Opinion
NO. 2012-CA-000343-MR
06-21-2013
MERRILL PELFREY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Dixon Bullock Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LESLIE CIRCUIT COURT
HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 96-CR-00003
OPINION
AFFIRMING
BEFORE: DIXON, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Merrill Pelfrey appeals the order of the Leslie Circuit Court denying his RCr 11.42 motion to vacate, set aside, or correct his sentence. After a careful review of the record, we affirm because Pelfrey has failed to show that he received the ineffective assistance of counsel.
Appellant's name is spelled various ways in the record before us: At times, it is spelled "Merrill Pelfrey," and at other times, it is spelled "Merrill Pelphrey" or "Merle Pelfrey." We will use the "Merrill Pelfrey" spelling because that was the spelling used in his notice of appeal.
Kentucky Rule(s) of Criminal Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pelfrey was charged with the murder of Jimmy Combs. Following a jury trial, Pelfrey was convicted of murder and sentenced to serve thirty years of imprisonment. He appealed, and the Kentucky Supreme Court affirmed his conviction. See Pelphrey v. Commonwealth, No. 97-SC-484-MR (Ky. October 15, 1998) (unpublished).
Pelfrey filed a timely RCr 11.42 motion in April 2001. Appointed counsel supplemented that motion in 2002 and subsequently filed an amended RCr 11.42 supplement in 2011. An evidentiary hearing was held, and the circuit court ultimately denied Pelfrey's motion.
We are uncertain why there was a nine-year delay between Pelfrey's filing of his supplemental RCr 11.42 motion and his amended RCr 11.42 supplement. Although it appears from the record that some of the delay was due to Pelfrey's requests to have certain pieces of evidence tested, nine years seems to be an extraordinary amount of time to allow such testing to occur.
Pelfrey now appeals, contending that he received the ineffective assistance of trial counsel when counsel: (a) failed to impeach two witnesses; (b) failed to file a motion in limine to exclude the testimony of another witness and failed to request a mistrial; (c) introduced irrelevant and prejudicial facts at trial; and (d) failed to investigate and present mitigation evidence. Pelfrey also alleges that he was denied the effective assistance of trial counsel due to the cumulative effect of trial counsel's errors.
II. STANDARD OF REVIEW
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
III. ANALYSIS
A. FAILURE TO IMPEACH JENNIFER HURT WRIGHT
Pelfrey first alleges that he received the ineffective assistance of trial counsel when counsel failed to impeach Jennifer Hurt Wright. Specifically, Pelfrey contends that Jennifer testified at trial that following the murder when Pelfrey entered the truck where Jennifer was sitting, he stated "he had shot Jim [Combs]." Pelfrey argues that on the night of the murder Jennifer provided a statement to police in which she stated that Pelfrey climbed into the truck and said "they'd shot Jim." Pelfrey asserts that counsel should have impeached Jennifer at trial with her prior statement to show either that Pelfrey never confessed to the murder or that Jennifer was not credible.
To prove that he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, Pelfrey must show that: (1) counsel's performance was deficient in that it fell outside "the wide range of reasonable professional assistance"; and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Further,
a court's review of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Hence, the defendant must overcome the presumption that counsel provided a reasonable trial strategy.Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
As noted by the circuit court in its order denying Pelfrey's RCr 11.42 motion--even if we were to assume for the sake of argument that counsel should have attempted to impeach Jennifer about her prior statement--Pelfrey cannot show that this alleged deficient performance prejudiced his defense because the evidence against him was so strong. On direct appeal, the Kentucky Supreme Court stated the following about the evidence against Pelfrey:
Pelphrey's statement to the police placed him inside [the] house at the time that Jim Combs was shot. Louise Caldwell testified that she saw Pelphrey shoot Jim. Both Jennifer Hurt [Wright] and Freddie Wright testified that moments after the shooting they saw Pelphrey stumble out of the house and that he had a .357 magnum revolver in his hand. They further testified that there was blood on his shirt.Due to the weight of the evidence against Pelfrey, he cannot show that he was prejudiced by counsel's failure to impeach Jennifer. Consequently, this claim lacks merit.
B. FAILURE TO FILE MOTION IN LIMINE AND FAILURE TO REQUEST MISTRIAL
Next, Pelfrey contends that his trial counsel rendered ineffective assistance when counsel failed to file a motion in limine to exclude the testimony of Bernice Caldwell, who is Louise Caldwell's mother, and for failing to request a mistrial. Specifically, Pelfrey asserts that "Bernice Caldwell testified at trial that she received a phone call and the caller said 'this is Merrill . . . and that he had killed a guy.'"
In addressing this claim, the circuit court noted that the Kentucky Supreme Court found trial counsel had effectively impeached Bernice Caldwell. The Supreme Court stated the following about Bernice Caldwell's testimony:
Bernice testified that she received a telephone call from a person who identified himself as Merrill. Bernice testified that the caller stated "that he had killed a guy . . . because he was trying to rob him." Pelphrey did not object to Bernice's testimony.Pelphrey, No. 97-SC-484-MR, *1, *5-7 (Ky. October 15, 1998) (unpublished).
At the close of the Commonwealth's case, the trial court denied Pelphrey's motion for a directed verdict. At the close of all the evidence, Pelphrey tendered an instruction on self-defense based on Bernice's testimony. The trial court noted that while there was no objection made to Bernice's testimony, there was a problem with her testimony because the voice on the phone was never authenticated pursuant to KRE [Kentucky Rules of Evidence] 901. On this basis, the trial court found that Bernice's testimony was improper.
Pelphrey moved that Bernice's testimony be stricken and the jury admonished. The trial court granted the motion, struck Bernice's testimony, and admonished the jury in relevant part, "[Bernice Caldwell's testimony] is not . . . to be considered. You should not give it any consideration one way or the other, either for the Commonwealth or against the Commonwealth, for the defendant or against the defendant. Just . . . as if that testimony was never produced."
On appeal, Pelphrey argues that striking Bernice's testimony and instructing the jury to disregard it was not sufficient to remove the prejudice created by the testimony.
* * *
In the case at bar, the trial court's admonition was reasonably clear and the subject matter of Bernice's testimony was not complicated. Thus, there is not a reasonable probability that the jury was unable to follow the trial court's admonition. Nor do we believe that there was a strong likelihood that the effect of Bernice's testimony was devastating to Pelphrey.
Through cross-examination, Pelphrey effectively impeached Bernice's testimony. . . . On cross, Pelphrey established that: Bernice had never spoken with Pelphrey on the phone or otherwise; that she could not identify Pelphrey's voice; that Pelphrey had no reason to call Bernice or her daughter Louise; and that Bernice had a reason to lie about the call in order to protect Louise.
Thus, the jury was clearly admonished not to consider Bernice Caldwell's testimony. "It is ordinarily presumed that an admonition controls the jury and removes the prejudice which brought about the admonition." Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993). Because we assume that the jury heeded the court's admonition and because of the weight of the evidence against Pelfrey, Pelfrey cannot show that he was prejudiced by counsel's failure to file a motion in limine to exclude the testimony of Bernice Caldwell and for failing to request a mistrial. Moreover, there is no necessity for declaring a mistrial when the evidentiary error at issue may be "cured by an admonition to the jury to disregard the testimony." Graves v. Commonwealth, 17 S.W.3d 858, 865 (Ky. 2000). Consequently, this claim lacks merit.
C. INTRODUCTION OF IRRELEVANT AND PREJUDICIAL FACTS
Pelfrey also asserts that counsel was ineffective when counsel introduced irrelevant and prejudicial facts at trial. Pelfrey states that during trial, counsel called Kentucky State Police Trooper Danny Clark to testify. Trooper Clark attested that he had been to Doug Rice's home, where the victim in this case was murdered, for other drug raids in the past and for two other murders. Trooper Clark also stated during trial that he seized drug paraphernalia from the scene of Jim Combs' murder in this case. Pelfrey contends that the jury only heard this information from Trooper Clark and that "counsel did not clarify for the jury that [Pelfrey] was never charged with any drug charges or with any other murder. However, Trooper Clark's testimony gave the jury the impression that [Pelfrey] was somehow connected to drug trade and possibly involved with another murder."
Yet, the transcript of Trooper Clark's testimony from the trial provides that he stated Detective Johnny Sizemore was the person who conducted the murder investigation. Trooper Clark continued, specifying: "I took the opportunity to start one of my drug cases on Doug Rice at that time. My evidence was separate from that of Detective Sizemore's." Therefore, Trooper Clark attested that his drug investigation was focused on Doug Rice, rather than Pelfrey.
Additionally, Pelfrey's trial counsel testified during the evidentiary hearing in this RCr 11.42 proceeding that his trial strategy had been to blame the murder on Louise Caldwell. Counsel attested that the reason he called Trooper Clark as a trial witness was to try to show that someone else had killed the victim. Therefore, the trial strategy of Pelfrey's counsel was to argue that the murder was committed by someone other than Pelfrey, which counsel sought to imply by the fact that two prior murders had also occurred in Doug Rice's house. This is a reasonable trial strategy, and Pelfrey's ineffective assistance of counsel claim challenging defense counsel's trial strategy lacks merit. See Brown, 253 S.W.3d at 498-99.
Even if we were to assume for the sake of argument that counsel performed deficiently in introducing Trooper Clark's testimony without clarifying that Pelfrey had not been involved in the previous murder cases at Doug Rice's house, Pelfrey cannot show prejudice. No prejudice can be shown due to the weight of the evidence against Pelfrey, as discussed in the Kentucky Supreme Court's opinion on direct appeal and reiterated supra. See Pelphrey, No. 97-SC-484-MR, *1, *8 (Ky. October 15, 1998) (unpublished).
D. FAILURE TO IMPEACH FREDDIE WRIGHT
Next, Pelfrey argues that counsel rendered ineffective assistance when counsel failed to impeach Freddie Wright. Pelfrey contends that counsel learned during trial that Freddie "had been notified or had reason to believe he had outstanding warrants for his arrest. . . . However, counsel failed to develop and put this issue before the jury in an effort to discredit Freddie's credibility."
Although the jury was not informed of the outstanding warrant for Freddie's arrest, the jury was informed that Freddie was a convicted felon. After Freddie acknowledged during trial that he was a convicted felon, the court told the jury that the purpose of informing them of Freddie's felony record was "a question of credibility of the witness. You can consider it only for the purpose of the credibility of this witness. It has no substantive value as far as the guilt or innocence of Mr. Pelphrey is concerned." This is a proper admonition pursuant to Commonwealth v. Richardson, 674 S.W.2d 515, 517-18 (Ky. 1984).
A felony conviction should certainly weigh more heavily against a witness's credibility in the eyes of a juror than an arrest warrant. Therefore, Pelfrey cannot show that counsel performed deficiently in failing to discredit Freddie based upon the arrest warrant because evidence of Freddie's prior felony conviction was introduced to discredit Freddie. Even if that had constituted deficient performance, Pelfrey cannot show that counsel's failure to discredit Freddie based upon the arrest warrant prejudiced Pelfrey's trial because the jury was made aware of Freddie's prior felony conviction. Consequently, this claim lacks merit.
E. FAILURE TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE
Pelfrey alleges that he received the ineffective assistance of trial counsel when counsel failed to investigate and present mitigation evidence. Specifically Pelfrey argues that if counsel had conducted an investigation, he would have learned that he could have presented the testimony of Larry York, the President of Kentucky River Finance, and John Combs, a Chairman of the Perry County School Board, as mitigating evidence.
Both of these men testified during the evidentiary hearing in the circuit court's RCr 11.42 proceedings. York attested that he had known Merrill his entire life, that Merrill had told him that Merrill's mother once sprayed Raid down Merrill's throat in an attempt to kill him, and that on a separate occasion Merrill's mother tried to shoot Merrill. York testified that despite his upbringing, Merrill was polite and a good person. York still considered Merrill to be a friend.
Combs attested that he had known Merrill for approximately thirty years, and he found Merrill to be trustworthy. Upon cross-examination by the Commonwealth, however, Combs testified that he was unaware that Merrill had a prior drug-related conviction.
The circuit court stated in its order denying Pelfrey's RCr 11.42 motion that "the testimony of York and Combs is entitled to little weight and would not have impacted the sentence recommended by the jury." The range of possible sentences for Pelfrey was twenty years to life imprisonment. The jury fixed his sentence at thirty years of imprisonment.
On appeal from an RCr 11.42 proceeding, "[a] reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons, 191 S.W.3d at 561, overruled on other grounds by Leonard, 279 S.W.3d at 159. The circuit court did not abuse its discretion in finding that the testimony of York and Combs was entitled to little weight and that the testimony would not have impacted the jury's sentencing determination. Therefore, this claim lacks merit.
F. CUMULATIVE EFFECT OF ERRORS
Finally, Pelfrey contends that he was denied the effective assistance of trial counsel due to the cumulative effect of trial counsel's errors. However, because we have determined that there was no merit to Pelfrey's individual claims of error, there can be no cumulative error. See Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006). Consequently, this claim lacks merit.
Accordingly, the order of the Leslie Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Dixon Bullock
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky