Opinion
NO. 2011-CA-002136-MR
02-07-2014
QUINCY OMAR CROSS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Quincy Omar Cross, Pro se Burgin, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CR-00060
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Quincy Cross appeals an order of the Graves Circuit Court which denied his motion for relief pursuant to RCr 11.42 and his request for an evidentiary hearing thereupon. We affirm.
Kentucky Rules of Criminal Procedure.
Background
Eighteen-year-old Jessica Currin was brutally murdered in Mayfield, Kentucky, and her body was found near a local middle school on the morning of August 1, 2000. The body had been set on fire and begun to decompose. The medical examiner opined that Jessica had been strangled with a braided belt, a charred remnant of which was found near her neck.
Investigators initially charged two of Jessica's acquaintances with the crime, Carlos Saxton and Jeremy Adams. All charges against the two were later dismissed.
Following further investigation, in 2007, Cross and four co-defendants were charged with crimes related to Jessica's murder.
At trial the Commonwealth presented evidence that on the night of July 29, 2000, Jessica had accepted a ride in Cross's car, believing he would take her home. He did not. When Jessica rejected Cross's romantic advances, he reacted violently. Cross took Jessica to a home in Mayfield, Kentucky. He rendered her unconscious, raped and sodomized her, strangled her to death, performed sex acts on her corpse, and instructed some of his co-defendants to do the same. Jessica's body was removed to an area near the middle school and set on fire.
A jury convicted Cross of kidnapping, intentional murder, first-degree sodomy, first-degree rape, abuse of a corpse, and tampering with physical evidence. He was given a life sentence. Cross's direct appeal of his conviction was unsuccessful. Cross v. Commonwealth, 2008-SC-000465-MR, 2009 WL 4251649 (Ky. 2009).
Cross filed an RCr 11.42 motion. He claimed his attorneys' trial performance was deficient in a number of respects and asserted, furthermore, that an evidentiary hearing was necessary to resolve his claims. The circuit court was not persuaded that Cross was entitled to relief and, for the reasons which follow, we are likewise not persuaded.
Standard of review
"To prevail on an RCr 11.42 motion, a movant must convincingly establish that he was deprived of a substantial right justifying the extraordinary relief afforded by post conviction proceedings." Halvorsen v. Commonwealth, 258 S.W.3d 1, 3 (Ky. 2007) (footnote omitted). When that motion is premised on a claim of ineffective assistance of counsel, the defendant's burden is as follows:
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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The defendant must overcome a strong presumption that trial counsel's performance was reasonable and trial strategy was sound. Johnson v. Luoma, 425 F.3d 318, 327 (6th Cir. 2005) (citation omitted).
A defendant is entitled to an evidentiary hearing on an RCr 11.42 motion "only . . . when the motion raises 'an issue of fact that cannot be determined on the face of the record.'" Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001) (quoting Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), judgment affirmed, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989)).
A defendant's claims of ineffective assistance of counsel are subject to de novo review, but we defer to the trial court's findings of fact. Saylor v. Commonwealth, 357 S.W.3d 567, 571 (Ky. App. 2012).
Analysis
I. Whether Cross was entitled to an evidentiary hearing
Cross asserts his RCr 11.42 claim required an evidentiary hearing because "[t]he record in this action is void as to whether trial counsel sought the services or advise [sic] of a defense expert witness." (Appellant's Brief, p. 8). He contends that if trial counsel had secured the assistance of an expert witness, the expert could have assisted in interpreting and contradicting the testimony of the Commonwealth's expert medical examiner, Dr. Mark Levaughn.
Cross further contends his trial counsel failed to inquire into the reasons why Dr. Levaughn, the medical examiner who performed the autopsy on Jessica, was fired from his position. Cross believes this information could likewise have been used to impeach the witness.
These arguments did not require an evidentiary hearing because the record plainly refuted that they constituted ineffective assistance of counsel. A forensic pathologist did testify on Cross's behalf. In fact, he testified at length that the autopsy revealed no medical or scientific evidence that the cause of Jessica's death was strangulation or that Jessica had been raped. Cross's representations to the contrary are incorrect.
Trial counsel's decision not to explore the reason Dr. Levaughn was fired from his position as medical examiner did not result in prejudice to Cross; cross-examination and contradiction of the medical examiner's testimony was so thorough that raising the collateral and possibly unrelated issue of Dr. Levaughn's termination would not have benefitted Cross significantly. Dr. Levaughn's testimony was thoroughly contradicted by the testimony of Cross's forensic pathologist, Dr. George Nichols. Dr. Nichols disputed Dr. Levaughn's conclusion as to the cause of Jessica's death and claimed Dr. Levaughn had failed to gather evidence from the scene. Dr. Nichols also suggested possible causes of Jessica's death other than murder. The record clearly reflects that the performance of Cross's counsel in the handling of the Commonwealth's medical examiner was effective and appropriate. The circuit court properly refused to conduct an evidentiary hearing for the purpose of second-guessing trial counsel's approach to cross-examination.
II. Whether trial counsel subjected the case to meaningful
adversarial testing
Cross alleges his trial counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing[.]" United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (1984). If he is correct, we must presume he suffered prejudice. Id.
The Sixth Amendment of the United States Constitution ensures a defendant's right to have his trial attorneys "require the prosecution's case to survive the crucible of meaningful adversarial testing." Id. at 657. But, "absent some effect of [the] challenged conduct [of trial counsel] on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." Id. at 658.
Our review of the record reveals that the Commonwealth's case was subjected to rigorous testing. Cross's trial attorneys called more than a dozen witnesses on his behalf, two of whom were expert witnesses, one in forensic pathology and one in forensic document examination. The witnesses testified as to the veracity of the Commonwealth's witnesses, police treatment of witnesses which may have influenced their testimony, the factual accuracy of the Commonwealth's evidence, and the cause of Jessica's death.
Cross's trial counsel also raised objections during trial and thoroughly and appropriately cross-examined the Commonwealth's witnesses. Trial attorneys raised a motion to dismiss on the basis of alleged discovery violations and moved for a directed verdict. They observed potential problems with jurors during trial and acted to ensure they did not negatively affect their client. Throughout the trial, they forcefully advocated on Cross's behalf.
Cross has not alleged that his representation was impacted by any of the factors addressed in Cronic, and our review of the record gives us no reason to believe his trial counsel was inexperienced or unprepared for the number of charges or the complexity of the defenses. Cross, in terms of his rights under the Sixth Amendment, benefited by a rigorous adversarial testing of the Commonwealth's case, and he is not entitled to relief on this basis.
These include such factors as, "(1) [T]he time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel." Cronic, 466 U.S. at 653 (citation omitted).
Cross also presents arguments regarding the Commonwealth's purported failure to prove each element of the offenses of which he was convicted. The Commonwealth correctly states that this is a trial matter properly the subject of a direct appeal rather than a post-conviction collateral attack. Bard v. Commonwealth, 359 S.W.3d 1, 6, n.5 (Ky. 2011), as modified (Mar. 16, 2012), as modified (May 15, 2012). Even if Cross's arguments were correct, RCr 11.42 would not entitle him to relief.
III. Whether trial counsel improperly failed to object to hearsay
testimony
Cross generally protests his trial counsel's failure to object to the hearsay testimony of seven of the Commonwealth's witnesses. Specifically, he asserts that witness Greg Starks improperly recounted investigative hearsay to which his trial attorneys failed to object. He does not specify which testimony of the remaining six witnesses was inadmissible hearsay. A defendant's request for RCr 11.42 relief must "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2). Because the argument lacks specificity with respect to these six witnesses, we will address only Cross's argument regarding Greg Starks' testimony.
Cross's RCr 11.42 motion was equally vague with respect to how these witnesses' testimony may have been hearsay.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." KRE 801(c). "Investigative hearsay" refers to:
[t]he rule . . . that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information[,] and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did.Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17, 22 (Ky. 2006).
Starks' testimony is neither ordinary hearsay nor investigative hearsay. Cross protests that Starks was permitted to testify that he had observed Cross wearing a belt on the evening of the murder and that he took the belt off at some point during the evening. The witness was merely testifying about events he had observed first-hand; first-hand observations are not hearsay. Additionally, Starks was not an investigator and was not working with the police in any way. His testimony could not have been investigative hearsay.
The performance of Cross's trial counsel was not deficient for failing to object to the testimony.
IV. Whether trial counsel failed to investigate prior inconsistent
statements of fact witnesses
Cross next claims his trial counsel failed to investigate and discover that two key witnesses for the Commonwealth, Vinisha Stubblefield and Victoria Caldwell, had told many lies to investigators prior to trial. Had the trial attorneys investigated and discovered the witnesses' inconsistent stories and propensity for lying, claims Cross, they could have used that information for impeachment.
Cross is correct that trial counsel has a duty to "investigate and interview promising witnesses[.]" Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992). In this case, the record reflects that his trial attorneys' investigation of Stubblefield and Caldwell did prepare them to impeach the witnesses' testimony.
Central to the defense's trial strategy was an effort to undermine the credibility of the Commonwealth's two key fact witnesses. The record reflects that defense counsel investigated Stubblefield and Caldwell, discovered they had lied in the past, and repeatedly brought the lies to the jury's attention. Cross's trial counsel impeached both witnesses with prior inconsistent statements they had made to investigators and elicited admissions from both of them that they had told numerous lies prior to trial. Their history of dishonesty was in the record, and doubts about their credibility were placed before jurors.
Cross's allegation that his trial counsel failed to investigate the witnesses' pattern of lying to investigators, therefore, is entirely contradicted by the record. He has not presented evidence that his trial attorney's performance was deficient in this respect.
V. Whether trial counsel improperly failed to secure an expert in
forensic pathology
Cross next argues that his trial counsel failed to retain an expert forensic pathologist to assist in his defense, to assist in interpretation of autopsy evidence, and to testify on Cross's behalf "if necessary and appropriate." (A.B. 18). We have already discussed in Section II, infra, how the record wholly refutes this claim. Dr. Nichols examined the autopsy report and testified that the medical examiner's conclusion as to Jessica's cause of death was not supported by scientific evidence, and Cross's trial counsel effectively-cross examined Dr. Levaughn.
VI. Whether trial counsel was ineffective for failure to investigate and
present an "alternative perpetrator" defense
The next basis of Cross's appeal is his contention that his trial counsel failed to investigate and present the possibility that other perpetrators had committed the crimes of which Cross was accused. But for this deficiency, he argues, the jury would not have found him guilty.
Trial counsel argued to the jury that the crimes were committed by two alternative perpetrators, namely Jeremy Adams and Carlos Saxton, the two individuals who had previously been charged with the murder. It was the defense's position that investigators had "gotten it right the first time" when they indicted Adams and Saxton, and trial counsel elicited testimony that witnesses had previously identified the two as the perpetrators. Cross's trial attorneys also produced evidence that on the night of the crime, Saxton had been wearing the same kind of belt which had purportedly been used to strangle Jessica.
Cross's representation that his trial counsel failed to present evidence of these alternative perpetrators is false. He has not argued that the manner in which his trial attorneys presented this evidence was deficient. Cross has not demonstrated that his trial counsel was deficient in this respect.
VII. Whether the cumulative effect of the instances of trial counsel's
allegedly ineffective assistance resulted in prejudice
We have not determined that the performance of Cross's trial counsel was deficient, and we likewise find no cumulative error.
Conclusion
Trial counsel ensured that Cross received a fair, adversarial trial. Cross was convicted on the strength of the Commonwealth's evidence and not due to ineffective assistance of trial counsel. We affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Quincy Omar Cross, Pro se
Burgin, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky