Opinion
NO. 2016-CA-001438-MR
02-23-2018
ROBIN MOORE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kelsey Doren LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 10-CR-001461 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND TAYLOR, JUDGES. JONES, JUDGE: Appellant, Robin Moore, appeals the Jefferson Circuit Court's denial of his motion for post-conviction relief under RCr 11.42. Following review of the record and applicable law, we affirm the order of the Jefferson Circuit Court.
Kentucky Rules of Criminal Procedure.
I. BACKGROUND
In May of 2010, Robin Moore ("Moore") was indicted for one count of murder, one count of possession of a handgun by a convicted felon, and one count of tampering with physical evidence. All charges arose out of a shooting that resulted in the death of a seventeen-year-old boy. While Moore did not deny being involved in the shooting, he pleaded not guilty as he contended that he had been acting in self-defense. Following a five-day jury trial, the jury ultimately rejected Moore's version of the events surrounding the shooting, returned guilty verdicts on all counts, and recommended a sixty-five-year sentence. The trial court entered a final judgment consistent with the jury's verdict and sentencing recommendation on October 6, 2011.
Moore moved for a new trial and/or judgment of acquittal under RCr 10.02, 10.06, and 10.24 on October 11, 2011. In that motion, Moore contended that the trial court had erred in finding that defense counsel's reason for moving to strike a potential juror was not race-neutral, in denying defense counsel's motion to allow Moore's statement to a police officer to be admitted into evidence as an excited utterance, in granting the Commonwealth's motion in limine to preclude toxicology reports concerning the victim, in denying defense counsel's motion for a mistrial following a witness for the Commonwealth testifying that Moore was "a bad man," and in denying defense counsel's motion to suppress in-court identifications of Moore. Moore contended that each of these errors had prevented him from having a fair trial. The trial court denied Moore's motion, and Moore appealed his conviction as a matter of right to the Kentucky Supreme Court. Moore v. Commonwealth, No. 2011-SC-000700-MR, 2013 WL 1790303 (Ky. Apr. 25, 2013).
On direct appeal, Moore made the following arguments: (1) the trial court committed palpable error by permitting the Commonwealth to use a prior consistent statement to impeach one of Moore's witnesses; (2) the trial court erred in granting the Commonwealth's Batson motion; (3) the trial court erred in denying Moore's motion for a mistrial after a witness testified that Moore was "a bad man"; (4) the trial court erred in denying Moore's motion for a mistrial after a witness testified about threats he had received, allegedly on Moore's behalf; (5) the trial court erred in allowing a baseball bat and knife found in Moore's vehicle after the shooting to be admitted into evidence; (6) the trial court erred in permitting two autopsy photos of the victim to be admitted into evidence; and (7) the trial court erred in granting the Commonwealth's motion in limine to exclude evidence of the victim's toxicology report. Id. at *1. The Kentucky Supreme Court affirmed Moore's conviction. Id.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
In July of 2014, Moore moved to vacate judgment and conviction of sentence under RCr 11.42 and requested an evidentiary hearing. By that motion, Moore contended that both his defense counsel and his appellate counsel had been ineffective. Moore alleged that his defense counsel had failed to inform him of the full sentencing range he was facing at trial. Moore contended that, had he been aware of the full sentencing range, he would have accepted a plea offer from the Commonwealth. Moore argued that his appellate counsel had been ineffective in failing to raise as an issue the trial court's denial of defense counsel's "reverse Batson" challenge. The RCr 11.42 motion was held in abeyance at Moore's request.
"Defense counsel" refers to counsel representing Moore during his trial for murder. "Appellate counsel" refers to the counsel who represented Moore on his direct appeal to the Kentucky Supreme Court.
Moore is a Caucasian man; the victim in the case was African-American.
Moore supplemented his RCr 11.42 motion in April of 2016. Therein, Moore alleged additional ways in which his defense counsel had been ineffective: (1) by failing to request an admonition after the Commonwealth's witness had characterized Moore as "a bad man"; (2) by failing to present mitigating evidence to the jury during the sentencing phase of the trial; (3) by failing to strike Juror 43 based on her relationship to the Louisville Metro Police Department and her mother's profession as a circuit clerk in Jefferson County; and (4) by failing to voir dire Juror 24 on her relationship with the Commonwealth Attorney's Office. Moore reiterated his request for an evidentiary hearing in his supplemental motion. Following the Commonwealth's response and Moore's reply, the circuit court denied Moore's RCr 11.42 motion without an evidentiary hearing. In its order denying Moore's motion, the circuit court found that there were no material issues of fact that could not be determined from the face of the record, therefore making an evidentiary hearing unnecessary. The circuit court then analyzed and addressed each of Moore's claims.
References to the "circuit court" refer to the Jefferson Circuit Court when it ruled on Moore's 11.42 motion. Reference to the "trial court" refer to the Jefferson Circuit Court when presiding over Moore's trial for murder and ruling on Moore's motion for a new trial/judgment for acquittal.
As to Moore's claim that his defense counsel had been ineffective in failing to advise him of the full sentencing range, the circuit court found that Moore had not presented any evidence in support of the claim, other than his statement that he would have taken a plea deal had he been properly advised. The circuit court noted that there was no evidence that Moore would have been willing to admit guilt, which was bolstered by the fact that, at the time of the trial through the present, Moore had consistently maintained that he had been acting in self-defense. Looking next to Moore's claim that his appellate counsel had been ineffective in failing to raise the "reverse Batson" issue, the circuit court noted that Moore's appellate counsel had raised numerous other counts of error. Therefore, the circuit court concluded that appellate counsel had not been unreasonable in failing to raise the Batson issue when there were other, stronger issues that had been raised on appeal. As to Moore's claims that his defense counsel had been ineffective in failing to request an admonition, failing to voir dire Juror 24, and failure to strike Juror 43, the circuit court concluded that these decisions were reasonable trial strategies and that Moore had not offered any evidence showing that the outcome of the case would have been different had defense counsel decided otherwise. Finally, the circuit court found that Moore's contention that defense counsel was ineffective in failing to present mitigating evidence to the jury was without merit, as there was no mitigating evidence that could have outweighed Moore's criminal history and the fact that the jury had already found Moore guilty of murdering a seventeen-year-old boy.
This appeal followed.
II. STANDARD OF REVIEW
The denial of an RCr 11.42 motion is reviewed for an abuse of discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted).
III. ANALYSIS
On appeal, Moore maintains his arguments that his defense and appellate counsel were ineffective. Moore contends that the circuit court's denial of his RCr 11.42 motion was in error, as the circuit court denied his motion without holding an evidentiary hearing. "Deciding a motion for relief from a judgment under [RCr 11.42] for ineffective assistance of trial counsel requires the trial court to conduct an evidentiary hearing only when there is 'a material issue of fact that cannot be determined on the face of the record.'" Commonwealth v. Searight, 423 S.W.3d 226, 228 (Ky. 2014) (quoting Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998)). Additionally, "this Court has consistently held that a hearing is not necessary when a trial court can resolve issues on the basis of the record or when 'it determine[s] that the allegations, even if true, would not be sufficient to invalidate [the] convictions.'" Id. (quoting Wilson, 975 S.W.2d at 904). Therefore, if it appeared to the circuit court that Moore's allegations, even if true, would not have amounted to a meritorious ineffective assistance of counsel claim, there was no need to hold a hearing.
To prevail on his claims for ineffective assistance of defense counsel, Moore was required to show that "counsel's performance was deficient . . . and the deficient performance prejudiced the defense." Id. (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "Prejudice is found under this standard when the defendant has shown that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694). When analyzing an ineffective assistance of counsel claim, the central question is whether "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Further, "we are directed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' because, given the surrounding circumstances, 'the challenged action "might be considered sound trial strategy."'" Searight, 423 S.W.3d at 230 (quoting id.).
On appeal, Moore alleges three instances in which his defense counsel was ineffective: (1) when counsel failed to advise Moore of his possible sentencing range; (2) when counsel failed to request an admonition when the Commonwealth's witness characterized Moore as "a bad man"; and (3) when counsel failed to investigate and present mitigating evidence during the sentencing portion of the trial. Moore contends that each of these allegations were such that the circuit court should have conducted an evidentiary hearing on them.
A. Failure to Advise Moore of Sentencing Range
Moore contends that the Commonwealth offered him a plea of twelve years on manslaughter prior to trial, which Moore rejected. Moore makes no allegations that defense counsel failed to inform him of this offer or that counsel encouraged him to reject an offer; however, Moore states that he would not have rejected the plea offer had defense counsel informed him of the full sentencing range he would face if he went to trial. The circuit court found that Moore had not presented any evidence that he would have been willing to accept a plea deal under any circumstance. To the contrary, Moore had continuously maintained that the evidence supported his claim that he had been acting in self-defense.
A review of the record refutes both Moore's claim that he was not aware of the sentencing range that he was facing and his claim that he would have accepted a plea deal. Moore and his defense counsel were provided with a copy of Moore's indictment. The indictment clearly indicates the charges brought against Moore and states the potential sentencing range for each charge. Additionally, after making preliminary motions on the first day of trial, the Commonwealth stated for the record that it never made a formal plea offer to Moore. The Commonwealth indicated that there were talks about potentially reducing the charges, but Moore was not interested in any offer besides time-served and immediate release. Defense counsel supported the statement that there had been no formal offer. Defense counsel indicated that "feelers were put out" concerning a possible plea deal, but when he discussed the potential plea deal with Moore, Moore informed defense counsel "that if it did not involve him going home today, he was not agreeing to anything." V.R. 9/28/11, 4:23:05-4:24:51. Moore was sitting next to defense counsel when these statements were made.
There is nothing in the record indicating that Moore was unaware of the charges he was facing. Even assuming he had been, statements in the record and statements made in Moore's brief to this Court demonstrate that Moore was adamant that the evidence indicated that he had been acting in self-defense and shows his unwillingness to accept any plea offer. Accordingly, we cannot find that the circuit court erred in declining to hold an evidentiary hearing on this claim.
B. Failure to Request Admonition
Moore next contends that defense counsel was ineffective in failing to request an admonition after a witness for the Commonwealth characterized Moore as "a bad man." The circuit court found that declining to request an admonition was a matter of discretion and fell into the range of objectively reasonable trial strategy. Moore contends that it was error for the circuit court to assume that declining to request the admonition was a part of defense counsel's trial strategy without taking any testimony on the issue. The record shows that immediately following the statement at issue, defense counsel objected and moved the trial court for a mistrial. V.R. 9/29/11, 11:15:00. After denying defense counsel's motion, the trial court asked defense counsel three times if the defense would like to request an admonition. Defense counsel declined, and stated his belief that "no admonition could cure any defect at this time." V.R. 9/29/11, 11:16:24.
The statement by defense counsel indicates his belief that requesting and receiving an admonition would have been ineffective. Declining to request an admonition has been found to be a reasonable part of trial strategy. "One federal court has noted that '[t]here are occasions when, for tactical reasons, defense counsel may wish to forgo such a limiting instruction because it might focus the jury's attention on the damage evidence.'" Barth v. Commonwealth, 80 S.W.3d 390, 396 (quoting United States v. Rhodes, 62 F.3d 1449, 1453 (D.C. Cir. 1995)). While Moore contends that the circuit court should have heard testimony from his defense counsel on whether his decision was, in fact, part of his trial strategy, we are unsure of what testimony defense counsel could provide that is not already in the record. Defense counsel stated his belief that an admonition would be ineffective. This demonstrates his strategical decision to not request an admonition.
Further, we are not persuaded by Moore's contention that, had an admonition been given, the result of his trial would have been different. On Moore's direct appeal to the Kentucky Supreme Court, the Court addressed the statement at issue in the context of Moore's claim that the trial court erred in denying a mistrial. In looking to "the brief and fleeting reference to [Moore] as a 'bad man[,]'" the Court found that "the reference was a rather inconsequential attack on [Moore's] character." Moore, 2013 WL 1790303 at *7. Because Moore chose to testify on his own behalf, the jury was aware that Moore was a convicted felon. Moore has offered nothing but speculation to support his assertion that an admonition would have changed the minds of the jury.
C. Failure to Investigate and Present Mitigating Evidence
Moore further contends that his defense counsel was ineffective in failing to present mitigating evidence to the jury during the sentencing phase of his trial. Moore argues that there was an overabundance of potential mitigating evidence that could have been presented, including testimony from Moore's sisters concerning Moore's abuse as a child and testimony from his daughter about his employment and his relationship with her and her children. Citing Searight, the circuit court found that even if Moore's defense counsel had presented mitigating evidence to the jury, no evidence would "outweigh [Moore's] criminal history and the fact that a jury had already found him guilty of murdering a seventeen-year-old boy." R. 298.
"[D]efense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066). "The reasonableness of counsel's investigation depends on the circumstances of the case." Id. We agree with the circuit court that the situation presented in Searight is similar to the case at hand. In Searight, the Kentucky Supreme Court found that Searight's defense counsel's failure to present testimony concerning Searight's difficult childhood, his behavior as a father, and his employment did not prejudice Searight, as the evidence would not outweigh the fact that Searight had an extensive criminal history and the fact that he was on parole at the time of his arrest. 423 S.W.3d at 233. Therefore, the Court found that the trial court's denial of Searight's RCr 11.42 motion without a hearing was proper. Id. at 234.
Moore argues that his case can be distinguished from Searight because Moore has only one prior felony conviction. While this much is true, the circuit court's decision that Moore had not suffered prejudice as a result of defense counsel's failure to present mitigating evidence was not solely based on Moore's criminal history. It was also based on the fact that the jury had already found Moore guilty of murder. During the guilt portion of the trial, Moore's defense was that he had acted in self-defense. The jury rejected this theory, instead believing the Commonwealth's case - that Moore had publicly shot and murdered a young man who was fleeing from him. Therefore, we agree with the circuit court that Moore was not prejudiced by defense counsel's failure to present mitigating evidence. The fact that the jury had found Moore guilty of murder, in combination with the knowledge that Moore was a convicted felon, outweigh any mitigation evidence that Moore might have presented. See Searight, 423 S.W.3d at 232-34.
D. Ineffective Assistance of Appellate Counsel
Moore additionally argues that the circuit court erred in denying his claim of ineffective assistance of appellate counsel. Specifically, Moore contends that his appellate counsel was ineffective by failing to raise a "reverse Batson" challenge on direct appeal, when the Commonwealth had used its preemptory strikes disproportionately against white jurors. To succeed on a claim that appellate counsel was ineffective in failing to present an issue on direct appeal, the defendant must show that "counsel's performance was deficient, overcoming a strong presumption that appellate counsel's choice of issues to present to the appellate court was a reasonable exercise of appellate strategy." Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010). "The omitted issue must be 'clearly stronger' than those presented for the presumption of effective assistance to be overcome." Commonwealth v. Pollini, 437 S.W.3d 144, 149 (Ky. 2014) (citing id.). Further, the defendant must show that but for appellate counsel's failure to raise the issue on direct appeal, "there is a reasonable probability that the appeal would have succeeded." Hollon, 334 S.W.3d at 437.
In addressing Moore's ineffective assistance of appellate counsel claim, the circuit court noted that neither the United States Supreme Court nor the Kentucky Supreme Court have addressed whether Batson applies to race-based preemptory strikes against Caucasians, therefore making it unclear as to whether Moore would have been able to successfully assert the claim on direct appeal. Further, working under the assumption that Batson would apply, the circuit court noted that the Commonwealth had given race-neutral reasons for each of its preemptory strikes, which were accepted by the trial court. Accordingly, the circuit court found that it was not unreasonable for appellate counsel to decide not to appeal the Batson issue when counsel had raised numerous other, stronger issues.
Moore argues that the issue is clearly stronger than those issues raised on direct appeal, as all arguments made on direct appeal were rejected by the Kentucky Supreme Court. In analyzing ineffective assistance of counsel claims, however, we must attempt "to prevent the 'harsh light of hindsight' from distorting counsel's act or omission, making it appear unreasonable." Searight, 423 S.W.3d at 230 (quoting Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). Moore has not articulated any reason why he believes that the reverse Batson issue is clearly stronger than those issues raised on his direct appeal. Appellate counsel raised seven issues on direct appeal, all of which dealt with established law. In contrast, the Kentucky Supreme Court has declined to address the issue of whether Batson applies to race-based preemptory strikes against Caucasians. See Caudill v. Commonwealth, 120 S.W.3d 635, 657 (Ky. 2003). To prevail on the "reverse Batson" claim, appellate counsel would have had to first successfully argue that Batson was applicable. Because the trial court conducted a proper Batson inquiry following defense counsel's objection, appellate counsel would then have to argue that the trial court's decision was clearly erroneous. Mash v. Commonwealth, 376 S.W.3d 548, 554 (Ky. 2012). The trial court found that each of the reasons given by the Commonwealth for striking the jurors in question was race-neutral and we cannot find that its ruling was clearly erroneous. Accordingly, we agree with the circuit court that Moore's ineffective assistance of appellate counsel claim was not viable.
IV. CONCLUSION
In light of the foregoing, we affirm the order of the Jefferson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Kelsey Doren
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky