offenses of robbery in the second degree and unlawful imprisonment fails to meet the Strickland standard.
8. Kimble claims the foregoing cumulative errors violated his rights under the United States and Kentucky Constitutions.
Kimble argues that all of the foregoing alleged errors deprived him of his right to effective assistance of counsel. In its order denying Kimble's RCr 11.42 motion, the trial court rejected this claim, citing Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006) for the proposition that "[r]epeated allegations of error do not increase their validity."
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 Court only finds cumulative error "where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id.
Here, none of the alleged errors raised any real question of prejudice. Moreover, as previously discussed, none of Kimble's claims show his counsel's performance was deficient or he suffered any prejudice under the Strickland prongs.
9. Kimble claims his appellate counsel failed to properly brief and argue all issues.
For this claim, Kimble directs his complaint at his appellate counsel. Kimble argues his appellate counsel failed to argue more than one issue in his direct appeal to the Kentucky Supreme Court and this amounted to ineffective assistance of appellate counsel.
Criminal defendants, like Kimble, are entitled to the effective assistance of counsel not only at trial, but also during a first appeal as a matter of right. Hollon v. Commonwealth, 334 S.W.3d 431, 434 (Ky. 2010), as modified on denial of reh'g, (April 21, 2011); see also U.S. CONST. AMENDS. VI, XIV. This entitles defendants to effective assistance of appellate counsel in identifying, briefing, and presenting "non-frivolous grounds for appeal[.]" Id. at 436. To determine if appellate counsel was ineffective, the Court applies the "deficient-performance plus prejudice" standard applied to claims of ineffective trial counsel. Id.
Here, Kimble's complaint that his appellate counsel only presented one issue on appeal does not meet the Strickland standard. As the Commonwealth pointed out, Kimble admits in his brief that his appellate counsel produced 110 pages of handwritten notes and other work product in presenting his appellate case. Although Kimble's appellate counsel only presented one argument on appeal, that does not mean they did not consider and reject other grounds. The Court gives a strong presumption to appellate counsel that their choice of issues to present to the appellate court was a reasonable exercise of appellate strategy. Id. at 437. "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance be overcome." Id. at 436 (quoting Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000)). Also, defendant must establish that he was prejudiced by the deficient performance, which requires a showing that, absent counsel's deficient performance, the appeal had a reasonable probability of succeeding.
As the trial court properly held, Kimble has failed to persuade the Court that appellate counsel's performance was deficient and that the arguments asserted by Kimble, if presented in his direct appeal, would have resulted in a different outcome.
10. Kimble's claim that he is "actually innocent" and being held in prison falsely.
Finally, Kimble argues that he is being held in prison falsely. As the Commonwealth correctly notes, however, Kimble failed to raise this claim in his RCr 11.42 motion before the trial court. Any claim on appeal from the denial of an RCr 11.42 motion must be brought either at the time of sentencing, on direct appeal, or through a RCr 11.42 motion. See Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App. 2011). Accordingly, this claim has been waived and cannot be raised for the first time in this appeal.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court's order denying Kimble's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Charles Kimble, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky