Opinion
NO. 2011-CA-001260-MR
03-15-2013
DEVRON WADLINGTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: M. Brooke Buchanan Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 05-CR-00047
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Devron Wadlington appeals from the Trigg Circuit Court order denying his RCr 11.42 motion for relief on the basis that his trial counsel was ineffective and his conviction should be vacated. For the following reasons, we affirm.
Kentucky Rules of Criminal Procedure.
Wadlington and a codefendant, George Kelly Mayes, were indicted and jointly tried for the murder of LaWarren O'Keith Sims. Sims was shot and killed in a crowded altercation outside Henry's Place, a nightclub in Trigg County. The evidence presented at trial revealed that no eyewitness positively identified Sims's shooter, and the bullet that killed Sims was never found. Eyewitnesses testified to seeing Mayes pull a gun from his waistband when confronted by Anthony Wilson, a patron of Henry's Place. Other eyewitnesses testified to seeing Mayes and Wadlington shooting guns into a crowd or into the air. Another witness testified that she saw Wadlington holding a 9mm gun during the altercation.
James Rodell Acree testified that he drove Mayes, Wadlington, and others to Henry's Place. Following the altercation, Acree drove Mayes and Wadlington to Cadiz. He testified that Mayes fired shots from the car window while leaving the scene. Also while in the car, Acree overheard Mayes ask Wadlington, "did you hit him?" Acree helped Mayes clean out his car, in which they found a Budweiser box which contained a bullet. They threw the box and bullet into a field. Billy Alexander testified that he found a handgun near his home after Mayes had stopped by. Alexander threw the gun into a field near his house.
Acree and Alexander eventually led police to the field which contained the Budweiser box, a .45 handgun with a bullet in the chamber, a .45 bullet, and a 9mm handgun that was wrapped in a black t-shirt and mask under the seat of an abandoned vehicle. Police also searched the area around Henry's Place and found .45 shell casings and a 9mm casing nearby. An FBI weapons expert testified that the .45 shell casings recovered came from the .45 gun found by the police, but that the 9mm shell casing did not come from the recovered 9mm gun.
Counsel for Wadlington cross-examined both Acree and Alexander regarding their status as convicted felons, their incomplete statements to police, their expectations of getting favorable treatment in return for their cooperation, and Acree's admission to being high on the night of the shooting. No proof was introduced for Wadlington at the close of the Commonwealth's case. The trial court instructed the jury to decide whether Mayes and Wadlington were guilty, either individually or acting in complicity with the other, of murdering Sims; of wanton murder; or of a lesser degree of homicide. The jury convicted both of wanton murder. Both convictions were affirmed by the Kentucky Supreme Court in separate direct appeals. Thereafter, Wadlington filed a motion for RCr 11.42 relief on the basis that he received ineffective assistance of counsel. The trial court conducted an evidentiary hearing, after which it denied Wadlington's motion. This appeal followed.
Mayes v. Commonwealth, No. 2006-SC-000656-MR, 2008 WL 466134 (Feb. 21, 2008); Wadlington v. Commonwealth, No. 2006-SC-000640-MR, 2008 WL 4691945 (Oct. 23, 2008).
On appeal, Wadlington argues his counsel was ineffective for a variety of reasons, namely that he failed to: 1) conduct a reasonable investigation of potential witnesses, 2) call mitigating witnesses to testify on the defense's behalf, and 3) object to the admission of the 9mm handgun. Upon review of the record, we disagree.
The standards which measure ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 688-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Sanborn v. Commonwealth, 975 S.W.2d 905 (Ky. 1998), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). To be considered ineffective, counsel's performance "must be below the objective standard of reasonableness and so prejudicial as to deprive a defendant of a fair trial and a reasonable result." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001) (citing Strickland, 466 U.S. at 689-92), overruled on other grounds by Leonard, 279 S.W.3d at 158. Any review of a counsel's performance must be highly deferential. Brown v. Commonwealth, 253 S.W.3d 490, 498 (Ky. 2008) (citation omitted). We may only set aside a trial court's factual findings regarding a counsel's performance if clearly erroneous. CR 52.01. If supported by substantial evidence, the finding is not clearly erroneous. Brown, 253 S.W.3d at 500 (citation omitted).
Kentucky Rules of Civil Procedure.
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With respect to Wadlington's claim that his counsel's investigation fell below reasonable standards, we disagree. Defense counsel has a duty to conduct a reasonable investigation or make a reasonable decision that an investigation is unnecessary under the circumstances. Haight, 41 S.W.3d at 446. At the evidentiary hearing, Wadlington's counsel testified that he conducted an investigation, met with potential eye witnesses, spoke with Wadlington on several occasions, and subpoenaed four witnesses to testify for the defense. The circumstances surrounding the incident indicate that around 200 people were outside of Henry's Place when Sims was killed. Wadlington's counsel amassed a list of 65 potential witnesses, but testified that the majority of people he spoke to claimed not to have seen anything. Wadlington does not point to any further specific investigatory work that could have been done by his counsel that may have affected the outcome of this case. Counsel testified that his investigation revealed a scene of pandemonium at Henry's Place, and varying testimony of whether or not Wadlington had a gun. Under these circumstances, we fail to appreciate the manner in which counsel's investigation was deficient or how any further investigation would have aided Wadlington's defense. As a result, we find counsel's investigation to have been reasonable, and not a basis for RCr 11.42 relief.
Wadlington also claims his counsel was ineffective for failing to call any witnesses on his behalf. At the evidentiary hearing, Wadlington presented four witnesses who all testified they did not see Wadlington with a gun during the night in question, but also did not see who shot Sims. Wadlington's half-brother was the only witness at the evidentiary hearing whose name had been provided by Wadlington to his counsel prior to the trial. He testified at the evidentiary hearing that he heard gunshots, but did not see the shooting or anyone firing shots. Counsel testified that he did not call any witnesses on Wadlington's behalf because he believed the Commonwealth's case was not strong enough to produce a conviction. Since Wadlington's half-brother was the only witness provided to counsel by Wadlington prior to trial, and no other potential witness could identify a shooter, we do not find counsel's decision to not call these witnesses as unreasonable or ineffective so as to warrant relief under RCr 11.42.
Next, Wadlington argues that the failure of his counsel to object to the admission of the 9mm handgun resulted in prejudice that affected the outcome of the case. We disagree. Wadlington couches this argument in the assumption that the 9mm handgun was irrelevant and highly prejudicial because an expert witness testified that the 9mm casing found at the scene of the crime did not come from the 9mm handgun introduced at trial.
At trial, a detective who worked the case testified that the 9mm handgun was not connected to the case, other than the fact that it was found in the process of investigation. An FBI ballistics expert testified that the 9mm shell casing found at Henry's Place was not fired from the 9mm handgun introduced as evidence. Additionally, counsel argued that not objecting to the admission of the 9mm handgun was his trial strategy intended to highlight the weakness of the Commonwealth's case against Wadlington. He highlighted such in his closing argument, pointing to the Commonwealth's attempt to connect Wadlington to the incident via the 9mm handgun, despite no evidence that the gun was fired at Henry's Place on the night in question. A counsel's recognition of evidence as having little to no relevance to the case, but using such to discredit the Commonwealth's case has been recognized as sound trial strategy. See Taylor v. Commonwealth, 63 S.W.3d 151, 163 (Ky. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 64, 124 S.Ct. 1354, 1371, 158 L.Ed.2d 177 (2004). Counsel's decision not to object to the admission of the 9mm handgun was within the bounds of reasonable trial strategy, and thus not a basis for granting RCr 11.42 relief. Additionally, counsel effectively demonstrated that the 9mm handgun was not connected to the shooting at Henry's Place, and thus any prejudice which may have resulted from its admission was mitigated to a degree that it did not deprive Wadlington of a fair trial.
Finally, Wadlington argues that cumulating errors committed by his trial counsel resulted in ineffective representation that merits his conviction being vacated. Specifically, Wadlington alleges that his counsel failed to: 1) timely move for the separation of witnesses, 2) move for a separate trial, 3) strike a biased juror, and 4) play the entirety of the tape of a 911 call made on the night in question. Finding no merit to the individual errors, we disagree.
With respect to counsel's untimely motion for separation of witnesses, the record reveals that the court did grant such a motion on the second day of trial. The only witness listed in the record who surely heard the testimony of another witness was Charles Copeland who provided an eyewitness account of the events occurring outside Henry's Place on the night in question. At trial, Copeland allegedly heard the testimony of a detective who worked on the case. That being said, Wadlington fails to allege any prejudice that may have occurred due to counsel's untimely motion. Specifically, Wadlington does not allege that any part of Copeland's testimony was duplicative of or influenced by the detective's testimony. Therefore, this claim fails to warrant a reversal.
Wadlington also alleges his counsel failed to move for a separate trial from his codefendant, Mayes. RCr 9.16 provides that if "a defendant . . . will be prejudiced by a joinder of offenses or of defendants in an indictment . . . the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires." In this context, the prejudice must be shown to be "'unfair' or 'unnecessarily or unreasonably hurtful.'" Commonwealth v. Rogers, 698 S.W.2d 839, 840 (Ky. 1985) (citations omitted). Here, Wadlington merely asserts that the evidence against Mayes was stronger than the evidence against him, and therefore he was prejudiced by his counsel's failure to move for a separate trial. We fail to appreciate how the varying strength of the cases against the codefendants served to prejudice Wadlington. Indeed, a stronger case against Mayes could have been beneficial to Wadlington in a joint trial. Additionally, Wadlington does not allege that his conviction was procured by evidence specifically linked to Mayes and no evidence supports such an argument. Thus, we find no prejudice resulted from the joint trial.
Next, Wadlington argues his counsel was ineffective by failing to strike a juror, who he alleged was an assistant principal of his high school and had taken disciplinary action against him in the past. However, Wadlington did not present this issue to the trial court in his motion for RCr 11.42 relief, and thus no ruling was made. As such, we cannot review an issue raised for the first time before our court. See Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("[a]n appellate court 'is without authority to review issues not raised in or decided by the trial court[]'") (citations omitted). Accordingly, this alleged error is not a basis for relief under RCr 11.42.
Finally, Wadlington alleges his trial counsel was ineffective by failing to play the entirety of a tape of a 911 call recorded on the night in question, which he alleges contained a statement that Mayes shot Sims. During the RCr 11.42 hearing, Wadlington's counsel testified that the portion of the 911 tape which contained exonerating evidence that someone else shot Sims was, in fact, played at trial. Counsel's testimony is the only evidence on record that indicates the contents of the portion of the 911 tape played at trial. The 911 tape was not played or submitted as evidence at the RCr 11.42 hearing, and no copy of the tape exists in the record before this court. We have only been provided with a transcript of the proceedings at trial, which merely indicate the point in which the 911 tape was played for the jury. Since we are without a record specifically indicating the contents of the 911 tape, or which portions of the 911 tape were played, we must assume the 911 tape supports the court's decision. See Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985) (holding that when the record on appeal is not complete, the reviewing court must assume any omitted records support the trial court's decision). In addition, Wadlington claims a portion of the 911 tape that was not played contained someone saying that Mayes shot the victim. Even if we assume this is true, the jury found both Mayes and Wadlington guilty. Thus, we fail to appreciate how further evidence of Mayes shooting Sims exonerates Wadlington. Based on a thorough review of the record, we find that trial counsel's performance was adequate and his decisions were based upon reasonable trial strategy. Wadlington was not deprived of a fair trial due to his counsel's representation.
The order of the Trigg Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: M. Brooke Buchanan
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky