HUDSON (EMORY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002037-MR
EMORY HUDSON
v.
APPELLANT
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM E. LANE, JUDGE
ACTION NO. 04-CR-00174
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, NICKELL AND STUMBO, JUDGES.
NICKELL, JUDGE: Following a one-day jury trial, Emory Hudson was convicted
of operating a motor vehicle while under the influence of alcohol, fourth offense,1
and being a persistent felony offender in the first degree2 (PFO I) for which he was
sentenced to an enhanced term of twenty years. His conviction was affirmed on
1
Kentucky Revised Statutes (KRS) 189A.010(5)(d).
2
KRS 532.080(3).
direct appeal3 to the Supreme Court of Kentucky. Hudson v Commonwealth, 202
S.W.3d 17 (Ky. 2006). In October of 2009, Hudson, acting pro se, filed an RCr4
11.42 motion alleging trial counsel was ineffective in failing to (1) timely move for
a pre-trial continuance and (2) interview and subpoena witnesses who could have
exonerated him. The Montgomery Circuit Court denied the post-conviction
motion without convening a requested evidentiary hearing stating:
[t]here is no palpable errors (sic) or any proffered
evidence to show failure to investigate or failure to obtain
(sic) continuance or prejudice in this case at all. There
has been nothing to even indicate that they had evidence
supporting any of the allegations in his motion for CR
(sic) 11.42. MOTION Denied.
It is from the denial of post-conviction relief that Hudson appeals. Having
reviewed the briefs, the record and the law, we affirm.
FACTS
On June 21, 2004, Hudson was drinking beer and socializing with
friends at the home of his aunt, Delores Muncie. When the beer ran dry, Hudson
claims he asked Mark Miller to drive him to his grandmother’s apartment so he
could ask her for money to buy more beer. Miller supposedly agreed to be the
chauffeur, but since his car was blocked in, they decided to take Pam Moore’s
3
Issues addressed on direct appeal were whether Hudson was entitled to an instruction on
alcohol intoxication and whether the trial court abused its discretion in denying defense
counsel’s motion for a pre-trial continuance.
4
Kentucky Rules of Criminal Procedure.
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Dodge Intrepid. Moore is Hudson’s longtime girlfriend and the mother of his
children.
Around 3:25 p.m. that afternoon, Mount Sterling (Kentucky) Police
Officer Greg Ball was driving to work in a marked cruiser when the Toyota Camry
in front of him left the roadway to avoid being hit by a white Dodge Intrepid that
had crossed the centerline. Officer Ball also left the roadway to avoid being hit,
immediately turned his cruiser around, activated his lights, and pursued the
Intrepid which he observed turn into an apartment complex parking lot. After
losing sight of the Intrepid for two to three seconds, Officer Ball saw the Intrepid
pull into a parking space at the apartment complex and he pulled in behind the
Intrepid to block its movement. As Officer Ball approached the Intrepid on foot he
saw Hudson, the sole occupant of the vehicle, sitting in the driver’s seat with the
motor running; a forty-ounce bottle of Bud Light was in the floorboard. Officer
Ball twice asked Hudson, whom he knew from prior encounters, to turn down the
blaring radio. When Hudson finally reached to adjust the radio’s volume, he fell
over into the passenger seat.
Hudson appeared to be extremely intoxicated. His eyes were
bloodshot, his speech was slurred, and Officer Ball had to help him exit the car.
Hudson was very unsteady on his feet and admitted consuming three to four fortyounce Bud Lights that day. Hudson said he had come to the complex to borrow
money from his grandmother. Officer Ball testified Hudson would not have had
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time to exit the Intrepid, go to his grandmother’s apartment, and return to the
Intrepid prior to Officer Ball approaching the Intrepid on foot.
Due to Hudson’s condition, Officer Ball testified he could not
administer a field sobriety test and instead transported Hudson to the hospital
where a blood sample was drawn. Testing of the sample showed a blood alcohol
concentration of .30 grams per 100 milliliters, nearly four times the legal limit.
By order entered on September 27, 2004, trial was set for January 18,
2005, with a pre-trial conference set for November 23, 2004. The order specified
that after January 4, 2005, no continuance would be granted except for “good cause
shown.” Without submitting the affidavit required by CR5 9.04, “showing the
materiality of the evidence expected to be obtained, and that due diligence has
been used to obtain it[,]” defense counsel moved for a continuance of at least two
months on January 5, 2005, because “counsel needs additional time to prepare for
the defense to be reasonably prepared to effectively represent his client[.]” One of
the reasons given for counsel’s lack of preparation was that he had spent several
days during the recent holidays “with his immediate family and his father who is
very ill and hospitalized.” Counsel further stated he was “in the process of
requesting additional expert(s) based upon the evidence in this case; as well as
pursuing suppression issues prior to trial.” On January 11, 2005, the trial court
denied the motion for continuance.
5
Kentucky Rules of Civil Procedure.
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Trial was convened on January 18, 2005. The Commonwealth’s case
consisted of testimony from Officer Ball, the phlebotomist who drew the blood
sample from Hudson, and the crime lab analyst who tested the blood sample.
Hudson’s defense was that he was a passenger in the Intrepid, not the
driver. According to Hudson, the car was driven by Mark Miller. When asked by
the prosecutor whether Miller would be called as a witness, Hudson testified he
had been unable to locate Miller. As a result, the defense was built on only three
witnesses. Raymond Nester testified Miller and Hudson had been at the Muncie
home but Nester did not see them leave because Nester was inside, half-asleep on
the couch. The second witness for the defense was eighty-four-year-old Stella
Hudson, Hudson’s grandmother and a resident of the apartment complex where the
Intrepid came to rest. She testified Hudson came to her unit, used the restroom and
then left saying he would be right back. When he did not return, she looked out
and saw an officer putting Hudson inside a police car. Mrs. Hudson admitted
having poor eyesight but described her grandson that day as not having slurred
speech, being steady on his feet and not smelling of alcohol.
Hudson was the final witness to testify for the defense. He stated he
had asked Miller to take him to his grandmother’s apartment to borrow money.
Miller agreed to drive Hudson in Moore’s car. Upon arriving at the apartment
complex, Hudson went inside his grandmother’s unit and upon returning to the
Intrepid, Miller was gone. Hudson sat in the driver’s seat and began looking for a
lit cigarette Miller had dropped between the seats during the drive. Moments later,
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Hudson noticed Officer Ball behind the car and thereafter he was placed under
arrest.
LEGAL ANALYSIS
In an RCr 11.42 proceeding, the movant has the burden of
establishing convincingly that he was deprived of a 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). 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. 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 an ineffective assistance of counsel claim, 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 to determine
whether the alleged acts or omissions overcome the presumption that counsel
rendered reasonable professional assistance. Strickland; see also Kimmelman v.
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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.
Hudson claims counsel was ineffective in failing to interview and
subpoena witnesses who could verify his innocence. Specifically, he claims
counsel made no effort to locate and interview Miller or Moore, both of whom
could supposedly verify that Miller was driving the Dodge Intrepid when it left the
Muncie home with Hudson as a passenger. Additionally, Hudson alleged that
counsel made no effort to locate others at the Muncie home “who may have seen
Mark Miller driving the vehicle when it left with [Hudson] in the passenger’s
seat.” Hudson’s argument has two significant problems. First, it is rank
speculation that Miller or Moore would have corroborated Hudson’s version of the
events, especially since Hudson did not know Miller’s whereabouts and had not
confirmed his expected testimony. Second, it matters not that Miller may have
been driving the Intrepid when it left the Muncie home; the critical issue is whether
he was driving the vehicle when it crossed the centerline and ultimately came to
rest at the apartment complex following the police pursuit. Officer Ball was the
only eyewitness to this event and according to his testimony, Hudson was the sole
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occupant of the Intrepid when it stopped in a parking space at the apartment
complex. Thus, even if Miller had driven the Intrepid at some point that day,
Hudson was the driver at the only point that mattered. Therefore, based upon the
totality of the evidence, the trial court properly denied the post-conviction motion
on the alleged lack of investigation. Strickland.
Next, Hudson argues counsel was ineffective in failing to timely file a
motion for a pre-trial continuance. Hudson alleges counsel was unprepared for
trial and had he moved for a continuance before the January 4, 2005, deadline, it
likely would have been granted and counsel could have developed testimony from
Miller, Moore and others at the Muncie home to shift the blame from Hudson to
Miller. However, according to counsel’s motion, the requested continuance was
needed to pursue expert witness testimony and suppression issues, neither of which
pertained to the witnesses Hudson speculates could have strengthened the defense.
Based upon our review of the trial, counsel appeared familiar with the facts, he
actively participated in a suppression hearing, filed appropriate motions,
announced “ready” for trial, called two defense witnesses in addition to Hudson,
and ably cross-examined the Commonwealth’s witnesses. Thus, it is unlikely that
more time would have enabled the defense to snatch victory from defeat and we
are unwilling to say counsel was “manifestly ineffective.” Morrow.
While an attorney can always do more investigation, reversal is
required only when the lack of investigation causes a different result. Based upon
the totality of the evidence, and especially the strength of Officer Ball’s testimony,
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we cannot say the verdict would have been any different with testimony from more
defense witnesses.
Finally, Hudson argues the trial court erred in denying his RCr 11.42
motion without an evidentiary hearing. We disagree. When the 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.” Lewis v. Commonwealth, 411
S.W.2d 321, 322 (Ky. 1967). “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 by Leonard v. Commonwealth, 279 S.W.3d
151 (Ky. 2009). All of Hudson’s claims were clearly refuted by the record.
Therefore, he was not entitled to an evidentiary hearing.
The order of the Montgomery Circuit Court denying Hudson’s motion
for post-conviction relief pursuant to RCr 11.42 is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Brooke Buchanan
Assistant Public Advocate
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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