Opinion
NO. 2017-CA-000597-MR
05-17-2019
MARK MONTEZ BARNETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Mark Barnett, Pro Se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 13-CR-00358 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER AND TAYLOR, JUDGES. ACREE, JUDGE: Appellant Mark Barnett appeals, pro se, from the Hardin Circuit Court's February 13, 2017 order denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 on grounds he received ineffective assistance of counsel at trial. We affirm.
In 2013, a jury found Barnett guilty of complicity to second-degree robbery and being a second-degree persistent felony offender. The trial court sentenced Barnett to a PFO-enhanced 20 years in prison. The Kentucky Supreme Court, in its opinion affirming Barnett's conviction and sentence, succinctly outlined the pertinent factual underpinnings. We repeat those facts below.
On July 3, 2012, Ashley Huckleby (the Victim) was working alone at a Cash Express check-cashing store in Elizabethtown, Kentucky. At the end of the day, she closed the store and put the day's cash receipts of approximately $3,600 in a bank bag, which she put in her purse, for later deposit. As she left the store, two men confronted her, shoved her forcefully into a vehicle temporarily, and took her purse.
The men turned out to be Kenneth Wright and his cousin, Mark Barnett. Wright's girlfriend, Althea Haycraft had worked at the Cash Express in the past. She knew the store owners frequently required their workers to transport large amounts of cash to the bank with lax security procedures, and she gave this information to Wright and Barnett.
On the day of the robbery, Haycraft had given Wright and Barnett a ride to an apartment complex near the Cash Express. They did not tell her what they planned to do but instead told her to wait for them there. A short time later, they returned carrying a woman's purse. In the purse was a bank bag, which Haycraft recognized as the kind used by Cash Express. When she asked the men about it, she was told: "Just drive and keep your mouth shut, and you and your son will be fine." Fearing reprisal, she did not go to the police to report the crime.
A year later, Haycraft was called to the police station, where she was accused of having participated in the robbery of the Victim. She eventually identified Wright and Barnett as the robbers. She disclaimed having known anything about their plan to rob the Cash Express, but she admitted having had numerous conversations with them about the store's lax security. Wright and Barnett were charged as previously described, jointly tried, and convicted of all offenses. Our Supreme Court affirmed. Barnett v. Commonwealth, 2014-SC-000226-MR, 2015 WL 9243368, at *1 (Ky. Dec. 17, 2015).
On January 3, 2017, Barnett filed a pro se RCr 11.42 motion, claiming he received ineffective assistance of counsel. He alleged trial counsel failed to: (1) conduct an independent pretrial investigation, including not interviewing potential witnesses; (2) impeach a Commonwealth witness with a prior inconsistent statement; and (3) object to the introduction of prior bad acts evidence. Barnett also raised a claim of ineffective assistance of appellate counsel, claiming appellate counsel was deficient when she failed to argue on appeal that there was insufficient evidence to support the second-degree robbery conviction.
The trial court, without conducting an evidentiary hearing, entered an order denying Barnett's motion on February 13, 2017. It found all of Barnett's claims fully refuted by the record. Barnett moved pursuant to Kentucky Rule of Civil Procedure (CR) 59.05 to alter, amend, or vacate the trial court's decision. The trial court denied his motion. Barnett appealed. Additional facts will be discussed as necessary to our analysis.
STANDARDS GOVERNING OUR REVIEW
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Under this standard, the movant must first prove that his trial counsel's performance was deficient. Id. at 687, 104 S.Ct. at 2064. To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment[.]" Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
Second, the movant must prove that counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish prejudice, the movant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. We must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
ANALYSIS
Barnett raises the same four grounds of ineffective assistance that he raised before the trial court. He also argues the trial court erred when it denied his motion without first appointing him counsel and conducting an evidentiary hearing.
Not every claim of ineffective assistance merits an evidentiary hearing. Nor is an RCr 11.42 movant automatically entitled to one. See Stanford v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The trial court need only conduct an evidentiary hearing "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." Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001) (citations omitted); RCr 11.42(5). An evidentiary hearing is unnecessary when the record refutes the claims of error or when the allegations, even if true, would not be sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). If an evidentiary hearing is mandated, then the trial court shall appoint counsel to represent an indigent defendant. RCr 11.42(5).
In this case, as explained below, the claims raised by Barnett are either refuted by the record or are insufficient to justify relief under Strickland. Neither an evidentiary hearing nor the appointment of counsel was warranted. A. Interviewing Potential Witnesses
Barnett first contends trial counsel was ineffective when he failed to interview and investigate witnesses to the crime. He identifies seven individuals who reported to police that they witnessed all or part of the robbery. Barnett faults trial counsel for failing to contact or interview these witnesses, thereby allegedly preventing any chance of an alternative perpetrator being identified.
The Commonwealth called Detective Billy Bowling of the Elizabethtown Police Department to testify at trial. Detective Bowling said there were several witnesses to the robbery. He spoke to each witness shortly after the incident on site and later at the police station. Each witness gave a recorded statement to police and some also provided a written statement. Generally, each witness stated he or she observed two black males running down the street away from Cash Express. Detective Bowling noted that none could identify a suspect and their statements generated no leads. At best a few were able to identify clothing worn by the robbers.
Barnett's grievance is that defense counsel failed to independently interview each of these witnesses. However, the witnesses did not identify Barnett, and we fail to perceive any mitigating evidence which would have been uncovered by interviews and investigations he claims defense counsel failed to complete. The record indicates defense counsel requested comprehensive discovery from the Commonwealth. Barnett makes no claim that the witnesses' statements were not made available to defense counsel. Having those statements, Barnett has failed to identify what additional information defense counsel could have gleaned by interviewing these witnesses and how it would have changed the outcome of his trial. It is speculation to assume that those witnesses would have said something different upon being interviewed a year or more after the robbery than they told police in the hours after the crime. Furthermore, when an attorney has the benefit of statements made by witnesses to the police, and particularly when those statements offer little if anything of value to the defendant's case, we cannot find counsel deficient for deciding not to independently interview them. If there were some compelling evidence suggesting a witness may have additional information not previously disclosed or known, we might be persuaded otherwise. That is certainly not the case here.
We see nothing in the record that would lead us to believe that an interview by defense counsel would have yielded evidence in aid of Barnett's defense.
Defense trial strategy focused on three things: (1) discrediting Haycraft's testimony and her identification of Barnett as a participant in the crime; (2) advancing an alternate perpetrator theory; and (3) presenting an alibi for Barnett. Defense counsel pursued this strategy effectively.
Counsel elicited testimony from Haycraft that another person, Larry Hampton, knew about Cash Express's weak security policies and had previously discussed robbing the store. Haycraft also testified, upon defense counsel's questioning, that Hampton had hung around Cash Express on prior occasions and Haycraft's manager did not want him there because she was afraid Hampton was going to rob the place. Haycraft further testified that Reggie Watson, another of her acquaintances, had talked about robbing Cash Express. Additionally, Detective Bowling testified that he interviewed another suspect Marques Bates, who was later established to be Barnett's brother, and accused him of having committed the crime. Defense counsel effectively presented an alternative perpetrator theory. The jury simply did not believe it. Like the trial court, we are not convinced that interviewing the witnesses previously identified would have changed the outcome of Barnett's trial. On this issue, we affirm. B. Witness Impeachment
Barnett next argues defense counsel did not introduce Haycraft's prior inconsistent statement for effective use in cross examination. During an initial police interview, Haycraft allegedly stated in a recorded interview that she knew Wright but did not know the "other male" (i.e. Barnett) who robbed the store and described him only as having "long hair and being dark skinned." Later, Haycraft was shown two separate photographic lineups and was asked to identify the robbers. She positively identified Wright. When choosing the photograph of Barnett, she stated she was not sure, and expressed doubt before identifying Barnett. At trial, Haycraft testified she had only seen Barnett that one night, so identifying him gave her pause, but she was able to do so based on the appearance of his nose, eyes, and lips.
On cross-examination, defense counsel discussed at length Haycraft's identification of Barnett, including her indecision, lack of familiarity with Barnett, and her description of Barnett as having long hair during her police interview. Haycraft admitted she did not know Barnett and had never talked to him except for the night of the robbery. She also admitted Barnett's hair was longer on the day of the robbery than it was in the picture in the photographic lineup. Haycraft clarified that "hair length" played no role in her identification of Barnett.
Haycraft testified Barnett's hair was, among other descriptions, "not taken care of," and maybe "one to two inches longer" on the day of the robbery compared to his picture as presented by police in the photographic lineup.
Defense counsel's decision not to play Haycraft's police interview in which she described Barnett as having long hair does not amount to deficient performance. Defense counsel more than adequately cross-examined Haycraft as to her identification of Barnett. Upon counsel's questioning, Haycraft admitted Barnett's hair was longer at the time of the robbery than in the picture included in the photographic lineup. In light of this testimony, playing Haycraft's police interview in which she described Barnett as having long hair would have been unnecessarily cumulative and of little value. We do not fault defense counsel for choosing not to do so and agree with the trial court that defense counsel's performance was not ineffective in this regard. C. Prior Bad Acts
Barnett argues trial counsel was ineffective when he failed to object to improper bad acts testimony. Detective Bowling described at trial his investigatory steps in this case. When asked by the Commonwealth if he had any leads, Detective Bowling testified that he received a tip that the Hodgenville Police Department had Barnett in custody and that there "were some charges, gun charges." Defense counsel did not object. The detective noted that he had a chance to talk to Barnett at that time, and that Barnett denied having anything to do with the robbery.
The Commonwealth then asked the detective about Marques Bates. The detective stated that Bates was arrested in August, and that he also denied any involvement in the robbery. The prosecutor then asked, "What led you to suspect Marques Bates?" The detective replied, "Information that the Hodgenville Police Department called about them casing another check-cashing place on that 24th of July." Defense counsel again did not object to this testimony.
Barnett asserts defense counsel was ineffective when he failed to object to Detective Bowling's testimony, thereby "poisoning" the jury with improper bad acts evidence. Assuming solely for purposes of this appeal that defense counsel's failure to object indeed constitutes deficient performance, we are not convinced that counsel's error was so prejudicial as to deprive Barnett of a fair trial.
As noted by our Supreme Court in its review of this issue on direct appeal, there is no probability of a different result absent Detective Bowling's fleeting testimony about Barnett's other charges and "casing" of another robbery. The Commonwealth's case turned primarily on Haycraft's testimony, which strongly implicated Barnett as one of the robbers, placed him in the vicinity of the robbery on the day of its commission, and showed him in possession of the proceeds of the crime. Detective Bowling's statements did nothing to weaken her testimony. His passing remarks likely went unnoticed by the jury and, if recognized at all, were in the context of the possibility of a different perpetrator. Furthermore, in the totality of the evidence, these comments do not convince this Court that Barnett's defense was prejudiced when the jury heard them, and certainly not to such a degree that there is a reasonable probability that it affected the outcome of his trial. Again, we affirm. D. Ineffective Assistance of Appellate Counsel
We are mindful that the Supreme Court's disposal of the related direct error is not dispositive of this separate collateral claim of ineffective assistance. A direct error is "alleged to have been committed by the trial court (e.g., by admitting improper evidence) . . . [while an] ineffective-assistance claim is collateral to the direct error, as it is alleged against the trial attorney (e.g., for failing to object to the improper evidence)." Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009). However, the Supreme Court's prejudice analysis is certainly relevant and mirrors our own view of the Strickland prejudice component related to Barnett's collateral claim.
Finally, Barnett argues he received ineffective assistance of appellate counsel because counsel, on direct appeal, failed to raise the claim that his conviction was not supported by sufficient evidence. In Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010), our Supreme Court recognized that criminal defendants are entitled to effective assistance of appellate counsel and, should appellate counsel wholly fail in this endeavor, criminal defendants may pursue a claim of ineffective assistance of appellate counsel.
We evaluate the effectiveness of appellate counsel's representation under Strickland's performance and prejudice standard. Id. Appellate counsel's failure to raise a particular issue on direct appeal may constitute deficient performance but, petitioners who allege their appellate counsel's deficiency must overcome the "strong presumption that [their counsel's] choice of issues to present [on appeal] was a reasonable exercise of appellate strategy." Id. To overcome this strong presumption, Petitioner must show that the omitted issue was a "clearly stronger" issue than those presented. Id. Prejudice must ensue from counsel's omission, and so we ask whether "absent counsel's [omission,] there is a reasonable probability that the appeal would have succeeded." Id. at 437. Barnett is unable to overcome these hurdles.
A person is guilty of second-degree robbery "when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft." KRS 515.030(1). "'Physical force' means force used upon or directed toward the body of another person." KRS 515.010. The instructions in this case required the jury to find that Barnett, acting alone or in complicity with another, stole a purse belonging to the Victim and that, in so doing and with the intent to accomplish the theft, used physical force upon the Victim by shoving her.
Kentucky Revised Statutes.
The Victim testified at trial that she worked at Cash Express and, on the day of the robbery, she concealed a Cash Express bank bag containing several thousands of dollars in cash in her purse. As she left the store, two men approached her, shoved her forcefully into a vehicle temporarily, and took her purse containing the bank bag. Haycraft testified she drove Barnett and Wright to a location near Cash Express on the day in question and, after a short period, they returned to her vehicle carrying a woman's purse; inside the purse was a bank bag belonging to Cash Express. Haycraft later identified Barnett to police as one of the robbers. It was reasonable for the jury to find from this testimony that Barnett stole the Victim's purse and, in the course of and with the intent to do so, used physical force upon the Victim. This evidence was more than sufficient to support a second-degree robbery conviction.
Although Barnett presented alternative evidence suggesting he was not one of the robbers, that evidence does not render the Commonwealth's evidence meaningless. It was up to the jury to weigh the evidence and it was fully within its province to believe Haycraft and the Victim's testimony to the exclusion of the evidence presented by Barnett.
CONCLUSION
We affirm the Hardin Circuit Court's February 13, 2017 order denying Barnett's RCr 11.42 motion for post-conviction relief alleging ineffective assistance of counsel.
ALL CONCUR. BRIEF FOR APPELLANT: Mark Barnett, Pro Se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky