Opinion
NO. 2016-CA-000434-MR
06-02-2017
SIDNEY L. WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kieran J. Comer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HON. THOMAS L. CLARK, JUDGE
INDICTMENT NO. 11-CR-00618 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JOHNSON, JONES, AND THOMPSON, JUDGES. JOHNSON, JUDGE: Sidney L. Williams appeals from the Fayette Circuit Court's order denying his motion to vacate sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, entered March 17, 2016. We affirm the circuit court.
The events of this case stem from the shooting death of Victor Lamont Martin in Lexington, Kentucky on August 14, 2010. Martin's body, which had been doused with gasoline and set on fire, was found at a remote location on Russell Cave Road, on the morning of August 15, 2010. Police interviewed Williams about the death, because he was acquainted with Martin, but Williams denied any knowledge relating to this matter. There was no progress on the case until March 2011, when police received a tip that Williams's paramour, RanNetta Blevins, had talked to her coworkers about the killing. After interviewing Blevins, police obtained search warrants for Williams's home and truck. Blood matching the victim's blood was found in the kitchen, and Williams was thereafter indicted for murder.
At trial, Williams and the Commonwealth advanced two different narratives for what happened on the night of Martin's death. Williams testified he had arrived home and found Martin on top of Blevins, who was shouting "Get off me!" According to Williams, he then proceeded to throw Martin toward the laundry room, at which time Martin drew a handgun and tried to rob him. After an altercation between the two men, Williams managed to gain control of the gun and shot Martin. The Commonwealth's version of this encounter is quite different, and derived from its interviews with Blevins. In this account, Williams lured Martin to the home and then confronted him about a burglary that had taken place there, and for which Williams believed Martin was responsible. The argument took place in Williams's kitchen. Blevins, who was watching television in a different room, then heard a gunshot. Both versions of the story converge at this point, stating Williams and Blevins then transported the body from the house and burned it.
Williams was found guilty of first-degree manslaughter, tampering with physical evidence, abuse of a corpse, and being a second-degree persistent felony offender ("PFO). The circuit court entered final judgment on February 27, 2013, sentencing Williams to twenty-five years' imprisonment for manslaughter, enhanced to thirty-five years by the PFO; five years' imprisonment for tampering with physical evidence, enhanced to ten years by the PFO; and twelve months' incarceration for abuse of a corpse. The court further ordered all terms to run concurrently, for a total of thirty-five years' imprisonment. The Kentucky Supreme Court upheld Williams's conviction on direct appeal in an unpublished memorandum opinion. Williams subsequently filed a pro se motion to vacate sentence under RCr 11.42, which was then supplemented in a separate motion by the Department of Public Advocacy. The circuit court denied the motions on March 17, 2016. This appeal follows.
Kentucky Revised Statutes (KRS) 507.030, a Class B felony.
KRS 524.100, a Class D felony.
KRS 525.120, charged here as a Class A misdemeanor.
Williams v. Commonwealth, No. 2013-SC-000264-MR, 2014 WL 5410263 (Ky. 2014).
Williams presents three issues on appeal from the denial of his RCr 11.42 motion. For his first issue, Williams argues his trial counsel rendered ineffective assistance by failing to object to improper jury instructions. Second, Williams contends trial counsel was ineffective in its failure to investigate and present witnesses to rebut the Commonwealth. Third, Williams argues the circuit court erroneously denied his RCr 11.42 motion without holding an evidentiary hearing on his claims.
A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). The "performance" prong of Strickland requires as follows:
Appellant must show that counsel's performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment, or that counsel's representation fell below an objective standard of reasonableness.Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064) (internal citations and quotation marks omitted). The "prejudice" prong requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial[.]" Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). "The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009) (citation omitted). "A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." Commonwealth v. York, 215 S.W.3d 44, 48 (Ky. 2007) (quoting Haight, 41 S.W.3d at 442).
Both Strickland prongs must be met before relief may be granted pursuant to RCr 11.42. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This is a very difficult standard to meet. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). Review of counsel's performance under Strickland is de novo. McGorman, 489 S.W.3d at 736 (citing Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007)).
For his first issue, Williams contends his trial counsel rendered ineffective assistance by failing to object to the circuit court's improper jury instructions. The jury found Williams guilty of first-degree manslaughter under Instruction Number Four:
If you do not find the Defendant guilty of Murder under Instruction No. 3, you will find Defendant Sidney Williams guilty of First-Degree Manslaughter under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(A) That in Fayette County on or about August 14, 2010, and before the finding of the Indictment herein, the Defendant killed Victor Lamont Martin by shooting him with a gun;Williams asserts the instruction is improper, because it omits "the privilege to act in self-protection as an element of the offense." Commonwealth v. Hager, 41 S.W.3d 828, 837 (Ky. 2001). The circuit court included a standalone instruction on self-protection, but this instruction is placed after the instructions asking the jury to determine guilt or innocence on each charge. In Hager, the Kentucky Supreme Court found this practice to be erroneous, because it "require[s] the jury to find the defendant guilty, thus not to have acted in self-protection, before permitting it to first consider the nature of self-protection as a defense." Id. at 833.
AND
(B) That in so doing,
(1) He intended to cause the death of Victor Lamont Martin while acting under extreme emotional disturbance, as that term is defined under Instruction No. 2;
OR
(2) He did not intend to kill Victor Lamont Martin, but intended to cause serious physical injury to Victor Lamont Martin.
If you find the Defendant guilty under this instruction, you will not fix the punishment but shall indicate in your verdict under Instruction No. 10 only that you have found him guilty of this offense and return the verdict to the Court without deliberating on the question of punishment.
The most recent guidance on this issue from the Kentucky Supreme Court may be found in Gribbins v. Commonwealth, 483 S.W.3d 370 (Ky. 2016). In Gribbins, the Court held a standalone instruction on self-protection did not run afoul of Hager, because the self-protection instruction was placed before the instructions on the substantive homicide offenses. Id. at 375. The Court considered this an important distinction from Hager, because the placement of the instruction "permitted the jury to fully consider theories of self-protection and imperfect self-protection in determining whether he was guilty and the appropriate degree of homicide." Id.
Here, the standalone self-protection instruction submitted to the jury repeats the Hager error, and Williams argues his trial counsel was ineffective for failing to object to its inclusion. In its denial of the RCr 11.42 motion, the circuit court did not find error in the given instructions. Furthermore, the circuit court also did not find ineffective performance by counsel, noting that the defense did object to the instructions for the record, following a discussion off the record between the judge, defense counsel, and the Commonwealth. Finally, the circuit court found no prejudice to Williams, because "[a]n objection by Counsel would not have changed the outcome of this case based on the proof presented by the Commonwealth."
Although we disagree with the circuit court's analysis of its own instructions, based upon Hager and Gribbins, we concur with the court's assertions regarding the performance of defense counsel. The record reflects defense counsel not only made a general objection to the instructions following the private conference with the court and the Commonwealth, but had also proffered its own instructions which did not contain the Hager error. The instructions submitted by the defense contain a standalone "Instruction No. 3A" on self-protection which precedes the substantive homicide instructions - the same practice which the Kentucky Supreme Court later found acceptable in Gribbins. However, the circuit court declined to use these defense instructions. Thus, the issue is one of trial court error, not that of counsel, and so should have been brought on direct appeal. When an issue arises which should have been brought on direct appeal, yet is pursued through an RCr 11.42 motion, we will not reach the issue. Hatcher v. Commonwealth, 310 S.W.3d 691, 697 (Ky. App. 2010).
For his second issue, Williams contends his trial counsel was ineffective for failing to call witnesses to rebut the Commonwealth's case. In his motion before the circuit court, Williams asserted there were witnesses who could have countered the alleged motive in the Commonwealth's narrative; i.e., the burglary as the precipitating event for the homicide. According to Williams,
Movant's Counsel made no attempt to rebut and refute this claim by subpoenaing the Movant's cousin, parents or anyone who had knowledge of this incident or who
could testify to its authenticity . . . . Had Counsel subpoenaed the Movant's younger cousin, his parents or the other family members to testify it would have been established and proven who committed the burglary in question.
The circuit court did not find Williams's argument persuasive, and held there to be "no substantive evidence offered by the Movant stating what the actual testimony would be in the case." We agree with the circuit court. RCr 11.42(2) requires motions under the rule to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." Furthermore, "[c]onclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so warrant a summary dismissal of the motion." Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (citation and internal quotation marks omitted). Finally, the failure to specify what evidence unsubpoenaed witnesses would provide is fatal to the claim that counsel was ineffective for failing to subpoena them. Id. (citing Williams v. Commonwealth, 336 S.W.3d 42, 50 (Ky. 2011)). Williams's allegations are conclusory and fail to specifically state what evidence would have been presented by the unnamed family members. We therefore decline to find ineffective assistance of trial counsel on these grounds.
For his third and final issue, Williams contends the circuit court erroneously denied an evidentiary hearing regarding his RCr 11.42 claims. An evidentiary hearing is only required "if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record." Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001) (citations omitted). Because his issues may be conclusively resolved by an examination of the record, we agree with the circuit court that an evidentiary hearing was not required.
For the foregoing reasons, we affirm the Fayette Circuit Court's order denying relief, entered March 17, 2016.
ALL CONCUR BRIEFS FOR APPELLANT: Kieran J. Comer
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky