Opinion
NO. 2012-CA-001967-MR
03-28-2014
RUBEN RIOS SALINAS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron Reed Baker Joshua A.K. McWilliams Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NOS. 98-CR-01270 AND 03-CR-01296
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Ruben Rios Salinas appeals from an Opinion and Order of the Fayette Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate his life sentence for a conviction on one count each of Manslaughter in the First Degree, Criminal Attempt and PFO Second Degree. Salinas raises several arguments in support of his claim of entitlement to RCr 11.42 relief, including his contention that his trial counsel was ineffective in requesting a manslaughter instruction, that appellate counsel was ineffective in failing to prosecute a Faretta/Wake argument and for failing to "federalize" the challenge to the manslaughter instruction. Salinas also contends that the trial court erred in concluding that trial counsel exercised a reasonable trial strategy, and erred when it denied Salinas's claim that the cumulative errors rose to the level of ineffective assistance of counsel. We find no error, and Affirm the Opinion and Order on appeal.
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that a criminal defendant has a constitutionally protected right to present his own defense. In Wake v. Barker, 514 S.W.2d 692 (Ky. 1974), the Kentucky Supreme Court held that a criminal defendant may make a limited waiver of counsel and control certain aspects of his own defense.
The matter before us has an extensive procedural history, including a trial in Fayette Circuit Court, a first direct appeal to the Kentucky Supreme Court resulting in a reversal and remand, a second trial and second direct appeal. The matter is now before us on appeal from the denial of Salinas's motion for RCr 11.42 relief. In the interest of judicial economy, we adopt the recitation of facts set out in the first direct appeal. The Kentucky Supreme Court stated therein as follows:
Salinas v. Commonwealth, 84 S.W.3d 913 (Ky. 2002).
Appellant Ruben Rios Salinas was convicted by a Fayette Circuit Court jury of murdering Aubrey L. ("Al") Nuckolls, for which he was sentenced to life in prison, and for kidnapping Nuckolls, for which he was sentenced to life in prison without benefit of probation or parole . . . .
At about 3:00 p.m. on Thursday, September 10, 1998, Nuckolls told his wife, Gayle, that he was going to a pharmacy to refill his prescription medication. He drove
away in his red 1988 Pontiac automobile and did not return. The next morning, Gayle Nuckolls found a note inside the front storm door of her home stating that her husband was "fine" and directing her to dial his pager number. She did so, and, when the call was returned, an unknown voice advised her that her husband had been in a "drug deal gone wrong," that he was in serious trouble, and that she needed to get a lot of money together in order to save him. Mrs. Nuckolls advised the caller to "throw him off a cliff" and reported her husband's disappearance and the telephone call to the police. Mrs. Nuckolls explained that her unusual response to the caller was because her husband had previously been engaged in narcotics trafficking but had assured her that he was no longer involved in criminal activities. In fact, at the time of his disappearance, Nuckolls was under investigation for possible narcotics trafficking, gun smuggling, and counterfeiting. After his disappearance, police investigators found $10,000.00 worth of marijuana in a rental storage facility controlled by Nuckolls and his wife.
Nuckolls's girlfriend, Nancy Burd, testified that Nuckolls called her home "800" number on September 10, 1998, to tell her that he was taking a trip to Ohio. At about 5:00 a.m. on Friday, September 11, 1998, Burd received a telephone call from an unknown person advising her that Nuckolls had been in a "drug deal gone bad," that he was in danger, and that she needed to send him $20,000.00. Burd assumed the caller was talking about money for a bail bond. Three hours later, she received another telephone call from the same unknown person asking if she intended to "help Al." She responded, "No, I am going to work," which she did. Early Sunday morning, September 13, 1998, Burd received another telephone call from the same unknown person advising her that Nuckolls had been kidnapped and was being held for $20,000.00 ransom.
On September 13, 1998, Appellant telephoned Anne Gautier, an "acquaintance," and asked her if he could park an automobile on the rural Jessamine County property where Gautier resided with her husband, Guy
Gautier, and their two children. Gautier agreed, and Appellant brought a vehicle to her property later that day. The vehicle was later identified as the red 1988 Pontiac belonging to Al Nuckolls.
On Monday, September 14, 1998, Gayle Nuckolls received a letter, postmarked September 11, 1998, threatening not only her husband, but also herself and her father, if she did not respond positively to the previous demand for money. She gave the letter to the police. Approximately one month later, Al Nuckolls's dead body was found in the trunk of the red 1988 Pontiac still parked on the Gautier property. His legs and arms were bound together with baling wire, and his body was wrapped in cardboard and tarpaulin and covered with lime. He had been shot twice, once in the back of the head and once in the right temple.
Appellant, a person of Mexican heritage, testified that he was engaged in the business of importing merchandise from Mexico to Lexington, Kentucky, for resale. His family lived in Texas, and, when in Lexington, he lived in a house that he shared with Chris Kaluski. Appellant admitted that he was acquainted with Nuckolls and that the two had often discussed possible business transactions but had actually participated in only one small, joint transaction. Appellant testified that, on September 10, 1998, Nuckolls came to his residence demanding money. Appellant admitted killing Nuckolls but claimed he did so in self-defense. He also admitted that he, with the assistance of Kaluski's employee, Gary Wade, loaded Nuckolls's body into the trunk of the Pontiac, and that he then drove the vehicle to the Gautier property and parked it. Finally, he admitted that he placed the note in the front door of the Nuckolls residence, wrote the threatening letter received by Gayle Nuckolls on September 14, 1998, and made the telephone calls described by Gayle Nuckolls and Nancy Burd. He claimed the kidnap/ransom story was a hoax designed to steer suspicion away from himself.
After his arrest, Appellant wrote a letter to Anne Gautier advising her that the police were in possession of
a "flow chart" identifying both her and her husband as members of the "Bluegrass Conspiracy" organization headed by Al Nuckolls. The letter also indicated that the Gautiers were acquainted with Chris Kaluski and suggested that "[y]ou will probably feel like taking a long vacation, depending on the calendar." Appellant wrote another letter to Kaluski informing him that the Gautiers were on the "Bluegrass Conspiracy" flow chart and that "Gary needs to go away about a month before and stay away."
The procedural history of the case is set out in the Opinion of Salinas's second direct appeal, wherein the Kentucky Supreme Court stated:
Salinas v. Commonwealth, 2008 WL 2167065, 2005-SC-000782-MR (Ky. May 22, 2008).
Salinas was indicted in 1998 for Capital murder, Capital kidnapping, and being a persistent felony offender (PFO) in the second degree. A jury convicted Appellant of the murder and kidnapping charges. As Appellant had been convicted of two capital offenses, which were incapable of being enhanced, the Commonwealth moved at the sentencing phase of trial to dismiss the PFO charge without prejudice. The trial court orally sustained the motion but did not address whether it was with or without prejudice. The court's written order stated that the PFO count was dismissed upon motion of the Commonwealth. The trial court sentenced Appellant, in accordance with the jury's recommendation, to life in prison without the possibility of parole.
On appeal from that judgment, this Court reversed the conviction based on the admission of improper hearsay evidence as well as an erroneous instruction on aggravating circumstances. We remanded the case to the Fayette Circuit Court. Upon retrial, Appellant was convicted of manslaughter in the first degree, attempted theft by extortion, and of being a persistent felony offender (PFO) in the second degree. The PFO conviction had the effect of enhancing Appellant's twenty-year sentence for manslaughter in the first degree to a life sentence.
As the Fayette Circuit Court recited in its April 25, 2012 Opinion and Order, after the initial 1999 jury verdict was overturned by the Kentucky Supreme Court in Salinas v. Commonwealth, 84 S.W.3d 913 (Ky. 2002), the Commonwealth re-indicted Salinas for PFO Second Degree in Indictment No. 03-CR-001296. The 2003 indictment was then merged for re-trial with the original 1998 indictment for Murder and Kidnapping.
The felony conviction underlying the PFO Second Degree charge was a 1996 conviction for Trafficking in Marijuana in Excess of Five Pounds. Salinas pled guilty to the trafficking charge on February 9, 1996, and he was sentenced to five years in prison, probated for five years, on March 8, 1996. Salinas did not directly appeal this 1996 conviction, but later filed a motion to vacate pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) and (f), which was denied by the Fayette Circuit Court on March 23, 2003. In 2004, Salinas moved to file a belated appeal of the denial of his CR 60.02 motion, which was denied by the Kentucky Court of Appeals on February 25, 2004. Salinas then filed a petition for a writ of habeas corpus regarding his 1996 conviction, and the petition was dismissed in June 2005.
After Salinas was convicted of Manslaughter, First Degree, Criminal Attempt Theft by Extortion, and PFO Second Degree in his second trial in 2005, he again appealed to the Kentucky Supreme Court. That Court held that the 2003 re-indictment of the PFO Second Degree charge was proper. The Supreme Court declined to review Salinas's allegation that the Manslaughter First Degree instruction was erroneous as being unsupported by the evidence because it was an instruction affirmatively requested by defense counsel at trial. The Supreme Court also declined to review whether the Attempted Theft by Extortion instruction was erroneous as not being a lesser-included offense of Kidnapping, also because defense counsel had requested such instruction at trial. Although Salinas himself objected to the Manslaughter First Degree instruction, his attorney requested it, and there was no objection by any party to the Attempted Theft charge at trial. In Salinas v. Commonwealth, 2008 WL 2167065 (Ky. May 22, 2008), the Supreme Court of Kentucky affirmed Salinas's convictions.
Thereafter, Salinas, pro se, sought to vacate his conviction pursuant to RCr 11.42 due to ineffective assistance of counsel. The Department of Public Advocacy was appointed and filed a supplementary RCr 11.42 motion. In support of the supplementary motion, Salinas asserted multiple arguments that his trial counsel was ineffective, including counsel's alleged improper failure to challenge the prior conviction underlying the PFO charge, violating his Faretta rights due to the Manslaughter instruction, failing to inform Salinas that Criminal Attempt Theft by Extortion is not a lesser-included offense of kidnapping, and failing to challenge bullet fiber evidence. On April 25, 2012, the Fayette Circuit Court rendered an Opinion and Order denying Salinas's motion for relief, and this appeal followed.
Salinas first argues that his trial counsel was ineffective in requesting a First-Degree Manslaughter instruction. In related arguments, he contends that appellate counsel was ineffective in failing to assert a Faretta/Wake violation on direct appeal (relating to the Manslaughter instruction), and that appellate counsel improperly failed to cite Federal law to challenge the Manslaughter instruction. Salinas's arguments on this issue center on his implicit contention that the jury should have been given an "all or nothing" instruction, to wit, that Salinas was either guilty of Murder or innocent of all charges.
In his original RCr 11.42 motion, Salinas, pro se, asserted two arguments claiming entitlement to relief. Thereafter, he obtained counsel who supplemented the motion with eight arguments. At no time did Salinas, either pro se or through counsel, argue that trial counsel was ineffective in requesting a Manslaughter in the First Degree instruction, and the issue was not addressed by the Fayette Circuit Court in its disposition of his motion. Accordingly, he is precluded from raising the issue for the first time on appeal. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).
Salinas did argue below that he was entitled to RCr 11.42 relief based on a violation of his Faretta rights. On June 18, 2003, and after a hearing, the trial court sustained Salinas's motion to be appointed co-counsel. Thereafter, the parties determined that the hearing was not conducted in accordance with Faretta, in which the United States Supreme Court held that a criminal defendant wishing to act as his own counsel or co-counsel must make a knowing, intelligent and voluntary waiver, whether in full or in part, of his constitutional right to counsel. A second hearing was then conducted on January 20, 2005, in accordance with Faretta. The record reveals that defense counsel, the Commonwealth and the trial judge discussed with Salinas for forty minutes the advantages and disadvantages of serving as co-counsel.
Salinas argued below that his appellate counsel's performance was deficient due to the failure to argue on direct appeal to the Kentucky Supreme Court after the second trial that Salinas's Faretta rights were violated when his counsel disregarded his request not to seek a Manslaughter in the First Degree instruction. In adjudicating this argument, the Fayette Circuit Court considered "whether appellate counsel's performance was deficient and prejudicial for failure to bring the Faretta violation claim on direct appeal." In answering this question in the negative, the court determined that at the time the appeal was filed, appellate counsel did not act unreasonably in believing that Salinas's objections to the instruction preserved the issue for appeal, and that counsel could therefore proceed with appealing on the basis that the instruction was not supported by the evidence.
To succeed on a claim of ineffective assistance of appellate counsel, the defendant must establish that counsel's performance was deficient by overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy. Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010). As a general rule, this presumption of effective assistance will be overcome "only when ignored issues are clearly stronger than those presented." Id. Finally, the defendant must establish that there was prejudice, which "requires a showing that absent counsel's deficient performance there is a reasonable probability that the appeal would have succeeded." Id.
In the matter at bar, the Fayette Circuit Court determined that Salinas did not demonstrate that appellate counsel ignored issues which were clearly stronger than those presented. Salinas objected to the Manslaughter in the First Degree instruction, but not to instructions for Manslaughter in the Second Degree or Reckless Homicide. Arguendo, even if counsel's performance was deficient, which we do not find to be the case, Salinas has not demonstrated that there is a reasonable probability that the appeal would have succeeded but for this issue. Additionally, we do not find persuasive Salinas's contention that his appellate counsel improperly failed to "federalize" the challenge to the Manslaughter instruction by citing federal case law. Salinas's assertion is speculative at best, and does not demonstrate that but-for the alleged ineffective assistance the outcome of the second appeal would have been different. Hollon, supra. We find no error.
Salinas next argues that the trial court erred when it determined that trial counsel exercised reasonable trial strategy and therefore was not ineffective when counsel failed to present mitigating evidence at sentencing. Salinas maintains that trial counsel should have engaged a mitigation specialist, and that his family was prepared to testify that he was a good father, was well-loved by his family, and that the acts for which he stood convicted were completely out of character for him. He contends that mitigation testimony would have demonstrated that his travels to Mexico, and his importation of various Mexican products were for the legitimate purpose of establishing a cigar business and were not intended for the drug trade.
Defense counsel has "an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). The Hodge court recognized, however, that "defense counsel has neither the absolute duty to present mitigation character evidence, nor the duty to present all available mitigation evidence." Id.
The court must evaluate the circumstances as they existed at the time from trial counsel's perspective, without the "distorting effects of hindsight[.]" Brown v. Commonwealth, 253 S.W.3d 490, 498 (Ky. 2008). The jury convicted Salinas of two offenses which were less than those charged, thus avoiding capital convictions which could have resulted in the death penalty. The Fayette Circuit Court determined that it was reasonable to conclude that trial counsel's strategy was to avoid inflaming the jury with mitigation evidence after the jury had also shown some degree of leniency in returning convictions on lesser offenses. Additionally, the court noted that though trial counsel did not call mitigation witnesses, she spoke to the jury about Salinas's many positive attributes including that he was intelligent, artistic, charming and entrepreneurial. We find no error in the trial court's conclusion that counsel's decision not to call mitigation witnesses was a strategic one, and that Salinas therefore did not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Salinas's final argument is that the trial court erred when it denied his claim that the cumulative errors of trial counsel and appellate counsel rose to the level of ineffective assistance of counsel. He briefly argues that the cumulative effect of the errors in this case deprived him of his right to due process as guaranteed by Sections 2, 7, and 11 of the Kentucky Constitution and the 4th, 5th, 6th and 14th Amendments to the United States Constitution. He contends that all of trial counsel's and appellate counsel's aforementioned failures directly led to his conviction and lengthy sentence and the affirmation on appeal. He maintains that the proper remedy for these errors is to vacate his judgment and sentence, and to grant a new trial.
Having determined that the trial court did not err in finding that Salinas received effective assistance of counsel at trial and on appeal, we cannot conclude that Salinas is entitled to relief from judgment on the theory of cumulative error. For the foregoing reasons, we Affirm the April 25, 2012 Opinion and Order of the Fayette Circuit Court denying Salinas's motion for RCr 11.42 relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron Reed Baker
Joshua A.K. McWilliams
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky