Reset A A Font size: Print

Court of Appeals of Kentucky.


NO. 2010–CA–001772–MR

Decided: March 09, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  LAMBERT AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  M. Brooke Buchanan Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky



In this post-conviction proceeding, Christopher Peyton appeals from the order of the Hopkins Circuit Court denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief from an eighteen-year sentence for his conviction on three counts of trafficking in a controlled substance and for being a first-degree persistent felony offender.   Because we find no error in the trial court's decision, we affirm.

We shall rely upon the Supreme Court of Kentucky's recitation of the factual background as set forth in its opinion ruling on Peyton's direct appeal, Peyton v. Commonwealth, 253 S.W.3d 504, 507–08 (Ky.2008):

The Hopkins Circuit Court grand jury returned two indictments against Appellant.   Both indictments included two counts of first-degree trafficking in a controlled substance.   Appellant's charges stemmed from a series of controlled drug buys performed by the Madisonville Police Department, the Hopkins County Sheriff's Department, and the Pennyrile Narcotics Task Force.   The first controlled buy was on or about the afternoon of September 27, 2004.   The informant used by the Madisonville Police Department to set up and purchase the drugs was Brian Lane. Lane was searched before making the purchase and outfitted with a wire to record any conversations.   The police set up video surveillance near where the transaction was to occur.   After waiting for a brief period, a van pulled up with an African–American male passenger.   The police surveillance could not see the passenger's face, but Lane testified that Appellant was the passenger and that he sold him cocaine.   The substance sold to Lane by Appellant tested positive for cocaine.

The second buy occurred on or about the evening of September 27, 2004.   Lane was again the informant for the transaction.   This time the dealer rode into the area on a bicycle and met with Lane to conduct the transaction.   Lane, along with Detective Charles Cobb of the Pennyrile Narcotics Task Force, identified Appellant as the person on the bicycle.   Again the substance purchased tested positive for cocaine.

The final transaction occurred on or about May 10, 2005.   This time, informant Carl Haley was used for the purchase.   Initially, Haley was in contact with an individual named McNarry, but Haley believed that he would ultimately make the drug purchase from a dealer named Mann. However, Detective Cobb testified that before Haley entered the shed where the drug deal was to take place, Mann left.   Haley, being from out of town, did not personally know who he would be purchasing drugs from and could only identify the seller by what his contact called him.   During the transaction, the seller was identified by the nickname “Black.”   Haley informed Detective Cobb of the seller's nickname.   Detective Cobb asked the assistance of Officer Leslie Gregory of the Madisonville Police Department to see if he knew of any potential drug dealers in town who had the nickname “Black.”   Officer Gregory identified Appellant as possibly having that nickname.

The next day Detective Cobb asked Haley to join him at the courthouse because he had been told by Officer Gregory that Appellant would be present there on another matter.   Haley was not informed of why he was to meet Detective Cobb until he reached the courthouse.   Once at the courthouse Detective Cobb asked Haley if “Black” was present.   Haley identified Appellant as “Black.”   Testimony indicated that Haley was not influenced by Detective Cobb in making his identification.   Additionally, further testimony presented at trial indicates that twenty-five to thirty people were present at the time the identification was made.   However, it is uncertain how many African–Americans were present.

Appellant was ultimately convicted of the three counts of trafficking and of being a persistent felony offender.   He was sentenced to a total of thirty-four years in prison.

On direct appeal, Peyton raised several issues, including his ability to present witnesses, the consolidation of the two indictments for trial, the procedure police officers used to identify him, the Commonwealth's introduction of prior bad acts, prosecutorial misconduct during the penalty phase closing argument, the denial of a directed verdict related to the May 10 th trafficking conviction, and statements made at trial by a police officer that were not provided in discovery.   While unsuccessful on these issues, Peyton ultimately was successful in arguing that his sentencing was improper because the trial court erroneously believed that the convictions from the first indictment had to run consecutively with the conviction from the second indictment based upon Peyton's having committed the offenses while on parole.   While the jury had recommended that all three sentences be served concurrently for a total of eighteen years, the trial court sentenced Peyton to concurrent sentences for the conviction under the first indictment for a total of sixteen years, followed by an eighteen-year sentence on the separate indictment, to be served consecutively for a total of thirty-four years.   The Supreme Court vacated the sentence and remanded for resentencing by the trial court.

Pursuant to the Supreme Court's mandate, the trial court conducted a new sentencing hearing on September 4, 2008.   Peyton retained new counsel to represent him.   At the hearing, Peyton presented a letter from Bobby Johnson, the grandfather of one of his children, as well as live testimony from childhood friend Yvonne Stone;  his mother, Christina Peyton;  his college professor, David Murphy;  and himself.   The witnesses testified that education was very important to Peyton and his family, that he was seeking a degree in business administration to create a better life, and that he had taken a wrong path, but was taking responsibility for his actions.   At the conclusion of the testimony, Peyton requested a ten-year sentence, while the Commonwealth argued that the court should impose the eighteen-year sentence recommended by the jury.   The court, while recognizing its respect for what Peyton had done to improve his life, nevertheless sentenced him to fourteen-, sixteen-, and eighteen-year sentences pursuant to the jury's verdict and ordered all three sentences to run concurrently with each other, but consecutively to any sentence from the previous felony conviction.   The trial court entered a written order amending the judgment on September 23, 2008.   No appeal was taken from this amended judgment.

On April 13, 2010, Peyton filed a pro se motion pursuant to RCr 11.42 to set aside, correct, or vacate his sentence.   He also moved to proceed in forma pauperis, for appointment of counsel, and for an evidentiary hearing, all three of which were granted.   In his pro se motion for relief, Peyton raised ten separate issues supporting his claim of ineffective assistance of trial counsel.   These issues included his counsel's refusal to withdraw, his failure to object to statements the Commonwealth Attorney made during the penalty phase closing argument, his failure to object to the introduction of prior bad acts, his failure to present evidence during a pre-trial suppression hearing relative to identification procedures the police used, his failure to subpoena favorable alibi witnesses, his failure to object to the introduction of an incriminating statement he made that was not included in discovery, his failure to prepare and investigate possible witnesses, his failure to present and cross-examine the Commonwealth's witnesses to rebut previous statements, his failure to investigate the background of the Commonwealth's witnesses to impeach their character, and his failure to present mitigation evidence by calling friends and family to testify.

The trial court held an evidentiary hearing on March 16, 2010.   Peyton's trial counsel, James Carter, testified regarding his investigation of and work on Peyton's case and subsequent trial.   Mr. Carter testified that Peyton had not given him any names to investigate or any witnesses to subpoena for trial.   He stated that his trial strategy was to attack the Commonwealth's case and put reasonable doubt into the minds of the jurors.   Through his investigation, Mr. Carter was able to attack the credibility of the confidential informants.   Finally, Mr. Carter indicated that there was not a lot of possible mitigation evidence to present during the penalty phase based upon Peyton's record and the convictions the jury had just returned.

Peyton testified that he thought he would be presenting a defense as well as attacking the Commonwealth's case.   He also listed the names of several individuals who would have, he claimed, shed light on what happened at the drug buys.   Samuel Frazier and Clifford McNarry, both convicted felons who had known Peyton their whole lives, also testified about the drug transaction and the actions of the confidential informant.   They both indicated that they were not called to testify at Peyton's trial, but that they would have testified if they had been contacted by Mr. Carter.

On September 3, 2010, the trial court entered its findings of fact, conclusions of law, and judgment denying Peyton's motion for RCr 11.42 relief.   This appeal follows.

On appeal, Peyton (represented by appointed counsel) focuses on only two of the ten issues he raised below.   Namely, that he was denied effective assistance of counsel when Mr. Carter failed to investigate possible witnesses (Mr. Frazier and Mr. McNarry) and when he failed to present mitigation evidence during the penalty phase.   We shall address each issue in turn.

First, we shall set out the applicable standard of review in RCr 11.42 post-conviction actions.   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).   Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance.   The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof.   In doing so, the movant must overcome a strong presumption that counsel's performance was adequate.   Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky.1969);  McKinney v. Commonwealth, 445 S.W.2d 874, 879 (Ky.1969).   If an evidentiary hearing is held, we must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel.  Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky.App.1983).

The Supreme Court of Kentucky recently revisited the law addressing RCr 11.42 proceedings in Haight v. Commonwealth, 41 S.W.3d 436 (Ky.2001) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.2009)), noting that “[s]uch a motion is limited to the issues that were not and could not be raised on direct appeal.   An issue raised and rejected on direct appeal may not be relitigated in these proceedings by simply claiming that it amounts to ineffective assistance of counsel.”  Haight, 41 S.W.3d at 441.   The Court went on to state:

In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.   See Morrow;  Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.

Id. at 441–42.

We now turn to the merits of Peyton's appeal.   His first argument concerns the claim that Mr. Carter failed to prepare and investigate Mr. Frazier and Mr. McNarry as possible witnesses for the defense.   The Commonwealth points out that even if Peyton were successful on this argument, any relief would only address the convictions for the May 10, 2005, offense for which he received the eighteen-year sentence.   The trial court ruled on this issue as follows:

The Defendant's fifth argument is that he was denied ineffective [sic] assistance of counsel when counsel failed to subpoena favorable alibi witnesses.   In particular, Defendant argues that he hoped to prove through testimony of McNary [sic] and Frazier that he could not have sold the drugs to Haley, the C.I. during the time of the drug transaction.   Counsel indicated in his testimony during the 11.42 Hearing that he had never heard Frazier's name in any of his meetings with his client.   Although Carter did state that there was some discussion of McNary it was not about McNary being a voice on the audio tape or in regard to him being able to offer evidence to establish the Defendant was not at the scene of the drug buy.   Further, Carter knew McNary was a convicted felon whose testimony, in his view, would do little to serve the interest of his client.   Additionally, Counsel testified that he listened to an audiotape of the drug buy with his client and was not informed by his client that either of the voices on the tape were McNary or Frazier.   Finally, Counsel indicated had he been specifically asked to subpoena McNary and Frazier he would have done [so] but he had not been asked.   The Defendant, however, testified that he did give both names to Counselor and that he asked to subpoena both and McNary and Frazier testified that they were willing and able to testify on the Defendant's behalf.   However, when questioned by the Commonwealth as to whether McNary and Frazier's names were in the discovery documents, the Defendant noted the audiotape was in the discovery but did not indicated [sic] that he gave Carter their names or named them when listening to the audiotape.

The record establishes that Counsel would have subpoenaed any witnesses requested by the Defendant about possible witnesses and would have put on any witness that could have established the Defendant's whereabouts during the drug buys but that no such witnesses existed or were brought to his attention.   In light of these facts, Carter effectively represented his client in pursuing alibi witnesses.

In Strickland, the United States Supreme Court confirmed that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.   In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.”  Id., 466 U.S. at 691, 104 S.Ct. at 2066.   Here, Peyton contends that Mr. Carter did not adequately investigate Mr. Frazier and Mr. McNarry and that such investigation would have permitted Mr. Carter to undermine the testimony of the confidential informant at the May 10 th buy.   Unfortunately for Peyton, the record reflects otherwise.

Mr. Carter's testimony at the RCr 11.42 hearing as well as his actions at trial establish that he adequately investigated the circumstances surrounding the controlled buys and was in fact able to successfully insert reasonable doubt for at least one of the buys.   Mr. Carter stated that Peyton did not give him any names to investigate or subpoena, but he certainly would have done so had names been provided.   Names provided after the fact or in hindsight, as appears to be the case here, cannot subject trial counsel to a claim of inadequate investigation for purposes of an ineffective assistance claim.  “A defendant is not guaranteed errorless counsel, or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”  McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky.1997).   The record establishes that Peyton did not request that any witnesses be called or subpoenaed for trial prior to the date of trial.   Even if the names had been provided and Mr. Carter had investigated Mr. Frazier and Mr. McNarry, it is highly doubtful that either would have provided a sufficient defense to change the result of the verdict on that charge.   Both men were convicted felons who were admittedly involved in drug transactions and who were long-time friends of Peyton.   Accordingly, even if Peyton were able to show that Mr. Carter had been ineffective in failing to interview and investigate these potential witnesses, he could not show any prejudice to justify granting relief.

Next, Peyton contends that Mr. Carter failed to investigate or present any mitigation evidence during the penalty phase, other than his own testimony.   The trial court held as follows:

The tenth argument made by the Defendant in his motion is that counsel was ineffective when he failed to present mitigation evidence.   Counsel testified that the only mitigation evidence that he had thought to place before the Court was the Defendant's business professor from community college.   However, after considering the implications that a jury might draw from a person on the stand facing drug trafficking charges taking business courses might arose [sic], he decided not to place said professor on the stand.   The Defendant argues that his mother should have been called as a witness during the mitigation phase.   Counsel, however, testified that having the Defendant's mother testify during the mitigation process was an afterthought.   Further, the Defendant's mother was arrested during the trial and would have had to appear in a prison uniform during the mitigation phase, thus prejudicing the Defendant.   The record shows that counsel did not fail to present mitigation, rather he understood and analyzed the testimony that could be presented and determined it would not benefit his client.   Therefore, counsel has evidence he provided effective service in his decisions made with regard to mitigation evidence.

The Commonwealth contends that Peyton has impermissibly expanded the list of names he claims could have been called in mitigation.

KRS 532.055(2)(b) permits a defendant “to introduce evidence in mitigation or in support of leniency[.]”

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.  Id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696.   The reasonableness of counsel's investigation depends on the circumstances of the case.  Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

Hodge v. Commonwealth, 68 S.W.3d 338, 344 (Ky.2001).   Furthermore, in Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.1994), the Eleventh Circuit Court of Appeals explained:

In evaluating whether counsel has discharged this duty to investigate, develop, and present mitigating evidence, we follow a three-part analysis.   First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence.   If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel.   If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.  Funchess v. Wainwright, 772 F.2d 683, 689–90 (11th Cir.1985).   If the choice was not tactical and the performance was deficient, then it must be determined whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988).

In the present case, the record reflects that Mr. Carter considered calling both Peyton's mother and his college professor.   However, Peyton's mother had been arrested during the trial and would have had to appear in prison garb.   Furthermore, Mr. Carter reasoned that the jury could have inferred that Peyton was taking business classes to further his drug trafficking business.   In other words, neither witness would have assisted Peyton in mitigation.   It is well-settled that “the defendant must overcome the presumption that counsel provided a reasonable trial strategy.”  Brown v. Commonwealth, 253 S.W.3d 490, 499 (Ky.2008).   We cannot hold that Peyton has overcome this presumption in the present case.

Accordingly, we hold that the trial court did not commit any error in denying Peyton's motion for RCr 11.42 relief.   Peyton failed to show that his counsel was ineffective or, even if his actions had been ineffective, that any prejudice resulted.

For the foregoing reasons, the order of the Hopkins Circuit Court denying Peyton's motion for RCr 11.42 relief following an evidentiary hearing is affirmed.