RENDERED: JANUARY 23, 2009; 2:00 P.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-002089-MR RAYMOND PATTERSON APPELLANT
v.
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE ACTION NO. 03-CR-002710 AND 03-CR-003283 APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, LAMBERT, AND WINE, JUDGES. LAMBERT, JUDGE: Raymond Patterson appeals from the Jefferson Circuit Court’s denial of his RCr 11.42 motion. After careful review, we affirm. In September 2003 Raymond Patterson (hereinafter Patterson) was placed under surveillance by the Louisville Metro Police Department as a burglary suspect in the Frankfort Avenue and lower Brownsboro Road area of Jefferson County. On September 11, 2003, Detective Gosney noticed Patterson outside a bar
on Frankfort Avenue. In an unmarked car, Detective Gosney followed Patterson and observed him stopping at a railroad crossing. Detective Gosney then lost sight of Patterson, and approximately twenty minutes later heard a police dispatcher announce a burglar alarm going off at Weber Group, a local architecture firm on Frankfort Avenue. Detective Gosney responded to the scene, where he met with other police officers. Those officers advised that they found a broken window, blood, and a shoeprint. Detective Gosney was suspicious of Patterson and resumed looking for him. About twenty minutes later, Detective Gosney stopped at a Thorton’s gas station on Brownsboro Road. While refueling, he saw Patterson walk towards Thorton’s. Patterson stopped and walked behind Rally’s restaurant and then returned a few minutes later. As Patterson approached the door of Thorton’s, Detective Gosney confronted him and identified himself as a police officer. Detective Gosney asked Patterson where he had been, and Patterson did not respond. Detective Gosney noticed what appeared to be fresh cuts on Patterson’s right arm and forehead, and he asked him how he received those cuts. Patterson did not respond. Detective Gosney summoned an officer at the scene of the Weber Group burglary and verified that they had found blood at the scene. Another officer observed the pattern of Patterson’s shoeprint was similar to prints left at the scene. Detective Gosney then handcuffed Patterson and performed a pat down search. Detective Gosney felt bulges in Patterson’s front pockets, which sounded -2-
metallic. He asked Patterson what was in his pocket, and Patterson suggested that the detective remove the items. Detective Gosney removed eight wristwatches and some small jewelry. Officers transported Patterson to the district substation. Detective Gosney and Officer Anthony Scott searched the area around Rally’s and discovered a small zippered case containing a pistol in some bushes behind the restaurant. Meanwhile, Detective Chris Horn photographed Patterson at the police station and then released him, believing that he was not under arrest. At approximately 10:00 a.m., the radio dispatcher announced a burglary at the Jones Bargain Center on Brownsboro Road. Detective Horn responded to the scene and met with the owner, Ira Jones. Jones explained that someone had pried open the basement door, which had been boarded shut for years. He reported several items stolen, including several watches, a .25 caliber German pistol in a suede case, a digital camera, and a Zippo lighter. Officers showed Jones the watches they had taken from Patterson’s pockets and the gun found in the bushes behind Rally’s, and Jones identified them as those taken from his shop. On September 15, 2003, Detective Horn and Detective Brian Walker arrested Patterson and charged him with burglary in the third degree (Weber group) and burglary in the first degree (Jones Bargain Center). On October 21 or October 22, 2003, Patterson allegedly broke into another store, this time the James Fruit Market on Frankfort Avenue. The store surveillance showed a man entering -3-
the building through a window, and Detective Walker identified that man as Patterson. Patterson was indicted on October 20, 2003, for one count of burglary in the first degree; one count of burglary in the third degree; possession of a firearm by a convicted felon; and being a persistent felony offender in the first degree. On December 15, 2003, Patterson was indicted for the Jones Fruit Market burglary, which was charged as burglary in the first degree. Patterson was tried in May 2005 and was found guilty of one count of burglary in the first degree and two counts of burglary in the third degree. Patterson then entered a guilty plea to the remaining charge of being a persistent felony offender in the first degree, but the plea was a conditional guilty plea under RCr 8.09 and was entered under North Carolina v. Alford, 400 U.S. 25 (1970). On September 17, 2006, the Jefferson Circuit Court sentenced Patterson to imprisonment for twenty years. Patterson appealed to the Kentucky Supreme Court, which affirmed his convictions on February 22, 2007. On March 15, 2007, Patterson filed the underlying motion to vacate under RCr 11.42, which was denied on May 8, 2007. This appeal follows. We review the trial court’s denial of an RCr 11.42 motion for an abuse of discretion. An RCr 11.42 motion is limited to the issues that were not and could not be raised on direct appeal. An issue raised and rejected on direct appeal may not be reconsidered in these proceedings by simply claiming that it amounts to
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ineffective assistance of counsel. Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), citing Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998). Patterson first argues that his trial counsel was ineffective because counsel did not explore inconsistencies between statements made by both Detective Owen and Detective Horn. Specifically, Patterson alleges that his counsel should have explored two inconsistencies: (1) that Detective Owen was inconsistent in statements as to whether Patterson was actually asleep when he entered Patterson’s apartment, and (2) that Detective Horn’s affidavit stated that he read the Miranda warnings to Patterson, but in his grand jury testimony, Detective Horn testified that Patterson never requested counsel. Patterson claims that had his counsel impeached these witnesses regarding their inconsistent testimony, that their creditability would have been in question, and the statements would have been excluded as evidence. A careful review of the record indicates that the trial court properly addressed Patterson’s allegations in light of the record. In its order, the trial judge described Patterson’s allegations regarding the detective’s testimony, and then discussed the two prong test for ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668 (1984). The judge then found that even if taken as true, Patterson’s allegations did not rise to the level of actual prejudice. Patterson did not show that defense counsel was so ineffective as to change the outcome of the verdict by failing to impeach Detective Horn or Detective Owen. Any inconsistency as to whether Patterson was asleep or was pretending to be -5-
asleep would not have changed the outcome of the suppression hearing, and the judge found the same to be true of the alleged inconsistency regarding the request for an attorney. The trial judge properly noted that in proving actual prejudice, the defendant must show that but for counsel’s errors, he would have been found not guilty. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Patterson next argues that the trial court improperly denied his right to an evidentiary hearing regarding his RCr 11.42 motion. Patterson argues that the court could not have disputed his claims from the face of the record and therefore a hearing was required. We disagree. Where the appellant’s allegations are refuted by the record, an evidentiary hearing is not required. Commonwealth v. Stamps, 672 S.W.2d 336 (Ky. 1984); Beecham v. Commonwealth, 657 S.W.2d 234 (Ky. 1983; Lay v. Commowealth, 506 S.W.2d 507 (Ky. 1974); and Glass v. Commonwealth, 474 S.W.2d 400 (Ky. 1971). As denoted by the trial court’s analysis above, the allegations were refuted by the record and a hearing was not necessary. Patterson argues that the trial court erred by failing to strike a juror for cause; permitting hearsay testimony; and by permitting the introduction of DNA results without a hearing as required by Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Regarding the court’s alleged error in failing to strike a juror for cause, it appears from the record that the defense used a peremptory challenge to -6-
remove this juror. Thus, we find that any alleged error was rendered moot by the fact that this juror did not ultimately hear or decide the underlying case. Patterson also alleges that he and his trial counsel disagreed on another juror and that trial counsel liked the juror and made the decision not to strike him. In Dupin v. Commonwealth, 408 S.W.2d 443, 444 (Ky. 1996), the Kentucky Supreme Court held that trial counsel’s failure to strike a juror amounted to “little more than a mere disagreement between counsel and accused as to the manner in which the trial should have been conducted.” The Court held that such disagreement does not invalidate the proceeding. In the instant case, trial counsel’s decision to keep a juror he found favorable does not invalidate the proceeding or give grounds for overturning Patterson’s conviction. The issues of whether the trial court improperly admitted hearsay testimony and improperly allowed DNA results without first conducting a Daubert hearing were, by Patterson’s own admission, not properly preserved for review. Subsection (3) of RCr 11.42 reads, “[t]he motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” We will not consider the issues of hearsay testimony and DNA evidence because they were not raised in Patterson’s initial RCr 11.42 motion and were concluded by that proceeding. Finally, Patterson argues that he received ineffective assistance of counsel during his initial appeal and that his appellate counsel erred in not -7-
addressing the admission of the DNA results; the failure of trial counsel to impeach witnesses; the Commonwealth’s elicitation of hearsay testimony; and the juror issues. The trial judge ruled that ineffective assistance of appellate counsel is not cognizable in Kentucky under Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992). We find no error in the trial court’s ruling that ineffective assistance of appellate counsel is not a cognizable claim under Kentucky law. In Hicks, the Kentucky Supreme Court held that RCr 11.42 was not the proper remedy with which to attack the effectiveness of appellate counsel, stating: [t]he movant here has not suffered from a failure to perfect an appeal in his case or from a dismissal of his appeal because his appeal has been completely processed and decided adversely to him. He contends, however, that his counsel was so ineffective in failing to present an issue in the appeal and that the result is the same as if he had been denied a right of appeal. He attempted to present his claim of ineffective representation of counsel on appeal by way of a RCr. 11.42 motion to vacate. We think there is a substantial difference in the situation of a convicted defendant for whom no appeal was even taken or one whose appeal was dismissed solely due to neglect of counsel and the situation of a defendant whose appeal was completely processed and the judgment affirmed. In the first case, there was never any consideration of the merits of any substantive issue by the appellate court. In the latter case, the appellate court has considered and decided the merits of the appeal. We will not examine anew an appeal reviewed, considered and decided by this Court. In Lewis v. Commonwealth, 42 S.W.3d 605, 614 (Ky. 2001), the Kentucky Supreme Court clarified the holding in Hicks, stating, “[i]neffective assistance of -8-
appellate counsel is not a cognizable issue in this jurisdiction.” Thus, we decline to address Patterson’s claims of ineffective assistance of appellate counsel. For the foregoing reasons, we affirm the Jefferson Circuit Court’s denial of Patterson’s RCr 11.42 motion. ALL CONCUR. BRIEF FOR APPELLANT: Raymond Patterson, Pro Se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
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