Opinion
NO. 2018-CA-001599-MR
06-12-2020
D'ANDRE SWAIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: D'Andre Swain, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 13-CR-000589 OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: D'Andre Swain, pro se, brings this appeal from a September 24, 2018, order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion without an evidentiary hearing. We affirm.
In 2013, Swain was indicted by a Jefferson County Grand Jury on one count each of assault in the first degree, wanton endangerment in the first degree, tampering with physical evidence, burglary in the first degree, violation of a protective order, terroristic threatening in the third degree, and with being a persistent felony offender in the first degree (PFO I). A jury trial ensued and the trial court granted a directed verdict of acquittal upon the charge of tampering with physical evidence. The jury ultimately found Swain guilty upon the remaining indicted charges. The trial court sentenced Swain to a total of 33-years' imprisonment.
Swain pursued his matter of right direct appeal to the Kentucky Supreme Court. KY. CONST. §110(2)(b). The events leading to Swain's indictment were summarized by the Supreme Court as follows:
[Victim] and D'Andre Swain dated for five months and lived together for part of that time; however, the two separated just under a month prior to the subject-incident. After separating, [victim] sought and received an Emergency Protective Order (EPO) against Swain. The EPO prohibited Swain from having any contact with [victim], being within 500 feet of her, or returning to the Dumesnil Street residence in Louisville that they had shared.
On January 16, 2013, after working during the day, [victim] returned to her Dumesnil Street residence. She had dinner and went to sleep before being awoken by a loud noise. [Victim] went to the front door and found everything to be normal. On her way back to bed, she passed her son's bedroom. [Victim's] son was not at
home, but his bedroom door opened and Swain emerged. The loud bang [victim] heard was Swain pushing her son's air conditioning unit through the window to gain entrance to the residence.Swain v. Commonwealth, No. 2016-SC-000036-MR, 2017 WL 2598830, at *1 (Ky. June 15, 2017). Swain's conviction was affirmed by the Kentucky Supreme Court.
Swain told [victim] he knew he was not supposed to be at the residence, but he just wanted to talk. Swain began beating [victim] and took her cell phone in order to see if she had been talking to other men. [Victim] was able to calm Swain somewhat but she noticed he kept eyeing a hammer that was on the floor; Swain told [victim], "I should hit you with it." [Victim] sought to distract Swain by asking him to put the air conditioning unit back in her son's window. Once Swain was inside the son's room, [victim] locked the door from the outside and ran out the front door.
When [victim] reached the corner, she turned and saw Swain was chasing her, holding the hammer in his hand. By the time she reached the next corner, Swain had caught up with her. He put her in a headlock and choked her until she felt faint. Swain stated, "If I can't have you, ain't nobody gonna have you" and began striking her in the head repeatedly with the hammer. After three blows from the hammer, [victim] lost consciousness.
When the Louisville Metro Police Department arrived on the scene, they found [victim] bloodied and cut open in several places, barefoot, wearing only a bra and jeans, and unable to communicate. She was transported to the University of Louisville Medical Center, where an examination revealed that she had injuries consistent with strangulation; her skull had been fractured; her body and head had numerous lacerations; one of her teeth was chipped; and she had evidence of a traumatic brain injury. Physicians surgically repaired [victim's] skull fracture through insertion of a metal plate. Police arrested Swain two months later and these proceedings commenced.
Swain then filed an RCr 11.42 motion to vacate his conviction alleging ineffective assistance of trial counsel. By order entered September 24, 2018, the trial court denied Swain's RCr 11.42 motion without an evidentiary hearing. This appeal follows.
To prevail upon a claim of ineffective assistance of trial counsel, Swain must demonstrate that trial counsel's performance was deficient and that such deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). An evidentiary hearing is required only where the allegations are not refuted on the face of the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). And, a motion made pursuant to RCr 11.42 must specifically state the grounds for relief, and mere conclusory allegations of error are insufficient to warrant an evidentiary hearing. Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993); Wedding v. Commonwealth, 468 S.W.2d 273, 274 (Ky. 1971).
Swain contends the trial court erred by denying his claim for ineffective assistance of trial counsel. Swain raises numerous arguments that we will address in no particular order. First, Swain argues that trial counsel was ineffective for failing to move for a mistrial after a juror fell asleep during trial.
Juror inattentiveness is certainly a form of juror misconduct that may prejudice a defendant and, in some circumstances, may require the granting of a mistrial or a new trial. Lester v. Commonwealth, 132 S.W.3d 857, 862 (Ky. 2004); see also Conyers v. Commonwealth, 530 S.W.3d 413, 427 (Ky. 2017) (holding that juror misconduct may entitle a defendant to a new trial or to a mistrial). However, it is "universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice." Major v. Commonwealth, 177 S.W.3d 700, 709 (Ky. 2005). As a threshold matter, the aggrieved party must demonstrate that the juror was actually sleeping and that some prejudice resulted.
