Opinion
NO. 2011-CA-000743-MR
09-21-2012
MICHAEL PAVEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rachel G. Cohen Assistant Public Advocate LaGrange, Kentucky Euva D. May (Substituted for Rachel G. Cohen after brief was filed) BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 07-CR-00273
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Michael Pavey appeals the Kenton Circuit Court's order denying his RCr 11.42 motion to vacate the judgment against him. After a careful review of the record, we affirm because Pavey did not receive the ineffective assistance of trial counsel.
Kentucky Rule of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pavey was indicted on charges of first-degree stalking and of being a second-degree persistent felony offender (PFO-2nd). The indictment for stalking accused him of having stalked Deana O'Hara by making
Ms. O'Hara's first name is spelled differently throughout the record: At times, it is spelled "Deana," and at other times, it is spelled "Deanna." In this opinion, we have used the spelling that was used in the initial indictment on the stalking charge, i.e., "Deana."
explicit or implicit threats with the intent to place Deana O'Hara in reasonable fear of serious physical injury or death [after] a protective order had been issued by the court to protect Deana O'Hara and [Pavey] had been served with the order or he had been given actual notice of said order.
The case proceeded to trial, but the jury reported that they were hopelessly deadlocked after six hours of deliberations. Consequently, the circuit court declared a mistrial.
Subsequently, and before Pavey's second trial on the stalking charge began, Pavey was indicted on the charge of first-degree perjury based upon testimony he had provided during a suppression hearing. Pavey moved for a separate trial on the perjury charge, and his motion was granted.
According to testimony presented at the second trial on the stalking and PFO-2nd charges, Pavey and Deana O'Hara met through an internet dating website. They dated for about six months before O'Hara ended the relationship due to Pavey having become angrier and more verbally aggressive. Approximately two weeks after they stopped dating, O'Hara discovered that she was pregnant with Pavey's child. She sent him a text message to inform him of the pregnancy and that he was the father because she wanted the child to have a relationship with him.
O'Hara testified that three days before the baby was born, she began to fear Pavey following an incident at her house. That evening at approximately ten o'clock, O'Hara was letting her dogs out when she spotted a man hiding under the picnic table behind her house. O'Hara screamed, and Pavey emerged from under the table and identified himself. O'Hara directed Pavey to leave, which he did. He later apologized via text message.
O'Hara attested that after the baby's birth, O'Hara initially permitted Pavey to visit the baby. Although when he did, Pavey began questioning whether the child was his. He became angry, and security was called to escort him from the hospital room. When the baby was approximately one week old, O'Hara ceased allowing Pavey to visit. He offered her no financial support, and he continued to deny that he was the child's father.
Pavey then began threatening O'Hara. O'Hara testified that Pavey sent her a text message stating that she should stop disrespecting him or he may "have to come over and kick [her] ass." She attested that Pavey later telephoned her and said: "You're messing with the wrong person. I will kill you. You will die. You will see your own blood." O'Hara testified that Pavey also telephoned her and said: "You will not be alive this time next year and I will make sure I follow through with that." In August 2006, Pavey sent a text message to O'Hara that said: "Careful what you wish for, it may come true. . . . Something wicked is coming your way." Another text message he sent her stated: "Look, you twisted bitch. Stay away from my family. Now you will suffer my wrath."
O'Hara attested that she sought a protective order against Pavey because she was afraid of him. A domestic violence order (DVO) was entered against Pavey in November 2006. The following month, Samantha Scott, who lived with O'Hara and O'Hara's brother at the time, saw a "peeping tom" in the bushes outside O'Hara's house. Scott identified the person in the bushes as a thinner-looking Pavey. O'Hara testified that following this incident, she changed bedrooms in the house. She also had her two daughters sleep in the room with her, in case they needed to make a quick escape if Pavey ever returned.
O'Hara attested that, in addition to the baby she had with Pavey, she had another daughter (who we presume was not Pavey's child) who was fifteen years old at the time of the "peeping tom" incident.
Despite the DVO, Pavey again began telephoning O'Hara and sending her text messages in January 2007. O'Hara recorded the voicemails Pavey left for her because she was afraid of him, and many of them were played during trial. In February 2007, Pavey left one voicemail for O'Hara in which he stated:
You don't think I think about her? You don't think I lose sleep over her? You don't think she matters to me? You think I'm just going to give up? You think it's just going to go away? You think I need to quit? You think I need to stop? You think I'm crazy? F* * * you. You are a piece of garbage, Deana O'Hara. You are a piece of trash. You don't deserve what you have, and I have no intentions of allowing you to keep it. You piece of sh* *. You know I'm not intoxicated. Not one little bit. Not one little bit, you three-abortion-having slut. I hope you lose sleep for the rest of your f***ing short pathetic life, you f***ing piece of trash. I hate you now more thanPavey subsequently left a message on O'Hara's voicemail stating that if sent to jail (presumably for violating the DVO), he would sleep in late, play cards, watch television, and have meals brought to him.
I've ever hated anyone in my life, and that's really not a good thing. Trash.
At the end of the second jury trial, Pavey was convicted of first-degree stalking and of PFO-2nd. He was sentenced to ten years of imprisonment due to his PFO-2nd status.
Pavey was then tried on the first-degree perjury charge, and the jury convicted him of that charge. Following the jury's guilty verdict, the Commonwealth made the following offer to Pavey: If Pavey agreed to waive his right to a jury sentencing on the perjury conviction and to waive his right to appeal the perjury, first-degree stalking, and PFO-2nd convictions under the same indictment, then the Commonwealth would withdraw the PFO-2nd charge as it pertained to the perjury charge. The Commonwealth would also recommend a sentence of three and one-half years for the perjury conviction, to be served consecutively to Pavey's sentence for the stalking and PFO-2nd convictions. Pavey accepted the Commonwealth's offer, and he was sentenced in accord with the plea agreement. Therefore, his total sentence for the convictions of first-degree stalking, PFO-2nd, and first-degree perjury was ordered to be thirteen and one-half years of imprisonment.
Pavey then filed his pro se motion to vacate the judgment against him pursuant to RCr 11.42. Post-conviction counsel was appointed for him, and counsel filed a supplement to Pavey's RCr 11.42 motion. An evidentiary hearing was held, and the circuit court subsequently entered an order denying Pavey's RCr 11.42 motion.
Pavey now appeals, contending that he received the ineffective assistance of trial counsel when counsel failed to impeach Samantha Scott based upon her prior inconsistent statement regarding the date that Pavey made a statement in a voicemail message.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
III. ANALYSIS
Pavey alleges that he received the ineffective assistance of trial counsel when counsel failed to impeach Samantha Scott based upon her prior inconsistent statement regarding the date that Pavey made a statement in a voicemail message. Specifically, Pavey asserts as follows:
During [Pavey's] first trial, [Samantha] Scott, the girlfriend of O'Hara's brother, testified that she had lived with O'Hara shortly after the birth of O'Hara and [Pavey's] child. . . . Scott testified to a voice mail message in which [Pavey] purportedly stated that if O'Hara sent him to jail (presumably for violating the protective order), he would play cards all day and that when he got out, he would follow through on his threats. . . . Scott testified that this statement was made in the summer of 2006. After the jury in the first case was unable to reach a verdict, Scott testified at [Pavey's] second trial. This time, Scott reiterated the same purported threat, however, she stated that this statement was instead made in January of 2007.
Pavey contends that counsel's failure to impeach Scott concerning this prior inconsistent statement amounted to the ineffective assistance of counsel because
the issue of an inconsistency in the witness'[s] account of the timing of events was critical to the jury's determination of his guilt. . . . Stalking in the first degree, for which [Pavey] was convicted, is defined as a threat of serious physical injury or death that is made while "[a] protective order has been issued by the court to protect the same victim." KRS 508.140(b)(1). The Commonwealth's case required proof that [Pavey] threatened O'Hara after the protective order was in place.
O'Hara finally received a protective order from the court on November 14, 2006. Any statements made by [Pavey] prior to this time would therefore not have qualified as stalking in the first degree. The existence of a Domestic Violence Order ("DVO") at the time of the threat was thus at issue as an element of the crime charged. Had the DVO not been issued when [Pavey]
made this alleged statement, it could not have amounted to stalking in the first degree.
To prove he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Pavey must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Further,
a court's review of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made 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. Hence, the defendant must overcome the presumption that counsel provided a reasonable trial strategy.Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
The Commonwealth argues that during the first trial, Scott was asked by the prosecutor about conversations she overheard between O'Hara and Pavey. Our review of the videotape of the first trial reveals that Scott answered the prosecutor's question as follows:
Basically, it was [Pavey] making statements such as: "You will not exist this time next year[";] um, "I'll follow through with my threats." Um, I heard him stating, um, about when he would, if he went to jail it was county jail. Big deal. They'd play cards and watch TV. [At this point, the defense objected, but theThe prosecutor then asked Scott when she overheard these statements, to which Scott replied: "They would have been in the Summer of '06, I believe."
objection was overruled and Scott was asked to continue.] Um, basically, just that um, when he got out of jail he would take care of, you know, the things that he wanted to do.
On cross-examination during the first trial, defense counsel asked Scott about the timing of the aforementioned statements. Scott ultimately clarified that she heard the statements not all at one time, but over the course of three different instances. She attested that two of the instances were in July 2006, but the statement from Pavey saying "when I get out of jail, I'll finish it then" was a voicemail statement that Pavey had left for O'Hara, rather than a live conversation between O'Hara and Pavey, and that statement was made at a later time. During the first trial, Scott did not specify exactly when that statement was left on the voicemail.
However, during the second trial on the stalking charge, Scott testified that in January 2007, she heard O'Hara's recording of the voicemail Pavey had left for O'Hara, when he stated that if they put him in jail, he would just play cards and watch television while there and when he was released from jail, he would "come after her." Thus, Scott's testimony concerning the threat was not actually inconsistent because she did not specify during the first trial when the statement was left on the voicemail.
Pursuant to KRS 508.140,
(1) A person is guilty of stalking in the first degree,Additionally, KRS 508.130 provides:
(a) When he intentionally:
1. Stalks another person; and(b) 1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice.
2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
a. Sexual contact as defined in KRS 510.010;
b. Serious physical injury; or
c. Death; and
(1)(a) To "stalk" means to engage in an intentional course of conduct:
1. Directed at a specific person or persons;(b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.
2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and
3. Which serves no legitimate purpose.
Although we were unable to locate a copy of the DVO in the record before us, the parties do not dispute that a DVO was entered in November 2006, or that Pavey had either been served with the DVO or was at least provided actual notice of the DVO. Additionally, a February 2007 voicemail that Pavey left for O'Hara was played for the jury, in which Pavey stated in pertinent part: "I hope you lose sleep for the rest of your f***ing short pathetic life, you f***ing piece of trash. I hate you now more than I've ever hated anyone in my life, and that's really not a good thing." The fact that he referred to her remaining life as "short," when O'Hara was clearly young enough to have just had a baby could itself be interpreted as either an explicit or an implicit threat of serious physical injury or death, to justify Pavey's conviction for first-degree stalking, let alone the other testimony of Pavey's threats and actions.
Therefore, even if we were to assume, for the sake of argument, that defense counsel performed deficiently in failing to impeach Scott regarding the alleged inconsistent statements (which do not appear to have actually been inconsistent), Pavey cannot prove that the result of his trial would have been different: Not only had Scott testified concerning the threats Pavey had made against O'Hara, but O'Hara herself testified regarding the threats, and Pavey's own 2007 voicemail, wherein he referred to O'Hara's remaining life as "short," was played for the jury. Thus, Pavey cannot show that the result of his trial would have been different if defense counsel had impeached Scott and, consequently, his ineffective assistance of counsel claim lacks merit.
Accordingly, the order of the Kenton Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Rachel G. Cohen
Assistant Public Advocate
LaGrange, Kentucky
Euva D. May
(Substituted for Rachel G. Cohen after
brief was filed)
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky