MITCHELL (MORTAVIUS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002482-MR
MORTAVIUS MITCHELL
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NOS. 02-CR-00196, 02-CR-00196-0
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
JUDGE.
STUMBO, JUDGE: Mortavius L. Mitchell appeals from an order of the Fayette
Circuit Court denying his motion for RCr 11.42 relief from judgment. He contends
that the court erred in failing to conduct an evidentiary hearing on the motion and
that the court improperly found that he failed to demonstrate that he received
ineffective assistance of counsel. He also claims that counsel’s cumulative
1
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
errors denied him the effective assistance to which he was entitled. For the reasons
stated below, we affirm the order on appeal.
On February 12, 2002, the Fayette County grand jury indicted
Mitchell on one count each of murder, robbery in the first-degree, tampering with
physical evidence and possession of a firearm by a felon. The indictment arose
from events occurring on November 9, 2001, when Wilbert Adams, Jr. was found
lying in the street in Fayette County, Kentucky, after having been shot once in the
abdomen. Adams subsequently died, and a police investigation ensued. No arrests
were made for several months.
In November, 2002, the Lexington Police received two tips which
resulted in the arrests of Mitchell and accomplice Eric Jerome Gill. It was alleged
that Mitchell shot Adams during the course of a robbery after representing to
Adams that he was going to purchase crack cocaine from him. Mitchell’s
residence was searched on December 3, 2001, whereupon the police found a 9mm
handgun, photographs of a handgun and of Mitchell holding a handgun, currency, a
black nylon holster, and other items. A vehicle also was searched, resulting in the
collection of additional evidence including a single 9mm shell casing.
Trial on the charges commenced on July 17, 2003, resulting in a jury
verdict of guilty on one count each of wanton murder and first-degree robbery.
After the jury went on to find that aggravating circumstances existed, Mitchell was
sentenced to life in prison without the possibility of parole for 25 years, and 10
years on the robbery charge, to run concurrently.
Mitchell appealed to the Kentucky Supreme Court, which affirmed the
conviction by way of an unpublished opinion rendered on September 22, 2005. On
March 1, 2006, he filed a pro se RCr 11.42 motion claiming ineffective assistance
of counsel and seeking an evidentiary hearing on the motion. After counsel was
appointed and memoranda on the motion were filed by both Mitchell’s counsel and
the Commonwealth, the Fayette Circuit Court rendered an opinion and order on
November 26, 2007, denying the motion for relief. This appeal followed.
Mitchell now argues that the circuit court erred in denying his motion
for RCr 11.42 relief from judgment. He contends that the court improperly failed
to find that his trial counsel was ineffective for failing to consult a ballistics expert;
failing to assemble a defense team; failing to impeach a key trial witness and
investigate possible exculpatory evidence; and, failing to provide mitigating
testimony at the penalty phase. He maintains that these mistakes constitute
cumulative error, and support his claim of ineffective assistance. He also argues
that these issues cannot be resolved by reference to the record, thus entitling him to
a hearing on the motion.
We have closely examined the record and the law, and find no basis
for concluding that the Fayette Circuit Court erred in denying Mitchell’s motion
for RCr 11.42 relief and failing to conduct a hearing on the motion. The standard
for addressing a claim of ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to be
found ineffective, counsel’s performance must be below the objective standard of
reasonableness and must be so prejudicial as to deprive the defendant of a fair trial
and a reasonable result. Id. In considering an appeal from the denial of a claim of
ineffective assistance, the reviewing court must focus on the totality of evidence
before the lower court and assess the overall performance of counsel throughout
the case in order to determine whether the identified acts or omissions overcome
the presumption that counsel rendered reasonable professional assistance.
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
And finally, in determining whether counsel was ineffective, a reviewing court
must be highly deferential in scrutinizing counsel’s performance, and the tendency
and temptation to second-guess should be avoided. Harper v. Commonwealth, 978
S.W.2d 311 (Ky. 1998).
Under Strickland, the movant must show that but for the alleged
ineffective assistance, there is a reasonable probability that the outcome of the
proceeding would not only have been different, but would have been more
favorable to the movant. Strickland, supra. In the matter at bar, nothing in the
record supports Mitchell’s claim of ineffective assistance. Mitchell first contends
that his counsel was ineffective when she failed to hire a ballistics expert to testify
at trial or to cross-examine the medical examiner who testified that the bullet
which killed the victim was fired from an indeterminate range. He points to
guidelines published by the National Legal Aid & Defender Association stating
that - when necessary and appropriate - the assistance of experts is essential in the
preparation of a defense or to rebut the prosecutor’s case. He also argues that such
testimony might have clarified the various versions of what happened at the crime
scene as testified to by Mitchell, Gill and a witness. We do not find this argument
persuasive. As the circuit court properly noted, it is purely speculative as to what a
ballistics expert might have found, or to what he or she might have testified at trial.
It is just as plausible that such testimony would have been detrimental to Mitchell’s
defense as it is that his defense would have been aided by such testimony. Because
the nature of such testimony is purely speculative, it cannot be reasonably argued
that the outcome of the trial would have been different but-for the testimony. Such
a finding would be required under Strickland in order to support an order
sustaining Mitchell’s motion for relief from judgment.
Mitchell also argues that he was denied effective assistance when
counsel failed to assemble a defense team. This claim is also refuted by the record.
Mitchell was represented at trial by Hon. Marcel Radomile and Hon. Gene Lewter.
Attorney Radomile was private counsel retained by Mitchell’s family, and she was
assisted by Lewter of the Fayette County legal aid office. The trial court
conducted a hearing with Mitchell to verify that he was satisfied with counsel, and
according to the order on appeal, Mitchell was “adamant that he was satisfied with
defense counsel.” Mitchell offers no basis for concluding that additional persons
were required to adequately provide for his defense, or that his team was otherwise
deficient in this respect.
Mitchell’s third contention is that counsel was ineffective in failing to
impeach the testimony of witness Michael Hocker at trial. Specifically, Mitchell
argues with respect to Hocker that “had counsel conducted a proper investigation
into the circumstances surrounding the murder, Appellant may have only been
found guilty of homicide, not robbery, thus eliminating the possibility of receiving
the death penalty.” We are not persuaded by this argument for at least two reasons.
First, the Kentucky Supreme Court found on direct appeal of Mitchell’s conviction
that “[t]he evidence . . . was sufficient to support a first-degree robbery
conviction.” Just as important, Mitchell asserts that a more vigorous impeachment
of Hocker’s testimony may have led to Mitchell being found guilty of homicide.
Again, this language evidences the speculative nature of Mitchell’s claim of error
on this issue, and as such does not form a basis for finding that a reasonable
probability exists that the outcome of the trial would have been different but-for
this issue. Accordingly, we find no error.
Mitchell also contends that he is entitled to RCr 11.42 relief because
his trial counsel failed to investigate and provide mitigation testimony at the
penalty phase of the proceeding. Mitchell’s claim that trial counsel “failed to
present any mitigating evidence” is also refuted by the record. Mitchell testified at
the penalty phase, as did his aunt. Furthermore, Mitchell does not reveal who
might have testified or what they might have said, and readily acknowledges in his
written argument that “it is impossible to predict that the mitigating witnesses
would have, in fact, favorably influenced the court’s sentencing decision . . . .” As
such, we find no error on this issue.
Mitchell goes on to argue that the cumulative effect of these alleged
errors is sufficient to support a finding of ineffective assistance. This argument is
not persuasive because there can be no cumulative error absent a finding of
individual error, Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006), and we
have found no individual error.
Lastly, Mitchell contends that the circuit court erred in failing to
conduct an evidentiary hearing on the motion. As the parties are well aware, an
evidentiary hearing is required on a motion seeking RCr 11.42 relief if any
material issue of fact cannot conclusively be resolved by an examination of the
record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Each of
Mitchell’s claims of ineffective assistance is justiciable by reference to the record
or the law, and accordingly, we find no error in the circuit court’s denial of
Mitchell’s request for a hearing on his motion for RCr 11.42 relief.
For the foregoing reasons, we affirm the opinion and order of the
Fayette Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Monica Lynn Smith
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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