Opinion
NO. 2015-CA-001069-MR
06-16-2017
BRITTON MCPHERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Meredith Krause Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 08-CR-00199 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT, AND THOMPSON, JUDGES. THOMPSON, JUDGE: Britton McPherson appeals from an order of the Muhlenberg Circuit Court denying his motion to vacate, set aside or correct his sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He argues his trial counsel was ineffective for failing to procure additional alibi witnesses and for failing to obtain pertinent security camera footage. Because additional witness testimony would merely have been cumulative, and McPherson has failed to state his claims with the specificity required under RCr 11.42(2), we affirm.
The facts of this case were provided in McPherson's direct appeal:
The Commonwealth's proof, developed in the course of a three-day trial, gave a disturbing glimpse of the drug culture in Muhlenberg County. The victim, Milligan, Appellant McPherson, and Parker were all acquaintances of many years. They frequently exchanged and shared drugs, including narcotic pain medicines, and used them in each other's company. In 2007, Milligan, in trouble for having passed bad checks, agreed to cooperate with officers in the Pennyrile Narcotics Task Force by recording others in the act of selling drugs. One of the persons against whom she gathered evidence was Richard Smith, characterized at trial as a "well known drug dealer" in the area. Smith was another long-time acquaintance of McPherson, a particularly close one. Evidence against Smith had led to his indictment for trafficking, and his trial was scheduled for July 2008. It was known apparently that Lora Milligan was to be one of the witnesses against him. According to Parker's testimony, in June 2008 Smith offered McPherson "cash and pills" for the murder of Milligan. McPherson in turn recruited Parker, with whom he had been living for several months. Initially, Parker testified, she rejected the idea, but desperate for money she eventually agreed.
On the morning of June 29, McPherson and Parker drove Milligan to a secluded spot on Hall Road in Muhlenberg County ostensibly to "get high." According to Parker, Milligan had trouble injecting herself and would let Parker do it for her. The plan was for Parker to inject Milligan with insulin instead of morphine, a switch McPherson anticipated would be fatal. Parker testified that at the last moment she lost her nerve and emptied the syringe of insulin onto the floor of the car.
That plan having failed, McPherson then borrowed a 9-mm handgun from his half-brother, Shannon Geary, a favor Geary agreed to in exchange for morphine. McPherson then stole three rounds of ammunition from the Rural King store in Central City. Thus armed, in the early evening of June 29, about six o'clock according to Parker, McPherson and Parker again arranged to drive Milligan out of town, this time to a gravel farm road off of Moorman Cemetery Road. There, according to Parker, while she and Milligan were walking side-by-side, McPherson rushed up behind Milligan and shot her in the head.
After the shooting, McPherson and Parker drove back to Central City to an apartment where their friends, Keith and Tracy Presley, were staying. From there, Parker testified, McPherson contacted Smith. He then left for a short time and when he returned was in possession of a large wad of cash amounting to several hundred dollars. The two couples then drove to Moorman where McPherson returned the gun to Shannon Geary. Then, with McPherson paying for everything, the foursome obtained drugs, food, and a motel room for the night. During the evening, Parker testified, she revealed the murder to the Presleys, and it was her belief that McPherson told them of it too. She testified that she and McPherson stayed at different area motels the next few nights and that on July 3, 2008, after McPherson had received another couple of hundred dollars from Smith, they bought bus tickets and left Kentucky for St. Louis.
In the meantime, Milligan's body was discovered on July 2. Underneath the body, the police found Milligan's cell phone, and they were able to determine that the last calls to and from that phone were from and to a phone registered to Parker. Parker was wanted for having violated her parole, so when the police learned that she had purchased bus tickets to St. Louis, they contacted officials there who arrested Parker at the bus station on the evening of July 3. Initially, McPherson was not detained, but he elected to stay with Parker. A St. Louis homicide detective, Detective Harrington, interviewed Parker, and she gave a statement implicating
herself and McPherson in the killing. At the same time, Keith Presley had contacted the Kentucky State Police in Muhlenberg County, and he and his wife gave statements recounting what Parker and McPherson had told them and also what the four of them had done together on June 29 and the following days.
In August 2008, a Muhlenberg County grand jury indicted Parker and McPherson separately for Milligan's murder. Parker eventually pled guilty to second-degree manslaughter and agreed to testify against both McPherson and Richard Smith in exchange for a ten-year sentence enhanced to twenty years by virtue of her PFO status. McPherson's case was tried in March 2010. In addition to Parker's testimony, the Commonwealth's case included ballistics evidence confirming that the murder weapon was indeed a gun belonging to Shannon Geary's mother and forensic evidence identifying a fiber found on Milligan's shirt as having come from the car that Parker and McPherson were driving. Shannon Geary testified that he had loaned his mother's gun to McPherson on June 29 and that McPherson, together with Parker and the Presleys, had returned the gun that same evening. Mark Adams, McPherson's cellmate for a time, testified that McPherson had talked of having shot an informant in the head. Finally, the Presleys testified about Parker burning Milligan's ID card, McPherson suddenly acquiring a large amount of cash and the visit they all paid to Shannon Geary. The Presleys also testified that both Parker and McPherson admitted killing Milligan.
McPherson put on an alibi defense buttressed with evidence of an alternate perpetrator. Richard Smith's cousin, Jack Higgs, who admitted that he was a convicted felon and that he and McPherson had been close friends for years, testified that early in the afternoon of June 29, he and McPherson had driven to Nashville in Higgs's car. Before they left, according to Higgs, McPherson had told him about a gun that he, McPherson, had borrowed to frighten someone in Louisville who had "ripped him off" and to get his money back. Higgs, however, because he was a convicted felon and did not want to risk being charged with possession of the gun, insisted that
McPherson leave it with Parker. The two friends, Higgs testified, went to Nashville to sell drugs, and McPherson made about three hundred dollars. They had not returned to Central City until late that evening, about seven or eight o'clock.McPherson v. Commonwealth, 360 S.W.3d 207, 210-12 (Ky. 2012) (footnote omitted). The Kentucky Supreme Court affirmed McPherson's conviction. Id. at 219-20.
McPherson also presented testimony by two of Parker's cellmates, Terra White and Brandy Edmonds. Parker admitted to them, they claimed, that she was "putting things off on" McPherson and that she and Keith Presley had been having an affair. Edmonds testified further that Parker told her that McPherson had borrowed the gun because he wanted to rob someone in Nashville, but that she, Parker, had talked him into leaving the gun in their motel room. It was she and Keith Presley who had stolen ammunition from Rural King, and both of them believed that Milligan had informed on them. Edmonds testified that in effect Parker told her that she, Parker, and not McPherson, had killed Milligan.
McPherson filed a motion for an extension of time to file his RCr 11.42 motion in the Muhlenberg Circuit Court. The court denied McPherson's motion initially but granted his subsequent motion to reconsider holding that it would reach the merits of McPherson's motion. The court then denied his motion without an evidentiary hearing.
McPherson argues he was entitled to an evidentiary hearing for the following reasons: (1) counsel failed to interview the employees at a gas station and restaurant to serve as alibi witnesses; and (2) counsel failed to procure the security camera footage from those establishments to support his alibi defense, and security camera footage from Rural King, a farm supply store, to support his alternative perpetrator theory.
A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted in Kentucky in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). The performance prong requires that the movant show "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment, or that counsel's representation fell below an objective standard of reasonableness." Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (quoting Strickland, 466 U.S. at 687, 688, 104 S.Ct. at 2064). The prejudice prong requires that the movant "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 169 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
McPherson first alleges that his trial counsel was ineffective when he failed to conduct a pretrial investigation that would have led to the discovery of potential witnesses. He contends that he and Higgs drove to Nashville on the day of the robbery and "stopped at least twice during that trip, once for gas and cigarettes and again for a bite to eat." Therefore, he asserts that his counsel should have procured witnesses, such as the employees of these establishments, to testify that McPherson was in an alternate location on the day of the shooting.
However, McPherson's trial attorney did present a witness who testified McPherson was in Nashville on the day of the robbery. Jack Higgs testified he and McPherson drove to Nashville that day, and any additional witness testimony on this subject would merely have been cumulative. "Failure to identify additional witnesses to present cumulative testimony cannot be regarded as prejudicial." Halvorsen v. Commonwealth, 258 S.W.3d 1, 5 (Ky. 2007). As the Kentucky Supreme Court has noted, "[a] reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). McPherson's counsel was not ineffective for failing to procure cumulative witnesses.
Additionally, McPherson's argument is too speculative to meet the specificity standard under RCr 11.42(2), which requires the movant to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." The failure to do so warrants summary dismissal.
McPherson has not identified any witnesses he alleges could have testified on his behalf. Although McPherson has asserted that some of these witnesses would have testified he was in Nashville on the day of the robbery, he cannot affirmatively allege that any of these individuals would have testified as he has claimed. "Conclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so 'warrant a summary dismissal of the motion.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (quoting RCr 11.42(2)). McPherson did not identify the alibi witnesses, by name or otherwise, or specify what testimony they would have provided. Merely stating that witnesses would have provided an alibi for McPherson, without providing any factual basis to support the claim, is self-serving and insufficient grounds to justify disturbing his conviction.
McPherson's arguments pertaining to his counsel's failure to obtain security camera footage are also too speculative under RCr 11.42(2). McPherson's argument that his counsel should have obtained security camera footage from the gas station and restaurant fails because he has not proffered the names of the establishments and alleges only that they were located somewhere along the sizeable distance spanning McPherson's road trip to Nashville.
It is unclear whether McPherson asserts that he was in Nashville during these stops or he was on the way to Nashville. Regardless, our conclusion would be the same.
McPherson's argument that his attorney should have procured the security camera footage at Rural King fails for similar reasons. His assertion that any establishment had a working security camera which captured the exculpatory footage is pure speculation, as is his assertion that the security camera footage in question would have been helpful to his case. "If general allegations . . . were sufficient, RCr 11.42 would easily be turned into a discovery device, a result which . . . is contrary to the rule's purpose." Roach, 384 S.W.3d at 140. McPherson failed to offer the trial court anything more than speculation to support his claim that any surveillance video existed or would have assisted in his defense. Thus, this claim did not merit relief under RCr 11.42(2).
Finally, we hold that McPherson is not entitled to an evidentiary hearing because his motion did not raise any material issues of fact that cannot be determined on the face of the record. RCr 11.42(5).
The Muhlenberg Circuit Court's denial of McPherson's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky