Opinion
NO. 2010-CA-001449-MR
07-27-2012
NATHANIEL WOOD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Nathaniel Wood, Pro se Green River Correction Complex Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 01-CR-00059
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND LAMBERT, JUDGES. ACREE, CHIEF JUDGE: The issue before us is whether the Barren Circuit Court erred in denying Appellant Nathaniel Wood's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate, set aside, or correct the judgment against him due to ineffective assistance of counsel. Finding no error, we affirm.
I. Facts and Procedure
For our recitation of the factual background underlying this matter, we adopt the statement of facts as set forth by the Supreme Court in its opinion addressing Wood's direct appeal:
On December 29, 2000, Wood assaulted his ex-girlfriend, Anna Jones, in her house. A hospital examination revealed that she had suffered bruising to her ribs and a cut lip. Later that same day, Ms. Jones petitioned the district court for an emergency protective order (EPO). The court issued the order and scheduled an EPO hearing for January 8, 2001. Additionally, criminal charges were brought against Wood based on the assault at Jones's home, including a charge of assault in the fourth degree. He was arrested and released on December 29. As a condition of his bond, he was ordered to have no contact with Ms. Jones and to refrain from any communication with her, either directly or indirectly.Wood v. Commonwealth, 178 S.W.3d 500, 505 (Ky. 2005).
Some days later, on January 3, 2001, Wood encountered Ms. Jones as she was driving on Broadway Street in Glasgow. Ms. Jones's friend, Fred Tisdale, was a passenger in her vehicle. Wood cut off her vehicle at an approximate forty-five degree angle, effectively blocking her path. According to Mr. Tisdale's testimony, Wood exited his vehicle and started to yell and waive a handgun while approaching Ms. Jones's vehicle. Wood then fired the weapon through the driver's side window; Ms. Jones was shot and went silent. Mr. Tisdale, trapped because the passenger door was jammed, used the butt of his own gun to escape out of the driver's side window. When he escaped, he found Wood crouched by the driver's side rear door with his gun drawn. A struggle ensued, during which Mr. Tisdale was shot in the forearm as Wood attempted to pull Ms. Jones from the vehicle. Also, at some point during the altercation, Wood was shot once in the leg and twice in the abdomen.
Mr. Tisdale, believing that Ms. Jones was dead and fearing for his own life, ran to a nearby office to summon help. Meanwhile, Wood succeeded in removing Ms. Jones from the driver's seat and pulling her into his own vehicle. He drove away with her legs hanging out of the back driver's side door and dragging on the ground. Responding to several 911 calls from the numerous bystanders who had witnessed this scene, law enforcement vehicles began pursuing Wood. Eventually, he pulled into the yard of Ms. Burldean Summers and ran into the home, leaving Ms. Jones's limp body in his vehicle, her feet still hanging out of the back door. Ms. Summers apparently thought Wood had been in some kind of accident because he was bleeding, and showed him to the bathroom. When the police arrived, though, Wood grabbed Ms. Summers and locked both of them in a spare bedroom. They remained barricaded in the home until police negotiated Ms. Summers' release three hours later. The standoff with Wood continued through the night and into the next day, whereupon the police began pumping gas into Ms. Summers' home to force Wood's exit. Finally, over twenty-four hours after he had arrived at the house, the police were able to enter the house and Woods was physically removed and arrested.
The Barren Circuit Court Grand Jury returned an indictment charging Wood with capital murder, capital kidnapping, kidnapping, possession of a handgun by a convicted felon, possession of a firearm by a convicted felon, first-degree burglary, first-degree assault, fourth-degree assault, violation of a protective order, trafficking in marijuana (with a weapon enhancement), and for being a persistent felony offender in the first degree. Wood proceeded to trial. A jury found him guilty of murder and capital kidnapping of Jones, kidnapping of Summers, first-degree criminal trespass, second-degree assault of Tisdale, violating a protective order, and being a persistent felony offender. The Commonwealth requested the death penalty based on the aggravating factors of the EPO, the bond conditions, and Wood's criminal history. The jury rejected the Commonwealth's request, instead recommending a sentence of life without the benefit of probation or parole for both the murder and kidnapping of Jones, twenty years for the kidnapping of Summers, five years for the assault of Tisdale, twelve months for the criminal trespass, and twelve months for the violation of the protective order. The circuit court sentenced Wood consistent therewith. Wood filed a direct appeal to the Supreme Court as a matter of right. The Supreme Court affirmed the conviction. See Wood, 178 S.W.3d at 500.
Wood filed his RCr 11.42 motion on June 23, 2008. Following several counsel changes and requests for extensions of time, the circuit court conducted an evidentiary hearing on September 18, 2009. At the hearing, Wood and his trial counsel testified, as did Wood's mother, Irene Hill, and Wood's former parole officer, Julie Adkins. Wood testified that, on the morning of January 3, 2001, Jones called Hill's home asking to speak to Wood; with Wood on the line, Jones demanded money. Wood ended the conversation, and immediately called Adkins to report Jones' telephone call and demand. Wood then proceeded to run errands. While in town, Wood inadvertently ran into Jones. Wood testified that Jones again demanded money; he claimed Jones threatened that, if he refused to pay, she was going to accuse him of kicking in her brother's door and that would send him back to prison. Wood returned to Hill's home, and again called his parole officer, Adkins. Adkins advised Wood to report Jones' allegations to the county attorney. Wood testified that he called the county attorney, but was told the county attorney was unavailable.
Adkins testified, verifying that Wood called her twice on the morning of January 3rd. Adkins testified that, during the first conversation, Wood was "agitated but informative," and during the second conversation, Wood was a "bit more agitated." Adkins also verified that she instructed Wood and his mother, Hill, to speak with the county attorney concerning Jones' allegation, and requested that Wood come to her office later that afternoon to discuss an appropriate course of action. Hill verified that Jones called Wood on the morning in question. Hill testified that, after the phone call, Wood was "pretty calm." However, when Wood returned home after unexpectedly running into Jones, Hill testified that Wood was "upset." Hill also verified that Wood spoke to Adkins on two occasions and called the county attorney's office.
Following the hearing, the circuit court denied Wood's motion. This appeal followed.
Wood argued before the circuit court that his trial counsel was ineffective in failing to investigate and generate an extreme emotional disturbance defense, and failing to investigate and produce phone records confirming Wood's testimony that Jones called him on the morning of January 3rd. Wood also asserts the cumulative effect of trial counsel's errors deprived him of effective assistance of counsel. At the completion of the hearing, the circuit court denied Wood's CR 11.42 motion.
On appeal, Wood presents the same arguments to this Court. Like the circuit court, we are not persuaded by those arguments.
Wood is, of course, entitled to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 688, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, Wood must establish his "counsel's performance was deficient" and, but for that deficiency, the outcome of his trial "would have been different." Id. at 687, 694, 104 S.Ct. at 2064, 2068.
In assessing whether counsel's performance was deficient, we must ascertain, utilizing an objective standard of reasonableness, whether the alleged acts or omissions fell outside the wide range of prevailing professional norms. Id. at 688-89, 104 S.Ct. at 2065. That is, Wood must establish that his trial counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Wood bears the burden of identifying the specific acts or omissions alleged "not to have been the result of reasonable professional judgment" and proving those acts or omissions, in fact, constitute deficient performance. See id. at 690, 104 S.Ct. at 2066.
With respect to the second prong under Strickland, Wood must establish trial counsel's "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. "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." Id.
Wood first argues he received ineffective assistance of counsel because his trial attorney failed to investigate and present to the jury a cohesive extreme emotional disturbance defense. Specifically, Wood claims there were several emotion-triggering events, the cumulative effect of which resulted in his acting under extreme emotional disturbance. Trial counsel erred, Wood claims, in failing to explain this to the jury. We disagree.
In providing effective assistance, counsel has a duty to conduct a reasonable investigation, including investigation of defenses to the charges. See Wiggins v. Smith, 539 U.S. 510, 521-23, 123 S.Ct. 2527, 2535-36, 156 L. Ed. 2d 471 (2003). Hence, we focus our inquiry on trial counsel's decision not to pursue a particular defense and whether that decision was objectively reasonable in light of all the circumstances. We do so while "applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Id. at 690, 104 S.Ct. at 2066. Accordingly, if counsel's decision not to pursue a defense was tactical, it is afforded "a strong presumption of correctness and the inquiry is generally at an end." Hodge, 68 S.W.3d at 344 (citation omitted); Moore v. Commonwealth, 983 S.W.2d 479, 485 (Ky. 1998) (explaining counsel's strategic trial decisions will generally not be second-guessed by hindsight). "[I]f the decision was not tactical, then the court must evaluate whether there was a reasonable probability that, but for the deficiency, the result would have been different." Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007).
At Wood's evidentiary hearing, trial counsel testified that he discussed the defense of extreme emotional disturbance with Wood on several occasions, recommending the defense "as a good theory to pursue." However, trial counsel claimed Wood was resistant to utilizing extreme emotional disturbance as the defense's theory of the case. Instead, Wood was adamant he acted only in self-defense. To that end, Wood sought complete exoneration through a not guilty verdict, not a guilty verdict for a lesser crime. See KRS 507.020(1)(a); KRS 507.030; Holbrook v. Commonwealth, 813 S.W.2d 811, 815 (Ky. 1991), overruled on other grounds by Elliott v. Commonwealth, 976 S.W.2d 416 (Ky. 1998) ("Thus, if [a] jury finds that [a defendant] committed the intentional act of murder, but finds the existence of extreme emotional disturbance, then the crime must be reduced [from murder] to manslaughter in the first degree."). Trial counsel further testified that he chose not to clarify the elements of extreme emotional disturbance for the jury because his training and experience taught him juries were not persuaded by alternative defense theories. Trial counsel explained that Wood testified he happened upon Jones and acted only in self-defense when he realized Jones and Tisdale possessed weapons. Wood's testimony, trial counsel concluded, was inconsistent with the defense of extreme emotional disturbance. As a result, trial counsel chose to emphasize the self-defense strategy that was consistent with Wood's testimony.
Notwithstanding his tactical choice in this regard, Wood's counsel proactively sought, vigorously fought for, and ultimately was allowed to submit, an extreme emotional disturbance jury instruction. Additionally, Wood, Hill, and Adkins all testified at trial concerning Jones' telephone call and Wood's emotional state on the morning of January 3rd. Accordingly, the jury received evidence concerning the "triggering events" Wood claims gave rise to his state of extreme emotional disturbance. As Wood frequently repeats, it is for a jury to decide whether a triggering event has occurred and whether a defendant acted under the influence of extreme emotional disturbance. Holland v. Commonwealth, 114 S.W.3d 792, 807 (Ky. 2003). Wood's trial counsel took extra precautionary steps to ensure the jury was afforded that opportunity.
In sum, considering Wood's adamant refusal to rest his case on an extreme emotional disturbance theory, and Wood's own trial testimony that he acted in self-defense, we agree with the circuit court that counsel's decision not to pursue the defense more vigorously was based on sound trial strategy and was reasonable under the circumstances. For that reason, Wood has failed to show his trial counsel's performance was deficient.
Wood next asserts his trial counsel was ineffective for failing to investigate and obtain phone records to bolster his testimony that Jones called him on the morning of January 3rd. Specifically, Wood claims "the prosecution vehemently contested [his] claims that [Jones] had called and harassed him several times on the date of the homicide. And, without proof [of telephone records] supporting his claims, the prosecution was able to cast [Wood] as a liar." We again point out that, at trial, Wood and Hill both testified that Jones called Wood on the morning of January 3rd. Thus, Hill's testimony clearly corroborated Wood's testimony on this issue. Affording trial counsel's tactical choice the strong presumption of correctness it is due, we simply cannot conclude that counsel's decision not to obtain and offer phone records to corroborate two witnesses' sworn testimony fell outside the wide range of prevailing professional norms. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Therefore, that decision was not unreasonable. Wood again has failed to show his trial counsel's performance was deficient.
Finally, Wood advocates that cumulative error occurred, thereby depriving him of his right to effective assistance of counsel and a fair trial. Cumulative error "is the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The doctrine of cumulative error is only invoked, however, "where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id. Here, as we have found no error in the claims raised by Wood - even harmless errors - there are simply no errors which may ultimately compound into a cumulative error basis for reversal of the conviction. See McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986) ("In view of the fact that the individual allegations have no merit, they can have no cumulative value."). Furnish v. Commonwealth, 267 S.W.3d 656, 668 (Ky. 2007).
For the foregoing reasons, the Barren Circuit Court's June 18, 2010 order denying Wood's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Nathaniel Wood, Pro se
Green River Correction Complex
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David B. Abner
Assistant Attorney General
Frankfort, Kentucky