Pollini v. Commonwealth Of Ky.

• Decision Date: 16 July 2010
• Docket Number: NO. 2009-CA-000964-MR,ACTION NO. 02-CR-001146,2009-CA-000964-MR
• Parties: JASPER POLLINI,APPELLANT v. COMMONWEALTH OF KENTUCKY ,APPELLEE
• Court: Kentucky Court of Appeals

JASPER POLLINI, APPELLANT

v.COMMONWEALTH OF KENTUCKY , APPELLEE

NO. 2009-CA-000964-MR

ACTION NO. 02-CR-001146

Court Of Appeals Of Kentucky

JULY 16, 2010

BRIEF FOR APPELLANT: R. Kenyon Meyer Louisville, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General

Jeffrey A. Cross, Assistant Attorney General Frankfort, Kentucky

OPINION

AFFIRMING

BEFORE: COMBS, KELLER, AND LAMBERT, JUDGES.

LAMBERT, JUDGE:

Jasper Pollini appeals from the Jefferson Circuit Court's denial of his post-conviction motion for a new trial under Kentucky Rule of Criminal Procedure (RCr) 11.42. Pollini claims that his trial counsel rendered ineffective assistance of counsel; or at the very least, he was entitled to a hearing in which to more fully present his claims. Upon careful review, we affirm.

The pertinent facts of this case, as set forth by the Kentucky Supreme Court, are as follows:

In the early morning hours of May 7, 2002, Appellant, who was seventeen years old at the time these crimes were committed, broke into Brian Murphy's garage and stole some tools and a generator. Apparently unable to transport the generator, Appellant returned to his nearby home and sought the assistance of Jason Edwards, the boyfriend of Appellant's sister, Crystal Plank. Edwards drove Appellant back to the area and the pair loaded the generator from Murphy's garage into the trunk of Edward's car. Appellant told Edwards to stay in the car and then proceeded to use a screwdriver to break into the nearby garage of Dan Ziegler.

Ziegler awoke shortly after 5:00 a.m. to the sound of his alarm system beeping. While investigating the source for the alarm, Ziegler went into his garage and saw Appellant. Ziegler testified that he perceived Appellant to have a weapon in his hand, but was not sure what it was. Ziegler told Appellant to stop what he was doing or he would "blow his head off." Appellant fled from the scene and was chased into some nearby woods by Ziegler. Ziegler testified that he soon heard a car drive away after losing sight of Appellant in the woods. After returning to his home, Ziegler called 911 and his neighbor, Byron Pruitt, to report the incident and to advise Pruitt to check his property. After talking with Ziegler, Pruitt armed himself with an automatic pistol and a flashlight and began investigating the area.

Meanwhile, Appellant and Edwards drove back to Appellant's house. Edwards removed the generator from his car, covered the car, and then went into the house. Shortly after retreating into the house, Appellant asked Edwards to take him back to Ziegler's residence to retrieve a toolbox he had left at the scene. When Edwards refused to return to Ziegler's residence, Appellant persuaded his sister, Crystal Plank, to drive him back to the scene to retrieve his toolbox.

Between sixteen and thirty minutes after first being confronted by Zeigler, Appellant and Plank returned to the scene of the burglaries. Appellant stated that he armed himself with a semi-automatic pistol immediately before his return to the scene of the crimes because he had been threatened by Ziegler. Upon their return to the scene, Appellant instructed Plank to turn off the lights on the car because he was about to get out to retrieve the toolbox. As Plank stopped the car, she observed a flashlight coming toward the car. Appellant hurriedly instructed Plank to back up; however, Plank had difficulty doing so due to poor visibility. Appellant then fired his gun out the window of Plank's vehicle and the bullet pierced Pruitt in the throat. Pruitt died shortly thereafter from his injury. Immediately after the shooting, Appellant and Plank fled the scene, but were apprehended, along with Edwards, later that day.

Pollini v. Commonwealth, 172 S.W.3d 418, 421-22 (Ky. 2005).

Pollini and his sister, Plank, were tried together. Pollini was ultimately convicted of capital murder (complicity), first-degree burglary (complicity), second-degree burglary (complicity), and receiving stolen property over $300 (complicity). Id. at 421. On September 22, 2005, the Kentucky Supreme Court vacated Pollini's capital murder conviction and remanded his case for resentencing on noncapital murder. Pollini was resentenced, and that sentence was affirmed on direct appeal. Pollini v. Commonwealth, 2008 WL 203035 (Ky. 2008) (2006-SC-000835-MR).

Thereafter, Pollini filed this RCr 11.42 motion alleging ineffective assistance of counsel. Upon review, the trial court denied Pollini's motion without a hearing. An appeal to this Court now follows.

On appeal to this Court, Pollini alleges several errors which alone, or in accumulation, entitle him to relief. The standard of review for claims of ineffective assistance of counsel is well-known. "In order to show ineffective assistance, a defendant must demonstrate that his trial attorney's performance was both deficient and prejudicial." Commonwealth v. York, 215 S.W.3d 44, 47 (Ky. 2007).

"A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." Id. (quoting Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001)). When assessing an attorney's performance, "a strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

Even when trial counsel's performance falls below the minimum standards of conduct, relief is not available unless such conduct resulted in actual prejudice to the defendant. Actual prejudice is defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bowling v. Commonwealth, 80 S.W.3d 405, 412 (Ky. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984)). "The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).

In his first assignment of error, Pollini claims his counsel was ineffective for failing to timely notice an allegedly erroneous jury instruction. Regarding Pollini's right to self-defense, the jury was instructed as follows:

Even though the defendant might otherwise be guilty of [other offenses], if at the time he killed Byron Pruitt he believed that Mr. Pruitt was about to use unlawful physical force upon him, he was privileged to use such physical force against Mr. Pruitt as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force only if he believed it to be necessary in order to protect himself from death or serious physical injury at the hands of Mr. Pruitt.

(Emphasis added).

Pollini's trial counsel submitted instructions without the word "unlawful" inserted into it; however, these instructions were not used. Trial counsel did not realize the discrepancy until after the instructions had already been submitted to the jury.

On direct review, Pollini attempted to argue that use of the word "unlawful" in the jury instructions was reversible error. Pollini cited to the language of the specimen self-protection instruction recommended in 1 William S. Cooper, Kentucky Instructions to Juries (Criminal) § 11.07 (4th ed.1993), and Commonwealth v. Hager, 41 S.W.3d 828, 846 (Ky. 2001), which omits the statutory term. According to the concurring opinion in Pollini, the word wasomitted from the specimen instruction because it was determined to be generally superfluous and its inclusion could result in unnecessary confusion or speculation by the jury. 172 S.W.3d at 433 (Cooper, J., concurring). The Kentucky Supreme Court declined to address the issue for two reasons: (1) trial counsel failed to object to the instruction in a timely manner; and (2) the alleged error was not palpable. Pollini, 172 S.W.3d at 428.

Pollini contends that the above circumstances unequivocally entitle him to a new trial. We must disagree. As to whether error occurred in the submission of these self-defense instructions to the jury, we find it significant that use of the word "unlawful" is in compliance with Kentucky Revised Statutes (KRS) 503.050(1). As reaffirmed in Hager, 41 S.W.3d at 835, "all substantive law related to criminal responsibility, including general principles of liability, accountability, justification and responsibility[,] is now statutory, and instructions should be stated within the context of the statutory framework." Id. (quoting McGuire v. Commonwealth, 885 S.W.2d 931, 936 (Ky. 1994)). We are unaware of any court in this jurisdiction that has reversed a conviction for improperly including statutory terminology within the instructions submitted to a jury.

And even if inclusion of the word in the jury instructions was error, Pollini has failed to establish that this alleged error resulted in "defeat [being] snatched from the hands of probable victory." Haight, 41 S.W.3d at 441. Pollini's only claim of prejudice is that "[t]he court's instruction in [his] case impermissibly required [him] to show that Pruitt's use of physical force was unlawful in order forthe self-preservation defense to be available." Yet, nothing in Cooper's Jury Instruction treatise purports to set aside a defendant's burden to show that physical force by the victim must be unlawful in order to prevail on grounds of self-defense.

The treatise simply explains that "situations when a defendant would believe the victim was about to lawfully use physical force against him are rare."¹ Pollini, 172 S.W.3d at 433 (citing John S. Palmore & Robert G. Lawson, 1 Kentucky Instructions to Juries (Criminal) § 10.01 cmt., at 341 (3rd ed.1975)) (Cooper, J., concurring). Thus, in most cases, use of this word in the jury instructions is simply extraneous; and where use of the word is necessary, the treatise...