McGaha v. Commonwealth

• Decision Date: 28 August 2015
• Docket Number: NO. 2014–CA–000834–MR,2014–CA–000834–MR
• Citation: 469 S.W.3d 841
• Parties: Jeffrey D. McGaha, Appellant v. Commonwealth of Kentucky, Appellees
• Court: Kentucky Court of Appeals

469 S.W.3d 841

Jeffrey D. McGaha, Appellant

v.Commonwealth of Kentucky, Appellees

NO. 2014–CA–000834–MR

Court of Appeals of Kentucky.

RENDERED: AUGUST 28, 2015; 10:00 A.M.

BRIEFS FOR APPELLANT: Jeffrey D. McGaha, Pro Se, LaGrange, Kentucky

BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, Kentucky

BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES.

OPINION

LAMBERT, J., JUDGE:

Jeffrey McGaha, proceeding pro se, has appealed from the March 7, 2014, order of the Adair Circuit Court denying his post-conviction motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. Because we hold that the record refutes the issues of fact McGaha raises and that he is not entitled to relief, we affirm the order on appeal.

Our Supreme Court summarized the factual history of this case in its opinion on McGaha's direct appeal, which we shall adopt:

[McGaha] and the victim, Mike Cowan, were neighbors in a rural part of Adair County. The evidence presented at trial by the Commonwealth indicated that the relationship between [McGaha] and Cowan was marred by a series of disputes. The most recent difficulty was over a light on [McGaha's] storage building that shone onto Cowan's property and annoyed him. Cowan retaliated by shining spotlights at [McGaha's] residence. On the evening before the fatal incident, [McGaha] complained to the police about the spotlights. When police officers arrived at the scene in response to that complaint, Cowan and his wife became belligerent. They were arrested and taken to jail.

The following afternoon, after his release from jail, Cowan visited a neighbor's residence on his ATV. As Cowan returned home, [McGaha], driving in his car, saw him and steered directly into his ATV without braking. The impact knocked Cowan off the ATV. As a result of the blow from [McGaha's] vehicle, Cowan suffered severe blunt force trauma which alone would have been fatal. After the collision, however, while Cowan was lying on the ground, [McGaha] approached him and delivered a second fatal injury by shooting him in the head with a shotgun.

[McGaha] was indicted for murder. At trial, [McGaha] admitted that he killed Cowan, but claimed that he was acting in self-defense. In support of that claim, [McGaha] presented evidence of Cowan's threats, harassment, and intimidation directed toward [McGaha] and members of his household. [McGaha] also alleged that shortly before the fatal incident, Cowan had pointed a gun at [McGaha] and gestured, as if he was pretending to shoot at [McGaha]. [McGaha] saw Cowan place the gun on his ATV, and ride it over to the neighbor's residence. [McGaha] testified that he followed Cowan to speak with him, and that he took his shotgun for protection. [McGaha] said that when he encountered Cowan on his ATV, Cowan aimed his gun at [McGaha]. Fearing that he would be shot, [McGaha] drove his car into Cowan's ATV. After the collision, [McGaha] claims he got out of his car with his shotgun, and demanded that Cowan show his hands. According to [McGaha], Cowan then said, “I'm still going to fucking kill you.” Believing that Cowan was reaching for his gun, [McGaha] shot him in the head.

The jury, rejecting [McGaha's] self-defense claim, convicted him of murder and recommended a sentence of twenty years' imprisonment. The trial court entered final judgment consistent with the jury's verdict and sentencing recommendation. [McGaha's] post-judgment motions for judgment notwithstanding the verdict and for a new trial were denied.

McGaha v. Commonwealth, 414 S.W.3d 1, 3–4 (Ky.2013), as modified (Sept. 26, 2013).

On direct appeal, McGaha raised four issues, including the failure of a juror to disclose a social media relationship with the victim's wife; the jury's consideration of penalty phase issues during the guilt phase; whether excluded evidence would have supported his self-defense claim; and whether a witness should have been permitted to testify that the victim had raised a gun at him twenty-five years previously. The Supreme Court rejected each of McGaha's arguments in its opinion affirming.

In addressing the exclusion of evidence argument related to the victim's racist speech, the Court stated as follows:

As previously noted, the evening before Cowan's death, Trooper Wolking responded to [McGaha's] 911 complaints about harassment by Cowan, involving the spotlights focused upon [McGaha's] property. [McGaha] proffered Wolking's testimony, as avowal evidence, that Cowan referred to [McGaha's] fiancé and her child as the “nigger baby and its nigger mother.” Wolking also said in his avowal testimony that Cowan had stated repeatedly that the “nigger baby and nigger mother needed to live down the road with the other niggers and Mexicans.”

[McGaha] contends that this evidence was relevant to show Cowan's propensity for violence. While the statements made by Cowan were outrageously racist, it does not follow that this character flaw translates into a propensity for violent conduct. Thus, this particular evidence was of little probative value. On the other hand, its admission into evidence at trial would have substantially diminished the character of the victim in a way that would have been highly prejudicial to the Commonwealth's case. Cowan's racist comments to the police officer would unduly influence the jury simply because of the victim's verbal expressions of a racist attitude. It follows that the trial court did not abuse its discretion by excluding the evidence.

Id., at 9–10. Related to testimony addressing the family's fear of the victim, the Supreme Court stated:

[McGaha] contends that the trial court improperly excluded the testimony of his fiancé and her child regarding their personal fear of Cowan because he had harassed and terrorized them. However, both witnesses testified, to a degree, regarding their fear of Cowan, and [McGaha] fails to cite us to any avowal testimony, or other means of making known the substance of the testimony that was excluded by the trial court. Thus, because of [McGaha's] failure to develop this argument sufficiently for us to undertake a meaningful review of the issue, he is not entitled to relief upon the grounds that the trial court excluded testimony of his household regarding their fear of Cowan.

Id. at 10 (footnote and citations omitted).

On August 1, 2013, McGaha filed a pro se motion to vacate, set aside, or correct sentence pursuant to RCr 11.42, citing ineffective assistance of counsel. In addition, he moved for appointment of counsel and for an evidentiary hearing. McGaha asserted that his trial counsel failed to question the jury about racial prejudice and racially prejudicial remarks the victim had made; failed to hire expert witnesses regarding gunshot residue and accident reconstruction; failed to raise the defense of extreme emotional disturbance (EED); failed to introduce relevant mitigating evidence during the penalty phase; failed to file a motion in limine to prevent the trial court from excluding racial issues; and failed to object to the exclusion of evidence of hate speech by the victim. McGaha also alleged that his appellate counsel was ineffective for failing to file a reply brief or to adequately and sufficiently brief and cite to any testimony or avowal testimony to develop his argument.

On March 7, 2014, the trial court entered an order denying McGaha's motion for post-conviction relief without an evidentiary hearing. This appeal now follows.

The applicable standard of review in RCr 11.42 post-conviction actions is well-settled in the Commonwealth. Generally, in order to establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; accordGall v. Commonwealth, 702 S.W.2d 37 (Ky.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky.1969) ; McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky.1969).

If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky.App.1983). If an evidentiary hearing is not held, as in this case, our review is limited to “whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967). See also Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky.App.1986). More specifically, the Supreme Court set forth the applicable standard as follows:

2. After the answer is filed, the trial judge shall determine whether the allegations in the motion can be resolved on the face of the record, in which event an evidentiary hearing is not required. A hearing is required if there is a material issue of fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record. Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743–44 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994) ; Lewis v. Commonwealth, Ky., 411 S.W.2d 321, 322 (1967). The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them. Drake v. United States, 439 F.2d 1319, 1320 (6th Cir.1971).

Fraser v. Commonwealth, 59 S.W.3d 448, 452–53 ...