Opinion
NO. 2014-CA-000173-MR
01-15-2016
WILLIAM JACK ROGERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Meredith Krause Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 07-CR-00065 OPINION
AFFIRMING BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES. DIXON, JUDGE: William Jack Rogers has appealed from the Caldwell Circuit Court's denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post-conviction relief. He contends the trial court erred in denying the motion without first convening an evidentiary hearing to resolve his allegations of ineffective assistance of trial counsel, which he believes cannot be refuted by an examination of the record. Following a careful review, we affirm.
Rogers was convicted in 2009 of two counts of intentional murder for which he was sentenced to life imprisonment without the possibility of parole for twenty-five years. The facts underlying this case were summarized by the Supreme Court in its opinion affirming appellant's conviction as follows:
The events leading up to just before the shooting were basically undisputed. On June 13, 2007, Appellant left work at his usual time, around 4:30 p.m., and went home. Over the next hour and a half, he drank eight beers. Having run out of beer, he went to borrow some from a friend, James Sloane. Sloane's house was across the street from Anna Daughtry's apartment. Earl Cansler, Robbie McGregor, Lynn White, and Paul Loney were at Daughtry's apartment drinking. Cansler, who was Appellant's friend, walked over to Sloane's house to talk to Appellant. Robbie[] then walked over and asked Appellant if he wanted to smoke some crack cocaine. Robbie and Appellant smoked the crack. Robbie offered to purchase more crack, and Appellant gave him $60.00 to make the purchase. Robbie left with Lynn White in White's truck to purchase the crack. Robbie and White returned about a half-hour later, and Robbie and Appellant smoked the crack.
Appellant gave Robbie $100.00 to purchase more crack, and Robbie and White again left in White's truck. While Appellant waited for them to return, he continued drinking at Sloane's house. Robbie and White decided to use Appellant's money to buy crack for themselves, and, unbeknownst to Appellant, did not plan to return. When the two men did not return as expected, Appellant walked over to Daughtry's to see if anyone had heard from them. No one had. Over the next several hours, Appellant
walked over to Daughtry's several times, checking to see if anyone had heard from Robbie. At one point, because Robbie did not have a cell phone, Appellant called White's cell phone from his (Appellant's) cell phone. No one answered. Appellant then used Earl Cansler's cell phone to call White. This time, someone answered, but the person hung up when he heard Appellant's voice. Appellant believed it was Robbie.
Appellant eventually asked Paul Loney if he would send a text message to White's phone for him. Loney agreed. The first text message, sent at 11:30 p.m., stated, "Did you rip me off? This is BJ."[] The second text message, sent around midnight, stated, "Tell Rob to call me. I want my money or I want my shit." Appellant went back to Sloane's and slept in his truck for a while. He then went back to Daughtry's one more time to see if anyone had heard from Robbie. No one had. Appellant then left in his truck.
It is disputed as to what occurred next. Robbie McGregor testified that after buying crack cocaine with Appellant's money, he and White rode around in White's truck for a few hours, and then, around midnight, went to Robbie's aunt and uncle Kathy and Johnny McGregor's trailer, which was located on Princeton-Olney Road. Robbie's wife Penny was already there. White left in his truck to get more crack, and when he returned, Robbie came outside to meet him. As the two were going back into the trailer, they saw Appellant's truck drive by, turn around, and stop in the road out in front of the trailer. The road was about 65-75 feet from the trailer, with a line of trees in between. Robbie testified that Kathy came to the doorway of the trailer, and yelled that she would call 911 if Appellant didn't leave. Penny, standing next to Kathy, was partially in the doorway. Suddenly, the trailer came under gunfire. When the shooting stopped, Penny was dead. The police were called. Kathy was taken to the hospital where she died shortly thereafter. Robbie, White, and Johnny, who were in other areas of the trailer, were unharmed.
Appellant, who had fled the scene in his truck, was apprehended shortly thereafter. He subsequently learned the two women had been killed. Appellant was interviewed twice by Kentucky State Police Detective Steve Silfies. Silfies testified that Appellant was uncooperative in the first interview. In the second interview, after being informed by Detective Silfies that his gun had been found, Appellant made a comment to the effect that he didn't mean to shoot the women. Detective Silfies testified that when he (Silfies) then stated to Appellant that "you meant to kill Robbie and Mr. White", Appellant nodded affirmatively.
Appellant testified in his own defense. Appellant's version of events differed from Robbie McGregor's. He further denied agreeing with Detective Silfies that he meant to shoot Robbie McGregor and Lynn White. Appellant testified that after leaving Daughtry's, he first drove home, but then decided to look for Robbie and White. Appellant denied that he was angry, but claimed that he just wanted to find out what happened. Appellant testified that he was also highly intoxicated, having consumed over 12 beers and two half-pints of gin, in addition to having smoked the crack cocaine.
Appellant drove around looking for Robbie and White, eventually driving down Princeton-Olney Road, where he saw White's truck parked in the driveway of a trailer. Appellant testified that Robbie and Johnny McGregor were standing by the truck. Appellant slowed down and stopped, thinking the men would walk over and talk to him. When they did not, he drove past the driveway about 100 feet, turned around, and came back and stopped in the road by the driveway. Appellant got out of his truck, and was going to walk over and talk to them. However, the two men went into the trees and appeared to be trying to hide. It was dark, and Appellant could not see well. Appellant thought he saw a gun in Robbie's hand. The men were yelling, but Appellant did not know what they were saying or if they were yelling at him.
Appellant walked back to his truck and got in, but it would not start. Appellant got back out of the truck, and tried to watch the two men. Appellant testified that he then heard a loud pop, like a gunshot, and a "ping", like a bullet ricocheting. Appellant believed he was being shot at. Appellant testified that he grabbed his rifle (a MISIR-10, an AK-47-type assault rifle) from his truck and shot back, in self defense. He shot from the hip, into the tree line. He emptied the magazine, which held 30 rounds. He then got into his truck and left. At some point he stopped his truck and tossed the rifle out. Appellant testified that he tossed the gun because he thought he would be in trouble because there had been shooting. He denied knowing at that time that anyone had been shot.Rogers v. Commonwealth, 2009-SC-000241, 2010 WL 3377754 (Ky. Aug. 26, 2010)
Appellant testified that he did not mean to hurt Penny or Kathy, and that he did not even know they were there. He testified that Penny was his friend, and that he did not know Kathy. Appellant testified that he had not intended to kill anyone. Appellant testified that the reason he had his rifle in his truck was because his house had a broken window, and, therefore, he kept his valuables, including his guns, in his truck. Appellant admitted that he did not tell Detective Silfies that he had been shot at, but had told Silfies that he was scared and had shot in order to scare the men. Appellant recalled telling Detective Silfies that he did not mean to hurt Penny or Kathy, but denied having agreed with Detective Silfies that he had meant to kill Robbie McGregor and Lynn White. In his testimony, Robbie McGregor denied shooting at Appellant, and denied that he had a gun or anything that looked like a gun in his hand when Appellant drove up. A Kentucky State Police trace analysis expert testified that he analyzed gunshot residue kits collected from Appellant, Robbie McGregor, Penny McGregor, Kathy McGregor, and Johnny McGregor. Only Appellant's kit was indicative of gunshot residue. Lynn White had already left the scene when the police arrived and therefore no kit could be collected from him.
Because there are a number of individuals in this case with the last name McGregor, they will be referred to by their first names.
Appellant went by the nickname "Billy Jack."
In March, 2012, Rogers filed a timely motion for post-conviction relief pursuant to RCr 11.42. The Caldwell Circuit Court denied Rogers' motion without an evidentiary hearing. It is from the order denying his motion that Rogers presently appeals.
On appeal, Rogers contends that for various reasons he received ineffective assistance of counsel. In order to prevail in an RCr 11 .42 proceeding, the movant must first allege specific facts that if true would entitle him to relief. RCr 11.42(2). In order to establish ineffective assistance of counsel, the movant must satisfy a two-part test showing: (1) that counsel's performance was deficient; and (2), that the deficiency resulted in actual prejudice affecting the outcome. Strickland v. Washington, 466 U .S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gall v. Commonwealth, 702 S.W.2d 37 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Unless the movant makes both showings, he cannot prevail. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The burden of proof is upon the movant to show that he was not adequately represented by trial counsel. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (1969).
In determining whether counsel was ineffective, a reviewing court must be highly deferential in scrutinizing counsel's performance, and the tendency and temptation to second-guess must be avoided. Harper v. Commonwealth, 978 S.W.2d 311, 315 (1998). We must look to the particular facts of each case and determine whether the acts or omissions were outside the wide range of professionally competent assistance. Id.
Decisions regarding trial strategy are not immune from review, but will only be determined deficient if they are objectively unreasonable. See Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007). The Court must assess what a reasonable attorney in those circumstances would do, while maintaining profound deference to defense counsel. Id. The focus of the inquiry must be on whether trial counsel's decision not to pursue evidence or defenses was objectively reasonable under all the circumstances. Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003).
Where the trial court has denied an RCr 11.42 motion without a hearing, a reviewing court's review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction. See Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000) (citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)). We review the arguments of the parties with these standards in mind.
Rogers first argues that his trial counsel provided ineffective assistance by failing to obtain an independent ballistics and trajectory expert to assist in cross-examination and offer possible exculpatory testimony. Specifically, he contends that an expert in firearm trajectory could have established that Rogers fired randomly. He further asserts that a ballistics expert could have testified that damage done to a tree in the area was created by two different caliber bullets. Rogers insists that trial counsel's failure to obtain these experts resulted in trial counsel only being able to present an imperfect self-defense claim rather than a perfect self-defense claim. We disagree.
Counsel has a duty to conduct a reasonable investigation, including defenses to the charges. In evaluating whether counsel has discharged this duty to investigate, develop, and present such defenses, Kentucky has adopted a three-part analysis. Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001). First, it must be determined whether a reasonable investigation should have uncovered the defense. Id. If so, then a determination must be made whether the failure to raise this defense was a tactical choice by trial counsel. Id. Counsel's tactical choice must be given a strong presumption of correctness, and the inquiry is generally at an end. Id. If the choice was not tactical and the performance was deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Id.
A review of the record indicates that all of the evidence pointed to Rogers as the lone shooter. All of the bullets found at the scene were fired from the same weapon; all of the shell casings were found in one spot; and there was no other gun found at the scene. There was, however, a toy gun found inside the trailer home, which the lead detective admitted during testimony could have been mistaken for a real gun. The only evidence Rogers contends mandated the assistance of a ballistics expert and a trajectory expert was his own testimony that he was fired upon first.
While not completely abandoning a perfect self-preservation defense, trial counsel used the presence of the toy gun as support for a claim of imperfect self-defense. Counsel proffered the theory that Rogers mistook the toy gun found in the trailer for a real gun and subjectively feared for his life. The record indicates that trial counsel decided to focus on improper self-defense in part because Rogers shot his semi-automatic weapon into the trailer thirty times, killing the two women, and was thus mistaken in the degree of force necessary for self-protection. In light of the overwhelming evidence that Rogers was the lone shooter, trial counsel reasonably believed that a jury would not acquit Rogers based on a claim of perfect self-defense. Therefore, counsel focused on a claim of imperfect self-defense as the best strategy to avoid Rogers receiving a death sentence. We will not second-guess trial strategy if it is reasonable.
Because trial counsel's strategy was to focus on improper self-defense, it was unnecessary for trial counsel to hire a ballistics and trajectory expert to analyze bullet holes or damage to the tree. "[C]ounsel has a duty to...make a reasonable decision that makes particular investigations unnecessary." (Emphasis added). Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U.S. 4, 11, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009) (per curiam). Trial counsel focused on a claim of imperfect self-defense because the degree of force Rogers used was excessive. Therefore, it was inconsequential that a ballistics expert might testify that Rogers was fired upon first as he claims. Moreover, based on the evidence, it was reasonable for trial counsel to believe that it was unlikely a ballistics expert and trajectory expert would testify as Rogers suggests. Accordingly, we believe trial counsel's failure to obtain a ballistics and trajectory expert was a sound tactical decision made after a reasonable investigation.
Additionally, under Strickland, the movant must show that but for the alleged ineffective assistance, there is a reasonable probability that the outcome of the proceeding would not only have been different, but would have been more favorable to the movant. Strickland, supra. Here, Rogers attempts to use RCr 11.42 as a tool to conduct an investigation to determine if a different caliber bullet struck the damaged tree, making it purely speculative as to what a ballistics expert might have found, or to what he or she might have testified at trial. The burden to show what a particular investigation would have revealed is on Rogers. That burden is not met by pure speculation. It is just as plausible that such testimony would have been detrimental to Rogers' defense as it is that his defense would have been aided by such testimony. Rogers has not proven that his trial counsel conducted an inadequate investigation and made decisions regarding the choice of defenses that were not based upon adequate factual investigation. Further, because the nature of such testimony is purely speculative, it cannot be reasonably argued that the outcome of the trial would have been different but for the testimony. Such a finding would be required under Strickland in order to support an order sustaining Rogers' motion for relief from judgment.
Rogers also claims that trial counsel failed to fully develop and present evidence showing that he acted in self-defense. Prior to trial, trial counsel employed the services of an investigator who interviewed a friend of Rogers, Becky Lady. Lady informed the investigator that she had spoken to Johnny McGregor shortly after the shooting and that Johnny told her that Robbie instigated the shooting and shot himself in the foot. Evidence showed that Robbie's hand had tested positive for two of the three substances that make up gun powder residue (GSR). Additionally, the Kentucky State Police supplemental inventory indicated that a bullet was located inside a boot found inside the trailer. Rogers maintains that trial counsel should have attempted to call Johnny and Lady as witnesses. He further maintains that trial counsel should have fully investigated and used the information regarding the bullet found in the boot and the GSR substances found on Robbie's hands. He insists that failure to pursue this line of investigation amounted to ineffective assistance. The Commonwealth argues that Rogers' claim should fail because trial counsel investigated the matters and reasonably decided not to pursue them further.
We note that the trial court did not address this issue in its order denying Rogers' RCr 11.42 motion. However, we do not believe that Rogers can prevail on this argument. The record reveals that it was trial counsel's investigator who reported the statements Johnny allegedly made to Lady. Thus, it is clear counsel performed a reasonable investigation. Moreover, while we will not second-guess counsel's strategic decision not to call Lady or Johnny as a witness, the record clearly shows that the decision was reasonable. In addition to telling the defense team investigator that Johnny told Lady that Robbie instigated the shooting, Lady also informed the defense team investigator that Johnny told Lady that Cansler shot Kathy and Penny. However, it is undisputed that Cansler was not present when the shooting occurred. Moreover, Lady reported that she was a friend of Rogers and that they spoke every day. Due to questionable credibility, we believe it was reasonable for counsel to dismiss the assertions made by Lady, and the assertions Johnny allegedly made to Lady.
Rogers' claim of ineffective assistance for trial counsel's failure to use the bullet found in the boot, or the GSR test results, as evidence that Robbie shot at Rogers also fails. The Kentucky State Police supplemental inventory indicates that the bullet found in the boot was an unfired round. Furthermore, Robbie testified that he ran across the street after the gunfire ceased. And, there is no mention in the record of an injury to Robbie's foot. Moreover, a KSP trace analysis expert testified at trial that analysts look for significant quantities of all three substances that make up gunshot residue, and only Rogers' kit was indicative of gunshot residue. It is evident that there is no factual basis to Rogers' claim regarding the bullet and GSR test results. Because the evidence Rogers alludes to does not tend to prove that Robbie fired a gun, trial counsel's performance cannot be deficient for failing to pursue a self-preservation defense based on that evidence.
Finally, Rogers claims that his attorney provided ineffective assistance of counsel by failing to seek suppression of Rogers' statement to police in which he allegedly confessed to intending to kill Robbie and White. Following the shooting, Rogers was interviewed by detectives on two occasions. The first interview was recorded and the second interview was not. During the first interview, Rogers was Mirandized and spoke to Detective Silfies for a short time before he made an unequivocal request for counsel. Nonetheless, Detective Silfies continued to speak with Rogers. Finally, after several requests for counsel, Detective Silfies terminated the interview. Detectives Silfies conducted a second interview the next day without affording Rogers the aid of counsel. At trial, Silfies testified that during the second interview, Rogers acknowledged that he had intended to kill Robbie and White. Rogers contends that he was prejudiced by trial counsel's failure to seek suppression because, although he admitted to shooting his gun, it was for the sole purpose of protecting himself. He states that the alleged acknowledgement to Detective Silfies impeached his statement that he was acting in self-defense. He asserts that, but for trial counsel's failure to move to suppress the statement, the jury would have never heard the statement. We disagree.
Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602 (1966).
If it is easier, a court may proceed directly to the second prong of Strickland and dismiss an ineffective assistance claim on the ground that it lacks sufficient prejudice, without first determining whether counsel's performance was deficient. Strickland, 466 U.S. at 697, 104 S.Ct. 2052. To establish prejudice for trial counsel's failure to file a motion to suppress, a movant must show "a reasonable probability that...[his] motion would have succeeded had it been timely filed." McCalvin v. Yukins, 444 F.3d 713, 722 (6th Cir. 2006). A movant must also show a reasonable probability of a different outcome had the evidence been suppressed. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
We first note that the trial court erroneously found that trial counsel had no grounds to move for suppression because the interview in question was never entered into evidence at trial. The record suggests the contrary. Detective Silfies continued to question Rogers after he requested counsel and testified to Rogers' statements at trial. The Supreme Court of the United States has held that once an accused has expressed his desire to deal with police only through counsel, he is not to be subjected to further interrogation until counsel has been made available to him unless the accused himself initiates further communications with police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Rogers did not initiate further communications with Detective Silfies, therefore, trial counsel had sufficient grounds to move to suppress Rogers' statement to Detective Silfies made the day after he asserted his right to counsel.
In any event, we need not enter into a protracted analysis on whether there was a reasonable probability that Rogers' motion would have been successful. We do not believe that, had the motion been successful, a different outcome was probable.
While the fruits of an interrogation in violation of Miranda are generally not admissible at trial, the Commonwealth correctly points out that "statements made by a defendant in circumstances violating Miranda are admissible for impeachment" provided the statement was voluntary. Canler v. Commonwealth, 870 S.W.2d 219, 221 (Ky. 1994). Here, Rogers makes no claim, and the record does not indicate that his statement was involuntary; he only asserts that his statement was given in violation of Miranda. Therefore, after Rogers testified that he did not intend to shoot anyone, his statement to Detective Silfies could have been used against him for impeachment purposes. Thus, contrary to Rogers' assertion, the jury would have heard the statement even if trial counsel had successfully moved to suppress the statement. Intending Rogers to testify, it was reasonable trial strategy for trial counsel not to move for suppression of Rogers' statement.
Rogers argues that had the statement been suppressed, he would not have taken the stand to testify on his own behalf. We reject this argument. Because of the difficulties inherent in making a fair assessment of attorney performance, "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; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).
The record refutes Rogers' claim that he would not have taken the stand had his alleged statement to Detective Silfies been suppressed. The Commonwealth's evidence showed that after Rogers got ripped off in a drug deal, he grabbed his guns and went looking for the thieves. With no witnesses to corroborate Rogers' self-defense claim, his only chance at success was to take the stand and explain the circumstances surrounding the incident. Rogers testified that he saw what he thought was a weapon and heard what he thought was a shot. He stated that he fired his gun in self-defense in an effort to safely leave the area. If, as Rogers claims, he would have declined to take the stand upon successful suppression of his statement to Detective Silfies, Rogers would have had no defense to the Commonwealth's version of the events.
Additionally, trial counsel stated on the record in closing argument that the reason Rogers needed to testify on his own behalf was to explain how the gun ended up in Rogers' pickup truck. Thus, having Rogers take the stand to testify was trial strategy. And we believe it was reasonable. As we stated earlier, it is not the function of this Court to usurp or second-guess counsel's reasonable trial strategy. Baze, 23 S.W.3d at 624. Accordingly, Rogers has failed to prove that he was prejudiced by trial counsel's failure to seek suppression of his (Rogers) statement to Detective Silfies.
As all of Rogers' claims were conclusively resolved by the record, an evidentiary hearing was not required. Fraser, 59 S.W.3d at 452.
For the forgoing reasons the judgment of the Caldwell Circuit Court is affirmed
ALL CONCUR. BRIEFS FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky