LARRY EDWARD WILLIAMSON v. HONORABLE WILLIAM M. HALL, PRESIDING COMMONWEALTH OF KENTUCKY
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RENDERED: March 26, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002207-MR
LARRY EDWARD WILLIAMSON
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE WILLIAM M. HALL, PRESIDING
ACTION NO. 92-CR-80
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: GUIDUGLI, JOHNSON, and SCHRODER, Judges.
GUIDUGLI,
JUDGE:
Larry
Edward
Williamson
(Williamson)
was
convicted of murder following a jury trial and sentenced to 30
years imprisonment.
direct appeal.
The Supreme Court affirmed the conviction on
Williamson now appeals from a July 2, 1997, order
of the Marion Circuit Court denying his RCr 11.42 motion to vacate
judgment.
In his RCr 11.42 motion and on appeal to this Court,
Williamson argues that a new trial should be granted due to the
relationship
between
a
juror
and
the
victim,
Johnny
Stiles
(Stiles), and because he received ineffective assistance of
counsel.
After reviewing the complete record, including the RCr
11.42 motion and the evidentiary hearing, as well as the briefs, we
affirm the order of the Marion Circuit Court.
On the evening of August 27, 1998, Stiles was shot and
killed by a single gunshot wound to the abdomen.
He was found
outside of the front door of the Fifth Wheel Tavern in Raywick,
Kentucky.
A
grand
jury
indicted
Williamson
on
Murder
and
Persistent Felony Offender I (PFO I)1 charges on September 21,
1992, and an arrest warrant was issued.
Police later arrested
Williamson and he was arraigned before the Marion Circuit Court on
June 7, 1993, where he entered a plea of not guilty.
A jury trial was held on August 24 and August 25, 1994.
It was undisputed that both Williamson and Stiles were present in
the Fifth Wheel Lounge on the night in question.
The Commonwealth
presented testimony and argued in closing that Williamson exited
the bar during a rainstorm (presumably to retrieve a gun from his
car), ambushed Stiles as he exited the bar, and shot him in
retaliation for the break-up of a former relationship.
Williamson
testified that he encountered Stiles as he (Williamson) exited the
bar.
According to Williamson, Stiles had a gun and accused him of
stealing cocaine from his car.
1
As the two men struggled, the gun
The PFO I charge was later dismissed.
2
went off, wounding Stiles.
The weapon was never found.
Further
facts will be set forth and discussed as warranted.
The jury convicted Williamson of murder, and he was later
sentenced to thirty (30) years in prison.
On direct appeal to the
Supreme Court, Williamson argued, among other issues, that the
trial court erred when it refused to grant a new trial because the
prosecution
did
not
turn
over
evidence
of
the
prior
felony
conviction of Jimmy Thomas (Thomas), a prosecution witness. In its
opinion affirming the lower court, the Supreme Court found Thomas’s
testimony to be cumulative and that there was no indication that if
the evidence had been known, it would have created a reasonable
doubt.
Williamson filed a pro se RCr 11.42 motion to vacate on
April 25, 1995, as well as a motion for a full evidentiary hearing.
Williamson then retained counsel, who filed a supplemental
motion to vacate on January 23, 1997.
Williamson moved to vacate
on two grounds: 1) that subsequent to trial, he learned that one of
the jurors was related by marriage to a member of the victim’s
family
and
2)
that
his
trial
counsel
rendered
ineffective
assistance of counsel. Following an evidentiary hearing, the trial
court entered an order denying the RCr 11.42 motion on July 2,
1997.
It is from this order of the trial court that Williamson now
appeals.
3
Williamson first argues that the judgment should have
been vacated because a juror who decided the case, Tammy Nugent
Mattingly, was married to a second cousin of the victim’s brotherin-law.
regarding
During voir dire, Mattingly did not respond to questions
knowing
the
victim.
At
the
evidentiary
hearing,
Williamson testified that he learned of this relationship for the
first time shortly after his August 1994 trial while awaiting
sentencing. The argument was not raised until the supplemental RCr
11.42 motion was filed in 1997. The Commonwealth argued that there
was no proof that the juror’s husband was related to Stiles’
brother-in-law, that the relationship, if one existed, was too
remote, and that the issue could and should have been raised on
direct appeal.
We agree with the Commonwealth that this issue
could and should have been raised earlier in the proceedings.
Williamson testified at the evidentiary hearing that he knew of the
existence of the relationship prior to his sentencing in 1994, and
therefore prior to the time the motion for new trial was filed.
Williamson also did not use the relationship as a basis for his pro
se RCr 11.42 motion filed in 1995.
The issue was not raised until
the supplemental RCr 11.42 motion was filed in 1997.
Even if the
issue had been timely raised, the relationship between Tammy
Mattingly and the victim was too tenuous to necessitate a new
trial.
Williamson
next
argues
that
the
judgment
should
be
vacated because he received ineffective assistance from his trial
4
counsel, Douglas Moore (Moore).
He raised eight separate issues,
each of which will be addressed.
At the outset, we will note that in order to establish an
ineffective
assistance
of
counsel
claim,
an
appellant
must
establish 1) that counsel’s performance was deficient and 2) that
the deficient performance prejudiced the defense.
Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); accord, Gall v. Commonwealth, Ky., 702
S.W.2d 337 (1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92
L. Ed. 2d 724 (1986).
attorney
performance
Pursuant to Strickland, the standard for
is
reasonably
effective
assistance.
An
appellant must show that his counsel’s representation fell below an
objective standard of reasonableness, or under the prevailing
professional norms.
The appellant bears the burden of proof, and
must overcome a strong presumption that counsel’s performance was
adequate.
Jordan v. Commonwealth, Ky., 445 S.W.2d 878 (1969);
McKinney v. Commonwealth, Ky., 445 S.W.2d 874 (1969).
When the
trial court has granted an evidentiary hearing, the issue is
whether the court below acted erroneously in finding that the
appellant received effective assistance of counsel.
Commonwealth,
Ky.App.,
655
S.W.2d
506
(1983);
Ivey v.
Lynch
v.
Commonwealth, Ky.App., 610 S.W.2d 902 (1980).
First, Williamson argued that he received ineffective
5
assistance when his trial counsel objected to the introduction of
the
post
mortem
examination
report
despite
the
fact
that
it
contained information which corroborated his version of the events
and was inconsistent with the Commonwealth’s theory.
At the
evidentiary hearing, Moore agreed that the report detailing
abrasions and contusions to Stiles’ chest and head corroborated
Williamson’s testimony regarding a struggle, and that he had no
idea why he objected to the introduction of the entire report.
The
trial
the
transcript
reflects
that
when
Moore
objected
to
introduction of the report, he stated that “there’s all kinds of
things in the first six [pages]” and that it may have included
irrelevant material.
Additionally, the Court notes that the final
page of the report, which was entered into the record, contained a
diagnosis of abrasions, forehead.
There is a presumption that,
under the circumstances, the challenged actions of counsel might be
considered sound trial strategy.
Strickland, 104 S.Ct. at 2066.
We do not find counsel’s actions to be deficient in this area.
Second, Williamson argued that he received ineffective
assistance because his counsel failed to discover that a key
Commonwealth witness had a felony conviction.
Williamson raised
this issue on direct appeal and the Supreme Court found no error.
Because this issue was raised and addressed on direct appeal,
William cannot present it as grounds for a collateral attack under
the guise of an 11.42 motion.
Stanford v. Commonwealth, Ky., 854
S.W.2d 742, 747 (1993).
6
Third, Williamson argued that he received ineffective
assistance when his counsel failed to capitalize on significant
inconsistencies in the testimony of the Commonwealth’s witnesses.
Jimmy Thomas (Thomas), the bartender and owner, testified that
Stiles followed Williamson out of the bar and that a gunshot
sounded prior to the door closing.
Tommy Leake (Leake) testified
that Williamson held the door while Stiles exited and that after
approximately (10) seconds had elapsed, a gunshot sounded.
Linda
Blackwell (Blackwell)testified that she heard a popping sound she
could not identify as a gunshot sometime after the door shut.
At
the evidentiary hearing, Moore testified that he recalled raising
the discrepancies in the three descriptions.
The record also
reflects that in his closing argument Moore discussed the three
descriptions, pointed out the differences in the time of the gun
shot in each of the witness’s testimony, and informed the jury
each of the witnesses was a good friend of Stiles.
Therefore,
counsel’s performance was not deficient.
Fourth, Williamson argued that he received ineffective
assistance
when
his
counsel
failed
to
take
advantage
of
corroborative testimony of Red Taylor (Taylor), the only witness
who corroborated Williamson’s version of the events.
At the
evidentiary hearing, Moore stated that he found Taylor’s testimony
7
to be contrived and wholly unbelievable.
The transcript reflects
that Moore did in fact use Taylor’s testimony in his closing
argument, emphasizing that he was the only witness outside of the
bar to testify and give a possible explanation as to why Williamson
left the scene.
Fifth, Williamson argued that he received ineffective
assistance when his counsel failed to investigate, locate, and
subpoena witnesses for the defense despite being provided with
names of potential witnesses.
According to Williamson, these
witnesses would have established that Stiles was a known drug
dealer who was known to carry a gun.
At the evidentiary hearing,
Moore testified that he asked his investigator to do everything
Williamson asked, but told Williamson it was not wise to subpoena
witnesses incarcerated in a penitentiary.
There is a presumption
that, under the circumstances, the challenged actions of counsel
might be considered sound trial strategy. Strickland, 104 S.Ct. at
2066.
Sixth, Williamson argued that he received ineffective
assistance when his counsel failed to ask the police witnesses why
no gun powder residue tests were conducted on the victim.
A
positive result on Stiles would have further corroborated
Williamson’s
version
of
events.
On
the
other
hand,
the
Commonwealth argued that a negative result on Stiles would have
discredited Williamson’s version.
We agree with the Commonwealth
that this is another example of trial strategy.
8
Strickland, 104
S.Ct. at 2066.
Seventh, Williamson argued that he received ineffective
assistance when his counsel failed to challenge the use of new
photographs of the bar.
hearing
and
at
trial
Williamson testified at the evidentiary
that
the
Fifth
Wheel
Tavern
had
been
extensively renovated since 1992, and that the photographs taken in
1994
which
misleading.
were
identified
and
entered
into
the
record
were
Moore testified at the evidentiary hearing that based
upon his own and his investigator’s visits to the bar, any changes
were cosmetic only.
alter
the
Because the renovation did not structurally
building,
he
testified
that
any
objection
to
the
introduction of the photographs would have been nitpicking. He did
admit that he did not look at the original blueprints.
Moore
reasonably
based
his
decision
not
to
However,
challenge
the
photographs on his first-hand viewing of the bar and on his
discussion
with
his
investigator.
Therefore,
Moore
rendered
effective assistance in this regard.
Finally, Williamson argued that he received ineffective
assistance when his counsel failed to spend adequate time with him
in preparation prior to the trial.
At the evidentiary hearing,
Moore admitted that although he did not return every message
Williamson left, he spoke with him many times on the telephone and
met with him face-to-face on several occasions ranging from an hour
to an entire day.
He testified that he had plenty of time with
Williamson prior to trial to prepare a defense.
9
Moore also
testified that he spoke to Williamson during recesses at the trial.
Williamson has not established that Moore’s conduct regarding trial
preparation was unreasonable.
For the foregoing reasons, the order of the Marion
Circuit Court denying Williamson’s RCr 11.42 motion to vacate is
AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bart Adams
Louisville, KY
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Franfort, KY
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