Jackson v. Commonwealth

• Decision Date: 10 April 2015
• Docket Number: NO. 2013-CA-001727-MR,2013-CA-001727-MR
• Parties: SHAWNTELE JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

SHAWNTELE JACKSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2013-CA-001727-MR

Commonwealth of Kentucky Court of Appeals

APRIL 10, 2015

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

ACTION NO. 06-CR-001673

OPINION

AFFIRMING

BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND VANMETER, JUDGES.

ACREE, CHIEF JUDGE:

Appellant Shawntele Jackson appeals the Jefferson Circuit Court's September 9, 2013 order denying his motion requesting relief pursuant to Kentucky Rules of Civil Procedure (RCr) 11.42 due to ineffective assistance of counsel. We affirm.

I. Facts and Procedure

In 2007, Jackson was convicted of murder and tampering with physical evidence, and was sentenced to fifty years' imprisonment. Jackson appealed as a matter of right to the Kentucky Supreme Court; the Court affirmed Jackson's convictions. Jackson v. Commonwealth, 2007-SC-000392-MR, 2010 WL 252244 (Ky. Jan. 21, 2010). In the interest of judicial economy, we recount here the Supreme Court's thorough recitation of the relevant facts:

In May of 2006, Richard Lee Washington [Victim] was fatally shot in the area of the Iroquois housing projects in Louisville. He was twenty-seven years old. [Jackson], twenty years old at the time, was living in one of the apartments with his girlfriend, Dominique Rudolph [Girlfriend]. At trial, it was the Commonwealth's theory that [Jackson] intentionally shot and killed [Victim] without excuse or justification. [Jackson's] defense was that [Victim] first assaulted him and that [Victim] was unintentionally shot in the course of defending and struggling over a handgun.

[In the wee morning hours on May 16, 2006, Victim drove Jackson and two other individuals - D'Angelo Scott and Dora Ditto - to a local convenience store. On the way there, all four individuals consumed various drugs. Before leaving the convenience store, Jackson and Victim] began a verbal argument which continued until the group returned to Iroquois. According to [Jackson, Victim] started the argument because he wanted more "dope." According to Ditto, [Jackson] accused [Victim] of stealing his cell phone.

Back at Iroquois, [Victim] pulled the car into a parking spot. According to [Jackson], who was still seated in the back seat, [Victim] and Ditto exited the car and walked toward the trunk. He stated that Ditto then removed a

black handgun from the trunk and handed it to [Victim]. At this point, [Jackson] claimed that he awoke Scott and told him to get up. [Jackson] then exited the car and stepped up onto the sidewalk before resuming his argument with [Victim]. [Victim] allegedly approached [Jackson] and [Jackson] told [Victim] that he saw Ditto hand him the gun. [Jackson] stated that [Victim] threatened to kill him before the two began to yell and shove one another, with [Victim] pushing [Jackson] first and [Jackson] then pushing back. At some point thereafter, [Jackson] saw [Victim] draw a handgun and [Jackson] immediately grabbed [Victim's] wrists and the two men struggled for possession of the handgun. During this struggle, [Jackson] explained that the gun was in [Victim's] right hand when it fired, striking [Victim] in the back of the head.

The testimony of the other witnesses differed markedly from [Jackson's] version of events. Ditto stated that [Jackson] was the first to exit the car and that he went toward a group of apartments before returning, saying that he had found his cell phone. He then asked [Victim] for another ride, but [Victim] refused. [Jackson] insisted that [Victim] would do so, and [Victim] again refused. According to Ditto, [Jackson] then hit [Victim] with a handgun that she assumed came from his pocket. [Victim] ordered Ditto to get on the sidewalk, after which [Jackson] told [Victim] that he "ought to kill him." With the handgun in his right hand, [Jackson] then hit [Victim] again with the gun and it fired, killing [Victim]. Similarly, Scott stated that he remembered the two fighting, though he recalled [Victim] yelling more than [Jackson]. He testified that [Jackson] backed up and charged at [Victim], swinging his right arm and hitting [Victim] in the face. Scott then heard a gun fire, though he did not recall seeing anyone in the group with a firearm that night.

[Jackson] stated that after the shooting he ran to [Girlfriend's] apartment because he was scared and high. Once there, he claimed that he passed out on her bed, not waking or leaving for approximately thirty-six hours. According to Ditto, [Jackson] immediately ran from thescene with a gun in his hand. Scott testified that he, too, went to [Girlfriend's] apartment and slept, but remembered [Jackson] arriving sometime later. On this point, the Commonwealth presented the testimony of . . . a former girlfriend of [Jackson]. [Former Girlfriend] stated that she was at her apartment when [Jackson] arrived within ten to fifteen minutes of the shooting looking scared. She claimed that he looked out of her screen door for approximately twenty minutes before leaving.

It was determined that the shooting occurred at around 12:42 a.m. and the cause of [Victim's] death was a gunshot wound to the lower back right part of his skull, with the bullet traveling toward the left eye and slightly downward without exiting. He died instantaneously. Though police never recovered a weapon, the bullet was consistent with a .45 caliber automatic handgun. The medical examiner noted that [Victim] did not have any defensive wounds but did have a contusion over his left eyebrow and lacerations over his left cheekbone.

Jackson, 2010 WL 252244, at *1-2 (footnotes omitted).

On January 31, 2011, Jackson moved, pro se, to vacate his conviction under RCr 11.42 alleging seven claims of ineffective assistance of counsel. He also requested an evidentiary hearing and appointment of counsel, which the circuit court granted. After counsel declined to supplement the motion, Jackson filed supplemental pro se RCr 11.42 motions raising three additional grounds of ineffective assistance.

An evidentiary hearing was held on July 19, 2013. Jackson's trial counsel testified that the agreed-upon defense theory at trial was self defense. She explained to Jackson that, for the defense to succeed, he would need to testify. Trial counsel clarified that it was always Jackson's choice to testify and she left thedecision to him. Jackson testified that trial counsel told him that the facts of his case met the requirements of self defense, that the self-defense theory would only work if he testified at trial, and that Senate Bill 38 would apply to him. Jackson claimed he did not wish to pursue a self-defense theory and did not want to testify at trial because he was under the influence of drugs when the events giving rise to his criminal charges occurred. Jackson also testified that trial counsel never told him that he had the right not to testify.

Trial counsel also testified that, at the time of trial, she was in possession of telephone numbers for Jackson's parents, but was unable to get in touch with them or other family members. Her understanding was that Jackson was estranged from his parents. Trial counsel clarified that she did not have any witnesses to present during the sentencing phase that had not already testified during the guilt phase. She felt that adequate evidence of mitigation had been presented during the guilt phase through Jackson's own testimony describing his background and childhood, and the testimony of Jackson's purported "godmother."

Jackson's sister, Rokia Cain, testified that their parents were holy, Christian people and that their father was a preacher. Cain described Jackson as more mature now than when he was younger, and testified she had seen a big change in him. Jackson likewise testified that he had no discussions with trial counsel about the sentencing phase or possible mitigation witnesses.

In a detailed order entered September 9, 2013, the circuit court denied Jackson's RCr 11.42 motion. Jackson timely appealed.

II. Standards Governing Our Review

Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 688, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).

Under Strickland, the movant must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).

To establish that counsel's "deficient performance prejudiced the defense," the movant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. Strickland defines reasonable probability as "a probability sufficient to undermine confidence in the outcome[,]" thereby depriving "the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 694, 104 S.Ct. at 2064, 2068.

As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S.Ct. at 2065. In the course of our review, we must make every effort "to eliminate the distorting effects of hindsight,...