Opinion
NO. 2016-CA-001308-MR
02-23-2018
TERRY BUCHANAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: R. Christian Garrison Department of Public Advocacy LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 09-CR-00003 OPINION
AFFIRMING
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. MAZE, JUDGE: This appeal arises from a Fleming Circuit Court denying the Appellant's, Terry Buchanan, supplemental RCr 11.42 motion for ineffective assistance of counsel where his counsel failed to motion the court to sever the indictment counts of murder and criminal abuse. As the record shows Buchanan's counsel was not deficient, we affirm.
Kentucky Rules of Criminal Procedure.
Background
Terry Buchanan was the biological father of the victim in this case, a three-month-old infant. Buchanan, the infant, and the mother of the infant resided together in Fleming County, along with the mother's child from a previous relationship. While in the care of Buchanan and the mother, the infant suffered injuries which led to her death. An autopsy revealed that she died of blunt force injury to the head, including multiple injuries to her head and fractures to her skull. There was also evidence of an old injury, a broken bone, which was estimated to be about two weeks old.
Buchanan and the mother were both charged with two counts. The first count was for criminal abuse due to the old leg injury and the second count was for the offense of murder for the recent injuries which led to the baby's death. There were no severance motions filed by Buchanan's counsel, and he was found guilty of first-degree manslaughter and first-degree criminal abuse by a jury. The mother was found guilty of being Buchanan's accomplice for both crimes. Buchanan's convictions were appealed to the Kentucky Supreme Court. The Court found that there was insufficient evidence of child abuse for the earlier injury to survive a directed verdict. The Court therefore reversed the judgment of conviction and sentence for the first-degree criminal abuse.
Buchanan v. Commonwealth, 2010-SC-000663, 2012 WL 1478778 (Ky. 2012).
Buchanan then filed a pro se RCr 11.42 pleading, which was supplemented by counsel. A hearing was held followed by a post-hearing briefing. The court denied the motion. This appeal follows.
Standard of Review
The circuit court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). The reviewing court may set aside the trial court's fact determinations if they are clearly erroneous. Id. (citing CR § 52.01). Furthermore, the standard of review in RCr 11.42 proceedings, when the trial court conducts an evidentiary hearing, requires that the reviewing court defer to the determinations of fact and witness credibility made by the trial judge. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); see also Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996).
Kentucky Rules of Civil Procedure.
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. 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 the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.Id. at 687. The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance. Id. at 690. Counsel's performance is deficient when it falls "below an objective standard of reasonableness." Id. at 688. The defendant must overcome the strong presumption that counsel's performance was reasonable and "might be considered sound trial strategy." Id. at 689 (citations omitted). The inquiry to determine prejudice is whether but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694.
Analysis
On appeal, Buchanan contends that his trial counsel was deficient by failing to motion to sever the two counts, and that this failure prejudiced Buchanan. We will begin with a discussion of deficiency, as it is dipositive in this case.
RCr 6.18 states that,
[t]wo (2) or more offenses may be charged in the same complaint . . . the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.Additionally, RCr 8.31 states that "[i]f it appears that a defendant . . . is or will be prejudiced by a joinder of offenses . . . the court shall order separate trials . . . . A motion for such relief must be made before the jury is sworn..." The Kentucky Supreme Court applied this language in Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977), and explained that, "'[p]rejudice' is a relative term. In the context of a criminal proceeding it can mean only that which is unnecessarily or unreasonably hurtful."
Formerly RCr 9.16. --------
The Kentucky Supreme Court in Commonwealth v. Collins, 933 S.W.2d 811 (Ky. 1996) found that the joinder of murder and criminal abuse was not prejudicial in that specific case. There, a stepmother had been observed abusing her stepson in the weeks and days preceding his death. Id. at 812-13. The stepmother was convicted of intentional murder and first-degree criminal abuse. Id. at 811. She made several arguments on appeal, including that the trial court erred by not severing the two charges. Id. at 815. On the issue of severance, the Court explained that in determining whether joinder is prejudicial, a significant factor is the "'extent to which evidence of one offense would be admissible in a trial of the other offense.'" Id. at 816 (quoting Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993)).
In Collins, the Court clarified that "the evidence relating to the abuse charge would have been admissible in a trial on the murder charge, not, as Appellant mischaracterizes it, as proof of criminal disposition, but, rather, as proof of a similar course of conduct or common scheme or plan." Id. Additionally, the Court explained that "joinder is proper where the crimes are closely related in character, circumstance, and time." Id. (internal citations omitted). The Court found that because the abuse and death occurred within a span of about a week they were closely related. Id. The Court ultimately, therefore, found that the joinder of the charges was not prejudicial.
Here, Buchanan's counsel did not make a motion to sever. In determining whether this resulted in counsel being deficient, we must determine whether there is a substantial likelihood the result would have been different had counsel motioned to sever the two charges. The leg injury was thought to have occurred approximately eight days prior to the brain injury. Similar to Collins, we find that the proximity in time of the injuries would show that the crimes were closely related in time. We also find that they would be closely related in character and circumstance from the perspective that any intentionally inflicted injuries to a three-month-old infant are related in character and circumstance, regardless of whether one injury was to the leg and another to the brain. Therefore, as Collins demonstrates, Buchanan was not necessarily entitled to severance, considering that the charges were closely related in character, time, and circumstance. Counsel was, therefore, not deficient in deciding not to move for severance, even though Buchanan was ultimately entitled to a directed verdict on the criminal abuse charge. This "hindsight" prejudice is not sufficient to show that counsel was deficient. The trial court's denial of Buchanan's motion for post-conviction relief was, therefore, not clearly erroneous.
Conclusion
For the reasons stated herein, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: R. Christian Garrison
Department of Public Advocacy
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky