LESLIE LAWSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002350-MR
LESLIE LAWSON
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 98-CR-00093
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Leslie Lawson, pro se, has appealed from the
September 29, 2003, order of the Laurel Circuit Court which
denied his pro se motion to vacate, set aside, or correct the
trial court’s final judgment and sentence of imprisonment
pursuant to RCr2 11.42, without holding an evidentiary hearing.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Kentucky Rules of Criminal Procedure.
Having concluded that the trial court did not err in denying
Lawson’s claims of ineffective assistance of counsel without
holding an evidentiary hearing, we affirm.
Because Lawson directly appealed his 20-year sentence
to the Supreme Court of Kentucky,3 we quote the pertinent facts
of this case from its Opinion as follows:
On the evening of April 23, 1998, Todd
Bodary, his girlfriend, Donna Deverney, and
Deverney’s two children were in the process
of moving from Michigan to Florida when they
stopped for the night at a motel in Corbin,
Kentucky. The group traveled in two
vehicles — Deverney’s car and Bodary’s GMC
“Jimmy” truck with an attached U-Haul
containing their possessions. After
settling into the motel, Bodary and Deverney
went to the parking lot to check on a cat
and a rabbit they had left inside Deverney’s
car, and heard the door of Bodary’s GMC slam
and its engine start. Bodary ran to his
vehicle, but the driver rapidly accelerated
and the vehicle knocked Bodary out of the
way.
The Laurel County Grand Jury indicted
Lawson for second-degree robbery and being a
first degree [persistent felony offender][.]
At trial, the Commonwealth introduced:
(1) the testimony of Bodary and Deverney,
who testified to the events described above
and made photographic lineup identifications
and in-court identifications of Lawson; (2)
still photographs taken from the motel’s
security system which displayed the events
leading up to and following the robbery; (3)
Karen Jones’s testimony that she was with
Lawson on the evening of the robbery, that
Lawson took the vehicle as Bodary and
3
Case No. 1999-SC-0454-MR, rendered August 23, 2001, not-to-be published.
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Deverney had described, and that she and
Lawson then traveled to two different
locations and unloaded some of the victims’
possessions; (4) Glenn Sanders’s testimony
that Lawson had, with his permission and
assistance, unloaded furniture at Sanders’s
mobile home on the night in question and
later returned and reclaimed the furniture;
and (5) testimony from Detective Riley of
the Kentucky State Police Department that he
discovered the victims’ possessions at
Lawson’s home when he attempted to execute
an arrest warrant upon Lawson.
The jury found Lawson guilty of seconddegree robbery, and the trial court imposed
the twenty (20) year, PFO-enhanced sentence
recommended by the jury.
The Supreme Court Opinion became final on September 13, 2001.
On February 25, 2003, Lawson filed a pro se motion to
vacate, set aside, or correct his sentence pursuant to RCr
11.42, as well as a motion for appointment of counsel, and a
request for an evidentiary hearing.
The trial court denied
Lawson’s request for counsel in an order entered on February 28,
2003.
On March 11, 2003, Lawson filed a motion for the trial
court to rule on his RCr 11.42 motion.
The Commonwealth filed
its objections to Lawson’s RCr 11.42 motion on July 28, 2003.4
4
In its order denying Lawson’s RCr 11.42 motion, the trial court stated as
follows:
Before addressing the issues proffered by the Movant
in his RCr 11.42 Motion, this Court will point out
that Mr. Lawson filed his RCr 11.42 Motion on
February 25, 2003. This is immediately prior to the
lengthy transition occurring in the local
Commonwealth Attorney’s Office. This upheaval
included the retirement of long time Commonwealth
Attorney, the Hon. Thomas Handy and the swearing in
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Lawson filed a reply to the objections on August 15, 2003.
The
trial court denied Lawson’s RCr 11.42 motion on September 29,
2003, without holding an evidentiary hearing.
This appeal
followed.5
Lawson argues on appeal (1) that trial counsel was
ineffective for failing to call three alibi witnesses at trial
and for failing to call an impeachment witness; (2) that he was
prejudiced because the Commonwealth did not provide him with
exculpatory evidence regarding the Commonwealth’s key witness,
Karen Jones; (3) that the trial court erred in failing to
of the Hon. Danny Evans. A serious fire occurred in
the Commonwealth Attorney’s Office in the [s]pring of
2003 which resulted in damaged records and the moving
of the entire office to a very small office in the
Laurel County Courthouse. Additional new staff was
hired during this time. Then a more permanent
location was obtained and the entire Commonwealth
Attorney’s Office had to be again relocated to
another building in London, KY. This Court is aware
that the staff made very diligent efforts to file
timely documents in Laurel Circuit Court, and to keep
the heavy caseload current.
The Court recognizes that over four months have
passed since the Defendant filed the RCr 11.42
Motion, but the Court makes a finding that the delay
by the Commonwealth’s Office was very excusable
during their transition times.
5
Lawson’s notice of appeal was filed on October 6, 2003. On November 13,
2003, Lawson filed a motion for reconsideration in the trial court regarding
its denial of counsel to Lawson on appeal. Meanwhile, on February 5, 2004,
this Court entered a show cause order against Lawson for failing to timely
file his brief. Lawson responded on February 20, 2004, that he was under the
impression the Department of Public Advocacy would be filing a brief on his
behalf, and requested additional time to file a pro se brief. Also on
February 20, 2004, the trial court entered an order denying Lawson’s motion
for reconsideration requesting appointed counsel. On March 17, 2004, this
Court found sufficient cause not to dismiss Lawson’s appeal and granted
Lawson’s request for an additional 90 days in which to file his brief.
Lawson’s brief was finally filed on July 12, 2004.
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suppress evidence obtained during an illegal search of his
residence; (4) that trial counsel was ineffective for failing to
offer certain testimony by avowal; and (4) that all errors
enumerated in his arguments had the effect of reversible
cumulative error.
In addition to challenging the trial court’s rejection
of his various claims, Lawson contends the trial court erred in
failing to conduct an evidentiary hearing on his RCr 11.42
motion.
A movant is not automatically entitled to an
evidentiary hearing on an RCr 11.42 motion unless there is an
issue of fact which cannot be determined on the face of the
record.6
“Where the movant’s allegations are refuted on the face
of the record as a whole, no evidentiary hearing is required.”7
As the following discussion of each of Lawson’s claims
demonstrates, each allegation is refuted on the face of the
record.
Thus, Lawson was not entitled to an evidentiary
hearing.
To establish ineffective assistance of counsel, a
movant must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency caused actual
prejudice resulting in a proceeding that was fundamentally
6
Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993).
7
Sparks v. Commonwealth, 721 S.W.2d 726 (Ky.App. 1986)(citing Hopewell v.
Commonwealth, 687 S.W.2d 153, 154 (Ky.App. 1985)).
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unfair and unreliable.8
The burden is on the movant to overcome
a strong presumption that counsel’s assistance was
constitutionally sufficient or that under the circumstances
counsel’s action might be considered “trial strategy.”9
A court
must be highly deferential in reviewing defense counsel’s
performance and should avoid second-guessing counsel’s actions
based on hindsight.10
In assessing counsel’s performance, the
standard is whether the alleged acts or omissions were outside
the wide range of prevailing professional norms based on an
objective standard of reasonableness.11
“‘A defendant is not
guaranteed errorless counsel, or counsel adjudged ineffective by
hindsight, but counsel reasonably likely to render and rendering
reasonably effective assistance.’”12
In order to establish
actual prejudice, a movant must show a reasonable probability
that the outcome of the proceeding would have been different or
8
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674, 693 (1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky.
2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
9
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky.
1998); Sanborn v. Commonwealth, 975 S.W.2d 905, 912 (Ky. 1998).
10
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
11
Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 470; Commonwealth v.
Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).
12
Sanborn, 975 S.W.2d at 911 (quoting McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997)).
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was rendered fundamentally unfair and unreliable.13
Where the
movant is convicted in a trial, a reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceeding considering the totality of the evidence before
the jury.14
Lawson first argues that defense counsel was
ineffective for failing to subpoena and to call three alibi
witnesses at trial.
He asserts that the first witness, Freddie
Jones, would have provided testimony as to Lawson’s whereabouts
on the night of the robbery, and that Lawson could not have
stolen the vehicle and trailer.
During voir dire, Lawson’s
trial counsel announced that she intended to call Freddie Jones
as a witness; however, he was never called to testify.
Lawson
states in his brief that Freddie Jones was not “available” to
testify on the day of the trial, but gives no other reason for
the failure of trial counsel to call Freddie Jones.
Given the
questionable availability and the weak probative value of the
alleged testimony from this witness, and the fact that he was
not a disinterested witness, but instead was a family friend,
Lawson has not shown that trial counsel’s failure to call
13
Strickland, 466 U.S. at 694; Bowling v. Commonwealth, 80 S.W.3d 405, 411-12
(Ky. 2002).
14
Strickland, 466 U.S. at 694-95.
Foley, 17 S.W.3d at 884.
See also Bowling, 80 S.W.3d at 412; and
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Freddie Jones to testify constituted deficient performance or
caused actual prejudice to him.
Lawson further claims that trial counsel was
ineffective for failing to offer testimony from his father,
Lester Lawson, by avowal.
Lawson claims his father could have
testified to his whereabouts on the night of the robbery.
Because Lawson’s father had charges pending that were somewhat
connected to the facts of his son’s case, the father’s attorney
advised him to assert his Fifth Amendment right not to
incriminate himself if he was subpoenaed to testify at his son’s
trial.
Armed with this knowledge, Lawson’s trial counsel,
outside the presence of the jury, asked the trial court to call
his father as a witness.
The father appeared in court with his
attorney and noted on the record that he intended to assert his
Fifth Amendment right to remain silent in refusing to answer any
questions regarding his son’s case.15
Contrary to Lawson’s
claim, it was not error for counsel not to attempt to offer his
father’s testimony by avowal because his father did not intend
to testify to anything relevant to these robbery charges.
15
See Combs v. Commonwealth, 74 S.W.3d 738 (Ky. 2002)(quoting Clayton v.
Commonwealth, 786 S.W.2d 866, 868 (Ky. 1990))(stating that “[t]his Court has
recognized that ‘neither the prosecution nor the defense may call a witness
knowing that the witness will assert his Fifth Amendment privilege against
self-incrimination,’ and we have applied this black-letter law in cases where
a witness invokes the privilege in order to avoid answering any substantive
questions” [emphasis original]).
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Lawson also claims that his trial counsel was
ineffective for failing to call Lawson’s brother, Paul Blevins,
as an alibi witness.
In Blevins’s affidavit, which is attached
to Lawson’s brief, Blevins stated that on the night of the
robbery he was incarcerated in the county jail, and at 11:20
p.m. he called Lawson’s home.
Because Lawson was not at home,
Lawson’s wife initiated a three-way call between Blevins and
Lawson, which Lawson claims would prove he could not have
committed the robbery.16
Because Blevins’s affidavit was
improperly filed before this Court as an appendix to Lawson’s
brief, and was never before the trial court, we are precluded
from considering it.17
Furthermore, we agree with the trial
court that the phone bill was “evidence unlikely to change the
minds of a jury in light of the extremely incriminating evidence
presented against [Lawson].”
Lawson further claims that trial counsel was
ineffective for failing to call Perl Smith as a witness for
purposes of impeaching the testimony of Karen Jones and Glenn
Sanders.
Lawson attached an affidavit to his RCr 11.42 motion
outlining what Smith’s testimony would have been.
The trial
court found this information to be “unpersuasive” and of “no
16
Lawson also attached a copy of his phone bill from April 23, 1998, to his
RCr 11.42 motion.
17
See Croley v. Alsip, 602 S.W.2d 418, 420 (Ky. 1980).
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relevance as to the guilt or innocence of Leslie Lawson.”
We
agree.
Trial counsel’s failure to call Smith as a witness did
not fall outside the wide range of professionally competent
assistance.
Lawson merely concludes, without support of facts,
that counsel failed to investigate Smith’s testimony.
There are
a myriad of reasons for not calling a particular witness, and
counsel must be given great discretion in trying a case,
especially with regard to trial strategy and tactics.
The trial
court must be careful not to second-guess those decisions made
by counsel.18
Thus, Lawson has not presented a sufficient basis
to overcome the strong presumption of the reasonableness of
counsel’s assistance.
Lawson next argues that the trial court erred when it
refused to suppress evidence found in his apartment during an
alleged illegal search.
In conjunction with this argument,
Lawson argues that once the trial court refused to allow John
Goodin, the maintenance man for his apartment building, to
testify at the suppression hearing, trial counsel was
ineffective for failing to offer Goodin’s testimony by avowal.
Lawson raised both these issues in his direct appeal to the
Supreme Court.
18
“In that the issue was considered by the Supreme
Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998).
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Court of Kentucky, we will not consider it herein.”19
Therefore,
we are precluded from reviewing these issues on appeal.
Lawson also argues that he was prejudiced during trial
because the Commonwealth failed to provide exculpatory evidence
to him regarding the Commonwealth’s witness, Karen Jones.
In
Hodge v. Commonwealth,20 our Supreme Court stated that a RCr
11.42 motion “is limited to the issues that were not or could
not be raised on direct appeal.”
This issue is not the proper
subject matter of a RCr 11.42 motion and should have been raised
in Lawson’s direct appeal.
The failure to raise this issue in
his direct appeal constitutes waiver of the issue. Therefore, we
decline any further review of this argument.
Finally, Lawson asserts that the cumulative effect of
the aforementioned errors resulted in a violation of his
constitutional rights and as a result his conviction and
sentence should be set aside.
meritless.
We find this argument to be
Each of the allegations made by Lawson have been
thoroughly reviewed and discussed in this Opinion and each one
is either refuted by the record, has been addressed and decided,
or should have been addressed in Lawson’s direct appeal to the
Supreme Court.
“Repeated and collective reviewing of alleged
19
Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990).
20
116 S.W.3d 463, 467-68 (Ky. 2003).
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errors does not increase their validity.”21
Lawson has failed to
demonstrate any basis for his claims that counsel’s performance
was deficient.
He received a fundamentally fair trial.
Accordingly, the order of the Laurel Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Leslie Lawson, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
21
Parrish v. Commonwealth, 121 S.W.3d 198, 207 (Ky. 2003).
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