In this case, the juror's conduct was brought to the trial court's attention. The court responded that it had been watching the juror and noticed the juror had been taking notes and had also been moving around. The trial court did not believe that the juror had been sleeping. Being unable to convince the trial court that the juror was sleeping, trial counsel had no basis to file a motion for a mistrial. Thus, we do not believe trial counsel was ineffective as the trial court determined the juror had not been sleeping.
Next, Swain contends trial counsel was ineffective for failing to request funds to retain an expert witness to testify at trial. More particularly, Swain asserts trial counsel was ineffective for failing to obtain an expert to refute the Commonwealth's medical and DNA evidence experts.
RCr 11.42(2) requires that in a motion for relief, the defendant shall state specifically "the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." And, more particularly, in addressing a criminal defendant's request for an expert witness, the Kentucky Supreme Court has held:
The appellant failed to show a necessity for the expert assistance he requested. He stated in general terms only that expert assistance was needed to prepare adequately for trial . . . . He did not state the names of any doctor . . . that he desired to examine him, nor did he furnish any estimate of the cost. He further did not state what he expected to show or in what manner the requested assistance would be of any specific benefit to him. . . .Simmons v. Commonwealth, 746 S.W.2d 393, 395 (Ky. 1988).
. . . .
The trial courts are not required to provide funds to defense experts for fishing expeditions. Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky. 1984). There is no violation of due process in the refusal to provide for expert witnesses where the defendant offers little more than an undeveloped assertion that the requested assistance would be beneficial. Caldwell v. Mississippi, 472 U.S. 320 (1985).
In the case sub judice, Swain has failed to name any expert that counsel should have called as a witness, the cost involved, or what he expected the expert's testimony would demonstrate. Rather, Swain merely states in general terms that an expert was needed to prepare for trial. As Swain has failed to demonstrate the need for an expert witness with any specificity, we do not believe trial counsel was ineffective for failing to request an expert witness.
Swain next contends trial counsel was ineffective for failing to investigate. While Swain's argument is somewhat disoriented, he alleges that photographs of the window and air conditioner in the bedroom of the victim's son would have demonstrated Swain could not have entered the residence through that window. Swain argues the air conditioner could not have been pushed in from the outside; and logically, he could not have gained entry through the window. Consequently, Swain claims that if the photographs had been introduced he "would not be found guilty of burglary 1st Degree."
In the trial court's order, it concluded that "the means of entry was not relevant to the issue of whether a burglary occurred, because the victim testified that [Swain] came in without her knowledge or permission. Additionally, [Swain] was under a court order requiring him to stay away from the victim or her residence." September 24, 2018, Order at 5. We agree with the trial court's analysis and believe that Swain has failed to demonstrate that trial counsel was ineffective for not introducing into evidence photographs of the window and air conditioner.
Swain also alleges, in conjunction with counsel's failure to investigate, that trial counsel should have interviewed his father. Swain claims his father would have testified that Swain and the victim previously lived together at the victim's residence. However, the undisputed evidence at trial demonstrated Swain had previously lived there with the victim and that the victim had recently obtained an EPO against Swain. Therefore, the testimony of Swain's father indicating that Swain previously lived with the victim was merely cumulative, not relevant to the indicted charges, and would not have affected the outcome of the trial. Therefore, we view as meritless Swain's contention that counsel was ineffective for failing to interview Swain's father or otherwise properly investigate the case.
Swain's next argument is that "trial counsel was ineffective for failing to timely file reciprocal motion in mitigation of assault 1st degree which cost an EED [extreme emotional disturbance] defense." Swain's Brief at 11. Although inartfully drafted, it appears that Swain is arguing trial counsel was ineffective for failing to timely disclose expert witness testimony concerning the EED defense. However, a review of the record reflects that Swain's assertion is not well-founded. Before trial, the court heard the parties' pretrial motions and specifically determined it would not exclude any expert witness testimony due to the untimely nature of the disclosures. Rather, the trial court excluded the testimony on other grounds. Of the three potential expert witnesses as to the EED defense, the trial court excluded one witness's testimony because she did not have any personal knowledge of Swain and was only testifying as to the EED defense. The court reasoned that EED was not a medical condition, and therefore the testimony of a medical doctor would not be helpful to the jury as to the condition known as extreme emotional disturbance. As for the other two expert witnesses, the trial court ruled it would permit their testimony if sufficient evidence was introduced at trial that a "triggering event" occurred for purposes of the EED defense. At trial, the court determined there was not sufficient evidence to demonstrate a triggering event, thus the expert testimony was excluded. As such, we believe Swain's contention that trial counsel was ineffective for failing to timely file a "reciprocal motion in mitigation of assault" charge is without merit.
Swain next argues that trial counsel was ineffective for failing to prepare for trial and discuss a trial strategy with Swain. He argues that counsel never met with him at the jail to discuss a trial strategy. Swain specifically asserts:
Trial counsel never hired an expert to rebut the Commonwealth's witness, trial counsel never deposed the victim prior to trial, counsel never called Swain's father to testify, although Swain specifically told his counsel that his father was a witness and would testify at trial. The only thing that was discussed was EED, however, it was not discussed prior to trial whether Swain would take the stand in his own defense, no mark[sic] trials, no back up plains[sic] if expert witness[es] could not testify. Swain explicitly told his
counsel he was not accepting any plea and wanted his day in court, trial counsel did not prepare Swain for trial.Swain's Brief at 15.
When challenging trial strategy, an appellant "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (citation omitted). And, even if the appellant can overcome the strong presumption that trial counsel's strategy was sound he would still be required to satisfy the prejudice inquiry of Strickland. Id. at 692. In other words, an appellant must demonstrate there is a reasonable probability the outcome of the trial would have been different. Id. at 694.
Here, Swain has not demonstrated that there is a reasonable probability that the outcome of the trial would have been different. Many of these issues have been addressed elsewhere in this Opinion and were not determined to constitute ineffective assistance of counsel. In the absence of Swain showing that there was a reasonable probability that the outcome would have been different, we must conclude that trial counsel did not render ineffective assistance as to trial strategy.
Swain also asserts that trial counsel was ineffective for failing to cross-examine the EMS worker that responded to the scene of his attack on the victim, which looked to his failure to object to the jury instructions. In this circuitous argument, Swain maintains that counsel could have elicited testimony from the EMS worker that the injuries to the victim's neck could have occurred as a result of the EMS worker placing the victim in an immobilization collar rather than from Swain hitting her in the head with a hammer. If such testimony was elicited, Swain believes there would have been no need for a jury instruction upon both the assault charge and the wanton endangerment charge.
The issue regarding the giving of an instruction upon both the assault charge and the wanton endangerment charge was addressed by the Supreme Court in Swain's direct appeal. And, as noted by the trial court in its September 24, 2018, Order Denying Motion to Vacate Judgment, "the appellate court found that both instructions were appropriate. This issue is therefore not properly raised in a RCr 11.42 motion." September 24, 2018, Order at 8. We agree with the trial court's analysis of the law on this issue and are of the opinion that Swain failed to demonstrate that trial counsel rendered ineffective assistance in this instance.
Swain also asserts that the trial court erred in denying his motion for post-conviction relief because of the cumulative effect of trial counsel's errors. However, since we have found no individual error in this case, we certainly cannot find any cumulative error. Furnish v. Commonwealth, 267 S.W.3d 656, 668 (Ky. 2007). Thus, we must also reject this argument.
Finally, Swain asserts that he received ineffective assistance of appellate counsel. More specifically, Swain asserts that his appellate counsel was ineffective for not addressing on appeal his objection to the admission of the victim's CT head scans at trial.
To prevail upon a claim of ineffective assistance of appellate counsel, defendant must demonstrate that the failure to raise an issue on appeal was deficient and that such deficiency resulted in prejudice. Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010). To demonstrate prejudice, there must exist a reasonable probability that, if raised on appeal, the issue would have been resolved in favor of appellant. Id. And, when evidentiary issues are raised on direct appeal, an appellate court initially determines whether the trial court abused its discretion in admitting or excluding the evidence, and then if so, whether such admission or exclusion constituted reversible error; i.e., whether the outcome of the proceedings would have been different absent the error. Strickland, 466 U.S. at 694.
In this case, the record indicates that an expert witness for the Commonwealth testified as to the results of the victim's CT scans. Trial counsel objected, arguing that the CT scans were not properly disclosed before trial. Even if appellate counsel were deficient for failing to raise this issue on appeal, we believe Swain has failed to demonstrate prejudice. At trial, there was substantial evidence introduced as to the extent of the victim's injuries, including her skull fracture, and this evidence constituted compelling evidence of assault. Consequently, we are unable to conclude that had this issue been raised in Swain's direct appeal it would have resulted in a different outcome. Simply stated, the failure of appellate counsel to raise this evidentiary issue in Swain's direct appeal to the Supreme Court was not prejudicial nor would it have affected the outcome of the case.
In sum, we conclude that Swain's allegations of ineffective assistance of counsel were refuted upon the face of the record and that the trial court properly denied Swain's RCr 11.42 motion alleging ineffective assistance of trial counsel and appellate counsel.
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: D'Andre Swain, Pro Se
Burgin, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky