Opinion
NO. 2013-CA-001099-MR
06-12-2015
JAMES C. POTTER, II APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Margaret A. Ivie LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 08-CR-00386
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON, AND KRAMER, JUDGES. CLAYTON, JUDGE: James C. Potter, II appeals the order of the McCracken Circuit Court denying his motion to vacate its judgment of conviction pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Potter asserts that he received ineffective assistance of counsel in violation of his state and constitutional rights. Finding no error, we affirm.
The victim, J.A., was born in December 1994. Potter was a friend of J.A.'s mother and frequently babysat J.A. and her younger sister while their mother worked. Potter began abusing J.A. in July 2002. In July 2008, J.A. disclosed to her father that over a six-year period, beginning when she was seven, Potter had engaged in multiple instances of sexual contact with her. Potter was indicted by a grand jury for first-degree sexual abuse, first-degree rape, first-degree sodomy, second-degree sexual abuse, second-degree sodomy, and second-degree rape.
At trial, J.A. described multiple sexual encounters with Potter. Potter's defense was denial that he had committed any of the described acts. At the conclusion of the evidence, the jury returned a verdict convicting Potter of first-degree sexual abuse, first-degree rape, first-degree sodomy, second-degree sexual abuse, second-degree sodomy, second-degree rape, and attempted second-degree sodomy. Potter was sentenced to a total punishment of life imprisonment.
Potter appealed to the Kentucky Supreme Court, which found that he had been subjected to double jeopardy due to erroneous jury instructions. Potter v. Commonwealth, 2011 WL 4430871 (Ky. 2011). Convictions for first- and second-degree sexual abuse based on those instructions were reversed and vacated, and the Supreme Court also reversed the assessment of fines for two violations of Kentucky Revised Statutes (KRS) 534.040(4). All other direct appeal issues were denied. Id.
Potter subsequently filed a motion to dismiss under RCr 11.42 in the circuit court, claiming that his counsel was ineffective. Potter simultaneously filed a motion for an evidentiary hearing. The circuit court denied all motions as well as Potter's subsequent motion to reconsider. This appeal followed.
The standard for reviewing a claim of ineffective assistance of counsel is set forth in the U. S. Supreme Court case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. This determination has two components:
First, the defendant must show that counsel's performance was deficient. This requires a 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 that 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, 466 U.S. at 687, 104 S.Ct. at 2064.
Regarding counsel's performance, review under the Strickland approach is highly deferential.
It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Strickland 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1995)).
Potter first argues that trial counsel's failure to obtain the assistance of an independent medical expert amounted to ineffective assistance of counsel. At trial, the Commonwealth presented the testimony of a medical expert who described the physical condition of J.A.'s hymen, including a description of some thinning and one tear. The expert also postulated that its appearance may have been caused by the insertion of a finger, penis, or sex toy. Potter's trial counsel cross-examined this expert regarding the effect of repeated penetration over time on the appearance of a hymen.
Trial counsel's decision not to present additional medical experts was consistent with trial strategy, and Potter does not provide any evidence that overcomes this presumption. The Commonwealth's expert testified on cross-examination that a hymen will normally thin and disappear due to repeated penetration. J.A.'s hymen showed only some thinning and one tear. However, J.A. testified that Potter had repeatedly caused penetration over a number of years. Because the expert's statements supported trial counsel's argument that J.A. was not being truthful, counsel could have reasonably concluded from the testimony that an independent expert was unnecessary. Potter's claim that trial counsel's failure to cross-examine or present independent testimony regarding possible non-criminal reasons for the thinning or tearing of a hymen amounts to second-guessing trial strategy and cannot be grounds for finding that counsel was ineffective.
Potter next claims that trial counsel was ineffective for failing to confer with a psychological expert regarding the possibility of coercion in J.A.'s alleged interviews conducted off the record. Potter claims that had trial counsel employed expert testimony regarding the effect of undue influences on a child witness, the jury would have had reasonable doubt as to Potter's guilt.
The case of Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), discussed whether a trial court may exclude the testimony of a psychological expert who testifies regarding the susceptibility of children to improper influence. In that case, the expert testified that "children are generally suggestible and may be improperly influenced by adult interrogators if proper procedures are not followed." Id. at 892. The trial court noted that the expert there "could not ascertain whether proper procedures had been followed" because the interviews were not recorded. Id. The Supreme Court ruled that the testimony was properly excluded because the expert presumed that proper techniques were not followed, which was based entirely on speculation without access to the interviews. Id.
Here, Potter speculates that J.A. may have been coerced when she revealed to her father that she had had sexual encounters with Potter. However, no records of these discussions exist, and Potter provides neither specific allegations of coercive interview techniques nor any evidence beyond speculation that J.A. was coerced by her father. Employment of a psychological expert by trial counsel would not have made the claim that J.A. was coerced any less speculative. Such an expert would have had to "presume[] that proper techniques were not followed and, ergo, the testimony of the child[] was unreliable." Id. Such presumptions would have likely precluded any testimony the expert might have offered under Stringer. Therefore, trial counsel's decision to forego the assistance of a psychological expert fell within the realm of sound trial strategy and did not amount to ineffective assistance of counsel.
Potter also claims that trial counsel was ineffective because she failed to retain and employ a DNA expert, arguing that the DNA results conflicted with the testimony of J.A. Potter claims that had trial counsel called a DNA expert to testify at trial, the jury would have had reasonable doubt regarding Potter's guilt. We disagree.
First, it is worth noting that the record reflects that trial counsel did, in fact, consult with an expert regarding DNA evidence. Potter admits as much in his brief, stating that the trial court ordered payment to an expert, although trial counsel did not call an expert to testify at trial.
Furthermore, Potter was not prejudiced by trial counsel's decision to not call a DNA expert at trial. Potter's first concern, that none of Potter's DNA was present on the sex toys, appears to be a red herring. Potter fails to state how not employing a DNA expert's testimony at trial regarding this evidence caused him prejudice; he appears to simply bring up this matter to imply that this evidence shows that the sex toys were not used by him in the manner J.A. describes. This is an argument that could have been used at trial without the assistance of a DNA expert, and trial counsel's decision not to employ one for this purpose did not prejudice Potter.
Potter's second concern regarding the DNA evidence is that J.A.'s DNA was discovered on some of the sex toys that she testified she had never seen before. He argues that this evidence shows that either J.A.'s testimony was false or the evidence was tainted, and that a DNA expert's testimony was necessary to show that the conclusions of the Commonwealth's forensic specialist could not be relied upon. Potter again fails to demonstrate prejudice. The evidence presented at trial showed J.A.'s DNA on sex toys owned by Potter that she testified he used on her. The jury convicted Potter based on this evidence. Even had a DNA expert testified regarding the principles of DNA transfer, such testimony would not have altered this evidence, and it could not have reasonably altered the jury's decision. Because Potter was not prejudiced by the trial counsel's decision not to call a DNA expert, his claim of ineffective assistance of counsel for not doing so must fail.
Potter next argues that trial counsel was ineffective for failing to investigate the purchase of Potter's sex toys. Jury Instruction No. 6, which outlined the requirements for finding Potter guilty of first degree rape, stated that the jury would find Potter guilty if he used a certain sex toy on J.A. before she was twelve years old. Potter claims that the sex toy in question was not purchased until after J.A. was over the age of twelve. He argues that had trial counsel conducted an investigation to discover the transaction records, he would not have been found guilty of first degree rape.
Potter did not provide copies of these records to the trial court. Other than the bare allegations in Potter's post-conviction motions, there is nothing in the record to indicate that these purchase records exist. "[A]n RCr 11.42 motion must set forth all the facts necessary to establish existence of a constitutional violation and . . . the court will not presume that facts omitted from the motion establish existence of such a violation." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 158-59 (Ky. 2009). Potter did not provide the trial court with any factual basis for determining whether trial counsel was ineffective on this matter by failing to obtain and introduce the transaction records. Because there was no factual basis for determining whether trial counsel was ineffective, the trial court did not commit error when it dismissed Potter's claim on this issue.
Potter next claims trial counsel was ineffective by denying him the opportunity to testify on his own behalf. We disagree. Potter states that he made the decision not to testify based on trial counsel's representation that she was authorized to make that decision for him. However, at the conclusion of the trial, the Commonwealth requested that the trial court advise Potter of his right to testify and acknowledge that he intended to waive that right. The trial court directly told Potter that he had a right to testify and asked him if he had discussed the matter with his attorney and knew that he had that right. Potter responded affirmatively, stating that he did not wish to testify. Whether trial counsel advised Potter to testify or not, Potter was given the opportunity to testify by the trial court and did not do so. Had trial counsel advised Potter not to testify, such advice would fall within the bounds of trial strategy given the weight and quality of the evidence against Potter. Therefore, Potter's claim that trial counsel was ineffective by denying him the opportunity to testify on his own behalf must fail.
Finally, Potter claims that he was entitled to an evidentiary hearing on his RCr 11.42 claim. RCr 11.42(5) states that "[i]f the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing." See also Barnes v. Commonwealth, 454 S.W.2d 352 (Ky. 1970). The requirements for an RCr 11.42 motion are as follows:
[E]xtrinsic proof is not necessary for an RCr 11.42 motion. The motion need only state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. The requirement for a specific statement of facts, however, means that the motion must contain more than a shotgun allegation of complaints. And the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify
the extraordinary relief afforded by the post-conviction proceeding. Without a minimum factual basis, the motion may be summarily overruled. Furthermore, RCr 11.42 exists to provide the movant with an opportunity to air known grievances, not an opportunity to conduct a fishing expedition for possible grievances[.]Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005) (internal quotation marks and citations omitted), overruled on other grounds by Leonard, 279 S.W.3d at 158-59. Our test for determining whether an evidentiary hearing on an RCr 11.42 motion is warranted is as follows:
First, the movant must show that he is entitled to relief under the rule. This can be done by showing that there has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack. Second, the movant must show that the motion raises an issue of fact that cannot be determined on the face of the record.Id. at 325-26 (internal quotation marks and citations omitted).
With each claim that Potter has made in his RCr 11.42 motion and on appeal, he has failed to make the necessary showings to warrant an evidentiary hearing. As described above, Potter failed to establish a minimum factual basis for determining that his constitutional rights were violated when his attorney did not employ a medical, psychological, or DNA expert witness. Potter similarly failed to establish a minimum factual basis for concluding that Potter's trial counsel did not adequately investigate the purchase date of the sex toy described in Jury Instruction No. 6. Finally, Potter's claim that trial counsel was ineffective because she denied him his right to testify on his own behalf is directly refuted by the record. Because none of Potter's claims fulfilled the test for determining whether an evidentiary hearing is appropriate, the trial court properly denied his request.
Based on the foregoing, the decision of the trial court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Margaret A. Ivie
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky