MARLO BROWN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002551-MR
MARLO BROWN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 97-CR-001105
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, McANULTY, SCHRODER, JUDGES.
BARBER, JUDGE:
Marlo Brown (“Brown”) appeals from an order of
the Jefferson Circuit Court denying his motion for postconviction relief pursuant to RCr1 11.42.
Brown alleges that he
received ineffective assistance at trial because trial counsel
failed to call two witnesses, an eyewitness, who would have
testified that the appellant did not commit the February 17, 1997
robbery, and an expert witness, who would have discredited
testimony adverse to Brown’s defense.
1
Because Brown’s claim that
Kentucky Rules of Criminal Procedure.
he received ineffective assistance of counsel is not refuted by
the record, we vacate and remand.
On May 7, 1997, the Jefferson County Grand Jury
indicted Brown for first-degree robbery (KRS2 515.020);
possession of a firearm by a convicted felon (KRS 527.040);
third-degree assault (KRS 508.025); second-degree wanton
endangerment (KRS 508.070); possession of a defaced firearm (KRS
527.050); third-degree criminal mischief (512.050); attempt to
elude police officer (KRS 189.393); and first-degree persistent
felony offender (KRS 532.080).
The charges stemmed from two
separate incidents which occurred in February 1997.
First, the
indictment alleged that on February 17, 1997, Brown robbed the BLine Food Mart in Louisville and that in the course of the
robbery he threatened an employee of the store with a deadly
weapon.
Second, the indictment alleged that on February 18,
1997, while his child was in the vehicle and in possession of a
defaced firearm, Brown attempted to elude a police officer at a
high rate of speed and, after stopping the vehicle, assaulted the
police officer and damaged the officer’s uniform.
Following a jury trial, Brown was found guilty of
first-degree robbery, first-degree persistent felony offender,
second-degree wanton endangerment, resisting arrest, and
possession of a defaced firearm.
The jury recommended a sentence
of ten years imprisonment enhanced to twenty-five years under the
persistent felony offender statute and a fine of $500.00.
2
Kentucky Revised statutes.
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On
September 8, 1998, the trial court entered final judgment in
accordance with the jury verdict and recommendation.
On January 20, 2000, the Supreme Court rendered an
unpublished opinion affirming the first-degree robbery and the
persistent felony offender convictions.
The Supreme Court
reversed and remanded the second-degree wanton endangerment,
resisting arrest, and possession of a defaced firearm
convictions.
Following remand, the three misdemeanor charges
were dismissed upon motion of the Commonwealth.
On August 10, 2000, Brown filed a motion to vacate the
first-degree robbery and persistent felony offender convictions
pursuant to RCr 11.42.
On September 13, 2000, the trial court
entered an order denying Brown’s motion.
This appeal followed.
Brown contends that he received ineffective assistance
when trial counsel failed to call Robert Macklin as a witness. In
order to establish ineffective assistance of counsel, the movant
must satisfy a two-part test showing (1) that counsel's
performance was deficient and (2) that the deficiency resulted in
actual prejudice affecting the outcome.
Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985), cert. denied,
478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
Unless the
movant makes both showings, he cannot prevail in his attack.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
The burden of
proof is upon the movant to show that he was not adequately
represented by trial counsel.
S.W.2d 878, 879 (1969).
Jordan v. Commonwealth, Ky., 445
A reviewing court, in determining
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whether counsel was ineffective, must be highly deferential in
scrutinizing counsel's performance and avoid the tendency and
temptation to second guess.
S.W.2d 311 (1998).
Harper v. Commonwealth, Ky., 978
We must look to the particular facts of the
case and determine whether the acts or omissions were outside the
wide range of professionally competent assistance.
Id.
In
ascertaining whether the appellant is entitled to an evidentiary
hearing, "[o]ur review is confined to whether the motion on its
face states grounds that are not conclusively refuted by the
record and which, if true, would invalidate the conviction."
Osborne v. Commonwealth, Ky. App., 992 S.W.2d 860, 864 (1998)
(quoting Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967)).
Macklin was a customer in the B-Line Food Mart at the
time of the February 17 robbery and was an eye-witness to the
crime.
The case was originally set for trial for January 21,
1998 but was continued because of a death in defense counsel’s
family.
Macklin had been subpoenaed by the Commonwealth as a
prosecution witness and was present in the courtroom on January
21, 1998.
While Macklin and several other witnesses were
gathered in the courtroom, one of the witnesses pointed Brown out
to Macklin and Macklin stated, “that’s not the cat who held me
down.”
It appears that Macklin told the prosecutors that Brown
was not the perpetrator of the robbery, and the prosecutors
decided not to call Macklin as a witness at the rescheduled
trial.
It further appears that the prosecutors did not tell
Brown about Macklin’s statement; however, Brown learned of the
statement from another source.
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Macklin did not appear as a witness on the rescheduled
trial date, and the jury did not hear testimony regarding
Macklin’s exculpatory statement.
After the Commonwealth had
presented its case-in-chief, Brown requested a continuance to
secure the presence of Macklin; however, the trial court denied
the motion.
Brown attempted to elicit Macklin’s exculpatory
statement through the testimony of a witness to the statement;
however, the trial court excluded the statement as hearsay.
In
his direct appeal, among other things, Brown sought a reversal of
his conviction on the grounds that the trial court had failed to
grant a continuance and that the trial court had improperly
excluded testimony regarding Macklin’s statement.
The Supreme
Court, however, rejected these arguments, although it did
characterize trial counsel’s delay in handing a subpoena to
Macklin as an “inexplicable delay.”
An evidentiary hearing is required, if the movant’s
allegation of ineffective assistance of counsel is not clearly
refuted by the record. See Osborne v. Commonwealth, supra.
On
direct appeal, the Supreme Court, having examined the record,
concluded that trial counsel’s failure to secure the presence of
Macklin at the trial as based upon an “inexplicable delay.”
accordance with the Supreme Court’s views, we conclude that
In
Macklin’s allegation of ineffective assistance with regard to
trial counsel’s failure to secure Macklin as a witness is not
clearly refuted by the record.
An evidentiary hearing is
therefore required regarding this issue.
-5-
Brown also contends that he received ineffective
assistance because trial counsel failed to seek funding for an
expert witness.
Brown claims that trial counsel should have
retained an expert to discredit the testimony of the
Commonwealth’s witnesses concerning the events of February 18,
1997.
Brown was shot during the confrontation with the police
officer, and the Commonwealth introduced testimony that the
shooting occurred at close range.
Brown alleges that an expert
witness could have been retained who would have testified that
the shooting was not from close range, thereby discrediting the
testimony of the Commonwealth’s witnesses.
The record discloses that trial counsel filed a motion
for an ex parte hearing requesting authorization for funds to
retain the service of an expert witness, and the trial court
entered an order setting a hearing for October 16, 1997.
A hand
written notation on the order states that the hearing was
conducted; however, the transcript of the hearing is not included
in the record, and there is no written order ruling on the
motion.
Because the record lacks a transcript of the hearing or
a written order ruling on the motion, we are unable to ascertain
from the record how the trial court ruled on the motion to secure
funds for an expert witness.
If the trial court granted the
motion and trial counsel failed to retain an expert, then clearly
trial counsel provided deficient performance.
Because this point
is not clear from the record, an evidentiary hearing is required.
Osborne, supra.
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We have considered the Commonwealth’s argument that
Brown was not prejudiced by trial counsel’s failure to obtain an
expert because the only apparent purpose of this expert would
have been to rebut and attack the credibility of testimony
concerning the February 18, 1997, events, and the convictions
relating to the events of February 18 were reversed on direct
appeal.
However, since the transcript of the ex parte hearing is
not included in the record, the potential scope of the expert’s
testimony is unclear.
The Commonwealth should address this
argument to the trial court on remand.
For the foregoing reasons the judgment of the Jefferson
Circuit Court is vacated and remanded for additional proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
Albert B. Chandler III
Attorney General
Kent T. Young
Assistant Attorney General
Frankfort, Kentucky
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