Woodard v. Commonwealth, No. 2006-CA-000575-MR (Ky. App. 10/19/2007)
| Decision Date | 19 October 2007 |
| Docket Number | No. 2006-CA-000575-MR.,2006-CA-000575-MR. |
| Parties | Timothy Joe WOODARD, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Timothy Joe Woodard, Pro se, Sandy Hook, Kentucky, Brief for Appellant.
Gregory Stumbo, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: DIXON and KELLER, Judges; GRAVES,1 Senior Judge.
Appellant, Timothy Joe Woodard, appeals from an order of the Warren Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42. Finding no error, we affirm.
In early 2000, Appellant was indicted by a Warren County Grand Jury for first-degree criminal conspiracy to traffic in a controlled substance and for being a second-degree persistent offender.2 The charges followed a drug buy wherein Appellant, along with another individual, Tony Clark, met with and sold two undercover police officers crack cocaine. Following a trial in March 2001, Appellant was convicted of all charges and sentenced to fifteen years' imprisonment. His conviction was affirmed by this Court in an unpublished opinion rendered in 2003. Woodard v. Commonwealth, 2001-CA-000900-MR (March 21, 2003). On December 18, 2003, Appellant filed a pro se motion pursuant to RCr 11.42, raising various claims of ineffective assistance of counsel. The trial court thereafter appointed counsel and held an evidentiary hearing. On February 23, 2006, the trial court denied Appellant's motion. This appeal ensued.
The standard of review for claims raised in a motion filed pursuant to RCr 11.42 alleging ineffective assistance of counsel at trial is limited to issues that were not and could not be raised on direct appeal. The burden of proof on an RCr 11.42 motion lies with the accused who must demonstrate that he was deprived of some substantial right that would justify the extraordinary relief afforded by the post-conviction proceeding. Commonwealth v. Campbell, 415 S.W.2d 614 (Ky. 1967). To prove ineffective assistance of counsel, the accused must show that (1) counsel's performance was deficient, in that counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 2064, 80 L.Ed.2d 674 (1984). A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. As the Kentucky Supreme Court noted, "The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of victory." Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001), cert. denied, 534 U.S. 998 (2001).
Appellant's first two allegations concern trial counsel's alleged failure to interview and subpoena witnesses, as well as conduct an independent examination of the facts. We will discuss each of the potential witnesses in turn.
Appellant claims that trial counsel failed to interview Tony Clark, the other individual charged in the conspiracy. However, counsel testified during the evidentiary hearing that, in fact, he could not locate Clark, who apparently had absconded from drug court supervision. Appellant offered no evidence to counter the reasonableness of counsel's efforts. See Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 1998), cert. denied 540 U.S. 838 (2003). Further, Appellant's argument that had counsel investigated Tony Clark's criminal background, he could have adequately impeached him on the stand was not presented to the trial court and will not be considered herein. As this Court held in Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App. 1998), "An appellate court will not consider a theory unless it has been raised before the trial court and that court has had the opportunity to consider the merits of the theory."
Appellant next points out that while trial counsel claimed he interviewed Caprice Smiley, she testified during the evidentiary hearing that she had never met counsel and had not discussed Appellant's case. However, the trial court observed,
Caprice Smiley testified that she never talked to trial counsel about the case, but the Court's observation of her testimony leads it to believe that she is not credible in this regard. . . .
The Court FINDS that he did, in fact, interview Caprice Smiley and that her testimony would have hurt the defendant's case, so he did not call her, with the defendant's consent. The Court will not second guess trial counsel's judgment regarding witness selection. Holland v. Commonwealth, Ky. App., 679 S.W.2d 832, 833-834 (1984). Furthermore, two undercover officers presented credible, compelling testimony that the defendant approached them to set up a drug deal, which he subsequently did for them. This is overwhelming evidence of his guilt, and there is no reasonable probability that the result would have been different if Caprice Smiley had testified.
Again, other than claiming that "Ms. Smiley spoke nothing but the truth," and that the trial court's finding was "totally unfounded," Appellant offers no evidence to support his argument.
Appellant also argues that trial counsel's failure to call Cedric Donan as a witness amounted to ineffective assistance and "robbed the jury of the opportunity to hear crucial testimony from a key witness . . . ." However, trial counsel testified that he attempted to speak with Donan, who would not cooperate with the defense. Further, since Donan did not testify at the evidentiary hearing, we are unable to discern what "crucial testimony" he would have offered at trial. We are not persuaded by Appellant's claim that counsel should have moved the court to have Donan arrested and brought to the trial. Forcing an uncooperative witness to testify without counsel first having interviewed him would certainly fall outside the bounds of competent representation.
"A reasonable investigation is not the investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources but also with the inestimable benefit of hindsight, would conduct." Sanders, supra, at 386. Depending on the circumstances, there are many ways a case may be tried. "The test for effective assistance of counsel is not what the best attorney would have done, but whether a reasonable attorney would have acted, under the circumstances, as defense counsel did at trial." Baze v. Commonwealth, 23 S.W.3d 619, 625 (Ky. 2000), cert. denied, 531 U.S. 1157 (2001). (Citing Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc)). Appellant offers this Court nothing to demonstrate that trial counsel did not act reasonably by failing to secure the witnesses about whose absence he now complains. Nor is there any evidence as to how these witnesses would have helped. Moreover, we must agree with the trial court that given the overwhelming evidence of Appellant's guilt, even if some of counsel's decisions concerning witness selection were unreasonable, the result would not have been any different. Thus, Appellant cannot satisfy the second-prong set forth in Strickland, supra.
Appellant next argues that trial counsel was ineffective for failing to object to the destruction of evidence and request a missing evidence instruction relating to an alleged audio recording of the drug buy. The tape was inadvertently destroyed by police prior to Appellant's case going to the grand jury. The trial court noted in its order At the evidentiary hearing, trial counsel admitted that he did not request a missing evidence instruction because, under defendant's theory, there was no missing evidence: the defendant was never near the transaction. Furthermore, the defendant would not have been entitled to a missing evidence instruction because he did not prove that the destruction was intentional and that the exculpatory nature of the evidence was apparent at the time it was destroyed. Estep v. Commonwealth, 64 S.W.3d 805 (Ky. 2002).
Although Appellant asserts he has "overwhelming evidence" to support his claim that the destruction of the tape was intentional, he has failed to offer such in this court or the court below. Furthermore, the destruction of evidence and the denial of instructions are issues which are properly addressed on direct appeal. See Shegog v. Commonwealth, 142 S.W.3d 101, 108 (Ky. 2004). Notwithstanding, as the trial court observed, "[t]rial counsel used the missing tape to his advantage in every way he could, attempting to attack the credibility of the...
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