Opinion
NO. 2016-CA-000672-MR
05-19-2017
DEMONTRAY ASHFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Demontray Ashford, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 10-CR-003279-001 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. LAMBERT, J., JUDGE: Demontray Ashford brings this appeal from the Jefferson Circuit Court's denial of his motion to vacate, set aside, or correct his judgment pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He argues that his trial counsel was ineffective because he failed to file a motion to "suppress his illegal arrest" and the handgun obtained as a result of his arrest. Because we hold that the arresting officer had probable cause, and the remainder of Ashford's arguments are procedurally barred, we affirm.
The facts of Ashford's case were provided in his direct appeal to this Court:
The facts of this matter were testified to at a jury trial. Forty-eight year old Ronald Burns spent September 4, 2010, at a party at a friend's house watching football in Louisville, Kentucky. In the span of three to five hours, Burns consumed twelve to thirteen beers. Between 2 and 2:30 a.m. Burns left the party on foot to go to another friend's house. While walking down Hale Street near 34th, not far from his house on South 34th Street, Burns was approached on his left by an individual wearing a red hooded sweatshirt (a "hoodie") who asked if he wanted to buy some "weed". When Burns declined the offer to purchase marijuana, another individual approached on his right questioning his response. As Burns turned to his right to see this individual, the click of a weapon engaging a round drew his attention back to the individual on the left. As he turned to his left, Burns was immediately hit on the right and told to "give it up". Responding that he didn't have anything, the assailants told him "yes, you do" and repeatedly hit him, in addition to holding a gun to his left temple. Burns slightly saw the face of the individual with the gun, but not well enough to identify him. He could nevertheless describe their clothing despite his prior libations because the assault had a sobering effect. Before running to a white Cadillac parked five to six cars away from the scene, the assailants removed Burns's pants.
At 3:16 a.m., Burns called 911 from the front porch of his house. He reported that six black males wearing red and black hoodies had just jumped him at 34th and Hale; four beat him up, the fifth held a gun to him, and the sixth remained in a white Cadillac Coupe de Ville. He reported to 911 that the car went toward Broadway on 34th. Burns did not request any medical treatment despite his swollen face and eye.
Responding to the 911 call, Louisville Metro Police Department ("LMPD") Officer Williams found a white Cadillac with an Indiana license plate parked in the 600 block of Lindell Avenue, less than a mile from the incident and within fifteen minutes of the 911 call. Ducked down in the back seat were Ashford and Jerry Stokes (co-defendant). Officer Williams removed Ashford and Stokes from the car and handcuffed them. Afterward, Officer Williams found a 9 mm Luger handgun under and behind the right rear tire next to the curb. According to Officer Williams, neither Ashford nor Stokes had actual possession of the handgun.
Forty-five minutes after the incident, Officer Williams directed LMPD Officers Schuhmann and Perez to drive Mr. Burns, seated in the back of a police car, to where Officer Williams had Ashford and Stokes handcuffed behind the Cadillac for a show-up identification. According to Burns, the officers told him that they were taking him to identify the individuals they had caught. Burns testified that he first saw the individuals seated on the curb and without prompting he identified the car and the individuals by their clothes. Once they were brought in front of the police car's spotlight, Burns again identified the individuals by their clothes. Both Stokes and Ashford were placed under arrest for first-degree robbery.
That same night, the police determined the owner of the white Cadillac via the license plate to be Robert Evans, who had loaned the car to his daughter (Ms. Evans), who had then loaned the car to Michael Broughton. Ms. Evans gave the police information as to where Broughton could be located and on September 30, picked him out from a photo-pack. Burns could not pick Broughton out from the same photo-pack.
Six weeks later, on November 18, Stokes and his attorney met with Detective Scanlan. In a recorded conversation, Stokes placed Broughton at the scene and as the driver of the white Cadillac by picking him out of the same photo-pack shown to Ms. Evans and Burns.
Stokes admitted to being friends with Ashford but did not know Broughton. Stokes told the detective that only he, Ashford, and Broughton were in the car. Stokes told the police that Burns was punched but that he did not remember seeing a gun. Stokes admitted that all three fought the victim but claimed that someone else removed his pants. Stokes claimed that after the incident, he ran almost a mile to where the Cadillac was found and denied getting into the car and being driven away from the scene.Ashford v. Commonwealth, No. 2012-CA-001088-MR, 2013 WL 5886180, at *1-2 (Ky. App. 2013) (footnotes omitted). In his direct appeal, Ashford argued as follows: (1) the trial court erred when it allowed the Commonwealth to strike three African-American jurors; and (2) the court abused its discretion in failing to suppress the show-up and in-court identifications of Ashford. Id. at *2. We affirmed. Id. at *6. Ashford then filed this RCr 11.42 motion, as well as a motion to amend his original RCr 11.42 motion, with the Jefferson Circuit Court. The court denied Ashford's motions without a hearing, citing the Commonwealth's response and stating that it did not have the authority to grant Ashford's request. This appeal followed.
On May 8, 2011, Stokes had a second conversation with Detective Scanlan and the Commonwealth, although this conversation was not recorded. Stokes stated that it was Broughton's idea to get Burns. He stated that while he did not see Ashford with a gun during the robbery, he did see him hide the gun behind the tire of the car. Stokes explained that he omitted any information about the gun because he was afraid of Broughton-who in a separate incident had shot a woman in the neck.
One month after this conversation, the Commonwealth recommended amending Stokes's first degree robbery charge to facilitation to robbery and a recommendation of diversion, in exchange for Stokes's pleading guilty and agreeing to testify against Ashford.
The jury found Ashford guilty of complicity to first-degree robbery but announced they were hung three to nine for not guilty on the charge of carrying a concealed deadly weapon. Stipulating to his status as a convicted felon, Ashford was then found guilty of possession of a handgun by a convicted felon. During the penalty phase, evidence was introduced that Ashford had three separate convictions for first-degree robbery from when he was seventeen. The ten year concurrent sentences had been probated for five years. The jury then recommended ten years on the current first-degree robbery and five years on possession of a handgun by a convicted felon, to run consecutively. The court so sentenced Ashford. It is from this conviction and sentence that he now appeals.
Ashford makes the following arguments on appeal: (1) there was no probable cause to arrest him and the handgun used as evidence at trial should have been excluded as fruit of the poisonous tree; (2) his convictions for first-degree robbery, carrying a concealed deadly weapon, and possession of a handgun by a convicted felon violate the prohibition against double jeopardy and RCr 9.16 ; (3) he was denied a fair trial when it was revealed in the Commonwealth's opening statement and direct examination that Ashford's co-defendant Stokes had already pleaded guilty to his part in the robbery; (4) insufficient evidence existed to convict him; and (5) his trial counsel was ineffective because he failed to move to suppress his arrest and the gun recovered as a result of the arrest.
We agree with the Commonwealth that Ashford should have raised his first six claims of error on direct appeal.
"It has long been the policy of this court that errors occurring during the trial should be corrected on direct appeal . . . ."
. . . .
Gross v. Commonwealth, 648 S.W.2d 853, 856, 857 (Ky. 1983) (emphasis in original) (quoting Howard v. Commonwealth, 364 S.W.2d 809, 810 (Ky. 1963)). Because each of Ashford's first six assignments of error should have been raised during his direct appeal, we do not reach the merits of those issues. See Hatcher v. Commonwealth, 310 S.W.3d 691, 697 (Ky. App. 2010).
We hold that the proper procedure for a defendant aggrieved by a judgment in a criminal case is to directly appeal that judgment, stating every ground of error which it is reasonable to expect that he or his counsel is aware of when the appeal is taken.
In order to prove ineffective assistance of counsel on his sole remaining claim of error, Ashford 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).
Ashford claims that his counsel was ineffective for failing to file a motion to suppress his arrest, which he contends was illegal, and led to the discovery of a handgun used to prove him guilty of possession of a handgun by a convicted felon.
Kentucky Revised Statutes (KRS) 431.005(1)(c) provides: "A peace officer may make an arrest . . . [w]ithout a warrant when he has probable cause to believe that the person being arrested has committed a felony[.]" "[T]he probable-cause standard is a practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Williams v. Commonwealth, 147 S.W.3d 1, 7 (Ky. 2004) (citations and internal quotation marks omitted).
Officer Williams discovered Ashford in the backseat of a white Cadillac with Indiana tags, matching the victim's description of the vehicle used in the robbery. The vehicle was found within a mile of the site of the robbery, approximately fifteen minutes after the robbery had occurred. Furthermore, Ashford was arrested only after the victim identified the suspects. "Probable cause has been defined as a 'reasonable ground for belief of guilt' and requires the belief of guilt to be 'particularized with respect to the person to be searched or seized.'" Taylor v. Commonwealth, 276 S.W.3d 800, 805 (Ky. 2008) (quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800, 157 L.Ed.2d 769 (2003)). Because Ashford was found in close geographic and temporal proximity to the robbery in a vehicle previously described by the victim and was identified by the victim himself, Officer Williams had probable cause to arrest Ashford. Therefore, filing a motion to suppress would have been futile. "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). Because Officer Williams had probable cause to arrest Ashford, his counsel was not ineffective for failing to file a motion to suppress his arrest and the handgun.
The Jefferson Circuit Court order denying Ashford's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Demontray Ashford, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky