Opinion
NO. 2016-CA-000292-MR
02-17-2017
NICHOLAS SALFI APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kieran J. Comer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 10-CR-000076 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Nicholas Salfi brings this appeal from a February 8, 2016 order of the Jefferson Circuit Court summarily denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. We affirm.
In the early morning hours of January 2, 2010, Salfi, after watching a football game with his father, decided to drive by the house that he had previously shared with Kelly Doyle and their infant son. Doyle had recently broken off a three-year relationship with Salfi, but Salfi continued to foster hopes of reconciliation. Upon arriving at the home, Salfi noticed a strange vehicle parked in the driveway. He used the house key that he had refused to give back to Doyle to furtively enter the home. Upon entry, Salfi discovered Doyle and her male friend, Payton Thomas, sleeping in the same bed. Salfi and Doyle's son was asleep in his crib in the same room. Angered, Salfi began striking Thomas, who woke up and immediately ran out of the house. Salfi pursued Thomas into the front yard with a knife and stabbed him several times. Salfi then went back into the house and proceeded to attack Doyle. Salfi beat Doyle with a blunt force object, strangled her with a ligature, and stabbed her over one-hundred times in her face, neck, and back. When the police arrived, they discovered Doyle dead in the entranceway to the house. Her infant son was found safe, but alone crying in his crib.
On January 13, 2010, Salfi was indicted for murder and first-degree assault. In June of the following year, a jury found Salfi guilty on both charges. Salfi appealed to the Supreme Court of Kentucky, which, in an unpublished opinion rendered on September 20, 2012, affirmed his conviction and sentence. Salfi v. Commonwealth, 2011-SC-000562-MR, 2012 WL 4327660 (Ky. Sep. 20, 2012).
Thereafter, on June 7, 2013, Salfi, pro se, moved the trial court to vacate his conviction and sentence pursuant to RCr 11.42. In his motion, Salfi argued that his trial counsel was ineffective for 1) failing to conduct an adequate pre-trial investigation; 2) failing to prepare for trial; 3) failing to obtain an expert witness; 4) providing erroneous information as to the maximum penalty; and 5) cumulative error. Appointed counsel supplemented Salfi's pro se motion on November 7, 2014. On February 8, 2016, the trial court rendered an order denying Salfi's motion. The court found that all of Salfi's claims could be refuted using only the record in the case. It is from the order denying Salfi's RCr 11.42 motion that Salfi now appeals. Further facts will be developed as necessary.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court framed the standard by which a defendant may establish ineffective assistance of counsel. Pursuant to Strickland, a petitioner must show that his trial "counsel's representation fell below an objective standard of reasonableness," Id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Strickland standard is a difficult one to meet because counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. Defendants alleging ineffective assistance of counsel bear a "heavy burden of proof." Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
The proper test to use when judging counsel's performance is whether counsel provided reasonably effective assistance under prevailing professional norms. Strickland, 466 U.S. at 688. A reviewing court "must not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996) (overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004)).
On appeal, we look de novo at counsel's performance and any potential deficiency caused by counsel's performance. Id. Even though both components of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, we must defer to the determination of facts and credibility made by the trial court. McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986).
Generally, where an appellant's allegations would entitle him to relief, he is entitled to an opportunity to prove the truth of the matter asserted at an evidentiary hearing. Barnes v. Commonwealth, 454 S.W.2d 352, 354 (Ky. 1970). It is only where an appellant's allegations are clearly refuted by the record that an evidentiary hearing can be dispensed with. Frasier v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Where an evidentiary hearing is denied, appellate 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).
On appeal, Salfi claims that the trial court erred when it denied his motion without granting an evidentiary hearing. He renews three of the claims he previously raised in the trial court. First, Salfi contends that his trial counsel rendered ineffective assistance of counsel when he failed to fully develop an extreme emotional distress (EED) defense. Specifically, he claims that counsel failed to investigate his past psychiatric treatment, failed to present an expert witness, and failed to request a mental evaluation. Salfi believes that had his counsel done these things, he would have been convicted of manslaughter instead of murder. We disagree.
The defense of EED requires proof that some triggering event caused the defendant to suffer "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably[.]" McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986). EED is a disturbance for which there was a "reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Kentucky Revised Statutes (KRS) 507.020(1)(a).
Upon review of the record, we find Salfi's claim lacking. First, as to his assertion that his counsel failed to investigate and present evidence of treatment, Salfi fails to explain exactly what past psychiatric treatment his trial counsel failed to investigate. However, after reviewing Salfi's pro se brief to the trial court, we find that the "past psychiatric treatment" Salfi refers to is counseling sessions he attended after Doyle ended their three-year relationship. Salfi believes that had his counsel used the "progress notes" from these sessions it would have helped the jury "better understand what he was going through at that time."
The evidence in the record indicates that defense counsel knew of Salfi's counseling sessions and presented evidence of the treatment and of Salfi's mental status throughout the trial. Trial counsel called witnesses who testified as to Salfi's state of mind at the time of the murder and he also cross-examined many of the Commonwealth's witnesses on the issue. Salfi also testified in his own defense and recounted to the jury his state of mind when he entered the house and saw Thomas in Doyle's bed. He also testified as to how he felt depressed and lost significant weight after breaking up with Doyle, and testified that he received psychiatric treatment after the breakup.
Additionally, Ken Haysley, the psychotherapist who treated Salfi, and who authored the "progress notes" Salfi contends trial counsel should have used, testified on Salfi's behalf. Specifically, Haysley testified that shortly before the murder, he treated Salfi for anxiety and adjustment disorder dealing with the breakup. Salfi's claim that trial counsel did not present evidence of his treatment and state of mind is easily contradicted by the record and clearly without merit.
Salfi also contends that his counsel was ineffective for failing to hire an expert. However, with regards to trial strategy and tactics, a defense attorney enjoys great discretion in trying a case. Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). The calling of witnesses falls within the realm of trial strategy and "[d]ecisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight." Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000)(overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005))(citation and quotation marks omitted).
With an EED case, while mental health professionals may offer evidence regarding defendant's state of mind at the time of the offense, expert testimony is not necessary. This is because EED is a legal concept, and not a mental disease. See McClellan, 715 S.W.2d at 468-89. Thus, unlike the defense of insanity or mental illness, EED "does not...depend upon expert witnesses to prove it." Commonwealth v. Elmore, 831 S.W.2d 183, 185 (Ky. 1992).
Here, trial counsel did not act unreasonably in how he chose to present evidence of Salfi's state of mind to the jury. As stated above, trial counsel presented several witnesses, including Salfi's psychologist, to show Salfi's mental state at the time of the offense. An expert was unnecessary to prove Salfi's state of mind, and calling an expert witness to testify to information that was already provided to the jury would have been unnecessarily cumulative and would have added nothing new. Accordingly, trial counsel's decision not to call an expert witness did not constitute deficient performance.
Salfi further contends that he was denied effective assistance of counsel when his attorney did not have him evaluated before trial by a mental health professional. An evaluation by a mental health expert is necessary to assist with the defense only when one's mental wellbeing is seriously in question. Crawford v. Commonwealth, 824 S.W.2d 847, 850 (Ky. 1992). There is nothing in the record to show Salfi did anything to bring any alleged mental defect to the attention of counsel or the trial court. In his motion for post-conviction relief, Salfi does not contend, nor is there any evidence, that he had any mental treatment or consultations other than the treatment for anxiety he received from Haysley after his breakup with Doyle. Accordingly, we are not convinced that trial counsel was ineffective for failing to have him evaluated by a mental health expert.
In sum, we find that trial counsel fully investigated and developed the EED defense. He provided information to the jury as to Salfi's state of mind at the time of the offense and identified and presented to the jury a triggering event, which the defense claimed made Salfi lose control. Salfi has failed to establish that any decision made by his trial counsel was objectively unreasonable under the circumstances; therefore, we cannot say that counsel's performance was deficient regarding this issue.
Salfi next argues that trial counsel failed to advise him of the proper maximum sentence he faced for his offense. Specifically, he claims that his attorney erroneously informed him that the most he could receive for his crime was seventy years in prison; however, the true maximum he faced based on his offense was life in prison. Salfi attempts to convince this Court that because he thought seventy years was the worst he could do at trial, he decided to reject the plea offer and take his chances. He claims that had he known that a life sentence was a possibility, he would have accepted the Commonwealth's offer of forty years in prison. We are not convinced.
The right to effective assistance of counsel extends to plea proceedings. Lafler v. Cooper, 132 S.Ct. 1376, 1384, 182 L.Ed. 2d 398 (2012). "[C]laims of ineffective assistance of counsel in the plea bargain context are governed by the [performance/prejudice] test set forth in Strickland." Missouri v. Frye, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). To show prejudice from ineffective assistance of counsel where a plea offer has been rejected because of counsel's deficient performance, "defendants must demonstrate a reasonable probability that they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Frye, 132 S.Ct. at 1409. A defendant must further show that the plea would have been entered, and that the end result would have been more favorable by reason of a plea to a lesser charge or less prison time. Id.
In this case, we cannot glean from the record whether or not Salfi's counsel erroneously advised him regarding the maximum sentence he could receive at trial. However, assuming that counsel did not advise Salfi correctly, we do not believe a reasonable probability exists that Salfi would have accepted the plea offer had he been correctly advised.
According to the record, Salfi was twenty-eight years old when plea negotiations took place. Thus, if sentenced to seventy years and required to serve the entire sentence, Salfi would be ninety-eight years old when he was released—well past his natural life expectancy. Given that a seventy-year sentence for Salfi would have been the functional equivalent to a life sentence we find his assertion that he would have accepted the plea had he known that a life sentence was possible inherently incredible. Accordingly, we find that, even if Salfi was given erroneous advice as to the maximum sentence, it did not affect his decision to reject the plea offer. As such, Salfi has failed to show prejudice due to counsel's alleged deficient performance.
Finally, Salfi claims ineffective assistance as a result of the cumulative effect of the above errors. The cumulative error doctrine holds that isolated errors, which are not reversible in themselves, may combine with other errors, the effect of which makes the trial fundamentally unfair. Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). However, where there is no prejudicial error in any of the isolated issues, there can be no cumulative error. Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006). In this case, we found all of Salfi's claims to be without merit. Therefore, there can be no cumulative error that would require reversal.
Based on the foregoing, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Kieran J. Comer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky