Opinion
NO. 2012-CA-001363-MR
03-07-2014
AARON J. WHALEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Aaron J. Whaley, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 07-CR-00002
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. TAYLOR, JUDGE: Aaron J. Whaley brings this pro se appeal from a June 21, 2012, Order of the Christian Circuit Court denying his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 to vacate his judgment and sentence of imprisonment without an evidentiary hearing. We affirm.
Whaley was found guilty upon a jury verdict of two counts of murder, two counts of first-degree wanton endangerment, one count of fourth-degree assault, and with being a second-degree persistent felony offender. By judgment entered June 3, 2009, Whaley was sentenced to life in prison. Whaley then appealed the June 3, 2009, judgment directly to the Supreme Court of Kentucky (Appeal No. 2009-SC-000516-MR). By Opinion rendered April 21, 2011, the Supreme Court affirmed Whaley's conviction. Thereafter, Whaley filed the instant motion pursuant to RCr 11.42 claiming ineffective assistance of counsel. By Order entered June 21, 2012, the circuit court denied Whaley's motion without an evidentiary hearing. This appeal follows.
Upon review of a trial court's denial of an RCr 11.42 motion without an evidentiary hearing, we must initially determine whether there exists a "material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001). If a material issue of fact exists that cannot be conclusively resolved upon the face of the record, the circuit court must grant the motion for an evidentiary hearing. Id. In order to prevail upon a claim for ineffective assistance of counsel, it must be demonstrated that (1) trial counsel's performance was so deficient it fell outside the range of professionally competent assistance, and (2) there exists a reasonable probability that the verdict would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Whaley initially contends that trial counsel was ineffective for failing to investigate and interview prospective witnesses. Whaley's contention is general except for one allegation specifically concerning Lashonda Thomas. As to the general allegations, Whaley does not specifically identify what trial counsel should have investigated or what such investigation would have revealed. As to such general allegations, Whaley failed to aver facts with any specificity and, thus, failed to set forth a basis for relief. See Lucas v. Com., 465 S.W.2d 267 (Ky. 1971). As to his specific allegation, Whaley believes trial counsel should have called Lashonda Thomas as a witness and alleges that Thomas would have testified that one of the victims was armed when Whaley shot him.
In this case, evidence was introduced at trial demonstrating that both murder victims were unarmed when Whaley shot them. Eyewitness testimony and physical evidence were both introduced to demonstrate that the murder victims were unarmed. Considering the amount of evidence amassed against Whaley at trial, we do not believe Whaley was prejudiced by counsel's failure to call Thomas as a witness. See Brewster v. Com., 723 S.W.2d 863 (Ky. App. 1986). As to trial counsel's alleged failure to conduct an investigation, we do not believe the circuit court erred by denying Whaley's claim for ineffective assistance based upon counsel's failure to investigate.
Whaley next asserts that trial counsel was ineffective for not attempting to have Latasha Smith disqualified as a witness pursuant to Kentucky Rules of Evidence (KRE) 601. Whaley asserts that Smith lied during her testimony at trial.
KRE 601 sets forth the minimum qualifications a person must satisfy to be determined competent to testify as a witness at trial. KRE 601 provides:
(a) General. Every person is competent to be a witness except as otherwise provided in these rules or by statute.
(b) Minimal qualifications. A person is disqualified to testify as a witness if the trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.
Whaley essentially argues that Smith's trial testimony was untruthful; therefore, counsel should have moved to have Smith disqualified under KRE 601. KRE 601, however, is not the appropriate mechanism for "disqualifying" Smith as a witness for allegedly being untruthful. KRE 601 merely addresses the minimum competency requirements for a witness including the minimum capacity necessary to testify at trial. The truthfulness or veracity of a witness' testimony is not addressed by KRE 601. Rather, the truthfulness or veracity of witness testimony is a matter to be determined by the jury. Moss v. Com., 949 S.W.2d 579 (Ky. 1997). Thus, we do not believe trial counsel was ineffective for failing to have Smith disqualified as a witness under KRE 601.
Whaley next asserts that trial counsel was ineffective for failing to have Brittney Caldwell disqualified as a witness. Whaley argues that Caldwell lied to police about what she witnessed and was under the influence of drugs and/or alcohol at the time of the incident and when interviewed by police.
In this case, trial counsel cross-examined Caldwell and elicited an admission upon cross-examination that she had not actually witnessed the shooting despite her previous statements to the contrary. Trial counsel also elicited testimony from Caldwell that she had been smoking marijuana the night of the shooting and was impaired by alcohol during her interview with police. Thus, we believe trial counsel thoroughly cross-examined Caldwell and effectively impeached Caldwell as a witness at trial. Therefore, we do not believe trial counsel was ineffective for failing to have Caldwell "disqualified as a witness."
Whaley next argues that trial counsel erred by failing to request recusal of the trial judge. Specifically, Whaley asserts that the trial judge possessed prior knowledge of facts related to the case as he signed the warrant for Whaley's arrest. Whaley asserts that the warrant signed by the trial judge contained information relevant to potential witness testimony and that trial counsel should have moved to have the judge recuse.
Recusal of a judge is governed by Kentucky Revised Statutes (KRS) 26A.015. Pursuant to subsection 2 of KRS 26A.015, recusal is required where a judge has "a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts . . . or has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(a) and (e). And, the burden is upon the moving party to demonstrate sufficient grounds for recusal. Stopher v. Com., 57 S.W.3d 787 (Ky. 2001). The Kentucky Supreme Court explained the burden upon the moving party as follows:
The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts "of a character calculated seriously to impair the judge's impartiality and sway his judgment." Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530 (1962); see also Johnson v. Ducobu, 258 S.W.2d 509 (Ky. 1953). The mere belief that the judge will not afford a fair and impartial trial in not sufficient grounds for recusal. Webb v. Commonwealth, 904 S.W.2d 226 (Ky. 1995). . . .Stopher, 57 S.W.3d at 794-95. Furthermore, it has been held that KRS 26A.015 does not require recusal where a judge merely obtains information from "earlier participation in the same case." Marlowe v. Com., 709 S.W.2d 424, 428 (Ky. 1986).
In this case, Whaley asserts that the trial judge obtained information about the case when he signed the arrest warrant and that trial counsel was ineffective for not moving for recusal. However, Whaley failed to demonstrate any actual bias or impartiality on the part of the trial judge and mere speculation is insufficient. See id. And, any alleged information would have been transmitted by a judge's participation in the case. Thus, we do not believe the circuit court erred by denying Whaley's claim that trial counsel was ineffective for failing to move for the judge's recusal.
Whaley also maintains that trial counsel was ineffective for failing to object to the Commonwealth's calling Dr. Greg Perri to testify at trial. Perri is the psychiatrist that examined Whaley upon trial counsel's request. Perri was to evaluate whether Whaley suffered from extreme emotional disturbance (EED) at the time of the shootings. Perri's opinion was that Whaley did not suffer from EED; however, Perri believed Whaley showed characteristics of hyper-vigilance. Trial counsel was aware of Perri's opinion and elected only to call Perri as part of counsel's strategy to mitigate Whaley's punishment. Trial counsel's decision to call Perri was based upon counsel's belief that it would be more beneficial to have an expert testify that Whaley had a mental health issue to mitigate punishment. As Whaley was facing two counts of murder, trial counsel's attempt to mitigate punishment was reasonable trial strategy. And, decisions made by counsel as trial strategy will not be disturbed pursuant to RCr 11.42. See Vaughn v. Com., 258 S.W.3d 435 (Ky. App. 2008). We, thus, view this argument to be without merit.
Whaley next contends that trial counsel was ineffective for advising him not to testify on his own behalf at trial. Whaley asserts that he initially agreed with counsel's advice not to testify at trial. However, Whaley alleges that after hearing certain trial testimony against him, he expressed a desire to testify and tell the jury his version of the events. It is undisputed that Whaley did not directly assert his right to testify to the trial court.
The decision regarding whether a defendant should testify on his own behalf is considered a question of trial strategy. Vaughn, 258 S.W.3d 435. In this instance, trial counsel wanted to prevent testimony regarding Whaley's prior felony conviction from being heard by the jury. And, trial counsel called another witness to testify as to Whaley's version of the events surrounding the shootings. Therefore, we do not believe that trial counsel was deficient for advising Whaley to forego his right to testify given the likelihood of incriminating testimony being introduced. Trial counsel's advice is reasonable given that another witness testified as to Whaley's version of the events. Therefore, we do not believe that the trial court erred by denying Whaley's RCr 11.42 motion upon his claim that trial counsel advised him not to testify.
Whaley additionally maintains that "trial counsel was ineffective for failing to file a pretrial motion for discovery and later accusing the Commonwealth of violating the rules of discovery." Whaley's Brief at 18. Whaley's contention on this issue is difficult to discern, but Whaley apparently believes that in the absence of a motion for discovery, a discovery violation cannot exist.
Relevant to this issue, the Commonwealth called Latasha Smith to testify. Over objection by trial counsel, Smith was permitted to testify that Whaley told her he intended to kill one of the victims. Trial counsel was not aware of these statements before trial. After much deliberation and several in-chamber discussions, the trial court determined that the Commonwealth was unaware of these "surprise" statements and that no discovery violation occurred. The discovery issue was also reviewed by the Kentucky Supreme Court and no error was found. Consequently, we do not believe trial counsel was ineffective for failing to file a pretrial motion for discovery.
Whaley also asserts that trial counsel was ineffective for failing to "object to the use of the Holy Bible as a tool to bolster the credibility of witnesses." Whaley's Brief at 12. Whaley specifically argues that witnesses taking the oath "were required to place their hands on a Holy Bible and swear to God to be truthful." Whaley's Brief at 11.
KRE 603 requires that every witness shall, before testifying, declare that they will testify truthfully, "by oath or affirmation." Thus, we perceive no error in the circuit court's use of the Bible for swearing in witnesses. And, we do not believe trial counsel was ineffective for failing to object to such use.
Whaley further argues that trial counsel was ineffective for failing to object to the admission of prejudicial evidence. Specifically, Whaley asserts that trial counsel failed to object to the admission of cocaine found at the scene of the second murder. Whaley argues that although the prosecutor did not attempt to connect the cocaine to him, the jury may have inferred the cocaine was connected to the murder.
In this case, the Commonwealth introduced a plethora of evidence to prove that Whaley murdered two people and attempted to murder a third. We harbor grave doubt that the introduction of cocaine found at the scene of the second murder resulted in any prejudice to him. Thus, we believe Whaley's contention is without merit.
Whaley also asserts that trial counsel was ineffective for failing to advise him that the Commonwealth offered a second plea agreement of forty-five-years' imprisonment. To prevail upon this claim, Whaley must demonstrate that counsel's performance was deficient and that but for counsel's error the result would have been different.
In this case, even if we assume that counsel did not convey the plea offer, and therefore rendered deficient performance, Whaley's contention would still fail because he cannot demonstrate the outcome would have been different. In Whaley's RCr 11.42 motion, he admits that he "would have been reluctant to accept" the Commonwealth's offer before the trial testimony of Latasha Smith. Smith testified on February 19, 2009. Whaley failed to recognize that the Commonwealth's offer expired on February 9, 2009, some ten days before he admittedly would have considered accepting it. Therefore, we reject this contention of error.
Whaley additionally argues that trial counsel was ineffective for failing to object to the use of leg restraints during trial. Whaley acknowledges that the restraints were underneath his clothes. Whaley also remained seated behind the table for counsel during trial. And, there is no proof or even the allegation that the jury was aware of the restraints. Without same, no prejudice resulted.
Whaley also contends that he received ineffective assistance of appellate counsel. Whaley's entire argument on this issue is as follows:
On direct appeal appointed DPA counsel presented the same argument concerning the potential discovery violation alleged by trial counsel.Whaley's Brief at 20. As we are unable to discern Whaley's argument, we consider same meritless.
Whaley finally asserts that the circuit court erred by accepting the Commonwealth's untimely response to his RCr 11.42 motion, by denying Whaley's motion for default judgment, and by relying upon affidavits of trial counsel as grounds for denying his RCr 11.42 motion. Allegations of error by the trial court are not properly considered upon a motion for ineffective assistance of counsel made pursuant to RCr 11.42 and will not be reviewed.
In sum, we hold that Whaley was not entitled to an evidentiary hearing as his claims were refuted upon the face of the record and that the circuit court properly denied his RCr 11.42 motion as being without merit.
For the foregoing reasons, the Order of the Christian Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Aaron J. Whaley, Pro Se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky