Opinion
NO. 2011-CA-000023-MR
02-08-2013
BARBARA SUE SARABIA APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda D. Bullock Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMERLY N. BUNNELL, JUDGE
ACTION NOS. 01-CR-00022 & 02-CR-00617
OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; NICKELL AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: Barbara Sarabia contends the Fayette Circuit Court erroneously overruled her Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to vacate her convictions for murder and tampering with a witness and the resulting thirty-year sentence. We conclude none of the allegedly deficient performance of her trial counsel warrants vacating the sentence. We affirm.
I. Facts and procedure
On August 5, 2000, officers from the Woodford County Police Department were called to the home of Valentin Sarabia and his wife, Barbara. Officers saw red marks and bruising around Barbara's neck, and she complained that Valentin had physically abused her. Valentin was arrested and eventually pleaded guilty to fourth-degree assault. He served seven days in jail and then, in compliance with an Emergency Protective Order, moved out of the marital home. He relocated to an apartment with several friends in Lexington. A Domestic Violence Order was subsequently entered.
On November 9, 2000, Barbara drove to Valentin's home in Lexington and shot him eight times. He died from the gunshot wounds.
Barbara was arrested for the homicide. While in jail awaiting trial, Barbara wrote a letter to her cousin Jerry Wilburn, in which she asked him to present false testimony at her trial. She believed this false testimony would help her achieve acquittal. The letter was turned in to investigators and the Commonwealth.
Barbara was tried for witness tampering and murder. The jury was also instructed on the lesser included offense of first-degree manslaughter and the self-protection defense.
At trial, Barbara did not deny killing Valentin; rather, her strategy was to pursue the self-protection defense and the lesser included offense. To that end, Barbara's trial attorney presented evidence that Barbara had been the victim of lifelong domestic violence from her father and two previous husbands and that she had generally endured a difficult life. Witnesses testified that Valentin, too, had been violent toward Barbara and had mistreated her in other ways. Trial counsel submitted to the jury that a series of triggering events had ultimately caused Barbara to "snap" and kill her husband.
The jury was not persuaded and convicted Barbara of murder and tampering with a witness. She was sentenced to thirty years' imprisonment.
Barbara presented a motion to vacate her sentence pursuant to RCr 11.42 alleging trial counsel's performance had been deficient in several respects which will be recounted below as necessary. The circuit court overruled the motion, and this appeal followed.
II. Standards governing a claim of ineffective assistance of counsel
To determine whether a defendant suffered ineffective assistance of counsel, the trial court must engage in a two-step inquiry: whether trial counsel's performance was deficient and, if so, whether the deficiency resulted in prejudice to the defendant. Vaughn v. Commonwealth, 258 S.W.3d 435, 438 (Ky. App. 2008) (quoting Fraser v. Commonwealth, 59 S.W.3d 448, 456-57 (Ky.2001)). A defendant meets the prejudice requirement when she shows "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. 688, 687, 104 S.Ct. 2052, 2064 (1984).
"[T]he proper standard for attorney performance is that of reasonably effective assistance." Id. at 687 (citation omitted). As a general matter, "[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." Id. Furthermore, a criminal defendant "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).
The standard governing the ineffective assistance of counsel inquiry is different when the trial attorney has an actual conflict of interests. Mitchell v. Commonwealth, 323 S.W.3d 755, 759 (Ky. 2010). Under those circumstances, prejudice is presumed - and hence the defendant need not demonstrate prejudice - "only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected [her] lawyer's performance.'" Id. (quoting Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).
On appeal, claims of ineffective assistance of counsel are reviewed de novo; however, "a reviewing court should defer to the determination of facts made by the trial judge." Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012) (citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky.1986)). We turn to Barbara's arguments with these standards in mind.
At Barbara's request, the circuit court conducted an evidentiary hearing on her RCr 11.42 motion, but only on a limited issue: whether her trial counsel's reluctance to pursue a defense of Battered Woman Syndrome constituted ineffective assistance of counsel. All other matters were resolved on the record.
III. Discussion
Barbara alleges a host of instances in which trial counsel's performance was deficient. They are: (1) if Barbara's trial counsel had properly presented a defense of extreme emotional disturbance (EED), there is a substantial likelihood she would have been convicted only of manslaughter; (2) Barbara's conviction and thirty-year sentence were the product of the cumulative effect of trial counsel's failure to mount a proper EED defense, to present the testimony of certain expert witnesses, and to present during the sentencing phase additional mitigating evidence; (3) the trial attorney suffered from various conflicts of interests in her representation of Barbara; and (4) a variety of trial errors - mainly concerning treatment of the witnesses and the alleged failure to act as a zealous advocate for Barbara - led to Barbara's convictions and sentences.
a. Certain of Barbara's arguments fail because she has not demonstrated that the allegedly deficient performance was prejudicial
Where a defendant fails entirely to assert that the outcome of trial would have been different but for trial counsel's deficient performance, we are not permitted to vacate the conviction. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. In this case, Barbara has failed to make that necessary assertion for two of her arguments.
The first is her argument that certain mistakes of her trial attorney cumulatively constituted ineffective assistance of counsel. Although Barbara asserts that the combined effect of these errors "directly led to Barbara's conviction at trial and to her sentence of thirty years[,]" she never contends that absent these alleged errors the outcome of her trial would have been any different or that the result of the trial she did receive was unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674. She also never states how or why the outcome would have been different, and as a result it is unclear if she believes the trial might have resulted in acquittal, conviction on a lesser included offense, or a shorter sentence.
Again, these included the following alleged failures: not mounting a proper EED defense, declining to call certain expert witnesses to testify on Barbara's behalf, and not presenting additional mitigation evidence at sentencing.
Likewise, Barbara argues her trial attorney failed to act as a zealous advocate or to subject the Commonwealth's case to meaningful adversarial testing, but states only that, "Barbara's conviction and sentence of thirty years was [sic] a direct result of counsel's actions at trial." Although she maintains the so-called missteps which form the basis of this argument were "clearly prejudicial[,]" she never claims the outcome of the trial would have been any different on these bases, nor does she provide more than this inchoate, unsupported representation.
We are not required to review these two arguments because they do not present a sufficient basis for reversal. Nevertheless, we will do so briefly because we believe Barbara could not demonstrate prejudice even if her arguments were properly presented.
The evidence presented against her was that more than three months after Valentin had moved out of their marital residence, Barbara drove from that residence in Versailles to Valentin's new home in Lexington, where she attempted to force her way into the apartment. After a brief struggle, she shot him eight times in front of several witnesses.
Barbara testified that in the interim between issuance of the EPO and Valentin's death, he had routinely broken into their marital residence in violation of the protective orders and continued to abuse her. None of the other witnesses was able to corroborate that testimony, including her live-in boyfriend and her roommate.
Barbara also testified that in the months before she killed Valintin, she had made two discoveries about her husband which angered her: she learned he had an affair with another woman, and she discovered he had received permanent resident immigration status but had hidden that information from her.
The Commonwealth was successful at pointing out various inaccuracies and contradictions in Barbara's testimony. Much of it seemed self-serving and incredible.
Barbara did not deny writing the letter which led to her witness tampering charge. Instead, she simply explained her reasons for writing it.
Even with a perfect strategy and trial performance, it would have been a difficult task for any attorney to represent Barbara. Given the evidence against her, we can in no wise conclude that the jury would not have found her guilty on either count even if her trial counsel had performed as Barbara alleges she should have. The evidence simply pointed to murder and witness tampering. Barbara did not properly place the matter of prejudice before us in support of these two arguments, but we find nevertheless that she suffered none. We cannot vacate her convictions on these grounds.
b. Barbara's attorney was not burdened with a conflict of interests
Barbara next asserts that where an actual conflict of interest exists between an attorney and her client, the defendant need not show prejudice to be entitled to a vacated sentence. She is correct. Mitchell, 323 S.W.3d at 759 (Ky. 2010).
These are the bases upon which Barbara constructs her position that her trial attorney had an actual conflict of interests: trial counsel thought her client was a liar and treated her as such in front of the jury; trial counsel erroneously believed she owed Valentin a duty; and, there was an actual personal conflict between the trial attorney and Barbara.
Ironically, Barbara's attorney in this appeal seems to agree with her trial counsel that Barbara is a liar. Appellant's brief, 7-8 (arguing expert witnesses should have been called to testify that Barbara's lies were a symptom of Battered Woman Syndrome).
Barbara's attempt to characterize these matters as conflicts of interest is unpersuasive. An "actual conflict of interest," occurs when an attorney represents two clients with incompatible interests. Mitchell, 323 S.W.3d 755; see also RCr 8.30. The matters Barbara alleges demonstrate Barbara's own sensibilities to her interactions with trial counsel, and not an "actual conflict" between two clients represented by the same attorney whose interests are directly opposed. She has not demonstrated an actual conflict as defined by Mitchell, so she was not entitled to a presumption of prejudice. See id.
The Supreme Court has likewise acknowledged the following definition of a conflict of interests, at least in the context of attorney discipline: "a lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose." In re Advisory Opinion of Kentucky Bar Ass'n, 526 S.W.2d 306, 307 (Ky. 1974) (citing Canon 6 of the Canon of Professional Ethics of the American Bar Association). The Court has noted furthermore that "[t]o have a conflict of interest there must be conflicting attorney-client relationships in existence at the time[.]" Id. (citing 31 A.L.R.3d 725).
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As a result, the typical standard for claims of ineffective assistance of counsel applies to the arguments Barbara calls "conflicts." This standard requires, again, that the defendant show both deficient performance and prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (1984). Having put all her eggs into the basket of an alleged "actual conflict," Barbara has failed to assert that she suffered any prejudice from her trial counsel's so-called acts of disloyalty. Her argument cannot succeed, and we will not disturb her conviction on this basis.
c. Trial counsel presented an adequate defense of extreme emotional disturbance
Finally, Barbara claims her trial representation was deficient because her attorney failed to properly present a defense of extreme emotional disturbance. The record reveals, to the contrary, that trial counsel took a number of steps toward presenting an EED defense.
Trial counsel elicited testimony that Barbara had endured an exceptionally difficult upbringing, including dropping out of school before completing the ninth grade, suffering habitual physical abuse by her father, enduring the emotional trauma of witnessing a severely mentally ill mother be repeatedly hospitalized, and being raised with seven siblings but rarely any income to properly support or feed the large family.
The jury also heard evidence of Barbara's two previous abusive marriages followed by marriage to Valentin, who likewise abused the defendant. Barbara's nephew testified to having witnessed multiple instances of Valentin's abuse. The Versailles police officer who responded to Barbara's domestic violence call testified that he had observed signs of physical assault on her body three months before Valentin's death. Other family members testified that they had seen various injuries on Barbara's person, which she said Valentin had caused.
The jury also heard that despite Valentin's repeated abuse, Barbara wished to become pregnant with the two children Valentin wanted her to bear. To that end, she underwent in vitro fertilization, which consisted of a series of shots and expensive treatment. Only after enduring these medical procedures did Barbara discover, in August 2000, that Valentin had been cheating on her with another woman and had impregnated her without medical intervention.
Barbara also testified that she had worked diligently to assist Valentin in attaining lawful permanent resident immigration status. She later discovered that he had achieved the desired immigration status, although he had repeatedly told her otherwise.
Finally, the jury heard Barbara's testimony, albeit unsupported by other witnesses, that Valentin's physical abuse had continued even after entry of the DVO and that he had threatened to continue the abuse. She claimed the threat of a continued life of abuse pushed her beyond control.
On the basis of this evidence, Barbara's trial attorney urged the jury to find the defendant had not intentionally killed Valentin, because she was suffering from an extreme emotional disturbance. EED was defined in the jury instructions as:
. . . a temporary state of mind so enraged, inflamed[,] or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed or disturbed state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse thereof, the reasonableness of which is to be determined from the viewpoint of a person in the Defendant's situation under circumstances as the Defendant believed them to be.In her closing argument, Barbara's trial attorney strongly advocated to the jury that Barbara had experienced not one but three triggering events and that individually or cumulatively they had caused her to lose control.
Barbara takes issue with the method by which her trial attorney presented the EED defense, but no defendant is entitled to a perfect defense, merely an objectively reasonable one. Parrish, 272 S.W.3d at 168. Given the above-described efforts of Barbara's trial counsel to present the EED evidence and to persuade the jury that Barbara's actions were not intentional, we cannot say the trial performance was objectively unreasonable. We decline to second-guess trial counsel's decision-making process or tactics in her pursuit of Barbara's EED defense. Russell v. Commonwealth, 992 S.W.2d 871, 875 (Ky. App. 1999).
In the end, it appears the jury was simply not convinced that any of the three triggering events, or all cumulatively, was enough to put Barbara into an extremely disturbed emotional state so as to render her actions less than intentional. The verdict was the product of the evidence rather than trial counsel's alleged failure to adequately represent her client.
IV. Conclusion
Barbara has failed to demonstrate in any way that her trial counsel's performance was deficient and resulted in prejudice to her case. We affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda D. Bullock
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky