Opinion
NO. 2014-CA-000142-MR
06-19-2015
MARK L. PADGETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Mark Padgett West Liberty, Kentucky BRIEF FOR APPELLEE: Christian K. R. Miller Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 07-CR-00411
OPINION
AFFIRMING
BEFORE: D. LAMBERT, THOMPSON, AND VANMETER, JUDGES. D. LAMBERT, JUDGE: Appellant appeals the Campbell Circuit Court's order denying his RCr 11.42 motion. At issue is whether the trial court erred in denying Appellant's motion, finding that there was no ineffective assistance of counsel claim established under Strickland v. Washington. Finding ample evidence in support of the trial court's decision, we affirm.
Appellant, (hereinafter, "Padgett"), was indicted by the Campbell County Grand Jury on one count of attempted murder, one count of second-degree assault and one count of violation of an EPO/DVO. The charges stem from a sequence of events which occurred on the evening of June 29, 2007.
That evening, Padgett was searching for his two teenage sons in Fort Thomas, Kentucky. Unable to contact them by phone, he drove around looking for them at their frequent haunts. After this was unsuccessful, he stopped at a nearby church festival. While walking to the festival, Padgett heard his son P.J. call out for him and then, according to Padgett, P.J. crossed the street in front of incoming traffic. Padgett testified that he yelled at his son to stop as he watched a car pass in front of him. Padgett was apparently very upset and asked whether or not P.J.'s mother, Susan Padgett, (hereinafter, "Ms. Padgett"), was supervising him. P.J. informed Padgett that his mother was at the laundromat across the street. At the time, Ms. Padgett had an emergency protective order against Padgett, requiring him to stay at least 500 feet away from her.
Padgett returned to his truck, later saying he initially intended to drive home to avoid violating the protective order. Padgett testified that he then saw his son cross the street in front of incoming traffic again and this made him very upset. He testified that his eyes were blinking, he was having trouble breathing, and that he could not feel the ground beneath his feet.
At this point, Padgett apparently decided to demonstrate to Ms. Padgett that her failure to supervise P.J. was not acceptable and parked closer to the laundromat. He took an SKS assault rifle from the back of his truck, left his truck running and went to the laundromat to scare Ms. Padgett.
Inside the laundromat, a fight ensued. Padgett testified that he kept his rifle close to his side and that Ms. Padgett reached for it, causing her to be hit with the gun as a result of their mutual struggle.
Ms. Padgett testified that she felt someone approach her and when she turned around there was a rifle pointed at her head. She then said that Padgett beat her several times with the butt of his rifle as she attempted to flee. Her testimony was corroborated by a witness in the laundromat, who testified that Padgett entered the laundromat, said "it's show time" and attempted to fire the rifle at Ms. Padgett. When it failed to fire, he began to beat Ms. Padgett with the rifle. Another witness outside the laundromat, looking through the window, testified that Padgett beat Ms. Padgett with the rifle. Eventually, Ms. Padgett escaped the laundromat and sought help.
While he was in the laundromat, fireworks in Padgett's truck somehow exploded and his truck caught on fire. As a result, Padgett could not escape in his truck as originally planned, and additional police officers and witnesses appeared at the scene.
Witnesses, including a nearby police officer, testified that Padgett pointed his rifle at Ms. Padgett as she ran down the street away from the laundromat. The police officer testified that Padgett pulled up his rifle in a "ready- fire" pose and that he saw Padgett pull the trigger. When the rifle did not fire, the officer saw Padgett adjust its bolt action.
Padgett, on the other hand, testified that he was moving his rifle around as he ran because the strap was bothersome. He testified that he never posed with his rifle, pointed it at Ms. Padgett or pulled the trigger. He eventually dropped the rifle, ran and was subsequently arrested.
Padgett was convicted of criminal attempt to commit first-degree manslaughter, second-degree assault and violation of an emergency order on July 29, 2008, and was sentenced to twenty years' imprisonment. Padgett initially appealed his case up to the Supreme Court of Kentucky and his sentence was affirmed in Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010).
On February 7, 2013, Padgett filed a RCr 11.42 motion alleging that because his trial counsel failed to strike jury instruction no. 5A, and because his appellate counsel failed to argue jury instruction no. 5A on direct appeal, he received ineffective assistance of counsel and was denied due process of law. The crux of his argument is that the jury instruction no. 5A, which addressed criminal attempt to commit first-degree manslaughter, was improper because criminal attempt to commit first-degree manslaughter does not exist as a crime in Kentucky. He argued that his trial counsel should have objected to such an instruction and his appellate counsel should have raised the issue in the original appeal. The trial court did not find Padgett's arguments to be persuasive and made the following findings in a written order without hearing:
RCr 9.24 requires the Court to disregard any error or defect in the proceeding that does not affect the substantial rights of the parties. The test for harmless error is whether there is any substantial possibility that the outcome of the case would have been different without the presence of that error. Thacker v. Commonwealth , 194 S.W.3d 287 (Ky. 2006).Because the trial court found that there would not have been any substantial possibility that the outcome of the case would have been different, there was no error, and, thus, no ineffective assistance of counsel claim exists. This appeal follows.
There seems to be no dispute that the appellate counsel did not raise on appeal any error in the court's jury instructions. The record is also clear that the Court's jury instruction for criminal attempt to commit murder and criminal attempt to commit first degree manslaughter contain an element that the Defendant was not acting under extreme emotional disturbance.
In order to find the Defendant guilty of criminal attempt to commit murder the jury had to determine that the Defendant intentionally attempted to shoot his wife, with the intent to killer her, and took a substantial step in a course of planned conduct and was not acting under extreme emotional disturbance. If the jury believed the Defendant intentionally attempted to shoot his wife, with the intent to kill her, and took a substantial step in a course of planned conduct and was acting under extreme emotional disturbance the jury would be required to find the Defendant guilty of criminal attempt to commit first degree manslaughter. If the jury did not believe the Defendant made any attempt to kill his wife but only pointed the gun causing a substantial danger of death or serious physical injury the jury would have been required to find the Defendant guilty of wanton endangerment. In the Verdict form the jury was asked to determine if the Defendant was not guilty, guilty of criminal attempt to commit murder, guilty of criminal attempt to commit manslaughter or guilty of the offense of first degree wanton endangerment. The jury found the Defendant guilty of criminal attempt to commit first degree manslaughter.
Although there may have been an error in the jury instructions the Court does not believe the error caused the Defendant any harm. The Court does not believe the
outcome of the trial would have been different if the jury instruction for criminal attempt to commit manslaughter read that the Defendant was acting under extreme emotional disturbance. The jury did determine that he was acting under extreme emotional disturbance and therefore found his guilty of the lesser offense.
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In order to sustain a successful showing of ineffective assistance of counsel, one must pass a two prong test established in Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland, the movant must establish:
1. "[T]hat counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" andStrickland at 687. See also Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985); Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
2. "[T]he 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."
The proper standard is that of "reasonably effective assistance." Id. Also, there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance and it is the defendant's duty to overcome that presumption. Id. at 689.
It is also important to note that the court in Strickland stressed that the court deciding the 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," and when doing so, the court must "eliminate the distorting effects of hindsight." Id. at 690. The defendant is responsible for pointing to acts or omissions of counsel that are not to "have been the result of reasonable professional judgment." Id. Further "in any ineffectiveness case, a particular decision to not investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691.
When dealing with a counsel failing to object to jury instructions, the law is clear. "Where the ineffective assistance of counsel claim is that counsel erred by failing to object to jury instructions or to the introduction of evidence, it must be shown that the jury instructions were given in error or the evidence was admitted in error." Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999). Further, "if the record does not support the conclusion that the objection should have been sustained, then there can be no ineffective assistance of counsel for failing to object." Id.
However, even if there is an error, under RCr 9.24,
[n]o error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties."In regards to errors that do not affect the substantial rights of a party, or "harmless errors," one must find that there is a "substantial possibility that the outcome of the case would have been different without the presence of that error." Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006).
Here, the trial court found that, while there was an actual error in the jury instructions, that error was harmless error and would not result in the setting aside of Padgett's sentence and, therefore, did not constitute grounds for a RCr 11.42 motion. We agree.
Padgett argues that, under Prince v. Commonwealth, 987 S.W.2d 324 (Ky. App. 1997), criminal attempt to commit first-degree manslaughter does not exist in Kentucky. In Prince, the defendant was convicted of attempted murder of a police officer. He argued on appeal that the jury should have been instructed on a lesser included offense of attempt to commit first-degree manslaughter. This court did find that, in Prince, it would be impossible to combine the statute of KRS 507.030(1)(a), which outlines the elements for first degree manslaughter, with an attempt crime, as you cannot take an intentional, substantial step towards causing an unintentional, unanticipated death while intending to only cause serious physical injury. Id. at 326.
However, the defendant in Prince, made no claim of extreme emotional disturbance. Under KRS 507.030(1)(b):
Prince's instructions were solely based on KRS 507.030(1)(a), which states that "(1) A person is guilty of manslaughter in the first degree when [w]ith intent to cause serious physical injury to another person, he causes the death of such person or of a third person. The court specifically stated that "since Prince made no claim of extreme emotional disturbance, KRS 507.030(1)(b) is not applicable." Prince at 326.
"A person is guilty of manslaughter in the first degree when [w]ith intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020."Here, the argument of the defense was that Padgett was acting under extreme emotional disturbance caused by seeing his teenage son cross the road in front of oncoming traffic twice. This makes his case more akin to the facts of Holland v. Commonwealth, 114 S.W.3d 792 (Ky. 2003). In Holland, the defendant shot her ex-boyfriend and attempted to shoot his ex-wife, who had recently rekindled their relationship. The defendant argued that the jury should have been given an instruction on attempted first degree manslaughter, due to the fact that she was acting under extreme emotional disturbance. The court held that "a defendant under the influence of EED (extreme emotional disturbance) who takes a substantial step towards killing a person with the intent to do so commits Attempted First-Degree Manslaughter rather than Attempted Murder." Id at 806.
Padgett references a December 15, 2009 letter from his appellate attorney as evidence that she provided ineffective assistance of counsel. This letter happens to outline to Padgett how Prince is not applicable to his case, and explains how the facts of Holland are more appropriate for his case, as his defense at trial was that he was acting under an extreme emotional disturbance.
As Padgett's defense rested on the fact that he was acting under an extreme emotional disturbance, it was proper to give an instruction on attempted first-degree manslaughter as it was a lesser included crime under the facts of Padgett's case.
However, it is clear that there was an error in the jury instructions. The jury instructions did not correctly outline the elements for attempted first degree manslaughter under KRS 507.030(1)(b), as under Instruction No. 5 and Instruction No. 5A, they read:
"INSTRUCTION NO. 5 - CRIMINAL ATTEMPT TO COMMIT MURDER-COUNT I
You will find the defendant guilty of Criminal Attempt to commit Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about June 29, 2007 and before the finding of the indictment herein, the Defendant Mark L. Padgett, attempted to shoot Susan Padgett with an assault rifle;
B. That in doing so, it was the intention of the Defendant to kill Susan Padgett;
C. That under the circumstances as the Defendant believed them to be, the Defendant's actions constituted a substantial step in a course of planned conduct planned to result in the death of Susan Padgett; AND
D. That at the time he did so, he was not acting under the influence of Extreme Emotional Disturbance
INSTRUCTION NO. 5A - CRIMINAL ATTEMPT TO COMMIT FIRST DEGREE MANSLAUGHTER-COUNT I.
If you do not find the Defendant guilty of Criminal Attempt to Commit Murder under Instruction No. 5, you will find the Defendant guilty of Criminal Attempt to Commit First-Degree Manslaughter under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
Record at 97-98 (emphasis added). To be concurrent with Padgett's defense, section D of the instruction should have read "[t]hat in so doing, he was acting under Extreme Emotional Disturbance."
A. That in this county on or about June 29, 2007 and before the finding of the indictment herein, the Defendant, Mark L. Padgett attempted to shoot Susan Padgett with an assault rifle;
B. That in so doing so, it was the intention of the Defendant to kill Susan Padgett;
C. That under the circumstances as he believed them to be, the Defendant's actions constituted a substantial step in the course of conduct planned to result in the death of Susan Padgett; AND
D. That in so doing, he was not acting under Extreme Emotional Disturbance."
Here, in both instructions presented to the jury, the elements for the two crimes, attempted murder and attempted first degree manslaughter were presented as the same. Regardless, the jury elected to convict Padgett of the lesser offense of attempted first degree manslaughter, resulting in a lesser sentence. Even if the instructions had correctly read "[t]hat in so doing, he was acting under Extreme Emotional Disturbance," there is no indication that the jury would have changed their verdict, as they already found him guilty of the elements of both the lesser crime of first degree attempted manslaughter and the higher crime of attempted murder. Yet, they only convicted him of the attempted manslaughter. Therefore, it does not matter if the instructions incorrectly included that he was not acting under extreme emotional disturbance, because the jury convicted him on the attempt charge in concurrence with the defendant acting under extreme emotional disturbance.
It is also of note that the jury rejected Padgett's extreme emotional disturbance defense on the assault charge and he was convicted of the greater charge of intentional assault. Therefore, that would indicate that even if the correct instruction was given, Padgett's defense of extreme emotional disturbance would have been rejected in regards to the attempted murder charge as well, and furthering the indication that Padgett suffered no harm as a result of the error. In fact, it indicates that he may have actually benefitted from the error. --------
The trial court found that the error in the jury instructions did not cause any harm to the substantial rights of Padgett, as there was no indication that the outcome of the case would have been any different even if the jury instructions were correct, and was a harmless error. We agree.
Therefore, we find that the RCr 11.42 motion by Padgett has no merit, as he has failed to demonstrate that either his trial counsel or his appellate counsel's actions rise to the level of ineffective assistance of counsel pursuant to the two prong test established by Strickland. Padgett had to demonstrate that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687.
While there was an error in instruction 5A, it was harmless error. However, it is clear from the facts that the error did not cause a difference in the outcome of the case, as the jury still elected to convict Padgett of the lesser included offense of first-degree manslaughter. Therefore, this error was harmless and under RCr 9.24, it should be disregarded by the court as a ground for a new trial or in setting aside the verdict. Harmless error does not rise to the level of serious error required by the first prong of Strickland, and even if it did, this error did not prejudice Padgett, resulting in a failure of the second prong of Strickland.
In regards to Padgett's assertion that his appellate counsel provided ineffective assistance of counsel, we find that argument fails under the Strickland standard for similar reasons. Again, Padgett alleges that his appellate counsel's failure to raise the jury instruction issue on appeal constitutes ineffective assistance of counsel. As it is clear that there was a harmless error in the jury instruction, failure to raise this issue on appeal would also fail under the Strickland standard as there is no evidence that the error changed the outcome of the trial nor that he was prejudiced in any way. Therefore, any claims of ineffective assistance of appellate counsel must fail as well.
Finding no error, the Campbell Circuit Court is affirmed.
VANMETER, JUDGE CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Mark Padgett
West Liberty, Kentucky
BRIEF FOR APPELLEE: Christian K. R. Miller
Frankfort, Kentucky