Opinion
NO. 2015-CA-001046-MR
01-06-2017
DARIUS HARRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Heather Hodgson Assistant Public Advocate Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 06-CR-00282 OPINION
AFFIRMING
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BEFORE: ACREE, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Darius Harris was convicted of murder for shooting a convenience store owner. Harris appeals from a Kenton Circuit Court order denying his pro se motion to vacate, set aside or to correct sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. He alleges his trial counsel was ineffective for failing to adequately investigate and present mitigating evidence during the sentencing phase of the trial and for failing to object to the composition of the jury pool. He also contends he was entitled to an evidentiary hearing on his motion.
Harris was convicted of the murder by a jury following his third trial. His two previous trials resulted in mistrials with deadlocked juries. The penalty range for the murder charge was twenty to fifty years. Harris was sentenced to serve forty years, in accordance with the recommendation of the jury. His conviction was affirmed on direct appeal. Harris v. Commonwealth, 384 S.W.3d 117 (Ky. 2012).
Harris timely filed a lengthy motion and memorandum challenging his conviction pursuant to RCr 11.42. He also moved for the appointment of counsel. The trial court refused to appoint counsel and denied the RCr 11.42 motion without conducting an evidentiary hearing. This appeal followed.
In order to prove ineffective assistance of counsel, a defendant must show: (1) counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
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." Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). On appeal, the reviewing court looks de novo at counsel's performance and any potential deficiency caused by counsel's performance. Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997); McQueen v. Scroggy, 99
F.3d 1302, 1310-1311 (6th Cir. 1996), overruled on other grounds by, In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004).Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). "In appealing from the trial court's grant or denial of relief based on ineffective assistance of counsel the appealing party has the burden of showing that the trial court committed an error in reaching its decision." Id.
An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (internal citations omitted).
Harris argues that his defense counsel was ineffective for failing to investigate, prepare and present sufficient mitigating evidence at the sentencing hearing. The only mitigation witness at the penalty phase of the trial was his grandmother, who testified briefly that she helped raise Harris in accordance with the family's belief in God and the Ten Commandments, and he wished to pursue a career in sports.
In his motion, Harris argued his counsel failed to interview unspecified "key members of his family" who would have provided a history of Harris's upbringing. He argued they would have testified he was a "popular individual" who led a "good life in his community" and would have counteracted evidence introduced by the Commonwealth that he was a drug dealer. He claimed his grandmother was unaware she would be called as a witness and received no preparation prior to her testimony. Consequently, she was unaware of what testimony she was supposed to give. He also contended his attorney should have contacted the attorneys who represented him in his two prior trials.
The trial court dismissed Harris's arguments as lacking in specificity as to what mitigating evidence the additional witnesses would have provided. The circuit court cited RCr 11.42(2) which provides for summary dismissal of the motion for failure to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds."
We agree with the trial court that Harris's allegations are too vague to meet the requirements of the Rule. Although "[p]ro se pleadings are not required to meet the standard of those applied to legal counsel[,]" Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983), "the judiciary's conciliatory attitude toward unrepresented parties is not boundless[,]" Cardwell v. Commonwealth, 354 S.W.3d 582, 585 (Ky.App. 2011).
[D]efense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary. In evaluating whether defense counsel has discharged this duty, the court must determine whether a reasonable investigation should have uncovered such mitigating evidence. If so, then the court must determine if the failure to present this evidence to the jury was a tactical decision by defense counsel. If the decision was tactical, it is given a strong presumption of correctness, and the inquiry is generally at an end. However, if the decision was not tactical, then the court must evaluate whether there was a reasonable probability that, but for the deficiency, the result would have been different.Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007) (internal footnotes, quotation and emphasis omitted). The first step of this analysis must be for the claimant to identify or describe the nature of this mitigating evidence.
Harris is in the best position to identify specific family members or friends who could have testified on his behalf and provide at least a minimal description of the potential content of their testimony. The situation is clearly distinguishable from that in Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009)).
In Mills, the Kentucky Supreme Court held that the appellant was entitled to an evidentiary hearing on his claim that his counsel was deficient for failing to present compelling mitigation evidence. Id. at 341. Mills's RCr 11.42 motion pointed to a variety of evidence that could have been presented in mitigation, including, among other things, the huge impact the death of his father had on him, evidence of his mental limitations such as a low IQ and attendance in special education classes, the poverty and hardship he suffered during childhood, and the severe depression that he suffered during adulthood as evidenced by a suicide attempt. Id. By contrast, Harris's motion was devoid of any such content. Similarly, as to his claim that his attorney failed to prepare his grandmother to testify, he has not identified any mitigating proof she could have provided if her preparation had been different.
In the absence of such factual specificity, "the trial court cannot tell whether an evidentiary hearing is necessary." Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). "If general allegations . . . were sufficient, RCr 11.42 would easily be turned into a discovery device, a result which . . . is contrary to the rule's purpose." Roach, 384 S.W.3d at 140. Consequently, the trial court did not err in refusing to grant an evidentiary hearing on the claim that Harris's counsel was ineffective in regard to presenting mitigating evidence.
Next, Harris, who is African American, argues his attorney was ineffective for failing to object to the composition of the jury pool, which he contends did not represent a fair cross-section of the community because the jury pool lacked African Americans. Harris's only evidence of this is that his petit jury only had one African American on it, who served as an alternate. Harris argues the trial court erred in denying his claim because as a pro se litigant, he could not be expected to include statistics showing the number of African Americans in the county or establish their systematic exclusion.
Harris's petit jury did have one African American member, who was assigned to serve as an alternate after one of the witnesses informed the court that she was the current girlfriend of the juror's nephew. Upon questioning the juror, the trial court became concerned that he might have a preconceived negative impression of Harris and dismissed the juror for cause, but because the trial had already commenced, designated this juror as the alternate. Harris's counsel objected and requested a mistrial, arguing that the dismissal denied Harris the randomness of the alternate juror. His objection was overruled.
Other than Harris's bare complaint that the jury pool was not a representative cross-section of the community as evidenced by his petit jury, Harris has not shown that he was in any way prejudiced by the composition of the jury pool and, thus, received ineffective assistance of counsel when his counsel failed to object to the composition of that pool. We note that petit juries do not have to actually mirror the community so long as they are selected from a representative cross-section of the community. Miller v. Commonwealth, 394 S.W.3d 402, 409 (Ky. 2011). However, having one African American on Harris's petit jury was an appropriate reflection of the population of Kenton County as established by the United States Census Bureau estimates that in 2010, African Americans made up 4.6% of the residents of Kenton County, Kentucky. Therefore, having reviewed the evidence, we hold that there is no "reasonable probability that the result of the trial would have been any different or that [Harris] did not receive a fair trial[,]" Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001) (overruled on other grounds by Leonard, 279 S.W.3d at 159), because of the composition of the jury pool. Therefore, Harris's counsel's failure to object to the composition of the jury pool could not have been deficient.
We may appropriately take judicial notice of United States Census Bureau estimates pursuant to Kentucky Rules of Evidence 201.
For the foregoing reasons, the order of the Kenton Circuit Court denying Harris's RCr 11.42 motion without a hearing is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Heather Hodgson
Assistant Public Advocate
Dept. of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky