Opinion
NO. 2016-CA-000943-MR
06-16-2017
BILLY C. UTLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Billy C. Utley, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WEBSTER CIRCUIT COURT
HONORABLE C. RENE WILLIAMS, JUDGE
ACTION NO. 12-CR-00044 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND NICKELL, JUDGES. NICKELL, JUDGE: Billy C. Utley, pro se, appeals the Webster Circuit Court's denial of his motion for post-conviction relief pursuant to RCr 11.42. Utley contended his guilty plea was involuntary because he received ineffective assistance of trial counsel prior to entering his plea. We affirm.
Kentucky Rules of Criminal Procedure.
Theresa Utley was found dead in her vehicle, shot in the head with a high powered rifle. By speaking with witnesses and family members, police identified Utley as a suspect. The next day, using GPS tracking of Utley's cell phone, police located Utley, along with his pregnant girlfriend, Desirae Brown, in a hotel in Cave-In-Rock, Illinois. Utley was taken into custody after attempting to flee via the back window of the hotel with the murder weapon and a bag of methamphetamine. While being transported to the police station, Utley admitted he and his wife were arguing and he had shot her. However, he maintained the weapon had discharged accidentally.
Utley's sister-in-law, Chrystal, reported to police she had received a message from Utley saying he had just killed his wife. Utley also called his father and stated Theresa came to his house, they got into an argument, he "lost it," and shot and killed her.
Utley alleges he and Theresa were talking in Theresa's vehicle when they decided to drive to a store to get a drink. He explains he was carrying his rifle because he intended to "kill himself or have the police shoot him." As he was getting out of the vehicle to get his drink, Utley claims the rifle "just went off."
A later search of Utley's Webster County residence produced four marijuana plants, a basket containing an assortment of ammunition and drug paraphernalia, a .22 caliber rifle, and two smoked marijuana cigarettes. Outside the residence, police discovered four dogs had been shot and killed.
Utley was subsequently indicted for murder, being a convicted felon in possession of a firearm, cultivating marijuana (less than five plants), possession of drug paraphernalia, and cruelty to animals in the second degree. A superseding indictment added the charge of persistent felony offender in the first degree. Utley entered into a plea agreement with the Commonwealth, whereby he agreed to plead guilty to the charged offenses with the murder charge amended to a charge first-degree manslaughter, in exchange for a recommended sentence of thirty-five years in prison. After finding that Utley was entering his guilty plea knowingly and voluntarily, the trial court accepted the plea and sentenced him consistent with the Commonwealth's recommendation.
The Commonwealth offered thirty-five years on the murder charge, but Utley refused to take the plea unless the charge was amended to first-degree manslaughter.
Thereafter, Utley filed a motion for post-conviction relief claiming he received ineffective assistance of counsel leading up to his guilty plea. Specifically, Utley's motion maintained his counsel was ineffective in failing to: 1) inform him a key witness was willing to testify; 2) hire an expert witness to testify the victim was shot in the side of the head instead of the back of the head; and 3) hire mental health experts to prove accident and extreme emotional disturbance. Utley further argued cumulative error.
The Department of Public Advocacy was initially appointed to represent Utley, but after reviewing the record was permitted to withdraw from the case.
The trial court overruled both Utley's motion for an evidentiary hearing, because all claims were refuted by the record, Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001), and his motion to vacate, finding none of the alleged errors rose to the level of ineffective assistance. This appeal followed.
On appeal, Utley argues the trial court erred when it found his claims could be sufficiently refuted by examining the record. Because an evidentiary hearing was not held, "[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).
In Padilla v. Commonwealth, 381 S.W.3d 322, 328 (Ky. 2012), the Supreme Court of Kentucky concluded in the context of a guilty plea, the proper inquiry for a claim of ineffective assistance of counsel is whether counsel made errors so serious that his performance fell outside the wide range of professionally competent assistance, and whether a reasonable probability exists that, but for those errors, the defendant would not have pled guilty and would have instead insisted on going to trial. "A reasonable probability exists if the defendant convinces the court that a decision to reject the plea bargain would have been rational under the circumstances." Id. (internal citations and quotation marks omitted). "Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have rejected the plea offer and insisted on going to trial." Id. at 329. While "[s]olemn declarations in open court carry a strong presumption of verity," Centers v. Commonwealth, 799 S.W.2d 51, 54 (Ky. App. 1990) (citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)), "the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken[.]" Kotas v. Commonwealth, 565 S.W.2d 445, 447 (Ky. 1978). A reviewing court must strongly presume counsel's challenged conduct falls within the range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Utley bears the burden of overcoming this strong presumption by identifying specific acts or omissions constituting a constitutionally deficient performance. Id.
After reviewing the record, we agree the errors set forth in Utley's motion do not individually or cumulatively rise to the level of ineffective assistance of counsel. Utley has failed to convince this Court his counsel's performance was deficient, or that absent those deficiencies, he would have rationally rejected a thirty-five-year sentence and proceeded to trial where he could have been sentenced to life imprisonment.
Utley first claims trial counsel rendered ineffective assistance by failing to tell him about a phone conversation he had with Utley's girlfriend, Brown. He claims counsel withheld this information to coerce a guilty plea. In that conversation, Brown indicated when Utley returned to his residence shortly after the shooting, he told her the shooting was an accident. She further stated she would be willing to testify. Utley claims had counsel told him of the phone conversation and Brown's willingness to testify, he would not have pled guilty, but would have proceeded to trial. However, Utley's statement to Brown was inadmissible hearsay, and absent that statement, Brown's overall testimony would not have favored the defense.
While Brown's testimony regarding Utley's comments immediately following the murder would have corroborated Utley's claim of an accidental shooting, the testimony probably would have been excluded as hearsay. KRE 801. Hearsay is inadmissible unless it falls under an exception to the hearsay rule. Wells v. Commonwealth, 892 S.W.2d 299, 301 (Ky. 1995). Presumably, Utley would have invoked the excited utterance exception and claimed the statement was "uttered under the stress of nervous excitement and not after reflection or deliberation." Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986) overruled by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007); KRE 803. However, whether to admit the testimony rests within the sound discretion of the trial court. Simpson v Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994). In deciding whether to admit the statement, the trial court would have considered:
Kentucky Rules of Evidence. --------
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998) (quoting Souder at 733). As Utley's statement to Brown was self-serving and made after substantial time for deliberation and reflection, it would not have qualified as an excited utterance.
Moreover, Brown told trial counsel Utley had shot his dogs and he had been smoking methamphetamine heavily in the days leading up to the shooting. This detrimental information would have been communicated to the jury had Brown testified. In addition to Brown's unfavorable account of the events, having her testify as a witness would have displayed Utley's pregnant mistress to the jury and provided evidence of Utley's intent and motive, undermining his claim of accident.
Given the damaging nature of the entirety of Brown's testimony, and the questionable admissibility of Utley's self-serving hearsay statement, we are unconvinced counsel's failure to inform Utley of his phone call with Brown constituted deficient performance. Nor are we convinced had trial counsel told Utley of Brown's willingness to testify, it would have been reasonable for Utley, based on Brown's testimony, to reject the plea offer and proceed to trial.
Utley next argues trial counsel was ineffective because he failed to consult with various experts Utley claims could have helped prove the killing was accidental. Specifically, Utley believes counsel should have consulted an independent medical examiner, blood spatter expert, intoxication expert, and mental health expert specializing in Extreme Emotional Disturbance (EED). Utley's claim is once again refuted by the record.
Trial counsel "has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigation unnecessary under all the circumstances[.]" Haight v. Commonwealth, 41 S.W.3d 436, 446 (Ky. 2001), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). "A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would conduct." Id. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. When a defendant claims trial counsel was ineffective by not seeking expert assistance, he must "establish that the performance by the attorney was objectively unreasonable and how the alleged error prejudiced his defense." Hodge v. Commonwealth, 116 S.W.3d 463, 471 (Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
Utley asserts counsel should have hired an expert to contradict the medical examiners' findings or one to discuss blood spatter. We disagree. Utley's defense was the shooting was an accident. However, if the shooting was accidental, it means Utley lacked the specific intent necessary to commit the charged crime of murder. Thus, to show the shooting was accidental, Utley had to provide evidence showing he did not intend to shoot Theresa. We fail to comprehend, and Utley fails to explain, how evidence of Theresa's being shot in the back of the head as opposed to the side of the head, or evidence of the trajectory of the blood spatter in this case, would tend to show his lack of intent. Accordingly, trial counsel's decision these particular experts were unnecessary was reasonable as they would not have helped Utley's defense.
Utley next asserts trial counsel should have hired an expert on drug abuse and its effects. Utley claims he was abusing methamphetamine in the days leading up to the shooting, and had not slept in days. He believes an expert on drug abuse would have testified "to the jury about the reduction of [his] cognitive abilities and coping skills as a result of his drug abuse." In addition, he claims such evidence would have explained to "the jury [his] clumsy handling of the rifle at the time and would support his claim of an accidental shooting."
The record discloses trial counsel was fully aware of Utley's level of intoxication and its effects prior to recommending he plead guilty. Prior to Utley's guilty plea trial counsel moved to suppress Utley's statement to police because Utley's "mind was messed up" from smoking "16 grams of methamphetamine over 13 days" leading up to the murder. Additionally, trial counsel's proposed jury instructions included one on voluntary intoxication. Despite knowing Utley's claimed level of intoxication and its effects, and that voluntary intoxication was a possible defense at trial, counsel nevertheless recommended Utley enter a guilty plea. In light of the overwhelming evidence against him, trial counsel's recommendation of a guilty plea was not unreasonable or deficient.
Finally, Utley claims his trial counsel should have hired an EED expert. "Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v. Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986). Utley maintained throughout the proceedings Theresa's death was accidental. To raise the affirmative defense of EED, Utley would have had to acknowledge the killing was not an accident. Utley does not claim he would have abandoned his claim of accident, admitted the killing was purposeful, and proceeded to trial on an EED theory had counsel consulted an expert on EED. Consequently, Utley has failed to make a sufficient showing of prejudice regarding counsel's alleged failure to consult an EED expert.
Utley also argues cumulative error. However, cumulative error exists "only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citing Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992)). Because none of the alleged errors individually raised any real question of prejudice, there can be no cumulative error. Epperson v. Commonwealth, 197 S.W.3d 46, 66 (Ky. 2006).
For the foregoing reasons, the judgment of the Webster Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Billy C. Utley, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky