Smith v. Commonwealth

• Docket Number: 2022-CA-1210-MR,2022-CA-1483-MR
• Decision Date: 15 March 2024
• Parties: MARK E. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

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MARK E. SMITHAPPELLANT v. COMMONWEALTH OF KENTUCKYAPPELLEE

Nos. 2022-CA-1210-MR, 2022-CA-1483-MR

Court of Appeals of Kentucky

March 15, 2024

NOT TO BE PUBLISHED

APPEALS FROM MARSHALL CIRCUIT COURT HONORABLE DAVID C BUCKINGHAM, SPECIAL JUDGE ACTIONNO. 17-CR-00067

BRIEF FOR APPELLANT:

Mark E. Smith, pro se LaGrange, Kentucky

BRIEF FOR APPELLEE:

Daniel CameronAttorney General of Kentucky

Kristin L. Conder Assistant Attorney General Frankfort Kentucky

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

OPINION

LAMBERT, JUDGE

Mark E. Smith, pro se, appeals from two orders of the Marshall Circuit Court denying his post-conviction motions brought under Kentucky Rules of Criminal Procedure(RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02.^[1]We affirm.

FACTUAL AND PROCEDURAL HISTORY

On March 30, 2017, Smith was indicted on charges of first-degree arson and first-degree assault.The charges relate to an incident that occurred on January 28, 2017, inside the home of the victim, Edward Harris, during which Smith attacked Harris with a shovel and set fire to a living room reclining chair.A jury trial was conducted in August 2019, resulting in Smith's conviction on both charges and the imposition of a 25-year sentence, which the Supreme Court of Kentucky affirmed on direct appeal in Smith v. Commonwealth, No. 2019-SC-0725-MR, 2021 WL 4487297(Ky.Sep. 30, 2021).

Smith filed an RCr 11.42 motion in June 2022, alleging ineffective assistance of counsel based in part on a failure to pursue an alternative perpetrator defense.Smith asserted the crimes for which he was convicted were committed by acquaintances known to him and Harris; namely, Mike Enoch and his son, Bryan Enoch.The trial court denied the motion without an evidentiary hearing.On October 18, 2022, Smith subsequently filed a CR 60.02 motion to vacate his sentence and conviction based on newly discovered evidence, which was also denied by the trial court without an evidentiary hearing.This appeal followed.^[2]Additional facts will be discussed as necessary.

STANDARD OF REVIEW

"We review a trial court's decision whether to grant relief pursuant to CR 60.02 or RCr 11.42 for an abuse of discretion."Stanford v. Commonwealth, 643 S.W.3d 96, 99(Ky. App.2021)(citations omitted)."The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."Id.(internal quotation marks and citations omitted).Two factors must be satisfied in order to establish a claim of ineffective assistance of counsel: 1) "counsel's performance was deficient"; and 2) "the deficient performance prejudiced the defense[.]"SeeStrickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674(1984).

Counsel's legal representation should be demonstrated to have fallen "below an objective standard of reasonableness" when "considering all the circumstances."Id. at 687-88, 104 S.Ct. at 2064-65."It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."Id. at 693, 104 S.Ct. at 2067."The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694, 104 S.Ct. at 2068.

"On appellate review, great deference is afforded to counsel's performance.There is a strong presumption that counsel acted reasonably and effectively."Ford v. Commonwealth, 628 S.W.3d 147, 156(Ky.2021)."A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

"[T]o be entitled to relief under RCr 11.42, the movant must state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds."Roach v. Commonwealth, 384 S.W.3d 131, 140(Ky.2012)(internal quotation marks and citation omitted)."[W]ithout it the trial court cannot tell whether an evidentiary hearing is necessary."Id."Conclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so warrant a summary dismissal of the motion."Id.(internal quotation marks and citation omitted)."RCr 11.42 motions are not intended to conduct further discovery or fishing expeditions."Prescott v. Commonwealth, 572 S.W.3d 913, 926(Ky. App.2019)."Thus the stated purpose of the rule is to provide a forum for known grievances, not to provide an opportunity to research for grievances."Gilliam v. Commonwealth, 652 S.W.2d 856, 858(Ky.1983)(emphasis added).

ANALYSIS

Smith contends that the trial court erroneously denied an evidentiary hearing on the merits of five arguments asserted under RCr 11.42 that trial counsel ineffectively: 1) failed to present a defense; 2) failed to request funds to hire an expert witness on arson; 3) failed to seek funds to retain a forensic psychiatrist to evaluate Smith's mental health 4) failed to secure funds to obtain an expert witness on false confessions; and 5) failed to seek a continuance to investigate a last minute disclosure from the Commonwealth that Harris was involved in drug dealing from his home.Additionally, Smith separately appealed the trial court's denial of his CR 60.02 motion, in which he sought a new trial based on newly discovered evidence.Due to the related nature of the claims concerning expert witness funding, we address those jointly.

I.Failure to Present a Defense

Smith argues that trial counsel failed to conduct any investigation of other pertinent witnesses, apart from those ultimately called to testify by the Commonwealth.Specifically, Smith references his RCr 11.42 memorandum of law, in which he asserted there were two exculpatory witnesses (his sister, Jennifer Smith, and his housemate, Emily Shekell), whom trial counsel failed to interview.Smith also asserts trial counsel failed to investigate his medical history, which would have established he was suffering from post-traumatic stress disorder (PTSD).The trial court ruled these claims were not pled with the requisite specificity required under RCr 11.42(2).^[3]We agree.

Smith's memorandum of law made a general passing reference to these witnesses and cited to attached exhibits without offering any contextualization as to their significance.SeeRoach, 384 S.W.3d at 140("If general allegations . . . were sufficient, RCr 11.42 would easily be turned into a discovery device, a result which we have several times noted is contrary to the rule's purpose.").In regard to Jennifer, Smith pled that she had "suspicions and fears" regarding Mike and Bryan Enoch possibly "committing the offenses."A footnote in the pleadings cited to an attached exhibit consisting of an e-mail sent by Jennifer to Marshall County Sheriff Department's Detective Matt Hilbrecht.The e-mail alluded to a potential motive by the Enochs, but nothing demonstrated this witness had direct knowledge establishing these suspected alternative suspects were the actual perpetrators or that she could provide likely leads to admissible evidence.

To present a trial defense of an alternative perpetrator, a defendant must present "evidence of some logical, qualifying information to enhance the proffered evidence beyond speculative, farfetched theories that may potentially confuse the issues or mislead the jury."Geary v. Commonwealth, 490 S.W.3d 354, 358-59(Ky.2016)(internal quotation marks and citation omitted).At best, this exhibit only demonstrates a speculative theory from this witness.SeeGray v. Commonwealth, 480 S.W.3d 253, 268(Ky.2016)("[Alternative perpetrator]-evidence theories must be supported by more than speculation or exculpatory name-dropping when assessing the probativeness of evidence[.]");Bowling v. Commonwealth, 981 S.W.2d 545, 550(Ky.1998).In the absence of other pleadings, it is unclear whether Jennifer's testimony would have even been admissible at trial, and to the extent trial counsel's interviewing of this witness would have led to admissible exculpatory evidence, we will not speculate.

As it concerns Shekell, Smith argued to the trial court that "her testimony would have brought new light onto [Smith's] demeanor and would have directly challenged part of the Commonwealth's narrative of events."Smith included an attached exhibit consisting of a summary transcript of a defense investigator's interview with Shekell.When weighed against Smith's taped confession, we do not believe any of Shekell's statements regarding Smith's demeanor, which she alleged to have observed on the day of the crime, would have resulted in a different outcome.SeeTigue v. Commonwealth, 600 S.W.3d 140, 163(Ky.2018)("A confession is like no other evidence.Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him[.]")(internal quotation marks and citation omitted).

Lastly, Smith asserts his medical history would have established he was diagnosed with PTSD.At trial, the Commonwealth called Smith's diagnosis into doubt by impeaching statements Smith made to law enforcement investigators indicating he developed PTSD during his time in the military:

Smith blamed his outburst on uncontrolled Post Traumatic Stress Disorder (PTSD) resulting from his deployment as an Army special forces soldier and the horrors he saw overseas.Following the interview, Hilbrecht received a

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