Johnson v. Com., No. 2004-CA-001960-MR.

• Decision Date: 02 December 2005
• Docket Number: No. 2004-CA-001960-MR.
• Citation: 180 S.W.3d 494
• Parties: James Ray JOHNSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

180 S.W.3d 494

James Ray JOHNSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-CA-001960-MR.

Court of Appeals of Kentucky.

December 2, 2005.

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James Ray Johnson, Central City, KY, for appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Frankfort, KY, for appellee.

Before HENRY and VANMETER, Judges; MILLER, Senior Judge.¹

OPINION

VANMETER, Judge.

James Ray Johnson appeals from the Ohio Circuit Court's denial of his motion to vacate its judgment of conviction and sentence pursuant to RCr 11.42 and his motion for the trial judge's recusal. For the following reasons, we affirm.

Pursuant to a search warrant, the Ohio County Sheriff's Department searched Johnson's home. Based upon several items seized during the search, Johnson was indicted on August 10, 2000 of the following counts: possession of drug paraphernalia, possession of marijuana, trafficking in a controlled substance (methamphetamine), possession of a handgun by a convicted felon, and trafficking in marijuana within 1000 yards of a school. A trial commenced on June 26, 2001, and at the close of all of the proof, the court dismissed the count of trafficking in marijuana within 1000 yards of a school. Ultimately, the jury found Johnson not guilty of trafficking in methamphetamine but guilty of the lesser-included offense of possession of methamphetamine, as well as the remaining indicted counts. The court accepted the jury's recommended sentence and sentenced Johnson to serve five years for possession of marijuana, five years for possession of drug paraphernalia, and ten years for possession of methamphetamine, to run consecutively, for a total of twenty years.² Johnson appealed to the Kentucky Supreme Court, which affirmed after reviewing the following issues:

(1) failing to instruct the jury on the "beyond a reasonable doubt" standard with respect to the firearm enhancement issue; (2) failing to dismiss the enhancement issue because of insufficiency of the evidence to prove his possession of a firearm; (3) allowing the Commonwealth to play a videotape of the execution of the search warrant and his arrest; (4) failing to sufficiently cure the Commonwealth's reference to his prior guilty plea in another case; (5) failing to properly instruct the jury on the drug paraphernalia charge; and (6) allowing the Commonwealth to amend the indictment with respect to the charge of trafficking in methamphetamine.³

On August 18, 2004, Johnson filed pro se motions to vacate the court's judgment of conviction and sentence pursuant to RCr 11.42, and to recuse the trial judge, the Honorable Ronnie C. Dortch. The trial court overruled Johnson's RCr 11.42 motion, stating that his "allegations were or should have been raised in his direct appeal and that the allegations relating to an ineffective assistance of counsel are without substance." The trial court further overruled Johnson's motion for recusal. This appeal followed.

I. Denial of RCr 11.42 Relief

Johnson contends that the trial court erred when it denied his RCr 11.42 motion without holding an evidentiary hearing. We disagree. An evidentiary hearing is not required to consider issues refuted by the trial court record.⁴ Because the trial court denied Johnson's RCr 11.42 motion without a hearing, "our review at this time is confined to `whether the [RCr 11.42] motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.'"⁵ Accordingly, we must first determine whether the alleged errors entitle Johnson to relief under RCr 11.42.⁶

The purpose of RCr 11.42 is to provide defendants with a means to obtain relief for errors that "rise to the level of a constitutional deprivation of due process."⁷ It is not a "substitute for appeal nor does it permit a review of all of the alleged trial errors."⁸ Further, we will not disturb the trial court's decision unless it is clearly erroneous.⁹ Johnson alleges many instances of ineffective assistance of counsel in support of his claim that the trial court improperly denied his RCr 11.42 motion without an evidentiary hearing. In analyzing these alleged errors, we are compelled to follow "[t]he two-pronged test for ineffective assistance of counsel ... (1) whether counsel made errors so serious that he was not functioning as `counsel' guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense."¹⁰ In essence, "[c]ounsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won."¹¹

Johnson's first allegation is that his attorney, Jason Pfeil, did not properly investigate the matter. In support thereof, Johnson asserts that Pfeil did not interview several potential witnesses, including David Stewart, who Johnson contends brought into his home the gun that the police found.¹² The record, however, discloses that Johnson's daughter testified that the gun did not belong to Johnson, but that it instead was brought into the residence by Stewart, who took the gun out of his boot and stashed it under the chair where the police found it. Thus, the testimony that Johnson complains was omitted was, in fact, presented to the jury. The failure to call Stewart did not amount to ineffective assistance of counsel.¹³

Johnson also contends that Pfeil failed to investigate and challenge the search warrant, which he claims was insufficient because it was based upon an unreliable, anonymous informant's information. The standard for determining whether an informant's tip provides probable cause for the issuance of a search warrant is based upon the "totality of the circumstances" set forth in the police affidavit.¹⁴ In Lovett v. Commonwealth,¹⁵ the Kentucky Supreme Court noted that

[u]nder this test, the issuing magistrate need only "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." [462 U.S.] at 238, 103 S.Ct. at 2332. While an informant's veracity, reliability, and basis of knowledge are all "relevant considerations in the totality of the circumstances analysis," they are not conclusive and "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. at 2329....

Gates also explained that a magistrate's determination of probable cause is entitled to "great deference" and should be upheld so long as the magistrate, considering the totality of the circumstances, had a "substantial basis for concluding that a search would uncover evidence of wrongdoing." Id. at 236, 103 S.Ct. at 2331 (internal quotation omitted); Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); see also Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984) (reemphasizing Gates). It is within this rubric that we evaluate the decision of the trial court.

Typically, a bare and uncorroborated tip received from a confidential informant, without more, would be insufficient to establish probable cause for a search warrant. E.g., Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254 (2000). This is not such a case. As stated supra, the totality of the circumstances test requires a balancing of the relative indicia of reliability accompanying an informant's tip. Gates, supra, at 234, 103 S.Ct. at 2330. Thus, while a court may question an informant's motives, an "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [the informant's] tip to greater weight than might otherwise be the case." Id.; United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994).¹⁶

In Lovett, the court upheld a search warrant based on detailed, first-hand observations. Similarly, in this case the affidavit, signed by Deputy Sheriff Norman Payton, demonstrated that the basis of the informant's knowledge was his first-hand presence and observations at Johnson's house within a week prior to the issuance of the search warrant, including his observation of "a quantity of methamphetamine `crank' at the residence" and several sales made by Johnson at the residence. Deputy Payton's affidavit further stated that the confidential informant was known to Payton, that the informant had previously provided reliable information which resulted in drug-related arrests, and that the Ohio County Sheriff's department had received 3 to 4 months' worth of complaints from neighbors about people coming and going at the residence at all hours. This affidavit clearly showed that the informant had personal knowledge of facts constituting probable cause. The affidavit also sufficiently allowed the magistrate to judge the informant's credibility. Thus, counsel's decision not to challenge the search warrant was reasonable under the circumstances.¹⁷

Next, Johnson contends that he was denied the effective assistance of counsel because Pfeil did not file the appropriate pretrial motions, including a motion for Dortch's recusal. As the basis for this motion, Johnson asserts both that Dortch previously prosecuted him on unrelated charges, and that Dortch "chewed out" Johnson when he ended a live-in relationship with one of Dortch's neighbors and close friends.¹⁸ "A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Otherwise, it will be waived."¹⁹ Here, the record indicates that Dortch was the circuit judge who originally arraigned Johnson in August 2000. Pfeil did not enter his appearance in the case until March 2001. As Johnson clearly was aware that Dortch was assigned...