NICK RATLIFF APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

NICK RATLIFF APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–000928–MR

Decided: March 30, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEFS FOR APPELLANT:  Susan Jackson Balliet BRIEF FOR APPELLEE:  Jack Conway Assistant Public Advocate Attorney General of Kentucky Frankfort, Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Nick Ratliff appeals from a Lawrence Circuit Court order denying his motion for a new trial pursuant to Kentucky Rules of Criminal Procedure (CR)11.42 on the following grounds:  (1) he was deprived of effective legal representation when his trial counsel failed to produce available evidence, following his conviction, that established a juror slept through a significant portion of the trial;  and (2) he was deprived of effective representation when trial counsel failed to request a jury instruction requiring jurors to find that each injury was caused by a separate, distinct act.   Based upon the foregoing reasons, we affirm the Lawrence Circuit Court order.

On March 10, 2004, a Lawrence County jury convicted Ratliff of murder and seven counts of first-degree criminal abuse in the killing of 20–month old L.M., the daughter of Ratliff's girlfriend, Tammy Kirk. The underlying facts of the case are disturbing and gruesome.   An exhaustive recantation of the facts is, for the most part, unnecessary for the purposes of this appeal.   See Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky.2006).

In the weeks leading up to L.M.'s murder, the baby was taken to Three Rivers Medical Center several times for different injuries.   On January 27, 2002, Kirk took L.M. to Three Rivers, where L.M. was diagnosed with a fractured left humerus.   Kirk claimed that L.M. may have caught her arm in the slats of her crib.   On February 4, 2002, L.M. was taken to Three Rivers with crusty lesions around her mouth and bruising around her jaw.   She was diagnosed with impetigo, a skin disorder.   Kirk claimed that the bruising was caused by the sling that L.M. wore for her broken arm.   On February 8, 2002, L.M. was taken to Three Rivers and pronounced dead.

L.M. was reportedly found dead in bed at Ratliff's apartment.   Kirk was asleep in another room.   Following further investigation, physicians found numerous injuries on L.M.'s body, including:  a severed frenulum, lesions, raw skin around her mouth, and petechial hemorrhages inside of the eyes.   Physicians found seven identical arch-shaped, scabbed burns on L.M.'s abdomen and one on her wrist.   The burns were caused by holding a heated object against the skin.   The burns matched burns created by holding a hot, disposable BIC cigarette lighter to skin.   There were also numerous bruises found on L.M.'s abdomen, along with extensive bruising and tearing of the mesenteric membrane inside her abdomen.   A hemorrhage within the bowel was also found.

After finding him guilty of murder and seven counts of first-degree criminal abuse, the jury recommended that Ratliff be sentenced to fifty years' imprisonment for the murder and ten years' imprisonment on each count of criminal abuse, to run consecutively.   On May 14, 2004, the trial court followed the jury's recommendation. Double

During the trial, the trial court received a question from a juror with the following note written on the same paper:  “I have noticed several jurors sleeping during testimony.   Please do not address jury that I have informed you of this.”   Nothing in the record suggests that the trial court questioned the juror accused of sleeping.

Following the trial, a local news reporter who observed the trial contacted Ratliff's trial counsel and reported that she noticed one of the jurors had slept through a significant portion of the trial.   Based upon this information, Ratliff's trial counsel filed a CR 60.02 motion for a new trial.   In support of the request, the motion stated:

Following the trial, counsel for the defendant was contacted by Roberta Blevins, who is a reporter for a local newspaper.   Counsel was informed that Ms. Blevins had noticed that one of the jurors was asleep during a significant portion of the trial.   This matter was not raised during trial because counsel was unaware of this fact, and therefore it is not part of the record that can be considered on appeal․  As the juror was reportedly asleep, it is impossible to know which evidence she heard and which evidence she missed during the jury trial.

The motion did not request an evidentiary hearing.   No evidentiary hearing was held.   Shortly thereafter, Ratliff filed his direct appeal.

On June 15, 2006, the Kentucky Supreme Court affirmed Ratliff's convictions on direct appeal.   Notably, both issues raised here were raised or referenced in his direct appeal.

First, in his direct appeal Ratliff claimed that he had been prejudiced by a sleeping juror.   In its opinion, the Kentucky Supreme Court stated:

[A]s a threshold matter, the aggrieved party must present some evidence that the juror was actually asleep or that some prejudice resulted from that fact.   The record does not even disclose at what point during the trial the juror allegedly slept, whether during the Commonwealth's or the defense's presentation of evidence, or during closing argument by counsel, or how Appellant was harmed by the occurrence.   For a court even to entertain an objection on the basis after final judgment, a party must certainly show more than Appellant has in the case sub judice.

Ratliff v. Commonwealth, 194 S.W.3d 258 at 276 (footnotes omitted).

On May 3, 2007, Ratliff filed a pro se Kentucky Rules of Criminal Procedure (RCr) 11.42 motion claiming that his trial counsel was ineffective for failing to present evidence to support the sleeping juror claim asserted in his CR 60.02 motion for a new trial.   On April 9, 2010, the trial court held a hearing on the RCr 11.42 motion.

During the hearing, Blevins testified that she attended and observed all eight days of the trial and saw a juror, sitting on the front row, sleep during the trial.   Blevins claimed that she watched the jury throughout the trial in an effort to gauge their responses and emotions in case an opportunity for an after-the-trial story developed.   Blevins stated that she believed that the juror was asleep because the juror kept her eyes closed and would occasionally jerk when the attorneys raised their voices.   Blevins admitted that she did not watch the juror the entire time but estimated that the juror was asleep approximately 70% of the time that she observed her.

Ratliff's trial counsel also testified that the trial court notified the parties about the juror-submitted question and that everyone agreed to closely observe the jury and address the issue later if needed.   Thereafter, neither party nor the trial court raised the issue.   Ratliff's trial counsel also testified that she left the Department of Public Advocacy shortly after filing the CR 60.02 motion. Double The case was reassigned.

On appeal, Ratliff did not claim his trial counsel should have been more observant of the jury during the trial or request an inquiry into the allegations of the sleeping juror.   Following our review of Ratliff's brief, he only appears to argue that he was denied his right to effective assistance of post-conviction counsel based upon his trial counsel's failure to produce sufficient evidence of a sleeping juror, thus, warranting a new trial. Double Ratliff's brief states,

Counsel for Appellant was ineffective due to failure to present the available, credible witness Roberta Blevins to support the claim that a juror slept during significant portions of [the] trial, and was only surely awake during the prosecution's closing argument ․ Roberta Blevins was available in May and June of 2004, and would have appeared at a hearing on the new trial motion then, if called.

The Sixth Amendment guarantees criminal defendants effective legal representation at trial.  Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064 –2065, 80 L.Ed.2d (1984).   In Hollon v. Commonwealth, 334 S.W.3d 431 (Ky.2011), the Kentucky Supreme Court, guided by the U.S. Supreme Court decision in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), concluded that criminal defendants are also entitled to effective representation during an initial, direct appeal.   Nothing in Kentucky law or the U.S. Constitution, however, extends the right to legal counsel to post-conviction proceedings.

Postconviction relief is even further removed from the criminal trial than is discretionary direct review.   It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.   States have no obligation to provide this avenue of relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the state supply a lawyer as well.

Pennsylvania v. Finley, 481 U.S. 551, 556–557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987) (internal citations omitted).

In Gross v. Commonwealth, 648 S.W.2d 853,857 (Ky.1983), the Kentucky Supreme Court rejected the appellant's argument that Kentucky law provides defendants with the right to legal representation in a CR 60.02 proceeding.   The Court distinguished the right to have legal representation during RCr 11.42 proceedings from CR 60.02 proceedings based upon RCr 11.42(5), which provides, “if the movant is without counsel of record and is financially unable to employ counsel, (the court) shall appoint counsel to represent him in the proceedings, including appeal.”  CR 60.02 does not have a corresponding provision.

Ratliff did not have the right to counsel during his CR 60.02 hearing.   Therefore, his allegation that his counsel exhibited ineffective assistance of counsel by failing to produce adequate evidence in support of the CR 60.02 motion is without merit.

On direct appeal, Ratliff claimed that the trial court erred by instructing the jury on separate counts of criminal abuse related to several injuries to L.M.'s abdomen.   Ratliff argued that there was not sufficient evidence to establish the injuries were sustained in separate incidents in order to constitute separate and distinct offenses.   Although the Court disagreed with Ratliff's contention, the Court stated,

Appellant would have been entitled to an instruction requiring the jury to find whether the injury was caused by an act that was separate and distinct from the acts that caused the other injuries․  However, there was no request for such an instruction and no objection to the failure to give such an instruction.

Ratliff, 19 S.W.3d. at 273.   Now, Ratliff claims that he received deficient representation when his trial counsel failed to request a jury instruction requiring the jury to find that each injury was caused by a separate and distinct act.   Under the circumstances of this case, we disagree.

When reviewing a claim of ineffective assistance of trial counsel, we must apply a two-prong test established by the U.S. Supreme Court in Strickland v. Washington, which was adopted by Kentucky in Gall v. Commonwealth, 702 S.W.2d 37 (Ky.1985).   Under the first prong, the defendant must show trial counsel's performance was deficient.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.   The defendant must show that trial counsel's errors were so egregious that he or she was not even functioning as counsel, thus depriving the defendant of his or her Sixth Amendment right.  Id. Deficient representation is outside the wide range of professionally competent assistance.  Id. at 690, 104 S.Ct. at 2066.   We must, therefore, examine counsel's conduct in light of professional norms based on a standard of reasonableness.  Id., 466 U.S. at 688, 104 S.Ct. at 2065.   The second prong of the Strickland analysis requires the defendant to show trial counsel's deficient representation prejudiced his or her case.  Id., 466 U.S. at 687, 104 S.Ct. at 2064.

The most relevant jury instructions provide:

Count Four ․ he intentionally abused [L.M.], by repeatedly striking her on the stomach which caused the oldest set of bruising on her stomach;․

Count Five ․ he intentionally abused [L.M.], by repeatedly striking her on the stomach which caused the newest set of bruising on her stomach;  .․

Count Six:  .. ․  He intentionally abused [L.M.], by striking her on the stomach which caused the internal injuries to her stomach (tearing of the mesentery).

First, we cannot agree with the trial court's conclusion that, “[w]hether the jury found the acts of criminal abuse were separate and distinct acts or not is really not particularly relevant in this case.”   In Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky.2006), the Kentucky Supreme Court upheld the appellant's three convictions of first-degree wanton assault, which were based upon the physical abuse that he perpetrated upon his six-month-old daughter.   Each jury instruction contained similar language regarding the crime for which appellant was charged.   Like in the case at hand, the jury instructions in Schrimsher distinguished each count “from the others by a statement of the type of injury caused by each assault.”  Id. at 327.   However, in Schrimsher, “[e]ach series of instructions also contained an instruction requiring the jury, if guilt was found, to state in its verdict whether the injury resulted from an act that was separate from the acts that caused [the child's] other injuries.”  Id. at 326.   In order to protect against double jeopardy, Ratliff was entitled to a like instruction.

Nevertheless, we conclude that Ratliff failed his burden to prove 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 694, 104 S.Ct. at 2068.   The trial court correctly noted that “there was plenty of evidence to convict the Defendant of multiple counts of criminal abuse under any circumstance.”   Also, the Supreme Court stated, “These abdominal bruises, especially the interior bruising and the hemorrhage, were caused by severe blunt force trauma and were most likely sustained at different times within the four days preceding death.”  Ratliff, at 268.   Based upon the ample evidence to support each count of criminal abuse, we conclude that trial counsel's error did not prejudice Ratliff's defense.

Accordingly, the Lawrence Circuit Court order denying Ratliff's RCr 11.42 motion is affirmed.

all concur.

DIXON, JUDGE: