DEWAYNE NAPIER v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 21, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: JULY 12, 2002; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001877-MR
DEWAYNE NAPIER
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
INDICTMENT NO. 98-CR-00164
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON and McANULTY, Judges.
HUDDLESTON, Judge:
Dewayne Napier appeals from a Bell Circuit
Court order that denied his Kentucky Rules of Criminal Procedure
(RCr) 11.42 motion seeking to vacate his conviction and 30-year
sentence for murder following a jury trial.
In September 1998, Dewayne and Eva Napier were having
marital problems that resulted in several incidents of physical
abuse.
On September 16, 1998, Dewayne physically assaulted Eva
and their fifteen year old son, Samuel, overheard Dewayne
threaten to kill her.
Early the next morning, Eva left the
couple’s residence, but she returned a few days later.
On the
afternoon of September 21, Pauletta Webb, who was the girlfriend
of Eva’s brother, received a telephone call but no one was on the
line.
She was able to trace the call as having originated from
Eva’s residence.
When Pauletta then attempted to telephone Eva,
Dewayne answered and stated that Eva was not there, but Pauletta
recognized Eva’s voice in the background.
A few minutes later,
Eva telephoned Pauletta, who heard Dewayne telling Eva that “she
was not going anywhere.”
Out of concern for Eva’s welfare,
Pauletta decided to contact the police and Kentucky State Police
Trooper Kevin Knuckles was dispatched to the Napier’s residence.
Upon his arrival at approximately 5:00 p.m., Trooper
Knuckles heard four gunshots from inside the house.
When he
ordered the occupants to come out of the house, Dewayne exited
from the front door appearing calm but slightly intoxicated.
He
denied that there had been any gunshots inside the house or that
anyone had been shot, but he did state that his wife was inside
and that they had been arguing.
When Trooper Knuckles entered
the residence, he observed Eva lying wounded, but conscious, next
to the bed in a front bedroom in a curled up position with her
head against the wall.
In response to Trooper Knuckles’ inquiry,
Eva stated that Dewayne had shot her “because he was jealous.”
Eva initially was taken to the Pineville Community Hospital, but
was transferred by helicopter to the University of Tennessee
Medical Center in Knoxville, where she died in the operating room
at approximately 8:30 p.m. the same day.
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On September 30, 1998, the Bell County Grand Jury
indicted Napier on one count of murder1 and one count of
possession of a handgun by a convicted felon.2
During pretrial
discovery, the Commonwealth supplied defense counsel with
numerous documents including police reports, medical records,
coroner reports, forensic gunshot residue reports, fingerprint
reports and toxicology reports.
During the murder trial, the
witnesses included several police officers, several expert
witnesses for the Commonwealth, Pauletta Webb, Samuel Napier,
Dewayne Napier, and two friends of the couple who had been at the
Napier residence the week leading up to the shooting.
The
Commonwealth contended that Napier intentionally shot his wife
out of jealousy.
Napier testified that the gun belonged to Eva
and she was shot accidentally when she attempted to take the gun
away from him after he found it in her purse.
The jury returned
a verdict of guilty of intentional murder and recommended a
sentence of 30 years.
On June 7, 1999, the circuit court
sentenced Napier to serve 30 years in prison for murder
consistent with the jury’s recommendation.
Following an appeal,
the conviction was affirmed by the Kentucky Supreme Court in an
unpublished opinion.3
On July 9, 2001, Napier filed a motion to vacate, set
aside or correct sentence pursuant to RCr 11.42.
1
In the motion,
Ky. Rev. Stat. (KRS) 507.020.
2
KRS 527.040. The two charges were separated for purposes
of trial with the murder charge being tried first.
3
Napier v. Commonwealth, 1999-SC-0636-MR (rendered June
15, 2000).
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he presented various issues involving ineffective assistance of
counsel and a claim of inadequate jury instructions.
After the
Commonwealth responded, the circuit court entered an order
denying the motion.
This appeal followed.
Napier contends on appeal that the circuit court erred
by failing to give a separate jury instruction on extreme
emotional disturbance.
This claim is without merit on both
procedural and substantive grounds.
First, a defendant must
bring a direct appeal when available and then utilize RCr 11.42
for claims not readily reviewable on direct appeal.4
is not a substitute for a direct appeal.5
RCr 11.42
A motion for
postconviction collateral relief under RCr 11.42 is limited to
issues that were not decided and could not have been raised on
direct appeal.6
Napier could and should have raised this issue
in his direct appeal; he is barred from raising it by way of RCr
11.42.
In addition, Napier has not shown that the jury
instructions were flawed.
The murder instruction required the
jury to find that Napier intentionally caused the death of Eva
4
See Gross v. Commonwealth, Ky., 648 S.W.2d 853 (1983).
5
Holt v. Commonwealth, Ky., 525 S.W.2d 660, 661 (1975);
Clay v. Commonwealth, Ky., 454 S.W.2d 109, 109 (1970), cert.
denied, 400 U.S. 943, 91 S. Ct. 245, 27 L. Ed. 2d 247 (1970);
Harris v. Commonwealth, Ky., 441 S.W.2d 143 (1969).
6
See Sanborn v. Commonwealth, Ky. 975 S.W.2d 905, 908-909
(1998), cert. denied, 526 U.S. 1025, 119 S. Ct. 1266, 143 L. Ed. 2d
361 (1999); Baze v. Commonwealth, Ky., 23 S.W.3d 619, 625-26
(2000), cert. denied, 531 U.S. 1157, 121 S. Ct. 1109, 148 L. Ed. 2d
979 (2001); Haight v. Commonwealth, Ky., 41 S.W.3d 436, 443 (2001),
cert. denied, ___ U.S. ___, 122 S. Ct. 471, 151 L. Ed. 2d 386
(2001).
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Napier and “not while acting under the influence of extreme
emotional disturbance.”
It then directed the jury to refer to
the definition of extreme emotional disturbance in Instruction
No. 5, which contained definitions for various terms including
extreme emotional disturbance.
The murder instruction was
followed by a first degree manslaughter instruction.
These
instructions are consistent with the relevant murder and
manslaughter statutes7 and the recommended pattern jury
instructions.8
Napier’s reliance on Holbrook v. Commonwealth9 is
misplaced because the trial court in that case failed to define
extreme emotional disturbance.10
Since the instructions were not
erroneous, this issue may be rejected on substantive, as well as,
procedural grounds.
Napier raises several complaints alleging ineffective
assistance of counsel with respect to his attorney’s failure to
seek funds to hire expert witnesses.
In order to establish
ineffective assistance of counsel, a person must satisfy a twopart test showing both that counsel’s performance was deficient
and that the deficiency caused actual prejudice resulting in a
proceeding that was fundamentally unfair.11
7
The burden is on the
See KRS 507.020(1)(a) and (b) and KRS 507.030(1)(b).
8
See 1 Cooper, Kentucky Instructions to Juries (Criminal)
§ 3.24 and § 3.25 (4th ed. 1999); Commonwealth v. Hager, Ky., 41
S.W.3d 828, 845 (2001).
9
Ky., 813 S.W.2d 811 (1991), overruled on other grounds by
Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998).
10
See Coffey v. Messer, Ky., 945 S.W.2d 944, 946 (1997).
11
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
(continued...)
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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.”12
A court must be highly deferential in reviewing
defense counsel’s performance and should avoid second-guessing
counsel’s actions based on hindsight.13
In assessing counsel’s
performance, the standard is whether the alleged acts or
omissions were outside the wide range of prevailing professional
norms based on an objective standard of reasonableness.14
In
order to establish actual prejudice, a defendant must show a
reasonable probability that the outcome of the proceeding would
have been different or was rendered fundamentally unfair.15
Where the movant is convicted at trial, a reasonable probability
is a probability sufficient to undermine confidence in the
11
(...continued)
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, 531 U.S. 1055, 121 S. Ct. 663, 148 L. Ed.
2d 565 (2000).
12
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, supra,
n. 6 at 912.
13
Harper v. Commonwealth, Ky., 978 S.W.2d 311, 315 (1998),
cert. denied, 526 U.S. 1056, 119 S. Ct. 1367, 143 L. Ed. 2d 527
(1999); Haight, supra, n. 6 at 442.
14
Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2064-65;
Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 878 (1992), cert.
denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479 (1993);
Harper, supra, n. 13 at 315.
15
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; 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).
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outcome of the proceeding considering the totality of the
evidence before the jury.16
Generally, an indigent defendant may be entitled to
government funds to procure expert assistance as a matter of due
process under the 14th Amendment if a substantial question exists
over an issue requiring expert testimony for its resolution and
the defendant’s position cannot be fully developed without
professional assistance.17
An indigent defendant is not
automatically entitled to funds for expert assistance, but
rather, must present a particularized showing that such
assistance is “reasonably necessary.”18
funds for “fishing expeditions.”19
A court need not provide
In addition, a defendant is
not denied a fair trial if failure to provide expert assistance
results in no prejudice.
Adequate opportunity to consult with
and cross-examine the prosecution’s expert are factors in
16
Strickland, 466 U.S. at 694-95, 104 S. Ct. at 2068-69.
See also Moore, supra, n. 12 at 484, 488; Foley,, supra, n. 11 at
884.
17
See Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.
Ed. 2d 53 (1985); Binion v. Commonwealth, Ky., 891 S.W.2d 383
(1995).
18
See
(1999), cert.
120 S. Ct.
Commonwealth,
1059, 109 S.
Commonwealth,
Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 381
denied sub nom Hicks v. Commonwealth, 528 U.S. 1166,
1186, 145 L. Ed. 2d 1092 (2000); Simmons v.
Ky., 746 S.W.2d 393 (1988), cert. denied, 489 U.S.
Ct. 1328, 103 L. Ed. 2d 596 (1989); Sommers v.
Ky., 843 S.W.2d 879 (1992); KRS 31.110; KRS 31.185.
19
Hicks v. Commonwealth, Ky., 670 S.W.2d 837, 838 (1984),
cert. denied, 469 U.S. 1040, 105 S. Ct. 521, 83 L. Ed. 2d 409
(1984).
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determining whether failure to provide an independent expert
prejudiced the defendant.20
Napier submits that defense counsel should have
countered various aspects of the testimony of each of the
prosecution’s expert witnesses with defense expert witnesses.
He
has provided no affidavits from experts as to their potential
testimony, but rather presents generally unsupported speculative
testimony.
For example, Thomas Wintek, a fingerprint expert,
testified that he was able to identify only one fingerprint,
which belonged to Napier, on the clip or magazine of the gun.
Although Napier asserts that a defense expert could have proved
that Eva loaded the gun and that the gun belonged to her, he has
shown neither reasonable necessity for an independent expert nor
prejudice from Wintek’s testimony.
During cross-examination,
Wintek admitted that he had not analyzed the individual bullets
and that the fingerprints of other persons were probably on the
gun, but he was unable to provide a sufficient level of certainty
to make an identification. Napier admitted having handled the
magazine in an attempt to disarm it, so Wintek’s identification
of his fingerprint on the magazine clip was not prejudicial.
Furthermore, whether the gun belonged to Eva or she loaded it was
not significant to the verdict because there was no dispute Eva
was shot with the 9 mm Lugar.
Senobia Skinner, a forensic expert, provided testimony
on gunshot residue.
She tested samples taken from Eva’s and
20
See, e.g., McKinney v. Commonwealth, Ky., 60 S.W.3d 499,
506 (2001); Smith v. Commonwealth, Ky., 734 S.W.2d 437, 447-48
(1987).
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Dewayne’s hands for the presence of antimony, barium and lead.
She testified that she was unable to determine if either one had
handled the gun because she did not find significant levels of
all three elements on the samples from either individual.
Napier
asserts that a defense expert could have offered evidence
suggesting that the tests relative to Eva were inconclusive
because her hands had not been “bagged” or protected to preserve
any evidence of gunshot residue.
of Skinner’s testimony,
Given the inconclusive nature
further testimony by a defense expert
giving possible reasons for these results would have added little
to the defense.
In fact, Skinner’s testimony was not
particularly helpful to the prosecution.
Charles Lanham, a forensic expert, offered testimony on
the mechanics of the 9 mm Lugar and the gunshot residue on Eva’s
clothing.
He stated that the Lugar was a semi-automatic, thus
requiring that the trigger be pulled each time to fire a shot.
He also found residue on Eva’s jeans but was unable to determine
how far the gun was from the victim’s clothing when she was shot.
Napier claims a defense expert could have testified that Eva’s
clothing was in immediate contact with the gun when it
discharged, but there is no evidence to support this claim and
three of the bullet casings were found near the bathroom several
feet from the bed where Napier alleged the shooting occurred.
Again, Lanham’s testimony on the gunshot residue was inconclusive
and not inconsistent with the defense theory of the incident.
Additionally, Lanham admitted on cross-examination that the gun
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could have been fired in a manner consistent with Napier’s claim
that Eva pulled on it while Napier was holding it.
Napier’s major complaints concern the testimony of Dr.
Kristin Rolf, a state medical examiner, who performed an autopsy
on Eva.
She testified that Eva died from peritoneal hemorrhage
caused by the multiple gunshot wounds to her trunk and lower
extremities.
Dr. Rolf identified one gunshot that passed through
several vital organs including the kidney, colon and stomach.
Napier contends that expert testimony could have disputed the
actual gunshot injuries as the cause of death because of an
alleged 37 minute period between the time the medical helicopter
arrived at the Pineville hospital and it left transporting Eva to
the Tennessee hospital.
He asserts that her death could have
resulted from blood loss during that period.
The records clearly
show, however, that emergency personnel were treating Eva during
this period.
Napier’s speculative suggestion that Eva’s death
could have been caused by blood loss and negligence of hospital
personnel during this period is without merit.
Napier also maintains that a defense expert could have
challenged Dr. Rolf’s testimony because she did not personally
examine all of Eva’s internal organs.
In fact, defense counsel
solicited testimony from Dr. Rolf on cross-examination that she
did not inspect Eva’s right kidney and part of her colon and
stomach.
This was because these organs had been removed during
the operation at the Tennessee hospital.
Since this information
was revealed on cross-examination any similar testimony by a
defense expert would merely have been cumulative.
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Moreover,
these organs were removed because of the damage from the gunshots
and Napier’s claim that an expert could have disputed Dr. Rolf’s
conclusion that these vital organs had been damaged is spurious
given the medical records and the location of the bullet holes in
Eva’s jeans.
Napier also asserts that a defense expert could
have testified that the locations of the bullet wounds were
consistent with his description of the incident, but Dr. Rolf’s
testimony was not inconsistent with the defense theory.
Dr. Rolf
stated that she was unable to estimate the distance of the gun
from Eva’s body when it was fired.
A defense expert was not
necessary to rebut the testimony of Dr. Rolf.
In summary, Napier
has not shown that defense counsel rendered deficient performance
or that he suffered actual prejudice by counsel’s failure to seek
funds for independent expert assistance.
Napier also contends counsel was ineffective for
failing to interview some witnesses concerning alleged statements
by Eva that she intended to shoot him and that she owned a gun.
He fails to explain how this information was relevant or
admissible given his defense that the shooting was accidental.
Defense counsel did solicit testimony from several witnesses who
indicated that the 9 mm Lugar had belonged to Eva.
This argument
is without merit.
Finally, Napier maintains that counsel was ineffective
for failing to file a pretrial motion requesting permission to
introduce evidence of Eva’s character for violence and
aggressiveness under Kentucky Rules of Evidence (KRE) 404(a)(2).
He lists several alleged incidents where Eva had been involved in
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shootings or violent behavior.
KRE 404(a)(2) provides an
exception to the general prohibition on evidence of a person’s
character used to show action in conformity with that character
when the evidence is pertinent21 and is offered by the accused.
This provision is inapplicable, however, because the incident in
this case did not involve Eva acting in conformity with a violent
character trait.
KRE 404(a)(2) typically concerns situations
where a defendant raises a self-protection defense.22
Napier’s
defense was predicated on a claim of accident, not self-defense,
so Eva’s alleged violent character was irrelevant to his guilt or
innocence.23
Furthermore, character evidence is limited to
testimony of general reputation or opinion, not specific
instances24 such as those cited by Napier.
Napier also asserts that the cited instances of Eva’s
history of violent acts should have been offered in the penalty
phase of the trial.
While the scope of admissible evidence is
greater for purposes of sentencing, Napier has not shown how this
information would be relevant to understanding the nature of the
crime or the penalty considerations of the jury.25
21
relevant.
(1996).
It was not
The term “pertinent” has been construed as tantamount to
See State v. Collins, 345 N.C. 170, 478 S.E.2d 191
22
See, e.g., Robert G. Lawson, The Kentucky Evidence Law
Handbook § 2.15, at 68-71 (3d ed. Michie 1993).
23
See, e.g., Lance v. State, 560 S.E.2d 663 (Ga. 2002).
24
KRE 405(a).
25
Cf. Bussell v. Commonwealth, Ky., 882 S.W.2d 111, 113
(1994), cert. denied, 513 U.S. 1174, 115 S. Ct. 1154, 130 L. Ed. 2d
1111 (1995).
-12-
admissible as rebuttal evidence because the Commonwealth did not
introduce evidence of Eva’s good character or victim impact
information in the penalty phase.26
Consequently, counsel was
not deficient for failing to seek admission of evidence of Eva’s
alleged violent character.
The Bell Circuit Court order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dewayne Napier, pro se
LaGrange, Kentucky
Albert B. Chandler III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
26
See generally Bowling v. Commonwealth, Ky., 942 S.W.2d
293 (1997), cert. denied, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed.
2d 387 (1997).
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