Opinion
NO. 2014-CA-000484-MR
06-19-2015
LESTER BOBBITT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Lester Bobbitt, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 04-CR-001509 & 04-CR-003285
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Lester Bobbitt appeals from the denial of his RCr 11.42 motion alleging ineffective assistance of trial counsel. We find no error and affirm.
The Supreme Court of Kentucky set forth the underlying facts in an unpublished opinion affirming Appellant's conviction on direct appeal:
On April 2, 2004, the Family Dollar Store on Portland Avenue in Louisville, Kentucky was robbed. Soon after the store had closed for the evening, the assistant manager, Daphne Clarkson, locked the doors and placed the day's cash on top of the safe, while waiting for the time-delay lock to open. Nikisha Robinson, a cashier at the store, told Clarkson she saw money lying outside on the sidewalk. When she unlocked the front door to get the money, a man wearing a ski mask entered the store, grabbed Clarkson's arm, and yelled "Go Go!" Clarkson told the man where the money was and he let her go. She ran to the office and triggered the silent alarm. While in the office, she saw Robinson, on the security monitor, hide behind a jewelry case while the man emptied the cash from the safe. The man took $5280.91 and fled the store.Bobbitt v. Commonwealth, 2006 WL 2708534, 1 -3 (Ky. 2006) (footnote omitted).
When Detectives Bryan Arnold and Dwane Colebank of the Louisville Metro Police Department arrived at the store, they took a statement from Clarkson. She told them Robinson acted suspiciously that day and she received several phone calls at work, including one around 8 p.m. from her boyfriend, William Kinnard. Clarkson also said the voice that yelled "Go Go" was the same as Kinnard's.
When the detectives interviewed Robinson, she admitted she had a role in the robbery. She said the Appellant, a friend of Kinnard's, had approached her about setting up a robbery. She agreed to help and they set up the robbery without Kinnard's knowledge. She said the robbery was supposed to have occurred between 4-5 p.m. The plan was that she would tell Clarkson she needed change, and then, signal the Appellant that the safe was open. However, the Appellant got scared and did not enter when Clarkson saw him approaching the store. She also said she did not know that the Appellant was going to return to the store that evening, and that when she opened the door to get the money on the sidewalk, she did not know he would enter wearing a ski mask and take the cash.
After Robinson's statement, the detectives executed a search of the room she shared with Kinnard at his mother's house. On the front porch, the police found a sweatshirt and headband which was worn by the suspect during the robbery. Inside Kinnard and Robinson's padlocked room, the detectives found two handguns, spent shell casing, and three bindies [sic] of crack cocaine.
Based on the evidence found during the search, Robinson was charged with robbery in the first degree. On the same day, Kinnard was arrested and charged with trafficking in a controlled substance and possession of a firearm by a convicted felon. However, he was not charged in connection with the robbery, even though Clarkson identified him as the perpetrator.
The detectives learned that the Appellant had an outstanding warrant and went to arrest him. However, the Appellant did not surrender and a foot chase pursued. After he was apprehended, Det. Arnold attempted to question him about the robbery, but instead could not since Appellant had to first be treated for injuries he incurred when he was eluding the police. Then, at the hospital, Det. Arnold read the Appellant his Miranda rights and questioned him about the robbery. He stated that he knew of the robbery, but was not involved. He was then arrested and charged with robbery in the first degree. Indictments were returned charging the Appellant and Robinson, each with one count of complicity to robbery in the first degree.
On August 27, 2004, Robinson entered a plea of guilty to complicity to robbery in the first degree. In her plea agreement, she agreed to cooperate and testify truthfully in all proceedings related to this matter and to not commit any new offenses. In return, the Commonwealth agreed to amend the charge to facilitation to robbery in the first degree and to recommend a sentence of five years. Further, the Commonwealth agreed not to object to supervised probation or her being released from jail on her own recognizance pending sentencing. Although the plea was
being made pursuant to North Carolina v. Alford, she admitted that in Jefferson County on April 2, 2004, she knowingly assisted Appellant in carrying out a robbery of employees at the Family Dollar store at 3022 Portland Avenue.
However, the night before she was scheduled to testify against the Appellant she changed her story. She called Det. Arnold and admitted that Kinnard had planned the robbery, not the Appellant. She stated that Kinnard recruited the Appellant to perform the robbery, but she was not sure whether the Appellant or Kinnard entered the store and stole the money. As a result of this new information, the trial was continued for two weeks, until November 30, 2004.
On the morning of trial, the court noted that Kinnard had entered a plea agreement and his case would be continued for a separate sentencing. Upon hearing this information, the Appellant moved to continue the trial pursuant to Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1994), arguing that he would need to conduct additional investigations. The motion was denied and jury selection began.
Trial started on March 3, 2005. The Commonwealth called Clarkson, whose testimony was the same as what she had told them previously. She also testified that earlier on the day of the robbery, she saw the Appellant come to the window in a hooded sweatshirt.
When Robinson took the stand, she testified that Kinnard had discussed, planned, and executed the robbery. She claimed that the initial plan was devised on April 2, 2004, when they decided that Kinnard would stay in the car while the Appellant robbed the store. She testified that the Appellant, however, got spooked when he started to execute the plan because Clarkson had got "two good looks at his face." She admitted she lied to the detectives previously because, at the time, she was in a relationship with Kinnard and was pregnant with his baby, and he had threatened her to keep her from telling the police about his role. At the time of the interview,
she had a black eye from an assault by Kinnard. She also admitted to receiving approximately $300 from the robbery.
On March 14, 2005, the jury found the Appellant guilty of complicity to robbery in the first degree. The jury recommended a sentence of twenty years but enhanced the sentence to thirty years based on the Appellant's conviction as a PFO. On May 9, 2005, the Appellant was sentenced to twenty years. He filed a timely notice of appeal on June 16, 2005.
Appellant subsequently filed an RCr 11.42 raising multiple allegations of ineffective assistance of trial counsel. The trial court denied the motion without an evidentiary hearing. Appellant then appealed and a previous panel of this Court affirmed in part, reversed in part, and remanded for the trial court to hold an evidentiary hearing regarding two issues. Bobbitt v. Commonwealth, 2013 WL 375479 (Ky. App. 2013). Those issues were that trial counsel was ineffective for failing to investigate two potential alibi witnesses and that trial counsel was ineffective for failing to object to the introduction of evidence that Mr. Kinnard possessed multiple weapons in his home and that another individual had stolen a car that was later used in the robbery.
On remand, the trial court held an evidentiary hearing on February 7, 2014. Appellant was represented by counsel who called three witnesses: Appellant's trial counsel, Misty Clark Vantrease, Appellant's sister, and potential alibi witness, Stacy Ashby, and Mr. Kinnard. The trial court ultimately found that Appellant's trial counsel was not ineffective and again denied his RCr 11.42 motion. This appeal followed.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.Id. at 691-692 (citations omitted). "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made 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. Because of the difficulties inherent in making the evaluation, a court 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." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.Strickland, 466 U.S. at 689-690 (citations omitted).
Appellant's first argument on appeal is that trial counsel was ineffective for failing to investigate two alibi witnesses. Appellant alleges he informed his trial counsel of alibi witnesses who would have testified that Appellant was painting a house at the time of the robbery. At the trial court level, Appellant stated that these two alibi witnesses were Stacy Ashby and Ronald Edelen. In his brief to this Court, however, Appellant only discusses Stacy Ashby. Because Mr. Edelen did not testify at the evidentiary hearing and no evidence was submitted regarding who he is or what he would have testified to, we will focus only on Ms. Ashby.
At the evidentiary hearing, Ms. Vantrease testified that she could not remember if Appellant informed her of these potential witnesses. Ms. Ashby testified that had she been contacted, she would have testified that Appellant was painting a house at the time of the robbery. However, Ms. Ashby also testified that she made no attempt to contact Appellant's trial counsel and that she did not know anything about her brother's charges until after his conviction.
In its order denying Appellant's motion, the trial court held that Appellant's counsel was not ineffective because there was no testimony that Ms. Vantrease was ever informed of these alibi witnesses. We agree with the holding of the trial court. Ms. Vantrease's performance cannot be said to have been deficient when Appellant may not have even informed her of the existence of these witnesses. In addition, Ms. Vantrease testified that she did not recall any information regarding Appellant painting a house during the time of the robbery. Finally, Appellant did not testify at the evidentiary hearing. While Ms. Ashby testified that she would have testified on her brother's behalf at trial, there was no evidence presented that Ms. Vantrease knew of her existence. We find no error.
Appellant's second argument on appeal is that his trial counsel was ineffective for failing to object to the introduction of evidence that Mr. Kinnard possessed weapons in his home and that a stolen car was used in the robbery. Appellant believed that this evidence prejudiced his defense because it suggested to the jury that he associated with bad people. The trial court found that Ms. Vantrease's failure to object to this evidence was trial strategy. We agree.
The defense's theory of the case was that someone other than Appellant committed the robbery. Ms. Vantrease testified during the hearing that she purposefully did not object to the introduction of this evidence because it supported their theory of the case. Evidence that Kinnard was in possession of firearms, which could have been used in the robbery, and a stolen car, which was used in the robbery, is the kind of evidence that could be used to deflect blame from Appellant. We agree with the trial court that failing to object to this evidence was trial strategy. Ms. Vantrease's performance was not deficient as to this issue.
Appellant also raises another issue on appeal. He claims his trial counsel should have called Mr. Kinnard to testify during trial and that Mr. Kinnard would have testified that Appellant had no involvement with the robbery. The previous panel of this Court found that this issue was without a factual basis in the record and did not remand it to the trial court. Because this issue was not reversed and remanded to the trial court, it is the law of the case and we are without authority to review it. Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky. 2005).
For the foregoing reasons, we affirm the judgment of the trial court.
ALL CONCUR. BRIEFS FOR APPELLANT: Lester Bobbitt, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky