WELLS (RICHARD) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 15, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000618-MR
RICHARD WELLS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 06-CR-00544
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON AND KELLER, JUDGES; ISAAC,1 SENIOR JUDGE.
KELLER, JUDGE: Richard Lee Wells (Wells) appeals from the circuit court's
denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion. On
appeal, Wells argues that his trial counsel was ineffective for failing to object to
alleged hearsay testimony; for failing to object to alleged Kentucky Rule of
Evidence (KRE) 404(b) evidence; for failing to object to an ex parte
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
communication between the court and the jury; and for failing to object to
questioning by the Commonwealth of his wife about sex toys. Wells also argues
that the trial court should have granted his RCr 11.42 motion because of the
cumulative impact of counsel's errors. For the following reasons, we affirm.
FACTS
We take our recitation of the underlying facts from the Opinion of the
Supreme Court of Kentucky affirming Wells's conviction.
When T.M. was very young - less than eight years old she and her sister J.M. lived with their father. They
would frequently visit their grandmother and stepgrandfather – [Wells] - on weekends. Their
grandmother would regularly be absent from the home
for work, and the girls would be left in the care of
[Wells]. T.M. testified that when her grandmother was
gone, she would often sleep upstairs in her grandmother's
bed with [Wells]. When T.M. was in bed with [Wells],
J.M. would sleep on the couch downstairs. Likewise, if
J.M. slept in the bed with [Wells], T.M [sic] would sleep
on the couch downstairs.
When T.M. slept in the bed with [Wells], he would touch
her breasts and vaginal area. [Wells] also put a vibrator
inside T.M.'s vagina. [Wells] raped T.M. on more than
one occasion. When T.M. was eight or nine years old,
the abuse stopped because her grandmother was in an
automobile accident and was no longer absent from the
home. T.M. never told anyone about the abuse except for
a few close friends whom she told to keep the
information secret. T.M.'s father found out about the
abuse when he found a letter that T.M. had written to her
boyfriend. At trial, T.M. - then fifteen years old identified this letter and read a portion of it, including a
claim that [Wells] had raped her. T.M. further testified
that she had never discussed the letter or the abuse with
her sister J.M.
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J.M. also testified at trial. J.M. stated that she was
around seven years old when she began sleeping in the
bed with [Wells]. She testified that [Wells] would touch
her with his hands and his penis. [Wells] would also put
his fingers inside her vagina. J.M. further stated that
[Wells] raped her, and that it caused her severe pain.
J.M. related that she was forced to perform oral sex on
[Wells], and that [Wells] would perform oral sex on her.
J.M. also testified that [Wells] had pornographic pictures
of her on his computer. J.M. recalled that the abuse
occurred over a two-to-three-year period and that the
abuse would always occur while her grandmother was at
work. She was around ten years old when the abuse
ended. J.M. never talked to her sister about the abuse.
On the day that her father discovered T.M.'s letter, he
brought the letter into J.M.'s room. When asked if the
same thing had happened to her, J.M. began crying and
told her father that [Wells] had abused her.
A medical expert and pediatrician, Dr. Lisa Pfitzer,
testified at trial for the Commonwealth. Pfitzer testified
that she examined J.M. and saw tearing on an area of
J.M.'s hymen that had healed. She further testified that it
was consistent with J.M.'s statement that she experienced
"major pain" during penetration, and with J.M.'s
statements that she was repeatedly raped from the ages of
seven to nine.
[Wells] took the stand at trial, denying all allegations of
abuse. He testified that he was strict with the girls and
speculated that J.M. and T.M. were mad at him when
they were teenagers. T.M.'s friends, C.R. and N.J., also
testified at trial. C.R. testified that T.M. made her aware
of the sexual assault some three years prior, and that
T.M. had asked her not to tell anyone. N.J. testified that
she first learned about the allegations by T.M. in a health
class at school. N.J. recounted that T.M. looked very
upset, like she was about to cry, during a presentation
about rape in their school health class. T.M. disclosed to
N.J. that [Wells] had sexually assaulted her.
[Wells] was indicted for one count of Rape in the First
Degree for J.M.; one count of Rape in the First Degree
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for T.M.; two counts of Sodomy in the First Degree for
J.M.; two counts of Sexual Abuse in the First Degree for
J.M.; and one count of Possession of a Matter Portraying
a Sexual Performance by a Minor. In the indictment,
only count five (Rape in the First Degree) named T.M. as
a victim. Apparently, this was a typographical error and
the Commonwealth moved to amend count six of the
indictment (Sexual Abuse in the First Degree) to include
T.M. as a victim. The court denied the Commonwealth's
motion to amend the indictment.
At trial, [Wells's] counsel discovered a piece of paper
signed by the judge after the jury went back to deliberate.
The paper contained a question from a juror about a
verdict form that was a duplicate of another form. The
judge indicated that he had mistakenly sent back two
copies of verdict form six. Defense counsel indicated that
he did not believe the question was ever presented in
open court, to which the trial judge replied: "They sent
out two verdict forms and one was obviously a
duplication of the other, so I just sent them back and told
them that I had mistakenly sent back two, and to
disregard the verdict form six which included [T.M.]."
Defense counsel then requested that the court mark the
piece of paper for the record. However, defense counsel
did not object to the judge's contact with the jury.
[Wells] was convicted of two counts of Rape in the First
Degree, two counts of Sodomy in the First Degree, and
two counts of Sexual Abuse in the First Degree for illegal
sexual contact with his step-grandchildren. [Wells] was
sentenced to 20 years on each of the rape charges, 20
years on each of the sodomy charges, and 5 years on each
of the sexual abuse charges, to run concurrently for a
total of 20 years. [Wells] now appeals as a matter of
right pursuant to Ky. Const. § 110(2) (b). [Wells] argues
that the Jefferson Circuit Court erred by: (1) engaging in
a "question and answer" session with the jury off the
record; (2) improperly admitting hearsay evidence; and
(3) allowing the Commonwealth to introduce Kentucky
Rule of Evidence (KRE) 404(b) evidence of prior bad
acts without giving notice to [Wells].
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Wells v. Commonwealth, 2009 WL 160372, at *1-2 (Ky. January 22, 2009).
The Supreme Court held that: (1) the ex parte communication between the
judge and jury was improper; (2) the trial court improperly admitted hearsay
evidence; and (3) the Commonwealth improperly introduced evidence of prior bad
acts without giving notice to Wells. However, because Wells had not properly
preserved these issues for review, the Supreme Court also held that he was
required to establish that the errors were palpable. The Supreme Court determined
that Wells had not met that burden and affirmed his conviction.
Subsequently, Wells filed an RCr 11.42 motion arguing, in pertinent part,
that he had received ineffective assistance of counsel because of counsel's failure
to object and preserve the identified errors for review. Without holding a hearing,
the trial court denied that motion. It is from the court's order denying his motion
that Wells appeals.
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STANDARD OF REVIEW
In considering ineffective assistance of counsel, the reviewing court must
focus on the totality of evidence before the judge or jury and assess the overall
performance of counsel throughout the case in order to determine whether the
identified acts or omissions overcome the presumption that counsel rendered
reasonable professional assistance. See United States v. Morrow, 977 F.2d 222,
230 (6th Cir. 1992); Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574,
2586, 91 L. Ed. 2d 305 (1986). With this standard in mind, we address the issues
raised by Wells on appeal.
ANALYSIS
A convicted defendant's claim that counsel's assistance
was so defective as to require reversal of a conviction . . .
has two components. 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, 2064, 80 L. Ed. 2d
674 (1984).
As noted by the parties, the issues Wells raised on direct appeal are
intertwined with the issues he raises here. The Supreme Court addressed those
issues, holding that errors occurred, but that the errors were not palpable.
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When an appellate court engages in a palpable error
review, its focus is on what happened and whether the
defect is so manifest, fundamental and unambiguous that
it threatens the integrity of the judicial process. However,
on collateral attack, when claims of ineffective assistance
of counsel are before the court, the inquiry is broader. In
that circumstance, the inquiry is not only upon what
happened, but why it happened, and whether it was a
result of trial strategy, the negligence or indifference of
counsel, or any other factor that would shed light upon
the severity of the defect and why there was no objection
at trial. Thus, a palpable error claim imposes a more
stringent standard and a narrower focus than does an
ineffective assistance claim.
Leonard v. Commonwealth, 279 S.W.3d 151, 157-158 (Ky. 2009) (citing Martin v.
Commonwealth, 207 S.W.3d 1, 4-5 (Ky. 2006)).
The Supreme Court previously determined that the trial court erred when it
admitted hearsay testimony from two of T.M.'s friends; when it admitted evidence
of prior bad acts; and when it engaged in ex parte communication with the jury.
The Supreme Court further held that, because counsel failed to object, the errors
were not properly preserved for review. Therefore, counsel's performance was
deficient. However, deficient is not synonymous with ineffective. Having
reviewed the record as a whole, and for the reasons set forth below, we hold that
counsel's assistance was not ineffective.
1. Ex Parte Communication
After beginning deliberations, the jury asked the court whether it intended to
submit two copies of verdict form number six, one for J.M. and one for T.M. The
court advised the jury that it had mistakenly submitted two copies of verdict form
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number six to the jury and that the jury should disregard verdict form number six
as applied to T.M. The parties agree that the court did not advise them that the jury
had asked a question regarding verdict form six or that the court had responded to
that question. When counsel for Wells discovered the question and answer after
the jury had been dismissed, he asked the court to mark the question and response
for the record but did not raise any objection.
On direct appeal, the Supreme Court held that the trial court committed error
by reviewing and responding to the jury's question outside the presence of the
parties and counsel. However, because counsel had not preserved the error, the
Court applied the palpable error standard and affirmed Wells's conviction.
Wells now argues that his counsel was ineffective because he did not object
to this ex parte communication. As noted by the Supreme Court in Wells's direct
appeal, not all ex parte communications between the court and jury "impugn the
fundamental fairness of an otherwise constitutionally acceptable trial." Welch v.
