Opinion
NO. 2012-CA-000082-MR
05-10-2013
DERWIN I. NICKELBERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Aaron Reed Baker Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 05-CR-003685
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. CAPERTON, JUDGE: Derwin Nickelberry appeals from the denial of his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion seeking to vacate his seventy-year sentence of imprisonment for fifteen counts of robbery in the first degree and three counts of theft by unlawful taking over $300 entered by the Jefferson Circuit Court. Ultimately, we agree with Nickelberry that his claims cannot be conclusively resolved by the record; accordingly, we reverse and remand this matter for an evidentiary hearing.
We pass no judgment on the validity of Nickelberry's alleged ineffective assistance of counsel claims or his alleged Brady violation; instead we are simply in agreement with Nickelberry that an evidentiary hearing is required on these matters pursuant to Fraser, infra.
In October 2006, Nickelberry was tried for robbing twelve separate businesses in 2003. A jury convicted him of seven of these robberies, resulting in fifteen counts, one for each victim at those seven robberies. Nickelberry was also convicted of three theft charges for stealing three vehicles from three robbery scenes. Nickelberry was sentenced to seventy years. Of import, the robbery spree was carried out by a group of conspirators across multiple counties. The Commonwealth, in convicting Nickelberry in Jefferson County, relied upon the testimony of two co-defendants, Tommy Hardin and Jeannine Spicer, who received plea deals in return for their testimony.
Following the Kentucky Supreme Court's affirmance of his conviction on direct appeal, Nickelberry filed a motion for relief pursuant to RCr 11.42 on August 19, 2009, alleging several instances of ineffective assistance of counsel. The trial court appointed counsel and the motion was supplemented by counsel. The court held oral arguments on the matter but did not hold an evidentiary hearing. Thereafter, the court issued its order denying Nickelberry's RCr 11.42 motion. It is from this that Nickelberry now appeals.
On appeal, Nickelberry presents five rather lengthy arguments which we have concisely characterized as whether the trial court erred by denying Nickelberry's RCr 11.42 motion without an evidentiary hearing based on: (1) the alleged Brady violation; (2) the alleged ineffective assistance of counsel claim for failure to investigate the potential exculpatory statements made by Hardin and Spicer in other counties; (3) alleged ineffective assistance of counsel claim for failing to present better alibi witnesses at trial; (4) alleged ineffective assistance of counsel claim for failing to offer into evidence the surveillance video of the robbery or to use it to impeach eyewitnesses; and (5) alleged ineffective assistance of counsel due to cumulative error. The Commonwealth disagrees with Nickelberry and argues that the trial court properly denied the RCr 11.42 motion without a hearing. With these arguments in mind we turn to our applicable jurisprudence.
We decline to address this fifth alleged error at this time given our remand.
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). See also Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002). As set out 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.
We must keep in mind that, "Strickland articulated a requirement of reasonable likelihood of a different result but stopped short of outcome determination." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
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Moreover, 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, 104 S.Ct. at 4065.
In appealing from the trial court's grant or denial of relief based on ineffective assistance of counsel the appealing party has the burden of showing that the trial court committed an error in reaching its decision. Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008). We note that as both parts of the Strickland test for ineffective assistance of counsel involve mixed questions of law and fact, the reviewing court must defer to the determination of facts and credibility made by the trial court. Brown, supra, citing McQueen v. Commonwealth, 721 S.W.2d 694, 698 (Ky. 1986).
On the issue of whether an evidentiary hearing was proper, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), is controlling. Under Fraser, a hearing on the issues raised in an RCr 11.42 motion is required if there is a material issue of fact that cannot be conclusively resolved by an examination of the record. Id. at 452. With these standards in mind we turn to the arguments of the parties.
First, Nickelberry argues that the trial court erred by denying Nickelberry's RCr 11.42 motion without an evidentiary hearing based on the alleged Brady violation. In support of his argument, Nickelberry alleges that although the case sub judice is a Jefferson County case, the string of robberies of which Nickelberry was convicted spanned several counties. The initial police investigation began in Hardin County and there was significant cooperation between the counties in investigating and prosecuting these robberies.
Nickelberry further alleges that two of Nickelberry's co-defendants, Hardin and Spicer, gave exculpatory statements allegedly implicating others in multiple counties and that Spicer stated that she would do whatever it takes to help Hardin. These statements were not produced in discovery in the Jefferson County case and not located until after trial; Nickelberry argues that the statements are potentially exculpatory and could have been used to impeach Spicer. Nickelberry became aware of the existence of the statements by reviewing the trial attorney's file which listed that there was a report from the Radcliffe Police Department but the actual recordings were not part of discovery at trial.
When questioned by the trial court about these statements, the Commonwealth responded that the material is not potentially exculpatory and that trial counsel for Nickelberry must have been aware of the statements as evidenced by his file.
The court denied Nickelberry's RCr 11.42 motion without an evidentiary hearing based on the alleged Brady violation, and found that Nickelberry was not entitled to additional discovery to attempt to find exculpatory information that was previously known and available to him. The court further found that there was no indication that the evidence was material or that its disclosure would have altered the trial's outcome. Moreover, the court found that Nickelberry was empowered to impeach the co-defendants' testimony by demonstrating their bias and intention to testify against him solely to receive lesser sentences.
Recently the Kentucky Supreme Court addressed an alleged Brady violation:
In Brady, the U.S. Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where theJames v. Commonwealth, 360 S.W.3d 189, 197 (Ky. 2012).
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. "Evidence favorable to the accused" includes impeachment evidence as well as directly exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ("Impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule. Such evidence is 'evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (citations omitted)). Whether a Brady violation occurred is reviewed de novo. Commonwealth v. Bussell, 226 S.W.3d 96, 100 (Ky. 2007).
Nickelberry argues that without having reviewed the information that is the basis of his Brady violation sub judice the trial court could not determine if a violation had occurred, namely, whether the information was material or known to the Commonwealth. We agree. The parties urge this Court to remand this matter for an in camera review of the information which constitutes the basis of the alleged Brady violation. As such, we remand this matter for the trial court to review in camera. See United States v. Presser, 844 F.2d 1275, 1277 (6th Cir. 1988) ("The government also submitted materials to the district court in camera to determine their discoverability under the Brady doctrine.")
Having so found, we now turn to Nickelberry's second argument on appeal, wherein he argues that the trial court erred by denying Nickelberry's RCr 11.42 motion without an evidentiary hearing based on the alleged ineffective assistance of counsel claim for failure to investigate the potential exculpatory statements made by Hardin and Spicer in other counties. Nickelberry concedes that this alleged error is very similar to his first claimed error of a Brady violation.
As noted, the trial court in denying his RCr 11.42 motion without an evidentiary hearing determined that even if counsel's performance was deficient, such performance did not prejudice Nickelberry based on the effective cross-examination of his two co-defendants and their motivation for testifying, namely to receive lesser sentences in exchange for their cooperation. We agree with Nickelberry that an evidentiary hearing is required; the record simply does not conclusively resolve this issue. After the trial court's in camera review of the alleged Brady violation material, the trial court will be able to better assess whether Nickelberry was prejudiced by counsel's performance, especially in light of the evidence presented at the evidentiary hearing, such as whether trial counsel was aware of any material information and failed to pursue it. See Bowling v. Commonwealth, 80 S.W.3d at 410 ("Brady only applies to the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.") (internal quotation marks omitted).
As his third basis for appeal, Nickelberry argues that the trial court erred by denying Nickelberry's RCr 11.42 motion without an evidentiary hearing based on the alleged ineffective assistance of counsel claim for failing to present better alibi witnesses at trial. Nickelberry asserts that there were witnesses available who could have testified to their frequent daily interactions with Nickelberry which would have shown it was unlikely that he had the opportunity to commit the robberies. These included his family with whom he lived, LaToya Nickelberry and Octavia Nickelberry, and close friends Christ Stewart and Nakita Riley. Nickelberry claims that these individuals would have testified that he was always near home and that none of these people remembered him leaving late at night when the robberies occurred.
Instead of calling these individuals to testify, trial counsel for Nickelberry only had Nickelberry's mother testify. Nickelberry's mother did not live with him and did not see him on a regular basis. Thus, Nickelberry asserts that the proffered witnesses would have been more suitable as alibi witnesses.
The trial court in denying Nickelberry's RCr 11.42 motion without an evidentiary hearing opined that counsel's decision to present solely Nickelberry's mother was suitable and discretionary tactic to which Nickelberry suffered no tangible harm. The trial court reasoned that the testimony of additional friends and family as to Nickelberry's general inability to run around the state committing felonies was in the same vein as the testimony proffered by his mother.
We disagree with the trial court that such a conclusion may be reached without an evidentiary hearing sub judice. The question of whether the named witnesses would have produced alibi testimony had trial counsel properly investigated cannot be conclusively refuted by the record. Therefore, we reverse and remand to the trial court for an evidentiary hearing on this issue.
Last, Nickelberry argues that the trial court erred by denying Nickelberry's RCr 11.42 motion without an evidentiary hearing based on the alleged ineffective assistance of counsel claim for failing to offer into evidence the surveillance video of the robbery or to use it to impeach eyewitnesses. The trial court in denying Nickelberry's RCr 11.42 motion without an evidentiary hearing opined that counsel's decision to not present video evidence of the robberies may simply have been part of well-reasoned trial strategy in not presenting to the jury video of the criminal conduct itself. Again we agree with Nickelberry that the record does not conclusively refute this allegation of ineffective assistance of counsel; accordingly, we remand this matter for an evidentiary hearing.
In light of the aforementioned we reverse and remand this matter for an evidentiary hearing on Nickelberry's RCr 11.42 motion.
ALL CONCUR. BRIEF FOR APPELLANT: Aaron Reed Baker
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky