Opinion
NO. 2015-CA-000681-MR
01-13-2017
JAMAHLL TODD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jamahll Todd, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky J. Todd Henning Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE, BRIAN C. EDWARDS, JUDGE
ACTION NO. 11-CR-02827-001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND TAYLOR, JUDGES. KRAMER, CHIEF JUDGE: Jamahll Todd, pro se, appeals the Jefferson Circuit Court order denying his motion for post-conviction relief made pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. In his motion to the trial court, Todd made numerous allegations of ineffective assistance of trial counsel. The trial court denied Todd's motion without first conducting an evidentiary hearing. Upon review, we affirm.
In September of 2011, Louisville Metro Police received information from an anonymous informant regarding drugs being sold from 4341 Charlotte Ann Drive in Louisville, Kentucky, the location of Todd's Home Incarceration Program (HIP) placement. Independent police observation of the residence revealed several individuals entering the residence, staying for a short time, and leaving the residence—behavior police understand based on experience to be consistent with drug trafficking.
On September 19, 2011, police observed the occupants of a Dodge Charger enter the residence and leave shortly thereafter. Police followed the Charger and eventually pulled it over for a routine traffic violation. A search of the Charger and its passengers produced one ounce of cocaine. Based on the information the police had uncovered, a search warrant was obtained for the residence on Charlotte Ann Drive.
Upon entering the residence to execute the search warrant, police observed Todd running though the living room towards the rear of the residence. He was quickly apprehended in the basement near some discarded cocaine. The only other resident (and co-defendant), Stephanie Jarrard was found standing in the hallway of the residence near the bathroom. A search of the residence yielded nearly seven ounces of cocaine stored in different locations throughout the home, a bag of marijuana and codeine, and approximately $20,000 in cash. Additionally, a handgun was discovered on the living room couch underneath a pair of shorts.
Following a trial by jury, Todd was found guilty of trafficking in a controlled substance first degree—cocaine four grams or more while in the possession of a firearm, criminal possession of a forged instrument in the first degree, illegal possession of marijuana, and illegal possession of drug paraphernalia. In order to avoid classification as a violent felony offender, with its concomitant eighty-five percent parole eligibility, Todd entered a plea of guilty to possession of a handgun by a convicted felon and waived all appellate issues arising from a pre-trial suppression hearing and his jury trial. In exchange for his plea, Todd received a total of forty-years' imprisonment with parole eligibility after serving twenty percent of his sentence.
On February 12, 2014, Todd, pro se, moved the trial court for post-conviction relief pursuant to RCr 11.42. In his motion, Todd alleged that his trial attorney provided ineffective assistance. Without a hearing, the trial court denied Todd's motion finding that none of the issues raised rise to the level of ineffectiveness necessary to necessitate the convening of an evidentiary hearing. This appeal followed.
Further facts will be developed as necessary.
On appeal, Todd claims that the trial court erred when it did not grant him an evidentiary hearing on his numerous allegations of ineffective assistance of trial counsel. The standard to prove ineffective assistance places the burden on the Appellant to prove his legal representation fell below an objective standard of reasonableness. Taylor v. Commonwealth, 724 S.W.2d 223, 226 (Ky. App. 1986); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); see also McKinney v. Commonwealth, 445 S.W.2d 874 (Ky. 1969). In addition to showing that counsel's performance was deficient, the appellant must prove that the deficient performance prejudiced his defense.
When deciding a motion for relief from judgment and sentence under RCr 11.42, the court shall conduct an evidentiary hearing only when there is "a material issue of fact that cannot be determined on the face of the record." A hearing is unnecessary if the trial court, "determines that the allegations, even if true, would not be sufficient to invalidate the conviction." Wilson v. Commonwealth, 975 S.W.2d 901, 904-05 (Ky. 1998) (citing Brewster v. Commonwealth, 723 S.W.2d 863 (Ky. App. 1986)). Where an RCr 11.42 hearing is denied, appellate review is limited to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Todd first claims that he received ineffective assistance when his attorney "knowingly allowed [Todd] to falsely testify before the jury about . . . flushing the cocaine." At trial, Todd testified that after the police entered the residence he ran to the bathroom and flushed a bag of cocaine. He now claims that his testimony was not accurate and that his attorney convinced him to make this false statement to the jury.
Even taking Todd's allegation as true and constituting deficient performance, Todd cannot prove prejudice. For Todd to prove prejudice, he would need to show that but for counsel's alleged erroneous advice, he would not have taken the stand and perjured himself; and that absent his perjured testimony, the outcome of the trial would have been different. See Green v. Commonwealth, 475 S.W.3d 626, 629 (Ky. 2015) ("To succeed, a moving defendant must establish: (1) that counsel's performance fell below an objectively reasonable standard; and (2) that the performance gave rise to a reasonable probability of a different outcome). In other words, Todd would need to show that he reasonably relied on his counsel's erroneous advice and was prejudiced thereby. In order for Todd to show that he reasonably relied on his counsel's alleged advice to testify falsely, he would have to prove that absent that advice, he would not have perjured himself. Todd is unable to do this here.
Every witness in the Commonwealth takes an oath or affirmation prior to testifying, which provides notice of the duty to testify truthfully. Kentucky Rule of Evidence (KRE) 603. The record indicates that Todd took the oath; therefore, he cannot make a showing that he reasonably relied on trial counsel's alleged erroneous advice when he allegedly committed perjury. Any false statements made after Todd was put on notice of his duty to testify truthfully, were made knowingly, voluntarily, and of his own accord. The oath acted as a break in the causal connection between the alleged bad advice from his trial counsel and Todd's allegedly giving false testimony. Accordingly, the fact that Todd was put on notice that he had a duty to testify truthfully precludes him from raising a claim of ineffective assistance of counsel based on counsel's alleged advice to commit perjury.
Todd next alleges that his counsel was ineffective because "he failed to investigate the instances leading up to the finding of the nine millimeter Smith & Wesson pistol." He suggests that there is "discoverable documentary evidence that displayed [Appellant's co-defendant to be] in possession of the pistol and not found in the open." In his motion to the trial court he directs the court to a specific point in the trial video as proof that his co-defendant was "in actual possession of the firearm making Movant actually/factually innocent of all possession charges related to the gun."
Upon review, the portion of the trial video that Todd claims is proof that his co-defendant had actual physical possession of the handgun is merely a detective testifying that he found the weapon underneath Todd's co-defendant's shorts on the couch in an area from which Todd was seen running. This "discoverable documentary evidence" does not establish that Jarrard had actual physical possession of the handgun. Instead it established to the jury that Todd constructively possessed the handgun for purposes of the firearm enhancement. See Houston v. Commonwealth, 975 S.W.2d 925, 927 (Ky. 1998) (actual physical possession is not required for a jury to find that one has possession of a firearm for purposes of KRS 218A.992). Todd's attorney cannot be ineffective for failing to discover evidence that put Jarrard in actual physical possession of the firearm when that evidence does not exist. Beyond discovery of this so-called "discoverable documentary evidence," Todd has failed to allege any further steps his counsel could have taken regarding the firearm found at the residence or what evidence further investigation would have produced. Therefore, he has failed both prongs of Strickland regarding this claim.
Todd next claims that trial counsel failed to elicit from Detective Jeremy Ruoff testimony that Jarrard, not Todd, was seen flushing cocaine. At the grand jury proceeding, Detective Ruoff testified that upon entry to execute the search warrant Jarrard was observed running into a rear bathroom in an attempt to flush powdered cocaine. Todd complains that his attorney did not elicit this fact at trial in order to prove that Jarrard was "in actual possession and attempting to destroy evidence."
Todd was not prejudiced by counsel's failure to elicit testimony that Jarrard was in actual possession of some of the cocaine found at the scene. The drugs that Jarrard allegedly attempted to flush down the toilet were not the only drugs found in the house. Drugs were found in various areas throughout the home, including near where Todd was located after he fled. As noted earlier, Todd lived in the home. Our highest Court has held that "possession need not always be actual physical possession and that a defendant may be shown to have had constructive possession by establishing that the contraband involved was subject to his dominion and control." Rupard v. Commonwealth, 475 S.W.2d 473, 475 (Ky. 1971) (internal quotations omitted). The circumstances presented by the Commonwealth in this case—namely, that the residence was the location of Todd's HIP placement—supported a rational inference that Todd was in constructive possession of cocaine. The fact that Jarrard was in actual physical possession of some of cocaine does not negate that inference.
Todd next alleges that his counsel was ineffective for failing to effectively challenge and suppress all evidence seized in the case. This claim is conclusively refuted by the record. The record indicates that the trial court conducted a lengthy suppression hearing prior to trial at which defense counsel clearly attempted to have the evidence suppressed as fruits of an illegal search, but was unsuccessful. The trial court found that there was enough evidence to establish probable cause; and therefore, the search was legal. Todd does not allege anything trial counsel did or did not do in his attempt to have the evidence suppressed that fell below an objective standard of reasonableness. Counsel's inability to have the evidence suppressed does not amount to ineffective assistance of counsel.
Todd next claims that his trial counsel failed to challenge the authenticity of the Commonwealth's evidence. Specifically, he believes that a discrepancy existed between the testimony of Detective Ruoff and that of Forensic Scientist Jenna Britton. At trial, Detective Ruoff testified that the substance seized was crack cocaine, and Britton testified that she tested a powdery substance. Todd believes that his counsel rendered deficient performance by failing to highlight these discrepancies and failing to object to the introduction of the cocaine at trial. We disagree.
The record refutes Todd's claim that there were discrepancies between the testimonies of Detective Ruoff and Britton. Britton testified that she received an item of evidence for testing containing "hard white material," "powder," and "chunky off-white material." She further testified that the substances contained cocaine however no further testing was conducted to determine if the cocaine was in powder form or had been reduced to its base (crack) form. Clearly, Britton's testimony stating that she received "hard white material" is not inconsistent with Detective Ruoff's testimony that he seized crack from the residence. As such, counsel could not have been ineffective for failing to object to the introduction of the cocaine based on the inconsistent testimonies of Britton and Detective Ruoff regarding what form the cocaine was in when tested.
Todd next claims that he received "gross misadvice as to whether to accept or reject the plea offer." In his brief to this Court he does not elaborate on what misadvice he received; however, in his brief to the trial court, Todd claimed that his counsel erroneously made him believe that he could be convicted of a Class A felony when in fact he could only be convicted of a Class B felony. He claimed that he was prejudiced because he only pled guilty because he thought that he faced up to a maximum life sentence and would be classified as a violent offender, making him ineligible for parole until service of eighty-five percent of his sentence. The record refutes Todd's claim. Trial counsel was not deficient regarding his advice because his counsel's advice was correct.
Todd was convicted of trafficking in a controlled substance over four grams while in possession of a firearm. Under KRS 218A.1412 a person traffics in a controlled substance over four grams is guilty of a Class B felony for his second or subsequent offense. Todd, being previously convicted of trafficking in a controlled substance, was guilty of a Class B felony. Additionally, KRS 218A.992 enhances a penalty one class more severely for any person who violates KRS 218A.1412 while in the possession of a firearm. Our Supreme Court in Mills v. Department of Corrections Offender Information Services, 438 S.W.3d 328 (Ky. 2014), recently explained that the firearm enhancement statute operates to enhance the underlying offense, qualifying a defendant for violent-offender classification. Todd was found guilty of violating KRS 281A.1412 for the second or subsequent time while in possession of a firearm. Thus, Todd's conviction would have been enhanced to a Class A felony had he proceeded to the sentencing phase of trial. The penalty for a Class A felony is not less than twenty nor more than fifty years, or life imprisonment. KRS 532.070. Under KRS 439.3401 Class A felons are considered violent offenders subject to eighty-five percent parole eligibility. Clearly Todd was properly advised of the possible results of continuing forward to the sentencing phase. As such, there is no basis to conclude that counsel was ineffective for "trick[ing] [Todd] upon misadvice" into pleading guilty.
Jefferson Circuit Court Action No. 99-CR-002094.
Finally, Todd argues that because he was "tricked" and his plea was involuntary, he should be allowed a "belated appeal" in order to raise issues that he could have raised on direct appeal. We disagree. Todd was appropriately advised of the sentencing possibilities should he proceed to trial, and he voluntarily waived his right to appeal by pleading guilty. The plea was a strategic decision made to allow Todd to be eligible for parole sooner than he would be had he instead been sentenced by a jury. Todd does not allege that he was threatened or coerced in any way, and a review of the video record of the plea shows that the plea was entered knowingly and voluntarily. Todd's argument is meritless.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jamahll Todd, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky J. Todd Henning
Assistant Attorney General
Frankfort, Kentucky