Opinion
NO. 2018-CA-001858-MR
02-07-2020
Michael Todd HILTON, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEFS FOR APPELLANT: G. Scott Hayworth, Lexington, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Thomas A. Van De Rostyne, Assistant Attorney General, Frankfort, Kentucky.
BRIEFS FOR APPELLANT: G. Scott Hayworth, Lexington, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Thomas A. Van De Rostyne, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: ACREE, DIXON, AND JONES, JUDGES.
OPINION
DIXON, JUDGE:
Michael Todd Hilton appeals from the November 21, 2018, order of the Hardin Circuit Court denying his motion to vacate the judgment and sentence finding him guilty of murder, first-degree assault, second-degree assault, operating a motor vehicle under the influence of alcohol which impairs driving ability, and being a persistent felony offender in the first degree. Following review of the record, briefs, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Direct appeal of this case was affirmed by the Supreme Court of Kentucky in Hilton v. Commonwealth , 539 S.W.3d 1 (Ky. 2018). We adopt the facts therein, as follows:
During the evening of June 22, 2014, Jason Hall was driving down Deckard School Road in Hardin County, Kentucky. After reaching the intersection of Deckard School Road and Patriot Parkway, Hall observed an overturned burning truck. As Hall drove towards the burning wreck he observed a cooler and beer cans in the road. After Hall exited his vehicle, he was approached by Michael Todd Hilton who told Hall that he was unable to find his brother, Kyle Hilton. Hall informed Hilton that he would be with him momentarily, after he called 911 to request emergency assistance. Hilton tried to persuade Hall not to call 911, but Hall refused and contacted the authorities.
Faith Terry and Jason Combs also arrived on the scene of the collision. Terry observed a truck flipped upside down and a mangled orange Mustang. Hearing coughing from the Mustang, Terry and Combs attempted to aid the injured driver, Brianna Taylor, but were unable to assist Taylor's passenger, Mickayla Harig, who was pinned down by wreckage from the collision. Subsequently, Terry and Combs overheard Hilton yelling for help for his brother Kyle, who was also injured in the accident. While attending to Kyle, Hilton admitted to not stopping at the intersection's stop sign and that he had been drinking. Terry also observed beer cans strewn amongst the wreckage.
After the arrival of emergency personnel, Hilton and his brother were transported to the University of Louisville Hospital for medical treatment. Prior to his transport to the hospital, Hilton admitted to emergency personnel that he and Kyle had been drinking heavily. At the hospital, physicians examined and
treated Hilton for minor injuries. Kyle was admitted at the hospital and received treatment for five days prior to being discharged.
Due to Taylor and Harig being trapped in their damaged vehicle, they were transported to the University of Louisville Hospital after Kyle and Hilton. Both women were treated for severe injuries. Among other injuries, Harig suffered a traumatic brain injury and was hospitalized for approximately 22 days prior to being discharged. As for Taylor, her extensive injuries induced cardiac arrest. While doctors were initially able to restart Taylor's heart, blood loss from organ damage caused her heart to arrest a second time, and they were not able to revive her.
Responding to the scene of the crime, Officer Thomas Cornett of the Hardin County Sheriff's Office observed beer cans and a cooler near Hilton's damaged vehicle. Officer Cornett suspected that Hilton might have been operating his vehicle while under the influence of alcohol and thus contacted the hospital to have Hilton's blood collected for future laboratory examination. Lab results later established that Hilton's blood alcohol level at the time of the collection was approximately 2.33g/100ml; more than twice the legal limit to operate a motor vehicle.
In July 2014, the Hardin County grand jury indicted Hilton for murder; first-degree assault (two counts); operating a motor vehicle under the influence of intoxicants, first offense in a five-year period, aggravated; and for being a first-degree persistent felony offender. After a trial in June 2015, Hilton was convicted of murder, first-degree assault, second-degree assault, and operating a motor vehicle under influence of alcohol which impairs driving ability. Following the penalty phase of his trial, the jury found Hilton to be a first-degree persistent felony offender and recommended concurrent sentences of life imprisonment for murder, thirty-five years’ imprisonment for first-degree assault, ten years’ imprisonment for second-degree assault, and thirty days’ imprisonment for operating a motor vehicle under influence of alcohol which impairs driving ability. The trial court sentenced Hilton to life imprisonment in conformance with the jury's recommendation.
Id. at 5-6 (footnote omitted).
On direct appeal, Hilton raised six issues. The Supreme Court of Kentucky affirmed the trial court on all six issues, finding either no error or harmless error for each. Following the Supreme Court's opinion, Hilton moved the trial court to vacate the judgment and sentence pursuant to RCr 11.42 on grounds of: (1) ineffective assistance of counsel ("IAC") for failure to timely disclose an expert witness, preventing her testimony from being heard by the jury, and (2) ineffective assistance of appellate counsel ("IAAC") for failing to raise the issue of IAC for failure to timely disclose the same expert witness, leading to the exclusion of her testimony from the evidence at his trial. The Commonwealth filed a response to Hilton's RCr 11.42 motion. The trial court denied the RCr 11.42 motion stating that the expert—whose testimony was submitted to the trial court by avowal—"was ‘not second guessing’ Dr. Jason Smith's (U of L Trauma Surgeon) testimony as Brianna Taylor's treating physician that she received life threatening injuries as a result of the collision," and that Taylor "died as a result of poly-trauma and blood loss caused by the collision." This appeal followed.
Kentucky Rules of Criminal Procedure.
STANDARD OF REVIEW
As established in Bowling v. Commonwealth , 80 S.W.3d 405, 411-12 (Ky. 2002) :
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the
defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome.
Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.
Both Strickland prongs must be met before relief may be granted. "Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. In the instant case, we need not determine whether Hilton's counsel's performance was adequate on the issue raised on this appeal because Hilton fails to demonstrate prejudice resulting from counsel's alleged deficient performance.
"Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland , 466 U.S. at 697, 104 S.Ct. at 2069.
To establish prejudice, a movant must show a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. , 466 U.S. at 694, 104 S.Ct. at 2068. In short, one must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. , 466 U.S. at 687, 104 S.Ct. at 2064. Fairness is measured in terms of reliability. "The likelihood of a different result must be substantial, not just conceivable." Commonwealth v. Pridham , 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington v Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) (citing Strickland , 466 U.S. at 693, 104 S.Ct. 2052 )).
Mere speculation as to how other counsel might have performed either better or differently without any indication of what favorable facts would have resulted is not sufficient. Conjecture that a different strategy might have proved beneficial is also not sufficient. Baze [v. Commonwealth , 23 S.W.3d 619 (Ky. 2000) ]; Harper v. Commonwealth , 978 S.W.2d 311 (1998). As noted by
Waters v. Thomas , 46 F.3d 1506 (11th Cir. 1995) (en banc ): "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel."
Hodge v. Commonwealth , 116 S.W.3d 463, 470 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth , 279 S.W.3d 151 (Ky. 2009). "No conclusion of prejudice ... can be supported by mere speculation." Jackson v. Commonwealth , 20 S.W.3d 906, 908 (Ky. 2000) (citations omitted).
The standard for evaluating claims of ineffective appellate counsel is the same as the "deficient-performance plus prejudice" standard applied to claims of ineffective trial counsel in Strickland . Hollon v. Commonwealth , 334 S.W.3d 431, 436 (Ky. 2010), as modified on denial of reh'g (Apr. 21, 2011).
Respondent [defendant] must first show that his counsel was objectively unreasonable ... in failing to find arguable issues to appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them. If [defendant] succeeds in such a showing, he then has the burden of demonstrating prejudice. That is, he must show a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal.
Smith v. Robbins , 528 U.S. 259, 285, 120 S.Ct. 746, 764, 145 L.Ed.2d 756 (2000).
LEGAL ANALYSIS
On the instant appeal, Hilton raises two arguments alleging that the trial court erred in denying his RCr 11.42 motion: (1) trial counsel allowed the expert filing deadline to pass, resulting in the exclusion of critical evidence and depriving Hilton of his right to a fair trial; and (2) appellate counsel failed to raise the issue of the exclusion of his defense expert's testimony, depriving him of his right to effective assistance of counsel on appeal. We will address each argument, in turn.
Hilton's first argument concerns the exclusion of the testimony of his expert witness, Registered Nurse Wendy Milliner, from being presented to the jury at trial. Hilton received copies of Taylor's medical records in August 2014. On March 26, 2015, the trial court ordered Hilton to identify experts intended to be called at trial no later than thirty days prior to the trial date, which was set and did begin on June 8, 2015. On June 10, 2015, after the Commonwealth had presented a significant portion of its case-in-chief, Hilton tendered his notice of expert opinion regarding R.N. Milliner's expected testimony.
On June 11, 2015, the trial court allowed R.N. Milliner to testify by avowal. R.N. Milliner was critical of the care rendered by the first responders—particularly the flight crew—to Taylor, up to and including the transfer of care to Dr. Smith. Her primary concerns related to actions which decreased Taylor's blood pressure and oxygenation levels. Dr. Smith had previously testified that Taylor's oxygen levels and blood pressure were improved at the hospital to an appropriate level; however, the inability to prevent Taylor's bleeding as a result of the injuries she sustained in the collision caused her death. R.N. Milliner testified that she was not critical of Dr. Smith's care and did not challenge his determination of Taylor's cause of death.
After hearing R.N. Milliner's testimony, the trial court stated, as a matter of trial fairness, it was the type that had to be revealed before the witnesses of whom she was critical had testified and been released. The trial court further stated that R.N. Milliner did not take exception to Dr. Smith's opinion as to cause of death, nor did her testimony provide Hilton with a legal defense to the murder charge. We agree with both reasons for the trial court's ruling, which were memorialized in its order entered June 18, 2015. However, because the court's second reason also demonstrates that counsel's actions did not prejudice Hilton and disposes of his claim for IAC, we choose to discuss it only.
In its order excluding the expert testimony of R.N. Milliner, the trial court cited to Robertson v. Commonwealth , 82 S.W.3d 832 (Ky. 2002). Like Robertson , the instant case—concerning whether Hilton's act of operating a motor vehicle under the influence of alcohol was a legal cause of Taylor's death—requires application of the provisions of KRS 501.020(3) (which defines the term "wantonly") and KRS 501.060 (which defines causal relationships).
Kentucky Revised Statutes.
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KRS 501.020(3) defines "wantonly" as:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
"Thus, wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same situation would not have disregarded, and recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived." Robertson , 82 S.W.3d at 835.
KRS 501.060 provides in pertinent part:
(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.
...
(3) When wantonly or recklessly causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:
(a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(b) The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.
(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.
It is clear that Hilton's unlawful act of operating a motor vehicle under the influence of alcohol was a "but for" cause of Taylor's death. The issue then becomes one of mens rea.
Once an act is found to be a cause in fact of a result and a substantial factor in bringing about that result, it is recognized as the proximate cause unless another
cause, independent of the first, intervenes between the first and the result. And even then the first cause is treated as the proximate cause if the harm or injury resulting from the second is deemed to have been reasonably foreseeable by the first actor.
Robertson , 82 S.W.3d at 836 (citation omitted).
Therefore, the fact R.N. Milliner was critical of the treatment provided by medical personnel rendering aid to Taylor following the collision does not exonerate Hilton if Taylor's death was either foreseen or foreseeable by Hilton as a reasonably probable result of his own unlawful act of operating a motor vehicle under the influence of alcohol. KRS 501.060(3)(b) clarifies that it is immaterial that the treatment provided by medical personnel following the collision possibly increased the probability of the inevitable consequence of Taylor's death. R.N. Milliner couched her testimony concerning the effects of the treatment rendered by medical personnel in terms of possibilities and probabilities. She did not testify within a certain degree of medical probability that the actions of the medical personnel would or could have changed the inevitable outcome of Taylor's death. Dr. Smith's testimony—as Taylor's treating physician—made it clear that the actions of prior medical personnel rendering aid to Taylor were immaterial as there was no way to stop the bleeding sufficiently to save Taylor's life. For these reasons, any error of the trial court in excluding R.N. Milliner's testimony was harmless and not prejudicial to Hilton.
Hilton's second argument concerns IAAC. Hilton alleges that his appellate counsel's failure to raise the issue of trial counsel's failure to disclose R.N. Milliner as an expert witness deprived Hilton of his right to effective appellate counsel. However, the Supreme Court of Kentucky has observed:
As a general rule, a claim of ineffective assistance of counsel will not be reviewed on direct appeal from the trial court's judgment, because there is usually no record or trial court ruling on which such a claim can be properly considered. Appellate courts review only claims of error which have been presented to trial courts.... Moreover, as it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons, KBA Op. E–321 (July 1987), and due to the brief time allowed for making post trial motions, claims of ineffective assistance of counsel are best suited to collateral attack proceedings, after the direct appeal is over, and in the trial court where a proper record can be made.
Humphrey v. Commonwealth , 962 S.W.2d 870, 872 (Ky. 1998).
The Supreme Court of the United States has also held:
appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.... [I]t is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent.
Smith , 528 U.S. at 288, 120 S.Ct. at 765. For the reasons discussed previously, Hilton has not satisfied the prejudice prong of the Strickland test to show ineffective assistance of appellate counsel for failure to present this meritless issue on direct appeal.
Therefore, and for the foregoing reasons, the order upholding Hilton's judgment and sentence entered by the Hardin Circuit Court is AFFIRMED.
ALL CONCUR.