Opinion
NO. 2017-CA-000193-MR
01-03-2020
GLENN D. ODOM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Glenn D. Odom, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 04-CR-002521 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND K. THOMPSON, JUDGES. DIXON, JUDGE: Glenn Odom pro se appeals the denial of his RCr 11.42 motion to vacate judgment of his conviction, alleging ineffective assistance of counsel, entered by the Jefferson Circuit Court on April 6, 2016. Applying the two-pronged performance and prejudice standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court denied Odom's motion, finding that he failed to show that his case was prejudiced by the actions of either trial or appellate counsel. Following a careful review, we affirm.
Kentucky Rules of Criminal Procedure.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Direct appeal of this case was affirmed in part, reversed in part, and remanded by the Supreme Court of Kentucky in Odom v. Commonwealth, No. 2008-SC-000272-MR, 2010 WL 1005958 (Ky. Mar. 18, 2010). We adopt the facts, as follows:
During the evening and early morning of July 20-21, 2004, a number of people were using and selling drugs at a crack house in Louisville. Present at the house that night were Eddie Sickles, Yolanda Cooper, Amy Mott, Kenneth Williams, and Appellant. (Footnote 1. Sickles and Cooper testified at trial. Though Amy Mott had participated in the prosecution at an earlier stage, she could not be located for trial. Kenneth Williams also could not be located.) According to witnesses, Ben Smith came and went from the house throughout the day, purchasing drugs from Appellant. Witnesses stated that Appellant was at the house to sell crack, and that he had been taking pills throughout the day. At some point in the early morning hours, Appellant dozed off. When he awoke, Appellant found that he was missing either drugs or cash.
Appellant became angry, and told Eddie Sickles and Ben Smith to come outside with him; both men complied. An argument ensued, and Appellant accused Smith of stealing his drugs. Barry Ritchie, who was riding his bicycle to his girlfriend's house after eating at a nearby
restaurant, passed by the scene. Ritchie knew Appellant and Sickles from the neighborhood, and was good friends with Smith.
Ritchie testified that, when he saw the argument, he tried to calm Appellant. However, just moments later, Ritchie witnessed Appellant shoot Ben Smith once in the stomach. Ritchie quickly jumped on his bike and rode off after the first shot. As Ritchie rode away, he heard one or two additional gunshots. Sickles testified that he witnessed Appellant shoot Smith twice, killing him.
Yolanda Cooper heard the shots from inside the house, and rushed to the window, thinking that Appellant had been shot. She then heard Appellant ask Sickles to help him move the body. Cooper testified that Appellant came into the house a short time later and said, "I just shot that [n****r] in the back. Ya'll better not say nothin'."
According to Cooper, everyone at the house scattered, and she and Mott made their way to another crack house. Cooper testified that when Appellant arrived, he pistol-whipped Amy Mott. The Commonwealth introduced photographs depicting Mott's injuries.
Esther McWhorter, Eddie Sickles' mother, testified that, at approximately 4:30 the same morning, Appellant came to her house in a "fit of rage." McWhorter testified that Appellant threw a brick through her bathroom window, completely shattering it, and that he threw a rock through her front room window, damaging it. McWhorter also testified that Appellant threw a flower stand through the window of her car.
Detective Mike Hableib was the lead detective investigating Smith's murder. According to Detective Hableib, Appellant quickly became the prime suspect. A Jefferson County grand jury indicted Appellant on charges of murder (Ben Smith), second-degree assault
(Amy Mott), and second-degree criminal mischief (Esther McWhorter's vehicle and other property). (Footnote 2. The trial court granted a directed verdict on a second charge of criminal mischief.) Despite a public search by the Louisville Metro Police, Hableib testified that police were unable to locate Appellant.
Six weeks after Smith's murder, Appellant was arrested in St. Joseph County, Indiana on unrelated robbery charges. After Appellant was tried and convicted in Indiana for robbery, the Commonwealth sought temporary custody under the Interstate Agreement on Detainers (IAD), and obtained custody of Appellant on January 6, 2006. Pursuant to the speedy trial requirements of the IAD, the circuit court held a trial beginning on April 25, 2006.
In the course of that trial, Amy Mott and Yolanda Cooper, who were both in custody, were in a holding area with Appellant at the courthouse. According to Cooper, Appellant attempted to speak with Cooper and Mott, telling them "you know I didn't do it" and "keep ya'll's mouth shut." Cooper and Mott each gave a statement to Detective Hableib. This incident resulted in a grand jury indicting Appellant on two counts of intimidating a participant in the legal process. Ultimately, these counts were tried together with the counts in Appellant's first indictment. In addition, though not fully developed in the record, Appellant was also charged with attempted escape while in custody.
During Appellant's April 2006 trial, he expressed frequent dissatisfaction with his appointed public defenders, stating that he disagreed with many of their decisions, and accusing them of working with the Commonwealth to obtain a conviction. This led to the circuit court declaring a mistrial, and an attempt by Appellant to obtain private counsel. However, Appellant was unable to do so, and the Louisville Metro Public Defender reappointed Appellant's original attorneys.
Further conflicts with the public defender's office arose, and outside counsel eventually agreed to represent Appellant. Appellant remained unsatisfied with his new counsel, repeating many of the complaints he had with his former attorneys. This resulted in a hybrid counsel arrangement, whereby Appellant's attorney would conduct voir dire and make objections, while Appellant would deliver the opening statement and closing argument, cross-examine the Commonwealth's witnesses, and testify in a narrative fashion during the defense's case-in-chief.Id. at *1-2. The Supreme Court of Kentucky affirmed Odom's convictions for murder, second-degree assault, and second-degree criminal mischief but reversed Odom's convictions for the two counts of intimidating participants in the legal process, and remanded the case for retrial on those two charges only.
Appellant's second trial commenced on December 12, 2007. As part of the Commonwealth's case-in-chief, the jury heard testimony from the medical examiner, Ben Smith's mother, Barry Ritchie, Eddie Sickles, Esther McWhorter, Yolanda Cooper, and Detective Hableib. Appellant testified in a narrative fashion. He admitted to becoming angry and vandalizing Ms. McWhorter's house. However, he denied all involvement in Ben Smith's murder, and stated he was not present when Smith was killed. Appellant suggested that Eddie Sickles had killed Smith.
The jury returned guilty verdicts on charges of murder, second-degree assault, second-degree criminal mischief, and two counts of intimidating a participant in the legal process. The jury recommended a sentence of life imprisonment for Appellant's murder conviction, which the circuit court imposed. The court ordered all of Appellant's other sentences to run concurrently with the life sentence.
Following the Supreme Court's Opinion, Odom filed multiple motions—both with and without the assistance of counsel—including the one pursuant to RCr 11.42, as supplemented and amended, which was denied by the trial court and is now before us. The trial court denied this motion because Odom failed to demonstrate that the alleged errors of trial and appellate counsel prejudiced his case. This appeal followed.
The procedural history of this matter on appeal is somewhat lengthy and complex. Of note, however, is Odom's motion for sanctions and to strike. This motion was passed from a motion panel of our Court to the instant merits panel and is addressed by separate order, entered contemporaneously with this Opinion.
STANDARD OF REVIEW
As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
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 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.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the
defendant must show 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 the probability sufficient to undermine the confidence in the outcome.
Both Strickland prongs must be met before relief may be granted. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Herein, we need not determine whether Odom's counsel's performance was adequate on the majority of the issues raised because Odom fails to demonstrate prejudice resulting from counsel's alleged deficient performance.
Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
To establish prejudice, a movant must show a reasonable probability exists 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. In short, one must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., 466 U.S. at 687, 104 S.Ct. at 2064. Fairness is measured in terms of reliability. "The likelihood of a different result must be substantial, not just conceivable." Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington v Ritcher, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) (citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2067))).
Mere speculation as to how other counsel might have performed either better or differently without any indication of what favorable facts would have resulted is not sufficient. Conjecture that a different strategy might have proved beneficial is also not sufficient. Baze [v. Commonwealth, 23 S.W.3d 619 (Ky. 2000)]; Harper v. Commonwealth, 978 S.W.2d 311 ([Ky.] 1998). As noted by Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995) (en banc): "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel."Hodge v. Commonwealth, 116 S.W.3d 463, 470 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "No conclusion of prejudice . . . can be supported by mere speculation." Jackson v. Commonwealth, 20 S.W.3d 906, 908 (Ky. 2000) (citations omitted).
The standard for evaluating claims that appellate counsel was ineffective is the same as the "deficient-performance plus prejudice" standard applied to claims of ineffective trial counsel in Strickland. Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010), as modified on denial of reh'g (Apr. 21, 2011).
Respondent [defendant] must first show that his counsel was objectively unreasonable . . . in failing to find arguable issues to appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If [defendant] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal.Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000).
LEGAL ANALYSIS
On appeal, Odom raises eight allegations of error in seeking reversal—based on claims that his trial and appellate counsel were ineffective. We will address each, in turn. Many of these errors should have been brought on direct appeal; however, because they all lack merit—for the reasons discussed below—the outcome is the same.
First, Odom contends that his trial counsel was ineffective due to his representation of Odom under an alleged conflict of interest. To support this contention, Odom employs proof-texting of the record. In one block quote (three sentences long) Odom purportedly includes excerpts from three pinpoint citations (each one second long) from a pretrial conference (spanning a course of over twenty minutes, collectively) without providing the complete context from which these excerpts were lifted. Review of the entirety of the exchange at issue demonstrates far more than indicated by Odom's block quote. Odom's trial counsel disclosed to Odom that his wife had been employed at the appellate division of the public defender's office during the time Odom was represented by the public defender's office. Odom stated this was "no excuse" to allow withdrawal as his counsel. Odom expressed that he wished to proceed to trial without delay and act as hybrid counsel, with current counsel as his co-counsel. Odom clearly stated, "I don't have no conflict with him," meaning his current counsel. Counsel alerted the trial court to the possibility that his continued representation of Odom may lead to violation of the rules of professional conduct. Counsel conceded that if Odom testified in a narrative fashion, it would alleviate the problems concerning his continued representation of Odom. The trial court addressed the issues of Odom's competency to stand trial, as well as his competency to represent himself as hybrid counsel in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). As a result, the trial court denied counsel's motion to withdraw and partially granted Odom's motion to represent himself as hybrid counsel.
The Supreme Court has described Faretta, as follows:
The United States Supreme Court held more than thirty years ago that a criminal defendant could not be forced to accept representation by a state-appointed attorney so long as the defendant was "made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." Although later decisions have shown that trial courts need not use "magic words" or repeat a standardized litany before granting a defendant's request for self-representation, the requirement remains that a trial court must provide a defendant proposing self-representation enough information to demonstrate that the defendant's waiver of counsel was done with "eyes open."Commonwealth v. Terry, 295 S.W.3d 819, 820 (Ky. 2009) (footnotes omitted). The trial court correctly found Odom to be competent and that he made a knowing, voluntary, and intelligent waiver of his rights to be fully represented by court-appointed counsel.
Even issues concerning constitutional rights, such as the right to conflict-free counsel, may be waived if done so knowingly and intelligently. "When the question of waiver arises in a non trial context, the trial judge may have much greater responsibilities to insure that there has been a knowing waiver of constitutional rights by the defendant himself." Salisbury v. Commonwealth, 556 S.W.2d 922, 927 (Ky. App. 1977). Odom acknowledged that he assumed partial responsibility for his own legal representation through hybrid representation, as approved by the trial court. On December 12, 2007, the trial court entered an order allowing Odom limited waiver of counsel through hybrid representation. This waiver was sufficient to allow Odom's partial self-representation and may well have implicitly and explicitly waived any claims relating to conflict of interest from partial representation by his appointed trial counsel. Odom's statements at the pretrial hearing on counsel's motion to withdraw clearly demonstrate Odom's knowing and voluntary waiver of any conflict of interest posed by counsel's continued—although only partial—representation of Odom.
Here, we find it prudent to mention that Odom's hybrid representation does not entirely preclude all claims for ineffective assistance of counsel. Another panel of our Court held "that hybrid representation permits ineffective assistance of counsel claims as they pertain solely to those duties assigned and undertaken by trial counsel." Wagner v. Commonwealth, 483 S.W.3d 381, 384 (Ky. App. 2015). Concerning his partial self-representation, Odom was responsible for opening statement, examination of witnesses, testimony in narrative fashion (should he elect to testify), and final argument. As co-counsel, appointed counsel was responsible for voir dire and making appropriate motions and evidentiary objections throughout the trial. "[F]ollowing a hybrid-representation configuration, [a defendant] is entitled to assert an allegation of ineffective assistance of counsel to those portions of his defense over which his trial counsel exercised exclusive control." Id. at 383. Once a defendant has elected hybrid representation, the attorney's duties are confined to those services identified by the defendant, so long as they are within the normal scope of services permitted and expected by counsel. Deno v. Commonwealth, 177 S.W.3d 753, 757 (Ky. 2005). A "defendant who exercises hybrid representation is entitled to assert a claim of ineffective assistance of counsel, but only with regard to those portions of representation which were explicitly undertaken by trial counsel." Wagner, 483 S.W.3d at 384.
We now return to the issue at hand, whether Odom's counsel was ineffective due to a conflict of interest. An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance. Mickens v. Taylor, 535 U.S. 162, 172, 122 S.Ct. 1237, 1244, 152 L.Ed.2d 291 (2002). The Supreme Court of Kentucky has held:
where an alleged conflict of interest is raised at or before trial, the standard set forth in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), governs. Under Holloway, to prevail on a Sixth Amendment claim of denial of the right to conflict-free counsel where the conflict was raised at or before trial, a defendant need only show that a conflict of interest existed. Id. at 487-91, 98 S.Ct. 1173.Samuels v. Commonwealth, 512 S.W.3d 709, 712 (Ky. 2017). Thus, the correct inquiry is whether Odom demonstrated that counsel had an actual conflict of interest.
Although we have counsel's written motion to withdraw and the recording of the oral arguments in support, Odom has presented nothing more to indicate that counsel had an actual conflict of interest with him. The fact that counsel's wife worked at the public defender's appellate division automatically imputes a conflict to neither her nor counsel. Further, Odom's assertion that counsel's wife previously represented him is not supported by the record now before us. The record reflects that the only attorneys from the Louisville Metro Public Defender's office that represented Odom in this matter were men.
Supreme Court Rule ("SCR") 3.130-1.10 imputes the conflicts of a lawyer who practices in a firm to all of the other lawyers in the firm—it provides, in part, that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule [ ] 1.7." SCR 3.130-1.10(a). "This, without more, is insufficient to show a conflict of interest in violation of the Sixth Amendment. Simply and only because they were both public defenders in the same office is not enough." Samuels v. Commonwealth, 512 S.W.3d 709, 716 (Ky. 2017).
The record also reflects that Odom's direct appeal—which happened after trial counsel's representation of Odom—was handled by an Assistant Public Advocate from Frankfort, Kentucky, not trial counsel's wife who presumably was employed by the Louisville Metro Public Defender's appellate division in Louisville, Kentucky.
Odom also contends that counsel's disclosure that continued representation would cause counsel to violate the rules of professional conduct is evidence of a conflict of interest. As the Supreme Court of Kentucky has observed, our duty is:
"not to enforce the Canons of Legal Ethics, but to . . . assure vindication of the defendant's Sixth Amendment right to counsel." Mickens v. Taylor, 535 U.S. 162, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Indeed, the scope of the right to effective assistance of counsel under the Sixth Amendment is not dictated by state ethical rules. See Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) ("[B]reach, of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.").
So conduct that might lead to a conflict under our ethical rules will not necessarily lead to an unconstitutional conflict for Sixth Amendment purposes.Samuels, 512 S.W.3d at 715. Because these issues were brought to the trial court's attention at a pretrial hearing, the trial court was able to inquire into the general nature of the potential conflict and incorporate solutions to avoid actual conflict and allow Odom effective assistance of counsel. The rule cited by counsel provides that "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." SCR 3.130 (1.16)(c). No good cause was shown. Therefore, the trial court did not abuse its discretion in denying counsel's motion to withdraw because of the mere possibility of violating the professional rules of conduct where such continued representation would not, and did not, lead to an impermissible and unconstitutional actual conflict of interest. Simply put, Odom received the conflict-free counsel to which he was entitled under the Sixth Amendment. Further, Odom explicitly waived any objection to a conflict of interest at the pretrial hearing in which counsel requested to withdraw, as previously discussed.
Additionally, counsel's motion to withdraw was not filed until October 1, 2007, when the matter was set for trial—at that time—to begin on October 23, 2007. Therefore, considering the totality of the circumstances, we cannot say that the trial court erred in weighing its choices on the motions to withdraw and for self/hybrid representation. On the one hand, the trial court considered the possibility that the potential conflict of interest—which had been explicitly waived—would ripen into an actual conflict of interest, in spite of the safeguards it could, and did, employ—including Odom's self/hybrid representation, as well as allowing Odom to testify in a narrative fashion, if he chose to testify. On the other hand, the trial court considered the imminent unwanted effects of postponing the trial date to obtain new counsel—which appeared unlikely, given the lack of personal funds for Odom to hire private counsel and the previous conflicts with all court-appointed counsel—or proceeding with the trial as scheduled with Odom acting completely pro se. We, like the trial court, find no conflict, prejudice, or reversible error on this claim.
Second, Odom contends that trial counsel was ineffective for conceding Odom's guilt to the charges of murder and second-degree assault during voir dire. This assertion is also based upon proof-texting, as well as misunderstanding, misapprehension, and misquoting of the record. In his brief, Odom denies that he misquoted counsel's statement to the jury during voir dire to the trial court in his RCr 11.42 motion; however, review of the record confirms that Odom has continually misquoted the record, and the alleged error does not exist.
Odom claims that counsel said, "Mr. Butler mentioned that my client is charged with murder, assault second, two counts of criminal mischief, and two counts of intimidating a witness. He denies the intimidating a witness." Review of the incorrectly cited portion plainly reveals that counsel stated, "Mr. Butler mentioned intimidating witness in legal process. Mr. Odom denies that charge." This was said as part of counsel's speech to the venire concerning the importance of Odom's fundamental and constitutional rights to trial by jury and to examine witnesses. Counsel continued by questioning the venire on whether they would hear Odom question witnesses during trial and listen to the witnesses' answers without holding this charge against Odom. Odom interrupted counsel's questions with an objection—concerning this issue of whether counsel's statement constituted an admission of guilt to the other charges—which was addressed immediately at a bench conference. Counsel clarified to the venire that Odom was not conceding guilt on the other counts with which he was charged; therefore, any error was harmless and not prejudicial.
Third, Odom alleges that his trial counsel was ineffective for failure to object to and preserve for appeal the jury instruction concerning second-degree assault against Amy Mott, which deprived him of his right to a unanimous jury verdict. Fourth, Odom argues that trial counsel was ineffective for failure to object to the fatal variance concerning the mens rea of the charged offense of second- degree assault in the indictment into the jury instructions, which could have prevented a unanimous verdict. These issues are intertwined and, therefore, are discussed together.
RCr 9.54(2) provides:
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.Counsel tendered proposed jury instructions on Odom's behalf which specifically limited the mens rea for this charge to an intentional act, thereby excluding an instruction which also included a wanton mens rea. Moreover, the instruction given, which included the wanton mens rea, was supported by evidence presented at trial and did not impermissibly add to the indictment which charged Odom with second-degree assault under KRS 508.020 , as the instruction given mirrored the language of the statute. Therefore, Odom's claims that counsel's failure to object to this jury instruction prejudiced him, constituted ineffective assistance of counsel, or amounted to reversible error, are unfounded.
Kentucky Revised Statutes.
KRS 508.020 provides:
(1) A person is guilty of assault in the second degree when:
(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
(2) Assault in the second degree is a Class C felony.
Fifth, Odom alleges trial counsel was ineffective for his: (1) failure to file critical pretrial motions, (2) refusal to interview and subpoena witnesses for the defense, (3) failure to object to the trial court's refusal to "permit Odom to place his defense before the jury by complete testimony but by narrative form only," (4) refusal to perform direct examination of Odom, and (5) failure to object to the trial court's denying the jury to question Odom, as it permitted the jury to do with all other witnesses. Each of these claims fails for the reasons discussed below.
Odom alleges that trial counsel was ineffective for his failure to file critical pretrial motions. Odom asserts that counsel was required to file motions and that Odom requested counsel to move the trial court to suppress the transcribed statement of Yolanda Cooper because the original recording was unavailable. On December 10, 2007, counsel orally moved the trial court to exclude the transcribed statement of Yolanda Cooper because there were patent errors indicating discrepancies from the original recording, which was unavailable. Nonetheless, Yolanda Cooper testified at Odom's trial, and Odom was given the opportunity to cross-examine her regarding her statement. Thus, he has shown neither attorney error nor prejudice. Odom also claims that he requested counsel move the trial court to dismiss the criminal mischief charge alleging Odom "shot up" Dale Booker's car. However, Odom fails to demonstrate grounds for which counsel could have successfully moved to dismiss this charge prior to trial. Nevertheless, counsel moved for a directed verdict on this charge at trial, which was granted. Therefore, Odom cannot show prejudice by counsel's failure to file the requested motion. Odom further claims that he requested counsel move the trial court to dismiss the charge of second-degree assault of Amy Mott. However, such a motion would have been futile. Evidence presented at trial, through the testimony of Cooper, prevented the trial court from granting a motion for a directed verdict on this charge. Thus, Odom cannot show he was prejudiced by counsel's failure to file the requested motion.
Odom claims that he requested trial counsel independently interview Cooper "about her recollection of the events in an attempt to fill in the missing portions of the transcribed statement, but counsel did not." Odom also claims that counsel's failure to interview Cooper before trial "allowed her to testify without impeachment to a coached version of events." However, it was Odom's sole responsibility to examine witnesses at trial. Therefore, any fault for this alleged error lies with Odom, not counsel. Odom also claims that he wanted counsel to interview "the detective who interviewed Eddie Sickle." Odom provided no name of such a detective in his appellate brief, and no name of such a detective was provided to the trial court in his RCr 11.42 motion. It is well-settled, "vague allegations, including those of failure to investigate, do not warrant an evidentiary hearing and warrant summary dismissal of the RCr 11.42 motion." Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005), overruled by Leonard, 279 S.W.3d 151.
Odom's claim that trial counsel's failure to object to Odom's testifying in narrative form constitutes ineffective assistance of counsel is nonsensical. Under the hybrid representation configuration requested by Odom and ordered by the trial court, Odom was responsible for examination of witnesses and testifying in a narrative fashion, should he choose to do so. Moreover, Odom was not prevented in any way from presenting the proof via his own testimony in a narrative fashion. Therefore, Odom cannot show prejudice on this issue.
Odom further claims that trial counsel's failure to ask Odom questions on direct examination constitutes ineffective assistance of counsel. Again, under the hybrid representation configuration requested by Odom, and ordered by the trial court, Odom was responsible for examination of witnesses and testifying in a narrative fashion, should he choose to do so. Once again, Odom was not prevented in any way from presenting the proof via his own testimony in a narrative fashion. Consequently, Odom cannot show prejudice on this issue.
Odom also alleges that trial counsel's failure to object to the jury's being allowed to question Odom after he testified constitutes ineffective assistance of counsel. While it was counsel's duty to make evidentiary objections throughout trial, Kentucky Rule of Evidence 614(c) provides that "[a] juror may be permitted to address questions to a witness." This rule is permissive rather than mandatory. The trial court acted within its discretion in denying such questioning, particularly in light of the potential that such questions might run afoul of Odom's right against self-incrimination under the Fifth Amendment. Again, Odom had the opportunity to present his proof via narrative testimony and has failed to show how counsel's failure to object to the trial court's decision not to allow the jury to question Odom prejudiced him.
Sixth, Odom argues that trial counsel was ineffective for failure to move for a mistrial when it was discovered that Detective Michael E. Halblieb falsely testified before the grand jury to have Odom charged with numerous offenses. Odom claims that Detective Halblieb testified that "Amy Mott had positively identified Odom as pistol whipping her," "Odom went to Dale Booker's house and shot up the car," and "Odom was shooting up people's houses." Odom cites to a United States Court of Appeals decision from the Ninth Circuit which held:
This is the spelling used in the indictment, Odom's motion, and the trial court's order; therefore, this is the spelling we choose to use in the remainder of this Opinion.
the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel—and, if the perjury may be material, also the grand jury—in order that appropriate action may be taken.United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974). Odom also cites to KRS 523.020(1), which provides, "[a] person is guilty of perjury in the first degree when he makes a material false statement, which he does not believe, in any official proceeding under an oath required or authorized by law[.]" In the instant case, there was no perjury; therefore, there was no error.
Odom's first assertion concerning Detective Halblieb's testimony about Mott's identification of Odom is inaccurate. The relevant part of that testimony was transcribed as follows:
W: . . . at some point during the night, I don't know exactly what time frame, he, uh, displayed a handgun and struck Amy Mott, which is another victim, in the head several times causing an injury to her.
P: Okay, and she was able to identify him also?
W: Yes, there was, uh, three photo packs, uh, shown and he was ID'd in all three photo packs.Although this exchange is somewhat vague, it is not the same as Odom claims it is in his brief, in text or substance, and does not amount to perjury. Odom had the opportunity to cross-examine Detective Halblieb at length about this portion of his testimony. Detective Halblieb testified at trial that Mott's identification of Odom had to do with the events of the night in question in general, not solely relating to who had pistol-whipped her—Cooper offered testimony on that issue.
Odom's second assertion concerning Detective Halblieb's testimony about Odom shooting Booker's car is also inaccurate. The relevant part of that testimony was transcribed as: "he then proceeded to, um, Ms. Booker's residence, which is another victim. He, uh, displayed a handgun and shot at her vehicle several times. Uh, this was all the same night." Once again, although this exchange is somewhat vague, it is not the same as Odom claims it is in his brief, in text or substance, and does not amount to perjury. Odom also had the opportunity to cross-examine Detective Halblieb at length about this portion of his testimony. Detective Halblieb testified at trial that there were no eyewitnesses who corroborated his grand jury testimony that Odom shot Booker's car. However, Detective Halblieb also testified at Odom's trial that he believed his statements to the grand jury to be true at that time, based upon the timing and location of events, coupled with his belief, upon investigation, that Odom had a gun which he used to kill a man and pistol-whip Mott, along with the facts - which Odom admitted at trial - that Odom also defaced, destroyed, or damaged the residence and car of another victim.
Odom's third assertion concerning Detective Halblieb's testimony regarding Odom's shooting up people's houses is also inaccurate. The relevant part of that testimony was transcribed as: "And then it went on from there, he started shooting up peoples [sic] houses, breaking windows 'cause they all witnessed the homicide, or were witnesses to the argument before the homicide." Once again, although this exchange is somewhat vague, it is not the same as Odom claims in his brief, in text or substance, and does not amount to perjury. Odom also had the opportunity to cross-examine Detective Halblieb at length about this portion of his testimony. Furthermore, Detective Halblieb's testimony that Odom was shooting up people's houses was not material to the indictment as there was no corresponding charge for Odom shooting at any house(s).
Although Odom alleges that Detective Halblieb committed perjury in these three areas, he offers no proof that Detective Halblieb committed perjury as defined by KRS 523.020, that any of the alleged perjury was material, that the Commonwealth was aware of the alleged perjury, or that jeopardy had not attached at the time the alleged perjury was discovered, as required by Basurto. Therefore, counsel's failure to move for a mistrial because of Detective Halblieb's testimony did not prejudice Odom or otherwise constitute ineffective assistance of counsel.
Seventh, Odom claims that appellate counsel was ineffective for failure to master the record on appeal, resulting in the failure to request palpable error review on direct appeal of the previous six alleged errors of trial counsel, denying him an effective appeal, and resulting in those claims being procedurally defaulted. However, the Kentucky Supreme court has observed:
As a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal from the trial court's judgment, because there is usually no record or trial court ruling on which such a claim can be properly considered. Appellate courts review only claims of error which have been presented to trial courts. Moreover, as it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons, KBA Op. E-321 (July 1987), and due to the brief time allowed for making post trial motions, claims of ineffective assistance of counsel are best suited to collateral attack proceedings, after the direct appeal is over, and in the trial court where a proper record can be made.Humphrey v. Commonwealth, 962 S.W.2d 870, 872 (Ky. 1998) (citation omitted).
The Supreme Court of the United States has also held:
appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal . . . it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent.Smith, 528 U.S. at 288, 120 S.Ct. at 765. For the reasons discussed previously, Odom has not satisfied either prong of the Strickland test to show ineffective assistance of appellate counsel for failure to present these meritless issues on direct appeal.
Eighth, Odom claims that trial counsel was ineffective for refusing to: ask jurors his questions during voir dire, object when Odom was denied his right to attend bench conferences, and object when all his pretrial motions were ignored by the trial court. Under the hybrid representation configuration ordered by the trial court, counsel was responsible for voir dire. As an initial matter, although Odom alleges that counsel refused to ask Odom's questions during voir dire, no proof has been offered that Odom ever requested counsel to ask such questions. A strong presumption exists that counsel's decision as to what questions to ask the venire constitutes acceptable trial strategy. Odom has failed to show prejudice to establish ineffective assistance of counsel on this claim. Also, under the hybrid representation configuration ordered by the trial court, counsel was responsible for making appropriate motions and evidentiary objections throughout the trial. Attending the bench conferences is an integral part of this task. Thus, counter to Odom's assertions, he was not unrepresented at bench conferences. Finally, Odom has not identified a single pretrial motion which was ignored by the trial court. "It is not our function as an appellate court to research and construct a party's legal arguments." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). We will not search the record to construct Odom's argument for him, nor will we go on a fishing expedition to find support for his underdeveloped arguments. "Even when briefs have been filed, a reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Without more, we cannot say that the trial court erred in denial of Odom's RCr 11.42 motion.
Therefore, and for the foregoing reasons, the order entered by the Jefferson Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Glenn D. Odom, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky