Hughes v. Commonwealth, No. 2006-CA-002279-MR (Ky. App. 3/28/2008)
| Decision Date | 28 March 2008 |
| Docket Number | No. 2006-CA-002279-MR.,2006-CA-002279-MR. |
| Parties | Christopher HUGHES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Christopher Hughes, Pro Se, Burgin, Kentucky, Brief for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Brief for Appellee.
Samuel J. Floyd, Jr., Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: NICKELL, THOMPSON, and VANMETER, Judges.
Christopher Hughes appeals from an order of the Laurel Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without holding an evidentiary hearing. For the reasons stated below, we affirm.
The pertinent facts of this case were stated by the Kentucky Supreme Court in an unpublished opinion, No. 2002-SC-1081-MR, which affirmed Hughes' conviction on direct appeal. Having reviewed the record, we adopt as our own, the facts as stated in No. 2002-SC-1081-MR, as follows Eric Hopkins [appellant's half-brother] and Jennifer Vanourney began dating in high school. After graduating, they moved to Richmond, Kentucky, where they lived together. In March 1998, Jennifer had a son, Drake. In June 2001, the couple separated and Jennifer moved to Utah, taking Drake with her. On October 10, 2001, Hopkins committed suicide by a self-inflicted gunshot wound to the head.
On the evening of December 19, 2001, Appellant and Homer Lawson, who had been a close friend of Hopkins, were drinking alcohol at Appellant's home. The two decided to go to the residence of Kenneth and Patricia Vanourney, Jennifer's parents, "to get the truth and to find Drake." They left their car at a store and walked several miles from the store to the Vanourney residence. At approximately 10:30 p.m., Homer Lawson knocked on the Vanourneys' door and asked Patricia Vanourney if they could use her telephone, claiming they had car trouble. When Mrs. Vanourney left to retrieve the telephone, Lawson followed her in, and Appellant followed. Appellant was wearing a toboggan cap, a surgical mask, and gloves. Both he and Lawson brandished handguns. For the next seven hours, they terrorized the Vanourneys, their twenty-year-old daughter, Rebecca, and their twelve-year-old twin daughters, Janice and Kenna. First, they handcuffed Mr. Vanourney and bound his legs with duct tape, then used duct tape to bind the legs of Mrs. Vanourney, Rebecca, and the twins. They threatened that "[i]f we find anybody else here we will kill every one of you." Mr. Vanourney testified that after binding the family members, Appellant removed his mask and said several times, "This is for old Eric," pointing to a tattoo of Hopkins's tombstone on his shaved head. Appellant told Mr. Vanourney that they wanted Drake brought back to Kentucky.
During the night, Lawson took ten to twenty dollars from Mr. Vanourney's billfold and additional money from the purses of Mrs. Vanourney and Rebecca. Appellant and Lawson also found and consumed alcohol belonging to the Vanourneys. Mr. Vanourney testified that Appellant put his gun to Mr. Vanourney's head and threatened to shoot him and, later, pushed the barrel of the gun into Mr. Vanourney's rectum, again threatening to shoot him. Appellant and Lawson also threatened to shoot the other family members. Mr. Vanourney testified that the two kept pointing their guns at them and saying, "Well, let's just kill them now." On cross-examination defense counsel attacked Mr. Vanourney's credibility by pointing out that Vanourney had not mentioned the "pistol in the rectum" incident in the tape-recorded statement he had given to the police and that there was no mention of the incident in any of the police reports obtained by way of discovery.
Mr. Vanourney testified that his family's ordeal ended between 5:30 and 6:00 a.m. the next morning when Mrs. Vanourney agreed to fly to Utah and bring Drake back to Kentucky. Before leaving the Vanourney residence, Appellant and Lawson put everything they had touched in a duffel bag that they took with them.
Following a jury trial, Hughes was convicted of burglary in the first degree, five counts of unlawful imprisonment in the first degree, and two counts of theft by unlawful taking under three hundred dollars, and sentenced to twenty years' imprisonment.
On May 17, 2005, Hughes filed a motion to vacate his conviction pursuant to RCr 11.42, citing ineffective assistance of counsel, and prosecutorial and judicial misconduct as his grounds for relief. After the denial of his motion, this appeal follows.
Hughes first alleges that the trial court erred by ruling that his claims of prosecutorial misconduct were not subject to post-conviction relief because they had or could have been addressed on direct appeal. We disagree.
It is well established precedent that appellate courts will not address an issue which was raised on direct appeal or which should have been raised on direct appeal. Brown v. Commonwealth, 788 S.W.2d 500, 501 (Ky. 1990). RCr 11.42 actions do not permit a defendant to relitigate issues decided on direct appeal or to raise issues that could have been presented on direct appeal. Baze v. Commonwealth, 23 S.W.3d 619, 626 (Ky. 2000).
After reviewing the record, Hughes' prosecutorial misconduct claims were essentially addressed on direct appeal. In his RCr 11.42 motion, he contends the prosecutor used his governmental immunity to cover up Detective Johnny Phelps' falsified police report. He further contends the prosecutor aided Phelps in giving perjured testimony regarding the report. He further contends the prosecutor made inflammatory statements to the jury and insinuated that he had committed other, uncharged crimes.
The Kentucky Supreme Court extensively addressed the issue regarding Detective Phelps' report in Hughes' direct appeal. After detailing the contents of the report, which was the subject of an objection because it was untimely provided to the defense, our Supreme Court wrote that "[e]xcept for the `pistol in the rectum' entry, the jury heard none of the entries in Phelps' report." As for the pistol reference, the court held that the admission of this report was harmless because it did not affect his substantial rights. Consequently, Hughes' claims regarding the report are meritless.
Hughes' claim regarding the prosecutor's inflammatory statements should have been raised on direct appeal. Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002) (). Notwithstanding this failure, Hughes' claim does not rise to the level of a constitutional deprivation because he only alleges that the prosecutor misquoted him in regard to a religious statement that Hughes shouted to the victims during the commission of the crime. Thus, we fail to see how this conduct deprived him of a fair trial. Marlowe v. Commonwealth, 709 S.W.2d 424, 431 (Ky. 1986).
Hughes' claim that the prosecutor invoked uncharged crimes against him, "specifically the sodomy allegation," related to Mr. Vanourney's "pistol in the rectum" testimony and to Phelps' reading of this reference of his report into the record. With respect to Vanourney's testimony, we observe that this was admissible testimony and does not constitute the impermissible introduction of uncharged crimes and prior bad acts.
With respect to Phelps' report, the Supreme Court reviewed the issue and decided that the introduction of this testimony did not prejudice Hughes' substantial rights. The Supreme Court's holding is supported by the overwhelming nature of the evidence in this case.
Hughes next alleges the trial court erred by ruling his claims of judicial misconduct were not subject to post-conviction relief because they had or could have been addressed on direct appeal. We disagree.
Some of Hughes' claims of judicial misconduct and error relate to the trial court's admission of Phelps' report. Having already addressed the constitutional allegation regarding the report, Hughes' report-related claims do not merit any further discussion. Hughes' three remaining judicial misconduct and error claims are likewise unconvincing.
Hughes contends the trial court made prejudicial remarks against him; the trial court failed to recess the trial while construction was occurring around the courthouse; and the trial court improperly allowed the prosecutor to make prejudicial statements against him.
First, we have already addressed the prosecutor's misquotation of Hughes' religious statement and need not address this matter further. Second, we fail to see how the construction around the courthouse resulted in a constitutional deprivation.
Finally, Hughes claims that the trial court's comment about his tattoo during final sentencing was prejudicial. However, the trial court simply stated that Hughes had a bad tattoo and that he was no saint. After being convicted for a horrible deed, if these words were uttered, they cannot even be liberally construed to be prejudicial. Accordingly, there was no constitutional deprivation.
Hughes next alleges that his defense counsel was constitutionally ineffective when he failed to present an insanity defense. Hughes contends the jury would have had ample evidence to find him not guilty by reason of insanity. Thus, he contends that this claim satisfies the requirements for post-conviction relief.
On appellate review of a claim of ineffective assistance of counsel, we are governed by the standard set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, the movant must demonstrate that (1) counsel made serious errors resulting in a performance outside the range of professionally competent assistance guaranteed by the Sixth Amendment and (2) the deficient performance prejudiced the defense so seriously that...
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