Opinion
NO. 2013-CA-000462-MR
03-14-2014
MICHAEL M. DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Euva D. May LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Nate T. Kolb Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 09-CR-001449
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT, AND NICKELL, JUDGES. LAMBERT, JUDGE: Michael Davis appeals two Jefferson Circuit Court orders denying relief on his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion. Davis claims he received ineffective assistance of counsel when his attorney failed to interview his co-defendants and failed to file a motion to suppress evidence seized from the search of his apartment. For the following reasons, we affirm.
On May 20, 2009, the Jefferson County Grand Jury returned an indictment charging Davis with trafficking in a controlled substance in the first degree. The Grand Jury also indicted Davis's live-in girlfriend, Tamica Earsery. Davis was appointed a public defender, and ultimately he pled guilty to trafficking in the first degree. The Commonwealth recommended a sentence of ten years' imprisonment, and Davis was sentenced consistent with that recommendation. As part of Davis's guilty plea, the Commonwealth agreed to dismiss all charges against Earsery. During the plea colloquy, Davis answered affirmatively that he had enough time to discuss the case with his attorney. He also answered affirmatively that he was satisfied with his counsel's advice.
On December 9, 2011, Davis filed a pro se RCr 11.42 motion to vacate the judgment and a supporting memorandum of law. Davis alleged that he received ineffective assistance due to his counsel's failure to file a motion to suppress evidence and his failure to investigate. Specifically, Davis alleged his counsel should have spoken with his co-defendants, Earsery and Richard Risen. Davis's post-conviction counsel filed a supplemental RCr 11.42 motion, which reiterated Davis's arguments that his trial counsel was ineffective for failing to file a motion to suppress and for failing to fully investigate the case.
The circuit court granted Davis an evidentiary hearing on the motion to suppress claim, but denied his other claims without a hearing. The court held the evidentiary hearing on the suppression issue on February 18, 2013. Five individuals testified at the hearing: Detective Joseph Lamb, Detective Jason Ford, Michael Davis, Tamica Earsery, and Davis's trial counsel, William McGinnis.
At the hearing, the following facts were established. On May 18, 2008, in response to complaints of drug trafficking, Detectives Ford and Lamb, along with other officers, began conducting surveillance of Davis's apartment at 3104 Fordhaven Drive. During their surveillance, the officers observed two separate occasions where an individual entered the apartment briefly and exited shortly thereafter. After leaving the location, the police stopped each individual for a traffic violation, and both were found to have drugs in their possession. The first individual stated that he had purchased the drugs from "Michael," who lived at 3104 Fordhaven, in apartment four. He also stated that he had purchased drugs from "Michael" on multiple occasions. The officers transported the second individual to the police station, where he provided both written and verbal statements that he had purchased the drugs from Davis, who resided at 3104 Fordhaven, in apartment four.
After returning to the location to continue surveillance, the officers observed a white male approach the apartment and ring the doorbell. Davis answered the door and allowed the individual to enter the common area of the building. Lamb testified that he then observed a hand-to-hand drug transaction. As a result, the officers entered the building and detained both individuals.
After detaining Davis, the detectives walked upstairs to Davis's apartment to continue their investigation. At this point, the detectives' version of events begins to differ significantly from what Davis and Earsery claim. Both detectives testified that the door was open when they approached it. Conversely, Davis and Earsery claim that the door was only slightly ajar.
The detectives testified that they knocked on the door, identified themselves, and were invited inside by Earsery. They also testified that they observed a cigar box containing marijuana, cash, and digital scales in plain view. The detectives testified that they asked for, and received, written consent to search the apartment from both Davis and Earsery. Detective Ford testified that it is common practice to ask for consent before seeking a search warrant. He also testified that, had consent been withheld, they would have obtained a search warrant for the apartment.
To the contrary, Davis and Earsery testified that the detectives did not knock, but just opened the apartment door and walked into the apartment. Earsery stated that she was not aware of any drugs in the apartment until the officer came in, sat in a chair, and pulled the drugs out. Davis and Earsery testified that the location of the drugs was not visible from the doorway. Earsery testified that the arm of the chair in which the officer sat touched the arm of the couch in the living room. This created a corner in which a table and lamp sat. If one were standing in the doorway, one could not see anything in the corner. Earsery testified that the officer then leaned over the side of the chair into the corner. He told her that there was cash and a set of scales beside the couch. He asked if she was aware of these items, and Earsery said "no." The officer told Earsery that Davis was under arrest and asked for her consent to search the apartment. Despite her prior disclaimer of any knowledge of drugs or drug paraphernalia, the officer told her if he had to go get a search warrant, he would arrest her, and her children would be taken by Child Protective Services. Because she feared being arrested and having her children taken, Earsery claims she signed the consent to search form.
Earsery testified that the other officers brought Davis into the apartment in handcuffs and sat him in a chair at the kitchen table. They told Davis if he did not sign the consent to search form, they would arrest Earsery and his children would be taken by protective services. Davis also signed the consent to search form.
The officers' search of the apartment yielded money, cocaine, marijuana, and digital scales. The officers arrested Davis and gave Earsery a citation. As stated above, the officers eventually indicted Davis and Earsery for trafficking in a controlled substance, first-degree, and possession of drug paraphernalia. Davis was also indicted as a persistent felony offender, second degree.
Davis claims that he and his attorney, public defender William McGinnis, met only at court appearances to discuss the case. Attorney McGinnis never spoke with Earsery or her counsel about the case. Davis claims that despite requests for attorney McGinnis to file a motion to suppress the evidence in this case, he would not.
At the conclusion of the hearing, the trial court, finding that the detectives' version of events was more credible, denied Davis's RCr 11.42 motion. The circuit court reasoned that even if error occurred, it did not result in any prejudice because the court would have denied the suppression motion. This appeal now follows.
On appeal, Davis first argues that the circuit court erred when it denied his claim that he received ineffective assistance of counsel when his trial counsel failed to interview his co-defendants without conducting an evidentiary hearing to determine the veracity of his claims.
When analyzing an RCr 11.42 claim, a trial court's factual findings are reviewed for clear error; its application of the law to those facts is reviewed de novo. Commonwealth v. Pridham, 394 S.W.3d 867, 875 (Ky. 2012). To succeed on an ineffective assistance of counsel claim, the movant must show, first, that counsel's performance was deficient, and second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) (adopted by the Supreme Court of Kentucky in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985)).
As for the performance prong of the Strickland analysis, the burden is on the movant to show that, "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The analysis begins with a strong presumption that counsel has rendered reasonable assistance. The prejudice prong of the Strickland analysis requires the movant to show that, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In situations where he has pleaded guilty, the movant must show that there is a reasonable probability that, absent counsel's deficient performance, the movant would not have pleaded guilty, but would have insisted on continuing to trial. Commonwealth v. Elza, 284 S.W.3d 118 (Ky. 2009) (quoting Bronk v. Commonwealth, 58 S.W.3d 482 (Ky. 2001)).
Davis argues that the circuit court's denial, without an evidentiary hearing, of his ineffective assistance of counsel claim for failure to investigate was improper. The Supreme Court of Kentucky has established a two-part analysis for determining whether an evidentiary hearing regarding a RCr 11.42 motion is necessary.
First, the court must decide whether "the alleged error is such that the movant is entitled to relief under the rule." Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001). This requires a showing that there has been a violation of a constitutional right, or another violation, sufficient to render the judgment void. Id. (citing Lay v. Commonwealth, 506 S.W.2d 507 (Ky. 1974)). When deciding, "the court must assume that the factual allegations in the motion are true..." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008). Ineffective assistance of counsel is a constitutional claim sufficient to require an evidentiary hearing if the movant has alleged facts sufficient to support the claim. Id. at 168.
Provided the movant is entitled to relief under the rule, the court must hold an evidentiary hearing if, "the motion raises 'an issue of fact that cannot be determined on the face of the record.'" Hodge, 68 S.W.3d at 342 (quoting Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993)).
In the instant case, Davis alleges that his counsel was ineffective for failing to fully investigate his case. Specifically, he alleges that his counsel failed to interview or question his co-defendants, Earsery and Risen, both of whom had their own attorneys. Because of this, Davis's counsel could not speak with them absent their attorneys' approval. It is unknown whether Earsery's or Risen's respective counsel would have even consented to such a request. As such, Davis's counsel's decision to refrain from interviewing either of Davis's co-defendants was reasonable.
We also note that Davis failed to specify what information Risen would have provided to his counsel. Without specific allegations of what Risen would have provided, no prejudice resulted from failing to speak with him. Davis also failed to allege how speaking with Risen would have altered the outcome of the case, or affected his decision to plead guilty in any way. Because of this, we agree with the trial court and the Commonwealth that defense counsel's failure to interview Risen does not satisfy Strickland, and therefore, an evidentiary hearing was not necessary on that issue.
Davis did, however, provide specific allegations as to the information that Earsery would have provided to his counsel. He did this via an affidavit attached to his supplemental RCr 11.42 motion. As evidenced by the affidavit, all of the information Davis alleges Earsery would have provided to his counsel pertained to the suppression issue. Id. Davis had the opportunity to elicit Earsery's testimony at the evidentiary hearing. The circuit court found Earsery's testimony unpersuasive, believing the testimony of the detectives instead. As such, counsel's failure to speak with Earsery cannot have prejudiced Davis's defense in any way, as the only information she could have provided was not sufficient to alter the outcome of the suppression hearing. Thus, we see no error in this regard.
As his second assignment of error on appeal, Davis argues that he received ineffective assistance of counsel when his trial counsel failed to file a motion to suppress the evidence seized from his apartment. In support of this argument, Davis contends that the officers illegally entered his apartment without permission and that the illegal entry tainted any other grounds which would have justified a warrantless search. He also argues that the money and scales were not in plain view and that his and Earsery's consent to search was not voluntary.
At the evidentiary hearing, the Commonwealth presented the testimony of two detectives who testified that they performed a valid, warrantless search of Davis's apartment. The trial court had to weigh this testimony against the testimony of Earsery and Davis and make a judgment call, essentially the same judgment call it would have made had defense counsel filed the motion to suppress. The trial court believed the testimony of the detectives over that of Earsery and Davis, and both detectives also testified that they would have sought and obtained a warrant to search Davis's apartment if consent had not been given. The record reflects that the detectives had sufficient reason to believe that criminal activity was afoot, and thus a search warrant would likely have been granted. Under these circumstances, we agree with the trial court that it was not unreasonable for defense counsel to refrain from filing a motion to suppress the evidence. The United States Supreme Court has articulated the standard applicable in an ineffective assistance claim when defense counsel fails to raise a suppression issue:
Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305 (1986). We cannot say that defense counsel's decision not to file a motion to suppress amounts to ineffective assistance of counsel.
Discerning no reversible error, we affirm the orders of the Jefferson Circuit Court denying Davis's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Euva D. May
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Nate T. Kolb
Assistant Attorney General
Frankfort, Kentucky