Opinion
NO. 2014-CA-001612-MR
05-22-2015
DEVRON WADLINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Devron Wadlington, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 05-CR-00047
OPINION
AFFIRMING
BEFORE: CLAYTON, D. LAMBERT, AND J. LAMBERT, JUDGES. J. LAMBERT, JUDGE: Devron Wadlington appeals from the Trigg Circuit Court's September 8, 2014, order denying his motion to vacate judgment under Kentucky Rules of Civil Procedure (CR) 60.02. Previously, a Trigg County jury convicted Wadlington of murder and sentenced him to imprisonment for a total of twenty years. His conviction was affirmed on direct appeal. On March 15, 2013, this Court affirmed the denial of Wadlington's Kentucky Rules of Criminal Procedure (RCr) 11.42 motion, and on February 12, 2014, the Kentucky Supreme Court denied discretionary review. After careful review, we affirm the Trigg Circuit Court's denial of Wadlington's motion to vacate judgment under Kentucky Rules of Civil Procedure (CR) 60.02.
On the night of August 27, 2004, the victim in this case, LaWarren O'Keith Sims, age 23, was shot outside Henry's Place, a nightclub on Washington Avenue in Cereulean, Trigg County, Kentucky. During their investigation, police officers interviewed 34 witnesses. Some of the witnesses directly identified Wadlington and co-defendant, George Kelly Mayes, as having shot Sims.
On that night, some 75 people were present inside Henry's Place, with some 100 to 200 people outside. The individuals present were drinking alcoholic beverages and dancing. At about 12:15 a.m., the victim, Sims, arrived in the company of Trevor Boyd and James Brasher. Inside Henry's Place, the crowd appeared to be divided, with individuals from Cadiz, Princeton, and Hopkinsville separated. Wadlington and Mayes arrived with Rodell Acree and Marcus Tyler.
At some point during the night, the deejay played a song that apparently upset some members of the crowd, and some of the individuals began to throw beer cans. The deejay announced that people were going to have to leave the premises.
Outside, Anthony Wilson approached Kelly Mayes and said, "If you've got a problem we can handle it right now." Mayes replied to Wilson, "You don't know me," and approached Wilson. Mayes raised his shirt, revealing a gun. Wilson replied, "Well you act like you've got a problem with me lately."
In response to seeing Mayes's gun, Wilson ran towards a yellow house on Washington Street, to ask for help. No one answered the door, so Wilson turned around and yelled, "to tell everybody from Princeton to come on and let's leave." He then heard gunshots. Mayes then walked to a parked blue Cadillac. Wilson could see Mayes "sitting on the window with his arms shooting up in the air," as the car drove away.
Wilson bumped into Sims, who told him that he was hit. Wilson explained that he told Sims that he (Sims) was not hit and told him to keep on running. Sims then raised his blue and red Titans jersey, and Wilson observed the bullet entry wound. Wilson continued to run, but Sims fell down on his knees in the street. Another witness attempted to cover up Sims.
Ashley Riley testified that she arrived at the party with her friend, Nicole McGowan. She heard "some arguing and some loud talk," so she talked to Wilson and asked him to leave with her. She saw Mayes remove a black gun with chrome on it. Wadlington was standing beside Mayes. Wilson ran away. Riley testified that she dialed 911 before the shooting took place because she "knew something was getting ready to go on." She saw both Mayes and Wadlington shoot two separate guns into the crowd, and Sims was hit. She heard two gunshots. Afterward, she saw Mayes drive off in a Cadillac, hanging out the window, firing the gun. Riley did not know which person, Mayes or Wadlington, fired the shot that killed Sims.
Jeneen Riley testified that she arrived at the party with Janetta Johnson and Lee Vaughn. After some pushing inside Henry's Place, the crowd left the building and walked outside. Jeneen observed Mayes and Wadlington standing outside near Mayes's car. She saw Mayes raise his shirt several times, revealing a gun. Jeneen watched Wadlington pull a gun, and she saw her sister duck behind a Chevrolet Avalanche. She was sure she saw both Wadlington and Mayes holding guns. Mayes was holding a gun, "I think it was silver, a big gun, like a .44, .45." Wadlington was also holding "a black nine millimeter." She observed Wilson run away, and she saw Wadlington point the gun toward the crowd and shoot. She then heard a second shot which she believed came from Mayes. She watched Mayes and Wadlington jump into a blue Cadillac and drive away, while they were hanging out a window, shooting. Wadlington was riding in the back. She tried to assist Sims but noticed that he was not breathing. Jeneen performed CPR, and Sims resumed breathing for a while. She observed Sims throw up blood.
Cadiz Police Officer Roger Knight heard a radio dispatch and spotted the blue Cadillac at the corner of Line Street and Cerulean Road. Officer Knight activated his emergency equipment. He observed that Acree was driving, Mayes was in the front passenger seat, and Wadlington was in the back. Although the car stopped briefly, Acree ultimately drove off. Officer Knight attempted to pursue the car but "never regained sight of the vehicle."
During the drive, Acree heard Mayes ask Wadlington, "Do you think that you hit him?" Wadlington replied, "I don't think I hit him." The three drove to the home of Billy Alexander. After they left, Alexander found a handgun lying across from the doorway, wrapped in a cloth. Alexander stated, "I was scared and threw it away, because I didn't know what happened." Alexander threw the gun into the lot next door.
Officers searched for the bullet which had completely traversed through Sims's body, but the search was called off because a metal detector was unable to find it in the suspected field, due to the large amount of metal already in the field.
Trigg County Sheriff Randy Clark and Detective Manar recovered two .45-caliber shell casings and one 9mm shell casing from the area in front of Henry's Place. They found another .45 shell casing near the mouth of a driveway. They found some small caliber bullets in a trailer, of a .22- or .24-caliber.
At about 3:42 a.m., on May 22, 2006, Kentucky State Police Det. Sam Stegar arrived at the Trigg County Hospital, where Sims had already died. Det. Stegar photographed the victim's body and applied a gunshot residue test to both of Sims's hands, but hospital staff advised that they had already washed Sims' hands. The test was nonetheless negative.
On May 24th, Frank Gresham, an arson and explosion investigator with the Kentucky State Police, recovered two bullets from a trailer at the scene. He also recovered a shell casing. The next morning, Kentucky State Police Det. Janet Gabbard interviewed Acree at the Cadiz Police Department. Det. Gabbard searched the blue Cadillac and recovered a .45-caliber shell casing.
Sims's body was examined by Dr. Deidre Schluckebier, a forensic pathologist and Regional Kentucky Medical Examiner. Dr. Schluckebier determined that Sims's body had two gunshot wounds, the first on the right collar bone and the second in the back. Dr. Schluckebier found that Sims died of the gunshot wound to the neck, as it had pierced both the jugular vein and the right lung. Sims's body contained no bullets, indicating that the bullets had completely left his body at the time he was shot. Sims's right lung contained .75 liters of blood, with blood elsewhere in his chest. Sims's blood contained no evidence of alcohol or drugs.
Acree was present when Mayes cleaned out some boxes from the back of his car. There was one Budweiser box which contained a bullet. They threw the box into some weeds. After several police interviews, Acree finally divulged this fact to the police. On June 15th, Det. Stegar, along with Trooper Baxter, took Acree to a wooded lot between Hayden Street and Cavanaugh Lane. There, they found a Budweiser box which contained a .45-caliber bullet, a plastic cup, an empty beer can, and a paper sack.
On June 17th, Det. Stegar made contact with Billy Alexander, and Det. Stegar and Trooper Baxter took Alexander to a wooded area next to Alexander's house, near the field where they had previously found the beer box. In this field, they found a .45-caliber gun covered by a piece of tin. The gun was wrapped in a plastic bag, surrounded by a shirt. The gun's chamber contained a live .45-caliber R and P round. Det. Stegar sent the gun to the FBI Crime Laboratory in Quantico, Virginia, for analysis, but no results were obtained.
Also on the morning of June 17th, a canine directed officers to a 9mm gun in the same wooded area. This gun was wrapped inside a black t-shirt with a face mask, under the seat of an abandoned vehicle.
Eric Smith, a physical scientist and ballistics expert with the FBI Laboratory examined the .45-caliber semi-automatic pistol and compared the breech toolmarks on the cartridge casings that were found at the scene. Smith determined, "All the .45 auto caliber cartridge cases that I received in this case were fired from the K-1 pistol," which was the .45-caliber handgun recovered in a field near Alexander's residence. Smith also determined that the 9mm casings found at the scene were not fired from the 9mm weapon that police found beneath the automobile seat.
On July 26, 2005, the Trigg County grand jury indicted both Wadlington and Mayes, charging each of them with capital murder. The grand jury also charged Mayes with being a convicted felon in possession of a handgun. Wadlington was tried before a jury, which found him guilty of the charge. On August 10, 2006, the Trigg Circuit Court entered judgment against Wadlington, sentencing him to imprisonment for a total of twenty years.
From his conviction, Wadlington appealed to the Kentucky Supreme Court, but on February 21, 2008, that court affirmed. Wadlington then filed a motion to vacate judgment under RCr 11.42, arguing that his trial counsel was ineffective. On November 18, 2009, the trial judge denied several portions of Wadlington's motion, but set an evidentiary hearing to receive evidence on the remaining issues. On July 6, 2011, the trial judge denied the motion to vacate judgment, finding that trial counsel's performance was neither defective nor prejudicial. Wadlington again appealed to this Court. This Court affirmed the denial of his RCr 11.42, and the Kentucky Supreme Court denied discretionary review.
Again returning to the Trigg Circuit Court, on May 19, 2014, Wadlington filed the present CR 60.02 motion. On September 8, 2014, the trial judge denied the motion, specifically noting that Kentucky inmates are not permitted to file successive post-conviction relief motions. Wadlington now appeals to this Court. On June 25, 2014, Wadlington also filed a petition for writ of habeas corpus in the United States District Court for the Western District of Kentucky. On November 24, 2014, the magistrate judge entered an order recommending dismissal of the petition pending exhaustion of Wadlington's CR 60.02 motion. At the present time, the United States District Court has not yet ruled upon the magistrate's recommendation.
On appeal, Wadlington makes several arguments. We will address each one in turn. However, before proceeding further, we will note that this is Wadlington's appeal from the dismissal of his second post-conviction relief motion, this time filed under CR 60.02. Kentucky Courts have repeatedly ruled that once a criminal defendant files a motion to vacate sentence under RCr 11.42, he is not entitled to another bite at the apple. Secondly, the courts have ruled under the law of the case doctrine that litigants may not raise issues which could have been decided in a previous proceeding. Williamson v. Commonwealth, 639 S.W.2d 776 (Ky. 1982). In Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983), the Court stated:
The structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete. That structure is set out in the rules related to direct appeals, in RCr 11.42, and thereafter in CR 60.02. CR 60.02 is not intended merely as an additional opportunity to raise Boykin defenses. It is for relief that is not available by direct appeal and not available under RCr 11.42. The movant must demonstrate why he is entitled to this special, extraordinary relief. Before the movant is entitled to an evidentiary hearing, he must affirmatively allege facts which, if true, justify vacating the judgment and further allege special circumstances that justify CR 60.02 relief.Id. at 856. The court further stated:
Next, we hold that a defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole, or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him. Final disposition of that motion, or waiver of the opportunity to make it, shall conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are 'issues that could reasonably have been presented' by RCr 11.42 proceedings.Id. at 857. Arguably, under Gross, Wadlington's CR 60.02 motion is repetitive and improper; however we will address his arguments in turn.
Wadlington first argues that the trial court erred by denying him an evidentiary hearing. The record indicates that the trial court did in fact conduct an evidentiary hearing to consider Wadlington's RCr 11.42 claims. Wadlington argues that he was entitled to another hearing for consideration of his CR 60.02 claims. However, as Wadlington's claims were easily refuted by the record, we agree with the trial court and the Commonwealth that Wadlington was not entitled to an evidentiary hearing on his CR 60.02 claims. See Lay v. Commonwealth, 506 S.W.2d 507 (Ky. 1974).
Wadlington next argues that his trial counsel was ineffective. As this claim was previously raised and addressed in his RCr 11.42 motion, it is not properly before this Court for consideration. During the RCr 11.42 evidentiary hearing, Wadlington's trial counsel confirmed "it was our strategy to not object to the admissibility of the 9mm gun because counsel thought it revealed a serious flaw in the Commonwealth's proof." Thus, as this issue was addressed by the trial court in the denial of the RCr 11.42 motion, we will not consider it again on appeal for the second time.
Wadlington next argues that his trial counsel and his counsel on direct appeal were both ineffective for having failed to object to the jury instructions. Clearly, the claims that his trial counsel was ineffective in this regard fail, as they were before this Court previously. However, Wadlington argues that under Hollon v. Commonwealth, 334 S.W.3d 431, 439 (Ky. 2011), he is entitled to now raise the claim that his appellate counsel was also ineffective. However, the court specifically limited the retroactive effect of its holding by stating as follows:
We hold, therefore, that Hicks-type IAAC claims may henceforth be pursued by motion in the trial court of conviction under RCr 11.42. Our ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised. Prospective application is appropriate because, although our courts have not until now provided a forum for IAAC claims based on an allegedly inadequate appellate brief, the federal courts have provided a forum through habeas review. See Boykin v. Webb, supra. Kentucky defendants have not, therefore, been denied an opportunity to vindicate their right to effective appellate counsel, and there is thus no need for our decision today to reach back and operate retroactively.Id. at 439. (Emphasis added).
Hollon thus makes it clear that it would have only prospective application and that the courts would not permit inmates to resurrect old claims. Wadlington filed his RCr 11.42 motion on April 4, 2008. But the trial judge did not enter an order denying the motion until July 6, 2011, over two months after Hollon had become final. For that matter, Wadlington had adequate opportunity to amend his RCr 11.42 motion to raise this issue. Thus, Wadlington's claims that his appellate counsel was ineffective are not properly before this Court.
Next, Wadlington argues that "the trial court failed to recognize the holding in Hollon" because "Martinez v. Ryan, 132 S.Ct. 1309 (2012)...clearly identifies that defendants are entitled to effective counsel in their [initial] post-conviction pleadings." The trial court held that Kentucky does not recognize an RCr 11.42 motion for ineffective assistance of RCr 11.42 counsel. We agree. Quoting from Hollon, the Court in Sanders v. Commonwealth, 339 S.W.3d 427, 435 (Ky. 2011), stated:
We directly addressed the issue of ineffective assistance of RCr 11.42 counsel in Hollon, wherein we stated, "[f]or further clarity, we additionally emphasize that [ineffective assistance of appellate counsel] claims are limited to counsel's performance on direct appeal; there is no counterpart for counsel's performance on RCr 11.42 motion or other request for post conviction relief."Because there is no claim for ineffective assistance of appellate counsel other than on direct appeal, we affirm the trial court's ruling in this regard.
Finally, Wadlington argues that the trial court improperly denied his request for post-conviction DNA testing on a gun found in the investigation in this case. Wadlington argues that DNA testing should have been performed on the t-shirt in which the gun was found wrapped. In support of this, Wadlington cites to Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), arguing that the results of a DNA test would have allowed him to file for a new trial. Again, we disagree.
At the evidentiary hearing, Wadlington's trial counsel testified that he did not object to the admissibility of the gun because he thought that such evidence underscored the weakness of the Commonwealth's proof. Thus, his testimony indicated that such a decision was tactical and amounted to trial strategy. As far as the DNA on the t-shirt, the record reflects that on the morning of June 17th, a canine directed officers to a 9mm gun in a wooded area close to where other evidence was found. The gun was wrapped inside a black t-shirt with a face mask and was found under the seat of an abandoned vehicle. The investigation revealed this gun was not used in the shooting at issue in this case. Thus, testing of the DNA on the t-shirt would have little to no relevance regarding whether Wadlington fired shots at Sims with a different gun.
Furthermore, assuming Wadlington is arguing that the other t-shirt should have been tested for DNA, again we agree with the Commonwealth that such DNA testing would have had little or no probative value. The gun found under the seat of the abandoned automobile was not linked to this case. However, the other gun found in the field based on Alexander's testimony that he threw the gun that Mayes and Wadlington left at his house in the field, was a .45-caliber. The witness testimony was that Wadlington was shooting a 9mm and Mayes was shooting a .45-caliber gun. Thus, testing for DNA could have revealed Mayes's DNA, Wadlington's DNA, both of their DNA, or neither of their DNA. However, the testimony by Alexander that he found the gun after the two left and threw it in the field, coupled with the discovery of the gun in the field, renders the need for DNA testing unnecessary, as the gun was in fact linked to the crime. Had Wadlington's DNA not been on the gun, it would not exonerate him or justify a new trial. The crux of the evidence against Wadlington was the testimony of numerous witnesses who saw Wadlington fire shots and heard him talking about his actions after the fact. Wadlington's claims to the contrary are without merit.
Based on the foregoing, we affirm the trial court's September 8, 2014, order denying Wadlington's CR 60.02 and RCr 10.26 motions for relief.
ALL CONCUR. BRIEF FOR APPELLANT: Devron Wadlington, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky