BLACKFORD (BILLY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 30, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002098-MR
BILLY BLACKFORD
v.
APPELLANT
APPEAL FROM ELLIOTT CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 99-CR-00006
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MOORE, AND STUMBO, JUDGES.
DIXON, JUDGE: Appellant, Billy Blackford, appeals from an order of the Elliott
Circuit Court denying his motion for post-conviction relief pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42. Finding no error, we affirm.
In 2000, Appellant was convicted in the Elliott Circuit Court of
complicity to commit murder. The conviction stems from the March 1999
homicide of Donnie Lake, Jr., who was pushed off of a cliff in Rowan County,
Kentucky and plunged to his death. Appellant and another individual, Jake
Nickell, were subsequently indicted for murder. Each man accused the other of
pushing Lake off of the cliff in order to collect on a “hit” that was allegedly made
on Lake’s life. In an agreement with the Commonwealth, Jake eventually pled
guilty to facilitation of murder and tampering with physical evidence, and was
sentenced to ten years’ imprisonment. As part of the plea agreement, Jake also
agreed to testify against Appellant.
Following a trial in May 2000, a jury found Appellant guilty of
complicity to commit murder and recommended a life sentence. The trial court
denied Appellant’s motion to modify the sentence to a term more proportional to
that of Jake, and sentenced him to life imprisonment on June 19, 2000. In an
unpublished opinion, the Kentucky Supreme Court affirmed Appellant’s
conviction and sentence on direct appeal. Blackford v. Commonwealth, 2000-SC0546-MR (September 27, 2001).
On October 3, 2003, Appellant filed a pro se RCr 11.42 motion. The
trial court ultimately appointed counsel and a supplemental motion was filed on
December 7, 2004. An evidentiary hearing was held on February 16, 2007, and on
August 14, 2008, the trial court rendered a 37-page opinion and order denying
Appellant post-conviction relief. This appeal ensued.
As in the trial court, Appellant’s arguments center around his belief
that trial counsel should have presented an intoxication defense. Specifically,
Appellant claims that counsel was ineffective for failing to request a voluntary
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intoxication instruction and for failing to investigate and present intoxication
evidence during the guilt and penalty phases. Appellant contends that the trial
court erroneously found these omissions to be trial strategy rather than ineffective
assistance. We disagree.
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
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
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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.
Appellant first argues that trial counsel should have requested a
voluntary intoxication instruction. During the evidentiary hearing, Appellant
presented testimony from Jake and Appellant’s ex-wife, Anita Waddell. Jake
testified that on the night in question he and Appellant were drinking heavily,
smoking marijuana and “eating” Xanax. Jake claimed that Appellant was “highly
intoxicated,” was slurring his words and appeared to be off balance. Anita, whose
testimony was introduced through her affidavit, similarly claimed that Appellant
and Jake drank an entire bottle of Wild Turkey, and that Appellant was very
intoxicated and having “considerable difficulty walking.” Appellant argues that
based upon this evidence, he would have been entitled to an instruction on
voluntary intoxication.
Kentucky Revised Statutes (KRS) 501.080(1) states that voluntary
intoxication is a defense to a criminal charge if it “negatives the existence of an
element of the offense.” The Kentucky Supreme Court has interpreted the statute
to mean that the defense is “justified only where there is evidence reasonably
sufficient to prove that the defendant was so drunk that he did not know what he
was doing.” Rogers v. Commonwealth, 86 S.W.3d 29, 44 (Ky. 2002) (quoting
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Meadows v. Commonwealth, 550 S.W.2d 511, 513 (Ky. 1977)); see also Fredline
v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007). As such, only if a jury could
reasonably conclude from the evidence presented that the defendant was so
intoxicated that he could not have formed the requisite mens rea for the offense is a
voluntary intoxication instruction warranted. Nichols v. Commonwealth, 142
S.W.3d 683, 689 (Ky. 2004). See also Mishler v. Commonwealth, 556 S.W.2d
676, 680 (Ky. 1977). In other words, in order to justify an instruction on
intoxication, there must be evidence not only that the defendant was drunk, but that
he was so drunk he did not know what he was doing. Springer v. Commonwealth,
998 S.W.2d 439, 451 (Ky.1999).
We agree with the trial court that the evidence in this case clearly did
not support a voluntary intoxication instruction. As the trial court noted in its
opinion and order,
Examining all of this testimony together, no two
witnesses tell the same story. Jake testified at the
Hearing that he, the Defendant, and Donnie (the victim)
drank one-half (1/2) of the bottle of Wild Turkey.
Meanwhile, Anita testified through Affidavit that Jake
and the Defendant drank the whole bottle of Wild
Turkey. Jennifer [Jake’s girlfriend] on the other hand,
testified at Trial that she could only recall Donnie
drinking the Wild Turkey. While the Defendant did
testify at Trial to consuming liquor, the exact amount is
not known as he testified to the amount using a hand
gesture that is not reflected in the written record.
Jake testified at the hearing that they also drank beer after
they arrived at the Defendant’s house (or when they left
again with the victim). However, the Defendant testified
at Trial that they had beer available in the refrigerator,
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but they did not drink it. Again, while Jake testified at
the Trial regarding the consumption of marijuana and
Wild Turkey at the Defendant’s house, he failed to
mention beer until the Hearing.
As stated previously, this Court finds Jake’s Hearing
testimony to be totally lacking in credibility. Certainly, it
is interesting that Jake could recall exactly how much
Wild Turkey was consumed and exactly how many joints
were smoked at the Hearing conducted approximately
eight years after the death of the victim. When asked
these questions at the Trial conducted a little more than
one year after the death of the victim, however, Jake
responded that he did not know. Furthermore, Jake was
able to recall “eating Xanax” and drinking beer from the
bootlegger eight years after the fact, yet such details were
never mentioned at the Trial when clearly, the subject
was raised during his Trial testimony.
While there is no question that the Defendant consumed
alcohol on the night in question, the degree of the
Defendant’s intoxication does not appear to be clear.
The Defendant described himself as “pretty drunk”
during his testimony. He recalled that he did not want to
get a bag of pot because he was “pretty drunk.” Anita
stated in her Affidavit that the Defendant was “highly
intoxicated” and was slurring his words and having
difficulty walking at the time he left the house. Of
course, Jake also testified at the Hearing that the
Defendant was “highly intoxicated.”
However, these characterizations appear to be called into
question by the fact that the Defendant has a specific
recollection of the events of that night, including a
specific recollection as to where the three men were
going, where they stopped, what happened while they
were stopped, what was said when they returned to the
truck, and what occurred thereafter. More importantly,
the Defendant has a clear recollection of Jake Nickell
pushing the victim off of the cliff and can describe the
moments leading up to the victim’s death with detail.
....
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Certainly, the Defendant’s ability to vividly recall the
night in question is inconsistent with the argument that he
was so drunk that he did not know what he was doing.
Considering the fact that the Defendant stated that he was
standing on the edge of a cliff (with a drop-off of over
one hundred (100) feet) conducting small talk with the
victim at the time the victim was pushed, this Court also
finds suspect the testimony elicited from Anita and Jake
that the Defendant was having difficulty walking or was
otherwise unsteady on his feet. (Emphasis in original).
The trial court also noted that at Trial, Appellant specifically denied any drug use
on the night in question.
Appellant never claimed that he had lost his memory or control over
his actions. To the contrary, his own testimony confirms that his mental and
physical faculties were more than adequate. Thus, there is little reason to believe
that his trial counsel, much less the trial court, had reason to suspect that a
diminished capacity defense might be appropriate. In short, “[t]hese [were] not the
actions of a man so intoxicated that he did not know what he was doing.” Soto v.
Commonwealth, 139 S.W.3d 827, 868 (Ky. 2004), cert. denied, 544 U.S. 931
(2005). Clearly, the evidence would not have supported an instruction on
voluntary intoxication and, thus, counsel was not ineffective for failing to request
such. “It is not ineffective assistance of counsel to fail to perform a futile act.”
Bowling v. Commonwealth, 80 S.W.3d 405, 415 (Ky. 2002), cert. denied, 538 U.S.
931 (2003).
We likewise find no merit in Appellant’s claim that counsel rendered
ineffective assistance by failing to present evidence of his intoxication during the
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guilt and penalty phases. Importantly, throughout the trial, Appellant maintained
his absolute innocence and claimed that Jake acted alone in pushing Lake from the
cliff. As trial counsel testified during the hearing, it was crucial for the jury to
believe that Appellant’s recollection of the events was accurate. As such, evidence
of intoxication at such a level that Appellant did not know what was going on was
a “double-edged sword.”
We agree with the trial court that counsel utilized a trial strategy that
pitted Appellant’s credibility against Jake’s credibility:
Obviously, from the beginning of the Trial, Mr. Ganstine
crafted the defense of his client with the understanding
that the Defendant had to appear to be credible and fully
cognizant of what occurred on top of that hill on the night
in question. Jake was, presumably, going to point the
finger at the Defendant or at least imply that the
Defendant was the culprit. At a minimum, Jake was
going to deny that he had anything to do with the
victim’s fall from the cliff. As a practical matter,
therefore, the Defendant had to discredit Jake and point
the finger back at him. This is especially true, however,
if the Defendant maintained his “absolute innocence” and
stated that he witnessed Jake push the victim off of the
cliff.
....
Mr. Ganstine made a conscious choice to craft a strategy
which was based upon establishing the credibility of the
Defendant and attacking the credibility of the CoDefendant. In the end, such strategy proved to be
unsuccessful. However, the fact that the jury did not
accept the position of the Defendant does not equate to a
finding of ineffective assistance of counsel.
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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, with respect to a
claim of ineffective assistance of counsel, 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). The record herein simply does not
support a finding that “counsel’s performance was deficient and that the defendant
was prejudiced by that deficiency.” Commonwealth v. Davis, 14 S.W.3d 9, 11
(Ky. 1999). See also Strickland. Therefore, the trial court did not err in
concluding that trial counsel did not render ineffective assistance of counsel.
The Opinion and Order of the Elliott Circuit Court denying
Appellant’s motion for post-conviction relief pursuant to RCr 11.42 is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melanie L. Lowe
Assistant Public Advocate
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
Christian K.R. Miller
Assistant Attorney General
Frankfort, Kentucky
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