ACREE, Chief Judge.
Appellant Shawntele Jackson appeals the Jefferson Circuit Court's September 9, 2013 order denying his motion requesting relief pursuant to Kentucky Rules of Civil Procedure (RCr) 11.42 due to ineffective assistance of counsel. We affirm.
In 2007, Jackson was convicted of murder and tampering with physical evidence, and was sentenced to fifty years' imprisonment. Jackson appealed as a matter of right to the Kentucky Supreme Court; the Court affirmed Jackson's convictions. Jackson v. Commonwealth, 2007-SC-000392-MR, 2010 WL 252244 (Ky. Jan. 21, 2010). In the interest of judicial economy, we recount here the Supreme Court's thorough recitation of the relevant facts:
Jackson, 2010 WL 252244, at *1-2 (footnotes omitted).
On January 31, 2011, Jackson moved, pro se, to vacate his conviction under RCr 11.42 alleging seven claims of ineffective assistance of counsel. He also requested an evidentiary hearing and appointment of counsel, which the circuit court granted. After counsel declined to supplement the motion, Jackson filed supplemental pro se RCr 11.42 motions raising three additional grounds of ineffective assistance.
An evidentiary hearing was held on July 19, 2013. Jackson's trial counsel testified that the agreed-upon defense theory at trial was self defense. She explained to Jackson that, for the defense to succeed, he would need to testify. Trial counsel clarified that it was always Jackson's choice to testify and she left the decision to him. Jackson testified that trial counsel told him that the facts of his case met the requirements of self defense, that the self-defense theory would only work if he testified at trial, and that Senate Bill 38 would apply to him. Jackson claimed he did not wish to pursue a self-defense theory and did not want to testify at trial because he was under the influence of drugs when the events giving rise to his criminal charges occurred. Jackson also testified that trial counsel never told him that he had the right not to testify.
Trial counsel also testified that, at the time of trial, she was in possession of telephone numbers for Jackson's parents, but was unable to get in touch with them or other family members. Her understanding was that Jackson was estranged from his parents. Trial counsel clarified that she did not have any witnesses to present during the sentencing phase that had not already testified during the guilt phase. She felt that adequate evidence of mitigation had been presented during the guilt phase through Jackson's own testimony describing his background and childhood, and the testimony of Jackson's purported "godmother."
Jackson's sister, Rokia Cain, testified that their parents were holy, Christian people and that their father was a preacher. Cain described Jackson as more mature now than when he was younger, and testified she had seen a big change in him. Jackson likewise testified that he had no discussions with trial counsel about the sentencing phase or possible mitigation witnesses.
In a detailed order entered September 9, 2013, the circuit court denied Jackson's RCr 11.42 motion. Jackson timely appealed.
Every defendant is entitled to reasonably effective — but not necessarily errorless — counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the two-part test articulated in Strickland v. Washington, 466 U.S. 688, 689, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).
Under Strickland, the movant must show (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
To establish that counsel's "deficient performance prejudiced the defense," the movant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. Strickland defines reasonable probability as "a probability sufficient to undermine confidence in the outcome[,]" thereby depriving "the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 694, 104 S.Ct. at 2064, 2068.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S.Ct. at 2065. In the course of our review, we must make every effort "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." Id.; Fegley, 337 S.W.3d at 659.
Finally, when the trial court conducts an evidentiary hearing we must defer to the trial court's determinations of fact and witness credibility. Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001) overruled by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). We review the trial court's factual findings for clear error. Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013). If the trial court's findings are supported by substantial evidence, then they are not clearly erroneous. Id.
With the above standards in mind, we turn to Jackson's allegations of ineffective assistance.
Jackson presents five claims of ineffective assistance of counsel. Jackson argues that trial counsel was deficient when she: (1) failed to move the trial court for separate verdict forms on intentional and wanton murder; (2) blatantly misadvised Jackson of the law as to the no-duty-to-retreat doctrine to secure his testimony at trial; (3) failed to call mitigation witnesses during the trial's penalty phase; (4) failed to object to the jury's consideration during deliberation of the crime scene video that contained narration; and (5) failed to request a cautionary instruction when a police officer offered both lay and expert testimony. Jackson also claims cumulative error. We address each argument in turn.
Jackson first argues that trial counsel was ineffective when, in light of the combined jury instruction for intentional and wanton murder, she failed to move the court for a separate "verdict form" which would have required the jury to specify whether it was finding Jackson guilty of intentional or wanton murder. Confusingly, Jackson declares that he is not attacking the combined murder instruction, but rather is asserting that the evidence submitted at trial was insufficient to support the two theories of murder. (Appellant's Brief at 4). We interpret Jackson's argument as this: because there was perceptible doubt as to the sufficiency of the evidence to support both theories, it was essential that trial counsel request a verdict form requiring the jury to identify under which theory (intentional or wanton) it was finding guilt, and counsel was deficient when she failed to request such a form. We disagree.
Jackson was accused of murder in violation of KRS
However, the Kentucky Supreme Court has repeatedly cautioned that, while a combination jury instruction is perfectly appropriate in certain cases, "the preferred practice is to include a form verdict that requires the jury to state whether guilt is found under the theory of intentional murder or under the theory of wanton murder." Benjamin v. Commonwealth, 266 S.W.3d 775, 786 (Ky. 2008); Hudson v. Commonwealth, 979 S.W.2d 106, 110 (Ky. 1998). Jackson's deficiency claim relates solely to trial counsel's failure to move for a verdict form as described in Hudson and like cases. (Appellant's Brief at 4). While it might have been the "preferred practice" to request a verdict form that required "the jury to specify on the verdict upon which theory they" found guilt, Benjamin, 266 S.W.3d at 786, we cannot say counsel abandoned her constitutional duty to render reasonably effective counsel when she chose not to do so. Trial counsel's conduct did not fall below an objective standard of reasonableness. Jackson has therefore failed to establish the first prong of the Strickland test. We affirm the circuit court's order on this issue.
Jackson next claims trial counsel coerced him into testifying by misadvising him as to the law of self-defense and its related components.
Kentucky has long adhered to the principle that a person "was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground[.]" Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d 936, 936 (1931) (quoting Beard v. United States, 158 U.S. 550, 564, 15 S.Ct. 962, 967, 39 L.Ed. 1086 (1895)). Simply put, "it is [a] tradition that a Kentuckian never runs. He does not have to." Id. This principle originated in our common law. Further, the enactment of the Kentucky Penal Code in 1974 did not nullify or repudiate it. Hannah v. Commonwealth, 306 S.W.3d 509, 514 (Ky. 2010). However, over time, Kentucky courts have moved away from, but not abolished, the no duty to retreat doctrine. Significantly, Kentucky courts have held "that when the trial court adequately instructs on self-defense, it need not also give a no duty to retreat instruction." Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky. 2005) (citation omitted).
In 2006, in an effort to preserve the no duty to retreat principle, the Kentucky legislature, by means of Senate Bill (SB) 38, "amended Kentucky's criminal statutes to codify "the pre-existing `no duty to retreat'".
Turning to the case before us, Jackson claims his trial counsel was deficient when she incorrectly advised him that SB 38 and the 2006 amendments, which she thought would apply to his trial, supported a "no duty to retreat" jury instruction. Jackson argues that trial counsel's statements tricked him into testifying at trial, despite his misgivings.
As found by the Supreme Court on direct appeal, because "the conduct for which [Jackson] was prosecuted occurred before July 12, 2006 — the effective date of Senate Bill 38 and the 2006 self-defense amendments" — SB 38 did not apply retroactively to Jackson's case. Jackson, 2010 WL 252244, at 12 n.5. Despite trial counsel's incorrect assumption that SB 38 would apply to Jackson's trial, we find no deficiency. As noted above, when examining the reasonableness of counsel's decisions, we "evaluate the conduct from counsel's perspective at that time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. It was not unreasonable for trial counsel, in light of SB 38, to seek a no duty to retreat instruction. Even absent a specific "no duty to retreat" instruction, it was the law in Kentucky at the time of Jackson's trial that he had no duty to retreat, see Hannah, 306 S.W.3d at 514, and "whether the assailed should stand his ground or give back [was] a question for the jury." Hilbert, 162 S.W.3d at 926 (citation omitted). Trial counsel explained during the evidentiary hearing that, in her view, it would have been almost impossible to establish a claim of self-defense — of which no duty to retreat is a component, Rodgers, 285 S.W.3d 765 — without Jackson's testimony. She ultimately left the decision to testify to Jackson, who agreed to do so. Jackson has failed to establish the first prong of the Strickland test. We therefore affirm the trial court's order as to this issue.
It is Jackson's position that trial counsel rendered ineffective assistance when she failed to call any mitigation witnesses during the sentencing phase of his trial. We do not find this argument persuasive.
KRS 532.055(2)(b) allows a defendant "to introduce evidence in mitigation or in support of leniency[.]" The Kentucky Supreme Court has held that, under Strickland, "defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary." Commonwealth v. Bussell, 226 S.W.3d 96, 106 (Ky. 2007) (citation omitted). "The reasonableness of counsel's investigation depends on the circumstances of the case." Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky. 2001).
Jackson claims that, prior to the penalty phase of his trial, he informed trial counsel that two of his sisters were available and willing to testify. However, at the evidentiary hearing, trial counsel testified that she was not aware of any possible mitigation witnesses to present on Jackson's behalf, despite the DPA
Our suspicions are naturally heightened when trial counsel chooses not to call any mitigation witnesses during the penalty phase of a trial. But this decision alone does not constitute deficient performance without first examining the record. Having done so, we find that Jackson has not "overcome the presumption that counsel provided a reasonable trial strategy." Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky. 2008). Therefore, Jackson has not met the first prong of Strickland and we affirm the circuit court's order as to this issue.
Jackson maintains that trial counsel's failure to object to the jury's consideration of the crime scene video, containing recorded audio narration, which had been specifically excluded by the trial court amounted to ineffective assistance.
Jackson, 2010 WL 252244, at *7. As he did on direct appeal, Jackson now argues that the jury was able to make use of inadmissible evidence during its deliberations and therefore, that trial counsel was ineffective when she failed to object to the admission of the crime scene video.
Kentucky courts "have allowed narrative testimony from in court witnesses providing `simultaneous commentary' of crime scene video, see Milburn v. Commonwealth, 788 S.W.2d 253, 257 (Ky.1989), whereas we have found error in pre-recorded narrative video when such narration contained inadmissible hearsay." Cuzick v. Commonwealth, 276 S.W.3d 260, 265 (Ky. 2009). Even assuming that trial counsel performed deficiently, to prevail, Jackson must still show that trial counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As referenced above, prejudice sufficient to warrant RCr 11.42 relief is that which indicates "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2064. We find no such prejudice in this case.
It is unquestioned that the jury was not privy to the recorded narration during trial. There is also no evidence that, despite the admission of the crime scene video with the recorded narration intact, that the jury ever viewed the video or listened to the audio portion of the video during deliberations. Further, the jury already had the benefit of the police officer's live narration, and there was more than sufficient evidence presented by the Commonwealth of Jackson's guilt. We are not convinced that the recorded narration on the crime scene video, even if viewed by the jury, altered the outcome of Jackson's trial. We therefore affirm the circuit court's order as to this issue.
Jackson next argues that trial counsel was ineffective because she did not request a cautionary instruction when a police officer allegedly offered both lay and expert testimony at trial. The Sixth Circuit has found clear error when a trial court refused to give the jury a cautionary instruction
First, Jackson has not directed us to, nor have we located, any Kentucky authority requiring a cautionary instruction be given when a witness offers both opinion and expert testimony. In fact, in the context of accomplice testimony, our Supreme Court has rejected the argument that a cautionary instruction must be given because such an instruction tends to "overemphasize particular aspects of the evidence." Peak v. Commonwealth, 197 S.W.3d 536, 545 (Ky. 2006). "Evidentiary matters should be omitted from the instructions and fleshed out during closing arguments." Id. In this regard, trial counsel was certainly not deficient for not requesting a cautionary instruction given that case law not only does not support the argument, but even suggests a cautionary instruction might have been improper.
Second, there is no evidence in this case that any witness testified as both a lay and expert witness. During trial, a Louisville Metro Police (LMP) Officer testified that, in his opinion, the Victim's body did not appear to have been in a struggle. A second LMP Officer similarly testified that, based on his observations, the position of Victim's body was inconsistent with a fight or struggle. On direct appeal, the Supreme Court concluded — despite a statement by the trial court, outside the presence of the jury, that one officer qualified as an expert — that the officers' testimony was admissible lay, not expert, opinion Supp. 2d 749, 758 (E.D. Ky. 2013). testimony because "the witnesses rationally drew an inference from their first-hand perceptions at the scene." Jackson, 2010 WL 252244, at *5.
Accordingly, even if a cautionary instruction was a viable option, which we do not find today, trial counsel was still not deficient for choosing not to request a cautionary instruction absent a witness testifying in dual capacities.
Jackson's final claim is cumulative error. Cumulative error "is the doctrine under which multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). The doctrine of cumulative error is only invoked, however, "where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id. In this case, none of the claimed errors identified by Jackson "raise any real questions of prejudice" to him. Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012). We find no cumulative error.
For the foregoing reasons, we affirm the Jefferson Circuit Court's September 9, 2013 order denying Jackson's RCr 11.42 motion.
ALL CONCUR.
