Opinion
NO. 2015-CA-001563-MR
06-02-2017
TIMMY LEE JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Heather Hodgson Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 10-CR-00241 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, D. LAMBERT AND NICKELL, JUDGES. COMBS, JUDGE: Timmy Lee Jackson brings this appeal from a June 3, 2015, order of the Bell County Circuit Court denying his motion to vacate, set aside, or amend judgment. He had filed his motion pursuant to RCr 11.42. After our review, we affirm.
Kentucky Rules of Criminal Procedure.
The facts of this case were previously set forth as follows by the Supreme Court of Kentucky affirming Jackson's conviction in an unpublished opinion as follows:
Timmy Lee Jackson was indicted for two counts of rape in the first degree, and persistent felony offender in the second degree after a seven-year-old girl alleged that Jackson had sexual contact with her. The victim, "Kelly," was the daughter of Jackson's ex-girlfriend. Jackson had lived with Kelly and her mother for three years. Over the course of several interviews with various social workers, Kelly recounted multiple instances of rape, sodomy, and sexual abuse inflicted by Jackson. In addition to verbalizing her story, Kelly also used drawings and dolls to depict the alleged attacks. A physical examination, conducted eighteen months after the alleged abuse, was inconclusive regarding physical evidence of rape or sexual assault.Jackson v. Commonwealth, No. 2012-SC-000259-MR, 2014 WL 702203 (Ky. 2014). Subsequently, Jackson appealed his conviction and sentence to the Supreme Court of Kentucky, which affirmed. Id.
Kelly was permitted to testify at Jackson's trial following an in-chambers competency hearing. The jury also heard the testimony of a social worker, a teacher, and a police officer involved in Kelly's investigation. At the conclusion of the trial, the Bell County jury convicted Jackson of one count of first-degree rape, four counts of first-degree sodomy, and one count of first-degree sexual abuse. The jury recommended a twenty-year sentence for the rape and for each of the sodomy convictions, and a ten-year sentence for the sexual abuse conviction[ ] [sic]. The jury further recommended that the rape and sexual abuse convictions run consecutively and that the sodomy convictions run concurrently. The trial court imposed a total sentence of fifty years' imprisonment.
"Kelly" is a pseudonym our Supreme Court used in its opinion to protect the privacy of the minor child involved. We continue to use that pseudonym in our opinion.
Thereafter, on December 23, 2014, Jackson, pro se, filed his motion to vacate pursuant to RCr 11.42, raising nineteen allegations of ineffective assistance of trial counsel. On June 3, 2015, the trial court denied Jackson's motion without holding an evidentiary hearing. This appeal follows.
On appeal, Jackson has abandoned all but two of the arguments that he raised before the trial court. Jackson argues that he received ineffective assistance of counsel when trial counsel: 1) introduced to the jury Kelly's forensic interview and the drawings made by the minor child made during that interview; and 2) failed to insure the attendance of necessary witnesses in order to mount a viable defense.
In order to establish ineffective assistance of counsel, a person must satisfy a two-part test showing both: (1) that counsel's performance was deficient and (2) that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair. Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). In assessing counsel's performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms "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) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In order to establish actual prejudice, a defendant must show a reasonable probability that the outcome of the proceeding would have been different or that it was rendered fundamentally unfair. Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky. 1998).
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). When, as here, the trial court declines to hold an evidentiary hearing, our review is limited to "whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
Jackson first claims that his trial counsel rendered ineffective assistance when he introduced the recording of Kelly's forensic interview and the drawings she made during the interview as part of the defense's case-in-chief. He contends that he was prejudiced by this evidence because it showed the jury that the victim had made prior consistent statements regarding the alleged sexual abuse. He states that he was further prejudiced because the video contained statements of uncharged crimes and other acts that served only to inflame the jury. The trial court held that trial counsel's decision to introduce the video and drawings was reasonable trial strategy. We agree.
Prior to trial, Kelly underwent a taped forensic interview with a counselor at the Cumberland Valley Children's Advocacy Center in London. Kelly was seven years of age at the time of the interview. During the interview, Kelly discussed the alleged sexual abuse through a series of drawings she made that included herself and Jackson. While making the drawings, Kelly discussed with the counselor the alleged acts of sexual abuse.
In addition to describing the acts of abuse, Kelly discussed various other matters. These matters included Kelly's belief that: Jackson had killed her younger sister, Adrian, because Jackson was mean; she had watched movies with Jackson and her mother in which children and adults were having sex with each other; Kelly's mother told Kelly not to tell the counselor everything Kelly's mother used to do; and Jackson had a tattoo on his genitals. Kelly also described an incident in which she witnessed Jackson kill a young girl by cutting her neck with a knife. She stated that after Jackson had intercourse with the corpse, he buried it in a graveyard.
During the interview, the counselor emphasized the importance for Kelly to tell her only things that really happened. Kelly agreed to do so, but she subsequently admitted to fabricating an incident involving her mother. However, Kelly remained adamant that the incident involving the murder of the little girl actually occurred.
When reviewing ineffective assistance of counsel claims, appellate courts must give wide latitude to trial counsel's judgment and strategies.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations and internal quotation marks omitted).
The record in this case demonstrates that trial counsel's decision to introduce the forensic video and drawings into the record was a tactical decision made by both trial counsel and Jackson. Before introducing the video and drawings into evidence, the trial court asked Jackson if he had elected to use the evidence as part of his trial strategy. He replied in the affirmative. Nevertheless, the test for ineffective assistance of counsel requires a determination of whether strategic decisions were reasonable in light of all of the facts and circumstances known to counsel and the defendant at the time. Strickland, 466 U.S. at 690, 104 S.Ct at 2066 (1984). Here, trial counsel's strategic decision—approved by Jackson—was reasonable under the circumstances.
In a clear impeachment effort, trial counsel used the video to point out to the jury some of the false statements Kelly made throughout the entirety of the interview. For instance, trial counsel forced Kelly to admit that she did not see Jackson kill a little blonde haired girl. Counsel also used the false statements contained in the video to attack Kelly's credibility in closing argument. It is a reasonable trial tactic for trial counsel to utilize evidence to attack the credibility of a Commonwealth's witness and to undermine its case. Similarly, the decision to introduce the drawings was reasonable in light of the introduction of the video. If counsel had not introduced the drawings, the jury would have been left to speculate as to their content and degree of detail.
Jackson complains that Kelly's outrageous statements made during the interview could have been introduced through the forensic interviewer or through Kelly without resort to the video. While this may or may not be true, it is not the function of this Court to usurp or second guess counsel's trial strategy. Baze v. Commonwealth, 23 S.W.3d 619, 624 (Ky. 2000). Counsel's choice on how to present evidence falls within the purview of trial strategy. In this case, counsel's choice to introduce the forensic video was reasonable under the circumstances.
Jackson next claims that his counsel was ineffective for failing to ensure the attendance of necessary witnesses in order to mount a viable defense. Specifically, he claims that counsel should have called Kelly's mother and an expert on false memories to testify at trial. Regarding Kelly's mother Jackson contends that trial counsel could have delved into her inappropriate influences on Kelly's testimony. In his brief to the trial court, Jackson states that Kelly's mother "could have provided great insight into why [Kelly] said a lot of things she said" and that "it could be proven that [Kelly's mother] was very vindictive towards boyfriends who make her mad and even had a history of using her daughter to do so."
We agree with the trial court that the nature of Kelly's mother's testimony is purely speculative. There is no suggestion in the motion as to the content of Kelly's mother's testimony that would have helped Jackson's case. Vague allegations as to what testimony a witness might have provided are insufficient to support an RCr 11.42 motion and do not warrant an evidentiary hearing:
We decline to allow defendants who support RCr. 11.42 motions with only vague allegations as to what testimony witnesses would have provided to benefit from their self-created ambiguity by granting them entitlement to an evidentiary hearing that they would otherwise not be entitled to upon their simple argument that the exact content of the suggested witness's testimony is unknown to the court.Commonwealth v. Searight, 423 S.W.3d 226, 232 n. 20 (Ky. 2014). For this reason, Jackson's claim regarding Kelly's mother is untenable.
Jackson next contends that without having a witness who was competent to testify concerning false memory, trial counsel was unable to undermine the implied credibility of the forensic process or to demonstrate how the jury could find that Kelly truly believed what she stated -- even though it might not be factually accurate. The trial court once again properly dismissed Jackson's claim as to the expert on the ground that it is too speculative.
In Mills v. Commonwealth, 170 S.W.3d 310 (Ky. 2005), the Supreme Court of Kentucky rejected a claim that a mental health expert should have been retained to explore possible effects of the defendant's mental health during his childhood: "a claim that certain facts might be true, in essence an admission that Appellant does not know whether the claim is true, cannot be the basis for RCr 11.42 relief." Id. at 328 (overruled in other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Similarly, in this case, Jackson's assertion that an expert on false memories could have helped him fails because he has not explained precisely how his theory of false memories is supported by the facts. In essence, he argues that the expert should have been retained because he might be able to undermine the victim's credibility. Such a claim is too speculative and insufficient to warrant RCr 11.42 relief. Id. at 325.
We affirm the order of the Bell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Heather Hodgson
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky John Paul Varo
Assistant Attorney General
Frankfort, Kentucky