Opinion
NO. 2014-CA-000266-MR
03-13-2015
LATARRA NICOLE MARTIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 09-CR-01169
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Latarra Nicole Martin appeals from the Fayette Circuit Court's order denying her motion to vacate, set aside, or correct her sentence pursuant to RCr 11.42 without convening an evidentiary hearing. After careful review, we affirm.
Kentucky Rules of Criminal Procedure.
Facts and Procedural History
The facts of this case were never in dispute. In March of 2009, Lattara Martin shot and killed Jeff Wilburn, the maintenance man at her Lexington, Kentucky, apartment complex. Wilburn and friends were having lunch in Wilburn's apartment when they heard a knock on the front door. Standing outside when Wilburn opened the door were Martin and two of her children. Martin asked Wilburn if she could talk to him for a moment regarding maintenance issues in her apartment. Wilburn stepped outside to discuss these issues with Martin and as he returned to his apartment, Martin inexplicably shot him in the back. As Wilburn stumbled into his apartment, Martin followed and shot at Wilburn's houseguests, however, none were injured. Upon arriving at the scene of the incident, police officers questioned several witnesses who immediately identified Martin as the shooter. When police questioned Martin, she admitted shooting Wilburn. When asked why she shot Wilburn, Martin replied "dirty water." Martin later gave officers details of the incident and showed them where she hid the gun she used to kill Wilburn.
In September of 2010, Martin was tried by a jury for murder and wanton endangerment. Because there were no disputes regarding the facts of the case, Martin's defense strategy centered on claims of extreme emotional disturbance and insanity. Ultimately, the jury found Martin guilty but mentally ill of murder, two counts of wanton endangerment in the first degree, and one count of wanton endangerment in the second degree and recommended a sentence of twenty-four years' imprisonment, which the Fayette Circuit Court imposed.
Upon direct appeal to the Supreme Court of Kentucky, Martin's conviction and sentence were unanimously affirmed. Martin then moved, pro se, to vacate her judgment and sentence pursuant to RCr 11.42 and requested an evidentiary hearing. The Fayette Circuit Court denied the motion without a hearing. It is from the order denying her RCr 11.42 motion that Martin now appeals two of the seven grounds raised in the original motion. Further facts will be developed as necessary.
Martin v. Commonwealth, 2011 WL 6826399 (Ky. App. 2011, unpublished).
The Department of Public Advocacy was appointed to represent Martin on the motion but chose not to supplement the motion.
Standard of Review
Because the Fayette Circuit Court determined a hearing on Martin's RCr 11.42 motion was unnecessary, our review is "limited 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).
In her RCr 11.42 motion, Martin raised two claims of ineffective assistance of counsel against two retained attorneys. Under Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985), when analyzing an ineffective assistance of counsel claim, we use the two-prong test announced in Strickland v. Washington, 466 U.S. 468, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine when trial counsel's performance is so deficient it requires reversal. First, a movant must show "counsel made errors that were so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id., 466 U.S. at 687, 104 S.Ct at 2064. To determine this, we "conduct an objective review of [counsel's] performance, measured for 'reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).
Throughout our analysis, we strongly presume trial counsel's performance to have been reasonable. Commonwealth v. Pelphrey, 998 S.W.2d 460, 463 (Ky. 1999). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proven unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Therefore, "judicial scrutiny of counsel's performance must be highly deferential," and the burden is on the movant to overcome the presumption that "the challenged action might be considered sound trial strategy." Id.
The second component of the Strickland analysis requires a movant to show she was prejudiced by her counsel's conduct. In other words, a movant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. at 2068. On appeal, we review de novo trial counsel's performance and any potential deficiency caused by counsel's performance. Groseclose v. Bell, 130 F. 3d 1161, 1164 (6th Cir. 1997).
Analysis
Martin first claims the trial court erred when, without holding an evidentiary hearing, it rejected her claim that counsel was ineffective for failing to communicate with her. She bases her claim of ineffective assistance on allegations that counsel spoke with her only four times in a twenty-month period leading up to trial, thus failing to get "her side of the story." She claims this impacted her choice of whether to testify, insisting that had she chosen to testify, it would have resulted in a different outcome. Based on evidence contained in the record, we are convinced the Fayette Circuit Court properly rejected Martin's claim.
Martin correctly asserts counsel must be adequately prepared for trial, which necessarily includes engaging in sufficient communication with his or her client. In Morgan v. Commonwealth, 399 S.W.2d 725, 726 (Ky. 1966) (quoting Nelson v. Commonwealth, 175 S.W.2d 132 (1943)), the Supreme Court of Kentucky expounded on this maxim of criminal practice, stating:
[a]dequate preparation by an attorney employed by one charged with a crime includes full consultation with his client, interviews with prospective witnesses, study of the facts and law applicable thereto, and the determination of the character of defense to be made and the policy to be followed during trial.Nevertheless, we agree with the trial court's finding that Martin's attorneys did not fail her in this respect.
The sheer number of contacts with Martin's attorneys—four—without more—does not show her attorneys were unprepared or did not get "her side of the story." During trial, Martin never alleged her defense team failed or refused to communicate with her. As explained in Commonwealth v. Bussell, 226 S.W.3d 96 (Ky. 2007), there is "a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." As a reviewing court, we "must 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 indentified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance." Id. at 103 (footnotes omitted). To claim counsel met with Martin only four times and therefore, did not get "her side of the story" is not enough. Martin must explain what occurred—or did not occur—when she met with her attorneys; what she would have told counsel had she been given the opportunity; and how telling "her side of the story" would have resulted in an acquittal or a lesser sentence. Without these salient details, Martin's claim is but a bald allegation, and constitutes an insufficient basis for reversal.
