Opinion
NO. 2018-CA-000685-MR
07-05-2019
CHRISTOPHER J. KANE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Christopher Joseph Kane, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 15-CR-00028 OPINION
AFFIRMING
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BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Christopher J. Kane, pro se, appeals from an order of the Fleming Circuit Court summarily denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion based on ineffective assistance of counsel. We conclude that Kane's nonspecific and conclusory allegations are insufficient grounds to support his request for RCr 11.42 relief and affirm.
The facts leading to Kane's conviction were summarized on direct appeal:
On April 27, 2015, police officers lawfully searched the home of Appellant, Christopher Joseph Kane, and discovered drugs and materials used in the manufacturing of methamphetamine. Several other individuals and Appellant's young child were also present at the scene. Investigating officers testified that the house was in a pitiful state of disrepair and reeked of animal urine and feces.Kane v. Commonwealth, 2015-SC-000695-MR, 2016 WL 6125904, at 1 (Ky. 2016) (unpublished).
As a result of the search, Appellant was indicted by a Fleming County grand jury on a host of charges. Appellant was jointly tried with his confederate, James Flora. A Fleming County Circuit Court jury convicted Appellant of manufacturing methamphetamine and possession of marijuana and recommended a total sentence of twenty years' imprisonment, which was imposed by the trial court.
Among the issues presented in Kane's direct appeal was whether the trial court erred in admitting photos of two discarded 2-liter plastic bottles. The Supreme Court held that it did not err:
The Commonwealth explained that the bottles were discovered immediately behind Appellant's residence and were consistent with the "shake and bake" method of manufacturing methamphetamine and argued that the bottles were part of the totality of the evidence demonstrating intent to manufacture. Appellant argues that the unknown white substance contained in the bottles was too speculative to be considered by the jury.
Contrary to Appellant's argument, this evidence is highly relevant and probative of Appellant's intent to manufacture methamphetamine. In denying Appellant's motion in limine, the trial court specifically noted that the bottles were part of the crime scene and that an officer would testify that the police left the bottles there, did not test them, and did not know what was inside of them. Investigating Deputy Sheriff, Garret Ingram, testified that the bottles were consistent with the "shake and bake" style of a methamphetamine "cook." He further explained that he did not field test them or send them to a lab for testing. Deputy Ingram could not say what was inside the bottles. Accordingly, this evidence was relevant, probative, and not unduly prejudicial to Appellant.Id. (citation omitted).
After his convictions were affirmed on direct appeal, Kane filed an RCr 11.42 motion. Although the trial counsel initially appointed counsel and reserved on whether to grant an evidentiary hearing, the Department of Public Advocacy moved to withdraw, and the trial court granted the motion. The trial court then denied the RCr 11.42 motion without an evidentiary hearing.
A trial court is not required to hold an evidentiary hearing on an RCr 11.42 motion unless the motion both "specifies grounds and supporting facts that, if true, would warrant relief" and alleges facts which cannot be "resolved on the face of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Bald assertions, conclusory allegations and those that are incredible on the face of the record do not warrant an evidentiary hearing. Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011). RCr 11.42(2) instructs that:
The motion shall be signed and verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion.Kane's motion falls way short of the specificity and supporting facts required.
Kane alleges that trial counsel took his case to trial without "considering an affirmative defense, specifically, a defense for trial in this case." He does not state what defense he believes counsel should have pursued and, as noted by the trial court, this was not a case where no defense was offered at all. At trial, defense counsel presented evidence that the multiple items found at Kane's residence which are used for manufacturing methamphetamine are common household items and used by Kane and his family for legitimate purposes. The Supreme Court noted in the defense presented at trial: "Appellant testified at trial that he used many of the items for allegedly legal purposes. For example, Appellant claimed that lithium batteries were for his child's toys. Appellant's wife also testified that she used the ice packs for her back. The jury was clearly unconvinced." Kane, 2016 WL 6125904 at 2.
Kane alleges that "[d]efense counsel failed to investigate the backgrounds and motives of witness[es] of the Commonwealth in order to prepare for a suppression hearing as appropriate trial strategy in this case." In his RCr 11.42 motion, he also alleges that counsel should have investigated and discovered exculpatory evidence. However, he does not identify the exculpatory evidence or the witnesses nor explain how the evidence and the witnesses' backgrounds and motives would have helped his case. His mere conclusory statement without providing any factual basis to support the claim is insufficient grounds to warrant an evidentiary hearing. Williams, 336 S.W.3d at 50.
Although the trial court noted that Kane's unsubstantiated allegation that there are "several issues of evidence in which counsel failed to secure in preparation of trial" as inadequate to warrant a hearing, it nevertheless discussed whether counsel should have obtained a court order to conduct a lab test on the soda bottle containers seen by officers but not collected from Kane's property. The trial court correctly determined that it was reasonable trial strategy not to test the items that may have contained methamphetamine residue and preclude the defense that the items found were for legitimate non-drug use.
The allegations in Kane's RCr 11.42 motion lacked sufficient specificity as to the grounds and facts that would warrant relief. The trial court did not error in summarily denying his motion.
The order of the Fleming Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher Joseph Kane, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky