Opinion
NO. 2013-CA-000248-MR
03-07-2014
GREGORY RHODES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: R. Christian Garrison Department of Public Advocacy LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 00-CR-001236
OPINION
AFFIRMING
BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. COMBS, JUDGE: Gregory Rhodes appeals the order of the Jefferson Circuit Court denying his motion for relief pursuant to Kentucky Rule[s] of Criminal Procedure (RCr) 11.42 and his motion for an evidentiary hearing. After reviewing the law and the record, we affirm.
Rhodes admits that he killed Carolyn Williams by strangulation in the early morning hours of May 12, 2000. They had been smoking crack together. Rhodes claimed that the crack caused Williams to become erratic and aggressive. When she threatened to kill him with a knife, he strangled her.
A jury trial was held March 8-11, 2005. Rhodes testified that he had acted in self-defense. He also presented witnesses who testified that he had maintained that version of events ever since the day that Williams's body was discovered. The Commonwealth presented witnesses who testified that there was no forensic evidence of self-defense. The jury found Rhodes guilty of first-degree manslaughter. He received a sentence of sixteen-and-one-half years' incarceration. This court affirmed the conviction on direct appeal. Rhodes v. Commonwealth, 2010 WL 2539763 (June 25, 2010).
On May 22, 2012, Rhodes filed a motion to vacate the conviction pursuant to RCr 11.42, alleging ineffective assistance of counsel. The trial court denied the motion on December 12, 2012. This appeal follows.
RCr 11.42 is a vehicle by which a convicted defendant may challenge his conviction and sentence on collateral grounds. RCr 11.42(1). When the grounds are based on claims of ineffective assistance of counsel, the appellant must satisfy a two-pronged analysis:
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 the defendant by the Sixth Amendment. Second, the defendant must showStrickland v. Washington, 466 U.S. 668, 687 (1984), adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). Both prongs must be met in order for the test to be satisfied. The Court further elaborated:
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.
The defendant must show that 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 confidence in the outcome.Strickland, 466 U.S. at 694.
As an appellate court, we may only review a trial court's denial of a motion for an evidentiary hearing to determine whether the allegations are refuted by the record and if they would nullify the conviction were they true. Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). No evidentiary hearing is required if the record contradicts the allegations on its face. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986).
Rhodes first contends that his counsel committed prejudicial error when he failed to object to the trial court's ruling on an objection raised by the Commonwealth during his testimony. Failure to object thus rendered any related claim of error unpreserved for appeal. Rhodes attempted to testify that Williams had threatened him by saying that she would kill him when she approached him with the knife. The Commonwealth objected on the basis of hearsay, and the trial court sustained the objection. Instead of objecting or admitting the testimony by avowal, Rhodes's counsel agreed with the trial court's ruling.
This court has already held that it was error for Rhodes's counsel not to preserve the argument. Rhodes v. Commonwealth at *2-3. Additionally, in this appeal, the Commonwealth concedes that Rhodes's trial counsel committed error by accepting the court's ruling. The testimony was admissible as a hearsay exception to prove Rhodes's state of mind at the time of commission of the crime. Kentucky Rule[s] of Evidence (KRE) 803(1). With the fact of the error established, our task is to determine whether the error was prejudicial.
The trial court correctly assessed the effect of the error. It found that the substantive meaning of Williams's words was presented to the jury. Rhodes testified about the erratic nature of Williams's behavior. He testified that she brandished a knife in the only doorway of the room, effectively blocking his only means of escape. Additionally, Rhodes presented other witnesses who testified that Rhodes had explained to them that he had strangled Williams in self-defense. The jury was presented with sufficient evidence to support a finding of self-defense. However, as was its prerogative, it chose instead to grant more weight to the Commonwealth's theory. We do not conclude that the error was prejudicial despite the admitted failure of counsel to raise a proper and warranted objection.
Rhodes next argues that his counsel was deficient by failing to procure a witness, Dominic Martin, for trial. Martin was not in her apartment at the time that Williams was killed, but he had been present moments before. Rhodes claims that Martin would have testified regarding Williams's aggressive and paranoid behavior that resulted from smoking crack. Martin was listed as a witness for the Commonwealth, but he did not appear for trial. Rhodes argues that Martin's absence resulted from counsel's erroneously failing to secure his appearance.
Rhodes spells Marlins's first name as "Dominique" in his brief. However, the record refers to Martin as "Dominic."
We disagree that counsel committed any error in this respect. Martin was the Commonwealth's witness. The record reflects that the Commonwealth subpoenaed Martin. Both the Commonwealth and Rhodes hired private investigators to locate Martin. We agree with the trial court that the efforts of Rhodes's counsel were more than sufficient.
Furthermore, if counsel erred by not securing the presence of Martin, no prejudice resulted. Anthony Moore also testified. He had been present the night that Williams died, and he testified as to her erratic behavior. Rhodes does not offer any evidence that Martin's testimony would not have been repetitious or cumulative with respect to Moore's testimony.
Finally, Rhodes contends that the trial court erred in denying his motion for an evidentiary hearing. However, his claims of error are all refuted by the record. Therefore, the necessity of a hearing is moot. Lewis v. Commonwealth, supra.
We affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: R. Christian Garrison
Department of Public Advocacy
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky