Opinion
NO. 2013-CA-000215-MR
02-27-2015
RUSSELL FARMER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Russell Farmer, Pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 08-CR-00204
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: Russell Farmer appeals pro se from the Logan Circuit Court's order denying his RCr 11.42 motion to vacate his convictions and sentence. For the following reasons, we affirm.
Kentucky Rules of Criminal Procedure.
In 2009, a jury in Logan Circuit Court convicted Farmer of first-degree rape, first-degree sodomy, first-degree sexual abuse, and incest. The jury recommended a total sentence of 30 years; the trial court imposed a sentence of 50 years. Farmer appealed his convictions and sentence to the Kentucky Supreme Court, which rendered a unanimous, not-to-be published opinion affirming the trial court's judgment. In that opinion, the Court summarized the facts underlying the case as follows:
Farmer v. Commonwealth, 2009-SC-000423-MR (Ky. Sept. 23, 2010).
In July 2007, A.F. [the victim] applied for a job as a police officer with the Russellville Police Department. During the job application process, Officer Kenneth Edmonds conducted a routine background check interview. During a series of questions relating to sexual abuse or molestation, A.F. fell silent. Then she revealed that she had suffered a long history of sexual abuse at the hands of her biological father, Russell Glenn Farmer. Initially, A. F. told Officer Edmonds that she did not want to press charges, but one year later, she changed her mind.
According to A.F.'s testimony, the incidents giving rise to the present charges began when she was approximately ten or eleven years old. The first incident occurred in a camper on Franklin Street, where Appellant and his then wife, Cindy Moore, lived. Appellant and A. F. were lying in bed when he touched her vagina through her clothes. Appellant then penetrated A.F.'s vagina with his fingers. A.F. also testified that Appellant forced her to perform oral sex on him four to five times on different days in the camper. Later that year, A.F. lived in an apartment on John Paul Avenue with her mother and two brothers. On one occasion, while A.F. was riding in a van with Appellant, he drove the van onto a gravel road and parked. While in the back of the van, Appellant grabbed A.F.'s face, started kissing her, and made her perform oral sex. Appellant also forced A.F. to masturbate him.
During this incident, A.F. threatened to tell her mother. Appellant responded by stating that if she did this, A.F. would find her mother "floating in the Adairville River." Appellant also told A.F. that no one would believe her, and that it was as much her fault as it was his.
When A. F. was approximately eleven or twelve years old, Appellant and Cindy moved their camper to Logan Estates Trailer Park. On one occasion, while A. F. was visiting, Appellant woke her up and asked her to "make him hard." Appellant grabbed A.F.'s face and made her perform oral sex on him. The following morning, while A.F. was taking a shower, Appellant took her to his room. Appellant proceeded to put his fingers in her vagina "really hard" to the point where she almost cried in pain. He then performed oral sex on her while making her perform oral sex on him. A.F. testified that this was just one of many instances of oral sex and digital penetration that occurred at Appellant's Logan Estates residence.
At the age of twelve or thirteen, A.F. moved to a residence on Rhea Boulevard. A.F. testified that she lived there for approximately two to three years, and that Appellant would molest her "every chance he got." She estimated at least 200 instances occurred during this period. At some point during this time, Appellant resided with a friend at Robin Wood Apartments. On one occasion, A.F. went to the apartment and was watching television with Appellant. Appellant said he was going to the store, but before leaving he placed a pink dildo on a coffee table. When Appellant returned, he forced A. F. to perform oral sex on him while he ran the dildo up the leg of her shorts. Additionally, A.F. testified that, on multiple occasions, Appellant would buy her alcohol and then time her to see how fast she could drink a beer. After having passed out from drinking, A.F. testified that she always woke up feeling sore.
One night, while spending the night at the Robin Wood apartment, Appellant woke A. F. and told her to be "real quiet." He forced open her legs and rubbed his penis against her vagina "over and over." A. F. testified that
Appellant attempted to place his penis inside her vagina and then removed it. Appellant tried a second time. In tears, A.F. told him to stop. A.F. testified that approximately 40-50 incidents of oral sex and digital penetration occurred at the Robin Wood apartment. The last incidence of abuse took place in a residence on Russell Street when A.F. was fourteen years old. A.F. and Appellant were wrestling in the living room. When A.F. tried to get up, Appellant held her down and left a "hickey" on her neck. After pulling down her shorts and panties, Appellant forced open A.F.'s legs, inserted his penis, and raped her. A.F. testified that it was the worst pain she had ever felt. When Appellant finished, A.F. told her father that it would not happen again or she would tell - "no matter what."
Appellant was indicted by the Logan County Grand Jury on two counts of rape in the first degree, one count of incest, 104 counts of sodomy in the first degree, and 104 counts of sexual abuse in the first degree. At the close of all evidence, the jury was instructed on eight counts of sodomy, six counts of sexual abuse, two counts of rape, and two counts of incest. The jury found Appellant guilty of one count of rape in the first degree, one count of sodomy in the first degree, one count of incest, and one count of sexual abuse in the first degree. The jury returned a not guilty verdict on all other counts. At the penalty phase, the jury recommended sentences of 20 years for the rape conviction, 20 years for the sodomy conviction, 10 years for the incest conviction, and 5 years for the sexual abuse conviction. The jury further recommended that the sentences for the rape, sodomy and sexual abuse convictions run concurrently with one another, and consecutively with the sentence for the incest conviction, for a total of 30 years. The trial court did not follow the jury's recommendation and instead ordered that the sentences for the rape, sodomy and sexual abuse convictions run consecutively, and that the sentence for the sexual abuse conviction run, concurrently, for a total sentence of 50 years.
Farmer then filed a pro se RCr 11.42 motion with the trial court arguing that his convictions and sentence should be vacated on grounds that he received ineffective assistance of counsel. He also filed a number of accompanying motions, including a motion to reserve the right to supplement the RCr 11.42 memorandum, a motion to proceed in forma pauperis, a motion for appointment of counsel, a motion for an evidentiary hearing, and a motion for judicial recusal and change of venue in connection with the RCr 11.42 proceeding.
The trial court denied Farmer's motions. With respect to the RCr 11.42 motion, the court found that Farmer had failed to allege sufficient facts that would justify granting post-conviction relief. Farmer appealed, and moved for appointment of counsel on appeal. This court denied his motion for appointment of counsel after the Department of Public Advocacy ("DPA") reviewed the record and indicated that this post-conviction proceeding is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense. Farmer's pro se appellate brief is now before us to consider, as well as the Commonwealth's response brief.
On appeal, Farmer reasserts his claims of ineffective assistance of counsel which he brought before the trial court, and also raises additional claims. However, as will be shown, reversal is not warranted. Farmer's claims are either unpreserved, conclusory, refuted by the record, or simply meritless.
I. RCr 11.42 - General law and standard of review
Farmer bears the burden on appeal of showing that the trial court committed clear error by denying his motion for RCr 11.42 relief. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). "The test for a clearly erroneous determination is whether that determination is supported by substantial evidence." Id.
In order to prove ineffective assistance of counsel, a movant must show: (1) that counsel's representation was deficient in that it fell below an objective standard of reasonableness, measured against prevailing professional norms; and (2) that he was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); adopted by Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). Judicial review of performance of defense counsel is deferential to counsel and a strong presumption exists that the conduct of counsel falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
In order to receive an evidentiary hearing on an RCr 11.42 motion, the movant must allege factual allegations which, if true, demonstrate '"a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack.'" Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008) (citation omitted). If the movant makes such allegations, a hearing "is only required when the motion raises 'an issue of fact that cannot be determined on the face of the record.'" Id. (citation omitted). "Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of discovery." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
II. Unpreserved claims are not reviewable on appeal
Many of Farmer's claims fail as being unpreserved, meaning Farmer did not raise them in his RCr 11.42 motion filed with the trial court. These include his claims that trial counsel failed to review discovery to obtain "highly impeachable evidence," failed to object to bolstering, failed to object to the Commonwealth's "excessive" penalty phase closing argument, failed to secure a doctor or expert on abuse, and claims relating to sex offender registration and double jeopardy. Farmer also raises claims of ineffective assistance of appellate counsel that were never presented to the trial court. The Kentucky Supreme Court has made clear that a specific claim of ineffective assistance of counsel which was not raised in the appellant's RCr 11.42 motion will not be considered on appeal. Bowling v. Commonwealth, 80 S.W.3d 405, 419 (Ky. 2002). While Farmer alleged in his RCr 11.42 motion that trial counsel "was ineffective in his representation" and that counsel committed "numerous" prejudicial errors and omissions, these general complaints are insufficient to put the trial court on notice of the specific claims he now asserts on appeal. Accordingly, these claims are unpreserved and we will not consider them.
