Opinion
NO. 2017-CA-001607-MR
03-08-2019
O'NEAL DEMETRIUS SWINT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: O'Neal D. Swint, pro se Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 12-CR-000003 OPINION
AFFIRMING
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BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES. KRAMER, JUDGE: O'Neal Demetrius Swint appeals from the Jefferson Circuit Court's order denying his motion seeking relief under RCr 11.42. After careful review of the record and applicable law, we affirm.
Kentucky Rule of Criminal Procedure.
In June 2014, following a jury trial, Swint was convicted of murder, first-degree assault, and wanton endangerment. The conviction stemmed from an altercation inside of a motor vehicle wherein one victim was killed, and another victim was shot in the arm. The Kentucky Supreme Court affirmed the conviction on Swint's direct appeal. Thereafter, in February 2017, Swint moved pro se to vacate his sentence pursuant to RCr 11.42. The circuit court entered an order denying the entirety of Swint's RCr 11.42 claims in June 2017. This appeal followed.
Swint v. Commonwealth, No. 2014-SC-000369-MR, 2015 WL 8243521 (Ky. Dec. 17, 2015). The Supreme Court's opinion provides a detailed summary of the underlying facts.
In a motion brought under RCr 11.42, "[t]he movant has the burden of establishing convincingly that he or she was deprived of some substantial right which would justify the extraordinary relief provided by [a] post-conviction proceeding. A reviewing court must always defer to the determination of facts and witness credibility made by the circuit judge." Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009) (internal citation omitted). An RCr 11.42 motion is "limited to issues that were not and could not be raised on direct appeal." Id.
On appeal, Swint raises a number of trial court errors and claims of ineffective assistance of counsel in relation to some of those errors. Regarding the trial court errors, those could have and should have been raised on direct appeal. Therefore, those claims are not properly before us in this appeal. See id. Regarding Swint's ineffective assistance of counsel claims, he alleges his trial counsel was ineffective: (1) for failing to object to the Commonwealth's presentation of alternate mental states for the murder charge; (2) for failing to object to the jury instructions for murder and assault in the first degree, respectively; and (3) for failing to object to the ultimate verdicts, which Swint viewed as inconsistent.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant must convince a reviewing court that: (1) his trial counsel's performance was deficient; and (2) this deficiency resulted in prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37, 39-40 (Ky. 1985). With respect to the first prong of the Strickland analysis, the reviewing court begins with a strong presumption that counsel's performance was adequate. Strickland, 466 U.S. at 689. In assessing counsel's performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms "to the extent that the errors caused the 'adversarial testing process' not to work." Harper v. Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998) (quoting Strickland, 466 U.S. at 690). In order to establish prejudice, a defendant must show a reasonable probability that without counsel's errors, the outcome of the proceeding would have been different. Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky. 1998) (citing Strickland, 466 U.S. at 694). With that framework in mind, we will address each of Swint's arguments in turn.
Swint's first argument takes issue with the Commonwealth's presentation of alternate mental states to the jury for the murder charge, and his counsel's failure to object to the alternate states. Specifically, he asserts he was deprived of the right to formal and adequate notice of the murder charge because his attorney did not object to the combination jury instruction that permitted Swint to be convicted of either intentional murder or wanton murder. This claim lacks merit.
In Futrell v. Commonwealth,471 S.W.3d 258 (Ky. 2015), the Kentucky Supreme Court stated that combination instructions, such as the instructions used in Swint's trial, "are appropriate . . . when, but only when, the evidence supports all of the alternatives." Id. at 277 (citing Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003)). Here, there was ample testimony concerning Swint's altercation with the passengers in the car and testimony stating Swint fired several shots while he was both inside the vehicle and outside the vehicle. Furthermore, a witness testified she overheard Swint tell a third party that he shot a passenger of the vehicle in the head. From this testimony, Swint's intent to murder was inferable from the evidence, as was the possibility that he was simply indifferent to whether the passenger lived or died, i.e., wanton murder. Therefore, the evidence supported both mental states and this argument fails.
Swint's second argument is similar to the first; however, he repackages it as an infringement on his constitutional right to a unanimous verdict. This argument takes issue with his counsel's failure to object to the assault jury instructions as well as the murder jury instructions. The assault jury instructions, like the murder instructions, permitted the jury to convict Swint of either intentional or wanton assault. Swint asserts that his counsel was ineffective for not objecting to the combination jury instructions allowing him to be convicted of both murder and assault under alternate mental states. In his view, this denied his constitutional right to a unanimous verdict. We disagree.
In Gribbins v. Commonwealth, 483 S.W.3d 370 (Ky. 2016), the Kentucky Supreme Court stated that criminal defendants are indeed "entitled to a unanimous jury verdict under Section 7 of the Kentucky Constitution." Id. at 376 (citing Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky. 1981)). However, "[t]he right to a unanimous verdict is not violated by a combination instruction so long as there is sufficient evidence to convict under both theories of culpability and the jurors are satisfied beyond a reasonable doubt that the defendant is guilty under one of the theories." Id.
We have already discussed that there was sufficient evidence to convict Swint of murder under either mental state. The assault charge stemmed from a gunshot wound that the driver of the vehicle sustained. This victim was shot by the same string of gunfire that killed the passenger in the car. For the same reasons as the murder conviction, there was more than sufficient evidence to infer that Swint intended to shoot the passenger, as well as evidence to infer that he was indifferent to whether the driver was shot by this gunfire. Therefore, this argument also fails.
Swint's third argument takes issue with his counsel's failure to object to his verdict. Swint asserts his counsel was ineffective for not objecting to the verdict when he was convicted of intentional murder, first-degree assault, and wanton endangerment. In his view, the verdicts were inconsistent because it is impossible to act both intentionally and wantonly in a single course of conduct. This argument also lacks merit.
Swint was found guilty of intentional murder for shooting and killing a passenger in the vehicle, first-degree assault for shooting the driver of the vehicle, and wanton endangerment for firing a gun into the vehicle and wantonly creating a substantial danger of death or serious physical injury to another passenger in the vehicle. As the circuit court noted, there was nothing objectionable when Swint was found guilty under an intentional theory for one charge and a wanton theory under other charges. The test is whether the evidence was sufficient to support each verdict. Commonwealth v. Harrell, 3 S.W.3d 349, 351 (Ky. 1999) (citing Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 359 (1932)) (explaining that each count of an indictment should be regarded as a separate indictment, and thus consistency in a verdict is not necessary). For the reasons previously discussed, there was sufficient evidence to support each of the verdicts in this case.
In light of the foregoing, the Jefferson Circuit Court's order denying Swint's RCr 11.42 motion is AFFIRMED.
ALL CONCUR BRIEF FOR APPELLANT: O'Neal D. Swint, pro se
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky