BRIEF FOR APPELLANT: M. Brooke Buchanan Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 04-CR-002437
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Charles French brings this appeal from a June 23, 2011, Opinion and Order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion to vacate without an evidentiary hearing. We affirm.
In August 2004, French was indicted by the Jefferson County Grand Jury upon first-degree rape (Kentucky Revised Statutes (KRS) 510.040), two counts of first-degree sodomy (KRS 510.070(1)(b)(ii)), and three counts of first-degree sexual abuse (KRS 510.100(1)(a)) committed against H.C., a child less than twelve years of age. At the same time, French was also indicted upon two counts of first-degree sexual abuse against S.M., a child less than twelve years of age. A jury trial ensued. The evidence revealed that S.M. was French's biological daughter, and H.C. was the daughter of French's girlfriend. French, his girlfriend, and H.C. lived together in Louisville, Kentucky, and French exercised visitation with his daughter, S.M.
H.C. was born on February 7, 1999, and S.M. was born on December 28, 1997. At the time of the offense, H.C. was five years old, and S.M. was six years old.
The jury ultimately found French guilty upon first-degree sodomy as to H.C. , one count of first-degree sexual abuse as to H.C., and two counts of first-degree sexual abuse as to S.M. By judgment entered September 21, 2005, French was sentenced to a total forty-five-years' imprisonment. The judgment of conviction was affirmed on direct appeal (Appeal No. 2005-SC-000780) by the Kentucky Supreme Court.
Charles French was sentenced as follows: Thirty-five years for first-degree sodomy as to H.C., five years as to first-degree sexual abuse as to H.C., five years on each of the two counts of first-degree sexual abuse as to S.M. The thirty-five years on the sodomy charge and the five years on the sexual abuse of H.C. were ordered to run concurrently but consecutive to the two five-year sentences for the first-degree sexual abuse as to S.M.
In September 2007, French filed an RCr 11.42 motion alleging ineffective assistance of trial counsel. By Opinion and Order entered June 23, 2011, the circuit court denied French's RCr 11.42 motion without an evidentiary hearing. This appeal follows.
French contends that the circuit court erred by denying the RCr 11.42 motion without an evidentiary hearing. French asserts that his claims of ineffective assistance of trial counsel were not clearly refuted upon the face of the record, thus entitling him to a hearing.
To prevail, French must demonstrate that trial counsel's performance was deficient and that absent such deficiency, a reasonable probability exists that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). And, if a defendant's claims of ineffective assistance of trial counsel are refuted upon the face of the record, an evidentiary hearing is not warranted. Fraser v. Com., 59 S.W.3d 448, 452 (Ky. 2001).
French maintains that trial counsel was ineffective for failing to retain a medical expert to review the medical records of the victims and an expert to testify that French's taped statement was produced by coercion and unreliable police interrogation methods. As to the medical expert, French maintains that the Commonwealth's two medical experts testified that the normal medical examinations of H.C. and S.M. were consistent with the allegations of sexual abuse because victims will often exhibit no physical signs of sexual abuse. French theorizes that a defense medical expert would contradict such testimony and offer an opinion that sexual abuse of prepubescent females would cause detectable physical harm. As to the other expert, French alleges that his statement to police was coerced and that an expert "could have caused the jury to doubt the veracity of [French's] taped statement." French's Brief at 15. To support his allegation of coercion, French points out that during his interrogation a police detective misled him by stating that the detective could read French's body language and knew he was being untruthful.
French failed to adequately demonstrate that these two hypothetical expert witnesses would have been favorable to French's defense. Moreover, even if their testimony proved favorable, there certainly does not exist a reasonable probability that French would have been acquitted of the sexual abuse charges or the sodomy charge. The jury heard the testimony of several witnesses at trial, including the victims, H.C. and S.M., and French. Both victims testified to French's sexual abuse of them. And, French's own testimony, at times, seemed to undermine his defense and undoubtedly led the jury to view his claims of innocence incredulously. In our view, the addition of the above two experts for the defense would have made little difference in the outcome of French's trial. Hence, we are unable to conclude that trial counsel's failure to secure two expert witnesses constitutes deficient performance.
During Charles French's testimony, French admitted that H.C. touched his penis on two separate occasions, although without his consent.
Next, French asserts that trial counsel was ineffective for failing to properly investigate and call certain witnesses at trial. In particular, French believes that trial counsel was deficient for failing to interview and present the testimony of Teddy and Jenny Hooker. French asserts that the Hookers would have testified concerning French's acrimonious relationship with H.C.'s mother and their custody disputes as to H.C. Additionally, French points out that the Hookers would testify as to French's good relationship with H.C. and S.M., as both girls had on occasion accompanied French to the Hookers' home.
The enmity between French and H.C.'s mother was established at trial through other testimony. Also, there was testimony indicating that a good relationship existed between French and the victims, H.C. and S.M. In short, the Hookers' testimony would constitute cumulative evidence at best and would not create a basis for ineffective counsel. Thus, we do not believe that trial counsel was deficient for failing to interview or call as witnesses the Hookers.
French also maintains that trial counsel was ineffective for failing to call any witnesses or present any evidence during the sentencing phase of trial. At the sentencing phase, only one witness testified. An expert in sentencing was called by the Commonwealth and was cross-examined by French's trial counsel. During cross-examination, defense counsel questioned the expert concerning parole eligibility and reminded the jury that French may never receive parole and could serve the entire sentence. Trial counsel also urged the jury to sentence French to the minimum sentence of twenty years. Counsel reminded the jury that French had no criminal history and that the current offenses did not involve physical injury.
French specifically states that trial counsel should have called his father, Charles French, his mother, Carol French, and Teddy Hooker as witnesses. According to French, they would have testified as to his work ethic to provide for his family, that he often assisted an elderly neighbor, that he always "hung out with the children who were in need" and "would invite them to their home." French's Brief at 22.
The record demonstrates that French's employment record was not exemplar and that French, in fact, failed to pay child support for a considerable period of time. And, as French was then a convicted sex offender, any testimony demonstrating that he previously "hung out with children" and invited these children home would probably not be considered mitigating by the jury. We believe trial counsel made a strategic decision not to call the above witnesses at the sentencing phase of trial, and we will not second guess that decision. See Hodge v. Com., 116 S.W.3d 463 (Ky. 2003)(overruled on other grounds). In sum, we conclude that trial counsel did not render ineffective assistance during the sentencing phase of trial.
We view French's remaining contentions as moot or without merit.
To conclude, we hold that the circuit court properly denied French's RCr 11.42 motion to vacate without an evidentiary hearing.
For the foregoing reasons, the Opinion and Order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: M. Brooke Buchanan
Assistant Public Advocate
Department of Public Advocacy
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General