Opinion
NO. 2016-CA-001514-MR NO. 2016-CA-001515-MR
01-12-2018
ALLAN WIDDIFIELD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND JACQUELINE WIDDIFIELD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT Allan Widdifield: Rick Hardin Hardinsburg, Kentucky BRIEF FOR APPELLANT Jacqueline Widdifield: J. Anthony Cash Shepherdsville, Kentucky BRIEFS FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 12-CR-00040 APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 12-CR-00041 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Allan Widdifield and his wife, Jacqueline Widdifield, each appeal from separate orders of the Hancock Circuit Court denying their motions for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Finding no error, we affirm.
In May 2012, law enforcement officers executed a search warrant on Appellants' property. The search revealed methamphetamine, evidence of methamphetamine manufacturing, and numerous firearms. As a result, Appellants were indicted, and they retained attorney Bill Barber to represent them. At a pretrial suppression hearing, the investigating officers asserted Allan had walked with them around the perimeter of the property, where the officers observed evidence of methamphetamine manufacturing. Allan testified, vehemently denying he allowed officers to walk around the property. Allan presented a video recording from his home surveillance camera to establish the officers immediately detained him after arriving at the property. The Commonwealth objected to the admissibility of the video, noting it was not a continuous recording of the events because the camera was motion-activated. The court denied the motion to suppress, but allowed Appellants to present their video surveillance recording to the jury during trial. At their joint trial, Allan and Jacqueline both testified and presented a defense implying law enforcement officers had manipulated or planted the drug-related evidence found on their property. On direct examination, Allan testified at length regarding his version of events and demonstrated his theory of the case utilizing still photos captured from the surveillance video. Allan addressed each item of evidence seized, and he repeatedly disputed the veracity of the evidence, contending a methamphetamine lab was not on his property.
Jacqueline also testified and denied the drug-related evidence belonged to them.
The jury found Allan guilty of manufacturing methamphetamine (firearm enhanced), first-degree trafficking in a controlled substance (firearm enhanced), unlawful possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, and possession of drug paraphernalia (firearm enhanced). Jacqueline was convicted of the same offenses based on complicity. Allan and Jacqueline were both sentenced to twenty years' imprisonment. The Kentucky Supreme Court affirmed both convictions on direct appeal in separate unpublished opinions.
A. Widdifield v. Commonwealth, 2013-SC-000664-MR, 2014 WL 4160228 (Ky. Aug. 21, 2014) and J. Widdifield v. Commonwealth, 2013-SC-000663-MR, 2014 WL 4656840 (Ky. Sept. 18, 2014).
In May 2016, Appellants, represented by new attorneys, each filed a motion to vacate their conviction due to ineffective assistance of counsel. The trial court held an evidentiary hearing and heard testimony from Appellants and Barber. The court rendered an order denying RCr 11.42 relief, and this appeal followed.
We evaluate claims of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, a movant must show that counsel made serious errors amounting to deficient performance and that those alleged errors prejudiced the defense. Id. at 687. The standard for reviewing counsel's performance is whether the alleged conduct fell outside the range of objectively reasonable behavior under prevailing professional norms. Id. at 688. To establish actual prejudice, a movant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
We are mindful that "[a] defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997). There is a strong presumption that counsel performed competently; consequently, it is the movant's burden to establish that the alleged error was not reasonable trial strategy. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 2586, 91 L. Ed. 2d 305 (1986).
On appeal, Appellants contend Barber rendered ineffective assistance by failing to review discovery with them prior to trial, failing to retain a video surveillance expert, and failing to investigate the identity of law enforcement officers on the surveillance video.
First, Appellants argue Barber never reviewed discovery with them or prepared them for trial. Barber testified he was involved with Appellants' case for two years. He explained Appellants were not interested in negotiating a plea agreement because it would involve forfeiture of their property. According to Barber, he met with Appellants numerous times and thoroughly discussed every aspect of the evidence with them. Furthermore, Appellants' trial testimony contradicts their allegation of ineffective assistance. Allan testified exhaustively on direct examination as to each piece of evidence introduced by the Commonwealth. Depending on the piece of evidence at issue, he either vehemently denied ownership, or he attempted to provide an explanation for owning household items that could also be used to manufacture methamphetamine. We are mindful that, where an evidentiary hearing was conducted on a motion for post-conviction relief, "a reviewing court must defer to the determination of the facts and witness credibility made by the trial judge." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). In this case, the trial court found Barber's testimony to be the most credible, and the record clearly supports the court's finding. The Appellants failed to establish Barber rendered ineffective assistance on this issue.
Appellants next assert Barber failed to retain an expert witness to explain the functionality and accuracy of the video surveillance system. They contend Allan was not capable of explaining to the jury how the system worked, and they speculate an expert witness could have explained the evidence more thoroughly than Allan. At the evidentiary hearing, Allan testified that he was "pretty ignorant" as to how the camera recording worked. In contrast, Barber testified he did not consider retaining an expert because Allan understood how the camera worked and testified about it at trial. Further, the record shows Allan clearly testified at trial that the camera only recorded when it sensed motion, and he explained he downloaded the digital video from the camera and transferred the video to a DVD for the purpose of trial. Appellants' argument that an expert, rather than Allan, should have presented the evidence is speculative and without merit. "RCr 11.42 exists to provide the movant with an opportunity to air known grievances, not an opportunity to conduct a fishing expedition for possible grievances, and post-conviction discovery is not authorized under the rule." Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005) overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). There was no ineffective assistance of counsel on this issue.
Appellants also contend counsel was ineffective for failing to investigate their theory the surveillance video showed two unknown police officers allegedly carrying a bag of methamphetamine into the residence during the search. In their post-conviction motions, Appellants failed to identify the officers, and, aside from their own self-serving testimony, they did not present any evidence supporting this allegation at the hearing. In his testimony, Barber did recall that Allan, at one point, believed an unknown officer was visible on the video. Barber asserted he considered the matter, but he was unable to determine the identity of the unknown person Allan thought was on the video. It is well-settled trial counsel "has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary under all the circumstances[.]" Haight, 41 S.W.3d at 446, overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Under the circumstances presented here, Barber's decision was reasonable and did not constitute ineffective assistance.
Finally, Appellants allege Barber failed to present their defense theory and "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing[.]" United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657 (1984).
Our review of the record refutes Appellants' claims. Barber clearly presented to the jury Appellants' theory they were framed, and he effectively cross-examined the Commonwealth's witnesses. Further, Barber conducted an extremely thorough direct examination of Allan, whose testimony conveyed his belief the police had planted incriminating evidence at his residence. Although Appellants are now dissatisfied with Barber's performance, the record clearly reflects Barber rendered effective assistance at trial. The trial court properly denied Appellants' RCr 11.42 motions.
For the reasons stated herein, the orders of the Hancock Circuit Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT
Allan Widdifield: Rick Hardin
Hardinsburg, Kentucky BRIEF FOR APPELLANT
Jacqueline Widdifield: J. Anthony Cash
Shepherdsville, Kentucky BRIEFS FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky