Opinion
NO. 2017-CA-000596-MR NO. 2017-CA-001067-MR
05-17-2019
WAYNE MURPHY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Andrea L. Reed Margaret A. Ivie Frankfort, Kentucky BRIEF FOR APPELLEE, Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CR-00149 APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 04-CR-00149 OPINION
AFFIRMING
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BEFORE: KRAMER, JONES, AND K. THOMPSON, JUDGES. JONES, JUDGE: The above-styled appeals were consolidated for all purposes, including briefing, by prior order of this Court. On appeal, Wayne Murphy asserts the trial court erred when it denied his RCr 11.42 motions. Murphy argues he raised colorable claims that he was denied effective assistance of counsel during his criminal trial entitling him to relief. He requests this Court to reverse the trial court's rulings and vacate his convictions and sentence, or alternatively remand this case for further proceedings, including a full evidentiary hearing on all his ineffective assistance of counsel claims. Having reviewed the record in conjunction with all applicable legal authority, we affirm.
Kentucky Rules of Criminal Procedure.
Murphy originally appealed the circuit court's denial of his RCr 11.42 motions as well as its denial of his Kentucky Rule of Civil Procedure (CR) 60.02 motion. However, Murphy briefed only the RCr 11.42 issue. As such, Murphy has waived all issues concerning the CR 60.02 order, and we will not address those issues.
I. BACKGROUND
On direct review, the Kentucky Supreme Court summarized the underlying facts as follows:
On the afternoon of July 14, 2004, Jane Doe was working at her long-time place of employment, the Superstar Video store in Russell, Kentucky. A man entered the store and after looking around, made his way to an employee-only area in the back of the store. Ms. Doe told the man he was not allowed in that area, whereupon
he cursed at her and left the store. She then began cleaning the store.
Shortly thereafter, a second man entered the store. He attempted to rent a movie, but was told by Ms. Doe he would first have to establish a membership with the store. This man, Ryan Dixon, gave his driver's license to Doe, and she entered his biographical information into the store's computer. Dixon left with his movie after telling Doe he was going to go talk to a friend, but indicated to Doe he would return to select another movie.
Doe had resumed cleaning the store when she heard the scuffling of boots across the floor. Before she could react, Doe was struck on the back of the head. Doe was then dragged to the office area in the back of the store by Dixon and the man who had entered the store earlier, the man Doe would later identify as the Appellant, Wayne Calvin Murphy. Doe testified that Murphy beat her severely and demanded that she open the safe. Murphy kicked Doe in the stomach when she told him there was no money in the store's safe because she had just made a bank deposit. Doe further testified that when Murphy saw a picture of Doe's son he told her he would go to her house and cut her son's throat if she did not open the safe.
Doe testified that she attempted to escape after Murphy demanded the ring she was wearing. She threw the ring and ran, scrambling up the store's shelves in an attempt to climb through the drop ceiling and into a bathroom. But Murphy grabbed Doe by the hair and dragged her into a back room where, armed with a hammer, he violently raped Doe while Dixon held her down. Doe testified that after the rape, Murphy told her "kiss your ass goodbye and pray you go to heaven," before striking her viciously atop her head with the hammer.
Doe was discovered nude and bleeding by a customer who telephoned 911 telling the dispatcher that Doe was
bleeding profusely with bone protruding from her skull. Doe suffered a near-fatal subdural hematoma in addition to abrasions and contusions to the arms, shoulders and vaginal area. Doe has undergone five surgeries arising from the injuries suffered in the attack.Murphy v. Commonwealth, 2007-SC-000176-MR, 2008 WL 1850626, at *1-2 (Ky. Apr. 24, 2008) (footnote omitted).
Detective Tim Wilson of the Russell Police Department testified at trial that Dixon was immediately identified as a possible suspect because his personal information was still on the video store's computer when police arrived.
This information would help lead the police to Dixon who implicated Murphy. Murphy was arrested two days later.
The Kentucky Supreme Court altered the name of the victim to preserve her privacy.
On November 21, 2006, following a five-day jury trial, Murphy was convicted of first-degree rape, first-degree assault, and first-degree robbery. Murphy was sentenced, in accordance with the jury recommendations, to life imprisonment for first-degree rape, twenty years for first-degree assault, and twenty years for first-degree robbery, to run consecutively. Murphy filed a matter of right appeal with the Supreme Court of Kentucky which, on April 24, 2008, affirmed the conviction, but remanded the case to the Greenup Circuit Court to impose concurrent rather than consecutive sentences.
Kentucky Revised Statute (KRS) 510.040. Pursuant to this statue, the Jury also found that a serious physical injury resulted, enhancing rape in the first degree to a Class A felony.
On July 25, 2011, acting without the assistance of counsel, Murphy filed an RCr 11.42 motion to alter, vacate or amend. He was appointed counsel in the matter, who filed a supplemental RCr 11.42 motion on May 27, 2014. Following an evidentiary hearing, at which Murphy's prior counsel testified, the trial court denied relief. This appeal followed.
While Murphy's first RCr 11.42 motion was filed in 2011, the evidentiary hearing was not completed until 2017, shortly thereafter, the circuit court entered its order denying Murphy's motion. The record is unclear as to what caused such a delay in ruling on Murphy's pending motions.
II. ANALYSIS
Murphy makes several different arguments that he asserts merit relief on appeal: (1) he received ineffective assistance of counsel when his trial counsel failed to object to numerous instances of prosecutorial misconduct during closing arguments; (2) the trial court did not allow him to present evidence at his RCr 11.42 hearing related to the time of day Murphy's fine was paid at the Lawrence County Courthouse in Ironton, Ohio; (3) the trial court failed to consider all Murphy's claims; (4) the trial court denied Murphy due process of law and the opportunity to present evidence in support of RCr 11.42 motion by arbitrarily denying him access to expert funds; and (5) Murphy was denied due process of law when his post-conviction counsel did not raise his issues at his evidentiary hearing. We address each argument below.
A. Prosecutorial Misconduct & Ineffective Assistance of Counsel
"We evaluate ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by [the Kentucky Supreme] Court in Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985)." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016). Under Strickland, "an appellant must first show that counsel's performance was deficient." Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Next, the appellant must show that counsel's deficient performance prejudiced his defense in such a way as to "deprive the defendant of a fair trial, a trial whose result is reliable." Id.
"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." McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007)). "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) (citing Henderson v. Commonwealth, 636 S.W.2d 648 (Ky. 1982); Relford v. Commonwealth, 558 S.W.2d 175, 178 (Ky. App. 1977)). We review counsel's performance under Strickland de novo. McGorman, 489 S.W.3d at 736.
Murphy's claims concern various statements the prosecutor made during closing arguments. He asserts his trial counsel was ineffective because she did not object to the statements. Before delving into the individual statements Murphy claims should have resulted in an objection from his counsel, we must briefly review the purpose and nature of closing arguments as well as the conduct that gives rise to a valid objection for prosecutorial misconduct.
"It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements." Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006). "A prosecutor may comment on tactics, may comment on evidence, and may comment as to the falsity of a defense position." Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). A prosecutor may also comment on his opinion of the defendant's guilt "as long as that opinion is based on evidence in the case." Id. When addressing issues raised during closing, we must consider the closing argument "as a whole." Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009) (quoting Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2002)).
Murphy first claims that his trial counsel failed to act in a reasonable and competent manner when she failed to object to statements made by the prosecutor that improperly misstated and improperly elaborated on evidence during closing argument. Specifically, he states that defense counsel should have objected to: (1) the prosecutor stating there was blood "all over" Murphy's shoes when discussing the presumptive test for blood; (2) the prosecutor stating what Dr. Powell "was talking about" regarding the victim's memory; (3) the prosecutor's statement that there was not enough blood on Ryan Dixon's shirt for him to have been the "hammer man" and that the Commonwealth did not have Murphy's shirt; (4) the prosecutor's statement that the jury should not worry about the fact that they did not find Murphy's pubic hair at the crime scene; and (5) the prosecutor's inference that the blood splatter near the floor supported the victims testimony that she was kneeling down when she was initially struck with the hammer.
We have reviewed both the closing argument and defense counsel's testimony during the RCr 11.42 hearing. Murphy's trial counsel testified that she made a strategic decision not to object to the prosecutor's statements during closing argument. She explained that great leeway is granted to attorneys making closing arguments. She believed that the prosecutor did not cross the line in closing arguments because the Commonwealth was merely interpreting facts in evidence.
During closing argument, the Commonwealth referred to blood having been found on Murphy's shoes and socks. The inference was that the blood was human and would not have been found on Murphy's things unless he was involved in the assault at issue. At trial, Shannon Phelps, a forensic biologist called by the prosecution, testified that there was presumptive blood on Murphy's shoes and socks, but due to the limited quantity of the sample, she could not determine that it was in fact blood, and further if it was blood whether it was human or animal. During trial, Murphy's counsel zealously argued that the blood test was not reliable and was only presumptive, not conclusive. Evidence of the blood test, however, was admitted and upheld as proper on direct appeal by the Kentucky Supreme Court. Murphy, 2008 WL 1850626, at *3. The prosecutor did not misstate the nature of the evidence to any objectionable degree. His comments on his interpretations of it making it more likely that Murphy committed the assault were reasonable. Indeed, as the Kentucky Supreme Court pointed out on direct review, the evidence has some relevance because it made "it somewhat more likely that [Murphy] was involved in the violent assault." Murphy, 2008 WL 1850626, at *3. Accordingly, we cannot conclude that Murphy's trial counsel was ineffective for failing to object to this to line of argument.
Murphy also takes issue with his counsel's failure to object when the Commonwealth commented on the location of blood spatter found at the scene because a blood spatter expert did not testify at trial. Evidence was introduced during trial, however, showing that the victim's blood was found on a kickboard underneath a video case. The kickboard was low to the ground. In his closing argument, the prosecutor merely commented that the blood was low to ground substantiating the victim's testimony regarding her location when struck. The prosecutor did not try to paint himself out to be an expert in blood spatter interpretation or draw some scientific conclusion. He merely commented that the location of blood found at the scene matched the victim's description of her attack. "The longstanding rule is that counsel may comment on the evidence and make all legitimate inferences that can be reasonably drawn therefrom." Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010) (citing East v. Commonwealth, 249 Ky. 46, 60 S.W.2d 137, 139 (1933)). This is all the prosecutor was doing; it was not objectionable conduct.
Murphy also contends that it was improper for the prosecutor to urge the jury not to put "too much stock" in the fact that Murphy's pubic hairs were not found at the scene. During her closing argument, defense counsel pointed out to the jury that the victim was raped, but none of Murphy's pubic hairs were found in the video store. The prosecutor's comments were made in response to this argument. A prosecutor is entitled to discredit or urge the jury not to buy into various defense theories, which is exactly what the prosecutor did with this statement. Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004).
The Commonwealth's theory of the case was that Murphy and Dixon acted together, but Murphy hit the victim in the head with the hammer. During closing, the prosecutor noted that Dixon's shirt contained little blood on it. He also pointed out that Murphy's shirt was not located, and therefore not introduced at trial. The inference was that Murphy, not Dixon, hit the victim with the hammer. This type of inference is permissible. It was based on evidence.
Murphy asserts that his counsel should have objected because the prosecutor referenced things "Dr. Powell" said when Dr. Powell never testified. Murphy overlooks the fact that Dr. Powell's medical records were introduced into evidence and the statement attributed to him is contained in those records. This was not objectionable because the argument was based on statements contained in a piece of evidence introduced and relied on by the defense.
During closing, the prosecutor made several statements concerning the believability of the victim's testimony and that of other witnesses. Despite Murphy's arguments to the contrary, "it is not improper, as a general matter, to comment on a witness's credibility" during closing arguments. Dickerson v. Commonwealth, 485 S.W.3d 310, 333 (Ky. 2016). We do not find any of the comments regarding credibility to have been objectionable.
Finally, Murphy contends that defense counsel was ineffective when she failed to object to three instances of the prosecutor invoking "the golden rule." "In a criminal case a golden rule type of argument is one that urges the jurors collectively or singularly to place themselves or members of their families or friends in the place of the person who has been offended and to render a verdict as if they or either of them or a member of their families or friends was similarly situated." Lycans v. Commonwealth, 562 S.W.2d 303, 305 (Ky. 1978). The three instances that Murphy asserts the prosecutor invoked the golden rule fail because the prosecutor did not ask the jurors to render a verdict as if they or a family member was similarly situated. The prosecutor was commenting that the victim was able to remember the event because it had been so traumatic, and people remember traumatic events with clarity.
The first is the statement, "Can you imagine seeing your head split open there and saying, 'Why have they done this to me?' What difference does it make if she said why have they done this? She's always said more than one person was involved in the attack." VR: 11/20/05; 5:33:20-5:33:45. Second, Murphy points to prosecution's comment, "[s]ome of you have had experience with a nail hammer. Some of these handles are even padded. . . . But you can imagine, everyone's used a hammer and you can imagine one that would not tear you up physically if you used that. Memory good so far." VR: 11/20/06; 4:59:45-5:00:30. Finally, Murphy claims that the prosecutor invoked the golden rule when he said, "Ask yourselves, ladies on the jury, if this had happened to a woman, don't you think a woman would have remembered which one of these guys raped her? And smacked her around and told her he was going to kill her son? I think you would." VR 11/20/06; 5:38:45-5:39:05.
None of the three statements presented by Murphy invoke the golden rule. The statements never ask the jury to render a verdict as though the crime was against themselves or a close loved one. Trial counsel properly recognized that the golden rule was not invoked and made a sound trial strategy when she did not frivolously object.
The prosecutor's closing argument fell within the wide latitude granted to counsel. Therefore, absent any instances of prosecutorial misconduct, trial counsel could not act unreasonably by failing to object when no objection was needed.
B. Scope of Evidentiary Hearing
In his RCr 11.42 motion, Murphy asserted his trial counsel was ineffective because she did not present evidence that a fine was paid on his behalf in Ironton, Ohio on the day the assault occurred. He now asserts that the trial court erred because he was not allowed to address this issue in his RCr 11.42 hearing.
Murphy's counsel did present argument regarding the fine during his hearing. The problem, however, is that it is uncontroverted that Murphy did not personally pay the fine. At trial, Murphy's counsel produced witnesses who testified that Murphy was with his fiancé's uncle, James Hurst, and his fiancé, Tracy Chaffin, most of the day, including the time the assault took place. Murphy accompanied Tracy to a prenatal appointment on the morning of the assault. After the appointment, Hurst took them to Ironton, Ohio, where Tracy paid a fine for Murphy while Murphy waited in the car with Hurst. During Murphy's trial, both Hurst and Detective Tim Wilson testified to the fine being paid. Evidence of the exact time the fine was paid on Murphy's behalf would not have impacted the verdict for the simple reason that the jury apparently did not believe that Murphy was with Tracy and Hurst.
All that the evidence Murphy sought to introduce would prove is that someone other than Murphy went to Ironton, Ohio and paid a fine around 11:45 a.m. The evidence that someone paid a fine on behalf of Murphy was already clear from the record. The trial court is not required to have an evidentiary hearing on evidence that is clear from the record. See Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001).
C. Waiver of Additional Claims
As the trial court observed, Murphy litigated his RCr 11.42 claims with extraordinary zeal. He originally filed his RCr 11.42 motion on July 20, 2011. That motion was supplemented after he was appointed counsel. He filed another pro se supplemental RCr 11.42 motion on January 15, 2016. He then had a bifurcated evidentiary hearing on November 24, 2015, and October 26, 2016.
Murphy argues on appeal that the trial court erred when it did not rule on every claim he presented. The only specific claim Murphy mentions in his appellant brief, however, is a claim related to his trial counsel's failure to move to suppress the victim's identification of Murphy because she was shown a biased photo array. Because this is the only claim identified by Murphy in his appellant brief, we will limit our discussion to that claim.
We will not comb the record to identify all claims Murphy asserts should have been specifically addressed by the trial court. The trial court did address all Murphy's claims by indicating that it had reviewed all Murphy's filings and was denying him relief in totality. It is Murphy's job to argue to us why those claims merited relief. To the extent he has failed to do so, he has waived any further appellate arguments with respect to those claims.
With respect to the photo lineup, Murphy's counsel testified that she was aware of the issue and made a strategic decision to address the issue at trial. At trial, Murphy's counsel focused quite heavily on discounting the victim's memory as well as her identification of Murphy. Moreover, Murphy was implicated by Dixon and several other witnesses. As such, we cannot conclude that trial counsel was unreasonable in her decision to question the victim at trial instead of addressing it by way of pretrial motions. Its quite possible, in fact, that this was the most effective way to deal with the issue.
D. Expert Funds for Post-Conviction Proceedings
Murphy's next argument is that the trial court's denial of expert funds to present evidence in support of his RCr 11.42 motion was a denial of due process. This argument relates to his claim that his trial counsel was ineffective when she failed retain an expert witness for trial to offer testimony that head injuries affect memory. Murphy contends that it was necessary to do so for him to establish that the victim's recall of the events and the perpetrators of the crime was not reliable due to the head injuries she suffered in the assault. Murphy explains that it was necessary for him to have an expert testify during his RCr 11.42 proceedings to support his claim that the victim of a head injury would have diminished recall. Without such an expert, Murphy claims that it was impossible for him to prevail on his ineffective assistance claim.
There is no constitutional right to expert assistance in a collateral attack proceeding. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). Kentucky, however, has adopted a standard by which expert testimony may be appropriate in post-conviction matters. In Mills v. Messer, the Kentucky Supreme Court recognized that the procurement of expert testimony may be granted upon a showing that such a witness is reasonably necessary for a full presentation of the petitioner's case. Mills, 268 S.W.3d 366, 367 (Ky. 2008). This standard does not automatically grant expert funding in post-conviction matters. The trial court "maintains the discretion to deny such funds if it determines that expert the testimony is not reasonably necessary." Id.
We do not believe the trial court abused its discretion in this case. Even if we were to assume that an expert would have testified at the post- conviction hearing regarding head injuries and memory loss, the fact remains that Murphy's trial counsel made a sound and justified strategic decision not to employ a head injury expert. Murphy's trial counsel testified that she believed she could deal with the memory issue by questioning the victim and using her medical records. She was afraid calling an expert could have undercut the memory defense because there was the potential that the jury would consider the expert a "hired gun" and totally discount all argument about memory loss. Having reviewed the record, we agree this was sound trial strategy.
E. Ineffective Assistance of Post-Conviction Counsel
Finally, Murphy argues that he was denied due process of the law because he received ineffective assistance of counsel during post-conviction proceedings. Kentucky has recognized a right to effective assistance of counsel on the initial appeal. See Parrish v. Commonwealth, 272 S.W.3d 161, 173 (Ky. 2008). However, the same cannot be said regarding post-conviction appeals. In fact, we do not recognize a right to effective assistance of post-conviction appellate counsel. Hollon v. Commonwealth, 334 S.W.3d 431, 437 (Ky. 2010).
In any event, the various counsel that represented Murphy on his post-conviction motions performed competently and ably. Murphy faults them for not pursuing a myriad of other experts and theories. However, Murphy's claims are unfounded. Counsel filed supplemental pleadings on Murphy's behalf, zealously argued those claims that had any merit, questioned and cross-examined witnesses, and allowed Murphy to present other arguments they did not feel comfortable asserting on his behalf. Murphy cannot fault them just because his motion was unsuccessful.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the Greenup Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Andrea L. Reed
Margaret A. Ivie
Frankfort, Kentucky BRIEF FOR APPELLEE, Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky