JOHN COLLINS APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

JOHN COLLINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–002105–MR

Decided: May 24, 2013

BEFORE:  MAZE, STUMBO AND VANMETER, JUDGES.

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Appellant, John Wayne Collins, appeals the Clay Circuit Court's denial of his RCr 11.42 motion following his 2010 conviction and sentence for the murder of Stevie Collins and the kidnapping and murder of Christa Wilson.   Finding no error on the part of the trial court in its denial of Appellant's motions, we affirm.

Background

The facts surrounding the genesis of this case were best stated by our Supreme Court in Appellant's 2010 direct appeal.   Hence, we quote, in relevant part, its recitation of these facts:

On October 10, 2004, Appellant and his girlfriend, Christa Wilson, were visiting Appellant's father, Harold Wayne Collins, and then-stepmother, April Sizemore Collins.   Another friend, Natasha Saylor, was also present.   Everyone was on the porch of the home, visiting and drinking, when Stevie Collins pulled into the driveway, exited his vehicle and approached the porch.   Stevie Collins extended an invitation for them to accompany him to church, and Appellant's father invited Stevie into the house.   Appellant's father then shot Stevie in the face, whereupon Stevie fell to the floor and began pleading for his life.   Appellant told his father that they could not let Stevie leave there.   Appellant's father agreed and instructed Appellant to finish the job.   Appellant retrieved his own gun and shot Stevie seven or eight times more, killing Stevie․  After the shooting, the group left in three different vehicles and met up again at a relative's house in Henry County․

Meanwhile, police were dispatched to the murder scene.   Kentucky State Police Detective, John Yates, one of the investigating officers, testified that one 9mm round was discovered on the front porch and eight SKS rounds were found in the yard on either side of the porch.   Later, when Appellant's father was arrested, a 9mm handgun was retrieved from his vehicle.   Ammunition fitting the description of the ammunition retrieved from Stevie Collins's body was found in Appellant's vehicle.   However, lab results on the weapons were inconclusive.

Although Appellant's girlfriend, Christa Wilson, Appellant's stepmother, April Sizemore Collins, and Natasha Saylor all repeatedly denied any knowledge of Stevie Collins's murder during the initial police investigation, both Natasha and April testified at trial to a substantially similar version of events, consistent with the factual summary set out hereinabove.   Both also testified that they initially lied to the police because they had been threatened not to speak of Stevie Collins's shooting.   April had been threatened by her then-husband, [Harold Collins], while Natasha had been threatened by both Appellant and [Harold Collins].

Forty days after Stevie Collins was murdered, the body of Christa Wilson was found face down in a creek.   She died from a gunshot wound to the head.   Christa had last been seen with Appellant.   Paint that was discovered on a rock near Christa's body appeared to have been the result of a vehicle scraping the rock, and Appellant's vehicle appeared to have been damaged in the rear bumper area.

Collins v. Commonwealth, 2008–SC–000107–MR, 2010 WL 2471839 (Ky.2010).

At the beginning of trial, the Commonwealth made a twenty-minute opening statement in which it recounted for the jury the following:

[During their initial investigation,] police officers did not arrest Harold Collins or John Wayne Collins at that time for this murder.   However, they began to ask questions and they immediately knew, because the detective had had the conversation with Harold Collins there and Harold Collins immediately asked for his lawyer ․ and we immediately had reason to know these were the ones involved but no arrests were made․

Later, during Detective Yates's testimony, the Commonwealth asked him what events occurred during his initial investigation of the murder.   Detective Yates recalled, among other events, that he encountered Harold Collins at his home and briefly spoke to him.   The following testimony ensued:

Det. Yates:  [Harold Collins] advised me that he had been out visiting and had returned to his residence and had seen the police and the ambulance and not knowing what was going on had pulled into his son's residence․  Later in the evening, Harold Collins came to his own residence․

Commonwealth:  And in fact you – did he tell you that if you wanted to talk to him or his son any more you would have to talk to his lawyer first?

Det. Yates:  Yes, sir, that's what he advised me.

Appellant's trial counsel did not object to this exchange.   Prior to trial, Harold Collins, who was tried separately, had invoked his right to silence and was unavailable to testify at Appellant's trial.

Following these statements, the aforementioned testimony and the conclusion of the trial, the jury convicted Appellant of the murders of Stevie Collins and Christa Wilson.   The trial court sentenced Appellant to life in prison without the possibility of parole for twenty-five years.   Appellant appealed his conviction to the Kentucky Supreme Court, which affirmed the conviction.   See Collins, supra.   Appellant then filed a pro se motion pursuant to RCr 11.42, alleging in an unverified petition that several errors were made by his trial counsel.   The trial court appointed counsel for Appellant who filed a supplemental motion asserting several more allegations of ineffective assistance, some of which are raised on appeal and addressed below.   After review, the trial court denied Appellant's motion without the benefit of an evidentiary hearing.   The trial court reasoned that the Commonwealth's mention of Harold Collins's statement to Detective Yates, and Detective Yates's testimony to the same, was brief and extremely unlikely to have affected the outcome of the trial given the amount of other evidence against the Appellant.   The trial court further concluded that both of Appellant's attorneys “demonstrated considerable ability.”   This appeal of the trial court's ruling follows.

Standard of Review

The circuit court's findings regarding claims of ineffective assistance of counsel are mixed questions of law and fact and are reviewed de novo.  Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky.2008) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6 th Cir.1997)).   The reviewing court may set aside the trial court's fact determinations if they are clearly erroneous.  Id. (citing CR 52.01).

Analysis

“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”   Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.

Id. at 687.   The defendant bears the burden of identifying specific acts or omissions alleged to constitute deficient performance.  Id. at 690.   To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. at 694.   Generally, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.  Id.

In determining the necessity of a hearing on allegations made in an RCr 11.42 motion, a trial court must find whether there are material issues alleged which cannot be conclusively resolved, i.e., conclusively proved or disproved, by examination of the record.  Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky.2001) (citing to Stanford v. Commonwealth, 854 S.W.2d 742, 743–44 (Ky.1993), cert. denied, 510 U.S. 1049 (1994), and Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967)).  “The trial judge may not simply disbelieve factual allegations in the absence of evidence in the record refuting them.”   Id. at 452–53 (citing to Drake v. Commonwealth, 439 F.2d 1319, 1320 (6 th Cir.1971)).   Furthermore, where the trial court has denied an RCr 11.42 motion without a hearing, a reviewing court's review is confined to whether the motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.   See Baze v. Commonwealth, 23 S.W.3d 619 (Ky.2000) (citing to Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967)).

In the present case, Appellant alleges several grounds for his RCr 11.42 motion.   His first claims surround the various statements by Harold Collins whom Appellant alleges invoked his right to silence and to counsel and whose statements the prosecution referenced in its opening statement and in testimony from Detective Yates.   Appellant argues that his counsel's failure to object to mention of Harold Collins's statements, to object to the testimony regarding that statement and to file motions in limine seeking exclusion of the statement constituted defective performance and prejudiced his defense.   Appellant also contends that his trial counsel failed to object to the use of hearsay testimony, and further opened the door to such evidence and was therefore ineffective.

Again, to judge whether trial counsel was ineffective, we must first look to whether Appellant's trial counsel's actions or failures to act were so obviously impermissible under the law that counsel's failure to object was outside the range of professional norms.

I. Commonwealth's Use of Harold Collins's Statement to Police

Appellant correctly states that trial courts may not permit punishment for the exercise of a constitutional right such as the exercise of the rights to silence and to an attorney.   See Griffin v. California, 380 U.S. 609, 613–14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).   Mention of a defendant's invocation of these rights is forbidden, Williams v. Commonwealth, 287 Ky. 596, 154 S.W.2d 724 (1941), and violates a defendant's rights when it was “manifestly intended to be, or was of such character that the jury would necessarily take it to be, a comment upon the defendant's failure to [speak], or invited the jury to draw an adverse inference of guilt from that failure.”  Ragland v. Commonwealth, 191 S.W.3d 569, 589–90 (Ky.2006) (citing to Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky.1992) (overruled on other grounds )).   In looking first to the Commonwealth's mention of Harold Collins in its opening statement, we are required to view the statement in context, and “if there is another, equally plausible explanation for a statement, malice will not be presumed and the statement will not be construed as comment on the defendant's [invocation of his rights].”  Ragland, 191 S.W.3d at 589–90.

Appellant cites to the Supreme Court's very recent decision in Ordway v. Commonwealth, 391 S.W.3d 762 (Ky.2013), to support his argument that “silence cannot be used to show that a defendant did not act in self-defense.”   While Ordway indeed stands for this proposition, Ordway is factually and legally distinguishable, and therefore inapplicable, to the present case.   In Ordway, the Supreme Court reversed the defendant's conviction after a police detective was permitted to testify regarding the defendant's post-arrest, pre-Miranda invocation of silence and that it indicated a motive other than self-defense.   The Court found this testimony “highly prejudicial,” not on grounds related to constitutionality, as Appellant seems to imply, but because the testimony was irrelevant.   In fact, the Court ruled that because the defendant made his statement before he had been told of his right to silence, it was otherwise constitutionally admissible.   Harold Collins was not in custody when he made his statement and his statement has not been challenged for its relevancy.   Therefore, we derive little assistance from Ordway and elect as our guide the above-cited rule found in Ragland.

Taken in the context of the surrounding statements and the Commonwealth's opening statement as a whole, another “equally plausible explanation for the statement” emerges.   The Commonwealth was describing to the jury the chronology of events surrounding Stevie Collins's death and the investigation that followed.   The Commonwealth's mention of Harold Collins's brief encounter with Detective Yates was accurate and was not repeatedly or emphatically stated to the jury.   Nothing in this brief and benign statement showed malice on the part of the Commonwealth and nothing in the statement invited the jury to infer Appellant's guilt from that statement.   The Commonwealth was simply introducing the facts of the case to the jury and nothing more.   For these reasons, the Commonwealth's mention of Harold Collins's statement during its opening statement was not malicious and was therefore not constitutionally forbidden.

For this reason, it cannot be said that trial counsel's failure to object to use of Harold Collins's statement or her failure to seek exclusion of the statement through motions in limine was deficient.   Furthermore, even if counsel's performance was somehow deficient, given the wealth of evidence provided at trial from other sources and not subject to such objections, such deficiency did not change the outcome of Appellant's trial.   Appellant's claim for ineffective assistance of counsel based on the Commonwealth's mention of his father's statement to Detective Yates fails at least one crucial factor of the Strickland analysis, if not both.   Therefore, we agree with the trial court that, not only is there an insufficient legal basis for Appellant's RCr 11.42 claims, but also that those claims are adequately refuted by the video record which demonstrates the Commonwealth's benign use of Harold Collins's statement.

II. Alleged Hearsay Testimony

Appellant also contends that his trial counsel was ineffective in failing to object, and also opening the door, to what he claims was “testimonial” hearsay evidence in violation of his constitutional right to confront witnesses.   Appellant first claims that a voicemail message from Harold Collins threatening April Collins and acknowledging the murder of Christa Wilson should have been objected to by trial counsel.   Appellant also argues that trial counsel inexcusably failed to object to Tish Saylor's testimony regarding Harold Collins's instruction to him to “finish off” Stevie Collins.   We disagree with Appellant regarding both statements.

Testimonial hearsay is impermissible under the Sixth Amendment when the statement was made by a witness “who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”  Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004).   The Supreme Court has most recently defined “testimonial evidence” as evidence “created solely for an ‘evidentiary purpose,’ made in aid of a police investigation.  Bullcoming v. New Mexico, 131 S.Ct. 2705, 2716, 180 L.Ed 2d 610 (2011).   The same Court found statements by a witness to police to be testimonial when “the circumstances objectively indicate that there is no ․ ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.  Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273–74, 165 L.Ed.2d 224 (2006).   Where a statement is deemed to be testimonial, it is inadmissible regardless of whether it is admissible under hearsay rules.  Turner v. Commonwealth, 248 S.W.3d 543 (Ky.2008).   However, where non-testimonial hearsay is at issue, states are free to use their hearsay rules.   See Crawford, supra, at 68.

The other statements of which Appellant complains – Harold Collins's threatening voice message to April Sizemore urging her to lie to police and Harold Collins's instruction to Appellant to finish the victim off – are non-testimonial.   Appellant might well have had a case that they are testimonial if Harold had provided all three statements to police during their investigation of the case, but he did not.   Harold Collins made one statement to Appellant during the crime and the other to April Sizemore after the crime in an effort to obstruct, not aid, the on-going investigation.

Furthermore, we strongly disagree with Appellant when he states, “[w]ithout this testimonial hearsay there would have been virtually no evidence that implied culpability on the part of John.” Even if these statements were testimonial in nature and it could be said that trial counsel was deficient in not objecting to them, the exclusion of three statements by Harold Collins would not have produced a different result in a trial concerning Appellant's guilt or innocence.   Regardless of whether the jury was told about Harold's instruction to Appellant to finish Stevie Collins off, the jury heard two witnesses testify that they saw Appellant then shoot Stevie Collins several more times at point blank range.   Similarly, regardless of whether the jury was told of Harold Collins's threatening messages acknowledging Christa Wilson's death, the jury still heard evidence that Appellant was with Christa before she died, that he had the motive and opportunity to kill her and that physical evidence placed him at the scene of her murder.   Given the plethora of other evidence against Appellant, the record indicates that, even without the statements Appellant claims his counsel failed to exclude, their inclusion did not prejudice Appellant's defense.

Appellant's further alleges that his trial counsel prejudiced his defense when she opened the door to hearsay evidence during her cross-examination of April Sizemore.   The Commonwealth contends that April's testimony regarding Harold Collins's message threatening her if she spoke of Stevie Collins's death and mentioning Christa Wilson's death was not hearsay, because it was offered not to prove Appellant's guilt, but simply to show that she was intimidated and why she initially lied to police.   This may well be the case, as the video record reflects that the Commonwealth was seeking to preemptively rehabilitate April Sizemore's credibility by establishing a good reason why she lied to police previously – because she had been threatened.   However, we find another, more compelling reason why Appellant's argument on this point must fail.

“A party cannot invoke [CR 59.05] to raise arguments and introduce evidence that could and should have been presented during the proceedings before the entry of the judgment.”  Givens v. Commonwealth, 359 S.W.3d 454, 466 (Ky.App.2011) (quoting Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky.App.1997)).   Appellant's allegation regarding his trial counsel's opening the door to certain hearsay testimony first appeared in his CR 59.05 motion following denial of his RCr 11.42 motions.   He failed to assert it in his motion for a new trial and in both his original and supplemental RCr 11.42 motions when it is clear he would have had knowledge of the facts surrounding such an alleged error at the time those motions were filed.   Therefore, Appellant was barred from bringing this novel argument at the late stage of his CR 59.05 motion and the trial court was well within its discretion when it denied him relief on that basis.

Finally, we disagree with Appellant's contention that the cumulative effect of his trial counsel's alleged errors was deficient and prejudiced his defense.   As we have concluded that the trial record clearly refutes evidence of such deficiency and such prejudice, we also find no evidence of errors the cumulative effect of which impacted Appellant in any way.

Conclusion

Our review of the record, like that of the trial court, finds two capable, active and knowledgeable attorneys working in Appellant's defense.   The grounds which Appellant provides for his claim that these attorneys were constitutionally deficient are insufficient.   We find no deficiency in their defense of Appellant and we find no prejudice any such deficiency could have caused Appellant's case.   Most importantly, the record clearly refutes any claims to the contrary and the trial court was within its discretion in finding against Appellant without the benefit of an evidentiary hearing.   Therefore, the finding of the Warren Circuit Court is affirmed.

ALL CONCUR.

BRIEFS AND ORAL ARGUMENTS FOR APPELLANT:

Joshua A.K. McWilliams

Department of Public Advocacy

Frankfort, Kentucky

BRIEF AND ORAL ARGUMENTS FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Joshua D. Farley

Assistant Attorney General

Frankfort, Kentucky

MAZE, JUDGE: