Opinion
NO. 2011-CA-000559-MR
01-11-2013
KEVIN MICHAEL RAIFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Dixon Bullock Assistant Public Advocate BRIEF FOR APPELLEE: Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 04-CR-01059
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. CAPERTON, JUDGE: Kevin Raiford appeals the decision of the Fayette County Circuit Court denying his motion for relief made pursuant to Kentucky Rules of Criminal Procedure ("RCr") 11.42. Raiford avers that he was denied his right to effective assistance of counsel because his attorney did not allow him to testify at trial. However, after hearing testimony from both Raiford and his attorney, the circuit court determined that Raiford was not improperly denied his right to testify. Upon a thorough review of the parties' arguments, the record, and the applicable law, we agree with the trial court. Accordingly, we affirm.
Raiford was indicted on September 7, 2004, for Robbery in the First Degree, Receiving Stolen Property over $300.00, and for being a Persistent Felony Offender in the First Degree. Raiford was convicted on March 2, 2005, and sentenced to 35 years' imprisonment. His conviction was appealed to the Supreme Court of Kentucky and affirmed.
Raiford's conviction resulted from a series of events that began on July 16, 2004, when Darren Lang parked his blue 1989 Honda Accord in front of the China King restaurant. When Lang left the restaurant his car was gone. Upon determining that no one from the restaurant moved the vehicle, he notified the police.
The next morning, the Marathon gas station located on South Broadway in Lexington was robbed by a man driving a blue Honda. The gas station owner recognized the perpetrator as a regular customer despite the nylon stocking he wore over his head. When the man exited the store the owner shouted that he recognized him and the man responded that he did not care. Before the man could drive away, the owner wrote down the license plate of the blue Honda and called the police.
Soon thereafter, Officer James Smith spotted a blue Honda driving down South Broadway. Officer Smith immediately pulled behind the vehicle, checked the license plate number, and confirmed that it was the same number reported by the Marathon owner. Before back-up arrived, Raiford pulled over and exited the vehicle of his own volition. Officer Smith proceeded to place him under arrest. A short time later, the Marathon owner identified Raiford as the perpetrator and Mr. Lang identified the blue Honda Accord as the car that was stolen from him.
Raiford was subsequently convicted and his conviction was affirmed on appeal. On August 17, 2007, appellant filed a pro se RCr 11.42 motion asserting multiple grounds for which his counsel should be found ineffective. The circuit court denied his request for a hearing and denied the motion. On June 18, 2010, this court affirmed in part, reversed in part, and instructed that a hearing was required to determine if Raiford was denied his right to testify at trial.
In compliance with our order, the circuit court conducted a hearing on March 9, 2011. At the hearing, Raiford testified that he discussed his right to testify with his counsel and believed that he would testify. Raiford indicated that he realized he would not testify when his attorney informed the court that such was the case. On cross-examination, Raiford admitted that he never informed the court that he wanted to testify. Raiford also admitted that during the sentencing phase he had new counsel and, although he addressed the court directly, never indicated that his counsel would not let him testify. Despite this fact, Raiford informed the court that, had he been given the chance to testify on his own behalf then he would have revealed how he came to be in the Honda Accord he used as a getaway car.
Raiford's trial counsel, the Honorable Herb West, also testified at the hearing. Mr. West indicated that he advised Raiford not to testify in part because he was a convicted felon, a fact that would have undoubtedly been revealed on cross-examination. Mr. West also testified that while preparing for trial Raiford informed him that there was an alternative perpetrator, although further investigation concerning this issue did not lead anywhere. Mr. West noted that Raiford was captured in the getaway car within ten to fifteen minutes after the crime and believed Raiford's testimony would not add to the case. While Mr. West did not specifically remember Raiford insisting on testifying during the trial, it was his practice to put such matters on the record. It was Mr. West's practice that if his client, in this case Raiford, had been adamant in his desire to testify then Mr. West would have approached the bench and told the judge that, contrary to his advice, Raiford wished to take the stand.
At the close of the hearing, the circuit court judge conducted a full review of the record and found that not only did Mr. West's advice regarding Raiford's testimony amount to sound trial strategy, but also that at no point did Raiford inform the court of his desire to testify. The court also determined that Raiford's testimony would have little credibility in light of the strong evidence presented against him. Furthermore, the court determined the testimony of Raiford's attorney to be credible. With these findings in mind, we turn to the standard of review on appeal.
Counsel's performance is considered ineffective when trial counsel's performance falls below prevailing professional norms, and "there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the trial would have been different." McQueen v. Commonwealth, 721 S.W.2d 694, 697 (Ky. 1986). When reviewing the circuit court's findings of fact following an RCr 11.42 hearing, we utilize "the clearly erroneous standard set forth in Kentucky Rules of Civil Procedure (CR) 52.01." Saylor v. Commonwealth, 357 S.W.3d 567, 570-71 (Ky. App. 2012). The circuit court's "[f]indings of fact are not clearly erroneous if supported by substantial evidence." Id. at 571. Although claims of ineffective assistance of counsel are generally reviewed de novo, "a reviewing court should defer to the determination of facts made by the trial judge." Id.
On appeal, Raiford once again asserts that his attorney would not allow him to testify. However, his attorney testified to the contrary at the hearing indicating that if Raiford had expressed this desire, he would have put the matter on the record and allowed him to take the stand. The trial court, being in the best position to do so, weighed the credibility of both Raiford and his attorney. After careful consideration of the record, as well as the testimony presented at the hearing, the circuit court determined that Raiford was not adamant in his desire to testify. The circuit court's determination is supported by substantial evidence.
This determination was based not only on his actions at trial, but also the correspondence between Raiford and Mr. West and Raiford's testimony at the hearing. Indeed, the record lacked any indication that he insisted on testifying. In fact, Raiford let the court know on several occasions when he wanted something, including when he had a headache. In other words, he was outspoken and not complacent during the trial of the case. Further, the circuit court made a factual determination that Mr. West would have put the matter on the record had Raiford insisted on taking the stand.
Not only are the trial court's factual findings supported by substantial evidence, we also note, as did the circuit court, that Raiford failed to establish that the result of the trial would have been different had he testified. This is particularly true given the strong evidence presented against him. This evidence included identification by the Marathon owner and evidence found in a stolen vehicle Raiford was driving less than twenty minutes after the robbery, not to mention the fact that the Marathon owner indicated that he not only identified Raiford when asked to do so by authorities but that he also recognized Raiford while the crime was being committed and informed Raiford that he recognized him while he was committing the crime. Raiford presented no evidence at the hearing regarding the testimony he would have presented at trial.
For the reasons discussed above, the circuit court's findings of fact are supported by substantial evidence and Raiford failed to establish the requisite elements necessary to establish a claim of ineffective assistance of counsel. Therefore, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Dixon Bullock
Assistant Public Advocate
BRIEF FOR APPELLEE: Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky