Opinion
NO. 2011-CA-001702-MR
04-26-2013
STEVEN W. BRYANT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven W. Bryant, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky W. Bryan Jones Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 07-CR-003651
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES. CAPERTON, JUDGE: The Appellant, Steven Bryant, was convicted in Jefferson Circuit of murder, robbery in the first degree, tampering with physical evidence, and wanton endangerment in the first degree. Following the jury verdict concerning his guilt, Bryant agreed to forego jury sentencing and pled to a total sentence of life without parole for twenty-five years. He now appeals the denial of his request for RCr 11.42 relief. Upon review of the record, the arguments of the parties, and the applicable law, we affirm.
Bryant was indicted in Jefferson Circuit Court on November 8, 2007, for capital murder, robbery in the first degree, tampering with physical evidence, and wanton endangerment in the first degree. His wife, Beverly Bryant, was indicted jointly with Bryant for capital murder and robbery in the first degree, and also for giving a peace officer a false name.
Beverly Bryant's case was severed from the Appellant's case. She ultimately entered an Alford plea of guilty to giving a peace officer a false name and an amended charge of facilitation to robbery in the first degree. The murder count was dismissed, and she was sentenced to one year in prison.
Several witnesses testified during the course of Bryant's trial. One, Jeff Wilbur, testified that he received a phone call on the morning of November 3, 2007, from Mark Masden, with whom he split and sold firewood. Masden reported that he had seen a stabbing in a car lot used by the Bob Montgomery car dealership. Wilbur drove to the scene and saw Masden in his vehicle. A man was lying bleeding on the ground, and Wilbur saw another man, later identified as Bryant, leaving the scene. Wilbur and Masden followed Bryant. According to Wilbur's testimony, Bryant had a kitchen knife with about a ten-inch blade when fleeing the area, which he concealed under his coat and carried with him into an apartment. Both Wilbur and Masden called the police, who arrived and eventually took Bryant from the apartment. Wilbur then identified Bryant as the man he had seen with the knife. Wilbur testified that he thought Bryant was wearing different clothes when he left the apartment than when he entered. Wilbur testified that these events occurred at approximately 9:30 a.m.
Mark Masden also testified below, stating that on the morning in question, he observed a white man, again, later identified as Bryant, chasing a black man in a lot used by Montgomery Chevrolet. Masden exited his van, and noticed that the black man, who had already been stabbed, fell to the ground. Masden testified that Bryant then repeatedly stabbed the black man approximately eight to ten times after he fell. Bryant then ran toward Masden with a knife. Masden re-entered his vehicle, locked it, and drove off. Masden testified that he followed Bryant around some apartments, and called Wilbur, who joined Masden in following Bryant. Masden stated that he went to help the black man who had been stabbed, but that it was "too late". Masden testified that the man with the knife, whom he later identified as Bryant, walked into an apartment after the incident occurred. Masden testified that he never saw the black man with a weapon, nor did he see him acting aggressively. Masden stated that Bryant looked "out of it," and "might have been on drugs." He did not see Bryant take anything from the victim, who has now been identified as Latour White.
Mary Ryan, an acquaintance of Bryant's, also provided testimony. She stated that she lived in her mother's apartment on Flintlock Drive, and that on the morning of the incident in question, a woman named Charlotte Nation was present at the apartment, along with Bryant, and his wife, Beverly. Ryan testified that on the evening prior to the incident, she had seen Bryant consume about twenty pills, and had told him to leave. She stated that she went to bed and woke up with Bryant knocking on her door. Ryan stated that Bryant called someone on the phone, left, and returned fifteen to twenty minutes later, after which time the police arrived.
Charlotte Nation, who also went by the name Charlotte Weedman, testified that on the day in question, she was staying at Mary Ryan's apartment and that Bryant and his wife were there. She testified that she and Bryant had smoked crack cocaine that morning and needed more, and that Bryant was going to try and obtain more from an individual named Latour White. She stated that Bryant did not have any money and had called for a "front," to obtain the drugs on credit. Nation stated that Bryant left to get the crack from Latour White, and returned with a bloody knife, after which time he was arrested by the police.
Louisville Metropolitan Police Detective Dan Alpiger testified that he worked the Latour White killing as a homicide. Detective Alpiger testified that a search warrant was obtained for Ryan's apartment, and that a kitchen knife was found under the bed in the bedroom. Detective Alpiger stated that the knife had a rust-colored smear on it, which was indicative of being wiped. Detective Alpiger stated that the knife was to be tested for blood, and that a blood sample was obtained from Latour White. Detective Alpiger also testified that Latour White's moped was found at the scene of the crime. Broken pieces of the moped were visible, and it looked like it had been "ditched" or thrown down. He did not observe any type of defensive wounds on Bryant's hands that day.
Detective Alpiger testified that he interviewed Charlotte Nation during the course of the investigation, and that she had indicated that she thought she saw Bryant throw a bloody knife under the bed. She informed Detective Alpiger that Bryant had stated that there was blood on the knife, and to "get rid of it." She also said that she thought she had previously seen a similar type of knife at either his apartment, or at Ryan's apartment.
Former state medical examiner Dr. Barbara Weakley-Jones testified that she performed the autopsy on Latour White, and that he had sustained fifteen wounds in total which, ultimately, caused his death. She stated that toxicology testing revealed no drugs in his blood, although marijuana traces were present in his urine.
Kentucky State Police forensic scientist Steve Barrett testified that he compared a blood sample from the kitchen knife found under the bed to a blood sample from Latour White. He found that the blood swab from the knife matched the blood sample from Mr. White with a frequency of one in ninety-one quadrillion.
Ramon White, the older brother of Latour White, also testified below. He stated that he had frequent contact with Latour, but had not spoken to him on the morning of his death. Ramon stated that Latour had a family that missed him, including twin girls and a dog, and that Latour's extended family was present in court. White only testified for approximately two minutes.
Finally, Bryant himself testified, stating that he was at the Ryan apartment on the night of November 2nd, and the morning of November 3rd, 2007. He stated that he drank, smoked crack, and took pills, and eventually left the apartment to obtain more drugs. Bryant stated that he went to the car lot and was waiting on Latour White, who arrived on a moped and began yelling and cursing at him. Bryant stated that White jumped at him, and a knife fell out of his clothing. Bryant stated that both men attempted to grab the knife, and that he only remembers stabbing White once in the chest. Bryant stated that he did recall seeing someone near the fence, and that he remembered returning to Ryan's apartment and being arrested. Bryant denied taking a knife to the scene, and stated that he was not in any position to say whether he did or did not take anything from White.
As noted, Bryant's jury trial lasted from November 7 through November 19, 2008. Following the jury determination of his guilt, Bryant was sentenced to life without parole for twenty-five years for murder, twenty years for robbery in the first degree, five years for tampering with physical evidence, and five years for wanton endangerment in the first degree, for a total sentence of life without parole for twenty-five years.
Bryant filed a direct appeal of his convictions, asserting that there was insufficient evidence to convict him of robbery in the first degree. His conviction was affirmed by our Kentucky Supreme Court in 2010. Thereafter, on May 24, 2011, Bryant filed a motion pursuant to RCr 11.42 seeking dismissal of the murder and robbery convictions, or in the alternative, an evidentiary hearing with the benefit of counsel. The motion was overruled without appointment of counsel and without an evidentiary hearing by order of the Jefferson Circuit Court dated July 13, 2011. It is from that order the Bryant now appeals to this Court.
See Bryant v. Commonwealth, 2009-SC-054, March, 18, 2010.
On appeal, Bryant argues that he was denied effective assistance of counsel because: (1) his trial counsel did not object to the testimony of Ramon White; and (2) counsel failed to adequately investigate his case. Finally, Bryant argues that the Commonwealth failed to adequately prove the elements of first-degree robbery, and the element of intent necessary to convict him of murder pursuant to KRS 507.020. In response, the Commonwealth argues that Bryant received effective assistance of counsel, and that his motion was properly denied by the trial court.
This latter argument made by Bryant, that the Commonwealth failed to establish the elements of first-degree robbery is not appropriately before this Court, and was previously raised by Bryant on direct appeal. That conviction was affirmed, and we decline to return to this issue herein. See Bryant v. Commonwealth, 2009-SC-054 (March 18, 2010). Likewise, Bryant's assertion that the Commonwealth failed to prove that the murder of White was "premeditated," or "intentional," is not appropriately before this Court, as our courts have clearly held that insufficiency of the evidence is not a proper ground for RCr 11.42 relief. Bartley v. Commonwealth, 463 S.W.2d 321, 322 (Ky. 1971). This is an argument that would have been properly raised as a basis for direct appeal. Bryant chose not to do so. Accordingly, we decline to address this argument further herein.
In reviewing the arguments of the parties on this issue, we note first that we review the trial court's denial of an RCr 11.42 motion for an abuse of discretion. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong 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 as a result was unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
As established in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695 .Bowling at 411-412.
Additionally, we note that 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 have been considered sound trial strategy." Strickland, 466 U.S. at 689.
On the issue of whether an evidentiary hearing was proper, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling in this matter. Under Fraser, Bryant is only entitled to an evidentiary hearing if there are allegations that cannot be conclusively resolved upon the face of the record. Further, we note that in determining whether the allegations in a post-trial motion to vacate, set aside or correct sentence can be resolved on the face of the record, the trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Id. at 452-53. We review the arguments of the parties with these standards in mind.
First, Bryant argues that he was denied ineffective assistance of counsel because counsel failed to object to the testimony of Ramon White, the brother of the victim. Bryant asserts that this testimony had no bearing upon the case, was highly prejudicial to Bryant, and was simply a tactic utilized by the prosecution to promote and elicit sympathy from the jury.
In response, the Commonwealth asserts that the introduction of background information about a crime victim is permissible, as long as the victim is not being "glorified or enlarged," or unless the back ground evidence is intended to arouse sympathy for the victim or his family. See Brown v. Commonwealth, 297 S.W.3d 557, 560-61 (Ky. 2009). It argues that the brief testimony of Ramon White was admissible background information, and was relevant insofar as it served to acquaint the jury with the victim. The Commonwealth also argues that the decision on the part of Bryant's counsel not to object was a sound trial strategy, as objecting would have made the defense appear hostile in front of the jury.
In addressing this issue, we note that the Commonwealth is correct in its assertion that our courts have previously permitted the introduction of evidence about the victim's age, employment, interests, and education. See Brown v. Commonwealth, 297 S.W.3d 557, 560-61 (Ky. 2009). However, in the matter sub judice, we believe the testimony to be more akin to that discussed in Nickell v. Commonwealth, 565 S.W.2d 145 (Ky. 1978), a case relied upon by Bryant in his brief to this Court.
In Nickell, the Appellant argued that it was prejudicial for the Commonwealth to introduce testimony of the decedent's wife. The wife was not a witness to the incident in that case, and testified only as to when she last saw her husband alive, and to the number and ages of their children. Counsel in that case did object to her testimony, insisting that it was immaterial and designed to play upon the emotions of the jury. As Bryant correctly noted, our Kentucky Supreme Court held that the testimony of the decedent's wife was irrelevant to the issues in the case. However, further reading of the case reveals that despite this finding, the Court held that the admission of the testimony was not prejudicial error of a nature sufficient to require reversal, in view of all of the evidence and the defendant's admission that he shot the victim. See Nickell, 565 S.W.2d 147.
Sub judice, our situation is factually similar. A review of the evidence indicates that White's testimony in this matter was very similar to that at issue in Nickell. Moreover, as Nickell, Bryant confessed to killing the victim. These facts, when viewed in conjunction with the other evidence submitted against Bryant, support the finding that while the testimony was irrelevant and admitted in error, such error did not rise to the level prejudicial enough to deprive Bryant of his right to a fair trial or to establish a reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. Accordingly, we decline to reverse on this basis.
As his second basis for arguing that he was denied ineffective assistance of counsel, Bryant asserts that his trial counsel failed to adequately investigate the case. Bryant argues that there was a question as to who brought the alleged murder weapon to the scene - he or White. Although conceding that DNA testing proved that the blood on the knife belonged to White, Bryant asserts that defense counsel should have demanded that the knife be tested for fingerprints. He also notes that someone had called the victim prior to the meeting at the crime scene, and that a subpoena of telephone records would have answered that question. He also asserts that defense counsel failed to offer into evidence a receipt for $95.00 found in the victim's wallet at the crime scene and later turned over to his wife by the police.
It is unclear from Bryant's brief who he is alleging may have called the victim, or what relevance this may have had to his defense.
Again, the relevance of this potential piece of evidence is not explained in Bryant's brief to this Court.
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In response, the Commonwealth argues that Bryant's counsel investigated his case sufficiently. We agree. Concerning the knife, as the Commonwealth correctly notes, the fingerprints would not have identified the owner of the knife or who brought it to the crime scene. Moreover, in a struggle such as the one that Bryant asserts occurred, there is a likelihood that the fingerprints of both individuals might be on the knife. Most importantly, even if such a test had been performed, there is no reasonable probability that it would have changed the verdict or sentence.
Concerning the failure of counsel to subpoena White's telephone records, the Commonwealth asserts that Bryant's argument most likely refers to Mary Ryan, in whose apartment he was on the day of the murder. Ryan testified that Bryant called someone on the telephone and then left for fifteen to twenty minutes before returning with the murder weapon. The Commonwealth also suggests that Bryant might be referring to the possibility of Charlotte Nation's testifying concerning a phone call that she overheard between Beverly Bryant and another individual about a possible drug deal.
This Court declines to speculate as to what Bryant was referring to in his argument. Regardless, Bryant himself testified that he left the apartment to obtain drugs and met White at the scene where the stabbing occurred. Whether White received a phone call or from whom would not change the fact that Bryant stabbed White that morning, nor would it shed light on exactly what happened in the struggle between the two. Thus, we agree with the Commonwealth that Bryant's counsel did not err by not seeking the telephone records, as there was no reasonable probability that doing so would have changed the verdict or sentence.
Finally, the Commonwealth responds to Bryant's argument that counsel was ineffective for failing to introduce a receipt evidencing that the police turned $95.00 and Latour White's wallet over to White's wife before trial. The Commonwealth assumes Bryant to be arguing that this receipt proves that money was not taken, and thus there was no theft for purposes of the robbery conviction.
Again, we decline to speculate on what Bryant was referring to, or what argument he was attempting to make concerning the money. Moreover, as the Commonwealth notes in its brief, Bryant's counsel introduced evidence at trial indicating that a twenty dollar bill was found in the grass with White's personal belongings at the crime scene, and that the police did not find any items belonging to White at the apartment where Bryant was reprehended. Thus, the defense did in fact argue that there was no robbery, a claim made in the closing argument before the jury, and a claim which the jury rejected. We are in agreement with the Commonwealth that there is no reasonable probability that the robbery verdict would have been any different had the issue of the $95.00 property receipt been introduced by counsel.
Wherefore, for the foregoing reasons, we hereby affirm the July 13, 2011, order of the Jefferson Circuit Court denying Bryant's request for RCr 11.42 relief.
ALL CONCUR. BRIEF FOR APPELLANT: Steven W. Bryant, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky