Filed: Mar. 02, 2012
Latest Update: Mar. 02, 2012
Summary: NOT TO BE PUBLISHED OPINION LAMBERT, JUDGE. James Fairrow, Jr., appeals from the Hopkins Circuit Court's order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. For the reasons stated herein, we affirm. Fairrow was convicted in Hopkins Circuit Court for two counts of trafficking in a controlled substance (cocaine) and being a persistent felony offender (PFO) in the first degree. The Kentucky Supreme Court aff
Summary: NOT TO BE PUBLISHED OPINION LAMBERT, JUDGE. James Fairrow, Jr., appeals from the Hopkins Circuit Court's order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. For the reasons stated herein, we affirm. Fairrow was convicted in Hopkins Circuit Court for two counts of trafficking in a controlled substance (cocaine) and being a persistent felony offender (PFO) in the first degree. The Kentucky Supreme Court affi..
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NOT TO BE PUBLISHED
OPINION
LAMBERT, JUDGE.
James Fairrow, Jr., appeals from the Hopkins Circuit Court's order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. For the reasons stated herein, we affirm.
Fairrow was convicted in Hopkins Circuit Court for two counts of trafficking in a controlled substance (cocaine) and being a persistent felony offender (PFO) in the first degree. The Kentucky Supreme Court affirmed Fairrow's conviction on direct appeal. See Fairrow v. Commonwealth, 175 S.W.3d 601 (Ky. 2005). The Court's opinion described the facts of the case as follows:
Appellant's convictions arose out of two sales of cocaine to Ms. Gay Royal, a confidential informant (C.I.) for the Madisonville Police Department. Royal told the police that she wanted to "get straight" and needed some money to leave town, and she offered to participate in a controlled drug buy. The police agreed.
On the morning of July 13, 2003, Detectives Lantrip and Bean of the Madisonville Police Department arrived at the home of Royal's mother, where the drug buy would occur. They performed a cursory search of Royal (asking her to empty her pockets and take off her shoes) to ensure she did not have drugs on her person that could be used to falsely incriminate someone, but did not search the house. Around 10:40 a.m., Royal telephoned a man whom she referred to as "J-Man," and whom both she and the police believed to be Appellant. Royal arranged a drug deal as the police recorded the conversation on audiotape. The detectives equipped Royal with an audiotape to secretly record the transaction. They also furnished her with thirty dollars in cash and recorded the serial numbers of the bills.
A short time later, a black Ford Crown Victoria drove up to the house with a male sitting in the front passenger seat. As the police videotaped the encounter, Royal approached the car on the passenger side, momentarily reached inside, then returned to the house. She gave cocaine to the police which she claimed she purchased from Appellant with the money. She was not searched after the completion of the transaction.
Soon thereafter, as recorded by a surveillance camera in the Grapevine Pantry, a convenience store near Royal's mother's residence, Appellant arrived at the store in a black Ford Crown Victoria and purchased a money order with cash. Appellant stipulated at trial that the signature on the money order was his. A bill was later found in the Grapevine Pantry's safe with a serial number that matched one on the bills provided to Royal for use in the earlier drug buy.
Around 1:00 p.m. the same day, Detectives Lantrip and Bean set up a second controlled drug buy using Royal as the C.I. They followed the same general procedures employed earlier, but this time failed to search Royal or the house before or after the transaction. They observed the same black Ford Crown Victoria come to the house. Royal again left the house with money given to her by the detectives and returned with cocaine. The drug transaction was recorded on videotape and audiotape. Around 9:00 p.m., Brittany Brown, a clerk at the Grapevine Pantry, identified Appellant from a photograph shown to her by police as the man to whom she had sold a money order earlier that day. At trial, Detective Lantrip identified the man in the Grapevine Pantry's surveillance video as Appellant and his car as the vehicle used in both drug transactions.
Id. at 604. On appeal to the Supreme Court, Fairrow raised issues of improper character evidence and insufficiency of the evidence. In particular, Fairrow claimed that testimony by a police officer bolstered the reliability of the confidential informant. The specific testimony at issue was as follows:
Prosecution: Has she, had she been reliable in the past? Lantrip: Yes she had.
Defense Attorney: Objection, your Honor. Calls for a conclusion as to the facts as to whether she is reliable or not.
Prosecution: Well I think he can.
Judge: The question was, was she relied on.
Prosecution: Reliable, as far as her previous work.
Judge: Well, develop that and I mean, I think it can be. Get into it.
Prosecution: In the past, approximately how many cases has she worked for you in the past?
Lantrip: I had thought about that. I can count over five, just immediately. I would have to go back. It's been over a few years.
Prosecution: Okay.
Lantrip: I could say numerous.
Prosecution: The cases that she worked, did they have positive results?
Lantrip: Every case I am aware of resulted in a conviction.
Id. at 605. The Supreme Court concluded that Detective Lantrip's testimony regarding the informant's reliability was improper and was, in fact, inadmissible. However, defense counsel's objection was on the ground that it "calls for a conclusion as to the facts as to whether she is reliable or not." However, the specific ground stated for appeal was that inadmissible character evidence had been admitted. The Supreme Court concluded that the error was not properly preserved, stating, "when a party states grounds for an objection at trial, that party cannot assert a different basis for the objection on appeal." Id. at 607 (citing Tamme v. Commonwealth, 973 S.W.2d 13, 33 (Ky. 1998)). The Court further stated that the evidence did not rise to the level of affecting Fairrow's "substantial rights" and did not constitute "manifest injustice so as to require reversal as palpable error." Id. See also Kentucky Rules of Evidence (KRE) 103(e).
Thereafter, Fairrow filed an RCr 11.42 motion alleging ineffective assistance of counsel on the issues of improper evidence and insufficiency of the evidence. The trial court denied the motion to vacate without a hearing. In its order, the trial court noted that the Supreme Court had ample evidence to support the conviction and the error of counsel relative to the improper evidence was harmless. An appeal followed, and this Court vacated and remanded the case for a hearing on whether the failure to object to improper character evidence constituted ineffective assistance of counsel because the Supreme Court's finding was not that the error was harmless but that there was no palpable error.
Upon remand, the trial court held another hearing, and at the conclusion thereof, denied the motion, finding the error harmless. Fairrow now appeals the trial court's denial of his RCr 11.42 motion.
As his first assignment of error on appeal, Fairrow argues that he received ineffective assistance of counsel when his defense counsel failed to adequately object to improper character evidence at trial. 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); accord Gall 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).
When an evidentiary hearing is held by the trial court, the appellate court must determine whether the lower court acted erroneously in finding that the defendant received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506 (Ky. App. 1983). We agree with the Commonwealth and the trial court that trial counsel clearly erred when he failed to properly object to the police officer's testimony about the confidential informant. Further, the Supreme Court noted this in its ruling on direct appeal. Therefore, on remand from this Court, the trial court's inquiry was then whether there was a reasonable probability that the results of the proceeding would have been different, absent trial counsel's error. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland, supra. The trial court concluded that based upon the proof against Fairrow as a whole, there was not a reasonable probability that the results of the proceeding would have been different, absent the testimony about the informant's reliability.
A review of the record does not indicate that the trial court abused its discretion in finding that the results of the proceedings would not have been different, absent trial counsel's error in failing to properly object to the improper character evidence. To be sure, the proof at trial was that the informant testified that Fairrow sold her cocaine, the transactions were recorded on videotape and audiotape, and the same vehicle that the police observed at the drug transaction was recorded on a surveillance video at a nearby convenience store where Fairrow purchased a money order with the marked bills from the drug transaction. Fairrow stipulated at trial that the money order was his, and the clerk at the convenience store identified Fairrow as the person who purchased the money order. There was ample evidence to convict Fairrow, and there is not a reasonable probability that absent trial counsel's error or absent the officer's testimony about the informant, the jury would have reached a different result.
Therefore, we affirm the December 21, 2010, order of the Hopkins Circuit Court.
ALL CONCUR.
