Opinion
NO. 2019-CA-001146-MR
05-01-2020
SHAUN HENRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shaun Henry, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 14-CR-00160 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Shaun Henry appeals from an order of the Muhlenberg Circuit Court denying his RCr 11.42 motion to vacate his convictions for various crimes. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(1)(b) of the Kentucky Constitution.
Kentucky Rules of Criminal Procedure.
FACTS
The Kentucky Supreme Court summarized the facts of this case when it affirmed Henry's conviction on direct appeal:
Trooper John McGehee was on late-night patrol when he observed Henry sitting in a swing in the yard of a residence. Trooper McGehee testified that when Henry became aware of the trooper's presence, he saw Henry "take a slim white object, approximately three inches in length, from his mouth and place it underneath his right shoe." This action seemed unusual or even suspicious to Trooper McGehee, prompting him to stop his cruiser, get out, and approach Henry.Henry v. Commonwealth, No. 2014-SC-000722-MR, 2016 WL 6125694, at *1 (Ky. Oct. 20, 2016).
Trooper McGehee then engaged Henry in conversation, asking "what's up, man." Henry replied that he had finished smoking a cigarette. Trooper McGehee then saw on the concrete pad underneath the swing a cigarette. He believed it to be a marijuana joint that Henry had placed there and covered with his shoe to conceal it from the trooper's gaze. The trooper asked Henry whether it was his. Henry did not respond. Henry got up from the swing, allegedly shoved Trooper McGehee aside, and took off running. The trooper chased Henry and subdued him after they wrestled in a ditch filled with water and mud. As a result of the altercation, Trooper McGehee suffered a minor injury, his uniform was damaged, and his Taser was destroyed. Further examination of the cigarette revealed it in fact contained marijuana laced with cocaine.
A grand jury indicted Henry and charged him with several criminal offenses. Prior to trial, he moved the trial court to suppress evidence of the charges against him. The Supreme Court described the suppression proceeding as follows:
Pending trial, Henry moved to suppress evidence of the charges against him on the theory that Trooper McGehee lacked reasonable suspicion of criminal wrongdoing in the first instance, and as such, his initial conversation with Henry amounted to an illegal stop under Terry v. Ohio. Following an evidentiary hearing, the trial court found that McGehee was free to approach Henry and engage him in conversation and Henry's apparent concealment of the suspected cigarette upon observing the presence of the trooper was sufficient to arouse a reasonable suspicion. Therefore, the trial court denied Henry's suppression motion.Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
The case proceeded to trial on November 13, 2014, and the charges against Henry were third-degree assault, first-degree criminal mischief, first-degree possession of a controlled substance (cocaine), possession of marijuana, and being a first-degree persistent felony offender. The jury found Henry not guilty on the charge of third-degree assault but found him guilty of the remaining charges.
Kentucky Revised Statutes (KRS) 508.025.
Pursuant to the jury's recommendation, the trial court sentenced Henry to five years on first-degree criminal mischief enhanced to 20 years by the first-degree persistent felony conviction, three years on first-degree possession of a controlled substance, and 45 days on possession of marijuana. All sentences were ordered to run concurrently for a total of 20 years. Our Supreme Court unanimously affirmed the convictions and sentences on direct appeal. Id. at *4.
On March 25, 2019, Henry filed a motion to vacate his convictions and sentences pursuant to RCr 11.42. In an order entered on June 7, 2019, the trial court denied the motion as well as Henry's motion for an evidentiary hearing. This appeal followed.
STANDARD OF REVIEW
Henry's claims are all based on arguments that he received ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court stated the standard of review for claims of ineffective assistance of counsel as follows:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. 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.Id., 466 U.S. at 687, 104 S.Ct. at 2064. Thus, in order to successfully make an ineffective assistance of counsel claim, a defendant must prove: (1) trial counsel's performance was deficient; and (2) the deficiency resulted in prejudice to the defendant. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011).
On appellate review, "[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." Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (quoting Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968)). "A post-conviction petitioner's burden is heavy because '[s]urmounting Strickland's high bar is never an easy task.'" Williams v. Commonwealth, 336 S.W.3d 42, 48 (Ky. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)).
Concerning whether an evidentiary hearing is necessary, our Supreme Court held in Commonwealth v. Searight, 423 S.W.3d 226 (Ky. 2014), as follows:
This Court has consistently held that a hearing is not necessary when a trial court is able to resolve issues on the basis of the record or when it determine[s] that the allegations, even if true, would not be sufficient to invalidate [the] convictions. Because no evidentiary hearing was held in this instance, our review is limited to determining whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.Id. at 231 (internal quotation marks and citations omitted).
COMPOSITION OF THE JURY PANEL
Henry's first claim on appeal is that his counsel rendered ineffective assistance when she failed to challenge the composition of the jury panel, which he claims contained no African Americans. Henry argued to the trial court that, according to U.S. Census information, African Americans make up five percent of the population in Muhlenberg County and that there should have been at least three African Americans on the panel.
The trial court rejected this argument without an evidentiary hearing, stating that Henry "appears to be utilizing U.S. Census statistics regarding the percentage of African-Americans making up the total population in Muhlenberg County, instead of information on the percentage of African-Americans making up the county population eligible for jury service." (Emphasis in original.) The court stated that the comparison used by Henry was specifically condemned in Ford v. Commonwealth, 665 S.W.2d 304 (Ky. 1983). In discussing the burden of proof to establish a prima facie case of underrepresentation, our Supreme Court held in Ford that one step is that "the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time." Id. at 306-07 (quoting Moultrie v. Martin, 690 F.2d 1078, 1081 (4th Cir. 1982)).
A defendant has a Sixth Amendment right to a jury which represents "a fair cross section of the community." Duren v. Missouri, 439 U.S. 357, 359, 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979) (footnote omitted); see also Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975). Further, the United States Supreme Court stated in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940):
For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.Id., 311 U.S. at 130, 61 S.Ct. at 165 (footnote omitted).
In Mash v. Commonwealth, 376 S.W.3d 548 (Ky. 2012), our Supreme Court stated as follows:
To succeed on a challenge to the racial composition of the jury panel, a defendant must show: "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.'" Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The burden is on the defendant to make this showing. Johnson v. Commonwealth, 292 S.W.3d 889, 894 (Ky. 2009). "It is not enough to merely allege a particular jury failed to represent the community." Miller v. Commonwealth, [394 S.W.3d 402, 409] (Ky. 2011).Id. at 552. The Supreme Court further stated:
A defendant may demonstrate systematic exclusion by providing statistical information showing that a particular group was underrepresented in a county's jury panels over a period of time. Alternately, a defendant may show that something about the way a county selects its jury panels or creates its master list of jurors leads to systematic exclusion of a particular group.Id. at 552-53 (citations omitted).
We first note that although Henry states in his brief and the Commonwealth agrees that there were no African Americans on the jury panel, his memorandum of law in support of his RCr 11.42 motion to the trial court states that one African American was called to serve but was stricken by the Commonwealth because she failed to disclose in voir dire that the prosecutor had prosecuted her husband for drug charges. Furthermore, Henry provides no information in either his motion, his memorandum of law, or his brief herein as to how many African Americans were on the jury panel, including those jurors who were not present for the selection of the jury on the day of the trial. Without that information, Henry's proof as to the proportion of African Americans to the total number on the jury panel compared to the proportion of African Americans to the general population in the county was lacking.
See page 6 of Henry's "Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Judgment and Sentence Pursuant to RCr 11.42 & RCr 10.26."
In any event, rather than emphasize certain statistics, Henry merely asserts that "Blacks are a recognized group in Muhlenberg County by the U.S. Census, and to what extent of the voter registration, and to what period of time is unknown by Henry[.]" He instead argues that he received ineffective assistance of counsel because his trial counsel did not raise the issue prior to the commencement of the trial. He claims he was prejudiced by such failure because he was not given a more diverse jury panel and also, because his counsel failed to raise the issue, the issue was not preserved for appeal.
The flaw in Henry's argument is that, contrary to his assertion, he has not demonstrated he was prejudiced by counsel's failure to raise the issue. In order to demonstrate prejudice, Henry must at least demonstrate that the proportion of African Americans on the entire jury panel compared to the proportion of African Americans in the community was not fair and reasonable and that such underrepresentation was due to systematic exclusion in the jury-selection process. Mash, 376 S.W.3d at 552. Further, Henry failed to present evidence to the trial court that any underrepresentation occurred over a period of time, which is a requirement that must be met to prove unfair underrepresentation. Id. at 552-53.
While systematic exclusion may be established by statistical information showing that African Americans were underrepresented in the jury panel, Henry has not asserted that the trial court erred in determining that the information (U.S. Census statistics) he provided was insufficient. As our Supreme Court stated in Mash:
Even if this court were to take judicial notice of the census information showing the number of African Americans in McCracken County, Appellant still has not provided enough information to meet his burden under the second and third prongs of Duren. This court has held that mere citation to census data, without any other information, is not enough to show underrepresentation or systematic exclusion. Miller, [394] S.W.3d at [410] (holding that defendant had not established that African Americans were unreasonably underrepresented when his only evidence on the issue was a reference to the 2010 U.S. Census); Johnson, 292 S.W.3d at 895.Id. at 552. See also Ford, 665 S.W.2d at 306-07.
In Mash, the defendant argued that while 11.4% of the population in McCracken County was African American, only one out of 42 potential jurors on the jury panel (not counting the eight or nine that were not present) was African American, thereby violating the fair cross-section requirement. Id. at 551-52. Due to lack of further information to support his claim, our Supreme Court rejected this argument. Id. at 553.
In short, in the absence of more than a bare assertion that his trial counsel failed to raise the issue and, further, in the absence of sufficient evidence to establish a prima facie case of underrepresentation in accordance with the three- prong test set forth in Mash, we decline to accept Henry's argument that it was ineffective assistance of counsel in failing to ask the trial court for a more diverse jury. Further, because Henry's allegations in this regard were insufficient to indicate there was a fair cross-section violation, no evidentiary hearing was required.
Henry's argument that he was entitled to a more diverse jury than the one that tried him is without merit. While "petit juries must be drawn from a source fairly representative of the community[,]" there is "no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Taylor, 419 U.S. at 538, 95 S.Ct. at 702. See also Miller, 394 S.W.3d at 409.
Henry did not argue in his brief that he was entitled to an evidentiary hearing on this issue. Rather, he argued that it was error not to grant the motion because his trial counsel rendered ineffective assistance by not raising the issue.
COUNSEL'S DUTY TO INVESTIGATE
Henry next argues that his counsel failed to conduct an investigation into the layout of the property and that had he done so, he would have known Trooper McGehee could not have seen Henry in the swing and there would have been no probable cause (or reasonable articulable suspicion) for the investigative stop.
"Under Strickland, defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (citation omitted). If counsel's performance in this regard was deficient, it must be determined whether there is a reasonable probability that, but for counsel's errors, the result would have been different. Id.
At the suppression hearing on Henry's suppression motion prior to trial, the credibility of Trooper McGehee's testimony that he was able to see Henry in the swing from his vehicle was attacked by Henry's counsel on cross-examination. Following the hearing, the trial court denied the suppression motion and held that the trooper had a reasonable articulable suspicion to support a stop. Further, the trial court held that no reasonable articulable suspicion was necessary to support the legality of the trooper's initial interaction with Henry.
In its order denying Henry's RCr 11.42 motion, the trial court held that the trooper testified consistently on three separate occasions concerning the premises and that the trial court "cannot conclude that the Defendant would have likely avoided conviction had defense counsel or her investigator visited the crime scene."
Regardless of the propriety of the trial court's ruling, we agree with the Commonwealth that, regardless of whether there was a reasonable articulable suspicion to make the stop, no such suspicion was necessary for the trooper to stop, enter the property, approach Henry, and engage him in conversation, as he did.
In United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), the U.S. Supreme Court held:
Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage—provided they do not induce cooperation by coercive means.Id., 536 U.S. at 200-01, 122 S.Ct. at 2110 (citations omitted). "Areas outside the home, such as the front door, driveways, or walkways, 'do not carry a reasonable expectation of privacy because they are open to plain view and are properly approachable by any member of the public . . . .'" Maloney v. Commonwealth, 489 S.W.3d 235, 241 (Ky. 2016) (quoting Quintana v. Commonwealth, 276 S.W.3d 753, 758 (Ky. 2008)). Further, such areas approachable by the general public likewise "would include inquisitive police officers." Id.
Thus, regardless of whether Henry's trial counsel conducted a reasonable investigation concerning the layout of the premises, there could be no ineffective assistance of counsel in this regard where the trooper approached Henry in a lawful manner and engaged him in conversation.
We do not accept the trial court's ruling on this issue that the consistent testimony of the trooper during the proceedings was sufficient grounds for holding there was lack of a duty to investigate. Rather, we affirm the trial court on this issue for the reason we have stated. "[I]t is well-settled that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation omitted).
LESSER-INCLUDED OFFENSE
Henry's next argument is that he received ineffective assistance of counsel because his trial counsel failed to request the trial court to instruct the jury on a charge of resisting arrest as a lesser-included offense of first-degree criminal mischief. He acknowledges, however, that "resisting arrest is not per se a lesser included offense of the Criminal Mischief." The significance of this argument raised by Henry is that it was the criminal mischief conviction that led to his 20-year sentence.
The facts in this regard are that Henry attempted to flee from the trooper and a scuffle ensued when the trooper caught him. The scuffle resulted in damage to the trooper's equipment and uniform and led to the criminal mischief charge. Henry was not charged with resisting arrest but was charged with third-degree assault.
Because the jury acquitted Henry of the assault charge, Henry suggests that it might have convicted him of resisting arrest in connection with the incident rather than criminal mischief had that charge been given as a lesser-included offense. Regardless, the law does not support Henry's argument.
"[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." Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000) (citation omitted). An instruction for resisting arrest requires proof that the perpetrator intentionally prevents, or attempts to prevent, an officer from effectuating his arrest by use of physical force, or any other means which creates a substantial risk of physical injury. See KRS 520.090. On the other hand, an instruction for first-degree criminal mischief requires proof that the perpetrator "intentionally or wantonly defaces, destroys or damages any property causing pecuniary loss of $1,000 or more." KRS 512.020(1). Thus, as each offense requires proof of a fact that the other does not, resisting arrest is not a lesser-included offense of first-degree criminal mischief.
Therefore, Henry's trial counsel was not ineffective in not requesting the lesser-included offense because it would have been futile to do so. "It is not ineffective assistance of counsel to fail to perform a futile act." Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002). Thus, Henry was not entitled to an evidentiary hearing in this regard.
EVIDENTIARY HEARING
Henry's last argument is that he was entitled to an evidentiary hearing on the issue of whether he received ineffective assistance of counsel on his trial counsel's alleged failure to investigate the layout of the property. He asserts that if counsel had investigated, he would have learned that Trooper McGehee could not have seen a marijuana joint on Henry from his vehicle, and the evidence would have been suppressed. Because, as discussed above, the trooper had the right to enter the property even without a reasonable articulable suspicion, Henry was not entitled to an evidentiary hearing.
CONCLUSION
We conclude the trial court did not err in denying Henry's RCr 11.42 motion to vacate his convictions and in denying Henry an evidentiary hearing. Thus, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Shaun Henry, pro se
Burgin, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky