Ford v. Commonwealth

• Decision Date: 26 August 2021
• Docket Number: 2019-SC-0538-DG
• Citation: 628 S.W.3d 147
• Court: United States State Supreme Court — District of Kentucky
• Parties: Tonya FORD, Appellant v. COMMONWEALTH of Kentucky, Appellee

628 S.W.3d 147

Tonya FORD, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2019-SC-0538-DG

Supreme Court of Kentucky.

AUGUST 26, 2021

COUNSEL FOR APPELLANT: Samuel N. Potter, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE KELLER

Tonya Ford (Ford) was convicted of the murder of her husband, David Ford (David). Her conviction was affirmed by this Court on direct appeal. She filed a motion to vacate the judgment pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42 with the trial court, which was denied. The Court of Appeals affirmed the trial court. This Court granted Ford's motion for discretionary review. After a thorough review of the record and arguments of the parties, we affirm in part, reverse in part, and remand to the Court of Appeals.

I. BACKGROUND

In Ford's direct appeal of her conviction for murder, this Court briefly described the factual background of the case. We explained:

In February of 2009, only days before Valentine's Day, Lebanon Police Officer David Ford was found dead in his home, the result of a gunshot to the back of his head as he sat at the family's computer. The jury found that the fatal shot was delivered by the vengeful hands of David's wife—the Appellant, Tonya Ford.

The Fords had a tumultuous marriage and were living separately at the time of his murder. Chief among their grievances was David's extramarital affair with Mary Ramos. At the time of his murder, David lived with Ms. Ramos while Appellant was searching for an apartment so that she could move out of the family home. On the day of the murder, emergency personnel were dispatched to the scene in response to a 911 phone call placed by the Appellant stating that her husband had been shot.

A detective for the Kentucky State Police took charge of the investigation and initially interviewed Appellant. After further investigation, the detective interviewed Appellant on two additional occasions, wherein she revealed evidence implicating her as the shooter. As a result, Appellant was indicted on October 19, 2010, on one count of murder.

Ford v. Commonwealth , 2012-SC-000624-MR, 2014 WL 1118198, at *1 (Ky. Mar. 20, 2014). Ford proceeded to trial in front of a Taylor Circuit Court jury. In our prior opinion, we summarized the evidence presented against Ford as follows:

First, the jury was presented with the recording wherein Appellant's mother disclosed that Appellant admitted to her that she killed David. Second, two witnesses testified that Appellant stated she would kill David if she ever discovered he was cheating. Third, cell phone evidence contradicted Appellant's alibi that she was not present at the residence around the time of the murder. The jury was also presented with evidence that Appellant's car was seen at the residence prior to David's murder, although the precise timeframe was unclear. Fourth, Appellant's fingerprints were found on a threatening note discovered near David's body. Finally, when informed that she would be subjected to a gunshot residue test, Appellant washed her hands and then later denied having done so.

Id. at *3. The jury found Ford guilty and recommended a sentence of twenty years. The trial court sentenced Ford in accord with the jury's recommendation.

Ford appealed her conviction to this Court. She asserted several issues on direct appeal, one of which was that the jury instruction for murder violated her right to a unanimous verdict because it included language that would allow a jury to find her guilty of murder either as a principal actor or under a complicity theory. Id. at *4. This issue was not properly preserved at the trial court level, so we reviewed it for palpable error. Id.

In discussing the jury instruction issue, we explained, "a jury may be instructed on multiple theories of guilt in a single instruction without violating the unanimity requirement if the evidence would support conviction under each theory." Id. (citing Robinson v. Commonwealth , 325 S.W.3d 368, 370 (Ky. 2010) ). However, in Ford's case, "there was absolutely no evidence to support the aiding, abetting, or counseling instruction." Id. We went on to quote Travis v. Commonwealth , 327 S.W.3d 456, 463 (Ky. 2010), for its holding that "if there is no reasonable possibility that the jury actually relied on the erroneous theory—in particular, where there is no evidence of the theory that could mislead the jury—then there is no unanimity problem." Ford , 2014 WL 1118198, at *4. Finally, we held that although the jury instructions were erroneous, "there [was] no reasonable possibility that the jury actually relied on the erroneous theory." Id. at *5 (quoting Travis , 327 S.W.3d at 463 ).

On June 16, 2015, Ford, through counsel, filed a motion to vacate her conviction pursuant to RCr 11.42. Ford asserted multiple claims of both ineffective assistance of counsel and prosecutorial misconduct. One allegation of ineffective assistance of counsel stemmed from her trial counsel's failure to object to the erroneous jury instruction.

The trial court held an extensive evidentiary hearing on Ford's RCr 11.42 motion. At that hearing, Ford's trial counsel testified that he did not tender any jury instructions. He did not know why he had not objected to the complicity language in the murder instruction stating, "I didn't have a big problem with the jury instructions, personally." Patti Brockman, who was the foreperson of the jury, also testified at Ford's RCr 11.42 hearing. She testified that she and the other jurors knew that Ford could be found guilty of either committing the murder herself or aiding, abetting, or counseling another individual in committing the murder. She testified that she believed Ford had aided, abetted, or counselled another individual to commit the act and that was the basis of her guilty verdict. Karen Anderson, who was also a juror on Ford's case, also testified that she knew she could find Ford guilty of either killing David herself or of aiding and abetting another individual in killing David. She testified she believed Ford killed David and based her guilty verdict on this belief.

The trial court found both of the jurors credible and believed they were both telling the truth. However, the court, citing Hodge v. Commonwealth , 116 S.W.3d 463, 467–68 (Ky. 2003), stated that a movant in an RCr 11.42 action cannot raise issues in that action that should have been brought on direct appeal.¹ The court found that complaints about jury instructions should be brought on direct appeal, and in fact were raised by Ford in her direct appeal.

The trial court next noted that juror statements cannot be used to impeach their own verdicts. The trial court explained that RCr 10.04 provides one exception, that a juror's testimony can be used to "establish that the verdict was made by lot." Mattox v. United States , 146 U.S. 140, 149, 13 S.Ct. 50, 36 L.Ed. 917 (1892), provided another exception, that a juror "may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind." The trial court went on to note that Kentucky recognizes that under the Due Process Clause, "courts should consider juror testimony concerning overt acts of misconduct by which extraneous and potentially prejudicial information is presented to the jury." Commonwealth v. Abnee , 375 S.W.3d 49, 54 (Ky. 2012) (citations omitted). The Supreme Court of the United States, in Warger v. Shauers , 574 U.S. 40, 51, 135 S.Ct. 521, 190 L.Ed.2d 422 (2014), defined "extraneous information." "[I]nformation is deemed ‘extraneous’ if it derives from a source ‘external’ to the jury." Id. (citing Tanner v. United States , 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) ). In turn, " ‘[e]xternal matters’ include publicity and information related specifically to the case the jurors are meant to decide, while ‘internal’ matters include the general body of experiences that jurors are understood to bring with them to the jury room." Id. (citations omitted).

Finally, the trial court applied the Strickland² test to Ford's trial counsel's failure to object to the erroneous jury instruction. The trial court found that the failure of trial counsel to object to the jury instructions was deficient. However, the trial court also found "the failure of trial counsel to object is an insufficient basis to set aside the conviction pursuant to Criminal Rule 11.42." The trial court did not grant Ford relief on any of the claims in her motion to vacate her conviction.

Ford appealed the trial court's denial of her RCr 11.42 motion to the Court of Appeals. The Court of Appeals described what happened next as follows:

On June 14, 2017, Ford's appointed counsel tendered a motion to increase the maximum page limit of her appellate brief from 25 to 40 pages. That motion was granted by way of an order entered on July 12, 2017. Thereafter, counsel filed a renewed motion seeking leave to file an appellate brief in excess of forty pages. That motion was denied on January 22, 2018. Counsel's brief was returned to her as noncompliant with the 40-page limitation, and she was ordered to file a compliant brief within 30 days. In response, Appellant's counsel filed her brief on February 21, 2018.

Ford v. Commonwealth , 2017-CA-000833-MR, 2019 WL 1872106, at *1 (Ky. App. Apr. 26, 2019). The Court of Appeals went on to conclude:

Appellant's brief is not in conformity with Kentucky Rules of Civil Procedure ("CR") 76.12(f)(a)(ii). This rule requires the appellate brief to utilize 12-point font, with a 1.5-inch margin on the left side and 1-inch margins on all other edges. Appellant's brief appears to employ a font smaller than that required by the rule, with more lines per page than can be achieved with 12-point font, and margins which are smaller than 1.5 inches on the left and 1 inch on

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