JAMES E. MARTIN v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
January 21, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
2003-CA-001183-MR
JAMES E. MARTIN
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 00-CR-00267
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND MINTON, JUDGES.
BARBER, JUDGE:
Appellant, James E. Martin (Martin), Pro Se, has
appealed from an order entered by the McCracken Circuit Court on
May 16, 2003, denying his motion to vacate made pursuant to
Kentucky Rules of Criminal Procedure (RCr) 11.42 without
appointing counsel or conducting an evidentiary hearing.
Martin’s underlying claims relate to ineffective assistance of
counsel in (1) failing to investigate and interview witnesses
and to adequately prepare a defense, and (2) failing to file a
motion to suppress the fruits (cocaine) of an illegal search.
He also claimed cumulative error.
Having concluded that the
circuit court properly denied Martin relief, we affirm.
The facts are presented in this court’s opinion
rendered in Martin’s direct appeal (Martin v. Commonwealth,
2001-CA-001888-MR, finality endorsed November 15, 2002):
(T)he arresting detective testified
that at about 10:00 PM on September 30,
2000, he and two other officers approached
Happy’s Chili Parlor in Paducah to
investigate complaints of drug activity. As
he arrived, he saw Martin preparing to enter
the driver’s door of an automobile. He
stopped his car in front of Martin’s, exited
the vehicle, and, as he approached Martin,
perceived a strong odor of marijuana coming
from Martin’s car. He obtained Martin’s
consent to search the car and under the
armrest in the middle of the front seat
found a crumpled paper napkin enclosing two
small plastic bags. The bags contained what
appeared to be marijuana. The detective
testified that he squeezed the bags and in
one of them felt something small and hard.
He then looked inside the bag and found
another wad of crumpled paper. Inside the
paper, he found what later proved to be a
piece of crack cocaine. He did not
immediately confront Martin with an
accusation about the cocaine, but arrested
him on charges of marijuana possession and
took him to a police processing station.
There, about an hour later, Martin admitted
that the two baggies of marijuana were his.
At that point, the officer told him that he
was going to “drop a bombshell” in his lap
and charged him with possessing cocaine.
Martin testified in his defense. He
denied owning the automobile that had been
attributed to him, but he admitted that he
had been using it the night of his arrest
and had had its keys in his possession. He
2
also admitted that he had possessed two
small baggies of marijuana. He swore,
however, that neither baggie contained
cocaine. That night in front of the chili
parlor, he testified, many people had thrown
down small bags of drugs when the police
approached. Perhaps, he suggested, the
officer had confused one of those bags with
one from the car. Or perhaps the officer
had himself placed the cocaine in the bag
with the marijuana to make the offense a
more serious one. In any event, Martin
wondered, why would the cocaine allegations
be a “bombshell,” a surprise, unless the
detective knew that Martin was unaware of
the cocaine?
Against these suppositions, the
detective swore in rebuttal that he had not
confiscated drugs from anyone else that
night and had not planted cocaine in
Martin’s marijuana. The surprise, he
testified, was not the existence of the
cocaine, about which Martin presumably knew,
but the more serious charge, which Martin
may have believed was not to be forthcoming.
A jury found Martin guilty of first degree possession
of a controlled substance (cocaine), second offense (KRS
218A.1415(2)(b)); misdemeanor possession of marijuana (KRS
218A.1422); and misdemeanor possession of drug paraphernalia
(KRS 218A.500).
On July 31, 2001, the circuit court sentenced
him to concurrent terms of incarceration of ten years, twelve
months, and six months, respectively, in accordance with the
jury’s recommendation.
On direct appeal Martin alleged error in the circuit
court’s failure to direct a verdict of acquittal for him on the
3
cocaine possession charge.
On September 27, 2002, this Court
affirmed Martin’s conviction, holding that the circuit court
properly denied Martin’s directed verdict motion as the jury
could reasonably find based on the detective’s testimony that
Martin knew about the paper-wrapped cocaine hidden inside his
paper-wrapped baggie of marijuana.
On April 28, 2003, Martin filed a pro se motion to
vacate the judgment pursuant to RCr 11.42.
counsel and an evidentiary hearing.
He also requested
The pro se motion alleged
ineffective assistance of counsel in (1) failing to investigate
and interview witnesses and to adequately prepare a defense, and
(2) failing to file a motion to suppress the fruits (cocaine) of
an illegal search.
He also claimed cumulative error.
On May
16, 2003, the circuit court denied Martin’s motion without
appointment of counsel or an evidentiary hearing.
Martin’s appeal raises the following issues: (1) error
by the circuit court in denying the motion for appointment of
counsel without allowing Martin time to supplement his RCr 11.42
motion; (2) error by the circuit court in failing to appoint
counsel for the RCr 11.42 motion; (3) ineffectiveness of trial
counsel for failing to file a motion to suppress; and (4) error
by the circuit court in failing to appoint counsel for the RCr
11.42 motion for the purpose of litigating an issue regarding
jury selection.
4
We will first address Martin’s argument that trial
counsel was ineffective in failing to file a motion to suppress
the cocaine seized during the search of his car.
To prevail on
this claim, Martin must show that counsel’s representation fell
below an objective standard of reasonableness and that there is
a reasonable probability that, but for counsel’s unprofessional
errors, the results of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 6873 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
Where defense counsel's failure to
competently litigate a Fourth Amendment claim is the principal
allegation of ineffectiveness, the defendant must also prove
that his Fourth Amendment claim is meritorious.
Actual
prejudice is then proved by demonstrating a reasonable
probability that the verdict would have been different absent
the excludable evidence.
Kimmelman v. Morrison, 477 U.S. 365,
375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986).
Thus, the
question here is whether there is a reasonable probability that
the suppression motion would have been granted and would have
led to the dismissal of the charges.
In contrast to Martin’s trial testimony his RCr 11.42
motion concedes “(t)he officer obtained (his) consent to search
the vehicle.”
At trial, the detective testified that Martin
consented to the search of the car.
the warrant requirement.
Consent is an exception to
United States v. Watson, 423 U.S. 411,
5
423, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976).
Because of his
consent, Martin has no meritorious Fourth Amendment claim under
Kimmelman and has therefore failed to meet the Strickland test.
Regardless of consent, the search was proper.
Detectives were in the area due to complaints of illegal drug
activity.
Upon arrival on the scene they observed a large crowd
of people gathered in a non-loitering area.
crowd a car was parked.
In the midst of the
The detectives verified that the car
was registered to Martin.
Everyone dropped to the ground upon
hearing a detective shout “gun.”
An individual located at the
passenger side door of Martin’s car dropped some drugs and was
arrested.
A detective approached Martin at the driver’s side
door and smelled burnt marijuana emanating from the car.
The
search revealed two baggies of marijuana and a rock of cocaine
in one of the baggies.
A warrantless search of the car was
proper based on the officer’s sense of smell.
Cooper v.
Commonwealth, 577 S.W.2d 34, 36-37 (Ky.App. 1979), overruled on
other grounds by Mash v. Commonwealth, 769 S.W.2d 42, 44 (Ky.
1989).
Again, Martin has failed to prove that his Fourth
Amendment claim is meritorious under Kimmelman and has therefore
failed to meet the Strickland test.
We next address Martin’s claims of circuit court error
in failing to appoint counsel as requested to supplement the RCr
11.42 motion and in failing to allow him to, sua sponte,
6
supplement his motion upon failure to be appointed counsel.
Fraser v. Commonwealth, 59 S.W.3d 448, 452-453 (Ky. 2001) sets
out the following procedural steps with respect to an
evidentiary hearing and appointment of counsel:
1.
The trial judge shall examine the motion
to see if it is properly signed and
verified and whether it specifies
grounds and supporting facts that, if
true, would warrant relief. If not, the
motion may be summarily dismissed.
After the answer is filed, the trial
judge shall determine whether the
allegations in the motion can be
resolved on the face of the record, in
which event an evidentiary hearing is
not required. A hearing is required if
there is a material issue of fact that
cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an
examination of the record . . .
If an evidentiary hearing is required,
counsel must be appointed to represent
the movant if he/she is indigent and
specifically requests such appointment
in writing . . .
If an evidentiary hearing is not
required, counsel need not be appointed,
“because appointed counsel would (be)
confined to the record.”
2.
3.
4.
Citations omitted.
Martin raised three issues in his motion.
In
contravention of RCr 11.42(2) he cited no facts in support of
his first or third allegation.
Due to the lack of a minimum of
factual basis both issues were subject to summary dismissal.
Fraser, supra.
allegation.
The record refutes Martin’s suppression
As all material issues of fact alleged in Martin’s
7
RCr 11.42 motion can be decided on the record, no evidentiary
hearing is required and the court need not appoint counsel.
Fraser, supra.
Martin also claims on appeal that he needed counsel to
supplement a jury composition issue that he did not raise in his
RCr 11.42 motion.
His failure to raise the allegation of
irregularity in the jury panel before the circuit court
precludes him from bringing it now.
Fraser, supra.
He also
cites no controlling authority for requiring the circuit court
to sua sponte allow him to supplement his original pleading.
For the foregoing reasons, the order of the McCracken
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James E. Martin, Pro Se
West Liberty, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
