MICHAEL ANDREW NELSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000499-MR
MICHAEL ANDREW NELSON
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 97-CR-00466
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BARBER, JUDGE:
Michael Andrew Nelson (“Nelson”) appeals pro se
from an order of the Fayette Circuit Court denying his Kentucky
Rules of Criminal Procedure (RCr) 11.42 motion to alter, amend or
vacate his conviction for first-degree rape, first-degree sodomy,
and first-degree kidnapping.
After reviewing the record, we
affirm.
On March 22, 1997, Nelson, Stanley Wilson, and Wilson’s
girlfriend, L.S., went to Nelson’s apartment after spending
several hours in a Lexington bar.
After Nelson and Wilson left
the apartment to purchase more alcohol, L.S. fell asleep.
Wilson
and Nelson got into an argument, and only Nelson returned to his
apartment.
Early the next morning, L.S. was seen running out of
the apartment naked from the waist down, screaming in a highly
excited state, and being pursued by Nelson.
When he placed L.S.
in a choke hold, several neighbors came to her aid.
fled the scene.
Nelson then
L.S. told the police that Nelson had raped her
twice, sodomized her, strangled her, and forcibly prevented her
from leaving the apartment.
When Nelson was apprehended, he made
a statement to the police claiming the pair had engaged in
consensual sex.
In April 1997, the Fayette County Grand Jury indicted
Nelson on two counts of first-degree rape (KRS 510.040), one
count of first-degree sodomy (KRS 510.070), and one count of
kidnapping (KRS 509.040).
Following the trial, the jury found
him guilty on all four counts and recommended sentences of
fifteen years on each count to run consecutively for a total
sentence of sixty years.
On September 26, 1997, the trial court
sentenced Nelson to serve sixty years in prison consistent with
the jury’s recommendation.
In September 1998, the Kentucky
Supreme Court affirmed the conviction on direct appeal.
Nelson
v. Commonwealth, 1997-SC-000834-MR (unpublished opinion rendered
September 3, 1998).
On August 2, 1999, Nelson filed an RCr 11.42 motion
alleging errors by the trial court and ineffective assistance of
trial counsel.
He presented five grounds for relief: (1) the
trial court’s failure to grant him a directed verdict, (2) an
erroneous kidnapping instruction, (3) counsel’s failure to
request a mistrial, (4) counsel’s failure to call him as a
witness, and (5) cumulative error.
Following a response by the
Commonwealth, the trial court summarily denied the motion without
a hearing.
This appeal followed.
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Nelson raised the same issues on appeal that he raised
in the circuit court.
First, he contends the trial court erred
by not granting the defense motion for directed verdict because
there was insufficient evidence to support a verdict.
Second, he
claims the trial court’s jury instruction on kidnapping was
erroneous for failing to name the conduct or felony constituting
the kidnapping and failing to include the element of intent.
These two issues fail on both procedural and
substantive grounds.
RCr 11.42 is limited to issues which were
not and could not be raised on direct appeal.
Sanborn v.
Commonwealth, Ky., 975 S.W.2d 905, 908-09 (1998), cert. denied,
526 U.S. 1025, 119 S.Ct. 1266, 143 L.Ed.2d 361 (1999); Baze v.
Commonwealth, Ky., 23 S.W.2d 619, 626 (2000), cert. denied,
______ U.S. ______, 121 S.Ct. 1109, 148 L.Ed.2d 979 (2001);
Haight v. Commonwealth, Ky., 41 S.W.3d 436, 443 (2001).
More
specificially, sufficiency of the evidence cannot be raised in a
post-judgment motion under RCr 11.42.
Brock v. Commonwealth,
Ky., 479 S.W.2d 644, 645 (1972); Bartley v. Commonwealth, Ky.,
463 S.W.2d 321, 322 (1971).
Since both of these issues could and
should have been raised in the direct appeal, they are not
reviewable in an RCr 11.42 motion.
Moreover, a review of the record indicates that these
complaints are without substantive merit.
The victim’s testimony
alone provided sufficient evidence to withstand a directed
verdict motion.
The kidnapping instruction does contain all the
necessary elements, including intent, to support that offense.
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Nelson argues his attorney rendered ineffective
assistance for failing to request a mistrial and failing to call
him as a witness to testify on his own behalf.
In order to
establish ineffective assistance of counsel, a person must
satisfy a two-part test showing both that counsel’s performance
was deficient and that the deficiency resulted in actual
prejudice resulting in a proceeding that was fundamentally
unfair.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702
S.W.2d 37 (1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92
L.Ed.2d 724 (1986); Foley v. Commonwealth, Ky., 17 S.W.3d 878,
884 (2000), cert. denied , _____ U.S. _____ , 121 S.Ct. 663, 148
L.Ed.2d 565 (2000).
The burden is on the defendant to overcome a
strong presumption that counsel’s assistance was constitutionally
sufficient or that under the circumstances counsel’s action might
be considered “trial strategy.”
Strickland, 466 U.S. at 689,
104 S.Ct. at 2065; Moore v. Commonwealth, Ky., 983 S.W.2d 479,
482 (1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145
L.Ed.2d 93 (1999); Sanborn v. Commonwealth, 975 S.W.2d at 912.
court must be highly deferential in reviewing defense counsel’s
performance and should avoid second-guessing counsel’s actions
based on hindsight.
Harper, 978 S.W.2d 311, 315 (1998), cert.
denied, 526 U.S. 1056, 119 S.Ct. 1367, 143 L.Ed.2d 537 (1999);
Russell, Ky. App., 992 S.W.2d 871, 875 (1999).
In order to
establish actual prejudice, a defendant must show a reasonable
probability that the outcome of the proceeding would have been
different.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068;
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A
Bowling v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert.
denied, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999).
A
reasonable probability is a probability sufficient to undermine
confidence in the outcome of the proceeding considering the
totality of the evidence before the jury.
at 964-95, 104 S.Ct. at 2068-69.
Strickland, 466 U.S.
See also Moore, 983 S.W.2d at
484. 488; Foley, 17 S.W.3d at 884.
During L.S.’s direct examination, she stated that when
she ran from Nelson’s apartment, a neighbor helped her and
notified the police.
She testified that when she described the
perpetrator to the police, neighbors stated they knew who she was
describing because he had played with their children.
At that
point, defense counsel voiced an objection based on hearsay,
which the court granted, thereby preventing L.S. from testifying
further about the neighbor’s statements.
Nelson argues that
counsel rendered ineffective assistance for failure to request a
mistrial based on this hearsay testimony.
A trial court may declare a mistrial based on a
manifest necessity.
Miller v. Commonwealth, Ky., 925 S.W.2d 449,
453 (1996); Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678
(1985), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d
678 (1986).
Manifest necessity has been defined as an “urgent or
real necessity” sufficient to so seriously prejudice a party that
he is unable to obtain a fair trial.
See, e.g., Commonwealth v.
Scott, Ky., 12 S.W.3d 682 (2000); United States v. Phibbs, 999
F.2d 1053 (6th Cir. 1993); Grundy v. Commonwealth, Ky., 25 S.W.3d
76 (2000).
Declaration of a mistrial is “an extreme remedy that
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should be resorted to only when there is a fundamental defect in
the proceedings which will result in manifest injustice.”
Gould
v. Charlton Co., Inc., 929 S.W.2d 734, 738 (1996).
See also
Gosser v. Commonwealth, Ky., 31 S.W.3d 897 (2000).
A trial court
has discretion in deciding whether a particular situation
constitutes sufficient manifest necessity to justify declaring a
mistrial.
Scott, supra; Gosser, supra; Miller, supra.
In the current case, defense counsel objected to L.S.’s
testimony concerning statements made by Nelson’s neighbors but
chose not to move for a mistrial.1
The trial court sustained the
hearsay objection, and L.S. made no further statements on this
subject.
Clearly, the testimony was a single, isolated incident
involving an innocuous piece of information.
The neighbors who
made the statements testified at trial concerning their
familiarity with Nelson from his presence in the neighborhood.
Defense counsel’s failure to request a mistrial was reasonable in
light of the testimony’s lack of prejudice to the defendant or
the existence of a manifest necessity.
Nelson has not shown
either deficient performance by counsel or actual prejudice in
that a mistrial motion likely would have been granted.
Nelson also maintains that defense counsel rendered
ineffective assistance of by not calling him as a witness.
Nelson states that because the defense theory was that he and
L.S. had had consensual sex, it was necessary for him to testify
on his version of the incident to counter act L.S.’s testimony.
1
The Attorney General in his brief erroneously states that
his testimony does not exit.
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Just prior to the close of the evidence, defense
counsel informed the trial court that Nelson would not be called
to testify and requested the court to question Nelson on the
issue.
The court asked Nelson if he knew he had a right to
testify and that if he did not testify the jury would be
instructed not use that against him.
Nelson responded
affirmatively and indicated that he did not desire to testify.
He also stated that he was not being forced by anyone or promised
anything to persuade him not to take the stand.
The court made a
finding on the record that Nelson had voluntarily, knowingly, and
intelligently waived his right to testify.
Nelson has presented
nothing on appeal to undermine the validity of his waiver of his
right to testify.
In addition, Nelson’s statement to the police
containing his version of the facts and his defense of consent
was admitted into evidence.
Whether to call a defendant to
testify, especially one with Nelson’s extensive criminal history,
is always a difficult decision of trial strategy for an attorney.
Given Nelson’s waiver and the facts of this case, we believe he
has demonstrated neither deficient performance nor actual
prejudice with respect to counsel’s failure to call him to
testify.
Finally, because Nelson has not established any
individual constitutional errors, his claim of cumulative error
also fails.
See, e.g., Sanborn, 975 S.W.2d at 913, 914 (no
cumulative effect where individual claims of ineffective
assistance of counsel are unconvincing); Sholler v. Commonwealth,
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Ky., 969 S.W.2d 706 (1998).
The trial court properly denied the
RCr 11.42 motion without a hearing because Nelson’s claims were
refuted on the record.
See Sanborn, supra; Haight, 41 S.W.3d at
442; Baze, 23 S.W.3d at 622.
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Andrew Nelson, Pro Se
Eddyville, Kentucky
Albert B. Chandler III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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