According to the Commonwealth, Martin told her version of events to no fewer than seven people and her entire videotaped statement was played for the jury.
The fact that counsel visited her only four times in approximately twenty months does not allow us to presume Martin was denied the opportunity to assist in her defense. We will not speculate on the topics she discussed with counsel during these four meetings. Martin's RCr. 11.42 motion had to specify all facts "necessary to establish the existence of a constitutional violation. [We] will not presume that facts omitted from the motion establish the existence of such a violation." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)). The judicial scrutiny given to trial counsel's performance when reviewing a claim of ineffective assistance of counsel is well-settled and the overriding presumption is trial counsel rendered reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Here, the presumption of reasonable professional assistance is supported by counsel's manifest preparedness at trial. The record shows defense counsel negotiated with the Commonwealth, conducted pretrial investigations (including interviewing police, witnesses, and Martin), obtained expert witnesses, and effectively evaluated all the evidence to give Martin the best available defense. Overall, the record reflects counsel's performance was more than reasonable. Even were we not to consider the overwhelming evidence pointing to reasonably effective assistance, Martin's vague accusation, without any facts supporting it, cannot overcome the strong presumption that counsel provided professional and effective representation. See Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999). Based on the foregoing analysis, we are convinced the Fayette Circuit Court properly denied Martin's claim that counsel was ineffective or failed to get "her side of the story."
Regarding Martin's allegation she would have testified had she had additional time with her attorneys, we agree with the trial court's finding that this allegation lacks merit and is conclusively refuted by the record. At the conclusion of the Commonwealth's case-in-chief, a hearing was conducted outside the presence of the jury, during which the trial court, prosecutors, Martin, and defense counsel explored Martin's options regarding her right to testify. As noted by the trial court in its order denying RCr 11.42 relief, Martin indicated, "she did not wish to testify, even recognizing that she had the right to testify and did not have to accept her trial counsel's advice in that regard." The Supreme Court of Kentucky has held an evidentiary hearing is unnecessary to consider issues already refuted by the trial record. Hodge, 116 S.W.3d at 468. Here, Martin's claim is contrary to the record and is, therefore, rejected.
Martin next claims the trial court erred in dismissing her claim of jury tampering—that a detective on the case was seen communicating with jurors outside the courtroom. In denying the RCr 11.42 motion, the trial court found a hearing unnecessary due to lack of "proof in the record or evidence presented that allegedly jurors were seen speaking with detectives during a lunch break." We agree.
In conducting our review, we "examine whether the record refuted the allegations raised and not whether the record supported the allegations." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (internal quotations omitted). Here, Martin's claim is conclusory and lacks supporting facts, without which relief could not be granted. Further, "[i]n the presence of such. . . vaporous allegation[s], the court is not required to afford an evidentiary hearing. . . ." Willoughby v. Commonwealth, 406 S.W.2d 725, 726 (Ky. 1966).
In Saylor v. Commonwealth, 357 S.W.3d 567 (Ky. App. 2012), the appellant alleged a prosecutor and detective were in a room with jurors as they were deliberating. No other evidence regarding the verity of that alleged occurrence was proffered. Based on this assertion, Saylor insisted he was entitled to an evidentiary hearing because there was no evidence on the record to refute his claim. A panel of this Court disagreed, writing, "[g]iven the fact that any defendant could allege such misconduct in a jury trial and request an evidentiary hearing accordingly, . . . absent some corroborating evidence that misconduct occurred, such an allegation can be refuted by the face of the record and does not warrant an evidentiary hearing." Id. at 573 (internal citations omitted).
In the case sub judice, Martin alleges for the first time in her RCr 11.42 motion, during a lunch break witnesses saw a juror, or jurors, speaking with detectives for the prosecution. Based on that allegation, she maintains "the conversation could have had an effect on the jury's decision. . . ." That is Martin's entire argument. Similar to Saylor, Martin provides no evidence corroborating her claim; she simply argues the judge may not merely disbelieve factual allegations without evidence in the record refuting those allegations. Id. at 573. Martin makes no claim of how, when, or how long the conversation allegedly occurred, who witnessed the conversation, or the jurors and detectives who allegedly participated. Martin's allegation was based entirely on "suspicion, rumor, and speculation," Foley v. Commonwealth, 17 S.W.3d 878, 889 (Ky. 2000), and did not justify relief under RCr 11.42.
Furthermore, the claim was not raised on direct appeal as it should have been. All grounds known, and those that should have been known are to be raised on direct appeal. Gross v. Commonwealth, 648 S.W.2d 853, 857 (Ky. 1983). Other claims about the jury being influenced by the trial court and having access to telephones and the internet were raised on direct appeal and rejected. Martin, at *6. "RCr 11.42 exists to provide the movant with an opportunity to air known grievances, not an opportunity to conduct a fishing expedition for possible grievances, and post-conviction discovery is not authorized under the rule." Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2009) (overruled on other grounds by Leonard). Because Martin's claim of jury tampering was not pled with sufficient specificity to warrant a hearing, we agree with the Fayette Circuit Court that summary dismissal was appropriate.
Discerning no clear error in the trial court's findings of fact, CR 52.01, no deficiency in counsel's representation, and no prejudice to the defense, for the foregoing reasons, we affirm the decision of the Fayette Circuit Court.
Kentucky Rules of Civil Procedure.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky