Claxton v. Commonwealth

Full title: KEVIN JAY CLAXTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Feb 7, 2014

NO. 2013-CA-000085-MR (Ky. Ct. App. Feb. 7, 2014)

Opinion

NO. 2013-CA-000085-MR

02-07-2014

KEVIN JAY CLAXTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

BRIEFS FOR APPELLANT: Margaret Ivie Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

STUMBO

NOT TO BE PUBLISHED

APPEAL FROM WHITLEY CIRCUIT COURT

HONORABLE PAUL K. WINCHESTER, JUDGE

ACTION NO. 04-CR-00087

OPINION

AFFIRMING

BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. STUMBO, JUDGE: Kevin Claxton appeals from two orders of the Whitley Circuit Court which denied his RCr 11.42 motion alleging ineffective assistance of counsel. He argues that his trial counsel was ineffective for not interviewing an eyewitness and for not objecting to the introduction of evidence containing hearsay. We find no error and affirm.

On June 14, 2006, Claxton was sentenced to fifteen years in prison for first-degree assault. He was convicted by a jury of causing serious physical injury to Teresa Claxton, his wife. At trial, he was represented by David Kersey. Claxton's conviction was affirmed on appeal. On May 27, 2010, Claxton filed the underlying RCr 11.42 motion alleging ineffective assistance of counsel. Claxton's trial counsel, Mr. Kersey, died prior to the filing of the RCr 11.42 motion. Claxton was appointed counsel to assist him in his RCr 11.42 motion. A hearing was held on the motion on January 31, 2012. The motion was denied on February 12, 2012. Claxton made a motion for more specific findings of fact. A new order denying the RCr 11.42 motion, and containing more specific findings of fact, was entered on November 26, 2012. More facts will be discussed as they become relevant to our opinion. 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 is not guaranteed errorless counsel or counsel that can be judged ineffective only by hindsight, but rather counsel rendering reasonably effective assistance at the time of trial." Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations omitted).

Claxton's first argument on appeal is that trial counsel was ineffective for failing to investigate and interview the only eyewitness to the assault, Lenora Lanham, prior to trial. Ms. Lanham was a neighbor of the Claxtons and she testified at trial that she witnessed Appellant bounce Ms. Claxton's head on the ground like a ball outside their residence. Claxton alleges that had trial counsel interviewed Ms. Lanham prior to trial, he would have discovered that she had been a victim of domestic violence. Counsel would have also discovered that as a result of this violence, Ms. Lanham would sometimes suffer anxiety attacks and flashbacks when she witnessed people being hurt.

At the RCr 11.42 hearing, Ms. Lanham testified that she had one of these episodes when she witnessed Ms. Claxton's assault. She also testified that Claxton's trial counsel never contacted her prior to trial. Claxton argues that had trial counsel known about Ms. Lanham's prior domestic abuse and subsequent anxiety issues, he could have questioned her as to whether or not her anxiety and flashbacks might have caused her to misinterpret what she witnessed the night of the assault.

Defense counsel has an affirmative duty to make a reasonable investigation for mitigating evidence or to make a reasonable decision that a particular investigation is not necessary. Strickland, 466 U.S. at 691.

"Adequate preparation by an attorney employed by one charged with a crime includes full consultation with his client, interviews with prospective witnesses, study of the facts and law applicable thereto, and the determination of the character of defense to be made and the policy to be followed during the trial."

Morgan v. Commonwealth, 399 S.W.2d 725, 726 (Ky. 1966) (quoting Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132 (1943)). In the case at hand, the failure to interview or investigate the only eyewitness to the assault would seem to satisfy the first prong of Strickland, that trial counsel was professionally unreasonable; however, we do not believe Claxton can meet the second prong of Strickland, that counsel's error is so serious and prejudicial that the defendant was not given a fair trial.

The trial court found that Ms. Lanham's testimony at the RCr 11.42 hearing did not conflict with her testimony at trial. We agree. At trial, Ms. Lanham was confident as to what she saw the night of the assault. At no time did she ever recant her trial testimony. Not only did Ms. Lanham witness the assault, but she called 911 to report it and spoke with one of the responding police officers. Furthermore, Ms. Lanham's testimony was bolstered at trial by the testimony of a responding police officer and EMT, both of whom testified as to the severity of Ms. Claxton's injuries and their belief that the injuries could not have been caused by accident. Even though trial counsel's failure to interview Ms. Lanham was unreasonable, the outcome of the trial would not have been different.

Claxton's other argument on appeal is that trial counsel was ineffective when he failed to object to hearsay testimony by a nurse and not objecting to the admission of the nurse's notes into evidence. At trial, the Commonwealth called Melissa Haun to testify. She was a nurse at the University of Tennessee Hospital in Knoxville who tended to Ms. Claxton's injuries after the assault. At trial, Haun did not recall treating Ms. Claxton. The Commonwealth gave her a copy of her notes in order to refresh her memory. Instead of later asking her about her recollection, the Commonwealth asked her to read aloud from her notes. One section of the notes discussed an interaction with Ms. Claxton in which Ms. Claxton was upset about her injuries and appearance and stated that her husband caused her condition. The notes were then admitted into evidence. Defense counsel did not object to the testimony or the admission of the notes into evidence.

Claxton argues that Ms. Claxton's statement to the nurse about him causing her injuries was hearsay and should not have been admitted into evidence because it was not a statement for purposes of medical treatment or diagnosis. KRE 803(4). Also, he claims that if a record is read into evidence because the witness cannot recall the events described in the record, a proper foundation must be made that the record did not refresh the witness' memory. KRE 803(5). This was not done in this case. In addition, he argues that if the record is received as an exhibit, which it was in this case, it has to be offered by an adverse party, which it was not. Id. Lastly, he argues that the nurse's notes were never certified or authenticated; therefore, they too should not have been admitted into evidence. KRE 803(6).

Claxton's evidentiary arguments are correct. This evidence should not have been admitted as it was presented. Due to trial counsel's death, however, we cannot determine if the failure to object was tactical. Even if it was not tactical, we do not believe it rises to the level of deficient performance that would amount to "counsel . . . not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. As stated previously, "Appellant is not guaranteed errorless counsel or counsel that can be judged ineffective only by hindsight, but rather counsel rendering reasonably effective assistance at the time of trial.". Parrish, supra. This was a single evidentiary mistake. Furthermore, Ms. Claxton and her mother both testified that Ms. Claxton did not make the statement attributed to her in Nurse Haun's notes. Finally, had counsel objected, the outcome of the trial would not have been different. The Commonwealth had a strong case against Claxton due to Ms. Lanham's eyewitness testimony.

For the foregoing reasons, we affirm the judgment of the Whitley Circuit Court.

ALL CONCUR. BRIEFS FOR APPELLANT: Margaret Ivie
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky