Opinion
NO. 2012-CA-001077-MR
2013-10-11
JONATHAN D. STARK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jonathan Stark, Pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 03-CR-00069
OPINION
AFFIRMING
BEFORE: NICKELL, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Jonathan Stark appeals from a Hopkins Circuit Court order denying his request for an evidentiary hearing and for post-conviction relief pursuant to RCr 11.42. The circuit court determined that Stark did not receive ineffective assistance of counsel and was not entitled to a hearing. We affirm.
Kentucky Rules of Criminal Procedure.
In March 2005, Stark was convicted of two counts of murder for the deaths of Norrell Major and Tim Hibbs and sentenced to life imprisonment. Stark appealed his conviction to the Supreme Court of Kentucky which summarized the facts of the case as follows:
On June 30, 2002, the nude body of Norrell Major and partially nude body of Tim Hibbs were discovered inside of Major's trailer. Both men had been shot to death. Approximately six months earlier, Major ended a homosexual relationship with Appellant, who was Major's employee. The relationship ended because Major had reportedly been cheating on Appellant. By all accounts, Appellant did not react well to the end of the relationship. Evidence presented at trial suggested that Appellant was obsessed with Major. He continued to initiate contact with Major and eventually, filed a sexual harassment complaint against Major. However, his complaint was found to be unsubstantiated and he was removed from Major's department at work.Stark v. Commonwealth, No. 2005-SC-000332-MR, 2007 WL 2404453, at *1-2 (Ky. Aug. 23, 2007). The Supreme Court affirmed Stark's convictions, but reversed and remanded for a new penalty phase trial and sentencing. Id. In July 2008, a second jury sentenced Stark to life imprisonment. Once again, Stark appealed and the Supreme Court of Kentucky affirmed. Stark v. Commonwealth, No. 2008-SC-000660-MR, 2010 WL 252248 (Ky. Jan. 21, 2010).
Sometime between February and June of 2002, Appellant saw Major with Hibbs and became jealous. He followed the men and became involved in a heated argument with Major. Appellant admitted assaulting Major at that time. Afterwards, Appellant called Major's son to report that he still loved Major and was sorry about the physical confrontation. Approximately two or three weeks prior to the murders, Appellant sent Major a card describing his feelings for him, but Major once again rebuked Appellant's sentiments.
On the day prior to the murders, Appellant claimed that he discovered some lawn furniture missing from his front porch. He assumed the "thief" was Major. That night Appellant went to a party but then left around midnight. One of Appellant's friends tried to call him soon after he left the party since it was not Appellant's habit to leave gatherings without saying goodbye. Later that night, Appellant returned his friend's call, reporting that he went to Major's trailer to ask about the lawn
furniture but found no one home. He reported taking some lanterns in retaliation.
No signs of forced entry were found when Major and Hibbs's bodies were discovered that morning. Major's son reported that a key kept on the ledge above Major's front door was missing. Appellant immediately became a suspect and investigators went to his residence in the early hours of July 1, 2002.
During their conversation with Appellant, the investigators noted that Appellant spoke of Major in the past tense even though he had only been told that Major was in an accident. Appellant denied having a handgun, but upon a search of his residence, shells for two different pistols and a gun cleaning kit were found. Appellant acknowledged that he had owned a handgun, but sold it approximately three weeks prior to the murder. He said he sold it to a man named David Blades, but police were unable to locate him. Clothes and shoes worn by Appellant on the night Major and Hibbs were murdered were never located despite a search of Appellant's possessions. Phone records also showed a call from Appellant to Major at 1:14 a.m. on the night of the murders. Eventually, Appellant's DNA was linked to the scene of the crime via a cigarette butt found inside Major's trailer.
Based on this evidence, Appellant was charged with and convicted of the murders of Major and Hibbs. Final judgment was entered on March 31, 2005.
Thereafter, Stark filed a pro se RCr 11.42 motion requesting an evidentiary hearing to determine if his trial counsel was ineffective for failing to conduct a sufficient pretrial investigation and failing to exercise a preemptory challenge. The circuit court determined a hearing was unnecessary because the record showed that Stark received effective assistance and was not prejudiced. The court also denied his motion for RCr 11.42 relief.
Stark raised several additional arguments below, however he did not raise them on appeal. We also note that Stark failed to comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv) and CR 76.12(4)(c)(v) because he did not provide citations to the record. While within our discretion to strike his brief, CR 76.12(8)(a), we decline to do so.
This court reviews a trial court's judgment on an RCr 11.42 motion for an abuse of discretion. Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In order to prove ineffective assistance of counsel, a defendant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1986). In determining whether the specified errors resulted in the required prejudice, "[t]he 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[,]" i.e., "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Judicial review of trial counsel's performance is deferential to counsel and a strong presumption exists that the conduct of counsel falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. See also Hodge v. Commonwealth, 116 S.W.3d 463, 469 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
With respect to Stark's request for an evidentiary hearing, the decision whether to grant an evidentiary hearing requires the defendant to allege factual allegations which, if true, demonstrate '"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.'" Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (quoting Hodge, 68 S.W.3d at 342). If the defendant makes such allegations, a hearing "is only required when the motion raises 'an issue of fact that cannot be determined on the face of the record.'" Parrish, 272 S.W.3d at 166 (quoting Hodge, 68 S.W.3d at 342).
"Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard, 279 S.W.3d at 151. Moreover, where the moving party offers no factual support for his assertions, summary dismissal is warranted. Hensley v. Commonwealth, 305 S.W.3d 434, 436 (Ky. App. 2010).
On appeal, Stark first alleges that his trial counsel failed to conduct a sufficient investigation into the location of the clothing Stark wore the night of the murders. This argument fails for several reasons. First, Stark's assertion on appeal is at odds with his motion below. Stark is not "'permitted to feed one can of worms to the trial judge and another to the appellate court.'" Saylor v. Commonwealth, 357 S.W.3d 567, 573 (Ky. App. 2012) (quoting Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Second, his allegations are conclusory; he fails to set forth specific facts that would have been revealed if a hearing had been held and would have influenced the outcome. Indeed, the record indicates that the location of the clothing was a contested issue and the court held a hearing to determine its location, but nothing was revealed. In fact, Stark, perhaps the only individual with actual knowledge of the clothing's location, testified at trial that he did not know where the clothing was located. We are unable to say that Stark's trial counsel was deficient for failing to locate Stark's clothing when Stark himself testified that he did not know its location. Instead, the jury likely chose not to believe Stark, as was their prerogative. See Hatfield v. Commonwealth, 250 S.W.3d 590, 596 (Ky. 2008) (The jury's job is to "evaluate the credibility of witnesses and lend to that evaluation the relative weight they deem fit.").
Stark's motion below asserted that his trial counsel knew the clothing worn the night of the murder was visible in the search video and that Stark "informed Counsel that the clothing he wore to the party . . . [was] still at his place." On appeal, however, Stark insists that his trial counsel failed to conduct a proper investigation into the location of the clothing, did not watch the search video, and failed to interview witnesses from the party.
Next, Stark alleges that his trial counsel should have exercised a peremptory challenge to dismiss a juror who Stark contends would not consider the full range of penalties. We disagree. As the circuit court noted, Stark presented a similar argument on direct appeal and the Kentucky Supreme Court determined that the circuit court's motion to strike that juror for cause was not an abuse of the court's discretion. Stark, 2010 WL 252248, at *3-4. The Supreme Court noted that the juror "expressly indicated that he was willing and able to consider the full range of authorized penalties, and that he did not mean to imply that he would not consider a 20-year sentence under any set of circumstances." Id. Stark's trial counsel's decision not to exercise a peremptory challenge to strike that juror does not amount to ineffective assistance of counsel because the record clearly refutes Stark's assertion that the juror was unable to consider the full range of penalties.
While the arguments are similar, we disagree with the circuit court's conclusion that Stark's underlying argument regarding the peremptory challenge was procedurally barred because he already raised it on direct appeal. While the purpose of RCr 11.42 is not "'to permit a convicted defendant to retry issues which could and should have been raised in the trial court and upon an appeal considered by this court[,]'" here, Stark's claim under RCr 11.42 was an alleged error of his counsel, and is wholly independent of any claim he could have raised on direct appeal. Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009) (quoting Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972)).
In addition to failing to establish that his trial counsel was deficient, Stark fails to establish prejudice. In light of the evidence presented at trial, including, but not limited to, the DNA evidence linking Stark to the crime scene and Stark's history of violence with the victim, the outcome of the trial would not likely have been different if his counsel had taken the actions set forth in Stark's brief. This alone is sufficient to deny Stark an evidentiary hearing on his RCr 11.42 motion. Brewster v. Commonwealth, 723 S.W.2d 863, 864-65 (Ky. App. 1986) ("The trial court is permitted to examine the question of prejudice before it determines whether there have been errors in counsel's performance. In making its decision on actual prejudice, the trial court obviously may and should consider the totality of the evidence presented to the trier of fact. If this may be accomplished from a review of the record the defendant is not entitled to an evidentiary hearing.").
For the reasons set forth above, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Jonathan Stark, Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky