Opinion
NO. 2014-CA-001930-MR
06-03-2016
JON BOOKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jon C. Booker Pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 03-CR-000725-002 OPINION
AFFIRMING
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BEFORE: KRAMER, TAYLOR, AND THOMPSON, JUDGES. KRAMER, JUDGE: Jon Booker appeals the Jefferson Circuit Court's order denying his RCr 11.42 motion to vacate his sentence. After a careful review of the record, we affirm because he was eligible for the burglary aggravator and because Booker's ineffective assistance of counsel claims lack merit.
Kentucky Rules of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
In a prior appeal, this Court stated the facts of this case as follows:
On February 11, 2003, Jermaine Smith was murdered in an apparent home invasion which led to the arrest of four defendants. One defendant, Maurice Gasaway, told the police that Booker was the "trigger man." Gasaway later entered a plea agreement with the Commonwealth whereby he asserted that his statement to the police was the truth and agreed to testify against Booker. A second defendant, Thomas Board, entered a plea agreement with the Commonwealth, which contained a factual account of Booker shooting the victim. The third defendant, Shaunt Gasaway likewise entered a plea agreement with the Commonwealth and agreed to testify against Booker. Faced with the likely testimony of his three codefendants, Booker agreed to plead guilty instead of proceeding to trial in a capital murder case.Booker v. Commonwealth, No. 2008-CA-001953-MR, 2011 WL 2731843, *1 (Ky. App. July 15, 2011) (unpublished).
Booker was indicted on one count of murder (acting alone or in complicity) and one count of first-degree burglary (acting alone or in complicity). The Commonwealth filed a notice of aggravating circumstances to inform the defense that the indictment would be prosecuted as a capital offense because the aggravating circumstances of first-degree burglary, as described in KRS 532.025(2)(a)(2), were applicable.
Kentucky Revised Statutes.
The Commonwealth provided an offer on a plea of guilty, which proffered to amend the first-degree burglary charge (acting alone or in complicity) to one count of criminal mischief and one count of third-degree burglary in exchange for Booker's guilty plea to the charges of murder, criminal mischief, and third-degree burglary. The Commonwealth further proffered to recommend a sentence of twenty years of imprisonment on the murder charge; five years of imprisonment on the third-degree burglary charge; and five years of imprisonment on the first-degree criminal mischief charge. The Commonwealth agreed to recommend that the sentences for third-degree burglary and first-degree criminal mischief be run consecutively for a total of ten years to be probated, with probation beginning after Booker served the maximum sentence for murder. Booker moved to enter a guilty plea in accord with the Commonwealth's offer. The court accepted his guilty plea to the charges of murder, third-degree burglary, and first-degree criminal mischief. The circuit court sentenced Booker to twenty years of imprisonment for the murder conviction, five years of imprisonment for the third-degree burglary conviction, and five years of imprisonment for the first-degree criminal mischief conviction. The court ordered all sentences to run consecutively for a total of thirty years of imprisonment. Further, the sentences for third-degree burglary and first-degree criminal mischief were ordered to run consecutively for a total of ten years to be probated, with the probation to begin "upon maximum serve out for [m]urder."
Booker filed his RCr 11.42 motion to vacate his sentence pro se. Post-conviction counsel then filed a supplemental memorandum in support of Booker's RCr 11.42 motion. The circuit court entered an order denying Booker's RCr 11.42 motion without holding an evidentiary hearing. Booker appealed, and this Court affirmed in part, reversed in part, and remanded. Specifically, this Court affirmed the circuit court's decision to not hold an evidentiary hearing concerning defense counsel's failure to interview witnesses Desean Dickey and Aaron Jones. This Court also affirmed the circuit court's decision that Booker was competent to plead guilty. However, the Court of Appeals reversed the circuit court's decision to not hold an evidentiary hearing concerning Virginia Brewer's affidavit and whether the burglary charge should have been used as an aggravator in this case. The Court also reversed the circuit court's decision to not hold an evidentiary hearing regarding whether counsel rendered ineffective assistance when counsel failed to interview Maurice Gasaway and failed to learn that Gasaway's statement was coerced, which Booker contended would have affected his decision on whether to plead guilty. This Court then remanded the case for further proceedings. See Booker, No. 2008-CA-001953-MR, 2011 WL 2731843, at *3-4 (Ky. App. July 15, 2011) (unpublished).
On remand, the circuit court held an evidentiary hearing. The court again denied Booker's RCr 11.42 motion. Booker again appealed, and this Court vacated the circuit court's decision because the circuit court had relied upon the wrong standard in denying Booker's motion. Therefore, this Court remanded the case for further proceedings. See Booker v. Commonwealth, No. 2012-CA-000387-MR, 2014 WL 351976, *1, *2 (Ky. App. Jan. 31, 2014) (unpublished).
When the circuit court took up the case again on remand, it again denied Booker's RCr 11.42 motion. Booker now appeals, contending that the circuit court erred: (a) by holding that Booker's case is indistinguishable from Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441, 448 (Ky. 2011), and Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999); (b) by finding that defense counsel rendered effective assistance even though counsel did not attempt to interview or depose Maurice Gasaway, Shaunt Gasaway, or Thomas Board; and (c) in finding that defense counsel rendered effective assistance although counsel merely presumed that his private investigator had interviewed Charlotte Ross.
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). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id. Pursuant to RCr 11.42(5), if there is "a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing. . . ."
III. ANALYSIS
A. BOWLING AND FUGATE CASES
Booker first contends that the circuit court erred in holding that his case is indistinguishable from Fugate, 993 S.W.2d at 931, and Bowling, 942 S.W.2d at 293, overruled on other grounds by McQueen, 339 S.W.3d at 448. Booker argues that if he was on the premises at the time in question, he was there with permission because he had been given a key to the apartment. Thus, he alleges that he could not have committed burglary and, consequently, that the aggravator could not have been applied to his murder charge. Booker contends that counsel was ineffective in failing to advise him of this because he would not have pleaded guilty if he had known this.
Booker contends that he was not at the apartment during the time in question, and he states that he told his trial counsel so. However, other witnesses have stated that they saw him there at the time the victim was shot. Therefore, Booker argues that even if he was at the apartment, he was permitted to be there because he had been given a key to the apartment. Accordingly, he could not have committed burglary because he had permission to be there. In turn, Booker alleges that because he could not have committed burglary, the aggravator could not have been applied to his murder charge, which means that he could not have been eligible for the death penalty.
Regarding this claim, the circuit court held as follows:
[I]f he was on the premises, even with permission, trial counsel's decisions are more complex. This case is factually little different from Bowling . . . and Fugate . . ., where, upon being invited into the premises, the defendants committed other offenses. In this case, any permission that the Defendant had to be in that apartment could be implicitly revoked if he acted inconsistently with the purpose of his license to be there. Thus, there was a good chance that the Burglary charge would result in a conviction that could be applied as an aggravator and therefore, counsel acted reasonably in advising the Defendant to plead guilty.
We agree with the circuit court. In Fugate, the Kentucky Supreme Court reasoned as follows:
The fact that the murder victim permitted Fugate to enter his trailer does not provide the basis for a directed verdict on burglary in this case. Bowling[, 942 S.W.2d at 293],
stated that the privilege granted to one doing business ceases when the licensee commits acts, such as crimes, inconsistent with the business. This rationale applies to the personal dwelling as well. See Tribbett v. Commonwealth, [561 S.W.2d 662 (Ky. 1978)].
Reliance by Fugate on Hedges v. Commonwealth, [937 S.W.2d 703 (Ky. 1996)], . . . is misplaced. The principles of Tribbett still apply in the situation presented here. There was testimony that Fugate went to the victim's trailer on a purely social visit so that the victim could see the . . . baby and [the victim] invited a small group, including Fugate, into his trailer to socialize. While there, Fugate sold the victim some Valium and an argument ensued in which Fugate accused the victim of short changing him. Fugate then shot the victim three times killing him. Subsequent to that, there was testimony from an eye witness that Fugate ransacked the victim's trailer looking for something to steal and tore the victim's wallet off its chain, taking the cash and remarking "I can't believe I killed him for 18 dollars." Fugate denied that he was even at the scene of the murder to Kentucky State Police.
It should be noted that in Hedges, supra, the majority observed:
To prevent any misunderstanding, it is important to say what this case does not hold. We do not hold or suggest that if one is lawfully admitted to the premises of another, he thereafter has carte blanche to engage in criminal conduct. Not at all. If a lawfully admitted person commits assault, or theft, or any other crimes, he may be prosecuted for those crimes.
Fugate, 993 S.W.2d at 940-41. Therefore, in Fugate, the defendant was invited into the victim's home, where Fugate then murdered the victim. Fugate was still properly convicted of burglary, in addition to murder.
Hedges at 707.
Furthermore, in Bowling, the Court discussed the holding in Tribbett, stating that in Tribbett, the Kentucky Supreme Court "upheld a burglary charge even though Tribbett was given permission to enter the dwelling of the victim, because the permission had expired when he killed the victim." Bowling, 942 S.W.2d at 307, overruled on other grounds by McQueen, 339 S.W.3d at 448 (discussing Tribbett, 561 S.W.2d at 662).
Following the rationales of Fugate, Bowling, and Tribbett, Booker committed burglary--despite the fact that he had a key to the apartment--because he used a gun against the victim in the apartment building, and the victim was not a participant in the crime. See KRS 511.020(1). Consequently, the aggravator of burglary was correctly applied to his murder charge, resulting in Booker being eligible for the death penalty. See KRS 532.025(2)(a)(2). Therefore, contrary to Booker's allegation, he did not receive the ineffective assistance of counsel when counsel advised him to plead guilty because the aggravator was, in fact, applicable in this case, which would have rendered Booker eligible for the death penalty. Accordingly, this claim lacks merit. B. COUNSEL'S FAILURE TO INTERVIEW OR DEPOSE MAURICE GASAWAY, SHAUNT GASAWAY, AND THOMAS BOARD
Booker next alleges that the circuit court erred by finding defense counsel rendered effective assistance even though counsel did not attempt to interview or depose co-defendants Maurice Gasaway, Shaunt Gasaway, or Thomas Board.
A showing that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty has two components: (1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (quotation marks omitted).
We begin by addressing the Commonwealth's allegation in its appellee brief that
Booker raised this issue as to Maurice [Gasaway] on his first appeal, and this Court granted him an evidentiary hearing on this issue, but he never raised the failure to interview Shaunt [Gasaway] or [Thomas] Board on either appeal. After the evidentiary hearing, though, he did not raise the failure to interview Maurice in the second appeal.Therefore, the Commonwealth argues that these claims were waived because Booker was required to raise them in the prior appeals.
We agree with the Commonwealth. Booker did not raise the claims concerning Shaunt Gasaway and Thomas Board in either of his prior appeals, and he did not raise the claim concerning Maurice Gasaway in his second appeal. Consequently, those claims are waived. See Johnson v. Commonwealth, 450 S.W.3d 707, 712-13 (Ky. 2014).
Regardless, even if they were not waived, these claims lack merit. Defense counsel testified at the evidentiary hearing that he did not attempt to interview or depose Booker's co-defendants because they were all represented by counsel, and it would have been inappropriate for counsel to contact them. Booker alleges in his opening brief in this appeal that this testimony by defense counsel was
suspect and highly incorrect because if [Booker's counsel] would have had the private investigator he hired contact the witnesses' (co-defendants') attorneys, the investigator could [have] received a simple "yes" or "no" of whether it was okay to orally depose those individuals or whether they would [have] taken their . . . [Fifth] Amendment privilege not to incriminate [themselves]. Then, if [Booker's counsel] was allowed to interview them it probably would have been appropriate under the circumstances with their counsel present.Booker contends that Maurice Gasaway and Shaunt Gasaway both recanted statements they had made to police detectives before a ruling was entered on Booker's RCr 11.42 motion. He asserts that Maurice and Shaunt Gasaway both claimed that their statements to police were coerced.
For counsel not to attempt to interview or orally depose Maurice Gasaway, Shaunt Gasaway, and Thomas Board and compare those statements with what was allegedly taken by the detectives upon their arrest amounted to ineffective assistance of counsel.
Even if we were to assume that Maurice and Shaunt Gasaway would have spoken to defense counsel and that they would have told Booker's counsel that their statements to police were coerced, Booker still cannot show that he was prejudiced by counsel's failure to attempt to speak with them. There were three other witnesses to the crime, aside from Maurice, Shaunt, Booker, and the victim. The other witnesses were DeAndre Shaw, Keith Willis, and Thomas Board (Board was also a co-defendant). In his statement to police, DeAndre Shaw stated that he saw Booker holding and aiming the gun, and he then heard the gunshot. Additionally, Keith Willis told police that he witnessed the murder. Therefore, because these two people (who were not co-defendants and who did not recant their statements) both told police that they witnessed Booker committing the murder, Booker cannot show that he was prejudiced by defense counsel's failure to attempt to interview co-defendants Maurice Gasaway, Shaunt Gasaway, and Thomas Board.
Furthermore, as noted previously, Thomas Board gave a statement to police identifying Booker as the person who shot the victim. --------
Moreover, because Booker would have been eligible for the death penalty for the murder charge, due to the first-degree burglary aggravator, he cannot show that he was prejudiced and would have likely proceeded to trial if counsel had attempted to interview his co-defendants. This is particularly so considering that following his guilty plea, he was sentenced to twenty years of imprisonment for the murder conviction, as opposed to being eligible for the death penalty if he had gone to trial on the murder charge. Consequently, this claim lacks merit.
C. COUNSEL'S PRESUMPTION THAT CHARLOTTE ROSS WAS INTERVIEWED
Finally, Booker asserts that the circuit court erred in finding defense counsel rendered effective assistance although counsel merely presumed that his private investigator had interviewed Charlotte Ross. Specifically, Booker contends that Charlotte Ross could have told counsel that Booker had permission to be in the apartment, which would have informed counsel that Booker should not plead guilty to the burglary charge.
During the evidentiary hearing, Charlotte Ross testified that she was present in the apartment when the murder occurred, but that she was asleep in the back bedroom at that time, so she does not know what happened. She attested that she is currently a recovering addict and has been since approximately three months after the murder occurred. Charlotte Ross testified that she was never interviewed by anyone from the defense about whether Booker had permission to be in the apartment. However, she stated that Booker did have permission to be in the apartment, but not if he had a gun. The apartment's leaseholder was her mother, Virginia Brewer, who did not testify at the evidentiary hearing because Virginia Brewer's counsel advised the circuit court that she now suffers from Alzheimer's disease and dementia, and she is no longer competent to testify.
As we previously discussed, Booker was properly charged with burglary in this case, and it could have been applied as an aggravator to the murder charge, even though he had a key to the apartment. Therefore, he was not prejudiced by the failure of defense counsel or the private investigator to interview Charlotte Ross, during which they simply would have learned that Booker had a key to the apartment. Moreover, even Charlotte Ross testified during the evidentiary hearing that Booker did not have permission to be in the apartment if he had a gun. Consequently, Booker did not receive the ineffective assistance of counsel when counsel failed to interview Charlotte Ross (or when counsel failed to ensure that the private investigator interviewed her), because Booker would have been eligible for the burglary aggravator even if Charlotte Ross had been interviewed. Thus, this claim lacks merit.
Accordingly, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jon C. Booker
Pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky