Opinion
NO. 2013-CA-001923-MR
06-05-2015
MICHAEL AVERY ELERY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Michael Elery, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 09-CR-000625
OPINION
AFFIRMING
BEFORE: J. LAMBERT, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Michael Avery Elery, pro se, appeals from the summary denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for post conviction relief due to ineffective assistance of counsel.
[Elery] was convicted of murdering his girlfriend, Dana McDonald. Before the murder, McDonald and [Elery] shared an apartment in Jefferson County, despite the fact
that she had obtained a domestic violence order against [Elery].Elery v. Commonwealth, 368 S.W.3d 78, 82-3 (Ky. 2012). Following a jury trial, Elery was convicted of murder, tampering with physical evidence and violating a protective order. He was sentenced to life in prison without possibility of probation or parole. In 2012, Elery's convictions were affirmed on appeal. Id. at 82.
On the night before the murder, McDonald and [Elery] had an argument. The argument resumed the following morning. According to [Elery], while he was in the bedroom, McDonald entered the room carrying a kitchen knife, threatening "to cut [Elery's] ass up." [Elery] later stated to police that he did not believe McDonald would actually hurt him. Nonetheless, he picked up a nearby hammer and struck the top of her head. In the ensuing fight, [Elery] hit her again with the hammer. McDonald fell back against the wall but continued to fight back, apparently stabbing herself in the arm in the process. At that point, [Elery] wrested the knife from McDonald and stabbed her in the throat two times. After stabbing McDonald in the throat the second time, [Elery] choked her into unconsciousness.
[Elery] then wrote a note on an index card stating "I don't know what is wrong with me but I'm killing myself, Mike." He wiped off the knife and replaced the hammer under the sink, placed a bed sheet and dirty clothes over the walls and floor, took McDonald's cellular phone, and locked the apartment as he left.
While driving, he threw McDonald's phone out the window at 10th Street and Market Street. Following discussions with family members about what had just occurred, he threw his own cell phone away, purchased a bottle of liquor and proceeded to Harrison County Hospital in Indiana while drinking the liquor. Upon arrival, he asked that a sheriff be called. The [Harrison County, Indiana] officer answering the call arrested [Elery] for public intoxication. [Elery] spoke to police in Indiana, including a Louisville Police Detective, and confessed to killing McDonald. He was transported back to Louisville, where he spoke with Louisville Police officers at length about the death of McDonald. Both interviews were recorded.
Elery promptly filed an RCr 11.42 motion claiming ineffective assistance of trial counsel because counsel failed to: (1) investigate his arrest and seizure of evidence based upon his illegal arrest and file a proper pretrial motion to exclude evidence obtained as fruit of his illegal arrest; (2) move to suppress or object to evidence Elery committed another uncharged murder; and (3) object to erroneous jury instructions which allowed amendment of the indictment so that the Commonwealth was not required to meet its burden of proof. Elery requested a new trial or an evidentiary hearing. The circuit court summarily denied this motion. Elery appealed.
In order to be entitled to the extraordinary relief of RCr 11.42, Elery must establish he was deprived of his constitutional right to counsel. Brown v. Commonwealth, 253 S.W.3d 490, 499-500 (Ky. 2008). Under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), Elery must show his counsel's performance was incompetent and prejudiced him because it fell below an objective standard of reasonableness and there is a reasonable probability that the result of the proceeding would have been different but for counsel's errors. Hatcher v. Commonwealth, 310 S.W.3d 691, 696 (Ky.App. 2010).
On appeal, we examine counsel's performance and any resulting deficiencies de novo. Brown, 253 S.W.3d at 500. When an evidentiary hearing is not held on an RCr 11.42 motion, "[o]ur review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). A hearing is required if there is a material issue of fact that cannot be determined on the face of the record. Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). "The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them." Fraser v. Commonwealth, 59 S.W.3d 448, 452-453 (Ky. 2001).
Elery argues he was illegally arrested in Indiana by Louisville police and should have been extradited from Indiana instead. Therefore, his confession to Louisville police in Indiana and all evidence seized as a result of this confession which formed the basis for subsequent searches relating to the murder should have been suppressed.
We note that Elery's counsel did file a pretrial motion to suppress Elery's statement in Indiana to Louisville police officers arguing Elery was too intoxicated to voluntarily confess. Elery also made a pro se motion to suppress his confession based on the actions of Harrison County, Indiana, police officers questioning him before he was arrested for public intoxication. Following a suppression hearing, the trial court denied the suppression motions ruling Elery voluntarily engaged in conversation with Harrison County police officers before being arrested, he was properly Mirandized before making voluntary statements to Louisville police officers while in Harrison County custody and he was properly Mirandized before making voluntary statements to Louisville police officers in Louisville. The denial of the motion to suppress was not challenged on appeal, but Elery does not claim ineffective assistance of counsel on failure to raise this issue on appeal.
Having reviewed the recording of Elery's statement to Louisville Detective Michael Smith while in Harrison County custody, we conclude the record refutes Elery's claim. Smith informed Elery he was arrested in Indiana for alcohol intoxication before he Mirandized Elery. There was nothing to suggest that Smith was placing Elery in Louisville police custody before Elery confessed.
The recorded statement establishes that after Elery confessed, Smith asked if Elery would voluntarily agree to return to Louisville with them explaining that Elery was in Indiana and Louisville police could not require him to return. Smith explained he wanted Indiana to release Elery from its custody to go with Louisville police officers. Elery agreed to voluntarily return to Kentucky.
There is nothing to suggest that at any time during Smith's interview with Elery, Elery was placed in Louisville police custody or that Elery's agreement to return to Kentucky with Louisville police was anything other than a voluntary effort to fully cooperate in their investigation. Because Elery voluntarily went with Louisville police officers, he was not in custody when he showed them various locations where evidence could be found. While Elery may now regret confessing and cooperating with police, no illegality occurred. Therefore, to the extent that Elery's claim of error raises any additional grounds to those raised by his counsel's motion to suppress, Elery's counsel did not err because there was no basis for suppressing this evidence.
Elery's second and third arguments are an attempt to revisit issues addressed by the Kentucky Supreme Court on direct appeal. Elery is incorrect that his counsel failed to move to suppress or object to evidence Elery had committed another uncharged murder. Pursuant to a motion in limine, Elery's counsel moved to suppress statements Elery made in his recorded statements to police, which related to his confession to another murder for which he was never tried. Following argument, the Commonwealth agreed not to introduce this evidence, but its redaction was imperfect. The Kentucky Supreme Court determined counsel's motion sufficiently preserved this issue, considered each unredacted statement in detail, but determined the inclusion of these statements was harmless error. Elery, 368 S.W.3d at 85-88.
While Elery failed to specify which jury instructions he believes allowed amendment of the indictment so that the Commonwealth was not required to meet its burden of proof, we conclude he was again attempting to challenge the jury instructions about extreme emotion disturbance (EED) and failure to instruct on reasonable doubt when EED is at issue. Both challenges were raised on direct appeal. The Kentucky Supreme Court determined Elery's counsel sufficiently preserved for review whether the trial court requiring the jury to find the existence of EED before it could find him guilty of manslaughter instead of murder was erroneous, but determined if there was an error, it was harmless. Id. at 89-91. Therefore, there was no error by counsel.
Elery's counsel may have erred in failing to request an independent instruction detailing the relationship between murder and manslaughter when EED is at issue because the absence of such a request did not preserve the trial court's error in failing to give such an instruction and resulted in the Kentucky Supreme Court only reviewing the lack of such instruction for palpable error. Id. at 91-2. However, Elery cannot establish he was prejudiced under the Strickland standard.
The Kentucky Supreme Court determined the murder instruction under which Elery was found guilty was proper because it required the jury to find beyond a reasonable doubt the absence of EED. Elery, 368 S.W.3d at 92. The Kentucky Supreme Court also emphasized that "while such an independent instruction is not required . . . it is available upon request if supported by the evidence[.]" Id. at 93 (internal citations omitted). In light of the overwhelming evidence against Elery and the determination that the instruction the jury received was proper, we cannot say there is a reasonable probability that Elery would have been acquitted or convicted of manslaughter had this additional optional instruction been properly requested and given.
Accordingly, we affirm the Jefferson Circuit Court's denial of Elery's RCr 11.42 motion.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael Elery, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky