Opinion
NO. 2016-CA-000946-MR
01-19-2018
MARK ANTHONY WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MASON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 10-CR-00200 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. KRAMER, CHIEF JUDGE: Mark Anthony Williams appeals the order of the Mason Circuit Court denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because Williams's ineffective assistance of counsel claims lack merit.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mark Anthony Williams was originally indicted on charges of second-degree burglary and of being a second-degree persistent felony offender. The indictment was subsequently amended to change the charge of second-degree persistent felony offender to first-degree persistent felony offender (PFO-1st). Williams was convicted of both second-degree burglary and PFO-1st. He was sentenced to ten years of imprisonment for the burglary conviction, which was enhanced to eighteen years of imprisonment due to the PFO-1st conviction.
Williams appealed the circuit court's judgment. This Court affirmed. See Williams v. Commonwealth, No. 2011-CA-000322-MR, 2012 WL 5627875, *1 (Ky. App. Nov. 16, 2012).
Williams then moved pro se to vacate his sentence pursuant to RCr 11.42. He subsequently was appointed counsel, and his attorney supplemented Williams's pro se motion. The circuit court held an evidentiary hearing. It then entered an order denying Williams's RCr 11.42 claims.
Williams now appeals, contending that he received the ineffective assistance of trial counsel when counsel: (a) failed to properly voir dire the jury; (b) failed to call Williams's co-defendant to testify during trial; and (c) failed to present mitigation testimony during sentencing.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (citation omitted). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
III. ANALYSIS
A. FAILURE TO PROPERLY VOIR DIRE THE JURY
Williams first asserts that counsel rendered ineffective assistance when counsel failed to properly voir dire the jury. Specifically, he alleges that counsel did not ask whether any of the jurors worked for the Mason County School System. The Commonwealth argues in its response brief that
Appellant, in his RCr 11.42, alleged that no one had ever ask[ed] the jury if they knew the witnesses. . . . That allegation was directly refuted by [Jury Panel Member] Lena Mayberry's testimony. Now, post-conviction counsel has morphed that claim into criticizing [trial counsel] for failing to ask if any jurors worked for the Mason County Schools, and accusing him of a cover-up.By making this argument about Williams's claim "morphing," the Commonwealth implies that Williams did not raise in his RCr 11.42 motion the claim that he raises on appeal. This is incorrect. We reviewed Williams's RCr 11.42 motion and found that he twice alleged the claim he raises on appeal. On page seven of the pro se part of Williams's RCr 11.42 motion, he asserted: "The jury was never voir dired concerning whether or not any of the panel works for the Mason County School System. . . ." Additionally, on page ten of the same motion, Williams contended: "[N]o person on voir dire ask[ed] the jury if any of them or their families worked for the school system in Mason County." Therefore, the Commonwealth's assertion is not well founded.
We now turn to address Williams's claim that counsel rendered ineffective assistance when counsel failed to ask whether any of the jurors worked for the Mason County School System. To prevail on a claim of ineffective assistance of counsel, a defendant must convince a reviewing court both that (1) his trial counsel's performance was deficient, and (2) that this deficiency resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985).
During the RCr 11.42 evidentiary hearing, trial counsel acknowledged that the occupations of the jurors were listed on the juror questionnaires that he reviewed. Thus, counsel should have known, or at least suspected, based on their occupations where the jurors worked, which makes it unnecessary for counsel to ask this during voir dire.
Additionally, the one jury panel member who did work for Mason County Schools testified during the evidentiary hearing that she was dismissed from the jury as an alternate before the jury began deliberating. She also attested that she had not spoken with any of the other jury members before she was dismissed. Consequently, the fact that this juror worked for Mason County Schools and counsel had not asked her whether she worked there, did not prejudice Williams's case because this juror was not involved with the jury's deliberations. Therefore, this claim lacks merit.
Further, to the extent that Williams contends that a juror who participated in deliberations was married to a school employee, he provides no evidence to support this allegation. Consequently, it is speculative, and we will not consider it.
B. FAILURE TO CALL CO-DEFENDANT TO TESTIFY
Williams next contends that counsel rendered ineffective assistance when counsel failed to call Williams's co-defendant, Bryan Turner, to testify during trial. At the RCr 11.42 evidentiary hearing, Turner testified that during the joint trial he had with Williams, he told his attorney he wanted to testify at trial, but his attorney did not allow him to do so. Turner attested at the evidentiary hearing that if he had been permitted to testify at trial, he would have testified that he was the person who bagged the items in the residence that he and Williams had unlawfully entered.
However, during trial, when the court asked Turner if he chose to testify or not, Turner responded that he chose not to testify. Consequently, trial counsel did not render ineffective assistance in failing to call Turner to testify, considering Turner chose not to testify at trial. See generally Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, this ineffective assistance of counsel claim lacks merit.
C. FAILURE TO PRESENT MITIGATION TESTIMONY
Finally, Williams alleges that counsel rendered ineffective assistance when counsel failed to present mitigation testimony during sentencing. The circuit court held that this was a tactical decision, and we do not disagree. In analyzing claims of the ineffective assistance of counsel due to counsel's failure to present mitigating evidence, the Kentucky Supreme Court
has held that 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. In evaluating whether defense counsel has discharged this duty, the court must determine whether a reasonable investigation should have uncovered such mitigating evidence. If so, then the court must determine if the failure to present this evidence to the jury was a tactical decision by defense counsel. If the decision was tactical, it is given a strong presumption of correctness, and the inquiry is generally at an end. However, if the 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.Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007) (internal quotation marks and footnotes omitted, and emphasis removed).
During the evidentiary hearing, trial counsel explained in detail his reason for not presenting mitigation testimony, in part testifying that
TC: I'm talking about the entire case. You're not going to have a person convicted of burglary, and then we're going to put on mitigation as [to] how much of a swell guy he is. That would insult this jury pool and with the Commonwealth having the last word, that would have been the very thing that the Commonwealth may have said, and they could have maximized his sentence on it, which thankfully, they did not.
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TC: From the years I had before and since, this seems to be a community that if they give a conviction on this type of charge, that the less that's said in mitigation all the way around, the better. That was my experience. That was what my experience was at the time.
In its analysis of this claim, the circuit court found that trial counsel
presented a brief statement in mitigation. He did not call any witnesses to testify on Mr. Williams's behalf. [Trial counsel] has practiced in this geographical area for several years, and he testified that in his experience practicing in the small, close-knit community in Mason County, the presentation of mitigation witnesses following Mr. Williams's conviction could have inflamed or insulted the jury. He also testified he did not want to open the door for the Commonwealth to explore the negative aspects of Mr. Williams's character.The circuit court then held as follows concerning this claim:
[Trial counsel's] decision not to present mitigation evidence at sentencing was a trial strategy, intended to avoid inflaming or offending the jury, who had just convicted Mr. Williams of burglary. [Trial counsel] has practiced in Mason County for several years, and is in the best position to determine which evidence should be presented to the jury in mitigation. Had [Williams's mother] testified, the Commonwealth could have potentially explored his heavy drug use and his behavior while on drugs, which could have led to a heavier
sentence. [Trial counsel's] performance was not deficient in this regard, and an eighteen-year sentence is not unreasonable for a persistent felony offender who was caught red-handed with bagged, stolen goods, and who was still in the driveway of an isolated, rural residence.
Regardless, even if it were not a tactical decision, there still was not a reasonable probability that but for the failure to present this mitigating evidence, the result would have been different. See Bussell, 226 S.W.3d at 106. Williams was caught in the act of burglarizing the home in question. Additionally, he was a persistent felony offender. The maximum sentence he could have received was twenty years, but the jury recommended sentencing him to eighteen years. The court sentenced him according to the jury's recommendation. It is doubtful that the type of testimony Williams suggested in his RCr 11.42 motion would have caused a different result. Consequently, this claim lacks merit.
Accordingly, the order of the Mason Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Aaron Reed Baker
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky