Opinion
NO. 2013-CA-000521-MR
05-30-2014
RAYMOND GARNER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Joshua A.K. McWilliams Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
ACTION NO. 07-CR-00111
OPINION
AFFIRMING
BEFORE: JONES, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: The appellant, Raymond Garner, appeals an order of the Whitley Circuit Court denying his request for an evidentiary hearing made pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. We affirm.
This action arises from an automobile accident that resulted in the deaths of three people, including an unborn child, and the serious injury of four others. On direct appeal the Supreme Court of Kentucky affirmed Garner's conviction and summarized the facts as follows:
On the day of the accident, appellant was in the process of moving from Tennessee to northern Kentucky. He, along with his brother and sister-in-law, spent the day loading his pickup truck and a trailer for the move. The three drank beers as they worked. Appellant also took some prescription diazepam (also known as Valium) that day. When packing was done, Appellant's brother and sister-in-law left and drove north. Appellant remained behind to conclude some business related to the sale of his home. He also bought a box of wine.Garner v. Commonwealth, 2009 WL 3165537, *1 (Ky. 2009).
Appellant began driving his truck and trailer north on I-75 later that evening. As he drove, Appellant drank wine. Just south of Williamsburg, Kentucky, he lost control of his truck, crossed the median into oncoming traffic, and struck a car being driven by Peter Pontikis in which his two sons were passengers, and then struck a van being driven by Cindy Haas, who was seven months pregnant, and in which six passengers were riding. Cindy Haas and her unborn fetus and one of Pontikis's sons died. Pontikis and his other son, along with two other people in the van, suffered serious injuries.
A test of Appellant's blood revealed an alcohol content of .18g/100ml and the presence of drug metabolites. Appellant had been convicted of driving under the influence twice in the five years preceding the accident. His driver's license was also suspended as a result of his latest conviction, which had occurred only two months before the crash.
Appellant was indicted for two counts of wanton murder; one count of fetal homicide; four counts of first-degree assault; one count of driving under the influence (DUI), third offense; and one count of driving while his license was suspended for DUI. Just prior to trial, appellant entered a guilty plea to the DUI and driving while his license was suspended. At trial, the jury found
Appellant guilty of the remaining charges. Appellant was sentenced to life in prison.
Garner's RCr 11.42 motion alleges that his attorney failed to investigate other potential causes of the accident. Specifically, Garner alleges that if his attorney had presented evidence regarding the deficiencies of the trailer, the manner in which it was loaded, and the actions of the driver in front of him, the jury would not have convicted or would have convicted him of a lesser offense. The circuit court declined to hold an evidentiary hearing determining the matter on the face of the record. On appeal, Garner claims the court's denial was in error because he alleged facts that are not in the record; therefore, he is entitled to a hearing. We disagree.
Relief under RCr 11.42 requires Garner to demonstrate that the outcome of the trial was prejudiced by his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish prejudice he must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. If allegations contained in an RCr 11.42 motion cannot be refuted by the record, the court must only hold a hearing if the allegations, taken as true, would entitle the party to relief. Fraser v. Commonwealth, 59 S.W.3d 448, 452-53 (Ky. 2001). In other words, the court is not required to hold a hearing if the allegations would not entitle the party to relief. That is the case here.
A person is guilty of murder when: "[i]ncluding but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person." Kentucky Revised Statutes (KRS) 507.020(1)(b). The same factors are required for a conviction under the fetal homicide statute. KRS 507A.020(1)(b).
A person acts wantonly with respect to a result or to a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstances exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in a situation. A person who creates such a risk but is unaware therefore solely by reason of voluntary intoxication also acts wantonly with respect thereto.KRS 501.020(3).
The evidence alleged by Garner does not mitigate his actions, but instead contributes to the conclusion that he acted wantonly and with an extreme indifference to human life. Furthermore, our review of the record reveals that evidence regarding the state of the tires, the trailer, and the other driver was presented during the trial. The evidence at trial also included expert testimony that Garner's blood alcohol level was .25 g/100ml at the time of the wreck and revealed that he was traveling 93 miles per hour, did not apply his brakes, and was accelerating at the time of the crash. In light of the strong evidence of guilt, and even accepting all of Garner's allegations as true, there is no reasonable probability that the outcome of this case would have been different had his attorney employed a different strategy.
His blood alcohol content when he reached the hospital was .18g/100ml.
The car contained an airbag deployment system that records the circumstances surrounding deployment including the speed, acceleration, and application of the brakes during the time leading up to the crash.
For the foregoing reasons, the decision of the circuit court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Joshua A.K. McWilliams
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan Morrow
Assistant Attorney General
Frankfort, Kentucky