Opinion
NO. 2012-CA-000320-MR
04-26-2013
LASHAWN JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: LaShawn Johnson, Pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant of Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 08-CR-001545
OPINION
AFFIRMING
BEFORE: ACREE CHIEF JUDGE; DIXON AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: LaShawn Johnson appeals, pro se, from the January 19, 2012 order of the Jefferson Circuit Court denying, without an evidentiary hearing, Johnson's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate, set aside, or correct the judgment against him due to ineffective assistance of counsel. We discern no error and affirm.
I. Facts and Procedure
On or about August 23, 2007, the victim awoke around midnight to discover an intruder in his kitchen. The intruder pointed a gun at the victim, ordered him to lie on the floor, and demanded the victim's money. Having displaced his wallet and fearing the intruder would not leave, the victim grabbed the intruder; a struggle ensued. During the scuffle, the gun was knocked out of the intruder's hands, and the victim kicked the gun under the couch.
The victim then fled the apartment, spraining his ankle on the stairs. A witness noticed the victim standing on a nearby street corner, acting erratically, and, before collapsing, waiving at cars. The witness observed the victim's face and feet were bleeding, and the victim appeared to have been "pummeled by a blunt object." The witness summoned the police.
Police arrived and spoke briefly with the victim. One police detective later testified that the victim appeared to be "in shock," bewildered, and obviously beaten. The victim provided the police with a brief description of the intruder, and the firearm. The victim described the gun as a black handgun with a square handle and square barrel. The victim later retrieved a gun clip from under his couch and turned it over to police. The clip was unloaded and the investigating detective believed that the clip came from a BB or pellet gun.
EMS transported the victim to the hospital. At the hospital, an MRI of the victim's facial area appeared normal. He was treated for a sprained ankle and supplied a pair of crutches which he used for several weeks. The victim testified at trial that he also had a small "break" in a bone in his leg.
Police inspected the victim's apartment, and opined the intruder likely entered through a kitchen window. Outside the kitchen window police discovered a soft drink cup with a straw. Subsequent DNA analysis matched the DNA profile on the straw to a DNA sample collected from Johnson.
The victim viewed a photo pack and stated he was seventy percent sure that Johnson's picture was the picture of the intruder. The victim also viewed a still photo taken from a nearby gas station's surveillance tape. The surveillance tape revealed a man matching the intruder's description purchasing a soft drink shortly before the burglary. The victim later testified to being more certain that this photo was the intruder because the man was wearing the same distinctive clothing he remembered the intruder having.
Johnson was indicted for first-degree burglary and first-degree robbery. His case proceeded to trial. At the close of the presentation of evidence, Johnson's trial counsel argued that the jury should be instructed on the lesser-included offenses of second-degree robbery and second-degree burglary. The trial court declined trial counsel's request.
The jury ultimately found Johnson guilty of both offenses and also found him to be a first-degree persistent felony offender. The circuit court entered a judgment consistent therewith and sentenced Johnson to twenty-five years' imprisonment. On direct appeal, the Kentucky Supreme Court affirmed Johnson's conviction and sentence. Johnson v. Commonwealth, 327 S.W.3d 501 (Ky. 2010).
On November 21, 2011, Johnson moved, pro se, to vacate his conviction pursuant to RCr 11.42 claiming ineffective assistance of counsel. Johnson asserted his trial counsel was ineffective when he: (i) failed to adequately conduct a pre-trial investigation; (ii) failed to prepare for trial; (iii) permitted unlawful DNA evidence to be admitted at trial; and (iv) failed to ensure the jury was properly instructed. Johnson further claimed judicial misconduct, prosecutorial misconduct, insufficiency of the evidence, and cumulative error. Johnson also sought an evidentiary hearing and appointment of counsel. The Commonwealth opposed Johnson's motion. The circuit court issued an order, entered on January 19, 2012, denying Johnson's RCr 11.42 motion in its entirety. Johnson now seeks review of that order.
II. Standard of Review
No defendant shall be denied reasonably effective representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the movant must satisfy the two-prong Strickland test. "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. To reiterate, "[a] defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance." Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011).
III. Analysis
A. Pre-Trial Investigation and Suppression of Evidence
Johnson first claims he was denied effective assistance of counsel because his trial counsel failed to conduct a proper pre-trial investigation and to secure an adequate defense. Johnson advocates trial counsel did not: (i) obtain any medical records from the hospital substantiating the victim's injury; (ii) failed to conduct a pre-trial investigation of potential witnesses; and (iii) failed to seek suppression of both the alleged weapon and the "tainted" identification process.
Johnson asserts his trial counsel was ineffective because counsel chose not to secure the victim's medical records. Johnson believes the medical records would have proved the victim did not sustain an injury. We "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Furthermore, "[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." Id. at 687, 104 S.Ct at 2055.
The discovery provided to Johnson's trial counsel revealed three individuals - the victim, a witness, and a police detective - all of whom stated that the victim had a facial injury. The witness observed the victim was bleeding from his face and feet. The investigating detective stated in an affidavit that the victim had an open wound on the side of his head. The victim claimed to have sprained his ankle and was subsequently provided crutches. In light of this evidence, it was not unreasonable for trial counsel not to obtain the victim's hospital records which, in all likelihood, would not have been exculpatory in nature but would have merely corroborated the statements of all three individuals. Johnson has failed to show his trial counsel's performance was deficient.
Johnson second allegation - that his trial counsel was ineffective because he failed to adequately investigate potential witnesses - lacks supporting facts and is not presented with the degree of particularity required by RCr 11.42. Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993) ("Without a minimum of factual basis, contained in the verified RCr 11.42 motion, the motion should be summarily overruled."). Johnson has neither identified who his trial counsel should have interviewed, nor identified what those witnesses would have stated that would have been beneficial to his defense. "In the presence of such a vaporous allegation[,]" no further discussion of this claim is warranted. Willoughby v. Commonwealth, 406 S.W.2d 725, 726 (Ky. 1966).
Similarly, Johnson's suppression arguments are too vague for us to consider. While he claims his trial counsel should have moved to suppress the gun clip and the victim's identification of Johnson as the intruder - which Johnson deems suspect - Johnson has identified no grounds warranting the filing of a suppression motion by trial counsel. Again, "conclusory allegations unsupported by specifics [are] subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011) (footnote omitted).
In sum, Johnson has not demonstrated that his trial counsel's pre-trial investigation or subsequent defense fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.
B. Directed Verdict
Johnson next asserts the trial court abused its discretion when it refused to grant Johnson's motion for a directed verdict of acquittal on the ground that insufficient evidence was adduced at trial to sustain a first-degree robbery conviction. Johnson is not asserting a collateral issue of ineffectiveness but, instead, is asserting a direct error, which could, and should, have been raised, if at all, on direct appeal. The Kentucky Supreme Court has "recognized the difference between an alleged error and a separate collateral claim of ineffective assistance of counsel related to the alleged error[.]" Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009). A direct error is "alleged to have been committed by the trial court (e.g., by admitting improper evidence) . . . [while an] ineffective-assistance claim is collateral to the direct error, as it is alleged against the trial attorney (e.g., for failing to object to the improper evidence)." Id.
Here, Johnson takes no issue with his trial counsel's conduct relating to the directed-verdict motion. He does not claim his trial counsel was ineffective. Indeed, the record reveals trial counsel moved for a directed verdict of acquittal citing a lack of sufficient evidence. Johnson only takes issue with the trial court's decision not to grant that motion. Direct errors pertaining to the rulings of the trial court are not the proper basis for a RCr 11.42 motion.
C. Jury Instructions
Johnson also believes his trial counsel rendered ineffective representation when he: (i) failed to seek a second-degree robbery instruction; and (ii) failed to inform the trial court why such an instruction was warranted.
Johnson also declares the trial court erred when it refused to instruct the jury on second-degree robbery. Again, Johnson is asserting a direct error, not a collateral error of ineffective representation. Furthermore, the Supreme Court specifically considered and rejected this argument on direct appeal. Johnson, 327 S.W.3d at 505. The Supreme Court reasoned, "we cannot conclude that a reasonable jury could find Johnson guilty beyond a reasonable doubt of . . . second-degree robbery but not guilty of first-degree robbery . . . because of the overwhelming and uncontradicted evidence of the intruder causing a physical injury to the victim." Id. at 508. Accordingly, "the evidence presented at trial did not warrant instructions on . . . second-degree robbery." Id.
Regarding the first facet of Johnson's argument, we need only point out that trial counsel requested and tendered a proposed jury instruction on second-degree robbery. The record refutes Johnson's claim that trial counsel failed to request such an instruction.
Turning now to the second facet, admittedly the record reveals little discussion concerning the requested second-degree robbery instruction. "Kentucky courts are bound to instruct juries on the whole law of the case, . . . including alternative instructions when supported by the evidence[.]" Morrow v. Commonwealth, 286 S.W.3d 206, 213 (Ky. 2009) (internal citations omitted). A defendant is only entitled to a lesser-included offense instruction, however, if under "the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).
The record reveals that the uncontradicted evidence presented at trial overwhelmingly established that the intruder caused the victim physical injury. See Johnson, 327 S.W.3d at 505 (recounting that evidence). In light of this vast evidence, a second-degree robbery instruction was "not warranted[.]" Id. Johnson's trial counsel was certainly aware of this. In our view, trial counsel's refusal to maintain a futile argument does not equate to ineffective representation. Accordingly, we cannot say trial counsel rendered ineffective representation when he declined to zealously pursue a jury instruction rejected by the trial court and for which no evidentiary foundation existed.
D. Evidentiary Hearing and Appointment of Counsel
Finally, Johnson declares the circuit court should have appointed him counsel and granted him an evidentiary hearing before denying his RCr 11.42 motion. An evidentiary hearing is not a vested right to which every RCr 11.42 movant is entitled. See Stanford, 854 S.W.2d at 743. The circuit court need only conduct an evidentiary hearing if the suspected error would warrant the movant relief under RCr 11.42, and a material issue of fact exists "that cannot be determined on the face of the record." Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted). "If an evidentiary hearing is not required, counsel need not be appointed." Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky. 2001).
As explained, the bases upon which Johnson stakes his RCr 11.42 claim can be decisively resolved by the record and are insufficient to entitle him to relief under RCr 11.42. The circuit court committed no error when it declined to conduct an evidentiary hearing or to appoint Johnson counsel. Newsome v. Commonwealth, 456 S.W.2d 686, 687 (Ky. 1970) ("An evidentiary hearing [on an RCr 11.42 motion] is not required when the issues presented may be fully considered by resort to the court record of the proceeding, or where the allegations are insufficient.").
IV. Conclusion
Johnson has levied no viable claim demonstrating that his trial counsel's performance was deficient, and demonstrating that such deficiency prejudiced his defense. The Jefferson Circuit Court's January 19, 2012 order denying Johnson's RCr 11.42 motion is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: LaShawn Johnson, Pro se
West Liberty, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant of Attorney General
Frankfort, Kentucky