RODNEY DEWAYNE MAYS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-001318-MR
RODNEY DEWAYNE MAYS
v.
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 98-CR-00023
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Rodney Dewayne Mays has appealed from an order
of the Clay Circuit Court entered on January 12, 2004, denying
his motion for post-conviction relief pursuant to RCr 1 11.42.
Mays contends that he received ineffective assistance of counsel
during his murder trial because trial counsel failed to object
to testimony by Detective Mike Hopkins to the effect that he
1
Kentucky Rules of Criminal Procedure.
believed Anthony Simmons’s 2 claim that Mays was the trigger-man
in the murder and disbelieved Mays’s claim that Simmons was the
trigger-man.
Having concluded that Mays has failed to
demonstrate that there is a reasonable probability that the
outcome of the trial would have been different even if trial
counsel had objected to Detective Hopkins’s improper opinion
testimony regarding which of the co-defendants was telling the
truth, we affirm.
On the evening of February 6, 1997, Mays, Simmons, and
victim Curtis Smith were gathered at Britton Branch, a remote
sector of Clay County, where they built a fire and consumed
alcoholic beverages.
and killed.
At some point that night Smith was shot
Smith’s body was found the following day and police
questioned Mays and Simmons about the murder.
Both misled the
police by repeating their prefabricated alibi that while driving
to Britton Branch they had left Smith on the side of the road
and had not seen him again.
More than a year later, Simmons, while incarcerated in
the Laurel County Jail on a DUI charge, contacted the police and
gave them a recorded statement of his version of Smith’s death.
According to his statement, Simmons, Mays, and Smith had been
driving around drinking and doing drugs.
They stopped at Stevie
Collins’s game room and Mays went inside while Simmons and Smith
2
Mays’s co-defendant.
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waited in the car.
Upon Mays’s return, the three drove to a
house where they knew they could purchase more liquor and drugs.
As they were walking toward the house, Mays told Simmons that
Collins had offered to pay Mays $5,000.00 to kill Smith.
Simmons stated that he did not believe Mays, but, rather,
believed that Mays was just boasting.
Thereafter, Mays,
Simmons, and Smith proceeded to Britton Branch.
After building
a fire by the road, Mays went to the car to turn on the stereo.
When Mays returned, he stood directly behind Smith, shot him in
the back of the head, and then fired the remaining rounds into
Smith’s body.
According to Simmons, Mays then reloaded the
pistol and forced him at gunpoint to help remove and destroy
some of Smith’s clothing and throw Smith’s body over a hill.
The two men then returned to Collins’s game room where Mays
collected $5,000.00 from Collins.
Mays then gave $1,000.00 to
Simmons and told Simmons what he should tell the police if he
were questioned.
Following Simmons’s statement, the police interviewed
Mays, who gave a different version of events.
In his recorded
statement, Mays admitted that Collins had, in fact, offered to
pay him $5,000.00 to kill Smith.
Mays stated that he initially
agreed and Collins provided him with a gun.
Mays claimed that
he then changed his mind, whereupon Collins threatened to kill
him.
Mays stated that before proceeding to Britton Branch, he
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told Simmons about his conversations with Collins.
Mays claimed
in his statement that after they arrived at Britton Branch that
it was Simmons who shot Smith and then gave the gun to Mays and
ordered him to shoot Smith as well.
According to Mays, he and
Simmons returned to the game room where Mays collected $5,000.00
from Collins and gave Simmons $2,000.00.
At trial, Mays testified to a different version of
events than contained in his statement to police by stating that
Simmons had been having an affair with Smith’s wife and was
angry at Smith for having hit her, and that Smith owed Simmons a
substantial sum of money.
According to Mays, after the three
arrived at Britton Branch, he went to the car to turn on music
and heard gun shots.
over dead.
When he returned, he found Smith slumped
Simmons then allegedly forced Mays to shoot Smith’s
dead body and warned him not to tell the police.
On August 7, 1998, Mays and Simmons were indicted by a
Clay County grand jury for the murder of Smith. 3
was held on June 28 and 29, 1999.
A jury trial
The jury found Mays guilty as
the principal actor of the murder and Simmons guilty as an
accomplice to the murder.
Mays was sentenced to life
imprisonment, and Simmons was sentenced to 20-years’
3
Kentucky Revised Statutes (KRS) 507.020.
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imprisonment.
The Supreme Court upheld Mays’s conviction and
sentence in an unpublished opinion rendered on May 24, 2001. 4
On May 31, 2002, Mays filed a motion for postconviction relief pursuant to RCr 11.42.
On January 31, 2003,
counsel was appointed and filed a supplemental pleading to
Mays’s motion.
2003.
An evidentiary hearing was held on March 31,
At the close of the evidentiary hearing, the trial court
denied Mays’s motion for post-conviction relief.
order was entered on January 12, 2004. 5
A written
This appeal followed.
Mays contends he received ineffective assistance of
counsel because trial counsel failed to object at trial to
testimony by Det. Hopkins that he believed that Simmons, and not
Mays, was telling the truth about who fired the shots that
killed Smith.
Specifically, Mays alleges that trial counsel
failed to provide effective assistance when he failed to object
to Det. Hopkins’s testimony that he does not start taping a
person’s statement until he has significant evidence to give and
is telling the truth, and that he began to record Simmons’s
statement after he had given an initial short synopsis of his
version of events; 6 failed to object to Det. Hopkins’s testimony
that Simmons’s pre-recorded interview confirmed some of the
4
Case No. 1999-SC-0863-MR.
5
The order was erroneously date-stamped as entered on January 12, 2003.
6
This testimony implied that he believed Simmons was telling the truth from
the outset.
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things he was looking into, and that he believed that Simmons
was telling the truth; failed to object to Det. Hopkins’s
testimony that he did not believe that Simmons was being evasive
in his February 26 statement; failed to object to Det. Hopkins’s
testimony that he believed that Simmons was telling the truth in
his February 26 statement; failed to object to Det. Hopkins’s
testimony that the facts Simmons gave him checked out; failed to
object to Det. Hopkins’s testimony that he did not believe that
he was getting truthful answers from Mays before he began
recording his statement; failed to object to Det. Hopkins’s
testimony that he believed that some of the statements given to
him by Mays were not the truth; and failed to object to Det.
Hopkins’s testimony that “I can say for certain [Mays] plays
more in it than [Simmons] just from what facts that came up.”
To establish ineffective assistance of counsel, a
movant must satisfy a two-part test showing both that counsel’s
performance was deficient and that the deficiency caused actual
prejudice resulting in a proceeding that was fundamentally
unfair and a result that was unreliable. 7
The burden is on the
movant to overcome a strong presumption that counsel’s
assistance was constitutionally sufficient or that under the
circumstances counsel's action might be considered “trial
7
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674, 693 (1984); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky.
2002); Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
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strategy.” 8
A court must be highly deferential in reviewing
defense counsel's performance and should avoid second-guessing
counsel's actions based on hindsight. 9
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. 10
“‘A
defendant is not guaranteed errorless counsel, or counsel
adjudged ineffective by hindsight, but counsel reasonably likely
to render and rendering reasonably effective assistance.’” 11
In
order to establish actual prejudice, a movant must show a
reasonable probability that the outcome of the proceeding would
have been different or was rendered fundamentally unfair and
unreliable. 12
Where the movant is convicted in a trial, 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. 13
8
Strickland, 466 U.S. at 689; Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky.
1998); Sanborn v. Commonwealth, 975 S.W.2d 905, 912 (Ky. 1998).
9
Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001); Harper v.
Commonwealth, 978 S.W.2d 311, 315 (Ky. 1998).
10
Strickland, 466 U.S. at 688-89; Tamme, 83 S.W.3d at 370; Commonwealth v.
Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999).
11
Sanborn, 975 S.W.2d at 911 (quoting McQueen v. Commonwealth, 949 S.W.2d 70
(Ky. 1997)).
12
Strickland, 466 U.S. at 694; Bowling v. Commonwealth, 80 S.W.3d 405, 411-12
(Ky. 2002).
13
Strickland, 466 U.S. at 694-95.
Foley, 17 S.W.3d at 884.
See also Bowling, 80 S.W.3d at 412; and
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Generally, a witness may not vouch for the
truthfulness of another witness. 14
It is generally improper for
a witness to characterize the testimony of another witness as
“‘lying’” or otherwise. 15
“‘A witness’s opinion about the truth
of the testimony of another witness is not permitted . . . .
That determination is within the exclusive province of the
jury’” [footnote omitted]. 16
Det. Hopkins’s testimony indicated that he believed
Simmons and disbelieved Mays concerning who fired the shots
which killed Smith.
This was inadmissible testimony which
should have been objected to by trial counsel.
At the
evidentiary hearing, when asked, trial counsel was unable to
state that his failure to object was because of trial strategy. 17
Further, trial counsel appeared to recognize the flagrant
inadmissibility of Det. Hopkins’s testimony and acknowledged
that, in hindsight, he should have been more aggressive in
objecting to the testimony.
However, even if trial counsel’s failure to object to
Det. Hopkins’s testimony was ineffective assistance of counsel
14
Hall v. Commonwealth, 862 S.W.2d 321, 323 (Ky. 1993); Hellstrom v.
Commonwealth, 825 S.W.2d 612, 614 (Ky. 1992); Stringer v. Commonwealth, 956
S.W.2d 883, 888 (Ky. 1997).
15
Lanham v. Commonwealth, 171 S.W.3d 14, 23 (Ky. 2005).
16
Id.
17
Trial counsel did, however, state that as a general matter he attempted not
to make repetitious objections.
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under the first prong of Strickland, Mays has failed to meet his
burden of establishing prejudice as a result of the error.
To
establish actual prejudice, it must be shown that but for the
error there is a reasonable probability that the outcome of the
proceeding would have been different or was rendered
fundamentally unfair and unreliable. 18
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. 19
For several reasons the record demonstrates that there
is not a reasonable probability that but for Det. Hopkins’s
impermissible testimony the jury would have believed Mays’s
version of events concerning who shot Smith over Simmons’s
version.
First, though it had been over a year since the murder
and it appears that Mays and Simmons were no longer under active
investigation for the crime, Simmons voluntarily came forward
and gave a statement to the police in which he admitted being
present at the time of the crime and receiving a portion of the
alleged payoff by Collins.
Simmons’s trial testimony was
consistent with his police statement.
He accounted for coming
forward when he did to remorse over his involvement in the
18
19
Strickland, 466 U.S. at 694; Bowling, 80 S.W.3d at 411-12.
Strickland, 466 U.S. at 694-95.
Foley, 17 S.W.3d at 884.
See also Bowling, 80 S.W.3d at 412; and
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crime, and accounted for his delay in coming forward to his fear
of Mays and Collins.
Mays, on the other hand, did not voluntarily come
forward with a statement to the police.
His April 7, 1998,
statement to the police was a product of Simmons’s confession to
involvement in the crime.
In his April 7, 1998, statement, Mays
corroborated Simmons in almost all respects except concerning
who did the shooting.
Mays admitted that Collins made the
proposal to him, that Collins gave him the gun to carry out the
killing, that he received the payoff for the killing, and that
he kept the greater share of the $5,000.00 payoff.
The only
significant deviations from Simmons’s account was that Mays
changed his mind about going through with the killing, and that
Simmons himself then, to Mays’s distress, carried out the
killing.
Perhaps because he realized the inculpatory nature of
his April 7, 1998, statement and its failure to account for a
motive for Simmons to follow-through with the killing after Mays
had changed his mind, at trial Mays renounced his April 7, 1998,
statement and for the first time attributed Simmons’s motive for
killing Smith to an alleged affair between Simmons and Brenda
Smith, 20 to Simmons’s distress at Smith having allegedly beaten
Brenda and scarred her face, and to a substantial drug debt
20
Curtis Smith’s wife.
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Smith allegedly owed to Simmons.
At trial Simmons and Brenda
Smith both denied having engaged in an affair.
Mays attributed his April 7, 1998, statement to police
coercion.
Mays alleges that police told him what to say in his
statement, and even stopped, rewound, and paused the tape
recorder to get the statement they wanted. 21
According to Mays,
in order to get him to say what they wanted, police deprived him
of food and water, deprived him of bathroom privileges, made
promises to him that he would be released if he gave the
statement they wanted, and made threats concerning his wife and
family. 22
Mays further alleged that Det. Hopkins physically
choked him in order to obtain the statement. 23
Despite these
allegations of coercion, however, we note that Mays does not
cite us to or reference any motion to suppress the statement on
the basis of this coercive conduct. 24
Based upon the foregoing, in order for the jury to
have accepted Mays’s version of events, it would have had to
have discounted that Simmons first went to police and that
21
According to Mays, the police sought a statement which would implicate
Collins, a prominent Clay County business man, in the crime. According to
Mays, Collins supposedly wanted to kill Smith because Smith had injured
Collins in a fight at Collins’s pool room.
22
Mays contends the police told him that he would be locked up and his wife
would have a child with another man.
23
In rebuttal, Det. Hopkins denied any improper interrogation of Mays.
24
Our review of the case is somewhat hampered because Mays did not certify to
this Court the pre-RCr 11.42 trial record (with the exception of the trial
transcript). Nevertheless, by his silence on this issue, it appears that
Mays did not file a motion to suppress.
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Simmons was remorseful over the crime; it would have had to have
believed that Simmons concocted his entire story, which
implicated a prominent Clay County businessman, 25 concerning a
murder for hire; it would have had to have believed that Simmons
and Brenda Smith were having an affair and that Smith owed
Simmons a substantial drug debt; it would have had to have
believed that the affair and drug debt were a sufficient motive
for Simmons to have killed Smith; and it would have had to have
believed that the police coerced Mays’s April 7, 1998,
statement, even to the point of physically choking him into
making the statement. 26
Because of his changing and inconsistent stories and
his attempt to attribute his April 7, 1998, statement to
egregious police coercion, Mays’s credibility was severely
challenged even without Det. Hopkins’s improper testimony.
While it is possible that Det. Hopkins’s testimony vouching for
the credibility of Simmons over Mays may have swayed the jury to
believe Simmons’s version of events in favor of Mays’s version
of events, we do not believe that this possibility is a
probability sufficient to undermine confidence in the outcome of
25
This person may have had an unimpeachable alibi for the night of February
6, 1997.
26
Mays does not explain why the police would want to obtain a false statement
implicating Collins. Nor does he explain why the police, in the coerced
statement, permitted him to deviate from Simmons’s statement regarding who
was the trigger-man.
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the proceeding considering the totality of the evidence before
the jury.
As such, Mays has failed to establish prejudice from
trial counsel’s failure to object to Det. Hopkins’s testimony
concerning the truthfulness of the two co-defendants.
For the foregoing reasons, the order of the Clay
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Edwin Neal
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
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