Opinion
NO. 2014-CA-001631-MR
02-09-2018
DERWIN I. NICKELBERRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Derwin I. Nickelberry, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, 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NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT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-003685-003 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING WITH DIRECTIONS
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BEFORE: ACREE, JOHNSON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Derwin I. Nickelberry brings this pro se appeal from a June 18, 2014, Opinion and Order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion after an evidentiary hearing. We affirm in part, vacate in part, and remand with directions for the circuit court to undertake a legal analysis pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) and determine if a Brady violation occurred.
In October 2006, appellant was tried by a jury and found guilty of fifteen counts of first-degree robbery and three counts of theft by unlawful taking over $300. The armed robberies were allegedly carried out by a group of individuals. The Commonwealth introduced the testimony of two co-defendants, Tommy Hardin and Jeanine Spicer, to secure appellant's conviction. Thereafter, appellant pursued a direct appeal of his conviction, and in Appeal No. 2006-SC-000865-MR, the Supreme Court affirmed same on August 21, 2008.
In August 2009, appellant then filed an RCr 11.42 motion in the Jefferson Circuit Court. Appellant asserted that exculpatory and/or impeachment evidence favorable to him was not provided by the Commonwealth to his trial counsel. In particular, appellant claimed that Hardin and Spicer gave recorded audio statements to the Radcliffe Police Department. However, appellant maintained that these recorded statements were never produced by the Commonwealth, thus resulting in a violation of due process per the holding of Brady, 373 U.S. 83. Appellant also claimed that trial counsel rendered ineffective assistance. By Opinion and Order entered November 20, 2011, the circuit court denied appellant's RCr 11.42 motion without an evidentiary hearing.
Appellant filed an appeal in the Court of Appeals. In Appeal No. 2012-CA-000082-MR, by Opinion rendered May 10, 2013, this Court reversed and remanded the case to the circuit court for an evidentiary hearing on the RCr 11.42 motion. Specifically, the Court of Appeals instructed the circuit court to conduct an in camera review of the alleged recorded audio statements made by Hardin and Spicer and not produced by the Commonwealth to determine if a Brady violation occurred. See id. The Court also remanded for an evidentiary hearing upon appellant's specific claims of ineffective assistance of counsel.
Upon remand, the circuit court held the evidentiary hearing, and by Opinion and Order entered June 18, 2014, the circuit court denied appellant's RCr 11.42 motion. This appeal follows.
Appellant contends that the circuit court committed error by denying his RCr 11.42 motion. To prevail, appellant must demonstrate that trial counsel's performance was deficient and that such deficiency resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove prejudice, appellant must show that there is a reasonable probability that the result of the trial would have been different absent trial counsel's deficient performance. See id. And, as an evidentiary hearing was conducted, the circuit court's findings of fact will not be set aside unless clearly erroneous. Kentucky Rules of Civil Procedure 52.01.
Appellant initially asserts that the circuit court erroneously failed to follow the mandate in the Court of Appeals' Opinion in Appeal No. 2012-CA-000082-MR. Specifically, appellant maintains that the Court of Appeals instructed the circuit court to hold an evidentiary hearing upon remand and determine if a Brady violation occurred. Appellant argues that the circuit court failed to make such determination. In its brief, the Commonwealth concedes that the Court of Appeals instructed the circuit court to determine if a Brady violation occurred and that the circuit court did not "directly undertake a Brady examination." Commonwealth's Brief at 4.
A decision of an appellate court, unless properly set aside by a higher court, is controlling at all subsequent stages of the litigation, which includes the requirement that on remand, as in this case, the trial court must strictly follow the mandate of the appellate court. Inman v. Inman, 648 S.W.2d 847 (Ky. 1982). It is a fundamental rule that when a case is remanded to a trial court, the court is without power to entertain objections or make modifications to the appellate court decision. Williamson v. Com., 767 S.W.2d 323 (Ky. 1989).
In Brady, the United States Supreme Court held that due process is offended by the "suppression by the prosecution of evidence favorable to an accused upon request . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87; see also Com. v. Bussell, 226 S.W.3d 96 (Ky. 2007). The Supreme Court clarified that evidence favorable to the accused may be exculpatory or impeachment evidence. Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 114 L. Ed. 2d 286 (1999). And, the Supreme Court set forth three components necessary to demonstrate a Brady violation:
There are three components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.Strickler, 527 U.S. at 263.
After having thoroughly reviewed the circuit court's June 18, 2014, Opinion and Order and the record below, we agree that the circuit court failed to follow this Court's earlier mandate and conduct a legal analysis pursuant to Brady and failed to determine whether a Brady violation occurred. See Court of Appeals Opinion, Appeal No. 2012-CA-000082-MR. We, therefore, vacate and remand with directions that the circuit court conduct a legal analysis pursuant to Brady and specifically conclude whether a Brady violation occurred. In so doing, the circuit court is further directed to include in its Brady analysis the three components as set forth above in Strickler, 527 U.S. 263. We also note that from our review of the evidentiary hearing, myriad factual issues may also be presented in relation to Brady. Accordingly, it is incumbent upon the circuit court to make separate findings of fact and conclusions of law upon remand. See Bussell, 226 S.W.3d 96.
For instance, trial counsel testified that she had received an investigative letter from the Radcliffe Police Department. Trial counsel explained that the letter indicated that Tommy Hardin and/or Jeanine Spicer had given the police recorded audio statements. Trial counsel then requested all recorded statements given by Hardin and Spicer. However, trial counsel stated that she was informed that no recorded statement existed as to Spicer and that she possessed all statements. --------
Appellant also contends that trial counsel was ineffective for failing to introduce into evidence surveillance videos taken at the time of the robberies. Appellant believes that either he was not present on these videos or the videos did not show any suspect who closely resembled him. Appellant argues that trial counsel should have introduced the surveillance videos to prove his innocence of the robberies.
At the evidentiary hearing, trial counsel testified that she did not introduce the surveillance videos because it was her judgment that the videos would be harmful to appellant's defense. Trial counsel stated that the surveillance videos contained violent scenes, so she intentionally did not introduce same into evidence. Instead, trial counsel introduced photographs that she believed were more helpful to the defense.
Upon the whole, we cannot conclude that trial counsel was ineffective for not entering the surveillance videos into evidence at trial. Appellant was charged with armed robberies, and the surveillance videos depicted violent armed robberies that likely would have a negative impact upon the jury. Thus, we are of the opinion that trial counsel's decision not to introduce the surveillance videos represented sound trial strategy and did not rise to the level of ineffective assistance of counsel.
Appellant also claims that trial counsel was ineffective for failing to call certain alibi witnesses during trial. Appellant asserts that four witnesses could have testified at trial that he was with them at the time of particular robberies, thus providing a valid alibi. At the evidentiary hearing, appellant testified that he disclosed the four alibi witnesses to trial counsel and requested that she call them to testify at trial. But, appellant admitted that when he testified at trial he did not mention his alibis or the supporting witnesses. By contrast, trial counsel testified that appellant did not disclose the four witnesses to her and that appellant only wanted her to introduce his mother as a witness. Upon the whole, we are unable to conclude that trial counsel's performance was deficient by failing to call the four alibi witnesses, or that if deficient, any prejudice resulted therefrom.
We view any remaining contentions as moot or without merit.
In sum, we affirm the circuit court's Opinion and Order upon all issues relating to ineffective assistance of trial counsel. We, however, vacate and remand with directions that the circuit court specifically address the Brady violation issue by undertaking a legal analysis pursuant to Brady. In so doing, the circuit court shall separately set forth findings of fact and conclusions of law.
For the foregoing reasons, we affirm in part, vacate in part, and remand with directions as set forth above.
ALL CONCUR. BRIEFS FOR APPELLANT: Derwin I. Nickelberry, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky