Opinion
NO. 2013-CA-001914-MR
06-05-2015
MICHAEL G. DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: J. Ryan Chailland Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NOS. 07-CR-00304 & 08-CR-00117
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE. DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: Michael Davis appeals from the Hopkins Circuit Court order affirming in part and denying in part his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Finding no abuse of discretion by the trial court, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 8, 2007, Madisonville police officers responded to a report of an alleged domestic dispute at Davis's residence. Officers testified that, upon their arrival, Davis ran from the residence and hid beneath a small bridge in a neighbor's yard. After police apprehended Davis, he began to complain of chest pains. Followed by police cruisers, an ambulance transported Davis to the Regional Medical Center. According to Officer Jason Corbitt, once in the emergency room, Davis became verbally and physically abusive to both police officers and the nursing staff. Officer Corbitt testified that Davis head butted him and spat on him. Nurse Jennifer Buchanan testified that Davis spat indiscriminately and scratched her arm, drawing blood. Several witnesses testified that Davis threatened to infect officers and nurses with HIV and Hepatitis C by spitting on them.
Davis's testimony differed considerably from that of the police officers and nursing staff. Davis testified that it was Officer Corbitt who used foul language and assaulted him. He denied assaulting Officer Corbitt and Nurse Buchanan, and also denied having or telling anyone he had HIV or Hepatitis C.
On November 14, 2008, a jury found Davis guilty of two counts of terroristic threatening, third degree; one count of assault, third degree; two counts of wanton endangerment, first degree; one count of disorderly conduct; and one count of fleeing and evading police, first degree. Davis was subsequently sentenced to sixteen-years' imprisonment.
Davis appealed to this Court as a matter of right, raising two unpreserved errors on appeal. On direct appeal, Davis first claimed the trial court erred when it allowed the prosecutor to ask him if other witnesses were lying. Second, Davis claimed that he was substantially prejudiced and denied due process of law when the prosecutor urged the jury during sentencing to impose a harsh sentence for the sake of the community. Finding no reversible error, we affirmed Davis's convictions. Davis v. Commonwealth, 2009-CA-000103-MR.
Thereafter, Davis filed a pro se motion to have his convictions and sentence vacated pursuant to RCr 11.42. The trial court appointed counsel who later supplemented Davis's motion. In his RCr 11.42 motion, Davis raised five claims of error relating to ineffective assistance of counsel: (1) trial counsel's failure to object to the Commonwealth's questioning Davis whether witnesses were lying; (2) trial counsel's failure to object to a typographical error in the jury instructions; (3) trial counsel's failure to request instructions on second-degree wanton endangerment and menacing; (4) trial counsel's failure to object to statements made by the Commonwealth Attorney during closing arguments; and (5) appellate counsel's failure to appeal the trial court's denial of a directed verdict. Following an evidentiary hearing, both sides submitted written arguments supportive of their positions.
After considering the written and oral arguments in conjunction with the evidence adduced at the evidentiary hearing, the trial court issued an order granting Davis's motion as it related to issue (2); counsel's failure to object to the typographical error contained in the jury instructions. As a result, the court vacated the judgment of first-degree fleeing and evading and set aside the three-year sentence imposed on that charge. However, the court denied relief on all other claims of error. It is from the circuit court's order Davis now appeals.
On appeal, Davis claims the trial court abused its discretion by denying relief on his allegations that trial counsel failed to object to the Commonwealth's questioning whether witnesses were lying; trial counsel failed to request instructions on second-degree wanton endangerment and menacing; and appellate counsel failed to appeal the trial court's denial of a directed verdict. Davis's allegation that trial counsel failed to object to statements made by the Commonwealth Attorney during closing arguments was not argued to us by Davis in his brief to this Court; therefore, we consider that issue waived for the purposes of this appeal.
STANDARD OF REVIEW
If an evidentiary hearing is held on an RCr 11.42 motion, we review the trial court's denial of relief under an abuse of discretion standard. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). An abuse of discretion has occurred when the trial court's "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted). While we will not disturb a trial court's findings of fact if supported by substantial evidence, we review legal issues de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citation omitted).
Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky. 1969).
ANALYSIS
Davis first argues that his trial counsel was ineffective for failing to object to the Commonwealth questioning whether witnesses against him were being untruthful. During trial, several Commonwealth witnesses testified that Davis spat at them and threatened to infect them with HIV and Hepatitis C. Testifying on his own behalf, Davis denied the Commonwealth's accusations and contradicted its proof. During its cross-examination of Davis, the Commonwealth asked, "So all those officers did not tell the truth?" and "So all of these people are making that up?" Though the questions were improper, Davis's trial counsel chose not to object. Davis appealed the error to this Court, but because his counsel failed to preserve the issue, we reviewed for palpable error pursuant to RCr 10.26. Finding no palpable error, we upheld Davis's conviction and sentence. Davis insists that had this line of questioning been objected to and preserved, he would have prevailed on direct appeal under the harmless error standard of review. We disagree.
Kentucky courts have long held the position that asking a witness to comment on the veracity of another witness is inappropriate. Howard v. Commonwealth, 227 Ky. 142, 12 S.W.2d 324 (1928). In Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), the Supreme Court of Kentucky observed that "[a] witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying. Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony." Id. at 583.
On direct appeal, reviewing for palpable error, we found that at least one question during the Commonwealth's cross-examination of Davis was impermissible under Moss. However, we held that the trial court's failure to rebuke counsel, admonish the jury, or order a mistrial did not amount to reversible error. In so holding, we noted that "we cannot agree that exclusion of the prosecutor's line of questioning necessarily would have altered the jury's finding in this matter."
At Davis's RCr 11.42 hearing, trial counsel stated that he chose not to object because the prosecutor was not badgering Davis, Davis was handling the questioning well, and the violation of Moss did not seem obvious. Counsel stated that given a chance to do it over he would probably object, but at the time Davis was doing a good job and he did not want to interrupt.
A reviewing court, in determining whether counsel was ineffective, must be highly deferential in scrutinizing counsel's performance. The tendency and temptation to second guess is strong and should be avoided. Thus, we must look to the particular facts of the case and determine whether the acts or omissions were "outside the wide range of professionally competent assistance" to the extent that the errors caused the "adversarial testing process" not to work.Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). We conduct our review under a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances, counsel's action "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Here, trial counsel testified at the evidentiary hearing that he did not object because he did not want to interrupt his client who was doing a good job of testifying. Showing appropriate deference, we do not believe counsel's strategic decision not to object was outside the realm of competent professional assistance.
Further, we remain convinced Davis was not prejudiced by the Commonwealth's inappropriate line of questioning. "[I]f upon consideration of the whole case the reviewing court does not conclude that a substantial possibility exists that the result would have been any different, the error complained of will be held to be nonprejudicial." Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App. 1986) (citation omitted). On direct appeal, after reviewing the record, we were not convinced that the exclusion of this line of questioning would have altered the jury's finding. In other words, we did not feel Davis was prejudiced. While Davis is correct that his preserved claim would have received review under the less stringent harmless error standard, a review using that standard would have produced the same result with respect to prejudice. Davis was not prejudiced by the inclusion of this questioning; therefore he was not prejudiced by his counsel's decision not to object to the questions. Finding no deficient performance and no prejudice on this issue, we cannot say counsel provided ineffective assistance.
Davis next contends that his trial counsel rendered ineffective assistance by failing to request the lesser-included offense instructions of menacing and second-degree wanton endangerment. Davis insists that he was entitled to such instructions and, if given, he would have been convicted of the lesser-included offenses. The trial court found trial counsel's decision not to request lesser-included instructions was based upon reasonable trial strategy. We, however, do not consider it necessary to judge whether or not counsel exercised reasonable trial strategy. We are not convinced that Davis was entitled to instructions on either menacing or second-degree wanton endangerment.
"A lesser-included offense is an offense that includes the same or fewer elements than the primary offense." Clark v. Commonwealth, 223 S.W.3d 90, 94 (Ky. 2007) (footnote and citations omitted). "'[I]f the lesser offense requires proof of a fact not required to prove the greater offense, then the lesser offense is not included in the greater offense, but is simply a separate, uncharged offense.'" Hudson v. Commonwealth, 202 S.W.3d 17, 21 (Ky. 2006) (quoting Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000)).
Kentucky Revised Statutes (KRS) 508.060(1) provides that "[a] person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." A defendant acts "wantonly . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." KRS 501.020(3). KRS 508.050(1) provides that a person is guilty of menacing if "he intentionally places another person in reasonable apprehension of imminent physical injury." The elements of menacing require the Commonwealth to prove intentional conduct by the defendant and a reasonable apprehension of physical injury by the victim. Conversely, first-degree wanton endangerment requires the Commonwealth prove wanton conduct and a risk of death or serious physical injury. Proof of intentional conduct on the part of the defendant and proof of the subjective belief of the victim is not required to establish first-degree wanton endangerment. Because the Commonwealth would be required to prove facts not required to prove first-degree wanton endangerment, menacing is not a lesser-included offense of first-degree wanton endangerment. Therefore, Davis was not entitled to an instruction on menacing on the premise that it is a lesser-included offense.
Having concluded that Davis was not entitled to an instruction on menacing, we now turn to Davis's contention that he was entitled to an instruction on second-degree wanton endangerment. Second-degree wanton endangerment is indeed a lesser-included offense of first-degree wanton endangerment. The trial court is required to give jury instructions "applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony." Lee v. Commonwealth, 329 S.W.2d 57, 60 (Ky. 1959). An instruction on a lesser-included offense is required only if, based on the evidence presented at trial, "'a reasonable juror could entertain reasonable doubt of the defendant's guilt of the greater charge, but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense.'" Thompkins v. Commonwealth, 54 S.W.3d 147, 151 (Ky. 2001) (citation omitted).
KRS 508.070(1) provides that "[a] person is guilty of wanton endangerment in the second degree when he wantonly engages in conduct which creates a substantial danger of physical injury to another person." The differences between first- and second-degree wanton endangerment are the mental state and degree of danger created. Combs v. Commonwealth, 652 S.W.2d 859, 860 (Ky. 1983). As to the mental state, both crimes require wanton behavior, but first-degree also requires "circumstances manifesting extreme indifference to the value of human life," which has been described as aggravated wantonness. Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005). As to the danger created, first-degree requires a substantial danger of death or serious physical injury, whereas second-degree requires only a substantial danger of physical injury. Combs, 652 S.W.2d at 861.
Here, the Commonwealth's evidence established, through testimony referencing Davis's words and actions, that Davis showed an extreme indifference to the value of human life rather than mere wantonness. The Commonwealth's evidence further established that the risk Davis created by spitting at nursing staff and police officers was that they would contract HIV and Hepatitis C and eventually die.
Based on the Commonwealth's proof, we conclude that the jury could not have found that Davis's conduct demonstrated mere wantonness and a risk of simple physical injury. Thus, Davis was not entitled to an instruction on second-degree wanton endangerment as the charge was not supported by the evidence. Having concluded Davis was not entitled to instructions on either menacing or second-degree wanton endangerment, it cannot be said Davis's trial attorney was ineffective for failing to request those instructions.
Finally, Davis contends that his appellate counsel was ineffective for failing to appeal the trial court's denial of his motion for a directed verdict on the charges of first-degree wanton endangerment. He argues that because this preserved issue was stronger than those that were ultimately presented on direct appeal, appellate counsel's failure to raise the issue constitutes deficient performance. He insists he was prejudiced because he would have prevailed on this issue had it been presented.
To prevail upon an ineffective assistance of appellate counsel claim, Davis must establish the "familiar 'deficient-performance plus prejudice' standard applied to claims of ineffective trial counsel[.]" Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010) (internal quotations omitted). Specifically, Davis must prove that his appellate counsel's failure to raise a nonfrivolous issue on appeal was deficient, rather than a matter of appellate strategy, objectively unreasonable, and, absent this deficient performance, there is a reasonable probability he would have prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Hollon, supra. After considering the record and applicable law, we conclude Davis was not prejudiced by his appellate counsel's failure to raise the directed verdict issue on direct appeal because, had the issue been raise, he would not have prevailed.
When asked to review a trial court's denial of a directed verdict "we are to affirm . . . unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (citation and internal quotes omitted). Evidence is to be considered in the strongest possible light favoring the opposing party. The reviewing court is not to make determinations regarding credibility or weight of the evidence. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "[T]he trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence." Id. at 187-188. We may not disturb the trial court's ruling unless the decision is clearly erroneous. Peters v. Wooten, 297 S.W.3d 55, 65 (Ky. App. 2009).
At the close of trial, arguing that there was no proof that he was actually infected with HIV or Hepatitis C, Davis moved for a directed verdict on the charge of first-degree wanton endangerment as it pertained to Officer Jason Corbitt. The trial court denied his motion. Davis then moved for a directed verdict on the charge of first-degree wanton endangerment as it related to Nurse Buchanan, this time arguing that merely spitting at someone, but not hitting them, was insufficient to establish wanton endangerment. That motion too was denied. Davis argues that both motions should have been granted because the Commonwealth did not establish that he had HIV or Hepatitis C, nor did it establish that HIV or Hepatitis C can be transferred by spitting on someone.
After reviewing the evidence, we believe the Commonwealth met its burden of producing more than a scintilla of evidence for each essential element necessary to establish the offense of first-degree wanton endangerment. Contrary to Davis's assertion, the Commonwealth presented to the jury evidence that Davis was HIV and Hepatitis C positive and that he was aware of that fact. Several witnesses testified that they overheard Davis repeatedly announce that he had HIV and Hepatitis C while threatening to infect Officer Corbitt and Nurse Buchanan with the diseases. Additionally, a hospital supervisor testified that on every occasion Davis visited the hospital prior to this incident, he reported to hospital staff that he had Hepatitis C. The Commonwealth further provided evidence, through witness testimony, that Davis spat indiscriminately at police officers and nurses in an expressed desire that they contract the diseases and die.
The Commonwealth also submitted proof that HIV and Hepatitis C were communicable via saliva. The record indicates Nurse Buchanan testified that HIV is contained in saliva and that there is a risk of contracting the disease when a person comes in contact with saliva containing the virus. As a reviewing court, we are precluded from making determinations regarding the credibility of witnesses. Our only function "is to consider the decision of the trial judge in light of the proof presented." Benham, 816 S.W.2d at 187. Considering the evidence presented, we cannot say that it was unreasonable for the trial court to deny Davis's motion for a directed verdict. Because Davis would not have prevailed had appellate counsel raised the directed verdict issue on direct appeal, we hold that Davis was not prejudiced by appellate counsel's decision.
For the foregoing reasons, we affirm the order of the Hopkins Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: J. Ryan Chailland
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky