Opinion
NO. 2018-CA-000388-MR
02-07-2020
CHRISTOPHER JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christopher Johnson, pro se Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOE CASTLEN, JUDGE
ACTION NO. 14-CR-00064 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. KRAMER, JUDGE: Christopher Johnson appeals a February 26, 2018 order of the Daviess Circuit Court denying his RCr 11.42 motion to vacate his convictions of first-degree burglary and two counts of first-degree assault. Upon review, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Kentucky Rule of Criminal Procedure.
FACTUAL AND PROCEDURAL HISTORY
The circumstances of Johnson's incarceration have been discussed previously.
[Johnson] and Andrea Ward worked together at a bank and began a dating relationship. In due course, [Johnson] moved into Ward's home. The couple frequently argued and fought, and on several occasions, [Johnson] left the home because of their disagreements. Eventually, they broke up, and [Johnson] moved out of the residence permanently. Ward retrieved from [Johnson] his key to the house and the garage door opener he carried. She also attempted, unsuccessfully as it turned out, to reprogram the garage door mechanism to assure that [Johnson] could not enter the house using the garage door opener built into his vehicle.
A few months later, [Johnson] and Ward met at a park to discuss a medical issue involving Ward's son. When Ward mentioned that she had also discussed the issue with her ex-husband, [Johnson] became angry and broke out a tail light on Ward's vehicle.
A few weeks later, Ward announced on Facebook that she was in a relationship with Aaron Knott. When [Johnson] learned of Ward's new relationship, he tried unsuccessfully to contact her. He then went to Ward's residence, with the hood of his sweatshirt over his head, and entered the dwelling through the garage door, using the garage door opener on his vehicle, which he had parked at a nearby church. He was armed with a .45 caliber handgun. After entering the home, [Johnson] observed evidence indicating that Knott had taken up residence there.
Ward and Knott returned to the residence while [Johnson] was still there. [Johnson] shot Knott twice in the back and once in the side, inflicting life-threatening injuries to Knott. One of the bullets traveled through Knott's liver. Another bullet damaged his diaphragm and lung and caused bleeding in his chest. A third bullet hit Knott's spine and left him paralyzed.Johnson v. Commonwealth, No. 2015-SC-000140-MR, 2016 WL 6125737, *1-2 (Ky. Oct. 20, 2016) (unpublished).
[Johnson] then angrily confronted Ward, berating her for living with another man, and despite her pleas for mercy, [Johnson] shot Ward in the right knee and right hip. When Ward fled into a closet, [Johnson] fired several shots through the closet door, hitting her in the chest. [Johnson] then fled to his sister's residence where he informed her of the shootings and threatened to kill himself. His sister persuaded him to surrender to the police. As a result of the bullet wounds, Ward suffered a collapsed lung and an injury to the subclavian vein running through her arm, shoulder, and neck, causing bleeding into her chest. She remained in the hospital for six days.
Following a jury trial, [Johnson] was convicted of two counts of first degree assault and one count of first degree burglary. The jury recommended a sentence of twenty years on each of the assault charges and ten years on the burglary charge with all sentences to run concurrently for a total of twenty years' imprisonment; however, the trial court ultimately ordered all sentences to run consecutively and sentenced [Johnson] to fifty years' incarceration.
Johnson appealed, but was unsuccessful. He then moved to vacate his sentence pursuant to RCr 11.42, claiming his trial counsel had provided him ineffective assistance by: (1) failing to have a pair of jurors properly stricken during voir dire; (2) failing to secure an expert witness to assist with presenting his "extreme emotional disturbance" defense to the jury; and (3) failing to present the testimony of his mother and his ex-girlfriend as mitigation evidence. Subsequently, the circuit court, in a well-written and well-reasoned order, denied his motion without holding an evidentiary hearing. This appeal followed. Additional facts will be discussed as necessary in our analysis.
STANDARD OF REVIEW
To establish ineffective assistance of counsel, a movant must satisfy a two-part test showing both that counsel's performance was deficient and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair or unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002). The burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient or that under the circumstances counsel's action might be considered "trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998). A court must be highly deferential in reviewing defense counsel's performance and should avoid second-guessing counsel's actions based on hindsight. Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
In assessing counsel's performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; Tamme, 83 S.W.3d at 470; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). "A defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997) (citations omitted). In order to establish actual prejudice, a movant must show a reasonable probability that the outcome of the proceeding would have been different or was rendered fundamentally unfair and unreliable. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002). Where the movant is convicted in a trial, a reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding considering the totality of the evidence before the jury. Strickland, 466 U.S. at 694-95, 104 S.Ct. at 2068; see also Bowling, 80 S.W.3d at 412.
ANALYSIS
Johnson contends the circuit court erred by denying him relief without first granting him an evidentiary hearing with respect to each of the grounds he asserted in his RCr 11.42 motion. Generally, a movant is not entitled to an evidentiary hearing on an RCr 11.42 motion unless there is an issue of fact which cannot be determined on the face of the record. Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993). "Where the movant's allegations are refuted on the face of the record as a whole, no evidentiary hearing is required." Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). With that in mind, we agree with the circuit court that none of Johnson's three asserted grounds warranted an evidentiary hearing.
1. Jury Selection
We begin with Johnson's contention that his trial counsel provided him ineffective assistance by failing to have two jurors (Juror #1 and Juror #2) properly stricken during voir dire. During voir dire, Juror #1 disclosed that her daughter worked at the dispatch center in Daviess County. Johnson's counsel questioned Juror #1 regarding whether one of the Commonwealth's prospective witnesses, was her daughter's supervisor; and Juror #1 responded that she thought so. But, Juror #1 stated that she knew nothing of Johnson's case, had never discussed it with her daughter, and that her daughter's employment would have no effect upon her ability to fairly decide it.
We will not use the jurors' names but will only refer to them by these generic descriptors.
Johnson acknowledges his trial counsel thereafter succeeded in having Juror #1 stricken from the list of potential jurors. But, he argues, Juror #1 should have been stricken for cause. Johnson asserts his counsel improperly used a peremptory strike instead.
The record reflects, however, that Johnson's counsel did move to strike Juror #1 for cause during voir dire and only exercised a peremptory strike on Juror #1 because the circuit court denied the motion. In other words, his counsel effectively preserved the matter of how Juror #1 was stricken (i.e., via peremptory strike as opposed to for cause) as an issue Johnson could have—and should have—raised in his prior appeal. Johnson cannot now cite it as a basis for RCr 11.42 relief. See Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009) (explaining RCr 11.42 does not permit convicted defendants to raise claims that "could and should have been litigated in the direct appeal").
Regarding Juror #2, Johnson notes that during voir dire, his counsel informed the circuit court that if it had granted the defense's motion to strike Juror #1 for cause, the defense would have instead used its last peremptory strike against Juror #2. Johnson's argument, as set forth in his RCr 11.42 motion below, was in relevant part as follows:
Defense Counsel never informed the Court why she would have struck [Juror #2] if she had another strike available. She also never revealed to her client who [Juror #2] is and why she would not be a good juror for the defense.
[Juror #2] has been a resident of Daviess County since at least the very early seventies. She is known to be very "law enforcement friendly," and personally knows and communicates with many individuals in the law enforcement field. One of the reasons that [Juror #2] is very familiar with many individuals in the law enforcement field is the fact that a very close family member Jim . . ., joined the Owensboro Police Department shortly after graduating college over 35 years ago. After a short time with that department he resigned and became a member of the Daviess County Sheriff's Department. He was a member of this branch of law enforcement for many years which is also the department that provides the security for the courtrooms at the Daviess County Judicial Center. Jim ... has worked with many of the current members of the Daviess County Sheriff's Department including Bill Thompson.
Jim . . . also graduated high school with, and was a close friend to Stacy Sturgen, who has been a longtime realtor in the Owensboro area and was (and still may be) a longtime girlfriend of Kenny Riley who has been involved in court security at the Daviess County Judicial Center for many years. Jim has worked with Kenny Riley and [Juror #2] is very well acquainted with Stacy Sturgeon [sic]. Jim . . . is also very well acquainted with Morgan Palmiter who is employed with the Daviess County Sheriff's Department and testified in this case for the Commonwealth.
For [Juror #2], this was more like a family reunion than a Court proceeding because of the large number of individuals present in the courtroom wearing brown uniforms. All of this, compounded by the fact that the
entire . . . family belief is, "that if someone is indicted, they are guilty of something," was totally prejudicial to Mart's defense.
Mart's defense counsel, Leigh Jackson, who is also a resident of Daviess County, was obviously aware of [Juror #2's] background. This was proven by the statement she made at the bench pertaining to not being able to strike [Juror #2] because of the issue with [Juror #1].
In sum, Johnson's argument rested upon two assertions: (1) Juror #2 maintained law enforcement connections that should have warranted striking her for cause; and (2) his counsel was aware of those connections, or should have been aware, and accordingly provided ineffective assistance by failing to move to strike her for cause.
We agree with the circuit court's determination that Juror's #2's presence in the jury provided no basis for RCr 11.42 relief, and we largely adopt its reasoning. The circuit court held that Juror #2's purported law enforcement connections were too attenuated and speculative to dismiss her for cause, explaining in relevant part:
An assertion that a juror was related to a prosecuting witness is not sufficient for relief under RCr 11.42. Duprin v. Commonwealth, 404 S.W.2d 280[, 281] (Ky. 1966). Juror [#2's] connection to this case was far more remote; she is only related to someone who was at one time in law enforcement and who was never involved in this matter.
. . .
The Commonwealth, in its response, stated that Juror [#2's] son was at one time in law enforcement but his service concluded "well before this case came to be." Defendant has provided neither proof as to the nature or particularities of a current law enforcement connection of Juror [2's] son nor any indicia of such proof. With respect to the . . . 'family motto,' how and from what quarter this information came into the hands of the Defendant is not explained. Regarding the juror's relationship to a girlfriend of the court bailiff, if the juror was in fact a friend of the girlfriend of the court bailiff, any inference that this relationship would result in bias is far too tenuous for the Court to accept. This RCr 11.42 proceeding cannot be used as a discovery device or a fishing expedition for facts. E.g., Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied 540 U.S. 838, 124 S.Ct. 96, 157 L.Ed. 2d 70 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) and Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). There is absolutely nothing to indicate Juror [#2's] son was connected to this case in any way or that [Juror #2's family] have a family motto.
More tenuous is Johnson's assertion that the record suggested his counsel may have been aware of Juror's #2 purported bias. To review, only two facts provide the foundation of Johnson's assertion: (1) the fact that his counsel stated she would have used a peremptory strike to excuse Juror #2; and (2) the fact that his counsel and Juror #2 were residents of the same county. Even if Johnson's counsel had been able to use a peremptory strike against Juror #2, it would not have indicated Johnson's counsel believed anything about Juror #2, much less that she was biased. "By their very nature, peremptory challenges are not for cause; they can be for any reason whatsoever, except that the juror is a member of a protected class." Shane v. Commonwealth, 243 S.W.3d 336, 339 (Ky. 2007) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Also, as the circuit court further explained, "simply because Ms. Jackson and Juror [#2] live in the same county does not mean that the two knew each other or even about each other, especially in a county the size of Daviess County."
Lastly, with regard to Johnson's argument that his counsel should have been aware of Juror #2's purported bias, it is enough to say that jurors are sworn to give truthful answers to questions posed by the Court and attorneys during voir dire; and that his counsel was accordingly entitled to rely upon Juror #2's representations during voir dire that she could fairly and impartially decide this matter.
