Opinion
2023-CA-0710-MR
10-04-2024
JAMIE KEENE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Chelsea M. Clem Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PIKE CIRCUIT COURT HONORABLE HON. EDDY COLEMAN, JUDGE ACTION NO. 14-CR-00248
BRIEFS FOR APPELLANT: Chelsea M. Clem Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
BEFORE: ECKERLE, GOODWINE, AND MCNEILL, JUDGES.
OPINION
GOODWINE, JUDGE
Jamie Keene ("Keene") appeals the Pike Circuit Court's judgment denying his motion under RCr 11.42 after an evidentiary hearing. After careful review, we affirm.
Kentucky Rules of Criminal Procedure.
BACKGROUND
The Kentucky Supreme Court set out the pertinent facts as follows:
When the victim in this matter, A.C., was four years old, Keene married A.C.'s mother, Angel Keene (Angel). In November 2013, Keene was investigated for assaulting Angel, and Child Protective Services (CPS) began monitoring A.C. Shortly thereafter, A.C. was removed from the home of Keene and Angel, and placed in the care of Keene's mother, Donna Keene (Donna). On November 23, 2013, in coordination with CPS's prevention plan, Donna transported A.C. to Judy's Place, a support home for abused children. Once at Judy's Place, A.C. submitted to a forensic interview in which she denied that Keene had sexually abused her. However, during a second interview at Judy's Place on April 1, 2014, A.C. recanted her previous statements and provided numerous details of rape and physical abuse by Keene. With the information A.C. provided in the second interview, Keene was indicted in Pike County on three counts of first degree rape, which occurred between July 1, 2013 and January 27, 2014. A.C. was eleven years old at the time of each rape.
At trial, A.C. testified that she did not feel safe during her first interview due to threats from Donna that, if she testified, Donna would "kick" her and her family out of her house. A.C. later testified that Keene had raped her: in his Chevrolet Blazer on a remote hill in Pike County; in the garage of the home they shared; and in Keene and Angel's bedroom during Keene's birthday party. She also testified that: during the first rape, she began to cry and Keene said he would do it harder if she did not stop crying; she began to bleed following one of the rapes and Keene told her that he had "popped her cherry"; and Keene told her that if she or Angel got him in trouble that he would kill them both. A.C. testified that she had seen Keene beat her mother many times; thus, she believed his threats to be true. We note that Keene admitted at trial that he pled guilty to domestic violence against Angel and that, during the course of the sexual abuse investigation, he was incarcerated.Keene v. Commonwealth, No. 2015-SC-000622-MR, 2016 WL 7665438, *1 (Ky. Dec. 15, 2016). At trial, the jury heard, in part, the testimony of Detective Kevin Newsome ("Newsome"); Pam Taylor ("Taylor"), who conducted A.C.'s forensic interviews at Judy's Place; John Preston ("Preston"), a social worker; and Dr. Arwanda Wells ("Wells") regarding her physical examination of A.C. Keene testified on his own behalf at trial.
The jury ultimately found Keene guilty of three counts of rape in the first degree and the trial court sentenced him to seventy years' imprisonment. The Supreme Court of Kentucky affirmed the conviction on direct appeal. Keene then moved, pro se, for relief under RCr 11.42 claiming ineffective assistance of counsel. The trial court appointed counsel to represent him and granted an evidentiary hearing on the motion. During the evidentiary hearing, the trial court heard testimony from witnesses including Keene's trial counsel; a forensic mental health expert, Dr. Jorien Campbell ("Campbell"); and a forensic gynecologist, Dr. Theodore N. Hariton ("Hariton").
Thereafter, the trial court entered detailed findings of fact and conclusions of law denying Keene's motion. This appeal followed. We will discuss additional facts as necessary below.
STANDARD OF REVIEW
To succeed under RCr 11.42, the movant must prove the twin prongs of "performance" and "prejudice." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
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 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 a probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002). A trial court does not need to complete analysis of the two prongs in a particular order or address both where the movant fails to make a sufficient showing on one. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. "The burden is on the movant to establish convincingly that he has been deprived of some substantial right which would justify the extraordinary relief afforded by post-conviction proceedings." Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
When faced with an ineffective assistance of counsel claim in an RCr 11.42 appeal, a reviewing court first presumes that counsel's performance was reasonable.... We must analyze counsel's overall performance and the totality of circumstances therein in order to determine if the challenged conduct can overcome the strong presumption that counsel's performance was reasonable.... In addition, the trial court's factual findings and determinations of witness credibility are granted deference by the reviewing court.... Finally, we apply the de novo standard when reviewing counsel's performance under Strickland.Crabtree v. Commonwealth, 584 S.W.3d 291, 294 (Ky. App. 2019) (citations omitted).
ANALYSIS
On appeal, Keene makes the following arguments: (1) trial counsel did not adequately prepare him for trial; (2) trial counsel failed to utilize expert witnesses in his defense; (3) the trial court erroneously denied his claim regarding trial counsel's failure to object during the Commonwealth's opening statement and testimony of certain witnesses; (4) the court failed to consider Fowler v. Commonwealth, 634 S.W.3d 605 (Ky. App. 2021), in its decision regarding an alleged vouching statement made by Wells; and (5) trial counsel's cumulative errors resulted in the entry of an unconstitutional conviction.
First, the record supports the trial court's finding that trial counsel adequately prepared Keene for trial. Trial counsel has the duty "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of prosecution." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065 (citation omitted). Keene claims his counsel failed to perform these duties because he "did not explain the evidence against Mr. Keene nor discuss any defense strategies with him." Appellant's Brief at 5.
As found by the trial court, Keene's allegations are refuted by trial counsel's testimony at the evidentiary hearing. At the time counsel was retained to represent Keene in this matter, he was already representing Keene in his divorce and a related criminal action. Although counsel met with Keene only once for this case, at that time, they reviewed discovery, watched A.C.'s interview at Judy's Place, and engaged in a question-and-answer session. At that time, they agreed to a defense strategy of discrediting the allegations. On this basis, there was no deficiency in trial counsel's preparation of Keene for trial.
Next, Keene was not prejudiced by trial counsel's decision not to retain expert witnesses. In hindsight, it can be tempting to second guess trial counsel's performance. Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998). This may be especially true when post-conviction counsel retains expert witnesses to testify to strategies not taken by trial counsel. However, rather than give into temptation, we "must be highly deferential to counsel's performance" and "the wide range" of conduct which qualifies as "professionally competent assistance." Id. (citation omitted).
Keene first relies on Campbell's report and testimony at the evidentiary hearing to argue trial counsel should have retained a forensic mental health expert to attack the techniques used during A.C.'s forensic interviews. Campbell testified to the role a forensic mental health expert could play in preparation for trial. She testified such an expert might also testify at trial regarding the adequacy of the prosecution's forensic interview. These suggestions of what an expert could do are possibilities and are insufficient to prove a reasonable probability of a different outcome. See Koteras v. Commonwealth, 589 S.W.3d 534, 544-45 (Ky. App. 2018).
Furthermore, when Campbell testified to her concerns regarding this case specifically, she identified only a single problematic question Taylor asked A.C. Her concern was that the question suggested that A.C.'s answer might disappoint the interviewer. On cross-examination, Campbell admitted she did not know the context of the question because she did not watch the entire interview.Considering these limited concerns, there is no reasonable probability that, had trial counsel retained a forensic mental health expert, his or her testimony would have led to a different outcome.
According to Campbell's testimony, technical difficulties hindered her review of the two interviews in their entirety.
Keene also claims his trial counsel should have retained a forensic gynecologist like Hariton to challenge Wells' testimony and report regarding her physical exam of A.C. Trial counsel is not required to hire a rebuttal expert in every case to avoid a finding of ineffectiveness. Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky. 2005).
At the evidentiary hearing, trial counsel testified as to his trial strategy, including that Wells' report was inconclusive and there was an alternative explanation - A.C.'s report of sexual intercourse with the boyfriend - for her physical findings. At trial, Wells testified her physical findings were that A.C.'s hymen had "some jagged edges." Wells testified neither use of a tampon nor a straddle injury from a bicycle accident would cause this type of injury. She testified that these physical findings indicate A.C. had either engaged in repeated sexual intercourse or was otherwise repeatedly penetrated. Video Record ("V.R.") 8/11/2015 at 1:18:13-20. During cross-examination, trial counsel elicited testimony from Wells regarding her inability to attribute her finding to any particular cause or person, her inability to determine the number of times A.C. was penetrated, and A.C.'s lack of disclosure of any penetration other than sexual intercourse with her boyfriend.
In her report, Wells noted A.C. was involved in a bicycle wreck which hurt her vaginal area seven months prior to her exam.
At the evidentiary hearing, Hariton testified to what he described as inconsistencies in Wells' report and his conclusion that there is no way to definitively say what caused the injury to A.C.'s hymen based on her report. He testified it could have been caused by sexual abuse, sexual intercourse with her boyfriend, a tampon, or a bicycle accident. Hariton testified additional investigation into A.C.'s bike accident may have shown she experienced bleeding or penetration which may have been the cause of her injury. This is speculative.
He also disputed Wells' use of "jagged edges" rather than "notches" when referring to the injury to A.C.'s hymen and noted that he was not given access to photographs taken during Wells' exam.
While trial counsel may not have gone into great detail, his cross-examination resulted in Wells' admission that she had no way of knowing who or what caused A.C.'s injury. Hariton essentially claims a forensic gynecologist would have testified to the same but in greater detail. This does not prove trial counsel's performance was "objectively unreasonable" or that there was a reasonable probability of a different outcome had a forensic gynecologist testified on Keene's behalf. See Mills v. Commonwealth, 170 S.W.3d 310, 329 (Ky. 2005), overruled on other grounds by Leonard, 279 S.W.3d 151 (citation omitted).
Next, Keene erroneously asserts that the trial court applied the incorrect standard to his claim regarding trial counsel's failure to object during the Commonwealth's opening statement and the testimony of Taylor, Wells, Newsome, and Preston. A movant may not relitigate claims under RCr 11.42, which were or could have been raised on direct appeal. Leonard, 279 S.W.3d at 157 (citation omitted). However, review for palpable error on direct appeal and collateral attacks for ineffective assistance of counsel based on trial counsel's failure to object, which resulted in review for palpable error, are separate claims. Id. at 158. Although these claims are distinct, the analysis on direct appeal can be instructive in a subsequent decision under RCr 11.42. Such is the case herein.
The trial court noted the Supreme Court's review for palpable error on direct appeal but did not treat the Court's decision as a procedural bar to Keene's claims of ineffective assistance of counsel. See id. Instead, the trial court considered Keene's claim under the appropriate standard and determined counsel's actions were best characterized as trial strategy, finding
no error made by the counsel in failure to object to any of trial tactics used by the Commonwealth nor testimony allowed to be admitted rose to the level of ineffective assistance of counsel because the decisions were tactical and there is no reasonable probability that the outcome would have been different if the trial counsel had objected.Record ("R.") at 443.
Before we review each of Keene's claims of error individually, we must first address a briefing error which hinders our review. As asserted by the Commonwealth, Keene's argument is devoid of citations to the record on this issue. RAP 32(A)(4). In fact, Keene largely fails to state with any specificity the testimony and/or statements to which he claims trial counsel should have objected. It is not the purpose of this Court to scour the record and construct an appellant's argument. Walker v. Commonwealth, 503 S.W.3d 165, 171 (Ky. App. 2016) (citation omitted). Despite this serious deficiency, we will proceed with our review using the Supreme Court's decision on direct appeal as a guide to understand what testimony and/or statements are at issue herein.
Kentucky Rules of Appellate Procedure.
In his argument, Keene briefly mentions witness Delphia Brennan, but does not specify to what trial counsel should have objected during her testimony. Her testimony was not at issue in Keene's direct appeal. Because of this, review of this claim is impossible.
First, on direct appeal, Keene alleged several statements made during the Commonwealth's opening statement were improper. The Supreme Court found only one to be improper: the Commonwealth Attorney's statement of "her personal opinion as to the veracity of Donna's proposed testimony." Keenet 2016 WL 7665438, at *3. The Court held the statement resulted in no fundamental unfairness because the jury subsequently heard Donna's testimony and trial counsel had the opportunity to cross-examine her, meaning the jury "was able to evaluate for itself the veracity of Donna's testimony and was not required to rely on the Commonwealth's statement to reach its decision." Id.
Second, Taylor testified to statements A.C. made during her forensic interviews detailing Keene's rape and sexual abuse. The Supreme Court found no palpable error resulted from this testimony because, at the time of Taylor's testimony, "A.C. had already testified . . . to numerous instances of Keene raping her." Id.
Taylor also testified to A.C.'s statements regarding her reasoning for changing her story between the two forensic interviews, and Wells testified to A.C.'s statements about sex with her boyfriend. The Supreme Court determined these statements were not hearsay because they were not offered to prove the truth of the matter asserted. Keene, 2016 WL 7665438, at *3-4 (citing Kentucky Rules of Evidence ("KRE") 801(c)). "[F]ailure to object to admissible evidence cannot result in ineffective assistance of counsel." Bowling, 80 S.W.3d at 414.
Third, both Newsome and Preston impermissibly testified to Keene's incarceration during his interview, which the Supreme Court found should have been excluded because of the danger of undue prejudice under KRE 403. Id. at *6-7. However, the Supreme Court found the errors were not palpable because "A.C. had testified to Keene's incarceration and Keene later confirmed his incarceration on the witness stand." Id.
On direct appeal, Keene claimed other portions of Preston's testimony should not have been admitted by the trial court. Keene, 2016 WL 7665438, at *6. The Supreme Court found the statements were properly admitted. Id. Therefore, any RCr 11.42 claim thereto must fail. Bowling, 80 S.W.3d at 414.
Fourth, Newsome impermissibly testified to Keene's invocation of his right to remain silent. The Supreme Court found "[t]he Commonwealth is prohibited from introducing evidence or commenting in any manner on a defendant's silence once that defendant has been informed of his rights and taken into custody." Id. (citing Hunt v. Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009)). However, the Court did not find palpable error because Newsome's statement was not "repeated, emphasized, or used as a prosecutorial tool." Id. at *8 (citation omitted).
Although trial counsel did not object to each of the above-detailed statements, Keene's claim of ineffective assistance of counsel fails because he has not proven he was prejudiced by trial counsel's performance. Had trial counsel objected to any or all of the statements, there is no reasonable probability that the outcome of the trial would have been different. As to the Commonwealth's opening statement, trial counsel was able to challenge the veracity of Donna's testimony on cross-examination. Other witnesses testified to the same facts as were erroneously elicited from Taylor, Preston, and Newsome. Newsome's single statement regarding Keene's invocation of his right to remain silent was brief and was not otherwise referred to or emphasized by the Commonwealth. The lack of proof of prejudice is fatal to Keene's claim.
At the evidentiary hearing, trial counsel was not asked and did not explain his reasoning for not objecting to each of these statements.
The trial court found trial counsel's actions were trial strategy and, therefore, not deficient. However, counsel did not testify to his reasoning for not objecting at the evidentiary hearing. Although we analyzed this issue under the prejudice prong, we may affirm a trial court's decision on any grounds supported by the record. Sanders v. Commonwealth, 600 S.W.3d 266, 267 n.3 (Ky. App. 2020).
Next, Keene claims, regarding an alleged vouching statement made by Wells on cross-examination, the trial court failed to consider the "presumption of prejudice" under Fowler, 634 S.W.3d 605. However, this Court's decision in Fowler did not establish any such presumption. Instead, this Court applied the Supreme Court's decision in Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011), to a movant's claim regarding a medical expert's statement which vouched for the truthfulness of a victim. Fowler, 634 S.W.3d at 611. "It is well-settled that a witness cannot vouch for the truthfulness of another witness. In the context of child sex abuse cases, this Court has repeatedly held that no expert, including a medical doctor, can vouch for the truth of the victim's out-of-court statements." Id. at 610 (quoting Hoff, 394 S.W.3d at 376). In Hoff, 394 S.W.3d at 376, a physician testified that he had "no reason not to believe this child." The Supreme Court held, "[i]t is not appropriate for medical experts to vouch for the truth of a victim's statement, but only to make a diagnosis under stated conditions, which does not require a personal judgment from the doctor as to whether he believes the patient, unless his belief is a necessary part of determining what treatment to use." Id. at 376-77.
Keene raised this argument below, but the trial court did not specifically address his claim of vouching or the applicability of Fowler in its decision. The court broadly found trial counsel's failure to object to testimony from several witnesses, including Wells, to be trial strategy. Despite the lack of specific analysis by the trial court, we will address Keene's argument under Fowler.
In Fowler, 634 S.W.3d at 611, this Court found a physician's statement that it was "quite probable" that a patient's story regarding repeated sexual abuse was true impermissibly vouched for the patient's veracity. Unlike in Hoff, Fowler's vouching claim was made in an RCr 11.42 motion. This Court found counsel's failure to object to the "potentially devastating" statement "puzzling" and remanded for an evidentiary hearing on the issue. Id. The Court elaborated on the necessity of a hearing as follows:
[T]he record does not explain the lack of objection. If counsel failed to object for non-strategic reasons ( e.g. unfamiliarity with Hoff ), deficiency is plain. And, under these facts, a finding of prejudice would logically follow as it is impossible to conclude that, based on Hoff, Dr. Blackerby's vouching - though it was - did not seriously undercut the basic fairness of a trial at which the only real issue for the jury was whether [the victim] or Fowler was telling the truth.
However, it is possible counsel refrained from objecting for strategic reasons. For example, counsel could have believed that objecting would have emphasized the vouching.... Perhaps counsel believed the best strategy was to remain silent until cross-examination. In fact, on
cross-examination, counsel elicited potentially helpful testimony from Dr. Blackerby[.]Id. at 611-12 (emphasis added).
Herein, during cross-examination, trial counsel asked Wells whether she "had any reason to doubt what [A.C.] told her." V.R. 8/11/2015 at 1:20:27-31. Wells responded that "at the end of [A.C.'s] exam, I told her that I thought that more happened than what she said, and by her demeanor, I thought more happened than what she said." Id. at 1:20:31-50. While Wells' response calls into question the truthfulness of A.C.'s out-of-court statements during the exam, its effect was to indirectly vouch for the veracity of A.C. allegations against Keene and her testimony at trial. See Hoff, 394 S.W.3d at 376. This is impermissible.
However, unlike in Fowler, Keene was granted an evidentiary hearing. At the hearing, trial counsel testified to having asked this question for a strategic reason. Like in Fowler, the primary issue in this case was whether the jury believed A.C. or Keene. Trial counsel's question was part of a series meant to discredit A.C.'s allegations. During his cross-examination of Wells, counsel elicited helpful testimony including A.C.'s admission of engaging in sexual intercourse with her boyfriend and Wells' inability to determine who or what caused A.C.'s injury. Furthermore, during the evidentiary hearing, Keene failed to question trial counsel about any non-strategic reasons for his performance, including whether he knew of the Hoff decision or otherwise understood the impermissibility of vouching testimony. For these reasons, Keene's argument fails to overcome the strong presumption that trial counsel's performance was sound trial strategy. See Koteras, 589 S.W.3d at 541 (citation omitted).
Finally, there was no cumulative error in this case. "There was no individual error and thus there was no cumulative error." Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006). As such, Keene's claim fails.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Pike Circuit Court.
ALL CONCUR.