Commonwealth, 235 S.W.3d 555, 558 (Ky. 2007). Other than pointing out the
error, Wells has not set forth with any specificity what impact, if any, that error
had on the outcome in his trial. Furthermore, the trial court's communication with
the jury herein was not substantive in nature but clerical. Therefore, although it
was error for counsel to fail to object, that error was not so serious as to deprive
Wells of a fair trial and did not amount to ineffective assistance of counsel.
2. Failure to Object to Hearsay
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T.M. testified that she had told several friends three years earlier that Wells
had sexually abused her. Two of T.M.'s friends, C.R. and N.J., testified at trial.
C.R. testified that T.M. told her about the alleged sexual abuse three years earlier,
and Wells's counsel objected. The court sustained the objection and admonished
the jury to disregard C.R.'s statement. The Commonwealth then asked C.R. and
N.J. when they first learned of the sexual abuse allegations. Both girls stated that
they learned of the abuse three years earlier. Wells's counsel did not object to this
line of questioning or to the witnesses' responses.
The Supreme Court determined that the testimony by C.R. and N.J. about
when they learned of the sexual abuse was inadmissible hearsay. However,
because Wells's counsel had not preserved the issue, the Court applied the palpable
error standard of review and affirmed. In doing so, the Court noted that the
testimony by C.R. and N.J. did not contribute to the verdict because it was simply
cumulative of T.M.'s testimony.
Having reviewed the record, we agree that counsel for Wells should have
objected to the introduction of this evidence and his failure to do so was error.
However, we also agree with the Supreme Court's assessment that the testimony
from C.R. and N.J. did not contribute to the verdict. Therefore, counsel's failure to
object was not so serious an error as to deprive Wells of a fair trial and did not
amount to ineffective assistance of counsel.
3. 404(b) Evidence
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KRE 404(b) provides that, under certain circumstances, evidence of other
crimes, wrongs, or acts may be admissible. However, before the Commonwealth
can introduce such evidence in a criminal matter, it must give reasonable pre-trial
notice to the defense. If the Commonwealth fails to give that notice, the court may
exclude the evidence. KRE 404(c).
The indictment charged Wells with raping both T.M. and J.M. and with
sexual abuse of J.M. However, it did not charge Wells with sexual abuse of T.M.
Immediately prior to trial, the Commonwealth made a motion to amend the
indictment to add sexual abuse charges of T.M. The court denied the
Commonwealth's motion.
The Commonwealth called T.M. as its first witness. In response to
questioning by the Commonwealth, T.M. testified about inappropriate touching by
Wells. After T.M. had testified about the inappropriate touching at some length,
counsel for Wells objected arguing that, because the Commonwealth had not
charged Wells with sexual abuse of T.M., her testimony amounted to evidence of
prior bad acts. Counsel for Wells noted that the Commonwealth had not provided
the notice required by KRE 404(c) and that any such testimony was inappropriate.
The court sustained Wells's objection; however, counsel for Wells did not ask the
court to admonish the jury regarding testimony T.M. had already given.
On direct appeal, the Supreme Court affirmed Wells's conviction, noting that
the issue had not been preserved for review, that Wells had not requested palpable
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error review, and that there had been "no substantial miscarriage of justice." Wells,
2009 WL 160372, at *4.
In this appeal, Wells argues that counsel was ineffective because of his
failure to timely object to T.M.'s testimony about sexual abuse. We agree that
counsel should have objected to T.M.'s testimony. However, in light of all of the
evidence presented at trial, including T.J.'s detailed testimony regarding Wells's
use of the vibrator, we cannot say that counsel's failure to object was so serious as
to deprive Wells of a fair trial.
4. Cumulative Impact of Errors
Wells argues that because of the cumulative impact of the preceding errors
the results of the trial were unreliable. We disagree. Taking into consideration the
evidence as a whole, in particular the testimony of T.M. and J.M., we hold that
counsel's minor errors, even when viewed cumulatively, did not act to deprive
Wells of a fair trial.
5. Testimony by Evelyn Wells
Finally, we note that Wells argues in his brief that the Commonwealth
improperly inquired into his wife's "sexual and marital privacy." On direct
examination, Evelyn Wells admitted that the couple owned several sex toys,
including a white vibrator. However, she testified that the couple did not purchase
the sex toys until a year after any abuse stopped. On cross-examination, the
Commonwealth asked several questions regarding the timing of the purchase of the
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sex toys. Wells now complains that the Commonwealth's cross-examination was
improper.
We note that the propriety of the court's admission of this evidence should
have been raised on direct appeal and cannot be properly raised in an RCr 11.42
proceeding. See Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1988),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009). Additionally, we note that the Commonwealth's cross-examination of
Evelyn was limited to issues Wells raised on direct examination and was proper.
Therefore, even if Wells had raised this issue on direct appeal, he would not have
been successful.
CONCLUSION
Although counsel for Wells made mistakes, those mistakes were not so
significant, singly or cumulatively, to deprive him of a fair trial. Therefore, we
affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Wells, pro se
LaGrange, Kentucky
Jack Conway,
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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