Opinion
NO. 2018-CA-001258-MR
06-05-2020
DAVID NUNN, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: David Nunn, Jr., pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 13-CR-00191 OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. ACREE, JUDGE: Appellant, David Nunn, Jr., appeals pro se from the July 18, 2018, order of the Hardin Circuit Court denying his motion pursuant to RCr 11.42 claiming he received ineffective assistance of counsel. We affirm.
Kentucky Rules of Criminal Procedure.
FACTS AND PROCEDURE
In 2013, a jury found Nunn guilty of second-degree fleeing and evading police, possession of a handgun by a convicted felon, and being a persistent felony offender in the first degree. He was sentenced to twenty years' imprisonment. The Kentucky Supreme Court outlined the facts when it affirmed Nunn's conviction. We borrow liberally from the Supreme Court's opinion.
Kentucky State Police Trooper Shannon White stopped Nunn for operating his vehicle with an expired temporary tag. Nunn was unable to produce vehicle registration documents or proof of insurance. Trooper White decided the proper course of action was to impound Nunn's car, so she summoned a tow truck. As they waited for the tow truck, Trooper White directed Nunn to exit the vehicle and walk to the back of it so that White could frisk him for weapons. Nunn got out of the vehicle but hesitated in walking to the rear of the vehicle. When the trooper demanded compliance, he turned and ran away. The trooper took chase and caught him. A bag of marijuana was found along the route of Nunn's attempted escape and a search of his person produced a loaded handgun. He was indicted on several charges arising from the incident, and the case went to trial on three of those charges: first-degree fleeing and evading police, possession of a handgun by a convicted felon, and being a persistent felony offender.
At trial, Nunn testified he was in possession of the firearm only because earlier that day he had taken it from his daughter for her own safety and protection. Based upon that defense, the jury was given a choice-of-evils instruction. Ultimately, the jury found Nunn guilty of second-degree fleeing and evading police, possession of a handgun by a convicted felon, and being a persistent felony offender in the first degree, for which he received a total sentence of twenty years' imprisonment. Due to his status as an "indigent" defendant, the trial court waived the fines associated with this conviction but ordered that he pay the court costs upon his release from incarceration.
On appeal, the Kentucky Supreme Court affirmed the judgment and sentence of the trial court in Nunn v. Commonwealth, 461 S.W.3d 741 (Ky. 2015). On November 7, 2016, Nunn filed an RCr 11.42 motion to vacate and supplemented the motion on March 26, 2018, and May 17, 2018. The trial court's July 18, 2018, order denied Nunn's motion as to all claims. This appeal followed.
STANDARD OF REVIEW
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 688, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Under this standard, the movant must first prove that his trial counsel's performance was deficient. Id., 466 U.S. at 687, 104 S. Ct. at 2064. To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment[.]" Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
Second, the movant must prove that counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, the movant must demonstrate "there is a reasonable probability 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.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 466 U.S. at 690, 104 S. Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id., 466 U.S. at 689, 104 S. Ct. at 2065. We must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. 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) (citing 5 AM. JUR. 2D Appellate Review § 695 (1995)). We review this matter in the light of the foregoing.
ANALYSIS
Nunn presents eight arguments. Initially, we note that it is not the purpose of RCr 11.42 to obtain review of alleged trial errors. Harris v. Commonwealth, 441 S.W.2d 143, 144 (Ky. 1969). Some of these arguments fall in that category. However, the trial court reviewed the substance of most of them. We shall do the same to determine whether, as to those considered by the trial court, Nunn's counsel's deficient performance was to blame and if that deficient performance prejudiced his defense. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
First, Nunn argues the trial court abused its discretion by denying his motion to reverse his persistent felony offender conviction under double enhancement. The Commonwealth argues that Nunn had multiple prior felony convictions to support the charges and that the trial court did not err. We agree.
The trial court addressed the substance of the claim correctly, stating, "[T]he Kentucky Supreme Court clearly held that there is no due process or double jeopardy violation where one prior felony conviction was used to create the offense of carrying a handgun by convicted felon or other prior felony offenses were used at the persistent felony offender stage. Eary v. Commonwealth, 659 S.W.2d 198 (Ky. 1983)." (Record (R.) at 630).
During the third phase of the jury trial, PFO sentencing, evidence was introduced without challenge that Nunn had twelve prior felony convictions, only two of which were used by the jury for PFO enhancement in the jury instructions. We therefore agree with the trial court's denial of Nunn's first argument on this basis.
Second, Nunn argues that the trial court erred in failing to find his counsel's assistance ineffective because in opening statements counsel alluded to evidence that was ultimately ruled inadmissible by the trial court. The Commonwealth asserts it was not error for the trial court to find counsel's assistance effective in that regard. We agree.
In rejecting this argument, the trial court correctly pointed out that Nunn did not appeal the trial court's denial of the admissibility of the text messages alluded to by appointed counsel in opening statements. The trial court noted that appointed counsel: (1) alluded to the text messages in opening statements; (2) introduced testimony concerning the text messages; and (3) moved to enter the text messages into evidence but was ultimately denied by the trial court. Given this information in the record, we agree with the trial court that Nunn's assertion on this issue is both without merit and untimely.
Third, Nunn asserts the trial court erred by allowing Juror #258 to be empaneled without input from him as co-counsel. The Commonwealth counters that Nunn is not entitled to post-judgment relief on this issue. We agree.
Nunn asserts that because Juror #258 rented a home from a former Kentucky State Police officer he is a biased and partial juror. We agree with the trial court's analysis of this argument. The trial court ascertained that Juror #258's landlord was neither a witness to nor involved in the investigation of Nunn's case. Furthermore, during voir dire, Juror #258 was directly questioned as to whether his landlord-tenant relationship would affect his ability to be impartial. Nunn made no motion to excuse Juror #258 for cause.
We note that the trial court not only reviewed Juror #258's answers but also considered his demeanor during voir dire and direct questioning. We find no abuse of discretion in the trial court's denial of Nunn's motion, especially considering the trial court's holistic consideration of the juror and the lack of a motion to excuse the juror for cause from Nunn.
Fourth, Nunn argues the trial court erred by denying his claim of ineffective assistance of counsel related to the failure to subpoena two witnesses. In denying Nunn's motion, the trial court relied on the principle stated in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002), in which the Supreme Court held that the failure to compel attendance of an out-of-state witness at a criminal trial is not ineffective assistance of counsel unless the movant demonstrates that the absent witness's testimony was material and that the witness's attendance could have been secured under KRS 421.250(1). Although Nunn's proposed witnesses lived in state, the heart of Bowling's holding - a demonstration that the witness's testimony would be material - still applies. Nunn's argument does not satisfy that test.
Kentucky Revised Statutes.
Here, Nunn asserts his daughter's foster parents, Jim and Katie Yugi, would have served as exculpatory witnesses. The trial court found the testimony of these witnesses would have been cumulative and not material beyond what Nunn already said on the stand - that he had taken the weapon from his daughter for her safety. We agree with the trial court that Nunn failed to establish actual prejudice resulted from his counsel's failure to secure that in-court testimony. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Fifth, Nunn argues the trial court abused its discretion in its choice-of-evils instruction. The trial court summarily denied Nunn's claim because it related to a jury instruction that should have been raised on direct appeal. We decline to manipulate his argument into an ineffective assistance of trial counsel claim. His objection to the instruction could have been presented in his direct appeal to the Supreme Court.
Sixth, Nunn asserts the trial court erred in not finding ineffective assistance of counsel when counsel did not move to strike closing statements by the Commonwealth in which a striking tool was referred to as a "hand cannon."
A metal object found in Nunn's vehicle was introduced into evidence at trial. In reference to this object, witnesses stated it was a "striking tool" or "metal shifter." In closing arguments, the Commonwealth referred to the object as a "hand cannon." Counsel appointed to represent Nunn objected to this terminology but the objection was overruled. This trial court ruling was appealable as an abuse of discretion claim. Nunn did not raise this issue on direct appeal.
Nunn had hybrid counsel at trial.
Additionally, there is no reason to believe that if the statement had been struck, the outcome of the jury deliberation would have been any different. In considering this argument of Nunn's motion, we find no abuse of discretion by the trial court.
Seventh, Nunn argues the trial court failed to address the arguments he presented in his original RCr 11.42 motion. The Commonwealth argues that collateral review is not warranted as the issues to which Nunn refers were addressed by the Kentucky Supreme Court on direct appeal. We agree.
Nunn specifically directs our attention to arguments from his December 14, 2017, RCr 11.42 motion where he asserts the trial court did not address arguments related to: (1) his arrest by Trooper White; (2) his right to hybrid representation; (3) KRE 404(b); (4) the Commonwealth's reference to post-arrest silence; (5) the trial court's refusal to grant a continuance; and (6) court costs. We agree with the trial court's decision not to address these issues as the Kentucky Supreme Court clearly and definitively addressed all of them when reviewing his direct appeal. Nunn, 461 S.W.3d 741. On this basis, we find no error by the trial court.
Kentucky Rules of Evidence.
Finally, Nunn argues the trial court erred by not holding an evidentiary hearing on his RCr 11.42 motion. We disagree.
We note that not every claim of ineffective assistance merits an evidentiary hearing, nor is an RCr 11.42 movant automatically entitled to one. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The trial court need only conduct an evidentiary hearing "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) (citations omitted); RCr 11.42(5). An evidentiary hearing is unnecessary when the record refutes the claims of error or when the allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998).
Having reviewed Nunn's arguments, we find none capable of creating a material issue of fact that cannot be conclusively resolved from the record. We therefore find no reason for an evidentiary hearing and on this basis we affirm the July 18, 2018, order of the trial court.
CONCLUSION
Based on the foregoing analysis, we affirm the July 18, 2018, order of the Hardin Circuit Court denying Nunn's motion for ineffective assistance of counsel pursuant to RCr 11.42.
ALL CONCUR. BRIEFS FOR APPELLANT: David Nunn, Jr., pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky