Opinion
NO. 2018-CA-000035-MR
03-22-2019
CHESTER ALLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Chester Allen, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE KIMBERLY CHILDERS, JUDGE
ACTION NO. 10-CR-00038 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. CLAYTON, CHIEF JUDGE: Chester Allen appeals from a Magoffin Circuit Court order denying his motion to vacate judgment pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 following an evidentiary hearing. Having reviewed the record and applicable law, we affirm.
Allen was convicted of committing several sexual offenses against his two minor daughters, Tammy and Janet. The underlying facts of the case were set forth by the Kentucky Supreme Court in Allen's direct appeal:
The names are pseudonyms used to protect their identities.
Tammy was born on April 12, 1992, and Janet was born on December 24, 1993. The girls' mother left the family when the girls were very young, and they lived primarily with Allen until the fall of 2002. In the fall of 2002, while visiting their mother, the girls alleged that Allen had forced them to watch pornography and had sexually abused them. The girls were then removed from Allen's care and placed with their mother. The girls lived with their mother for several months and were returned to Allen's care sometime in 2003 after they stated that they had fabricated the allegations of sexual abuse. The girls continued to live with Allen until sometime in 2005 when they were placed with a paternal aunt. This placement followed an incident when Tammy consumed sufficient alcohol to get alcohol poisoning. Janet never returned to Allen's home; however, Tammy returned in May 2006.
In July 2006, [Jennifer] Porter, Allen's then live-in girlfriend, reported that she had seen Allen in a sexually inappropriate position with Tammy. The Cabinet removed Tammy from Allen's home, initially placing her with her maternal grandmother, then moving her to foster care. Thereafter, the Cabinet undertook an investigation. The girls reiterated the allegations of sexual abuse that they had made in 2002, and Tammy, after first denying that any sexual activity occurred between her and Allen in July 2006, stated that it had.
Based on the girls' allegations, Allen was indicted by the grand jury and charged with sexual abuse, sodomy, and incest involving both girls and with the attempted rape of Tammy in July 2006. Allen was tried four times. The first trial, in 2008, ended in a hung jury. In 2009, the court declared a mistrial because of allegations of jury tampering. The court also
declared a mistrial in 2010 because of the introduction of improper evidence. In 2012, a jury convicted Allen as set forth above.Allen v. Commonwealth, No. 2012-SC-000631-MR, 2013 WL 5777036, at *1 (Ky. Oct. 24, 2013).
The Kentucky Supreme Court affirmed Allen's conviction. With the assistance of counsel, he filed a motion pursuant to RCr 11.42 raising numerous allegations of ineffective assistance of trial counsel. He subsequently filed a supplemental RCr 11.42 motion, also with the assistance of counsel. Following an evidentiary hearing, the trial court denied the motion and this pro se appeal by Allen followed.
To prove ineffective assistance of counsel, a defendant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). At the trial court level, "[t]he burden is upon the accused to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by . . . RCr 11.42." Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.
When the trial court holds an evidentiary hearing, as it did in this case, the reviewing court "must defer to the determinations of fact and witness credibility made by the trial judge." Commonwealth v. Robertson, 431 S.W.3d 430, 435 (Ky. App. 2013). If the trial judge's findings are clearly erroneous, however, the reviewing court may set them aside. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008); Kentucky Rules of Civil Procedure (CR) 52.01. "The test for a clearly erroneous determination is whether that determination is supported by substantial evidence." Id. (citing Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964)). On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance. Id. (internal citations omitted).
Allen's arguments relate primarily to the means by which his attorney sought to impeach the testimony of the prosecution's main witnesses: Tammy, Janet, and Jennifer Porter. He claims his trial counsel was ineffective for failing: (1) to investigate and introduce social services records to impeach Tammy and Janet; (2) to request an admonishment when Tammy unexpectedly testified that "Dad was in jail for killing a man[,]"; and (3) to object with sufficient specificity when Jennifer Porter was advised she could invoke her Fifth Amendment rights when asked about her drug use. Allen also requests palpable error review of the argument, made in the supplemental RCr 11.42 motion, that his trial counsel should have requested a hearing pursuant to Dennis v. Commonwealth, 306 S.W.3d 466 (Ky. 2010), to demonstrate that Tammy made false sexual abuse allegations against other individuals in the past.
The same attorney represented Allen at all four of his trials, and Allen contends that he should have been familiar with Tammy and Janet's inconsistent testimony at those proceedings. Allen claims that his attorney erred in not introducing this prior inconsistent trial testimony and evidence from social services records to impeach Tammy and Janet. He contends that the social service records were necessary to prepare an adequate defense, and that his attorney either did not use the records properly or failed to obtain them.
At the RCr 11.42 evidentiary hearing, Allen's attorney testified that the records of the Cabinet were difficult to obtain and he recalled that a court order, a motion to compel and show cause order may have been necessary to get the documents. He described the records as consisting of "volumes" in a "great big box." He testified that he reviewed all the records prior to trial, searching for anything useful, including "the Cabinet pushing the kids to say something with information from the children's mother," anything the children may have told their therapists, any previous denials of their allegations against Allen, and anything that went to their credibility. The attorney's testimony constitutes substantial evidence to support the trial court's finding that he did obtain and review the records.
Allen's alternative argument, that his attorney was ineffective for failing to introduce the social services records into evidence for purposes of impeachment and in failing to confront Tammy and Janet with their prior inconsistent trial testimony, is refuted by the record. The video record of the trial shows Allen's attorney rigorously cross-examined Tammy and Janet regarding contradictions between their prior and current testimony and incorporated information from the social services records to cast doubt on their truthfulness. For example, he questioned Janet specifically about her recantation of her prior accusations and her contention that the sexual abuse continued after she returned to her father. He asked her why, if she was seeing a social worker, Tina Keaton, from 2004 to 2006, she did not tell her about the abuse. He also elicited testimony from Janet that she could not remember if she had previously testified that she tried to tell the social worker that she was being abused. He also cross-examined Tammy at length about her inconsistent testimony and directly asked about social workers stating that Tammy lied about a foster parent committing abuse against her. Furthermore, his approach to the cross-examination must be seen in light of the fact that Tammy and Janet were youthful and highly sympathetic witnesses. As a whole, his cross-examination was more than adequate to make the jury fully aware of the inconsistencies and contradictions in their recollection and testimony. The record fully supports the trial court's finding that counsel was not ineffective in this regard.
Next, Allen argues that his trial counsel was ineffective for not requesting an admonishment to the jury when Tammy unexpectedly testified that "dad was in jail for killing a man." The statement was made while Tammy was being cross-examined about an incident when Jennifer Porter, Allen's girlfriend, got Tammy so drunk she suffered from alcohol poisoning. The questioning was part of defense counsel's attempt to establish a chronology of events and test the witness's recollection:
Defense counsel: You didn't like Jennifer Porter getting you drunk and you almost dying on the porch, right?
Tammy: Right.
Defense counsel: Okay, tell us about that. What happened there, when was that, do you remember when that was, what year that might have been, what occurred, how that happened?
Tammy: Dad was in jail for killing a man, Jennifer took us back on the hill and got me drunk. I don't know what you want me to tell about it, I'm going to tell it.
Defense counsel: Okay, so he wasn't anywhere around, she took it upon herself -
Tammy: Her and my uncle Gene did, yeah.
At the close of trial, while the jurors were deliberating, they sent the trial judge a note about Allen being incarcerated and asking "when did he get out." The trial judge told the jury it could only consider the testimony and evidence of record during the trial.
At the RCr 11.42 evidentiary hearing, Allen's attorney testified that he decided not to seek an admonishment in order to avoid drawing any more attention to what Tammy had said. Allen argues that his attorney's failure to obtain the admonishment was highly prejudicial to his case because the jury was allowed to consider the fact he went to jail for killing a man but was not provided with evidence that the case against him was ultimately dismissed. He contends his attorney's failure to ask for a mistrial or an admonishment was deficient and led to clear prejudice.
The attorney's decision not to draw attention to the testimony was a quintessential example of trial strategy. Courts "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.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Allen has failed to overcome this presumption. Indeed, the jury's question to the court regarding when Allen was released from jail suggests they were less concerned with the fact that he may have killed a man than with reconstructing the timeline of events.
Allen next argues that his trial attorney was ineffective for failing to raise a sufficiently specific objection when witness Jennifer Porter received a Fifth Amendment instruction regarding her right to remain silent regarding her drug use. Porter was an important eyewitness. The content and circumstances of her testimony were described as follows in the Supreme Court's opinion:
With regard to the allegation of attempted rape, Porter testified that she, Allen, Tammy, and Tammy's brother had been swimming on July 2, 2006. After dropping Tammy's brother off near his grandmother's house, the other three returned to Allen's residence. Porter went into the house and Allen and Tammy went into a barn to feed and water a horse. Porter testified that, after fifteen to thirty minutes, she went out to the barn to see what Allen and Tammy were doing. When she entered the barn, she saw Tammy bent forward over a bale of hay with her pants around her ankles and Allen standing behind her. According to Porter, Allen had his shorts on but his penis was partially sticking out of the leg of his shorts and erect. Porter stated that she screamed, got in her car, and drove to Allen's mother's house. She then drove to a friend's house and had the friend contact the police.
On cross-examination, Porter admitted that she had "a problem" with pain medication, that she and Allen had discussed her problem, and that she had been getting treatment at a methadone clinic in July 2006. When Allen asked Porter if she had taken illegal drugs, the Commonwealth requested a bench conference. During that conference, the Commonwealth asked the court to advise Porter that she had the right refrain from making
any statements that might be self-incriminating. Over Allen's objection, the court advised Porter of her Fifth Amendment right and, when Allen repeated his question, Porter refused to answer.Allen, 2013 WL 5777036, at *2.
Allen then asked Porter if she had ever provided alcohol to Tammy. Porter denied doing so. Allen then advised Porter that Tammy had testified that Porter had provided her with alcohol, and he asked Porter if Tammy had lied. Following a bench conference, Porter refused to answer, invoking her Fifth Amendment right not to do so. Allen then moved onto a different topic of questioning.
On direct appeal, Allen raised several arguments about the Fifth Amendment advisement by the trial court. The Supreme Court reviewed for these allegations of error for palpable error only because they were not preserved with sufficient specificity by Allen's trial counsel. Id. at *4.
The aim of the defense in having the jury learn of Porter's drug use was to cast doubt on her reliability as a witness. Even before the Commonwealth requested the trial court to advise Porter of her Fifth Amendment rights, however, the prosecutor had already asked Porter if she had trouble with medication, drugs and alcohol during her relationship with Allen. She testified that she used pain pills, drank occasionally, and was receiving treatment at a methadone clinic at the time she witnessed the episode in the barn. When questioned about Porter's testimony at the RCr 11.42 hearing, Allen's attorney testified that even if Porter had testified about her illegal drug use, "it would not have been as bad as what the jury could have been inferring from her just refusing to testify and pleading the Fifth on something. I think that just sounds terrible. . . . I believe there was a good chance . . . if she had just said, 'hey, I smoke marijuana,' maybe took a valium, or something, something innocuous, that would have been a lot less than her saying I plead the Fifth." Because the jury was already aware that Porter was using pills, alcohol, and was attending a methadone clinic, defense counsel reasoned that her decision to plead the Fifth could lead the jury to infer that she was implicated in very serious illegal drug offenses, thereby casting greater doubt on her credibility. We reiterate that it is not the function of the appellate court "to usurp or second guess counsel's trial strategy." Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). In reviewing defense counsel's decision, we must determine whether the alleged acts or omissions were so far outside the wide range of professionally competent assistance that they caused the "adversarial testing process" not to work. Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). The Supreme Court did note that Allen's defense counsel "was free to and did cross-examine Porter on a number of issues that went to her credibility - her use of and addiction to pain pills, her treatment for substance abuse at a methadone clinic, and her sometimes rocky relationship with Allen. Thus, permitting Porter to assert her Fifth Amendment right not to testify about illegal drug use did not unduly impede Allen's right to cross-examine and/or confront Porter." Allen at *4. Allen does not explain how the jury learning that Porter had taken illegal drugs, when they already knew she had taken pain pills, had got Tammy drunk to the point of alcohol poisoning, and was attending a methadone clinic at the time she witnessed the incriminating incident, would have materially altered their assessment of her credibility.
Finally, Allen asks that we review for palpable error the argument raised in his supplemental RCr 11.42 motion that his attorney was ineffective for not challenging the admissibility of Tammy's prior allegations of sexual abuse against other individuals. Allen has attached a copy of the supplemental motion to his reply brief; however, it is not in the record before us, which appears to be incomplete. We recognize it is the responsibility of the appellant to make sure the record is complete. CR 75.07(5). "[W]hen the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). Nonetheless, Allen is a pro se litigant who is not required to meet the standard applied to legal counsel; consequently, we choose to exercise our discretion and review his argument. See Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983).
In Dennis v. Commonwealth, the Kentucky Supreme Court addressed KRE 412, the "rape shield rule," which prohibits the admission into evidence of "other sexual behavior" of the complaining witness in a sex crime case. 306 S.W.3d at 471-72. The Court held that the rule does not, however, bar the admissibility of prior false accusations of sexual abuse made by the witness because such allegations do not involve "other sexual behavior." Id. at 472.
In Allen's first and second trial, Tammy testified about allegations of sexual abuse she made against other individuals including her brothers, foster father, her cousin, and a roommate at a residential facility. Prior to the final trial, the Commonwealth successfully moved the trial court to exclude all evidence of these prior allegations. On direct appeal, the Supreme Court affirmed this ruling because Allen had not offered sufficient proof the allegations were demonstrably false. Allen at *8. Allen argues that his attorney should have demanded a hearing pursuant to Dennis in order to prove the allegations were false and consequently admissible.
When the prosecution's motion in limine to exclude the allegations was argued before the trial court, Allen's attorney questioned how they could be demonstrated to be false except for the fact that they were brought to the attention of the Cabinet but nothing was ever done to address them. The trial court ruled that unsubstantiated statements or social services reports were not sufficient to prove falsity, but actual recantations would be admissible.
At the RCr 11.42 hearing, Allen's counsel was asked directly why he did not move for a Dennis hearing. He replied that the issue had been addressed numerous times already at the prior trials and that on this occasion, the Commonwealth had presented a "rape shield" type of argument that the evidence should be excluded. He explained that he did not request a hearing because all the evidence was within the knowledge of the court from the three previous trials and that is what the court ruled on. He noted the trial court made it perfectly clear that only actual recantations by Tammy would render the evidence of the allegations admissible. Under these circumstances, requesting a Dennis hearing would have been pointless. "It is not ineffective assistance of counsel to fail to perform a futile act." Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002).
For the foregoing reasons, the order denying Allen's motion pursuant to RCr 11.42 is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Chester Allen, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky