EVERETT DARONE SIMPSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002279-MR
AND
NO. 2005-CA-001036-MR
EVERETT DARONE SIMPSON
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
HONORABLE JAMES D. ISHMAEL JR.
ACTION NO. 99-CR-01130-1
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Everett Darone Simpson brings pro se Appeal No.
2003-CA-002279-MR from a September 24, 2003, Opinion and Order
of the Fayette Circuit Court summarily denying his Ky. R. Crim.
P. (RCr) 11.42 motion.
Everett Darone Simpson also brings pro
se Appeal No. 2005-CA-001036-MR from a March 3, 2005, Opinion
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
and Order of the Fayette Circuit Court summarily denying his Ky.
R. Civ. P. (CR) 60.02 motion to vacate sentence.
We affirm.
Appellant was convicted by a jury upon five counts of
first-degree robbery.
In July 2000, appellant was sentenced to
a total of forty years’ imprisonment.
Appellant pursued a
direct appeal of his conviction, and the appeal was affirmed by
opinion of the Supreme Court in Appeal No. 2000-SC-0625-MR.
Appellant then filed an RCr 11.42 motion to vacate
sentence based upon various claims of ineffective assistance of
counsel.
Without an evidentiary hearing, the circuit court
denied the motion by Opinion and Order entered September 24,
2003.
Appellant brings Appeal No. 2003-CA-002279-MR from the
circuit court’s September 24, 2003, order summarily denying his
RCr 11.42 motion.
Subsequently, on February 18, 2005, appellant filed a
motion pursuant to CR 60.02 to alter, amend or vacate his
sentence.
On March 3, 2005, the circuit court entered an
Opinion and Order summarily denying appellant’s CR 60.02 motion.
Appellant brings Appeal No. 2005-CA-001036-MR from this Opinion
and Order.
Appeal No. 2003-CA-002279-MR
Appellant contends the circuit court committed error
by denying his RCr 11.42 motion without an evidentiary hearing.
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Specifically, appellant claims that there were material issues
of fact that could not be resolved upon the face of the record,
thus necessitating an evidentiary hearing upon his motion.
Appellant’s RCr 11.42 motion raises various claims of
ineffective assistance of trial counsel.
To prevail, appellant
must demonstrate that trial counsel was ineffective and that
such ineffectiveness was prejudicial.
466 U.S. 668 (1984).
Strickland v. Washington,
To demonstrate prejudice, appellant must
prove that absent trial counsel’s errors the outcome of the
trial would have been different.
A movant is not entitled to an
evidentiary hearing where the allegations can be refuted upon
the face of the record.
Fraser v. Commonwealth, 59 S.W.3d 448
(Ky. 2001).
Appellant initially contends that trial counsel was
ineffective for using a peremptory strike to remove a biased
juror and for failing to move the trial court to remove the
juror for cause.
Appellant alleges that Juror No. 165 admitted
to having knowledge of appellant’s case from media coverage and
also admitted to being racially biased.
Having such knowledge
and being biased, appellant believes that trial counsel should
have moved the trial court to excuse the juror for cause rather
than exercising a peremptory challenge.
Even if trial counsel
erred, we are unable to conclude that such error was
-3-
prejudicial.
As to the absence of prejudicial effect, we must
agree with the circuit court’s reasoning:
Lastly, Movant claims his attorney failed to
challenge for cause and request removal of
an admittedly biased juror with racist
views. The Record shows Juror 165
state[sic] he had knowledge of the case
through the Lexington Herald-Leader.
(22/3/00/VCR/29 at 14:10:49). The Record
shows that Juror 165 was struck with both
sides agreeing to the propriety of the
strike and the Judge noting this on her
notepad. (14:17:54-56). When Juror 165
later showed on the juror list, the Record
shows trial counsel made sure to use a
peremptory strike so that Juror would not be
on the panel. (15:18:45). Although Movant
believes that the peremptory strike should
have been used to strike a different
unfavorable juror, he fails to state what
juror needed to be removed and how it would
change the outcome of the trial. Movant may
disagree with what specifically was done,
however, he must remember he is not entitled
to have an error-free trial that goes
exactly the way he would want it to. . . .
Simply put, appellant failed to indicate how the outcome of the
proceedings was affected by use of the peremptory challenge and
which juror counsel should have used the peremptory challenge to
strike.
Accordingly, we conclude appellant failed to
demonstrate that counsel’s alleged deficient performance was
prejudicial.
Appellant also argues that trial counsel was
ineffective for failing to object to the denial of his right to
confront two victims and to move for dismissal or mistrial.
-4-
It
appears that two victims, Ramon Ramos and Miguel Hernandez, did
not testify at trial.
Appellant believes that the victims’
failure to testify denied appellant the right to confront
witnesses as secured by the United States Constitution.
He also
alleges that the Commonwealth failed to prove the offenses of
first-degree robbery and that trial counsel was ineffective for
failing to move for directed verdict or mistrial.
We again refer to the trial court’s order denying
appellant’s RCr 11.42 motion and adopt its reasoning herein upon
these issues:
Movant first claims his attorney failed
to object to the denial of confrontation and
move for a dismissal or mistrial . . . when
Commonwealth prosecuting witness, who were
alleged victims, failed to appear at trial.
Although Movant does not have a right to
confront witnesses, he must also remember
that to prove ineffective assistance under
the Strickland standard he must prove that
having Ramon Ramos and Miguel Harnandez
testify would change the outcome of the
trial. The Record shows testimony given by
police officers present at the scene;
testimony from three of the victims;
testimony for an eyewitness, Kenner Dyer;
and testimony from the co-defendant, Damien
Huguely. There was also physical evidence
presented at trial. If anything, the
testimony of the two absent witnesses would
only support what was presented at trial.
Ergo, ineffective assistance of counsel
would not be proven.
Next Movant contends his trial attorney
failed to object to the Commonwealth’s
failure to establish beyond a reasonable
doubt every element of the crimes. It is
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true that the Commonwealth is responsible to
prove every element of a crime charged
beyond a reasonable doubt. However, there
is nothing stating victims have to be
present at trial in order to show all
elements of a crime beyond a reasonable
doubt. Testimony was given on the record by
police officers, an eyewitness, the coDefendant, and through physical evidence
supporting the showing of the elements of
the crimes. Trial counsel made appropriate
motions for directed verdict at the
appropriate times and all were properly
overruled by the Court, based on the
principles of Commonwealth v. Benham, 816
S.W.2d 186 (Ky. 1991).
As such, we are of the opinion that appellant failed to prove
any prejudicial effect from trial counsel’s alleged errors and
thus, such allegations are refuted upon the face of the record.
Appellant lastly alleges that the cumulative effect of
the errors requires an evidentiary hearing.
Having found no
prejudicial error, we summarily reject this contention.
Appeal No. 2005-CA-001036-MR
Appellant alleges the circuit court committed error by
denying his CR 60.02 motion without an evidentiary hearing.
Appellant raised various arguments in this motion, including:
“violation of court reporter act,” ineffective assistance of
appellate counsel, erroneous jury instructions, error in failing
to remove a juror for cause, and prosecutorial misconduct.
As
to appellant’s allegation concerning ineffective assistance of
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appellate counsel, we observe there is no constitutional right
to effective assistance of appellate counsel and the claim of
“[i]neffective assistance of appellate counsel is not a
cognizable issue in this jurisdiction.”
42 S.W.3d 605, 614 (Ky. 2001).
Lewis v. Commonwealth,
As to appellant’s remaining
contentions of error, these contentions should have been raised
either by direct appeal or RCr 11.42 motion.
It is well-
established that CR 60.02 is only available to raise allegations
of error that could not have been raised by direct appeal or RCr
11.42 motion.
Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983).
As appellant's remaining contentions of error could have been
raised upon direct appeal or RCr 11.42 motion, we decline to
reach the merits of such allegations.
For the foregoing reasons, the orders of the Fayette
Circuit Court in Appeal Nos. 2003-CA-002279-MR and 2005-CA001036-MR are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Everett Darone Simpson, Pro Se
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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