2. Securing an expert to assist with presenting Johnson's EED defense
Johnson notes that on November 7, 2014, his counsel filed an ex parte motion requesting funds to hire a psychologist, Dr. Eric Drogan, to examine him; and that the circuit court granted the motion on the same day. It appears, however, that his counsel never used the funds because Dr. Drogan never assisted with his case or testified on his behalf. Johnson asserts his counsel's representation was consequently deficient. He points out that his defense strategy at trial was premised upon the notion that he was suffering from extreme emotional disturbance (EED) at all relevant times in this matter; and, as Johnson further argues in his brief:
[he] needed a mental health expert retained to explain to the jury in a proper and professional manner exactly what Extreme Emotional Disturbance is and what effect it had on [his] emotional state because without testimony from a medical professional, many lay people believe that mental illness and Extreme Emotional problems are just a joke.
We disagree. As to why, we begin with a brief discussion of EED under Kentucky law. EED is not a complete defense; pursuant to KRS 508.040, first-degree assault committed under the influence of EED is a Class D felony whereas first-degree assault in the absence of EED or some other mitigating factor is Class A felony. To prevail, a defendant must establish that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." KRS 507.020(1)(a). Extreme emotional disturbance is "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986).
Kentucky Revised Statute.
That said, the interplay between EED and expert testimony is complicated. EED is a factual determination reasonably within the ordinary comprehension of lay jurors. See Commonwealth v. Rank, 494 S.W.3d 476, 484 (Ky. 2016). Because it is a factual determination to be made by the jury, it is generally not permissible for an expert to testify that a defendant was acting under EED at the time of the event in question. However, an expert may testify as to the presence of mental illness because such evidence "is entirely relevant to a subjective evaluation of the reasonableness of the defendant's response to the provocation." Fields v. Commonwealth, 44 S.W.3d 355, 359 (Ky. 2001).
Here, it was never Johnson's position that he suffered from any form of mental illness that affected the reasonableness of his response to provocation; nor does Johnson suggest anything about his EED defense that would have merited further exploration by an expert. From all indications, Johnson's only reason for wanting an expert was his suspicion that the jury regarded his EED defense as a "joke." That is not enough. Considering that EED is within the comprehension of lay jurors, and that a defendant who raises EED is not automatically entitled to present expert testimony, we are not persuaded by Johnson's RCr 11.42 motion that his counsel was ineffective for failing to secure the services of an expert, or that an expert was necessary.
3. Failure to present the testimony of Johnson's mother and his ex-girlfriend
Johnson asserts his counsel was ineffective for failing to present, or even speak with, two witnesses he believes could have provided favorable testimony before the jury during the sentencing phase of his trial, Lauren Wilkerson (his ex-girlfriend) and Melissa Johnson (his mother). In his brief, Johnson explains the identities and relevance of these witnesses as follows:
The first was Lauren Wilkerson, Chris' longtime girlfriend of eight years. She even attended the trial and had told Chris she was willing to testify for him if he needed her to. Chris had only broken off the relationship with Lauren in order to date Andrea Ward. Lauren still very much cared for Chris. She would have told the jury about her eight year relationship with Chris when he was always gentle, kind, and loving toward her. There was never any physical confrontations [sic] and hardly ever an argument. They not only shared a relationship, they also shared a home. She could have provided verification to the jury that Chris had had a concealed carry permit since he was 21 and that he always carried his handgun with him at all times. Lauren's testimony would have verified that it was normal routine for Chris to have had his handgun with him on the day of this tragedy. He didn't just take it with him as a plan to intentionally harm someone. He always carried it with him, it was part of his daily routine.
Chris' mother could have also provided useful testimony in the sentencing stage. She would have told the jury about Chris' normal childhood, his belief in family values, his very close relationship with his aging
grandfather, and the fact that he did not have any criminal history which would have assisted the jury with understanding that this terrible tragedy did not define who Chris really was as a person.
Not having individuals close to the defendant to testify at this stage of the trial made the jury believe the defense was attempting to conceal Chris' background and character.
With that said, the applicable law is as follows:
An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. In evaluating whether counsel has discharged this duty to investigate, develop, and present mitigating evidence, we follow a three-part analysis. First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. If the choice was not tactical and the performance was deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001) (citation and quotation omitted).
We agree with the circuit court's ultimate determination that there was no reasonable probability the result would have been any different if Lauren or Melissa had testified in the manner Johnson described. To begin, Johnson's relationship with Lauren had ended roughly a year prior to the events of this case and was not at issue in this matter; but to the extent Lauren may have testified about it as evidence of Johnson's generally peaceful demeanor, any such testimony would have conflicted with Johnson's several admissions during trial that the entirety of his relationship with Ward was tumultuous, fraught with arguments, and on at least one occasion punctuated with an incident wherein he willfully damaged Ward's vehicle.
Johnson's claim that Lauren would have testified he "always carried his handgun with him at all times" is also an obvious exaggeration—Johnson does not explain how Lauren would have been privy to his habits after he left her to be with Ward; and Johnson himself testified he never had his handgun with him while he was at work.
Apart from that, much of the testimony Johnson claims he would have elicited from Lauren or Melissa would have been superfluous. For example, Johnson repeatedly testified that it would have been routine for him to have his handgun with him on the day of the attack; it was undisputed at trial that he had maintained a concealed carry permit since the age of twenty-one; and his lack of any prior criminal record was likewise undisputed.
Johnson's insinuation that his counsel did not speak with his mother, Melissa, when investigating his case is also misleading. As the circuit court noted below, his counsel explicitly named her as a potential witness for the defense during voir dire. His counsel also related to the jury that Melissa worked at U.S. Bank and had been a D.J. at an establishment known as "The Eight Ball."
And, his counsel ultimately did call Melissa as a witness, albeit not before the jury, but before the bench. On December 9, 2014, shortly after Johnson's jury trial, the circuit court entered an order informing the parties that while the jury had returned a sentence of twenty years each on Johnson's two counts of assault, and ten years on his count of burglary, the jury's recommendation that those sentences run concurrently—as opposed to consecutively—was advisory. Accordingly, it directed the parties to "prepare for the sentencing hearing in this case" as follows:
In summary, the Court finds that both victims in this case suffered 'serious physical injuries,' that all three convictions are violent offenses, and that the Court may sentence Mr. Johnson consecutively on all counts rather than concurrently as recommended by the Jury.
This leaves solely for the Court's consideration issues of fact. The Court desires that all evidence be presented which, on the one hand, directly or by reasonable inference may show Mr. Johnson's planning prior to the shooting or propensity to again commit acts of this nature, and on the other hand, mitigating factors which would tend to show that his predisposition to again act in the same or similar manner is highly unlikely. Where appropriate, citations to the records should be made. Either or both parties may produce additional evidence and arguments at the sentencing hearing.
And at the sentencing hearing, Melissa provided exactly the testimony Johnson wanted her to provide, as outlined in his argument above.
But despite Melissa's testimony, the circuit court chose to sentence Johnson to fifty years' imprisonment, rather than the twenty recommended by the jury. And that, in turn, leads to the crux of why the circuit court reasoned Johnson's counsel was not ineffective for failing to elicit mitigation testimony from Lauren or Melissa before the jury. As the circuit court noted in its order denying his RCr 11.42 motion:
The aggravating factors in this case were quite substantial. The Defendant traveled to Ms. Ward's home, parked in a spot that would be out-of-sight for Ms. Ward, and surreptitiously entered the home using a garage door opener to which he had no right. When Ms. Ward and Mr. Knott arrived home, the Defendant shot Mr. Knott leaving him paralyzed. He angrily confronted Ms. Ward, his former paramour, for having moved on with her life, and shot her despite her pleas for mercy before leaving.
As stated, we adopt the circuit court's reasoning and therefore find no error in this respect.
4. Cumulative Error
Lastly, Johnson asserts that the cumulative effect of all his arguments set forth above warrants reversal. But, we have found no error. As a result, Johnson's cumulative error argument is without merit. McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986) ("In view of the fact that the individual allegations have no merit, they can have no cumulative value.").
CONCLUSION
In light of the foregoing, we AFFIRM.
ALL CONCUR. BRIEFS FOR APPELLANT: Christopher Johnson, pro se
Central City, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky