Dewayne Durrett v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0473-MR
DEWAYNE DURRETT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CR-001507
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, McNEILL, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Dewayne Durrett appeals the order of the Jefferson Circuit
Court denying his motion to vacate his conviction pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR)
60.02. Following a careful review of the record and the law, we affirm.
Durrett was indicted by a Jefferson County grand jury in connection
with an incident in which he shot and killed Dana Maurice Loud outside of a liquor
store in Louisville. Although Durrett claimed he shot Loud in self-defense, the
jury found him guilty of murder, tampering with physical evidence, and being a
persistent felony offender in the second degree. The jury recommended a prison
sentence of 25 years for the murder conviction and five years for the tampering
conviction to run consecutively. Durrett also pled guilty to possession of a
handgun by a convicted felon and was sentenced to five years’ imprisonment to
run concurrently with his total sentence. The trial court sentenced Durrett to a total
of 30 years’ imprisonment in accordance with the jury’s recommendations.
Durrett appealed his conviction as a matter of right under Section
110(2)(b) of the Kentucky Constitution. On August 20, 2015, the Kentucky
Supreme Court affirmed Durrett’s convictions. See Durrett v. Commonwealth, No.
2014-SC-000177-MR, 2015 WL 4979723 (Ky. Aug. 20, 2015). On June 19, 2017,
Durrett filed his first RCr 11.42 motion alleging ineffective assistance of counsel.
The trial court denied that motion by opinion and order entered on November 17,
2017.
On October 28, 2019, Durrett filed his second motion for post-
conviction relief, this time pursuant to both RCr 11.42 and CR 60.02. The trial
court denied this motion in an opinion and order entered on February 27, 2020, and
Durrett now appeals.
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We review an order denying an RCr 11.42 motion without an
evidentiary hearing for “whether the motion on its face states grounds that are not
conclusively refuted by the record and which, if true, would invalidate the
conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). A
hearing is only required if the motion raises an issue that cannot be determined on
the face of the record. RCr 11.42(5); Fraser v. Commonwealth, 59 S.W.3d 448,
452 (Ky. 2001). On appeal, we will not disturb a trial court’s findings in the
absence of clear error. Commonwealth v. Payton, 945 S.W.2d 424, 425 (Ky.
1997).
Before we reach the substance of Durrett’s arguments, we must
address the procedural issues with his motion. Although the trial court denied
Durrett’s motion on the merits of the arguments he presented, Durrett’s motion was
also denied because it was unverified, untimely, and improperly successive.
A motion filed under RCr 11.42 “shall be signed and verified by the
movant[.]” RCr 11.42(2). Failure to comply with that section warrants summary
dismissal of the motion. See Bowling v. Commonwealth, 981 S.W.2d 545, 548
(Ky. 1998). Durrett’s signature appears on the motion in multiple places, but the
only notarized signature found in the motion is the signature of Lanard Brown that
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was on the affidavit attached to the motion.1 Thus, we agree with the trial court
that Durrett’s motion was insufficiently verified and subject to dismissal under RCr
11.42(2).
Next, the trial court denied Durrett’s motion on the ground that it was
untimely. Under RCr 11.42(10), any motion filed under RCr 11.42 “shall be filed
within three years after the judgment becomes final[.]” Durrett appealed his
conviction to the Kentucky Supreme Court, which denied relief by opinion and
order rendered on August 20, 2015. Accordingly, we find no error in the trial
court’s finding that Durrett’s second RCr 11.42 motion, which was filed on
October 28, 2019, was more than one year beyond the three-year statute of
limitations prescribed by RCr 11.42(10).
The trial court also found that Durrett could have reasonably
presented all arguments raised in his present RCr 11.42 motion when he filed his
first such motion on June 19, 2017. RCr 11.42(3) provides that a movant “shall
state all grounds for holding the sentence invalid of which the movant has
knowledge. Final disposition of the motion shall conclude all issues that could
reasonably have been presented in the same proceeding.” Similarly, the trial court
noted that Durrett’s claims under CR 60.02 were not properly before the court
1
At the time he executed his affidavit, Lanard Brown was a fellow inmate of Durrett’s at the
Roederer Correctional Complex.
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because the substance of his claims could have been raised either in his direct
appeal or in his previous RCr 11.42 motion. Indeed, CR 60.02 is intended for
relief that is not available by either direct appeal or under RCr 11.42. Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). In sum, we agree with the trial
court that all of the issues Durrett raises with respect to the effectiveness of his trial
counsel could have been presented either on direct appeal or in his first RCr 11.42
motion.
Though we need not reach the merits of Durrett’s motion in light of
our determinations above, we will discuss the substance of his arguments because
the trial court denied Durrett’s motion on both procedural and substantive grounds.
Durrett based his RCr 11.42 motion on the allegation that he received
ineffective assistance of counsel. In Strickland v. Washington, the United States
Supreme Court promulgated a two-prong test to determine whether a defendant’s
trial counsel was ineffective. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). The first prong requires a defendant to show that his counsel’s
performance was deficient. Id. at 687, 104 S. Ct. at 2064. To demonstrate
deficient performance, Durrett must overcome a strong presumption that his trial
counsel’s representation fell “within the wide range of reasonable professional
assistance[.]” Id. at 689, 104 S. Ct. at 2065. The second prong of the Strickland
test requires a defendant to show that his counsel’s deficient performance resulted
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in prejudice to his defense such that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. Although a
defendant must meet both Strickland prongs to demonstrate that his trial counsel
was ineffective, a trial court need not address both prongs of the analysis if the
defendant makes an insufficient showing as to one. Id. at 697, 104 S. Ct. at 2069.
Durrett raised multiple arguments in his motion. First, he argued that
his trial counsel failed to adequately investigate his defenses, specifically, his
theory that he shot Loud in self-defense. In support of his motion, Durrett attached
an affidavit executed by Lanard Brown. In his affidavit, Brown stated that he
believed Durrett shot Loud in self-defense and that Durrett was not afforded a fair
trial because the liquor store’s security cameras were not operational at the time of
the shooting. The trial court found Brown’s affidavit unpersuasive, noting that
Brown could not have witnessed the incident in which Durrett shot and killed Loud
because Brown was incarcerated at the time of the shooting. We agree with the
finding of the trial court that Durrett’s counsel was not deficient by failing to
present Brown as a witness. In spite of Durrett’s contentions that his trial counsel
failed to investigate or contact any witnesses to the incident to support his theory
of self-defense, no amount of investigation would have uncovered Brown as a
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witness, as he simply could not have witnessed the shooting due to his
incarceration.
We also affirm the trial court’s finding that Durrett failed to
demonstrate that his trial counsel was deficient with respect to his investigation of
any other potential witnesses. As noted by the trial court in its opinion and order,
any potential witnesses other than Brown were not named in Durrett’s motion.
RCr 11.42(2) specifically provides that a motion “shall state specifically the
grounds on which the sentence is being challenged and the facts on which the
movant relies in support of such grounds.” “Conclusory allegations that counsel
was ineffective without a statement of the facts upon which those allegations are
based do not meet the rule’s specificity standard and so warrant a summary
dismissal of the motion.” Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky.
2012) (internal quotation marks omitted). Accordingly, without proof of the
identities of those additional witnesses or what mitigating testimony they may have
provided, we cannot say that Durrett’s trial counsel was ineffective for failure to
pursue additional witnesses.
Durrett next argued that his trial counsel “should [have] requested a
lesser charge than murder.” In support of this argument, Durrett pointed to a
Jefferson Circuit Court case in which a defendant charged with eight counts of
complicity to murder pled guilty to manslaughter and was sentenced to eight years’
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imprisonment. The trial court denied Durrett’s motion for relief under CR 60.02,
noting that no two cases are the same, and comparisons to an unrelated case would
not be admissible in a new trial because the outcome in that case is irrelevant to
both guilt and penalty in the present case. We find no error in this analysis and
affirm the trial court’s finding as to this issue.
Additionally, any decipherable argument that Durrett’s trial counsel
was ineffective by failing to advocate for a lesser charge is refuted by both relevant
law and the record. Assuming, arguendo, a properly articulated contention that
Durrett’s trial counsel failed to tender jury instructions that included lesser offenses
than murder, it is the duty of the trial judge, not defense counsel, to instruct the
jury on the law of the case. Prescott v. Commonwealth, 572 S.W.3d 913, 927 (Ky.
App. 2019). Even still, the proposed jury instructions proffered by Durrett’s trial
counsel included the lesser offenses of manslaughter in the second degree and
reckless homicide, as well as specific instructions regarding self-defense. Further,
the offenses in the jury instructions actually provided to the jury exactly mirrored
the offenses listed by Durrett’s trial counsel in his proposed jury instructions.
Therefore, we find no error in the representation of Durrett’s counsel in this regard.
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
opinion and order denying Durrett’s motions under RCr 11.42 and CR 60.02.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Dewayne Durrett, pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Christopher C. Bailey
Assistant Attorney General
Frankfort, Kentucky
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