MARVIN TIMOTHY PENNINGTON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 1, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
2001-CA-000965-MR
AND
2001-CA-001465-MR
MARVIN TIMOTHY PENNINGTON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 95-CR-00086
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Marvin Timothy Pennington has appealed from an
opinion and order entered by the Fayette Circuit Court on April
6, 2001, that denied his motion to vacate his sentence pursuant
to RCr1 11.42.
Having concluded that the trial court properly
denied Pennington’s claim for RCr 11.42 relief, we affirm.
On February 6, 1995, Pennington was indicted by a
Fayette County grand jury for two counts of kidnapping,2 two
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Revised Statutes (KRS) 509.040.
counts of rape in the first degree,3 two counts of sodomy in the
first degree,4 and one count each of burglary in the first
degree,5 stalking in the second degree,6 and possession of a
firearm by a convicted felon.7
The possession of a firearm
charge was severed prior to trial.
A jury convicted Pennington
of the remaining charges, except he was found guilty of criminal
trespass in the first degree, a misdemeanor, in lieu of burglary
in the first degree.
In a final judgment of conviction and
sentence entered on June 6, 1995, the trial court followed the
jury’s recommendation of a total prison sentence of 105 years.
Pennington filed an appeal as a matter of right, and on September
3, 1998, the Supreme Court affirmed the conviction.8
In his
direct appeal, Pennington raised allegations of ineffective
assistance of counsel; but the Court refused to consider these
claims.9
On October 19, 1999, Pennington filed a motion pursuant
to RCr 11.42 claiming ineffective assistance of both his trial
3
KRS 510.040.
4
KRS 510.070.
5
KRS 511.020.
6
KRS 508.150.
7
KRS 527.040.
8
1995-SC-000537-MR.
9
Humphrey v. Commonwealth, Ky., 962 S.W.2d 870 (1998).
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counsel and his appellate counsel.
In a 21-page opinion and
order entered on April 6, 2001, the Fayette Circuit Court
concluded after an "exhaustive review of the record" “that
Pennington received reasonably effective assistance of counsel
and a fundamentally fair trial, there being no reasonable
probability that a different result could have been achieved
absent the alleged errors of counsel.”
This appeal followed.
In addressing a claim of ineffective assistance of
counsel, the trial court must determine, in light of all the
evidence, whether the alleged ineffective acts or omissions of
counsel were outside the range of reasonably professional
assistance.10
Strong deference must be given to counsel's
judgment and the movant must overcome the presumption that
counsel rendered reasonably professional assistance.
“[T]he
movant must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the results of the trial
would have been different.”11
The events which led to the indictment of Pennington
occurred in Lexington, Kentucky, on January 29, 1995.
Pennington
10
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905
(1998).
11
Sanborn, supra at 911 (citing Strickland, 466 U.S. at
694).
-3-
and the victim, S. S.,12 had been involved in a personal
relationship for about four years.
Problems had developed in
this relationship, and on January 29, 1995, Pennington first
forced S. S. to ride in his car and later that evening forced his
way into S. S.’s apartment by breaking open a locked door.
Pennington then forced S. S. into a bedroom where he forced her
to perform fellatio, forced her to have vaginal intercourse, and
then forced her again to perform fellatio.
After S. S. was
detained for a period of time in the living room, Pennington
again forced S. S. into a bedroom where he once again forced her
to have vaginal intercourse.
First, Pennington alleges that his trial counsel was
ineffective by failing to object to the admissibility of certain
testimony from a police detective, a social worker, a family
member and a friend which constituted hearsay involving prior
consistent statements made by the victim.
Generally, a witness’s
testimony cannot be corroborated by an additional witness who
repeats the witness's story as told to him.13
However, in
limited circumstances, where the credibility of a witness has
12
The victim and her relatives will be referred to by their
initials to protect S. S.’s privacy.
13
Smith v. Commonwealth, Ky., 920 S.W.2d 514, 516-17 (1995);
Sharp v. Commonwealth, Ky., 849 S.W.2d 542, 546 (1993).
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been challenged based on recent fabrication or improper influence
or motive, such bolstering may be allowed.14
Pennington claims that several witnesses were allowed
to give testimony which bolstered the testimony of the victim by
testifying to prior consistent statements that the victim had
made to them.
Specifically, Pennington claims that his counsel
was ineffective by failing to object to the following testimony:
(1) Det. Keith Howard testified that S. S. told him that she and
Pennington had broken off their relationship in December 1994,
that Pennington had a gun in his house, that she felt threatened
by Pennington, and that the sexual assault occurred between 5
p.m. and 8 p.m. on January 29, 1995; (2) Anita Capillo, Director
of Victims’ Services, testified that S. S. told her that
Pennington would beat her if she called the police, that
Pennington had said she had better not leave her dog, that
Pennington had said the sexual assault was not rape because he
loved her, that she pretended that everything was alright so
Pennington would leave her apartment, and that Pennington had a
gun; (3) K. S., the victim’s sister-in-law, testified that S. S.
told her that Pennington had raped her, that she was afraid to
stay in Lexington, that she had pain in her vagina which felt
like a tear and that she had noticed blood; and (4) Rita Shrodt,
14
Lawson, The Kentucky Evidence Law Handbook § 4.20 (3rd
ed., 1993); Kentucky Rules of Evidence (KRE) 801A(a)(2). See
Schambo v. Commonwealth, Ky., 821 S.W.2d 804, 811 (1991).
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S. S.’s friend, testified that S. S. told her that Pennington had
knocked her door down, that she was going to the emergency room,
that she was going to talk to a police detective, and that she
was going to file rape charges against Pennington.
In its order denying Pennington’s RCr 11.42 motion, the
trial court found that Pennington’s trial counsel sufficiently
objected to the improper hearsay testimony; and that “[g]iven the
trial court’s erroneous ruling, there was nothing more defense
counsel could do.”
The trial court then correctly ruled that
since this evidentiary issue is the type of issue that must be
pursued in a direct appeal, Pennington was precluded from raising
it in his RCr 11.42 motion.15
Pennington also claims that his trial counsel was
ineffective by failing to object to the testimony of Kay
Shepherd, a nurse who participated in S. S.’s rape examination.
Shepherd testified that S. S. told her that she had lower
abdominal pain, that she had been vaginally assaulted, that she
had been forced to perform oral sex, that she believed there was
a tear in her vagina, and that she was sure she had experienced
trauma.
In denying Pennington’s claim, the trial court correctly
noted that “KRE 803(4) provides an exception to the hearsay rule
for statements made for purposes of medical treatment or
15
Brown v. Commonwealth, Ky., 788 S.W.2d 500, 501 (1990).
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diagnosis.”
Pennington’s claim for RCr 11.42 relief on this
issue is without merit and was properly denied.
Pennington also claims that his trial counsel was
ineffective by failing to object to the testimony of Linda
Winkle, a lab technician, as cumulative evidence.
Winkle
testified without objection that since Pennington was a group O
blood type secretor and S. S. was a group A blood type secretor,
S. S.’s fluids would “mask” Pennington’s fluids.
Accordingly,
the test results obtained by Winkle were consistent with
Pennington having had sexual intercourse with S. S.
Pennington’s
reliance on Robey v. Commonwealth,16 in support of this claim is
perplexing since it supports the Commonwealth’s position.
In Robey, the defendant’s conviction for rape in the
first degree was reversed and the case was remanded for a new
trial due to trial error in admitting evidence of a rape
conviction involving another woman 16 years earlier.
Robey also
claimed that the trial court had erred by allowing a lab
technician to testify that DNA test results proved that Robey had
had sexual intercourse with the victim.
The Supreme Court noted
that since Robey had claimed that he had had consensual sexual
intercourse with the victim, “there was no issue at the trial as
to whether he engaged in sexual intercourse with her.”
The Court
then stated that “[a]lthough there was no need for this testimony
16
Ky., 943 S.W.2d 616, 620 (1997).
-7-
and it was cumulative, we do not believe that the admission of
the DNA test was reversible error” [citation omitted].17
Likewise, since Pennington claimed that he and S. S. had had
consensual sexual intercourse, there was no need for Winkle’s
testimony, but its admission was harmless error and Pennington is
entitled to no RCr 11.42 relief.
A key piece of evidence relied upon by the Commonwealth
at trial was a portion of a videotape given to S. S. by
Pennington.
Pennington admitted that he had become upset at S.
S. and that he directed his anger toward her by making a video
that he left at her residence with a note.
The video included
Pennington giving a profane and threatening tirade expressing his
hatred for S. S., a scene of Pennington and S. S. having sexual
intercourse, and a scene of Pennington and another woman having
sexual intercourse.
S. S. testified that the actual tape left
with her and viewed by her was taken from her residence by
Pennington and that he told her he was going to erase it.
When
the police searched Pennington’s residence, they found a cassette
tape in his camcorder which was apparently used by him in making
the videotape given to S. S.
In addition to Pennington’s
diatribe and him having sex, the middle of this cassette tape
also included a portion of Pennington’s uncle’s funeral at
Arlington Cemetery, and at the end of the cassette tape he and S.
17
Id.
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S. were shown looking at quilts and discussing marriage at his
grandmother’s house.
Pennington claims five errors regarding the admission
of the cassette tape as evidence: (1) the funeral scene was not
on the videotape given to S. S., (2) the funeral was not evidence
of Pennington’s state of mind sufficiently close in time to the
alleged crime to be relevant, (3) the Commonwealth’s argument
that the tape was a homicidal/suicidal threat was prejudicial,
(4) a portion of the cassette tape should not have been played
during the Commonwealth’s opening statement, and (5) the sex
scenes should have been redacted from the cassette tape.
In
denying Pennington’s RCr 11.42 motion, the trial court correctly
stated that there was conflicting evidence concerning whether the
funeral scene was included in the videotape given to S. S. and it
was the jury’s role to weigh this evidence.
The trial court was
also correct in stating that Pennington has failed to establish
that he was deprived of some substantial right which would
entitle him to RCr 11.42 relief and that there is no reasonable
probability that if the objections now raised by Pennington had
been ruled upon favorably to him at trial that the results of the
trial would have been any different.
Pennington also claims that his counsel was ineffective
by failing to object to the introduction as evidence of a handgun
and ammunition which were taken during the search of his
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residence.
As noted by the trial court, Pennington’s argument
concerning this issue inaccurately describes what occurred at
trial.
Pennington’s counsel did object to the admission of the
handgun, but the objection was overruled.
This very issue was
presented to the Supreme Court on direct appeal, and the trial
court was affirmed.
A movant is precluded from raising an issue
in his RCr 11.42 which was raised in a direct appeal or which
should have been raised in a direct appeal.18
Pennington next claims that his trial counsel was
ineffective in making closing arguments in both the guilt phase
of the trial and the sentencing phase.
We have reviewed the
entire video record of this three-day trial; and while we might
agree with the trial court’s characterization that trial
counsel’s guilt-phase “[c]losing argument certainly was unusual,”
we also agree with the trial court that the “closing argument
offered an alternate explanation that the jury could have
believed[,]” and that “Pennington fails to show that he was
substantially prejudiced by his attorney’s closing argument.”
Pennington also claims that his counsel was ineffective
in the closing argument in the sentencing phase of the case by
conceding his guilt and by not asking for leniency.
18
Brown, supra.
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The trial
court correctly observed that this is a strategy employed by many
attorneys and that Pennington is entitled to no relief.19
Pennington further claims that his counsel was
ineffective by failing to object to the prosecutor asking him
during cross-examination why he did not provide the police with
the videotape.
Pennington claims this question constituted
improper impeachment of him since he had the right to remain
silent.
As the trial court stated, even if this were error,
there is no substantial possibility that the result of the trial
would have been different.
Finally, Pennington presents the following six claims
by referring to them as “collective errors”: (1) counsel failed
to impeach Tom Kubas and Karen Pittinger, (2) counsel failed to
tell the jury Pennington’s theory of the case and failed to
object to improper statistical arguments, (3) counsel failed to
call witnesses, including Pennington’s father, his two sisters
and the mother of his child, (4) counsel failed to impeach S. S.
with an audiotape, (5) counsel failed to object to the
Commonwealth’s improper closing argument, and (6) counsel failed
to object to testimony which glorified S.S.
We have reviewed the
entire trial and none of these claims has merit.
In each
instance there was either no grounds for counsel to object
because there was no trial error; or the decision not to object,
19
Moore v. Commonwealth, Ky., 983 S.W.2d 479, 484 (1998).
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not to call a witness, not to ask a question, or not to make an
argument was reasonable trial strategy.
For the foregoing reasons, the opinion and order of the
Fayette Circuit Court denying Pennington’s claim for RCr 11.42
relief is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Anderson
Lexington, Kentucky
Albert B. Chandler, III
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
`
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