Graham v. Commonwealth

• Decision Date: 04 December 2015
• Docket Number: NO. 2012-CA-002181-MR,2012-CA-002181-MR
• Citation: Graham v. Commonwealth, NO. 2012-CA-002181-MR (Ky. Ct. App. Dec 04, 2015)
• Parties: NORMAN GRAHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

NORMAN GRAHAMAPPELLANT v. COMMONWEALTH OF KENTUCKYAPPELLEE

NO. 2012-CA-002181-MR

Commonwealth of Kentucky Court of Appeals

DECEMBER 4, 2015

NOT TO BE PUBLISHED

APPEAL FROM TODD CIRCUIT COURT

HONORABLE DAVID H. JERNIGAN, JUDGE

ACTIONNO. 07-CR-00001

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; JONES AND NICKELL, JUDGES.

JONES, JUDGE: Appellant, Norman Graham, appeals from the Todd Circuit Court's decision to deny his motion to alter, amend, or vacate pursuant to Kentucky Rules of Criminal Procedure(RCr) 11.42.For the reasons that follow, we affirm.

I.BACKGROUND

In the early morning hours of June 30, 1980, Graham's girlfriend, Kay Williams, was raped and stabbed to death in a trailer she and Graham shared.Graham was charged with the murder in 1981, and the resulting trial ended with a hung jury.Lacking physical evidence, the Commonwealth dismissed the indictment without prejudice.

The case remained largely dormant until 2008 when new DNA technology enabled the Commonwealth to test some of the evidence collected at the time of Williams's murder.After the evidence was tested, Graham was again arrested, charged, and indicted with Williams's rape and murder.Following a jury trial, Graham was found guilty.The trial court sentenced Graham to forty years of imprisonment on each count, to run concurrently, for a total sentence of forty years.Graham appealed his conviction to the Kentucky Supreme Court which affirmed by opinion rendered August 26, 2010, and modified on September 19, 2010.Graham v. Commonwealth, 319 S.W.3d 331(Ky.2010).

On November 16, 2011, Graham filed a motion pursuant to RCr 11.42 claiming ineffective assistance of trial counsel.On August 13, 2012, the trial court overruled Graham's RCr 11.42 motion without conducting an evidentiary hearing.Graham then filed a timely motion to reconsider pursuant to Kentucky Rules of Civil Procedure (CR) 59.05.The trial court affirmed the motion to the extent itcorrected a factual misstatement, but denied it on all other issues.This appeal followed.

II.STANDARD OF REVIEW

This Court reviews a trial court's denial of RCr 11.42 relief under an abuse of discretion standard.Bowling v. Commonwealth, 981 S.W.2d 545, 548(Ky.1998).An abuse of discretion has occurred when the trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.Commonwealth v. English, 993 S.W.2d 941, 945(Ky.1999)(citation omitted).A trial court's findings of fact are conclusive if they are supported by substantial evidence.RCr 9.78.

III.ANALYSIS

Graham's motion before the trial court raised several issues of alleged ineffective assistance of counsel: 1) trial counsel's alleged failure to call two exculpatory witnesses at Graham's trial; 2) trial counsel's failure to investigate and present evidence of alternative suspects; 3) trial counsel's failure to retain an expert to evaluate and challenge the evidence regarding dew on Graham's vehicle the morning after the murder; and 4) trial counsel's failure to properly prepare for the DNA evidence presented at trial, including his failure to secure an expert to conduct independent DNA testing.

Graham's sole argument before us is that the trial court erred in resolving these claims against him without first conducting an evidentiary hearing.To properly evaluate Graham's claims, it is necessary for us to briefly review boththe ineffective assistance of counsel standards and the standards used to determine whether an evidentiary hearing is necessary.

To establish an ineffective assistance of counsel claim under RCr 11.42, a movant must satisfy a two-prong test showing both that counsel's performance was deficient, and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair, and, as a result, was unreliable.Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).As established in Bowling v. Commonwealth, 80 S.W.3d 405(Ky.2002):

The Strickland standard sets forth a two-prong test for ineffective assistance of counsel: First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.Second, the defendant must show that the deficient performance prejudiced the defense.This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693(1984).To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is the probability sufficient to undermine the confidence in the outcome.Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.

Id. at 411-12.Additionally, we note that the burden is on the movant to overcome a strong presumption that counsel's assistance was constitutionally sufficient orthat under the circumstances, counsel's action "might have been considered sound trial strategy."Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

When the record fails either to prove or to refute a material issue of fact, a hearing is required."The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them."Fraser v. Commonwealth, 59 S.W.3d 448, 452(Ky.2001)."The hearing ensures a defendant the protections of due process in securing his right to effective assistance of trial counsel.To that end, he is permitted to call witnesses and present evidence in support of his motion, to cross-examine the witnesses for the Commonwealth, and to be represented by counsel."Knuckles v. Commonwealth, 421 S.W.3d 399, 401(Ky. App.2014).

However, not every claim of ineffective assistance merits an evidentiary hearing.Stanford v. Commonwealth, 854 S.W.2d 742, 743(Ky.1993).The law on this issue is clear: the circuit court need only conduct an evidentiary hearing if (i)the movant establishes that the error, if true, entitles him or her to relief under RCr 11.42; and (ii) the motion raises an issue of fact that "cannot be determined on the face of the record."Parrish v. Commonwealth, 272 S.W.3d 161, 166(Ky.2008)."An evidentiary hearing is not required when the record refutes the claim of error or when the allegations, even if true, would not be sufficient to invalidate the conviction."Cawl v. Commonwealth, 423 S.W.3d 214, 218(Ky.2014).

A. Exculpatory Witnesses

As part of his RCr 11.42 motion, Graham provided affidavits from two individuals, Sandra Burnette and Rita Kelly, regarding what they would have testified to had Graham's trial counsel called them to testify for the defense.Graham maintains that both women would have provided testimony to support Graham's innocence and place reasonable doubt in the jurors' minds as to Graham's guilt.

Sandra Burnette is Graham's ex-wife.In her affidavit, Burnette averred that had she been called to testify at Graham's trial she would have told the jurors that she was with Graham during the time the Commonwealth alleges the murder occurred.Specifically, Burnette says that she would have testified that she was with Graham at the Red Carpet Inn parking lot in Clarksville, Tennessee, until well after 3:00 a.m. on the morning in question.

However, the record refutes Burnette.¹Immediately after the murder, Burnette told investigators that she could not recall when she left Graham.In fact, as part of a written police statement, Burnette crossed out 2:30 a.m. and wrote that she left Graham at an "unknown time."Additionally, given that the Commonwealth could have impeached Burnette's credibility with her prior inconsistent statement, we believe any decision by counsel not to call her was sound trial strategy.Certainly, we cannot conclude that counsel was so thoroughlyineffective in failing to call Burnette that "defeat was snatched from the hands of probable victory."Foley v. Commonwealth, 17 S.W.3d 878, 884(Ky.2000).

With respect to Kelly, we fail to see how her testimony would have assisted Graham.The Commonwealth's theory at trial was that Williams was murdered sometime in the very early hours of the morning, likely before 3:00 a.m. Graham's defense was that he did not arrive home until 4:30 a.m., after Williams was already dead.Kelly states that, if called, she would have testified that she heard screams coming from next door sometime between 1:00 a.m. and 3:00 a.m., but did not look out the window.

Kelly's timeframe is consistent with the time of death argued by the Commonwealth.And, because Kelly did not look out the window, her testimony would not have indicated whether Graham's car was in the driveway at the time she heard the screams.In short, Kelly's testimony would have corroborated the Commonwealth's alleged time of death, but added nothing to assist Graham in establishing his innocence.

Graham claims that Kelly would also have testified that she saw four men leaving Williams's trailer sometime around dusk.Had Kelly seen the men return to Williams's trailer, heard the men fighting with Williams, or had a basis upon which to conclude the men wished to do Williams some harm, we would agree with Graham that the testimony might have been relevant and probative.However, there was absolutely no medical evidence to support a conclusion that Williams was killed at dusk.To the contrary, it was essentially agreed by both thedefense and the Commonwealth that Williams was killed sometime around 3:00 a.m. Testimony that several men left Williams's trailer, hours before she was killed, would not have assisted in Graham's defense.Accordingly, we agree with the trial court that even had counsel proffered Kelly's testimony regarding the men, there was no "likelihood of a different result [that is] substantial, not...