Filed: Feb. 22, 2013
Latest Update: Feb. 22, 2013
Summary: NOT TO BE PUBLISHED OPINION MAZE, JUDGE. Appellant, H. Drew Mayo, appeals from an order denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. He argues that: (1) trial counsel was ineffective for failing to move for a mistrial during the Commonwealth's closing argument; (2) the trial court erred by denying his motions for appointment of counsel and an evidentiary hearing. We affirm. Following a jury trial, M
Summary: NOT TO BE PUBLISHED OPINION MAZE, JUDGE. Appellant, H. Drew Mayo, appeals from an order denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. He argues that: (1) trial counsel was ineffective for failing to move for a mistrial during the Commonwealth's closing argument; (2) the trial court erred by denying his motions for appointment of counsel and an evidentiary hearing. We affirm. Following a jury trial, Ma..
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NOT TO BE PUBLISHED
OPINION
MAZE, JUDGE.
Appellant, H. Drew Mayo, appeals from an order denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without an evidentiary hearing. He argues that: (1) trial counsel was ineffective for failing to move for a mistrial during the Commonwealth's closing argument; (2) the trial court erred by denying his motions for appointment of counsel and an evidentiary hearing. We affirm.
Following a jury trial, Mayo was convicted of first-degree rape, first-degree sodomy, and being a second-degree persistent felony offender (PFO). He received a sentence of twenty years of imprisonment. On direct appeal, the Supreme Court of Kentucky affirmed the conviction in a published opinion, which set forth the underlying facts. Mayo v. Commonwealth, 322 S.W.3d 41 (Ky. 2010). On November 18, 2011, Mayo filed a motion for post-conviction relief pursuant to RCr 11.42, which the trial court denied without an evidentiary hearing. This appeal followed.
Mayo first argues that trial counsel was ineffective for failing to move for a mistrial after the Commonwealth stated during closing argument that a good jury would return a guilty verdict. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate 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). 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. United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992). An evidentiary hearing is not required if the allegations in the RCr 11.42 motion can be refuted by the record. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001). Counsel need not be appointed by the trial court if an evidentiary hearing is not required. Id. at 453.
Our Supreme Court set forth the facts surrounding this issue as follows:
Mayo's main argument is based upon statements made by the Commonwealth during closing argument about a "good jury." More specifically, at one point during its closing argument, the Commonwealth began a comment by saying, "Is there a reason why a good jury would not return a finding ..." at which point Mayo's counsel interrupted with an objection to the Commonwealth's statement as being "not proper." The trial court remarked that it did not understand the reason for the objection and invited counsel to the bench.
At that bench conference, Mayo's counsel stated that the Commonwealth's intimation to the jury that a good jury would find Mayo guilty was improper. The Commonwealth responded that it was not sure what the problem was but that it would "fix it." The trial court did not make a formal ruling on the objection. And Mayo requested no formal ruling. Instead, the trial court merely dispatched the Commonwealth forward to "fix it."
Immediately, the Commonwealth addressed the jury and feigned fault for assuming that this jury was going to be a good jury. Mayo's counsel objected. Instead of returning to the bench for clarification, the Commonwealth gestured toward Mayo's counsel and asked her—in full view and hearing of the jury—"Is it your belief they are not a good jury?" The trial court then implored counsel: "Let's don't go into all that. Just, just move on to something else." Mayo's counsel, however, approached the bench and asked for an admonition that a good jury was a jury that considered all the facts and rendered the verdict it believed was appropriate. The Commonwealth stated it had no objection to such an admonition, after which the trial court admonished the jury that it would be a good jury whichever verdict it returned. Mayo requested no further relief.
Mayo v. Commonwealth, 322 S.W.3d at 54.
Mayo has failed to demonstrate either deficient performance or prejudice from the failure of trial counsel to move for a mistrial. "A jury is presumed to follow an admonition to disregard evidence and [an] admonition thus cures any error." Meece v. Commonwealth, 348 S.W.3d 627, 675 (Ky. 2011)(citing Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky.2003)). "Absent countervailing evidence, the failure to request a limiting admonition is regarded as a trial tactic . . . intended to avoid calling further attention to the improper evidence." Soto v. Commonwealth, 139 S.W.2d 827, 862 (Ky. 2004). The trial court provided an admonition to the jury. Mayo has failed to rebut the presumption that the jury followed the admonition. We conclude that the failure to move for a mistrial was a trial tactic, which we cannot second-guess through hindsight.
Mayo also argues that the trial court erred by denying his motion for appointment of counsel and for an evidentiary hearing. As stated above, an evidentiary hearing is only required if the allegations cannot be refuted by the record. Fraser v. Commonwealth, supra. Appointment of counsel is only required if there is an evidentiary hearing. Id. In the present case, the allegations were conclusively refuted by the record. Therefore, we conclude that the trial court properly denied the motions for an evidentiary hearing and appointment of counsel.
Any remaining arguments made by Mayo were not presented to the trial court below. As such, they are unpreserved and will not be considered herein since this Court "is without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see also Dever v. Commonwealth, 300 S.W.3d 198, 202 (Ky. App. 2009).
Accordingly, the order of the McCracken Circuit Court is affirmed.
ALL CONCUR.
