Opinion
NO. 2014-CA-000240-MR NO. 2014-CA-001128-MR
01-15-2016
JOHNNY SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Johnny M. Smith, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 08-CR-00225 OPINION
AFFIRMING BEFORE: JONES, D. LAMBERT, AND THOMPSON, JUDGES. JONES, JUDGE: This is a consolidated appeal in which the Appellant, Johnny Smith ("Smith"), acting without the assistance of counsel, challenges the Greenup Circuit Court's decision to deny him post-conviction relief. The first appeal, No. 2014-CA-000240-MR, arises out of the trial court's denial of Smith's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. The second appeal, No. 2014-CA-001128-MR, arises out of the same court's denial of Smith's Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate. After careful review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Kentucky Supreme Court succinctly set out the facts leading up to Smith's arrest and indictment as part of its decision on direct review. See Smith v. Commonwealth, 361 S.W.3d 908 (Ky. 2012). We adopt the Supreme Court's factual recitation as follows:
Around 7:00 p.m. on September 26, 2008, a man robbed K.D.'s Fuel in South Shore, Kentucky at gunpoint. The man was wearing two bandanas: one over the top of his head, and one covering the lower half of his face from the nose down. The store clerk emptied the register and handed the robber approximately $500. Because of the bandanas, the clerk saw only the robber's eyes; however, he observed the robber driving a teal Geo Tracker. The Geo, which was owned by Brian Simpson, was taken from Simpson's place of employment without his knowledge at some point before the robbery, used during the robbery, and recovered a few blocks away later that night.
A customer outside K.D.'s at the time, Lloyd Davis, witnessed the robbery[] and drove around the fuel station to get the license plate number from the robber's vehicle. As the robber drove past Davis, the two men made eye-contact. The bandana that had been covering the lower half of the robber's face was gone, and Davis recognized Appellant as the robber.[] Davis then made an anonymous call to the police and gave the dispatcher
the Geo's license plate number and a brief description of the vehicle.Id. at 912-13.
Local pawnshop owner, Donnie Townsend, also observed Appellant driving Brian Simpson's Geo Tracker the night of the robbery.[] Townsend had done business with Appellant and Appellant's wife a few times in the months preceding the robbery, including the day of the robbery. Around 6:45 or 7:00 that evening, Townsend saw Appellant driving the Geo toward K.D.'s.
K.D.'s is a glass structure, front to back, that Davis could see through.
Davis knew Appellant because he had gone to school with Appellant's brothers and had been to Appellant's house on a few occasions.
Simpson works across the street from Townsend's shop. Townsend testified that he sees the Tracker parked across the street on a daily basis. He knew it was Simpson's Tracker because of the unusual color and because there was no tire on the rim of the spare mounted on the back of the vehicle.
Smith was subsequently indicted on charges arising out of the robbery. He was tried before a jury. Attorney Kevin Martz represented Smith at trial.
At trial, Donnie Townsend, a local pawnshop owner, testified that he knew Smith through business. Mr. Townsend testified that on the night in question he saw Smith driving Brian Simpson's Geo Tracker toward (and about twenty yards from) K.D's, around the time of the robbery. Next, K.D.'s store clerk testified that a man wearing bandanas covering his face came in, pointed a gun in his face, and demanded all the money from the register. The clerk testified that the robber took about $500 before driving away in a teal Geo Tracker. Lloyd Davis, who was acquainted with Smith and his family, testified that he saw Smith rob K.D.'s and that just after the robbery he saw Smith drive by in a teal Geo Tracker with his face uncovered, allowing him to identify the driver as Smith.
The jury found Smith guilty of first-degree robbery and unauthorized use of a motor vehicle. The jury also found him to be a second-degree persistent felony offender (PFO). The circuit court subsequently entered judgment against Smith and sentenced him to a total thirty (30) years in prison. Smith appealed his conviction to the Kentucky Supreme Court. On direct appeal, Smith's conviction was affirmed in part and reversed and remanded in part. The Court reversed only the trial court's imposition of court costs and remanded for a determination of whether Smith was (1) a poor person as defined by Kentucky Revised Statutes (KRS) 453.190(2) and (2) unable to pay court costs, and will be unable to pay court costs in the foreseeable future.
On direct appeal, Smith argued that: (1) he was denied his constitutional right to a speedy trial, (2) the trial court erred in denying his motion for a directed verdict, (3) the trial court erred in assessing court costs and fines, and (4) the trial court erred in ordering him to pay restitution.
Thereafter, Smith filed a pro se motion to vacate his sentence pursuant to RCr 11.42 with the trial court. Smith was appointed counsel and an evidentiary hearing was held on November 8, 2013. Smith, his former attorney, Kevin Martz, and Martz's supervisor, the director of the local Department of Public Advocacy (DPA), Brian Hewlett, testified at the evidentiary hearing. Following the evidentiary hearing, on January 3, 2014, the trial court entered an order denying Smith's RCr 11.42 motion.
After the record was designated for purposes of appeal, Smith filed a motion to vacate the trial court's order denying his RCr11.42 motion based on allegations of fraud pursuant to CR 60.02. The trial court denied this motion on June 26, 2014, and Smith appealed. The two appeals were consolidated on Smith's motion.
II. STANDARD OF REVIEW
Smith bears the burden on appeal of showing that the trial court committed clear error in denying his motion for RCr 11.42 relief. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). "The test for a clearly erroneous determination is whether that determination is supported by substantial evidence." Id.
The standards for assessing ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This two-pronged test requires Smith to show that his counsels' performance was deficient and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.C. at 2064. An attorney's performance is evaluated "by the degree of its departure from the quality of conduct customarily provided by the legal profession." Henderson v. Commonwealth, 636 S.W.2d 649, 650 (Ky. 1982). In addition, courts should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (1999).
If an evidentiary hearing is held, as in this case, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983). Recognition must be given to the trial court's superior position to judge the credibility of the witnesses and the weight to accord their testimony. McQueen v. Commonwealth, 721 S.W.2d 699, 698 (Ky. 1986).
III. ANALYSIS
A. Ineffective Assistance of Counsel
Smith makes numerous allegations of ineffective assistance of counsel. Each is addressed below.
Trial by Ambush
Smith alleges that he was "ambushed" by the Commonwealth because the Commonwealth did not inform his counsel until the day of trial which of two separate criminal cases against him would be going to trial that day. Smith asserts that this prevented his counsel from being able to prepare for trial and to have his alibi witnesses present. Smith claims that his counsel should have moved for a continuance so that he could be properly prepared after learning that the Commonwealth planned to try Smith for the K.D.'s robbery.
At the evidentiary hearing, Smith testified that on the day of trial he was worried that no witnesses were there, but his attorney, Mr. Martz, told him it was fine. Smith testified that he was concerned, but assumed they were going to be trying his other criminal case because he did not have any alibi witnesses for it. Smith testified that he thought Mr. Martz was confused as to which case was going to trial as well.
Mr. Martz testified that Smith was indicted on another robbery charge, 08-CR-00235, in addition to the robbery charge in this case, 08-CR-00225. Martz stated that both robbery cases were set for trial on the same day. He testified that the Commonwealth elected to try this case on January 31, 2011. Martz explained that he was aware which case would be tried and also discussed with Smith which case would be tried on that day. Additionally, Mr. Martz stated that Mr. Smith did not ask for a continuance on the day of the trial and that he knew which case was moving forward. Mr. Martz stated that he did not plan to call any witnesses; his strategy was to attack the Commonwealth's witnesses.
We find no error in the trial court's resolution of this claim. The trial court clearly found Martz's testimony more credible than Smith's testimony on the issue of a continuance. Additionally, we agree with the trial court that whether to ask for a continuance and whether to call certain witnesses is a matter committed to the sound discretion of trial counsel.
Impeachment of Commonwealth's Witnesses
Next, Smith alleges that his trial counsel did not properly attempt to impeach the Commonwealth's witnesses, Lloyd Davis and Donnie Townsend. The trial court rejected this claim upon finding that Smith's counsel did adequately attempt to discredit the Commonwealth's witnesses.
Having reviewed the trial court record, we must agree with the trial court. Smith's counsel attempted to discredit Davis by highlighting the fact that Davis did not identify Smith when he called 911. Further, Smith's counsel elicited testimony that Davis did not stay at the scene of the robbery, waited to report what he had witnessed to the police, and had not even initially planned to report what he saw to the police. Mr. Martz also called Suzie Markin, the 911 operator, who received Davis's call about the robbery. Mr. Martz played the 911 call for the jury, which further evidenced that Davis did not provide his name and did not identify Smith as the robber.
The record also indicates that Smith's trial counsel tried to discredit Donnie Townsend as well. On cross-examination, Mr. Martz introduced Donnie Townsend's grand jury testimony and pointed out the inconsistencies in his testimony at trial and to the grand jury. Mr. Martz got Townsend to admit that his memory had faded. Further, Mr. Martz elicited testimony from Townsend about his delay in reporting who he had seen driving the car used in the robbery and joking about the robbery prior to reporting it. Smith claims, however, that Mr. Martz should have further discredited Townsend by questioning him about his romantic interest in Smith's wife. At trial, Mr. Martz did ask Townsend about whether he knew Smith's wife. Townsend indicated that he knew Ms. Smith, but only in a business capacity.
Lastly Smith argues that Mr. Martz should have sought to introduce evidence that Brian Simpson, the owner of the Geo Tracker at issue, was charged with arson of his own store, which was directly across from Donnie Townsend's store. At the evidentiary hearing, evidence was introduced that Brian Simpson did not actually plead guilty to those charges until after the trial. Further, Brian Simpson's testimony did not seek to identify Mr. Smith or have any real substance towards his guilt other than to establish ownership of the vehicle used in the robbery.
The record simply does not support Smith's allegations that his counsel performed ineffectively with respect to discrediting the Commonwealth's witnesses. Trial counsel did an admirable job of attempting to impeach and otherwise cast doubt on the witnesses that identified Smith. In the end, the jury simply chose to believe the witnesses in spite of this testimony. We do not believe that any additional impeachment or other evidence in this regard would have changed the outcome.
Failure to Conduct Adequate Investigation
Smith makes several allegations concerning his counsel's failure to conduct an adequate investigation. Smith alleges that Mr. Martz failed to: visit the crime scene, interview various alleged witnesses to the crime, obtain surveillance video from K.D.'s store, obtain surveillance video from the apartment complex Smith claims he was at during the time of the robbery, and locate various alibi witnesses he claims would have verified that he was at a barbecue in Portsmouth, Ohio, during the time of the robbery. We agree with the trial court that none of these allegations merit relief.
"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 reasonableness of the investigation "depends on the circumstances of the case." Id. When evaluating whether counsel undertook an adequate investigation, the court must determine whether an investigation would have uncovered a defense that had a reasonable probability of altering the outcome. Id. If so, then the court must determine if the failure to present this evidence to the jury was a tactical decision by defense counsel. Id. If the decision was tactical, it is given a "strong presumption of correctness, and the inquiry is generally at an end." Id. If that decision was not tactical, then the court must evaluate whether there was a reasonable probability that, but for the deficiency, the result would have been different. Id.
Smith has not met his burden. While it would have been preferable for counsel to have visited the scene, we do not believe that it would have altered the outcome of this case. Smith claims that had his counsel visited the K.D.'s store, he would have discovered advertisements all over the windows, which would have prevented anyone on the outside from seeing inside the store. However, Smith was also identified as the robber based on testimony from witnesses who saw him outside of the K.D.'s store. Likewise, Smith has failed to show how interviewing Davis's wife and young daughter would have assisted him. To this end, he has failed to come forward with anything to support that they would have given information supportive of his case. This is the same with respect to the surveillance video. Smith failed to offer the trial court anything more than raw speculation to support that the surveillance video 1) existed and 2) would have assisted in his defense. Thus, we agree that this claim did not merit relief.
With respect to the alibi witnesses, Brian Hewlett, director of the DPA in Catlettsburg, testified at the evidentiary hearing that the DPA did investigate Smith's alleged alibi. Hewlett testified that the DPA attempted to locate the alibi witnesses Smith gave them, but did not have their specific names or addresses. Hewlett stated that they nevertheless located some of the alleged witnesses and attempted to set up meetings. Hewlett testified that Barbara McGuire, the DPA investigator, made arrangements on at least two occasions to meet with these witnesses in South Shore so they could be interviewed and subpoenaed. Hewlett stated that the potential alibi witnesses did not ever show up. Lastly, Hewlett testified that the DPA had spoken to Smith's wife about testifying as an alibi witness; however, Smith's wife failed to show up for trial.
The trial court held that Smith's counsel was not ineffective for failing to investigate the alleged alibi witnesses. In so finding, the trial court indicated that it believed Mr. Hewlett that Smith did not provide complete contact information and the witnesses that the DPA did locate were not cooperative in meeting with the defense and /or showing up for trial. We must also point out that Smith was unable to show at the evidentiary hearing that any of the alleged alibi witnesses would have actually given testimony favorable to him. Thus, his claims in this regard remain speculative and insufficient to merit relief under RCr 11.42.
Perjured Testimony During Commonwealth's Case
Smith also argues that his counsel was ineffective in failing to object to the testimony of Deputy Ryan Houston. Smith argues that Deputy Houston committed perjury in testifying that there was not enough human DNA to make an examination. Further, Smith argues that counsel was ineffective for failing to call the KSP crime lab technician as a defense witness.
The DNA evidence sent to the lab came back as inconclusive. Thus, we fail to understand how Houston's testimony was perjury. Likewise, Smith has failed to explain what testimony the lab technician would have likely given that would have been helpful to him. Thus, we agree with the trial court that this allegation did not merit relief.
B. CR 60.02
Finally, Smith alleges that he was deprived full and fair access to RCr 11.42 relief when his appointed counsel sabotaged his evidentiary hearing through fraud to protect her co-worker, Kevin Martz.
In general, CR 60.02 can serve to relieve a party of a trial court's final judgment on such grounds as mistake, newly discovered evidence, fraud, or other extraordinary reasons which would justify relief. CR 60.02(a) - (f). "CR 60.02 is neither a substitute for, nor a separate avenue of, appeal. Its purpose is only to raise issues which cannot be raised in other proceedings, and therefore a movant must show that she is entitled to extraordinary relief." Queen v. Commonwealth, 948 S.W.2d 415 (Ky.1997).
The decision to grant or deny a motion under CR 60.02 rests within the trial judge's sound discretion. See Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012). We review a trial court's ruling on a CR 60.02 motion under an abuse of discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). "The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)).
The Commonwealth argues that Smith's claim of fraud on the part of his appointed counsel during the RCr 11.42 evidentiary hearing is unsupported and outrageous. We agree. At the hearing, counsel questioned both attorneys who represented Smith during his trial. She properly inquired into all avenues of Smith's claims and introduced exhibits to the court. Counsel was prepared, organized, and provided sound representation for Smith at the evidentiary hearing. Smith has not proffered any evidence to support a fraud. His allegations are speculative and generic. Accordingly, we hold that the trial court did not abuse its discretion when it denied Smith's CR 60.02 motion without holding an evidentiary hearing.
IV. CONCLUSION
Accordingly, we affirm the orders of the Greenup Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Johnny M. Smith, Pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky