APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

Danny Lee new APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–000191–MR

Decided: February 24, 2012

BEFORE:  ACREE, COMBS AND KELLER, JUDGES. BRIEFS FOR APPELLANT:  Danny Lee New, pro se West Liberty, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

This is a pro se appeal from an order of the Casey Circuit Court denying Danny Lee New's (New) post-conviction Kentucky Rule of Criminal Procedure (RCr) 11.42 motion without conducting an evidentiary hearing.   For the reasons set forth below, we affirm the trial court's order.

FACTS

Having reviewed the record, we adopt the following facts as stated in the opinion of the Supreme Court of Kentucky in New's direct appeal:  Double

During the evening of January 29, 2005, George Atwood, a Kentucky State Police Detective, offered assistance to two men whose vehicle was stopped near a small grocery store in Mintonville, Casey County, Kentucky.   A license check indicated an outstanding arrest warrant for Danny New, the owner of the stalled pickup truck.   After one of the men identified himself as New, the detective arrested him, searched him, and searched his truck.   The search of New's person revealed bullets for a .357 Magnum handgun and a pouch containing both a small digital scale and a bowl with a powdery residue.   The search of the truck revealed a loaded .357 Magnum handgun and a metal cigarette case containing three small packages of a powdery substance.   Both the residue on the bowl and the powder in the cigarette case were later identified as methamphetamine.   The discovery of the gun and what appeared to be illegal drugs led to the arrest of New's companion, his stepson Kevin Hall. A subsequent search at the residence of New's fiancee, April Fuson, revealed numerous items used in the manufacture of methamphetamine and other items, such as guns and cars, which, according to Fuson's statement to one of the investigators, New had obtained in exchange for methamphetamine.   New and Hall were both charged with manufacturing and trafficking in that drug and with illegal possession of a handgun by a convicted felon, both men being convicted felons.   Ultimately the Casey Circuit Court convicted New of the manufacturing and trafficking offenses and sentenced him as a second-degree persistent felony offender (PFO) to consecutive terms of imprisonment totaling thirty-five years.

On March 20, 2008, the Supreme Court of Kentucky rendered an opinion affirming New's conviction and sentence.   New subsequently filed a motion in the Casey Circuit Court to set aside his conviction and sentence pursuant to RCr 11.42.   Without conducting an evidentiary hearing, the trial court denied New's motion.   This appeal followed.

STANDARD OF REVIEW

In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).   See Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985).   Under this standard, a party asserting such a claim is required to show:  (1) that the trial counsel's performance was deficient in that it fell outside the range of professionally competent assistance;  and (2) that the deficiency was prejudicial because there is a reasonable probability that the outcome would have been different but for counsel's performance.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.   A defendant must overcome a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance.  Id. at 690, 104 S.Ct. at 2066.

ANALYSIS

On appeal, New argues that he received ineffective assistance of counsel because his counsel failed to (1) file a motion to suppress a taped statement he made to police;  (2) retain an expert to rebut the Commonwealth's expert who testified about the contents of a plastic bag;  and (3) object to witness testimony that was prejudicial and irrelevant.   New also argues that the trial court erred by failing to conduct an evidentiary hearing and appoint him counsel.   We address each issue in turn.

1. Suppression of Statements

First, New argues that he received ineffective assistance of counsel when his counsel failed to file a motion to suppress a taped statement he made to police during an interrogation.   New contends that, prior to his interrogation, no one advised him that he had a right to an attorney and that an attorney would be appointed for him if he could not afford one.   New argues that, because he was not advised of these MirandaDouble rights, a motion to suppress would have been granted and the outcome of his trial would have been different.

Having carefully reviewed the record, we note that at the beginning of New's taped statement, which was played at trial, the police officer interrogating New stated that he had read New his rights prior to the recording being made.   New then acknowledged he understood those rights.   After the taped statement was played for the jury, the trial judge convened a bench conference and asked New's counsel whether New had waived his Miranda rights.   Both the prosecutor and New's counsel confirmed that New had.   Because New had waived his rights, a motion to suppress would have been an exercise in futility.   Failure to make such a motion is not ineffective assistance of counsel.   See Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky.1999).

However, even if New did not waive his rights, we cannot say that counsel's failure to seek suppression of New's statements would have resulted in a different outcome.   During trial, Detective Atwood testified that New stated that:  he had lived at Fuson's residence for one and a half to two months;  that it was difficult for him to say that items found in Fuson's residence were things he used for “cooking” methamphetamine but he could not deny that they were;  that he knew how to cook methamphetamine;  and that he could get $100.00 for a gram of methamphetamine.   Even if these incriminating statements had been suppressed, there was other sufficient evidence that New trafficked in and manufactured methamphetamine.   Specifically, the three small plastic bags found in New's pickup that contained methamphetamine, the “scale and drug-tainted bowl found on New's person, the apparent packaging of the methamphetamine for distribution, and Fuson's statement to the police that she had witnessed New sell methamphetamine the day before,” all supported the trafficking conviction.   New v. Commonwealth, 2005–SC–000998–MR, 2008 WL 746609, at *4 (Ky. Mar. 20, 2008).

As to the manufacturing conviction, the Supreme Court noted the following:

In conjunction with Fuson's statement that she had observed New perform some of the final steps in the manufacturing process ․ there was ample evidence at Fuson's residence, in the form of empty cold medicine blister packs, stripped lithium batteries, a characteristically discolored propane tank valve, baking dish, filters, tubing, funnel, spoon, and large plastic jug, to permit the jury to infer that New had actually manufactured the methamphetamine he and Hall possessed.

Id. at *5.

Based on this evidence, we cannot say that the outcome would have been different had New's statements been suppressed.

2. Independent Expert

Next, New argues that his counsel was ineffective for failing to retain an expert to rebut the Commonwealth's expert who testified about the contents of a plastic bag.   We disagree.

At trial, the Commonwealth's crime lab expert testified that he tested one of the three small plastic bags found in New's truck and, although it contained mostly pseudoephedrine, the package did contain methamphetamine.   New contends that his counsel should have retained an expert to clarify for the jury that the plastic bag did not contain any illegal substances.   It is unclear, but it appears that New is arguing that there was no testimony that the package contained an illegal substance, which is incorrect.

As noted in Thompson v. Commonwealth, 177 S.W.3d 782, 786 (Ky.2005), it is not necessary for defense counsel to hire rebuttal expert witnesses to avoid being deemed ineffective in every case.   New has not presented evidence that an additional expert's testimony would differ materially from that of the Commonwealth's expert.   Thus, we are unconvinced that additional expert testimony would have changed the outcome of New's trial.   See Mills v. Commonwealth, 170 S.W.3d 310, 329 (Ky.2005).

3. Failure to Object

Next, New argues that his trial counsel was ineffective for failing to object to witness testimony regarding a “satanic bible” found at New's residence.   Having carefully reviewed the record, we note that the “satanic bible” was referenced three times by two officers who testified on behalf of the Commonwealth.   The references were made when the officers were listing numerous items found in New's residence.   It is clear from the record that New's counsel did not object after the “satanic bible” was mentioned the first two times.   After the third time, New's counsel did make an objection and approached the bench.   However, it is difficult to understand what was discussed during this bench conference.

We agree with New that such references were irrelevant and prejudicial.   However, as set forth above, there was a significant amount of evidence that New trafficked in and manufactured methamphetamine.   Thus, we cannot say that the result would have been different had New's counsel objected to the references to the “satanic bible.”

4. Evidentiary Hearing and Appointment of Counsel

Finally, New argues that the trial court erred by failing to conduct an evidentiary hearing on his motion.   Because the record refutes the allegations raised in New's RCr 11.42 motion, the trial court did not err when it denied his motion for an evidentiary hearing.  RCr 11.42(5);  Stanford v. Commonwealth, 854 S.W.2d 742, 743–44 (Ky.1993).   Also, because an evidentiary hearing was not required, New was not entitled to appointment of counsel.   Fraser v. Commonwealth, 59 S.W.3d 448, 453 (Ky.2001).

CONCLUSION

For the foregoing reasons, we affirm the order of the Casey Circuit Court.

all concur.

KELLER, JUDGE: