NOT TO BE PUBLISHED
OPINION
STUMBO, JUDGE.
Michael Flick appeals the denial of his RCr1 11.42 motion. We find no error and affirm.
This case has previously been appealed; therefore, we will utilize that recitation of facts.
In 2003, Randall Lambirth contacted Appellant about purchasing Appellant's optometry practice in Lexington. Appellant decided that he would sell his practice, and the two men reached an agreement. The arrangement contained a three (3) year employment contract for Appellant, which, upon its end, would complete the sale. The employment contract called for Appellant to work four (4) days a week, Wednesday through Saturday, for Lambirth.
In early 2004, the relationship between Lambirth and Appellant began to deteriorate. Appellant did not agree with how Lambirth was running the practice and regularly argued with him. Christina Wittich, Lambirth's girlfriend and Appellant's co-worker, confronted Appellant in the parking lot one afternoon, as he tried to leave for lunch with a lobby full of patients. By the summer of 2004, Appellant said he was "burned out" with work.
During this time, Appellant asked Lambirth if he could have Saturdays off because his father was ill; Lambirth acquiesced to his request. However, shortly after letting Appellant take off Saturdays, Lambirth discovered that Appellant was actually working at an optical center in a local Wal-Mart on those days. Lambirth confronted Appellant and told him he had to come back to work for him on Saturdays or he would be fired. Appellant refused to come back. On November 17, 2004, Lambirth fired Appellant. By the end of March 2005, Appellant had filed a wrongful termination and breach of contract lawsuit against Lambirth. The two men would not see each other again until May 20, 2005.
On May 20, 2005, Appellant drove to Lambirth's house. Before exiting his vehicle, he grabbed a gun, which he had stolen from a friend. Upon entering the house, Appellant shot and killed Christina Wittich. Shortly thereafter, Lambirth returned home accompanied by his brother. He went into the house and discovered Christina lying in a pool of blood. At this point Appellant approached him with the gun. Lambirth tried to get away, but Appellant shot him in the arm. A struggle ensued between the two men, at which time Lambirth's brother, Chris, entered the house and assisted Lambirth. The two men subdued Appellant by holding him down and beating him. During the altercation, Lambirth was able to call the police.
Lambirth and Christina were taken to the University of Kentucky medical center where Christina was pronounced dead; Lambirth was treated for his wounds. Appellant was also transported to the medical center for treatment of his injuries, which consisted of various cuts and bruises, one of which required stitches. Appellant's injuries, however, were non-life threatening and he was awake and aware of what was happening while in the emergency room. He was evaluated for his level of consciousness and received the highest possible score. Appellant's x-rays, ultrasounds, and CAT scans were all normal.
Officer Ben Shirley of the Lexington Police Department accompanied Appellant from the crime scene to the hospital. Officer Shirley attempted to read Appellant his Miranda warnings while en route to the hospital but stopped because he feared that Appellant would not hear him, or would be confused because of all of the commotion in the ambulance. Once at the hospital, Officer Shirley read Appellant his Miranda warnings at approximately 8:20 p.m. Appellant was conscious and told the officer that he understood the warnings by answering, "yes." Following this, Officer Shirley proceeded to ask basic booking information questions, which Appellant had no trouble answering.
Later, Detective Brotherton arrived at the hospital to question Appellant about the events that had taken place. Brotherton did not re-Mirandize Appellant because Officer Shirley had already informed him of his rights. Appellant was able to talk with Detective Brotherton for some time and, in the process, was able to develop an elaborate kidnapping story. Appellant told Brotherton that Lambirth and his brother kidnapped him and had taken him to Lambirth's house that night. However, Detective Brotherton did not believe Appellant because he could not keep his story straight. When Detective Brotherton told Appellant that he did not believe his story, Appellant invoked his right to remain silent, which Brotherton honored, immediately ceasing the interview. Later, Appellant was transferred to Fayette County Detention Center.
The next morning, Detective Brotherton went to the detention center to talk with Appellant. A few hours earlier, Appellant had returned to the detention center from the hospital after experiencing a bad reaction to medicine he was given. Detective Brotherton testified that Appellant did not appear to be sleepy, confused, or disoriented. Appellant told Brotherton that he did not remember him or the prior conversation from the hospital. After a few questions, Appellant invoked his right to counsel. Detective Brotherton acceded to his request. Without further questioning from Brotherton, Appellant continued to briefly speak, indicating that he did not want to say anything incriminating. Eventually, Appellant again invoked his right to counsel and the interview stopped.
At trial, Appellant moved to suppress all statements made to Detective Brotherton because of alleged Miranda violations. The trial court held a suppression hearing at which written memoranda of law were submitted by both parties. On March 13, 2007, the trial court denied Appellant's motion to suppress the statements. The court made several findings of fact, to wit: 1) Officer Ben Shirley fully advised Appellant of his Miranda warnings while at the hospital; 2) Appellant indicated that he understood his rights by answering in the affirmative; 3) Appellant was fully coherent at the hospital; 4) Appellant was able to provide Officer Shirley with accurate information that constituted appropriate responses to the questions; 5) nothing in the evidence suggested that Appellant was incompetent due to mental illness; 6) fifteen (15) hours passed between the two interviews; and 7) there was no testimony that would have demonstrated that Appellant was incoherent during the second interview.
At trial, Appellant based his defense upon the presence of Extreme Emotional Disturbance (EED). Each side presented its evidence either for or against the existence of EED. At the conclusion of the Commonwealth's case, Appellant made a motion for directed verdict arguing that a reasonable jury could not find the absence of EED. The trial court overruled the motion.
Ultimately, Appellant was convicted of murder, second-degree assault under EED and first-degree burglary. He was sentenced to life imprisonment for the murder conviction, five (5) years for the assault conviction, and ten (10) years for the burglary conviction.
Flick v. Commonwealth, 2009 WL 1451923, 1-3 (Ky. 2009).
On direct appeal, Flick argued that the trial court erred in not suppressing his statements made at the hospital and detention center. He also argued that the trial court erred in not granting his motion for directed verdict. The Kentucky Supreme Court found no error and affirmed his conviction.
On November 23, 2009, Flick filed the underlying RCr 11.42 motion. On May 7, 2010, the motion was supplemented by appointed counsel from the Department of Public Advocacy. On October 21, 2010, the motion was denied without an evidentiary hearing. This appeal followed.
To prevail on a claim of ineffective assistance of counsel, Appellant must show two things:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[T]he proper standard for attorney performance is that of reasonably effective assistance." Id.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.
Id. at 691-692 (citations omitted). "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. "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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Additionally, "a hearing is required only if there is an issue of fact which cannot be determined on the face of the record." Stanford v. Commonwealth, 854 S.W.2d 742, 743-744 (Ky. 1993).
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Strickland, 466 U.S. at 689-690 (citations omitted).
Flick's first argument on appeal is that his trial counsel was ineffective for not investigating his mental status and hiring an expert prior to the motion to suppress. In his RCr 11.42 motion, Flick argued that trial counsel should have used an expert to show that he was suffering from mental problems due to a head injury at the time he was questioned by the police. This would have shown that he was incapable of intelligently waiving his Miranda rights. He claims this would have caused the trial court to suppress the statements he made at the hospital and detention center. These statements were relevant because at trial, the prosecution used the fabricated kidnapping story as evidence that Flick knew what he was doing when he went to Dr. Lambirth's house and used the kidnapping story to justify his actions. Dr. Andrew Bernard, the ER supervisor on May 20, 2005, testified at the suppression hearing. Dr. Bernard testified that Flick was awake and alert when he arrived at the ER. He also testified that Flick suffered a mild head injury, but that his X-rays, ultrasounds, and CAT scans were all normal. Additionally, Dr. Stephen Free, a psychologist, testified that he believed Flick was competent to speak to police officers because he was able to communicate and fabricate a story that exonerated himself, which showed that he recognized the trouble he was in. Flick argues that trial counsel should have rebutted this evidence with evidence of a mental impairment and by the use of an expert witness.
The state bears the burden of proving that a defendant "voluntarily, knowingly, and intelligently waived his right to silence and counsel." This Court uses a "totality of the circumstances" to determine whether a petitioner's statements were involuntary. The Supreme Court has stated that, in conducting this test, a court should consider factors such as: (1) police coercion; (2) length of interrogation; (3) location of interrogation; (4) continuity of interrogation; (5) the suspect's maturity; (6) the suspect's education; (7) the suspect's physical condition and mental health; and (8) whether the suspect was advised of Miranda rights. Coercive police activity is a necessary element for finding that a confession was involuntary.
Abela v. Martin, 380 F.3d 915, 928 (6th Cir. 2004) (citations omitted). "[T]he mere existence of a mental condition, by itself and apart from its relation to police coercion, does not make a statement constitutionally involuntary." Lewis v. Commonwealth, 42 S.W.3d 605, 612 (Ky. 2001), citing Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). In the case at hand, Flick does not allege any police coercion or any other factor discussed by Abela v. Martin. He only claims that he had diminished mental capacity due to a head injury. This alone is not reason enough to find he did not voluntarily waive his Miranda rights when he spoke to Officer Brotherton. We find that even if Flick's counsel had provided evidence that Flick's mental status was impaired at the time he made the statements at issue, either through more cross-examination or the use of an expert witness, the statements still would not have been suppressed; therefore, Flick cannot meet the prejudice prong of the Strickland test.
Flick also claims that trial counsel was ineffective for failing to correct the records of his medical expert Dr. Connor. The trial court found trial counsel was not ineffective on this issue because Flick did not specifically state the inaccuracies contained in the report. RCr 11.42(2) requires the movant to "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." On appeal, Flick still does not state with specificity what the inaccuracies were. We find no error.
Flick's next argument on appeal is that his trial counsel was ineffective for not calling witnesses who would have testified about Dr. Lambirth's temper. Flick claims these witnesses would have offered insight into his state of mind when he chose to take the gun with him to Dr. Lambirth's house. In essence, it would have bolstered his EED defense.
"Decisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight." Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000), overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005), quoting Fretwell v. Norris, 133 F.3d 621, 627 (8th Cir. 1998). Flick cannot show prejudice in this instance or that the outcome of the trial would have been different if the defense had called other witnesses. There was testimony presented concerning Flick's EED and depression by two defense experts. There was also testimony pertaining to the volatile relationship between Flick and Dr. Lambirth. Finally, the jury considered the defense of EED and used it to find Flick guilty of second-degree assault instead of attempted murder.
Flick's final argument is that his trial counsel did not adequately explain to the jury the elements of first-degree burglary during closing arguments. He claims this prejudiced the outcome because the jury would have understood that he did not meet the requisite intent element. We find, as did the trial court, that defense counsel fully explained the intent element of first-degree burglary. During closing arguments, trial counsel went to great lengths to explain that Flick did not intend to hurt anyone or commit a crime when he went to Dr. Lambirth's house. Defense counsel explained that Flick was distressed at the time and went to the house to talk to Dr. Lambirth in an attempt to work things out, and if that did not work, to kill himself. It is clear from the record that defense counsel sufficiently explained the elements of burglary.
Based on the foregoing, we affirm the order of the trial court denying Flick's RCR 11.42 motion.
ALL CONCUR.
