Opinion
NO. 2013-CA-001810-MR
03-13-2015
EDWARD JACOBSEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Edward Jacobsen, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 09-CR-00437
OPINION
AFFIRMING
BEFORE: CLAYTON, KRAMER, AND NICKELL, JUDGES. NICKELL, JUDGE: Jurors convicted Edward Jacobsen of robbery in the first degree in March 2010. Determining Jacobsen to be a persistent felony offender in the second degree (PFO II), he was sentenced to a term of twenty years, enhanced to thirty years by virtue of his PFO II status. Jacobsen now appeals from the Fayette Circuit Court's denial of his RCr 11.42 motion alleging ineffective assistance of trial counsel. He claims counsel was ineffective in three ways—failing to adequately cross-examine adverse witnesses; failing to argue inconsistencies in the Commonwealth's proof during closing argument; and, failing to investigate and prepare a defense. Having reviewed the record, the briefs and the law, we affirm.
Kentucky Rules of Criminal Procedure.
In his brief, Jacobsen states two attorneys, Hon. Robert Friedman and Hon. Connie Sorafini, were appointed to represent him. In the order being challenged, the trial court mentions only Friedman as representing Jacobsen. The reference to Sorafini is most likely a reference to Connie "Serafini," the official court recorder. The Commonwealth's response to the motion to vacate references a second defense attorney, Hon. John Landon.
FACTS
In 2012, the Supreme Court of Kentucky affirmed Jacobsen's conviction on direct appeal. Jacobsen v. Commonwealth, 376 S.W.3d 600, 604-05 (Ky. 2012). We recite the underlying facts of this case from that decision.
The manager of the Versailles Road Cash Advance store, Dena Fallon, testified that on September 5, 2008, at about 10:00 a.m., she was at work in the store by herself when an older man entered, came to the customer counter, and demanded the money from the cash drawer. He placed his hand on the counter, and Ms. Fallon realized that he was holding a gun, which he pointed at her abdomen. She gave him the money—a bit more than $500.00—and he then ordered her to lie face down on the floor and to count to twenty-five. Ms. Fallon counted to forty-five, she testified, to give the man plenty of time to leave, at which point she got up, locked the door, and called the police. To the responding officer she described the robber as a white male between sixty and seventy years old, not much taller than she is—she is about 5'4"—and about 160 to 170 pounds. He was wearing, she said, blue jeans and a long-sleeved red-and-blue flannel shirt over a grey T-shirt. He wore glasses with darkened lenses and a
red baseball type cap. Ms. Fallon also described the gun as a black, small caliber semi-automatic.
The responding officer testified that Ms. Fallon was visibly shaken, but that after she had calmed down some, he left her and interviewed Lori Harris, the property manager for the strip mall where the Cash Advance store is located, and whose office was only a couple of doors away from Cash Advance. Harris told him that earlier that morning, between 9:30 and 10:00, she had seen an older man wearing a long-sleeved blue-and-maroon flannel shirt exit a white, dual-cab Chevrolet S-10 pickup truck and walk in the direction of the Cash Advance store. Her attention was drawn to the man because he parked in what seemed an odd part of the lot, well away from the only stores open at that time, and because his long-sleeved shirt seemed an odd choice for a very warm late summer morning. She was walking in the opposite direction, and they crossed paths next to each other. The man wore glasses and had on a grey T-shirt under his flannel shirt. A short time later she saw the same man walking along Versailles Road back toward his truck. A few minutes after that, after she had gone back to her office, she saw the man for a third time, this time as he passed just outside her window, again in the direction of the Cash Advance. He had put on a ball cap—Harris remembered it as blue—and had wrapped an elastic bandage around his left hand, which Harris thought peculiar. Almost immediately she saw the man for yet a fourth time, as he again passed her window, this time hurrying back toward his truck.
As property manager, Harris monitored the shopping center and its parking lots by means of some dozen surveillance cameras positioned on and around the property. She was thus able to provide the police with security videos showing a man in jeans and a flannel shirt entering the Cash Advance store, exiting it about thirty seconds later, and walking hurriedly to a white pickup truck. From those videos the police produced still images of the man and the truck and had those images broadcast on the local news. A day or so later, Jacobsen's former employer, Keith Taminga, called the
Crime Stoppers' tip line and reported that the Cash Advance robber looked to him like Jacobsen, a former employee who Taminga believed had recently been involved in a theft from Taminga's business. Although the surveillance photos did not clearly depict the robber's features, Taminga recognized Jacobsen's truck and reported that Jacobsen habitually wore long-sleeved flannel shirts. Based on this tip, the detective to whom the case had been assigned, Detective Andrew Cain, promptly prepared a six-person photo array that included a photo of Jacobsen and presented the array separately to Dena Fallon and to Lori Harris. Both women unhesitatingly picked out Jacobsen's photo as that of the Cash Advance robber.Id. at 604-05. Jacobsen was sentenced in conformity with the jury's verdict.
Officers apprehended Jacobsen in February 2009. At the time of his arrest Jacobsen, who is five-feet-seven-inches tall, was sixty-two years old, weighed 140 pounds, and was driving a white Chevrolet S-10 pickup truck that belonged to him. He was indicted in March 2009 and was charged with first-degree robbery and with receiving stolen property, the latter charge stemming from the alleged theft of property from Keith Taminga. Prior to trial, the charges were severed, and the robbery charge was tried in March 2010. At trial Taminga testified regarding Jacobsen's use of a white Chevy truck and his habit of wearing long-sleeved flannel shirts. Fallon and Harris testified as noted above, and both identified Jacobsen in court as the man they had encountered during the morning of September 2, 2008.
Jacobsen presented an alibi defense. Three witnesses, friends of his, testified that on the day of the robbery he had been with them in Wellington, Kentucky, some sixty or seventy miles east of Lexington. Jacobsen also presented the testimony of Solomon Fulero, a PhD psychologist who specializes in the study of human memory. Dr. Fulero testified concerning factors bearing on the fallibility of eyewitness testimony. As noted, the jury rejected Jacobsen's defense and found him guilty of the Cash Advance robbery.
On June 17, 2013, Jacobsen, acting pro se, filed a motion to vacate and requested an evidentiary hearing. He alleged counsel: inadequately cross-examined Commonwealth witnesses to establish whether the store's video cameras were operational or fake, and whether there was one robber or more; failed to emphasize differences in testimony during summation; and, failed to adequately investigate and prepare a defense. The Commonwealth responded as follows: counsel thoroughly cross-examined all Commonwealth witnesses; Detective Lucas Young testified he went to the Cash Advance and watched "a little bit of video," but never identified the surveillance video he watched—since Det. Young never stated he watched surveillance video recorded inside Cash Advance, his testimony did not directly contradict Ms. Fallen's testimony that the store cameras were "fake"; during discovery, defense counsel received recordings from all fourteen cameras covering the strip mall and parking lot eliminating the need for counsel to request said recordings; Det. Young never testified there were multiple robbers and specifically referred to "the individual" robber at the beginning of his testimony; defense counsel presented a logical and strategic defense; and, there were no discrepancies in the trial testimony for defense counsel to emphasize during closing argument.
Without holding a hearing, on September 26, 2013, the trial court denied Jacobsen's motion to vacate finding: defense counsel's performance was reasonable and competent; Ms. Fallen testified only one person robbed the store; Det. Young referred to an "individual" robber and used the words "them, they, their" only "colloquially"—thus, there was no discrepancy between the testimony of these two witnesses and, therefore, no basis for impeachment or contradictory testimony to emphasize during summation; Jacobsen faulted the Commonwealth for presenting edited versions of poor quality security footage recorded outside Cash Advance, but never identified other video defense counsel should have introduced and how it would have changed the jury's guilty verdict; and, since all surveillance video was provided to defense counsel during the routine exchange of discovery, there was no need for defense counsel to request said video. As a result of the foregoing findings, the trial court concluded defense counsel was not deficient and provided effective legal representation. This appeal follows.
ANALYSIS
We review a trial court's denial of an RCr 11.42 motion for an abuse of discretion. The question we consider is whether the trial judge's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)).
To succeed on an ineffective assistance of counsel claim, Jacobsen must satisfy a two-prong test showing both counsel's performance was deficient, and counsel's deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair and unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As explained in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
[t]he Strickland standard sets forth a two-prong test for ineffective assistance of counsel: 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 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.Bowling, at 411-12. Additionally, Jacobsen must overcome the strong presumption counsel's assistance was constitutionally sufficient. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Furthermore, our
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. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). 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." See Michel v. Louisiana, supra, 350 U.S. [91], 101, 76 S.Ct. [158], 164, (1955). There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065-66. It is against this legal backdrop that we review Jacobsen's claim of ineffective assistance of counsel.
First, Jacobsen argues the trial court erred in denying his motion without convening a hearing. We disagree. A motion to vacate must be heard only "if the answer raises a material issue of fact that cannot be determined on the face of the record." RCr 11.42(5); Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). No hearing is needed when the record refutes the alleged errors, or when the alleged errors, "even if true, would not be sufficient to invalidate the conviction." Bowling, 981 S.W.2d at 549 (internal citations omitted). Despite Jacobsen's protests to the contrary, each of his claims was easily resolved by the record. As noted by the trial court, additional proof would not have changed the outcome of trial in light of the strong proof of guilt which included both out-of-court and in-court positive identifications by the store clerk and strip mall manager, and video of Jacobsen entering and exiting Cash Advance.
Jacobsen next complains counsel failed to adequately cross-examine the Commonwealth's witnesses. Focusing on the number of robbers and whether the store cameras were operational, Jacobsen argues defense counsel should have explored on cross-examination and emphasized during closing argument whether the store's cameras were operational. The store clerk testified the cameras were fake, but Det. Young testified he reviewed surveillance video. Importantly, Det. Young never stated he watched video recorded on the store's cameras. Additionally, Det. Young's use of the words "they," "them" and "their" did not lead to the inference there was more than one robber since he began his testimony by referring to the "individual" robber. Our review of the actual testimony reveals there were no discrepancies in testimony for defense counsel to highlight during summation.
Finally, Jacobsen argues defense counsel inadequately investigated the case because he did not request and review all the surveillance video captured by fourteen separate strip mall cameras. Our review of the record shows all the video was provided to defense counsel nearly one year before trial through routine discovery and during trial defense counsel demonstrated a familiarity with the video.
Had Jacobsen been representing himself, or even another lawyer handling the case, other words may have been used and other points emphasized, but those potentialities do not diminish the effectiveness of defense counsel's performance because no two attorneys would try a case the same way. We have confidence in the jury's verdict and the trial court's denial of the motion to vacate without a hearing. There being no showing of attorney deficiency or resulting prejudice, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Edward Jacobsen, pro se
Sandy Hook, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky