Opinion
NO. 2012-CA-000423-MR
05-24-2013
FRANCIS G. PAYNE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christine Foster Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 08-CR-00020
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. STUMBO, JUDGE: Appellant Francis Payne appeals from the denial of his RCr 11.42 motion seeking to vacate his conviction for first-degree sexual abuse. Appellant has alleged his trial counsel was ineffective and is seeking a new trial. We find no error and affirm.
This case has previously been heard by the Kentucky Supreme Court. We will therefore use that Court's recitation of the relevant facts.
On June 5, 2008, Anna Conner and her husband rented a trailer that Appellant, Francis G. Payne, owned on Highway 144 in Hancock County, Kentucky. The Connors had lived in the trailer for approximately two months, but they were planning on moving out and into a house later that month. That morning, Mrs. Conner saw Appellant working on a deck behind an old grocery store nearby and approached to inform him that she and her husband would be moving out of the trailer in two weeks. According to Mrs. Conner's testimony, as she stepped onto the deck where Appellant was working, he grabbed her and kissed her twice on the mouth. Despite Mrs. Conner's protests, Appellant proceeded to pull her inside the grocery store building, backing her up against a bar in the kitchen area and locking the door.Payne v. Commonwealth, 2010 WL 1641117 (Ky. 2010).
Once inside the grocery store, Mrs. Conner testified that Appellant shoved his right hand under her shirt and bra and began to squeeze her breast. Again, Mrs. Conner asked Appellant to stop. Moments later, Appellant attempted to undo her shorts, though she was able to pry one of her hands loose and stop him from so doing. Eventually, Appellant was able to work his hand underneath the leg of Mrs. Conner's shorts and insert his finger into her vagina. After a period of approximately twenty minutes, Appellant unlocked the door and told Mrs. Conner that she "was free to go." At this time, Mrs. Conner ran back to her trailer. Approximately ten minutes later, Appellant knocked on her door and asked to come in, stating that he wanted to see her in a bathing suit and wanted to see how she "tasted." Mrs. Conner refused to let Appellant enter the trailer.
After this encounter, Mrs. Conner called her sister-in-law, Tammy McManaway. While on the phone with Mrs. McManaway, Appellant loudly knocked on the door and tried to turn the door knob. Mrs. McManaway could hear these sounds and told Mrs. Conner to stay away
from the windows and hide inside the closet. She also informed Mrs. Conner to call law enforcement.
Mrs. McManaway then proceeded to drive to the trailer. As she approached, she saw Appellant pulling out in his truck, passing her as she drove by. Once inside the trailer, Mrs. McManaway saw Mrs. Conner inside, visibly upset. Within a matter of minutes, Hancock Deputy Sheriff Ken Eubanks arrived. Sheriff Eubanks testified that Mrs. Conner appeared "very distraught" and "very scared."
Appellant was charged with two counts of first-degree sexual abuse, one count of false imprisonment, and one count of kidnapping. After a jury trial, Appellant was convicted of the two sexual abuse counts and the kidnapping count. The jury sentenced Appellant to 5 years on each of the sexual abuse counts and 15 years on the kidnapping count. The two 5-year sentences were ordered to run concurrent to one another and consecutively to the 15-year sentence for a total of 20 years.
On April 22, 2010, The Kentucky Supreme Court reversed Appellant's kidnapping conviction pursuant to KRS 509.050, which states in relevant part:
A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose.That Court also affirmed Appellant's sexual abuse convictions. On May 10, 2010, Appellant was resentenced by the circuit court and received five years for each of the sexual abuse counts to be served consecutively for a total of ten years.
On March 3, 2011, Appellant filed an RCr 11.42 motion alleging ineffective assistance of counsel. An evidentiary hearing was held on February 7, 2012. On February 8, 2012, the court entered an order denying Appellant's motion. This appeal followed.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicialId. at 691-692 (citations omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).
to the defense in order to constitute ineffective assistance under the Constitution.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.Strickland, 466 U.S. at 689-690 (citations omitted). "Appellant is not guaranteed errorless counsel or counsel that can be judged ineffective only by hindsight, but rather counsel rendering reasonably effective assistance at the time of trial." Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008)(citations omitted).
Appellant's first argument on appeal is that trial counsel was ineffective for not filing a pretrial motion arguing that the kidnapping exemption found in KRS 509.050 applied and that the kidnapping charge should be dismissed. Defense counsel argued this issue at the close of the Commonwealth's evidence and again at the close of all the evidence. Both times the trial court declined to dismiss the charge. We find no error.
There is no requirement that this issue be brought pretrial. Furthermore, whether the kidnapping exemption applies is inherently fact specific and requires the presentation of evidence. See Payne v. Commonwealth, supra (where the Kentucky Supreme Court discusses the three prong test to determine if the exemption applies). Defense counsel testified during the RCr 11.42 hearing and said that it would be impossible for a court to rule on the applicability of the exemption statute without first hearing the evidence presented by the Commonwealth. Trial counsel's performance was not deficient on this issue.
Appellant's next claim is that trial counsel was ineffective when he failed to properly introduce into evidence the audio from the 911 call to police. Following Appellant's testimony, defense counsel tried to play the 911 recording. Counsel, along with help from court personnel, was unable to get the audio equipment to function. Defense counsel conferred with Appellant and ultimately decided not to play the tape. During the RCr 11.42 hearing, counsel testified that he wanted to play the tape in order for the jury to hear whether or not Mrs. Conner sounded distraught.
We do not believe counsel was ineffective in this instance. Counsel tried to play the tape, but was unable to. Then, he conferred with his client and decided not to play the tape. During the RCr 11.42 hearing, counsel testified that he did not believe the tape would have helped Appellant's case. It was his opinion that Mrs. Conner sounded distraught and upset. Appellant cannot overcome the presumption that this was a reasonable strategic decision.
Appellant's third argument on appeal is that he allowed damaging hearsay testimony to be presented. At the close of the defense case, the Commonwealth called Tammy McManaway, friend of the victim, as a rebuttal witness. She testified that she received a phone call from her mother-in-law, Jody McManaway. Jody McManaway is also Appellant's sister. Part of the Commonwealth's theory of the case was that Appellant called his sister the day of the crime in order to ask her to call Tammy. Jody was to try and get Tammy to discourage Mrs. Connor from pressing charges, even if it meant using threats. Tammy began discussing the phone call when defense counsel objected arguing that anything discussed during the phone call would be inadmissible hearsay. The trial court agreed. During a bench conference it was discussed that the only way the substance of the phone call could be brought in was if Jody testified. Tammy continued with her testimony and stated that she had received the call from Jody and it made her very upset.
After this testimony, defense counsel asked for a recess in order to decide if he wanted to call Jody as a rebuttal witness. Counsel did call Jody as a witness. Jody testified that she did not threaten Tammy and did not ask Tammy to ask Mrs. Connor not to press charges. The Commonwealth then recalled Tammy. Tammy then testified that Jody had berated and threatened her during the phone call.
Appellant argues that had counsel not put Jody on as a witness, then the Commonwealth would not have been able to introduce the contents of the phone call and threats made to Tammy. During the RCr 11.42 hearing, defense counsel testified that he conferred with Appellant and Jody and decided to have Jody testify. He also stated that he knew Jody could be a "loose cannon", but decided to use her testimony anyway. Trial counsel made a strategic decision that Jody's testimony would outweigh any further rebuttal evidence presented by the Commonwealth concerning the phone call. This was a valid strategic decision that Appellant is now second-guessing. Trial counsel's performance was not deficient in this instance.
Appellant's fourth argument on appeal is that trial counsel was ineffective in failing to investigate and present mitigating evidence. During the sentencing phase, the only mitigating evidence trial counsel put on was that Appellant did not have a criminal record. Appellant now claims that the use of a parole and probation officer would have been a better way to introduce Appellant's lack of a criminal record. Appellant also argues that other mitigating witnesses could have testified that Appellant had been in the Navy from 1976 to 1980 and was honorably discharged and that he was a self-employed master electrician.
Mitigating evidence is important during the sentencing phase, but counsel is not required to "investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing." Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 2541 156 L.Ed.2d 471 (2003). Nor is defense counsel required "to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the 'constitutionally protected independence of counsel' at the heart of Strickland, 466 U.S., at 689, 104 S.Ct. 2052." Id. In this case, defense counsel put on evidence of Appellant's lack of a criminal record. Additionally, evidence of Appellant being a self-employed electrician came out during the guilt phase of the trial. This is another example of reasonable trial strategy and trial counsel's performance was not deficient.
Appellant's final argument on appeal is that the cumulative effect of trial counsel's errors deprived him of his right to effective trial counsel. As stated previously, we do not believe trial counsel made any errors in this case. The acts complained of by Appellant on appeal were reasonable strategic trial decisions.
For the foregoing reasons we affirm the order of the circuit court overruling Appellant's RCr 11.42 motion.
ALL CONCUR. BRIEFS FOR APPELLANT: Christine Foster
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky