Opinion
NO. 2013-CA-000816-MR
05-01-2015
HENRY J. CRAWFORD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Henry Crawford, pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 07-CR-000418
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: Henry Crawford appeals from an order denying his RCr 11.42 motion alleging ineffective assistance of trial counsel. His motion was denied by the trial court without holding a hearing. We believe one of Crawford's arguments on appeal requires a hearing; therefore, we affirm in part, reverse in part, and remand.
In 1990, Dana Minrath was the victim of a home invasion, a violent physical attack, and a brutal sexual assault. Upon returning home from dropping off her daughter at daycare, Minrath was attacked by an assailant who had been hiding in the home. From behind, he dealt a severe blow to her head and then forced her to the floor. He further subdued her by pressing a gun to the back of her head. He then dragged her to the bedroom and shoved her to the bed, face down. The assailant bound her hands and legs, blindfolded her with a scarf, and removed all of her clothing. He then anally sodomized and raped Minrath.
Eventually, Minrath's attacker left the room and she could hear him rummaging through the house. A few minutes later, she heard the kitchen door open and close. Once she was satisfied that he had left, Minrath began a long struggle to free herself, but was only successful in removing the bindings from her legs. Still unclothed and bleeding heavily from the head wound, she ran to the neighbor's home. Getting no response, she then managed to draw the attention of a passing truck. By that time, the elderly neighbor had also come to the door.
The driver of the truck covered Minrath with a blanket and assisted her into the neighbor's home. Minrath was taken by ambulance to the hospital where she received twelve stitches for injuries to her head. The physical examination of Minrath included the collection of sexual assault evidence. She was able to provide a description of her assailant to police, although she acknowledged that she only got one glimpse of him before he forced her to the floor and blindfolded her. Later, it was also discovered that a handgun and ring were missing from the home.
The crimes went unsolved for many years. In 2006, Appellant, Henry Crawford was incarcerated and his DNA profile was entered into the Combined DNA Index System (CODIS). Appellant's DNA matched the DNA profile of the swabs taken in Minrath's sexual assault kit. This match restarted the dormant investigation. In addition to the DNA evidence, the investigation also
revealed that Appellant had been seen in the neighborhood at the same time the crimes were committed.Crawford v. Commonwealth, 2012 WL 601248, 1 (Ky. 2012). It is also worth noting that the DNA results obtained from the sexual assault kit were not turned over to the defense at trial. Defense counsel moved to have the DNA results obtained from the kit excluded at trial. The Commonwealth agreed and that DNA evidence was not introduced at trial.
DNA was obtained from the blanket Minrath used to cover herself while she waited at her neighbor's home for the police to arrive. These samples were frozen in 1990 and retested in 2006. DNA obtained from the blanket which had been wrapped around the naked victim was tested and proved to be a mixture of Minrath's DNA and Appellant's DNA.
Appellant was arrested and tried on charges of burglary in the first degree, robbery in the first degree, rape in the first degree, sodomy in the first degree, and for being a persistent felony offender in the first degree. He was convicted on all counts and sentenced to an aggregate sentence of imprisonment for 200 years.
In August of 2012, Crawford filed the underlying RCr 11.42 motion alleging multiple instances of ineffective assistance of trial counsel. In an order entered on April 19, 2013, the trial court denied the motion without holding a hearing. 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 691-92 (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. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).
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 689-90 (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).
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." On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance.
And even though, both parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, the reviewing court must defer to the determination of facts and credibility made by the trial court. Ultimately however, if the findings of the trial judge are clearly erroneous, the reviewing court may set aside those fact determinations. CR 52.01 ("[f]indings of
fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.") The test for a clearly erroneous determination is whether that determination is supported by substantial evidence. This does not mean the finding must include undisputed evidence, but both parties must present adequate evidence to support their position.Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citations omitted).
Crawford's first argument on appeal is that his trial counsel was ineffective when he filed a motion to exclude the DNA evidence obtained from the sexual assault kit. Although not clear from Crawford's brief, it appears as though he is claiming this evidence would have shown someone else committed the rape. We find no error.
Moving to exclude DNA evidence not provided to defense counsel during pre-trial discovery was clearly a strategic move. Generally, trial counsel's strategy will not be second guessed in an RCr 11.42 proceeding. 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 addition, we do not believe that trial counsel's performance was deficient or prejudicial. Considering it was the DNA from the sexual assault kit that triggered the CODIS match and reopened the cold case, trial counsel's successful motion to exclude that evidence was proper and non-prejudicial to Crawford.
Crawford's second argument on appeal is that trial counsel erred by not objecting to the Commonwealth's prosecutorial misconduct. Crawford alleges the prosecution acted inappropriately when it questioned its DNA expert witness about the statistical probability that the DNA recovered from the blanket matched Crawford. Crawford claims that the Commonwealth agreed not to discuss statistical probability. We find there was no prosecutorial misconduct, that the questions were appropriate, and that trial counsel had no reason to object.
Crawford's trial counsel filed a pre-trial motion in limine to exclude any statistical evidence that showed a percentage of guilt. Trial counsel conceded that the Commonwealth's expert could testify that x person in x number of people could be the contributor of the DNA. This is the same evidence that was present in the expert's written report. Defense counsel wanted to exclude any testimony that, based on the DNA evidence, Crawford was x% guilty. The Commonwealth agreed not to elicit any testimony regarding a percentage and no such testimony was presented. The statistical probability testimony presented was appropriate; therefore, trial counsel had no reason to object to the Commonwealth's questioning of its expert.
Crawford's third argument on appeal is that trial counsel was ineffective for not having a hospital sheet tested for DNA. Ms. Minrath was taken to the hospital after being attacked. After her examination, the white sheet she was sitting on was collected by police officers and placed into evidence. Crawford claims his trial counsel should have had the white sheet tested for DNA evidence.
We find trial counsel was not ineffective for not having the white sheet tested. Crawford only speculates that there was DNA evidence on the sheet. Merely speculating that evidence existed is insufficient to sustain an RCr 11.42 motion. RCr 11.42(2); Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971).
Crawford's fourth argument on appeal is that his trial counsel was ineffective for not calling Stephanie Beine, the defense's DNA expert, to testify at the trial. Crawford argues that because the DNA evidence was the primary evidence used against him, defense counsel should have utilized its DNA expert to testify regarding the DNA, especially the DNA found on the blanket. To support his argument, Crawford attached to his brief a number of e-mails exchanged between defense counsel and Ms. Beine. Those exchanges show that defense counsel discussed the DNA evidence from the sexual assault kit, but not the blanket. In its order denying Crawford's RCr 11.42 motion, the trial court concluded whether or not to have the DNA expert testify was trial strategy.
These e-mails are also contained in the record.
As stated previously, trial counsel's strategy will generally not be questioned in an RCr 11.42 proceeding; however, in this instance, we cannot determine from the face of the record whether or not this was a strategic decision. DNA evidence was the foundation upon which the Commonwealth built its case against Crawford. Crawford's trial counsel retained an expert, but did not have her testify. In addition, the evidence presented by Crawford suggests that counsel and the DNA expert did not discuss the DNA evidence found on the blanket. A hearing is necessary to examine the facts surrounding this claim of ineffective assistance of counsel before it can be fully resolved. We therefore remand for a hearing on this issue.
Crawford's fifth argument on appeal is that his counsel was ineffective for not objecting during the prosecution's closing argument. Specifically, Crawford believes that the prosecutor impermissibly commented on the testimony of Lieutenant Asef during closing argument. Lt. Asef testified that in 1990, he had seen Crawford near the scene of the crime. We do not believe the prosecutor's comments were impermissible; therefore, defense counsel had no reason to object.
Lt. Asef did not testify that he saw Crawford near the scene of the crime on the day the attack took place, only that he saw him in the area in 1990. A drug dealer lived in the area and it was suspected Crawford was in the area buying drugs. No evidence of the drug activity was allowed into evidence at trial. Lt. Asef only testified about Crawford being in the area, not why he was there.
In any consideration of alleged prosecutorial misconduct, particularly, as here, when the conduct occurred during closing argument, we must determine whether the conduct was of such an "egregious" nature as to deny the accused his constitutional right of due process of law. The required analysis, by an appellate court, must focus on the overall fairness of the trial, and not the culpability of the prosecutor.Slaughter v. Commonwealth, 744 S.W.2d 407, 411-12 (Ky. 1987) (citations omitted). "Great leeway is allowed to both counsel in a closing argument. It is just that— an argument. A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position." Id. at 412 (emphasis in original). The prosecutor commented on evidence presented at trial. This is allowed during closing argument and did not necessitate an objection by defense counsel. There was no deficient performance.
Crawford's final argument on appeal is that the trial court erred when it allowed Lt. Asef to testify at trial. Issues which were raised, or could have been raised, on direct appeal are not subject to review under RCr 11.42. Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990). The trial court's decision regarding the admissibility of evidence should have been raised on appeal. In fact, other issues regarding Lt. Asef's testimony were raised by Crawford on his direct appeal to the Kentucky Supreme Court. We cannot review this issue pursuant to RCr 11.42.
For the foregoing reasons we affirm in part, reverse in part, and remand. On remand, the trial court will hold a hearing on the defense DNA expert issue only.
ALL CONCUR. BRIEF FOR APPELLANT: Henry Crawford, pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky