LINK (GREGORY A.) VS. COMMOWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000911-MR
GREGORY A. LINK
v.
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 01-CR-00041
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE AND STUMBO, JUDGES; LAMBERT,1 SENIOR JUDGE.
STUMBO, JUDGE: Gregory Link appeals the trial court’s order denying his RCr
11.42 motion without an evidentiary hearing. Appellant argues that he was denied
effective assistance of counsel at his criminal trial and points to these specific
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Senior Judge Joseph E. Lambert 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.
instances: when trial counsel failed to object to prejudicial statements made by the
Commonwealth during the penalty phase closing arguments, when trial counsel
failed to present mitigation witnesses during the penalty phase, when counsel
failed to file a motion to suppress, and that counsel made so many errors that a new
trial is warranted due to cumulative errors. We find Appellant’s first argument
may have merit, but that an evidentiary hearing is required before we can review
the issue. We therefore reverse and remand for an evidentiary hearing to
determine if Appellant’s trial counsel was ineffective in not objecting to the
prejudicial statements made by the Commonwealth.
The underlying case reached the Kentucky Supreme Court in the
course of Appellant’s matter of right appeal. As such, we will utilize its recitation
of the pertinent facts.
[A]round 3:00 a.m. on April 5, 2001, [Appellant]
went to the property of his cousin, Jeff Link. Having
only seen the tail lights of a vehicle driving through their
property, Jeff Link and his wife mistakenly believed it to
be a trespasser, and called the police. Deputy Walter
Cooley and Deputy Keith Newman were dispatched from
the Grant County Sheriff's Department. Jeff Link
informed the deputies that he had previously had
problems with trespassers, but that the tail lights could
have been his cousin, [Appellant]. He rode in a car with
the deputies into the field to investigate, where they
observed an individual heading toward the woods. He
again said it could be his cousin, and after getting closer
to the parked vehicle identified the “trespasser” to be
[Appellant].
Jeff Link had forgotten to inform the deputies that
his cousin was unable to speak properly [(due to
previously having a tracheotomy)], and he was unable to
exit the vehicle from the backseat to tell them so. The
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deputies, now knowing that the incident was nontrespassory in nature, continued toward [Appellant] and
illuminated the area with a spotlight. Deputy Cooley
observed that [Appellant] was carrying a shotgun, and
told him twice to drop the weapon. The second time he
identified himself and Deputy Newman as peace officers.
[Appellant] testified that he heard the instructions to drop
the weapon, but did not hear Deputy Cooley state they
were officers. At that point, [Appellant] raised his
shotgun and fired, hitting Deputy Newman. Deputy
Cooley returned fire, hitting [Appellant] in the legs.
According to [Appellant], he fired a warning shot
after being blinded by the spotlight, hearing voices that
were not familiar, and hearing what he thought was the
sound of a weapon being cocked. After he was shot and
lying on the ground under the beam of the spotlight, he
saw pants with stripes indicative of either a policeman’s
or a game warden’s uniform. He provided no further
resistance after realizing the men were officers, and
testified that he did not mean to shoot anyone. No further
fire was exchanged, and [Appellant] was later arrested at
the scene.
[Appellant] was indicted on a charge of FirstDegree Assault, a class B felony in violation of KRS
508.010(1). At trial, the jury returned a verdict of guilty
under KRS 508.010(1)(b)-finding specifically that
[Appellant] had acted wantonly-rather than KRS
508.010(1)(a), which requires intent. He was sentenced
to eighteen years in prison.
Commonwealth v. Link, 2007 WL 4139642, 1 - 2 (Ky. 2007).
Appellant appealed his case to the Court of Appeals, which reversed
the conviction. The Commonwealth appealed to the Kentucky Supreme Court
which reversed the Court of Appeals and affirmed the conviction. Later, Appellant
filed a pro se RCr 11.42 motion alleging issues of ineffective assistance of counsel.
Appellant was eventually appointed counsel and a supplemental brief was filed.
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Appellant raised five issues in total.2 The trial court denied Appellant’s motion
without a hearing. This appeal followed.
To prevail on a claim of ineffective assistance of counsel, Appellant
must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.
An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.
The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order
to constitute ineffective assistance under the Constitution.
(Internal citation omitted).
Id. at 691-692. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “The defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
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Only four issues were raised on appeal.
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reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Additionally, “a hearing is required 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, 743-744 (Ky. 1993).
Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. A fair assessment of
attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that,
under the circumstances, the challenged action “might be
considered sound trial strategy.” There are countless
ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not
defend a particular client in the same way. (Internal
citations omitted).
Strickland v. Washington, 466 U.S. at 689-690.
Appellant’s first argument is that he was denied effective assistance of
counsel when trial counsel failed to object to prejudicial statements made by the
Commonwealth during the closing arguments of the penalty phase. During this
phase of the trial, the Commonwealth Attorney said:
The deterrence from the standpoint that the sentence
that you return tells Greg Link what the community feels
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about this type of crime. It tells him what he can expect
when he commits this type of crime, but most of all your
verdict sends a message to the rest of the community and
to the state as far as that’s concerned as to what the
people in Grant County feel is appropriate when you
shoot another human being and cause them serious
physical injury and in this particular case a police officer
trying simply to do his job.
...
. . . Now, deterrence, message. In closing, I suggest to
you that you need to send a clear message as to how you
view the shooting of a police officer. . . . (Emphasis
added).
(Trial Tr. at 667 – 670.)
As Appellant correctly points out, “send a message” statements are
improper and Kentucky appellate courts are inclined to reverse convictions if these
statements are made. McMahan v. Commonwealth, 242 S.W.3d 348 (Ky. App.
2007); Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Appellant argues
that had his trial counsel objected to these statements, he could have appealed them
and gotten a new trial. We will note that had this issue been appealed and the
result been favorable to Appellant, at most he would have only been entitled to a
new penalty phase since these statements were made during that phase of the trial.
The Commonwealth argues that this issue should have been raised on
direct appeal and cannot be reargued as an ineffective assistance of counsel issue.
However, this is no longer the law. The recent case of Leonard v. Commonwealth,
279 S.W.3d 151 (Ky. 2009), states:
[t]he ineffective-assistance claim is collateral to the direct
error, as it is alleged against the trial attorney (e.g., for
failing to object to the improper evidence). Such a claim
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is one step removed from those that are properly raised,
even as palpable error, on direct appeal. While such an
ineffective-assistance claim is certainly related to the
direct error, it simply is not the same claim. And because
it is not the same claim, the appellate resolution of an
alleged direct error cannot serve as a procedural bar to a
related claim of ineffective assistance of counsel.
Id. at 158. We find this issue is ripe for an ineffective assistance of counsel
analysis. However, we believe that an evidentiary hearing is needed for it to be
properly examined. If it is found that Appellant’s counsel was ineffective,
Appellant will only be entitled to a new penalty phase.
We also would direct the trial court to the case of Commonwealth v.
Young, 212 S.W.3d 117 (Ky. 2006). In Young, an Appellant argued that had his
trial counsel objected to the trial court’s improper allocation of peremptory
challenges and had the trial court overruled the objection, he would have been
entitled to a new trial on appeal. The Kentucky Supreme Court stated that the
focus of an RCr 11.42 motion must be whether the defendant received a
fundamentally fair trial and not whether he would be successful on appeal. In the
case at hand, the trial court must examine how the lack of an objection to the
alleged prejudicial statements affected the outcome of the penalty phase and give
no weight as to what might have happened on appeal.
Appellant also argues that his trial counsel was ineffective for failing
to present mitigation evidence and witnesses during the penalty phase. The trial
court’s order held that Appellant did not “state any names of potential witnesses,
what their testimony would have been or how it would have effected [sic] the
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outcome of his sentence.” The trial court is correct. “In seeking post-conviction
relief, the movant must aver facts with sufficient specificity to generate a basis for
relief.” Lucas v. Commonwealth, 465 S.W.2d 267, 268 (Ky. 1971). While
Appellant now gives this Court the names of potential witnesses and their likely
testimony, this information was not given to the trial court. Therefore, this issue is
not preserved for our review.
Appellant also argues that his counsel was ineffective for not filing a
pretrial motion to suppress. Appellant claims that while Jeff Link consented to the
police being on his property, that consent was revoked once it was discovered
Appellant was the person on the property and not an unknown trespasser.
Appellant argues his counsel should have sought to suppress any evidence of
anything that happened after consent was revoked, i.e. the shooting itself.
Where defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation
of ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious and that there is
a reasonable probability that the verdict would have been
different absent the excludable evidence in order to
demonstrate actual prejudice.
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
The gravamen of a Fourth Amendment claim is that the
complainant’s legitimate expectation of privacy has been
violated by an illegal search or seizure. In order to
prevail, the complainant need prove only that the search
or seizure was illegal and that it violated his reasonable
expectation of privacy in the item or place at issue.
Id.
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In the case at hand, Appellant was found near a wooded area in a field
on the farm of Jeff Link. A person does not have a reasonable expectation of
privacy in an open field and “the government’s intrusion upon the open fields is
not one of those ‘unreasonable searches’ proscribed by the text of the Fourth
Amendment.” Oliver v. U.S., 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214
(1984). We find Appellant cannot prove that the search and seizure was illegal or
that it violated his reasonable expectation of privacy; therefore, Appellant’s
counsel was not ineffective for not filing a motion to suppress.
Appellant’s final argument is that he was denied effective assistance
of counsel as a result of the cumulative errors of trial counsel. He argues that
while each of the above arguments might not rise to the level of ineffective
assistance, if they are combined, the errors show that he was prejudiced and did not
receive a fair trial. We disagree. Only one of Appellant’s arguments has merit, but
a hearing is required to determine any actual error. There can be no cumulative
effect when the other instances of alleged error have no merit.
We find that a hearing is necessary to determine the prejudicial effect
of the “send a message” statements made by the Commonwealth Attorney on the
penalty phase of the trial. We therefore reverse and remand this case to the trial
court to examine this issue only.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Still
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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