Calloway v. Commonwealth, 080219 KYCA, 2016-CA-001928-MR

Docket Nº:2016-CA-001928-MR
Opinion Judge:TAYLOR, JUDGE:
Party Name:DENNIS LEE CALLOWAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:BRIEF FOR APPELLANT: Dennis Lee Calloway, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
Judge Panel:BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
Case Date:August 02, 2019
Court:Court of Appeals of Kentucky
 
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DENNIS LEE CALLOWAY APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2016-CA-001928-MR

Court of Appeals of Kentucky

August 2, 2019

NOT TO BE PUBLISHED

APPEAL FROM LOGAN CIRCUIT COURT HONORABLE TYLER L. GILL, JUDGE ACTION NO. 12-CR-00177

BRIEF FOR APPELLANT: Dennis Lee Calloway, pro se LaGrange, Kentucky

BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

OPINION

TAYLOR, JUDGE:

Dennis Lee Calloway appeals pro se from the Logan Circuit Court's April 15, 2016, order denying his motion to vacate sentence pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. We affirm.

I. BACKGROUND

Calloway was arrested and charged with several felony offenses relating to a late-night home invasion at Bennie Bryant's residence in Logan County, Kentucky. On September 11, 2012, two men broke into Bryant's home, duct-taped his wrists, beat him with a baseball bat, and searched his home for money and drugs. As the men ransacked his home, Bryant managed to free his wrists from the duct tape. He then obtained a garden hoe and used it as an improvised weapon to chase his assailants from the area. Bryant recognized one of his two assailants as someone he knew as "Dennis Lee." In addition, one of Bryant's neighbors, Susan Smith, witnessed Calloway fleeing the scene and telephoned 911. She identified the fleeing individual as Calloway in a photographic array provided by law enforcement that same evening. The Logan County Sheriff's Department apprehended Calloway shortly thereafter.

Following his trial in 2013, the jury found Calloway guilty of first-degree robbery, 1 complicity to first-degree unlawful imprisonment, 2 first-degree burglary, [3] third-degree criminal mischief, 4 and third-degree terroristic threatening.5The trial court entered final judgment on March 28, 2013, sentencing Calloway to a concurrent term of ten years' imprisonment in accordance with the jury's recommendation. Another panel of this Court upheld Calloway's conviction on direct appeal in an unpublished opinion rendered October 24, 2014.6 The Kentucky Supreme Court denied discretionary review by order entered September 16, 2015. Calloway subsequently filed a pro se motion to vacate sentence under RCr 11.42, which was denied by the circuit court on April 15, 2016. This appeal followed.7

II. ANALYSIS

As a preliminary matter, we note the record is not complete in this case. Although the jury trial stretched over multiple days, the video recording of the trial contains only a single day's testimony. The omissions in the record hinder our ability to fully consider the merits of Calloway's appeal. It is the appellant's obligation to ensure the appellate court receives a complete record-including all relevant video recordings. Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016). The appellant's obligation to ensure a complete record remains even when the appellant is incarcerated and acting pro se. See Graves v. Commonwealth, 283 S.W.3d 252, 255-56 (Ky. App. 2009). "If evidence is missing from the record, we must assume that the trial court's decision is supported by the record." King v. Commonwealth, 384 S.W.3d 193, 194-95 (Ky. App. 2012) (citing Smith v.

Smith, 235 S.W.3d 1, 5 (Ky. App. 2006); see also Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985)). We shall proceed with our review to the best of our ability, but we must nevertheless assume any missing items from the record support the trial court's decision. King, 384 S.W.3d at 194; Graves, 283 S.W.3d at 256.

Calloway presents six principal issues, along with related sub-issues, on appeal from the denial of his RCr 11.42 motion. For his first principal issue, Calloway argues his trial counsel rendered ineffective assistance by failing to object to improper character evidence and hearsay during a witness's testimony. Second, Calloway argues trial counsel was ineffective in failing to object to an in-court identification of him by a witness during a suppression hearing. Third, Calloway argues trial counsel was ineffective in failing to suppress unduly suggestive identification procedures. Fourth, Calloway argues trial counsel was ineffective for its failure to request separation of witnesses under Kentucky Rules of Evidence (KRE) 615 for the suppression hearing. Fifth, Calloway argues trial counsel was ineffective for failing to object to an article of clothing on the prosecutor's table, which he alleges was visible to the jury but never admitted into evidence. Sixth, and finally, Calloway argues trial counsel was ineffective for its failure to object to the trial court's admonition to the jury regarding how to use DNA evidence in this case, which he contends was insufficient and prejudicial to his case. We consider each issue in turn.

A. Standard of review

A successful petition for relief under RCr 11.42 for ineffective assistance of counsel must survive the twin prongs of "performance" and "prejudice" provided in Strickland v. Washington, 466 U.S. 668 (1984); accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). The "performance" prong of Strickland requires as follows: Appellant must show that counsel's performance was deficient. This is done by showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment, or that counsel's representation fell below an objective standard of reasonableness.

Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008) (citations and internal quotation marks omitted). The "prejudice" prong requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (quoting Strickland, 466 U.S. at 687). "The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001) (citation omitted), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).

Both Strickland prongs must be met before relief pursuant...

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