Kentucky Supreme Court, 2017

Terrance Miles v. Commonwealth of Kentucky

Kentucky Supreme Court · Decided August 23, 2017

Opinion

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'- - ~oN REVIEW F'RoM coUR'r oF APFEALS ' v. - = cAsE No. 2012 cA-oo 1240 ' JEFFERSON cIRcUIT coURT No. 05 cR~000740 'TERRANCE_: MILEs `. ` APPELLEE/cRoss-APPELLANT MEmonAnbum o_PmIoN or THE coun'r ' l ' REVERsmd ' d Terrance Miles is currently serving `a fifty-year sentence following convictions for the 'murder of Michael Teasley, for first-degree wanton _ . endangerment, for tampering with- physical evidence,_ and for‘bei`ng a s.econd- l degree Persistent Felony 'Offender (PFO). Miles moved-the trial court for relief .from the judgment under Kentucky Rule of Criminal Proc_edure (RCr] 111 .42. - .

The trial court _condncted an evidentiary hearing o_n Teasle_r/’s claims, after which it entered an order denying relief. -On apneal, the flourt'of Appeals _ reversed the trial court’s order. n We granted cross~motions for discretionary review. The C`ommonv`vealth asserts the Court of Appeals erred 'in its conclusion that Miles had received ineffective assistance `of trial counsel. Miles on the other hand, while agreeing with the Court-of'Appeals’ reversal of the trial court’s order, argues in his cross- -motion for discretionary review that it erred when it failed to find error in the trial court’ s finding that trial counsel’s failure to call an important witness at trial was not unreasonable trial strategy. k` ` For' the reasons below,' we reverse the decision of the Court of Appeals ' and reinstate the trial court’s order denying Miles’s"RCrl 1 1.4_2 motion. _ i. FAc'i‘UAL _Aim rRocEDURAL'BAcKGRoU`ND. -Michael Teasley, a club bouncer,` was shot and killed while trying to disperse a crowd after the club had closed for the night Miles was tried and convicted for killing Teasley, and this Court affirmed the judgment of conviction and sentence on direct appeal. Miles filed a pro se motion under RCr 1 1.42 to vacate his convictions, claiming tliat‘his trial counsel was ineffective. Before us. are four of his eleven complaints made in the RCr 1 1.42 motion: (1) the . . admission at trial of Miles’s_riick name ““OG” or “Onginal Ga:¢_igster”;l (2) the failure of trial counsel to objectdto testimony about a gun-found at Miles’s d residence-that indisputably had no connection to the crime; (3) the failure of trial counsel to object to hearsay testimony; and (4) the~failure. of trial counsel to call Heather St. Clair as a defense witness.

The trial court conducted a series of three separate evidentiary hearings, spanning five days, to address Miles’ s RCr 1 1. 42 allegations The trial court ultimately denied Miles’s motion. q ' The' Court of Appeals undertook review on appeal. Th`at court determined that the trial court erred by denying »RCr 1 1142 relief to Miles because his trial counsel was ineffective.- Mcre specifically, the ccui,‘t found that Miles’s counsel was ineffective on three separate instances:_( 1) the admission of'Miles’s nick _ name “OG” or “Oiiginal Gangster’f’; (2) the failure to object to testimony about a gun found at Miles’ s residence; and (3) the failure to object to hearsay l testimony. ‘l`hc courtnrema'n_ded the"case to the trial court for further ' proceedings v v n _. _ ii. ANALYsil.

A. Standard` of 'Review. l ' A ciiininal defendant has a constitutional light t_o effective assistance of 'counsel. This right is'guaranteed under the Sixth'and Fourteenth amendments of the Constitution of the United States and ‘Sec`t'i_on Eleveii of the Kentucky ‘ Coi"is't:itut;ion.1 A criminal defendant is entitled to" effective assistance 'of counsel,,but he is not entitled to perfect counsel._2 This Court reviews an ineffective assistance of counsel claim under Stn'cltland q. liifci.`sl'iington.,3 which we adopted in G`all v. Commoriwealtlt‘* The "Strickland standard requires Miles to prove both prongs in a_ two-part analysis.

First, Miles must show tiial-couiisel’s performance was deficient Seccnd, Miles _'must prove that the deficiency by counsel prejudiced his defense. 5 Strickland further elaborated that “[t]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing t

1 U. S. Const. amend. XI; U. S. Const. amend. XIV; Ky. Con_st. § 11.

2 Si'nmions v. Comm,onwealth, 191 S. W. 3d 557, 561 (Ky. 2006) (“A defendant is not guaranteed errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.” (citations omitted]].

3 Stfickland v. WaShl'ngtOT|.', 466 U. S. 668 [1984].

4 Gall v. Comn_wnw€alth, 702 S.W.2d 37 (Ky. 1985]. ' 5 Strickla_n,d, 466 U.S. at 687.' on one. In particular, a court need not determine whether counsel’s ' performance was deficient before examining the prejudice suffered by'_ the defendant as a result of the alleged deficiencies [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect Will often be so, that course should be followed.'°'\'s 'Proving both deficient performance and prejudice is a substantial burdcn, especially in the context that counsel’s conduct is presumed reasonable and effective7 Ac_cording to.-Strickland, “def`icient perforrnance” requires error “so serious that counsel was not functioning as the ‘cl`ounsel’ guaranteed the defendant by the‘ Sixth Amendment.’JB And`to prove prejudice,' ' Miles must demonstrate that “coun'sel’s errors were so serious as to deprive l[hiin] of a fair trial, a trial whose result is reliable.”9 Stated another way, “the' n defendant must show that__there is a reasonable probability that,' but for _ counsel’s unprofessional errors, the result of the proceeding would have been n different A reasonableprobability-isa probability sufficient toiindei'rninel confidence in the outcome.""10 v 'As the Court of Appeals in this case noted, “[A] court must indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too‘easy to conclude that a

6_1¢11. at 697. _ ' _ _ _ v Humph.vey v. commonwealth 692 s.w..zc_i 870,'873` (1<y. 1998). - ` a _Id. ' v ' ' 1a , . w smeldand 466 U.s.-`at 694. _ particular act or omission of counsel was unreasonable in the harsh light of hindsight ”1.1 As Justice ll-lugl"ies wrote in Common_wealth v.' McGorman, “When faced ' mth\`an ineffective.assistancc of counsel claim in an RCr__ 1 1.42 appeal, a . '. reviewing court first presumes that counsel’s performance was reasonable.”12 .'F_turthermore, ‘5We _r_nust analyzed counsel’s overall performance and'the totality - . of circumstances therein in order to»determine if the challenged conduct can l overcome the strong presumption that counsel’s performance was reasonable ”13 Lastly, on appellate review of a trial court’s decision to deny an RCr 1 .42 motion, a reviewing court will only set aside the trial co_urt’s factual determinations if they are found `to be clearly erroneous or unsupported by substantial evidence14 This is similar to Kentucky Rule`s of Civil Procedure' ` [CR_]_ 62`.01, which specifically states that “Findings of fact shall not be set aside unless clearly erroneous, and due regard_shall be given to_ the opportunity of n the trial court to'judgethe credibility of the wimesses." After review of the trial n court order, and its findings of fact, we cannot say that its findings were unsupported by substantial evidence in the record.

11 Bell v. Cone, 535 U. S. 685, 702 (2002); (citing S_tri'ckland 466 U. S. at '699) ' Commonwealth v. McGomuzn, 489 S. W. 3d 731, 736 (Ky. 2016] (citations omitted). .

13 1a . 14 See Broi`vri v. Cammionweaith, 253 S. W. 3d 490, 500 (Ky. 2008); Commonwealth v. Anderson, 934 S. W. 2d 276, 278 (Ky.1996].

B.'Counsel’_s failure to object to the introduction of Miles’s alias does not rise to the level of. ine&'ective assistance of counsel.

Milcs asserts that trial counsel was ineffective when he failed to object to the introduction of Miles’ s ni'clciiarrie, “O.G.’_’ or “Original Gangster.f’ l d a Durin_g cross examination of defense witness Vernon Douglas, the Commonwealth asked about Miles’ s nickname. lBefore this question, the only ' nickname discussed was “Cat Daddy,” which had been discussed by defense _counsel' in his opening statement When asked about Miles’ s nickname, 'Douglas responded that Miles had been known in the past as “O.G.” or “Original Gangster;” The Coii`iiiionwealth then referred to Miles by his aliases, “Ol`d Gangster" and “Cat Daddy”' on three separate occasions in 'closingl_ argument l .

When the Court of Appeals reviewed Miles’s ineffective assistance of counsel claim`, as it pertained to this issue, it found prosecutorial misconduct The court then discussed whether the misconduct was flagrant and if so, whether that created prejudice under Strickland. l _The parties contest whether trial counsel should have objected to 'disclosure_of the nickiia_rne. Tiial counsel iii his testimony at the RCr 1 1142 ' hearing testified that in hindsight he should have objected to the introduction of the nickname, but he failed to do ‘so because of the speed in which the v ` questions were asked and answered. The Coinmonwealth asserts that even if trial counsel had objected to the .testimony,' the niclniames would have been admissible to show Miles-is state of mind and motive for the shooting. _Following the guidance provided in Strickland, we address first the' _ n prejudice prong.15 And once again, guided by Strickla`nd, Miles must show that the use of his alias created a _“reasonable probability that, but for counsel’ 's - . unprofessional errors, the result of the proceeding would have been different ”16 5 Miles and the Court of Appeals cite cases that found the use of an alias , y created so much prejudice that it created _an unfair trial. For instance,\ Un_i'ted Stcites v._. Fanner',fin which the Sec_ond Circuit Court of -Appeals found the use'of the d_efendant’s nickname “Murdei:’f' was`overly prejudicial. _17 In Farmer, the n court stated, “In our prior cases, theg`overnriient’s use of a defendant’s . nickname was ‘occasio_nal’ [or] .‘brief and isolated.’ But Far-mer’ s nickname.. was the main rhetorical trope used by the prosecution to address the jury.. -[and was used] no fewer than thirty times. ”13 l Miles’ s facts are distinct from those' in Farmer. Miles’ s nickname was used a total of three times after it was first mentioned in the testimony of a defense witness. The present case is a farv cry_from.the “r_hetorical trop_e~ in ' Furthermore,- Miles cites Bro_wn v. Comrr`ionwealth for the proposition that use of a nickname that suggests criminal activity .can be` prejudicial.19 lNe-. do notl disagree But, Miles has failed to show that the Coinmonwealth’ s use of his nickname “Old Gangster” prejudiced his case in any way. These 520mments,

15 strickland 466 U.s. at 697.

15 Id. at 694.

17 United S£ates v. Farm,er, 583 F. 3d 131,146_ (2nd Cir_'. 2009}.

18 Id "19 Bmwn v. communicater 558 s. w. 2d 599, 603 (Ky.19.77)

in the context of an entire trial, were de minimis. Believ`i.ng the reference to Miles’ s nickname somehow would have changed the course of his verdict' is speculative._ l ' In finding there lwas no prejudice, w_e find counsel was not ineffective in ' failing `to object to the introduction and isolated use of Miles’s nickname.

C. Counsel was not ineH`ective when he failed to object to testimonial hearsay.

Next, Miles asserts that trial counsel was ineffective when he failed to object to certain testimony from Detective Ashby, arguing that the testimony ir'i question.was testimonial hearsay without an exception. _ Whilc on the witness stand, Detective Ashby testified that a man named .Reggie Bumey had identified Miles from a photo pack as being the individual in ' a fight with '_I‘easley on the night of his murder-. ~Miles argues that failing to have ' Bumey testify at trial abridged his constitutional rights'to confront witnesses.

Miles further argues failing to object"to Ashby’s reference to Bumey was an error sufficiently egregious to constitute ineffective assistance of counsel.

The Court of Appeals opinion does little in its analysis cf this issue. lt simply`states that if an objection had been made to Detective`Ashby’s ' testimony that it would have been 'sustair`ied. While acknowledging that other eyewitness testimony identified Miles as being the individual who fought with Teasley earlier in the night, the Court of Appeals found that Detective Ashby’s ` testimony was “not harmless when considered in conjunction with previous l errors....” d - d _ We cannot,agree that the testimony by Detective Ashby was of such a nature that Miles was denied effective assistance of counsel. Once again, Miles

` has failed ton show prejudice Other'eyewitnesses’ testimony at trial identified Miles as the individual who fought Teasley the night of the murder. One of those eyewitnesses was OiH_cer Hill, who testified that he observed Miles and Teasley' in an altercation earlier' 111 the evening and that he believed that the same individual was the one he saw running from the scene of the shooting. _ D. Conosel was not ineffective in failing to object to a picture of a gun 1 being displayed.

Miles argues trial counsel was ineffective when he failed to object to the discussion and photograph of an unrelated gun found at Miles’ s residence The Common`wea_lth referenced this gun in its opening statement, saying '“’l`hey also found a gun under the mattress which we later found out was not the same gun used' in the murder but he did 1n fact have a gun. ”Furthennore, ' the gun was discussed during the testimony of Detective A`shby, who admitted on the stand that the gun found at Miles’ s residence was not the gun used to d kill Teasley and was not connected _to the case. This is not before the .~ ' Comrnonwealth published ar picture of the gun via a projector during Detective Ashby’s testimony. However, defense -counsel_did object when the s Commonwealth sought to have the picture of the gun admitted into evidence.

The trial court, agreeing with defense counsel, found that the gun was d irrelevant evidence and sustained defense counsel’ s objection. ll .

The Commonwealth argues that defense counsel did not object to the discussion of the gun by Detective Ashby and projecting a photograph as a deliberate trial strategy.' Emphasizing that on cross_-examination, defense counsel was able to have Detective Ashby testify that the gun had no connection with the murder of Te'asley, thereby strengthening Miles’s defense,

displaying the lack of substantive evidence_.: Miles argues that references to the _ gun and defense counsel’s failure to object at its mention were not only done in error-but prejudiced Miles to the extent to be ineffective as counsels l 'l`he Court of Appeals correctly noted that weapons unrelated to the crime _ , charged are generally inadmissible20 ’l`he Ciour,t of Appeals also recognized that . _ when"defense questioning made clear to the jury that the weapon in question 1 was`not the murder weapon, the discussion of it and the publication of the . photograph of it _was hannless. 21 v We agree with the trial court that the gun is irrelevant, but proving that the introduction of the gun resulted in prejudice` is critical to lour a.nal_ysis.22 Whi_le on the stand during cross-examination by defense counsel, Detective Ashby admitted that the gun in question was not connected Teasley’s murder.

Further, the Court of Appeals stated in pits opinion that “the jury was repeatedly 7 informed the gun was unrelated to the murder... .” _And lastly, the gun itself was not allowed to be submitted into evidence, a fact that further dampens Miles’ s claim of prejudice. l Finding Miles has failed to prove prcjudice, we need not,discuss the first prong of Stn'ckland. 23 Accordingly, we find that trial counsel was not ineffective " in failing to object to the discussion of the gun found at Miles’ s residence.

20 Hanis v. commonweal¢h, 348 s. w. 3d 117, 123 24 (Ky 2o12).

21 Id. at 125_.

22 Hum,pmey, 692 s. w. 2d at s73.

23 smckzand, 466 u.s.|at 697. ‘ 10 §. Fai_lnre to call Heather St. Clair was not ineH'ective.

Lastly, Miles contends that the Court of Appeals erred when it found no error in the trial’s court’ s ruling that defense counsel’s failure to call Heather St. Clair as a defense witness was not ineffective representation St., Clair was a cocktail waitress a_t the club where Teasley worked, and she was working the night of his murder. Sh`e.was familiar with Milesand _ recognized him by sight because he was a regular at the club. St. Clair testified ' at Miles’ s bond hearing. Miles asserts that St. Clair’ s testimony would be_ directly contradictory to that of several of the Commonwealth’s' witnesses. More . specifically, Miles asserts that St.lClair would testify that he was not wearing ` ` the outfit like the one worn by the person identified as the shooter and the ' person who picked a fight with Teaslcy. n -We must “affirniatively entertain the range of possible ‘reasons [Miles ’s] counsel may have proceeded as [he] did. "”24 And as the Court of Appe__als noted in its decision, failure to call St. Clair as a witness was not error. A decision whether or.not` to call a certain witness is presumed to- be'purposefu.l trial stratey and will not be second-guessed.25 _ ' At Miles’s RCr 1 1.42 evidentiary hcaring, trial counsel testified that'he purposely chose not to call St.,Clair to .testifyi lHe stated that he initially l believed St.' Clair’s testimony would be helpful to the defense, but after the bond hearing he carrie to believe that calling her as a witness at trial would be inconsistent with the defense theory presented at tiial. Furthermore, trial

24 cullen v. mhalsrer, 563 U. s. 170, 196 (201 1) (quosng Pinholster v. Ayers, 590 F. 3d 651`, 692 (9111 cir. 20_09).

25 Sayior v. Comnwnwealth, 357 S. W. 3d 567, 571 (Ky. App. 2012). ‘ ' ' 1 1 counsel testified that as proof unfolded at`tiial, he believed St. Cllair’s testimony to be less valuable than at the bond hearing because of alleged inconsistenciesf While one can speculate‘on the possible value of St. Clair’s testimony at . tiial, we must resist the temptation to devise trial strategy with the benefit of hindsight Given our strong deference to a trial attorney’s decision to call certain witnesses, and the fact that Miles did not show that failure to call St. Clair was either deficient or prejudicial to his case, we find no error.

F. Miles i_s not entitled to a new_ti'ial. because of C_nmulative Erroi'..

Miles is not entitled to RCr 1 1.42_ relief.based on a finding of cumulative _ error.. As the Commonwealth notes, and Miles does not`refute, we find no cases - where cumulative error has formed the basis for RCr 11.42 relief. Cumulative eiror may be found only when “the individual errors were themselves _ substantial, bordering, at least, on the prejudicial ”26 As in Parrish v. Commonwealth, we reject Miles's argument of cumulative eri:'or.Q'7 Without v establishing legitimate error in any of his arguments singly, it is nonsensical to accept Miles’_s asertion.that their aggregation constitutes a separate ground for relief.

III. ' 4 CONCLUIIOH.

For the foregoing reasons, we reverse the decision of the Court of Appeals and reinstate the trial court’s order denying Miles’ s RCr 1 1-. 42 motion for relief lfrom the judgment

35 Brown v. Comm.onwealth, 313_ S. W. 3d 577. 631 (Ky. 20_10}.

27 Parrr'sh `v. Commonwealth, 272 S. W. 3d 161,1_80 (Ky. 2008]. t12 ' :All~ sitting-.. Minton,.C.J.; Hughes, Keller, VanMeter,` Venters and Wright, JJ., concur. Cunningham, J., concurs in result only."' ' coUNsEL FoR APPELLANT/caoss?APPELLEE: ' Andy`Besh'ear - Attome'y General' of Kentucky Jaines Colenian Shackelford Assistant Attorney General cou`NsEL.FoR APPELLLEE/cRoss-APPELLAN§F: ' `, . Margaret Ann_e Ivie Assistant Public. Advocate .13

§npreme Trinri of §§eii uckg' 2014- SC- 000558- DG ’. 2015- SC- 000321- DG COMMONWEALTH OF KENTUCKY APPELLANT/CROSS- APPELLEE ' - ON REVIEW FROM COURT OF APPEALS V. . CASE NO._ 2012-CA-001240 . ` JEFFERSON CIRCUIT COURT NO. 05-CR-OOO74O TERRANCE MILES. ' ` _ APPELLEE/CROSS-APPELLANT .

ORDER DENYING PETITIOH FOR MODIFICA_TION AND MODIFYIHG OPINION The Petition for Modification, filed by the Appellee/'Cross-Appellant, of the Memorandum Opinion of the Court, rendered March 23, 2017,-is DENIED;` _ however; the opinion is modified and replaced with the attached opinion. The modifications ldo not affect the holding ' All _sitting. All concur. ‘ ENTERED: Augusr 24, 2017.

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