III. Claims that are conclusory fail for being insufficiently specific
In addition, a number of Farmer's claims fail as being insufficiently specific. These include his claims that trial counsel failed to investigate, failed to interview witnesses, failed to review discovery to obtain "highly impeachable evidence," failed to object to hearsay and other evidentiary errors, failed to object to bolstering, failed to impeach adverse witnesses, and failed to call witnesses for the defense.
Farmer offers little to no specific details to support these claims. He does not indicate what investigation should have occurred, or what impeachment evidence should have been discovered. Nor does he identify the witnesses who he claims should have been interviewed or called to testify. He similarly fails to indicate the bolstering, hearsay, and other errors to which he claims his trial counsel should have objected. In an RCr 11.42 proceeding, the movant "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." RCr 11.42(2). "[V]ague allegations, including those of failure to investigate" are insufficient to warrant an evidentiary hearing and justify summary dismissal of the RCr 11.42 proceeding. Mills v. Commonwealth, 170 S.W.3d 310, 330 (Ky. 2005), overruled on other grounds by Leonard, 279 S.W.3d 151. Here, Farmer's general allegations do not meet the RCr 11.42 specificity requirement and fail for being conclusory.
IV. Claims that are refuted by the record must fail
The only ineffective assistance of counsel claims that are properly before this court include Farmer's claim that his counsel failed to move for a change of venue and failed to object to the mention of a polygraph examination. As noted, pursuant to the Strickland two-part test, the movant must show both that counsel's performance was deficient and that the deficiency caused actual prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700, 104 S.Ct. at 2071.
To establish deficient performance, the movant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. In order to do so, the movant must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Judicial review of counsel's performance is highly deferential to counsel and indulges a strong presumption that the conduct of counsel falls within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S.Ct. at 2066.
In order to establish prejudice, the movant must show that counsel's errors deprived the movant of a fair trial, i.e., a trial in which the result is reliable. Id. at 687, 104 S.Ct. at 2064. Specifically, the movant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.
With respect to Farmer's contention that trial counsel was ineffective for failing to move for a change of venue, "[u]nder both the due process clause and KRS 452.210, [a] defendant is entitled to a change of venue if it appears that he cannot receive a fair trial in the county where the prosecution is pending." Dunn v. Commonwealth, 360 S.W.3d 751, 768-69 (Ky. 2012). A defendant seeking a change in venue must do so by filing a written, verified petition and accompanying affidavits setting forth the reasons a change is necessary. KRS 452.220(2). Here, Farmer asserts that A.F. and her husband were Logan County law enforcement officers who were known in the courthouse and the community and thus, counsel should have questioned whether he could receive a fair trial in Logan County.
Kentucky Revised Statutes.
But Farmer has not shown that counsel was deficient in failing to move for a change in venue. A number of legitimate, strategic reasons could explain why counsel would not seek a change in venue; Farmer has not persuaded us that the failure to seek a change in this case was not the result of sound trial strategy. In addition, Farmer has failed to show prejudice. He asserts that several members of the jury had relationships with A.F. and her husband, but Farmer fails to identify those jury members, articulate their alleged relationship with A.F. and her husband, or cite to the portion of the record which might support his claim. Again, a general allegation does not meet the specificity requirement of RCr 11.42. And, this court is not required to comb the record for evidence in support of a movant's general assertion. See Monumental Life Ins. Co. v. Dep't of Revenue, 294 S.W.3d 10, 23 (Ky. App. 2008) (declining to address an issue on its merits because appellant failed to provide citations to any of the evidence in the record which allegedly supported the arguments). Accordingly, this claim fails.
Next, with respect to Farmer's argument that trial counsel was ineffective for not objecting to mention of a polygraph examination, he points to two instances at trial during which references to a polygraph examination were made - during A.F.'s testimony and during the Commonwealth's closing argument. Farmer maintains that these references to the polygraph examination were improper, and trial counsel was deficient for failing to object.
During A.F.'s direct examination, she testified that she first notified law enforcement of Farmer's abuse when she applied to become a law enforcement officer. A.F. testified in part as follows:
Q: Did you ever tell law enforcement?
A: Not until I had to when I got hired.
Q: When was that?
A: '07, July of '07.
Q: Who did you tell?
A: Detective Edmonds.
Q: And why did you tell him?
A: The hiring process, you have to go through a polygraph test. They give you this real big packet with all kinds of questions about your whole life, like financial, and abuse and everything else. The packet was really easy except there was a question on there "Have you ever been involved in a molestation or any kind of sexual abuse by a family member?" I didn't know what to say because I wanted my job, I wanted to be a police officer since I was a kid and I didn't want to jeopardize it. So when Detective Edmonds called me in for my background to go over the questions with me, he got to that question and he asked me about it. I just sat there and he told me he needed to know because it was part of the process.
Later, during the Commonwealth's closing argument, a second reference to the polygraph examination was made:
So why and when did [A.F.] finally tell the truth? How did we come to be here after all these years? Why? Because she had always wanted to be a police officer. And in the summer of 2007, that dream was coming true. And she met with Detective Ken Edmonds, and as part of getting that job he was doing a background check on her. And he was asking a lot of questions. And one of those questions was "Have you ever been involved in child sexual abuse or molestation?"
And Detective Edmonds told you how they had just been going through the questions until they got to that one and there was silence. And he finally looked up and [A. F] told him, "I didn't do it." And then she went on and told him what had happened? Why then? Because [A.F.] told you, she knew she had to pass a polygraph test to get this job. And she was afraid if she didn't tell them, she would not get this job.
Ladies and Gentlemen, we don't have a motive to lie. We have a motive to tell the truth-why the truth came out when it did. But she still didn't press charges. Detective Edmonds told you that [A.F.] didn't know that question was on there. He told you that nobody knows what
questions are on his background checks. She didn't know that question was coming. She was forced to tell the truth to get the job she always wanted. Detective Edmonds has no reason to lie to you.
The Kentucky Supreme Court has held that evidence of, and references to, polygraph examinations is inadmissible. Baril v. Commonwealth, 612 S.W.2d 739, 743 (Ky. 1981). See also Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984) (excluding evidence of, and mention of, the taking of a polygraph since such examinations have not been recognized as scientific or reliable). However, not every mention of a polygraph examination is grounds for reversible error. See, e.g., Major v. Commonwealth, 177 S.W.3d 700, 709 (Ky. 2005) (officer's testimony that he offered defendant a chance to take a polygraph, in a context that did not necessarily suggest a polygraph was taken, was inadvertent and not grounds for a mistrial). Indeed, "[t]he mere mention of the words 'polygraph' or 'polygraph examiner' is not fatal, per se. There must arise a clear inference that there was a result and that the result was favorable, or some other manner in which the inference could be deemed prejudicial." McQueen v. Commonwealth, 669 S.W.2d 519, 523 (Ky. 1984).
Farmer has not convinced us that trial counsel was deficient for failing to object, or that a "reasonable probability" exists that the result of the trial would have been different had counsel objected. With regards to A.F.'s testimony, the mention of a polygraph examination was not made in an effort to bolster her credibility. Instead, the reference was made in order to explain the surrounding circumstances in which she first disclosed the abuse. In addition, no mention of whether the polygraph was actually administered, or of its results, was made. Thus, we do not believe that A.F.'s brief and nondescript reference to the polygraph requires reversal.
The Commonwealth's reference to the polygraph during closing argument was made in a similar vein and does not justify reversal either. Closing arguments are not evidence and wide latitude is allowed to counsel. Mullins v. Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011). Counsel may draw reasonable inferences from the evidence and propound explanations of the evidence to explain why the evidence supports their particular theory of the case. Id.
At all times during trial, Farmer maintained his innocence. The Commonwealth was therefore entitled to provide an explanation for A.F.'s late reporting. While unfortunately, within that explanation A.F. referred to an anticipated polygraph examination, which the Commonwealth reiterated during closing arguments, we do not believe a reasonable probability exists that the outcome of the trial would have been different had no mention of the polygraph examination been made. In fact, the jury's verdict implies that no prejudice occurred. The jury was instructed on eight counts of sodomy, six counts of sexual abuse, two counts of rape, and two counts of incest. The jury convicted Farmer of one count of rape in the first degree, one count of sodomy in the first degree, one count of incest, and one count of sexual abuse in the first degree. Farmer was acquitted on all other charges. Each count for which Farmer was convicted related to events transpiring at the Robin Wood apartment for which additional circumstantial evidence linking Farmer to those crimes was introduced. Thus, considering the circumstances in which mention of the polygraph examination was made, and the nature of the jury's verdict, any error by counsel was not sufficient to undermine confidence in the outcome of the trial. In other words, even if trial counsel was deficient by not objecting to mention of the polygraph examination, we do not believe Farmer was prejudiced or denied due process as a result.
V. Trial court's sentence increase was proper
Farmer asserts that the trial court lacked authority to not follow the jury's 30-year recommended sentence and to impose a sentence of 50 years instead. The Commonwealth maintains that this claim should have been raised on direct appeal, was not raised, and therefore cannot be raised now in an RCr 11.42 proceeding. See Leonard, 279 S.W.3d at 158 (convicted defendant is barred from collaterally attacking issues which could and should have been raised in the trial court and upon direct appeal). However, an appellate court has inherent power to correct an illegal sentence at any time, whether or not the sentencing issue was preserved in the trial court. Jones v. Commonwealth, 382 S.W.3d 22, 27 (Ky. 2011).
The Commonwealth is correct that Farmer's claims of error relating to sex offender registration and double jeopardy, which we have already declined to consider since Farmer failed to raise them in the trial court, likewise are claims that should have been raised on direct appeal but were not and therefore are now barred.
Farmer contends the trial court erred by not following the jury's recommendation of concurrent sentences. But Farmer overlooks the fact that a jury's recommendation as to concurrent or consecutive sentencing is not mandatory or binding upon the trial judge. Murphy v. Commonwealth, 50 S.W.3d 173, 178 (Ky. 2001) ("KRS 532.055 does not impose a duty upon the trial court to accept the recommendation of the jury as to sentencing. The jury's recommendation is only that, and has no mandatory effect."). Here, the trial court was authorized to not follow the jury's recommendation and to impose consecutive sentences instead. As a result, Farmer's sentencing claim fails.
VI. Farmer was not improperly denied counsel on appeal
Lastly, Farmer asserts that his constitutional rights were violated when the DPA declined to represent him on appeal. However, no constitutional provision mandates that a state provide relief from conviction or sentence by way of collateral attack. Moore v. Commonwealth, 199 S.W.3d 132, 136 (Ky. 2006) ("the constitutional right to counsel, and, concomitantly, to effective assistance of counsel, is limited to a first direct appeal from a judgment of conviction and not to discretionary appeals or appeals from collateral attacks."). Moreover, KRS 31.110(2)(c) directs the DPA not to provide representation in post-conviction proceedings if it determines that the proceeding "is not a proceeding that a reasonable person with adequate means would be willing to bring at his or her own expense[.]" In this case, the DPA reviewed the record as ordered by this court and made such a determination under KRS 31.110(2)(c). Based on that determination, this court denied Farmer's motion for appointment of counsel. No error occurred.
VII. Conclusion
For the foregoing reasons, we find that Farmer's claims of error do not warrant relief or reversal for an evidentiary hearing. The Logan Circuit Court's order denying his motion for RCr 11.42 relief is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Russell Farmer, Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky