MERIDA (RODNEY) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 28, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001555-MR RODNEY MERIDA v. APPELLANT APPEAL FROM KNOX CIRCUIT COURT HONORABLE RODERICK MESSER, JUDGE ACTION NO. 05-CR-00058 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON AND TAYLOR, JUDGES; HARRIS,1 SENIOR JUDGE. DIXON, JUDGE: Appellant, Rodney Merida, appeals pro se from an order of the Knox Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42. Finding no error, we affirm. 1 Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. On May 13, 2005, Appellant was indicted by a Knox County grand jury for the murder of Brandon Kelly. Following a trial in September 2006, Appellant was found guilty of first-degree manslaughter and sentenced to twelve years’ imprisonment. Appellant’s convictions and sentence were affirmed on direct appeal to this Court. Merida v. Commonwealth, 2006-CA-002309-MR (March 14, 2008). On June 26, 2008, Appellant filed a pro se RCr 11.42 motion raising numerous claims of ineffective assistance of counsel. Appellant also moved for the appointment of counsel and an evidentiary hearing. By order entered July 21, 2008, the trial court denied the motions, finding that all claims could be resolved from the face of the record. This appeal ensued. Appellant argues on appeal that the trial court erred in denying his RCr 11.42 motion without an evidentiary hearing because his claims of ineffective assistance of counsel cannot be refuted from the face of the record. As he did in the trial court, Appellant claims that counsel was ineffective by failing to timely object to the introduction of prior bad acts that were included in his statement to the police, failing to adequately investigate and interview potential witnesses, and advising Appellant not to testify. In an RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right that would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). Furthermore, an evidentiary -2- hearing is warranted only “if there is an issue of fact which cannot be determined on the face of the record.” Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049 (1994); RCr 11.42(5). See also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), cert. denied, 527 U.S. 1026 (1999). “Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition.” Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), cert. denied, 540 U.S. 838 (2003), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Where an evidentiary hearing is unwarranted, appointment of counsel is not required. Fraser, 59 S.W.3d at 453. Moreover, when a trial court denies a motion for an evidentiary hearing, appellate review is limited 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. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). Thus, the question becomes whether the trial court properly found that Appellant’s claims of ineffective assistance of counsel were refuted by the record. We conclude that they were. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the standards which measure ineffective assistance of counsel claims. In order to be ineffective, performance of counsel must fall below the objective standard of reasonableness and be so prejudicial as to deprive a -3- defendant of a fair trial and a reasonable result. Id. “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992), cert. denied, 508 U.S. 975 (1993). Thus, the critical issue is not whether counsel made errors, but whether counsel was so “manifestly ineffective that defeat was snatched from the hands of probable victory.” Id. In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the trial court or jury and assess the overall performance of counsel throughout the case in order to determine whether the alleged acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. Strickland; see also Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302 (1986). A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render reasonably effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997). The Supreme Court in Strickland noted that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In his direct appeal, a panel of this Court did, in fact, conclude that Appellant’s statements to police admitting that he had violated a DVO on three separate occasions including the night of the murder, as well as the fact that his -4- children had been removed from his custody by social services, should not have been admitted: Generally evidence of “prior bad acts,” unrelated to the charged offense, is inadmissible pursuant to KRE 404(b). The Commonwealth has not argued that this evidence fits within any of the exceptions set out in RCr 404(b), nor that it would have been impossible to redact the recorded statement so as to eliminate the offending portions. Therefore, it appears that evidence of Merida’s prior bad acts should have been excluded, had a proper and timely objection been made. Merida v. Commonwealth, Slip op. p. 5-6. Clearly, trial counsel erred in failing to move to suppress or timely object to the statements in question. However, in determining that Appellant nevertheless failed to satisfy the second prong of Strickland, the trial court stated: At trial, evidence was offered to show that, in this instance, Movant’s violation of the DVO was with the permission of the party that the order was initiated to protect, Kayleen Merida. This testimony minimized the impact of the evidence, at least insofar as the evidence of prior bad acts related to Movant’s violations of DVO’s. It is important to note that, testimony of an eyewitness, Kayleen, and that of another witness who heard but did not see the struggle, Cody Mills, established that the Movant committed the crime. The Movant’s own statements were offered against him as well. A police officer testified that, when Movant emerged from a closet where he had been hiding, he said “I done it. I done it.” While the Court cannot say that evidence of the prior bad acts was not prejudicial to the [Movant] in some way, this prejudice did not affect the outcome of the case because other evidence which was significantly -5- more substantial, was offered to prove the Movant’s guilt. As previously noted, a defendant is not guaranteed errorless counsel. In this instance, we are of the opinion that Appellant failed to show that counsel’s error was so prejudicial as to deprive him of a fair trial. Strickland. We likewise conclude that Appellant has not demonstrated that counsel failed to adequately investigate and interview witnesses or call exculpatory witnesses on his behalf. First, Appellant claims that two individuals, James Mills and Elbert Rice, would have refuted the Commonwealth’s case. Yet, Appellant fails to specify what this testimony would have been or how it would have changed the outcome of the case. RCr 11.42(2). Second, Appellant alleges that counsel should have sought expert testimony regarding the level of his intoxication at the time in question. However, as the trial court pointed out, expert testimony regarding intoxication is not necessary where other evidence is offered to show that the defendant was intoxicated. Mills v. Commonwealth, 170 S.W.3d 310, 329 (Ky. 2005), cert. denied, 547 U.S. 1005 (2006), overruled on other grounds in Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Appellant concedes that there was lay testimony introduced at trial that he had been heavily drinking on the day of the homicide and was also under the influence of numerous prescription drugs. An RCr 11.42 proceeding is not a fishing expedition. Id. at 330. Conclusionary allegations that are unsupported by specific facts will not justify an -6- evidentiary hearing. Sanders v. Commonwealth. Appellant’s claim that counsel rendered ineffective assistance because he was not more vigorous in his development of witnesses is simply unsupported by the record. Finally, we find no merit in Appellant’s claim that counsel rendered ineffective assistance by advising him not to testify. Concluding that the claim was refuted from the face of the record, the trial court pointed out: At least part of the defense counsel’s strategy, as evidenced by trial counsel’s statements during closing argument, was to convince the jury that Movant was only guilty of the lesser-included offense of reckless homicide. If Movant had testified, trial counsel’s theory might have been put into jeopardy. Evidence was offered that the Movant stated, “I done it. I done it,” when emerging from his hiding place. For the Movant to be cross-examined by the Commonwealth regarding such a statement would have been potentially disastrous for trial counsel’s theory of the case because such an examination would have potentially emphasized the absence of recklessness. A court’s review of counsel’s performance must be highly deferential, and the defendant must overcome the presumption that counsel provided a reasonable trial strategy. Brown v. Commonwealth, 253 S.W.3d 490 (Ky. 2008). Given Appellant’s theory of the case, we agree with the trial court that advising Appellant not to testify was reasonable trial strategy. We conclude that all of the claims set forth in Appellant’s RCr 11.42 motion were conclusively refuted by the record. As such, the trial court properly denied his motion for post-conviction relief without an evidentiary hearing. -7- The order of the Knox Circuit Court is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: Rodney Merida, Pro Se West Liberty, Kentucky Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky -8-

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