Opinion
NO. 2008-CA-001967-MR
02-12-2010
W.M. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Daniel M. Dickert Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 03-CR-00003 OPINION
REVERSING
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BEFORE: DIXON, MOORE, AND STUMBO, JUDGES. STUMBO, JUDGE: W.M. appeals an order of the Lewis County Circuit Court denying his motion to vacate a judgment sentencing him to six years imprisonment. W.M. argues that his counsel was ineffective which entitles him to a new trial. W.M. presents four claims of ineffective assistance of counsel. We agree with his first argument and reverse for new proceedings.
W.M. was employed as a youth minister at the Clarksburg Christian Church in Lewis County, Kentucky, from late 2002 to early 2003. During this time, he became acquainted with the family of M.G. (hereinafter Mother) and her two sons, A.D. (hereinafter Child 1) and D.H. (hereinafter Victim). Mother and her two sons moved into W.M.'s residence. The record is not clear as to whether W.M. left the residence or remained there until his arrest.
This case involves the sexual abuse of a minor. Because of the sensitive nature, we will refer to the victim and his family using initials and generic descriptors.
In early January of 2003, W.M. travelled to North Carolina to visit his sister. Victim and Child 1 went along. It is alleged by the Commonwealth that during this trip to North Carolina, W.M. and Victim were involved in some sort of sexual activity.
On the group's return to Lewis County, they stopped overnight in London, Kentucky. More allegations of sexual activity arose from this overnight stay. The next day, the group returned to Lewis County. On this day, Mother took Victim to the hospital to have a cut on his finger examined. During the time at the hospital, Mother made it known that she believed Victim had been sexually assaulted by W.M.
Dr. Gary Sanders examined Victim and gave him a rectal exam. Testimony at trial revealed that the rectal exam was negative and that Victim had no injuries. Subsequent to this allegation, Deputy Dewayne Slone of the Lewis County Sherriff's Office began to conduct an investigation of W.M. During this investigation, Deputy Slone went to Mother and requested any of the victim's clothing she may have from the North Carolina trip. A pair of Victim's gym shorts obtained from Mother contained a small amount of W.M.'s seminal fluid.
During this period of time, Victim told his mother about two instances of mutual oral sex that had occurred between him and W.M. at W.M.'s residence. It was these two instances that lead to the current charges of third-degree sodomy. A jury found W.M. guilty on both counts and he was sentenced to three years imprisonment for each count to run consecutively, for a total of six years.
W.M. pursued a direct appeal and his conviction was affirmed. He then sought to vacate his conviction under RCr 11.42 alleging ineffective assistance of counsel. After a hearing, his RCr 11.42 motion was overruled. This appeal followed.
W.M.'s first argument is that he received ineffective assistance of counsel when his counsel opened the door to allow the Commonwealth to introduce prior bad acts evidence under KRE 404(b). We are persuaded by W.M.'s argument on this issue, and accordingly grant a new trial.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. (Internal citation omitted).Id. at 691-692. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. "The defendant 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.
KRE 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
On March 4, 2005, a pretrial conference was held pursuant to a KRE 404(b)(2) motion by the Commonwealth which sought to introduce evidence of the alleged bad acts that occurred in North Carolina and London, Kentucky, including the evidence of the semen on the gym shorts. The trial court held that uncharged allegations were not inextricably intertwined with the Lewis County allegations. The Commonwealth's motion was denied and any evidence relating to the North Carolina and London, Kentucky, acts was deemed inadmissible.
At trial, the Commonwealth presented evidence of inappropriate behavior between Victim and W.M. including evidence that they engaged in open mouth kissing, had sleepovers, and that Victim sat on W.M.'s lap. Then, during defense counsel's direct examination of W.M., the following exchange occurred:
Defense Counsel: You were here when other things were said and different allegations were made by [Victim]. You heard what he said in the courtroom, did those things occur in Lewis County, anything like that happen at all?
W.M.: No.
The Commonwealth argued that defense counsel's question opened the door to the introduction of W.M.'s prior bad acts. The trial court reversed its prior order and allowed the evidence to be introduced. The trial court held that W.M.'s statement left the jury with the impression that no sexual contact had occurred between Victim and himself at any time or any place. The Commonwealth was then able to introduce the semen and DNA evidence as well as call more witnesses. This additional evidence extended the trial by two days.
We find that defense counsel's opening of the door constituted ineffective assistance. As defense counsel testified during the RCr 11.42 hearing, both he and the prosecution were warned multiple times to stay away from the inadmissible KRE 404(b) evidence. He was aware that if he crossed the line of discussing the prior bad acts that the court might allow the evidence in. By asking W.M. whether prior bad acts had occurred, defense counsel unintentionally invited the Commonwealth to continue this line of questioning. This was a serious error on the part of defense counsel and can in no way be considered sound trial strategy.
Further, the introduction of this evidence was highly prejudicial. Commonwealth v. Buford, 197 S.W.3d 66, 70 (Ky. 2006). As stated above, once this evidence was admitted, the Commonwealth put on two more days of evidence. In fact, the only physical evidence the Commonwealth had was the semen on the gym shorts from North Carolina. The Commonwealth was also able to ask W.M., Mother, and Victim about any sexual contact in North Carolina, was able to introduce evidence of the rectal examination by Dr. Sanders, and was able to introduce DNA analysis from the semen on the gym shorts.
We find that causing this evidence to be introduced was an egregious error on the part of defense counsel. We must also conclude that but for the error, there is a reasonably likelihood that the outcome of the trial would have been different. Strickland, supra.
Because the remaining arguments may be addressed during the new proceedings, we need not consider them.
Accordingly we reverse the denial of W.M.'s RCr 11.42 motion and find he deserves a new trial.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
MOORE, JUDGE, DISSENTS, AND FILES A SEPARATE OPINION.
MOORE, JUDGE, DISSENTING: Respectfully, I must dissent. To prove that he received the ineffective assistance of counsel, thus warranting a reversal of his conviction, W.M. must show that: (1) counsel's performance was deficient, in that it fell outside "the wide range of reasonable professional assistance," and (2) this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Further,
a court's review of counsel's performance must be highly deferential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Hence, the defendant must overcome the presumption that counsel provided a reasonable trial strategy.Brown v. Commonwealth, 253 S.W.3d 490, 498-99 (Ky. 2008) (internal quotation marks and citations omitted).
W.M.'s trial counsel testified during the RCr 11.42 evidentiary hearing that evidence had been produced at trial that W.M. had been observed open mouth kissing the boy and that the boy had been seen sitting on W.M.'s lap. Trial counsel attested that his reason for asking the question at issue was to refer to that evidence, give W.M. an opportunity to deny it, and limit the evidence to the events that occurred in Lewis County. Counsel did not want to mention each occurrence individually because he did not want the jury to hear that evidence again; therefore, counsel decided to refer to those events collectively while giving W.M. a chance to refute the allegations. In my opinion, this constitutes a reasonable trial strategy, and I would conclude that it does not amount to the ineffective assistance of counsel. Accordingly, I would not reverse for a new trial on this issue. BRIEFS FOR APPELLANT: Daniel M. Dickert
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky