Opinion
NO. 2017-CA-000552-MR
03-27-2020
ISMAEEL K. AL KINI APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ismaeel K. Al Kini, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General James Havey Assistant Attorney General Frankfort, Kentucky,
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 11-CR-000731 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. ACREE, JUDGE: Appellant, Ismaeel Al Kini, appeals pro se from the October 17, 2016, order of the Jefferson Circuit Court denying his motion pursuant to RCr 11.42 claiming his case was prejudiced by the ineffective assistance of his counsel. We affirm.
Kentucky Rules of Criminal Procedure.
FACTS AND PROCEDURES
In 2013, a jury found Al Kini guilty of criminal attempt to commit murder and first-degree burglary and sentenced him to two consecutive twenty-year terms in prison. The Kentucky Supreme Court succinctly outlined the facts in its opinion affirming his direct appeal. See Al Kini v. Commonwealth, No. 2014-SC-000171-MR, 2015 Ky. Unpub. LEXIS 72 (Ky. Sept. 24, 2015) (hereafter Al Kini I). We relate those facts here.
The Supreme Court's opinion in this case is not found on Westlaw or in its reporter volumes. See Kentucky Rules of Civil Procedure (CR) 76.28(4)(b) ("The court rendering an opinion that is to be published shall provide a copy of it forthwith to the reporter for West Publishing Company. Except for those that are not to be published, opinions of an appellate court shall be released for publication by its clerk.").
Al Kini and Rasha Al Shafey Hussien had a tumultuous marriage, punctuated by domestic abuse and abandonment, culminating in the institution of divorce proceedings in early 2010. On January 30, 2011, Al Kini traveled to his estranged wife's apartment under the guise of dropping off the couple's three children. Hussien greeted the children and let them inside the apartment, locking the door behind her. The custody order was modified several days earlier to allow Hussien joint custody of the children. Mere minutes after the children arrived, Al Kini knocked on Hussien's door, explaining that their eldest son had forgotten his school clothes in Al Kini's car. Hussien did not open the door for Al Kini, but instead sent her son outside to retrieve the clothes. Al Kini then directed the boy to knock on the front door and tell his mother that he was alone, when in fact Al Kini waited by the doorway, out of view, armed with a kitchen knife. When Hussien opened the door, Al Kini forced his way into the apartment. He stabbed Hussien repeatedly in her chest and back. Hussien's hands and fingers were cut as she tried to wrest the knife from Al Kini. Neighbors heard Hussien and the children's screams and called 911. One neighbor followed Al Kini to his car and recorded his license plate number. Hussien's eldest son identified Al Kini as the perpetrator to a 911 operator.
Hussien was transported by ambulance to the emergency room at the University of Louisville Hospital. Treating physicians observed two penetrating wounds to her chest and back, as well as injuries to her right hand. She was intubated, and chest tubes were inserted to drain the blood from her wounds. She suffered a collapsed lung and an extreme drop in blood pressure, for which she was sedated and closely monitored. The injuries to her right hand required corrective surgery and six-months of physical therapy. Despite these efforts, Hussien never regained full use of her right hand.
Meanwhile, Al Kini fled the city. The Louisville Police department launched a two-week search for Al Kini, to no avail. Law enforcement agencies in Pittsburgh and Detroit (where Al Kini formerly resided) aided in the search. Al Kini remained at large for a year and was ultimately captured at a border crossing in Nogales, Arizona.
Al Kini's trial commenced in December 2013. He called no witnesses and presented no evidence, aside from what was elicited during cross-examination of the Commonwealth's witnesses. The trial court directed a verdict in favor of Al Kini on a tampering with physical evidence charge. The jury found Al Kini guilty of criminal attempt to commit murder and burglary in the first degree, fixing his sentence at two consecutive twenty-year prison terms. The trial court sentenced Al Kini in accordance with the jury's recommendation.
Al Kini filed a motion to vacate, set aside, or correct his sentence pursuant to RCr 11.42 and the Kentucky and United States Constitutions. He alleged four instances in which counsel rendered ineffective assistance of counsel: first, by counsel's failure to receive adequate notice and engage in proper preparation for trial; second, by ineffectively questioning the venire's potential biases; third, by failing to accept the trial court's offer of an admonition with regard to statements concerning a protective order; and fourth, by failing to request an additional remedy following the trial court's admonition regarding a previous verbal altercation.
On October 17, 2016, the trial court entered an order denying his motions without conducting an evidentiary hearing. Al Kini immediately filed this appeal.
STANDARD OF REVIEW
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Under this standard, the movant must first prove that his trial counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064. To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment[.]" Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
Second, the movant must prove that counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish prejudice, the movant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S. Ct. at 2065. Id. We must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
We review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am. Jur. 2d Appellate Review § 695 (1995)). We review this matter in the light of the foregoing.
ANALYSIS
We examine each claim by Al Kini to determine whether performance by counsel was deficient and if that deficient performance prejudiced the defense. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Al Kini frames all his arguments as abuses by the trial court. To the extent any claimed trial court error originated in his trial for the underlying offenses, it should have been raised in the direct appeal and we will not address it here.
Culling his real arguments from his brief, we address only the following claims:
1. Counsel was ineffective by agreeing to represent him the day before trial and failing to obtain a continuance;
2. Counsel failed to adequately conduct voir dire to determine if the venire could set aside cultural biases;
3. Counsel failed to accept the trial court's offer to admonish jury after testimony that Al Kini's victim had sought and received a protective order in another jurisdiction;
4. Counsel failed to seek additional remedy of mistrial after the trial court admonished the jury to disregard prejudicial testimony that Al Kini allegedly attacked his victim prior to the night of the attack for which he was convicted.
Claim 1.: Counsel agreed to represent him the day before scheduled trial date.
Al Kini's original counsel from the Department of Public Advocacy (DPA) was appointed to represent him on February 15, 2012. The trial court set the initial trial date for October 2, 2012. Original DPA counsel left the Department and substitute counsel, Michael Lemke, was appointed on September 19, 2012. Al Kini requested and received three continuances, and the trial did not actually commence until December 17, 2013.
The day before trial, Al Kini engaged the services of private counsel who move the trial court to enter his appearance, conditioned on obtaining a fourth continuance. The court declined the condition and said trial would commence as scheduled. Michael Lemke who had been appointed to represent Al Kini fourteen months earlier represented him during the trial.
Al Kini claims his counsel was ineffective because he agreed to take the case without adequately preparing and without obtaining a continuance. There is no merit in the argument.
This claim of counsel ineffectiveness is, in fact, a collateral attack on the trial court for failing to grant a continuance. The Supreme Court said: "Had Al Kini desired to retain new counsel, he should have made such arrangements at the time of his third continuance request when Al Kini first complained of disagreements with Attorney Lemke over trial strategy. Finally, Al Kini has failed to produce any evidence of prejudice as a result of the trial court's denial of the continuance." Al Kini I, at *5 (footnote omitted).
We reject this ineffective assistance claim for the same reasons. The lawyer representing Al Kini at trial had been representing him for the previous 14 months. There is no cognizable claim of ineffective assistance under these facts. Claim 2.: Counsel failed to adequately conduct voir dire to determine bias.
When Al Kini presented his ineffective assistance of counsel claims to the circuit court, he said his counsel failed to ask the right questions that would have exposed potential juror bias. He presents a different question to this Court.
In this reviewing Court, he claims:
The Trial Court abused its discretion . . . by opining that it determined that the cultural bias existed and that the Court was concerned on how to handle it and decided to "break for lunch". The Court breaking for lunch and excusing the panel after the issue was brought up was egregious in and of itself.He then generally refers to the fact that the United States has been at war in his home country of Iraq, that American media and culture generally has slandered the Muslim community in such a way that this "leads to an automatic bias by [i.e., because] the Appellant being an Iraqi Citizen."
This alleged trial court error was addressed by the Supreme Court which stated:
Al Kini now asserts that the trial court's statement to the jury erroneously foreclosed his opportunity to question the panel about potential biases towards Muslims and people of Arabic decent. This complaint is unfounded. Despite possessing the clear authority to
limit voir dire when necessary, see Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005), the trial court did not disallow any of defense counsel's inquiries, nor did it require defense counsel to cease or curtail his questioning on the subject of cultural bias. In fact, Al Kini's counsel continued to question the panel members as to cultural biases without any interference from the trial court.Al Kini I, at * 7-8.
Furthermore, the trial court's statement did not unduly influence the venire to Al Kini's detriment. The question of cultural bias, and specifically, the question of whether gender disparities exist in other cultures, was clearly raised by Al Kini's counsel. The trial court's statement to the panel encouraging them to consider whether any cultural biases could be set aside was, in essence, an articulation of the rule set forth in RCr 9.36, mandating that a prospective juror who cannot render a "fair and impartial verdict on the evidence . . . shall be excused as not qualified." The trial court did not improperly pressure the panel to answer questions in any particular way. Cf. Jackson v. Commonwealth, 392 S.W.3d 907 (Ky. 2013). If anything, the trial court encouraged the panel to consider carefully their ability to remain impartial in light of cultural biases that may or may not exist. The onus was on Al Kini's counsel to extract and assess each individual panel member's bias. While the trial court's question could have perhaps been more carefully worded, neither the question nor the handling of this difficult issue in any way constituted palpable error under RCr 10.26.
Again, to the extent Al Kini is actually claiming trial court error, we reject it as beyond the scope of this review. To the extent he presents a different question to this Court than he presented to the circuit court, it is unpreserved and we need not consider it further. However, the Supreme Court's opinion makes it clear that Al Kini's counsel did direct questions to the jurors respecting this very question of cultural bias. Al Kini fails to tell this Court what questions might have been asked that were not and, because they were not asked, prejudiced him.
We reject this claim of ineffective assistance of counsel.
3.: Counsel failed to accept the trial court's offer to admonish jury.
Al Kini argues counsel acted deficiently in failing to accept the trial court's offer to admonish the jury regarding testimony that the victim previously sought a protective order. He asserts this deprived him of a fair trial. We disagree.
Declining the trial court's offer of a jury admonishment is no different than failing to request one. It is a recognized trial strategy and has never to this Court's knowledge been the basis of a reversal. See Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky. 2005); Hall v. Commonwealth, 817 S.W.2d 228, 229 (Ky. 1991), overruled on other grounds by Commonwealth v. Ramsey, 920 S.W.2d 526 (Ky. 1996). "[O]ur precedent recognizes that an admonition is often not requested as a matter of trial strategy to avoid drawing further attention to the testimony at issue . . . ." Schell v. Commonwealth, 2006-SC-000662-MR, 2008 WL 203036, at *5 (Ky. Jan. 24, 2008).
There are far more unpublished opinions addressing CR 11.42 appeals than published opinions. We cite this unpublished opinion in accordance with CR 76.28(4)(c), not as precedent, but because it is the persuasive and thoughtful opinion of the highest court of the Commonwealth on this point of law.
We conclude that "[t]he failure to request the admonition was not so unreasonable as to fall outside of the realm of reasonable professional assistance." Moore v. Commonwealth, 983 S.W.2d 479, 485 (Ky. 1998), as amended (Nov. 19, 1998). We find no merit to this claim of ineffective assistance of counsel.
4.: Counsel failed to move for a mistrial.
Finally, Al Kini asserts counsel failed to request a mistrial following a witness's statements concerning a previous verbal altercation between victim and Al Kini on the day of the attack. Again, we find no merit in this claim of ineffective assistance.
Having examined the record, we agree with the trial court that, "[i]t is debatable whether the information was actually prejudicial, because the detective who testified stated that he believed there had been a verbal altercation on the day of the attack, but acknowledged that there 'ended up not being one.'" Nevertheless, the trial court admonished the jury to disregard any allusion to such an altercation, considering the officer's testimony that no such altercation actually occurred.
The trial court found: "In light of the fact that the information was immediately corrected or clarified, it was not unreasonable for counsel to have chosen to draw no further attention to it" by making a motion for a mistrial. We agree. Again, this is appropriate trial strategy well within the range of reasonable professional legal assistance. As our Court said in a similar situation:
Depending on the flow of trial, not seeking a mistrial may be a matter of sound trial strategy. Here, there is a strong presumption of sound trial strategy, Strickland, 466 U.S. at 689, and [the Appellant] has not overcome that presumption. Further, [the Appellant] has not established the admonition given by the trial court was inadequate. Therefore, under Strickland, he has established neither that trial counsel should have requested a mistrial, nor that his case suffered by his attorney's decision not to seek one. Thus, relief was properly denied.Cavender v. Commonwealth, No. 2012-CA-000942-MR, 2014 WL 4377839, at *4 (Ky. App. Sept. 5, 2014).
See, supra, footnote 3.
We are unpersuaded that declining to move for a mistrial constituted ineffective assistance of counsel.
CONCLUSION
We affirm the Jefferson Circuit Court's October 17, 2016, order denying Al Kini's RCr 11.42 motion for post-conviction relief alleging ineffective assistance of counsel.
ALL CONCUR. BRIEF FOR APPELLANT: Ismaeel K. Al Kini, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General James Havey
Assistant Attorney General
Frankfort, Kentucky,