Cedric McNeil v. Commonwealth of Kentucky ( 2022 )

RENDERED: MAY 6, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1668-MR
CEDRIC MCNEIL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 12-CR-003738
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Cedric McNeil appeals from the Jefferson Circuit
Court’s order denying his pro se motion under Kentucky Rules of Criminal
Procedure (RCr) 11.42 to vacate, set aside, and correct his sentence after the trial
court only provided an evidentiary hearing on one of his numerous claims of
ineffective assistance of counsel. McNeil appeals the denial of three of his
ineffective assistance of counsel claims, including the one on which he received
the evidentiary hearing. We affirm.
On December 6, 2012, McNeil was indicted for first-degree robbery,
first-degree assault, and intimidating a participant in the legal process. McNeil
pled not guilty. At trial, the trial court granted McNeil’s motion for a directed
verdict on the intimidating a participant in the legal process charge and dismissed
that charge. After a three-day trial, the jury found McNeil guilty of first-degree
robbery and first-degree assault. As recommended by the jury, the trial court
sentenced McNeil to consecutive terms of ten years’ imprisonment for first-degree
robbery and eighteen years’ imprisonment for first-degree assault. The jury found
McNeil not guilty of being a persistent felony offender in the first degree.
McNeil filed a direct appeal, and his conviction was affirmed by the
Kentucky Supreme Court in McNeil v. Commonwealth, 468 S.W.3d 858 (Ky.
2015). We adopt the facts from McNeil, as follows:
At McNeil’s January 2014 trial, [Donna] Wheeler
testified that in mid-November 2012 she received several
hundred dollars in settlement of a law suit and that she
used some of the settlement proceeds to reserve a week’s
lodging for herself and [Candra] Rose at the Louisville
Manor Inn on Dixie Highway in the Shively area of south
Louisville. A couple of days before, she and Rose had
struck up an acquaintanceship with a man who
introduced himself as “B,” and in the interim Wheeler
had used Rose’s phone to exchange a number of text
messages with her new acquaintance. Wheeler testified
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that one of the first things she did upon taking up
residence at the hotel was to invite “B” to come visit.
According to Wheeler, “B” arrived that first
evening while Rose was in the shower. Wheeler left the
room briefly to buy drinks from a vending machine, and
when she left the room, she testified, her purse was on
the bed. Soon after Wheeler returned from the vending
machines, Rose emerged from the bathroom, and Rose
testified that as she came into the main room she saw “B”
leaving the room with one of his hands held inside the
front of his jacket, as though he was concealing
something there. She called out to “B” to wait for a
minute; exclaimed to Wheeler, “He’s got your purse;”
and when “B” began to run, ran after him out of the room
and down the stairs. Both women chased “B” to the
parking lot where he locked himself in his car.
Wheeler testified that she pounded on the driver’s
window demanding that “B” give back the purse, and
Rose testified that she stood in front of the car and looked
directly into “B’s” eyes. He told her to move; she told
him to surrender the purse. Rose testified that “B” drove
slowly forward and forced her to back up a few steps, but
that when she continued to block his path and to look into
his eyes he suddenly accelerated and knocked her down.
She testified that she became lodged beneath the car, was
dragged for several feet, and was only “spit out” when
“B” finally stopped, backed up a bit, and drove forward
again with enough momentum to get over a speed bump.
...
The incident was witnessed by another person who
was pulling into the parking lot at the time, and it was
recorded by three hotel security cameras. The witness
described and the videos depicted a driver every bit as
callous as the person Wheeler and Rose claimed stole
Wheeler’s purse, but neither the witness nor videos could
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give the jury more than a very general idea of what the
driver looked like.
To prove that the driver was McNeil, the
Commonwealth presented testimony by its investigators
to the effect that one of the phone numbers Wheeler used
to contact “B” turned out to be a Cricket company
number, which, upon inquiry at a local Cricket outlet,
was found to be registered to McNeil. Having made that
discovery, the officers prepared a “photo pack,” – an
array of six photos, McNeil’s and five others similar to
his – which the officers then showed, separately, to
Wheeler and to Rose. Both women picked out McNeil’s
photo from the array as very likely the person who had
robbed them, and both women testified at trial that the
defendant in the courtroom, McNeil, was that person to a
virtual certainty. McNeil did not testify, but through
cross-examination and argument he attempted to cast
doubt on those identifications.
Id. at 861-62.
Following his unsuccessful direct appeal, McNeil filed a pro se
motion under RCr 11.42. As grounds, he claimed numerous instances of
ineffective assistance of counsel. In an order entered March 16, 2017, the trial
court granted McNeil an evidentiary hearing on the issue of whether his trial
counsel was ineffective for failing to investigate possible alibi witnesses but denied
his motion in all other respects. The trial court appointed counsel to represent
McNeil on September 14, 2018.
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At the May 28, 2019 evidentiary hearing, McNeil and his trial counsel
testified. On October 4, 2019, the trial court entered an order denying McNeil’s
motion.
“In reviewing an RCr 11.42 proceeding, the appellate court reviews
the trial court’s factual findings for clear error while reviewing the application of
its legal standards and precedents de novo.” Ford v. Commonwealth, 628 S.W.3d
147, 156 (Ky. 2021). “To prevail on an RCr 11.42 motion, the movant must
convincingly establish he was deprived of some substantial right justifying the
extraordinary relief afforded by the post-conviction proceeding.” Bratcher v.
Commonwealth, 406 S.W.3d 865, 869 (Ky.App. 2012).
The basis of McNeil’s RCr 11.42 motion is his claim of ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), sets forth the standard by which we measure such claims.
Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985). “This standard is two-
pronged. The defendant must show that: (1) trial counsel’s performance was
deficient, and (2) trial counsel’s deficient performance prejudiced him.” Ford, 628
S.W.3d at 156.
On appeal, McNeil argues the trial court erred in denying his RCr
11.42 motion based upon ineffective assistance of counsel because his trial
counsel: (1) failed to investigate and present favorable alibi witness testimony at
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trial; (2) failed to investigate a second telephone number found on the victim’s cell
phone; and (3) failed to independently investigate or interview Wheeler. He also
argues the trial court erred by not granting him an evidentiary hearing on his
second and third claims.
McNeil first argues his trial counsel was ineffective by failing to
investigate and present favorable alibi witness testimony at trial. He stated in his
memorandum in support of his RCr 11.42 motion that he informed his trial counsel
in their initial meeting about three alibi witnesses: Antonio Johnson, Johnson’s
paramour, and Johnson’s paramour’s female companion. He stated they would
testify he was with them at Johnson’s apartment in the “3rd Street area of the South
End of Louisville” on the night in question. After the evidentiary hearing and
briefing by the parties, the trial court concluded there was no credible evidence to
support McNeil’s claim.
“As a reviewing court, on this RCr 11.42 appeal, we must defer to the
findings of fact and determinations of witness credibility made by the trial judge.
Thus, unless the trial court’s findings of fact are clearly erroneous, those findings
must stand.” Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007) (citations
omitted).
At the evidentiary hearing, McNeil’s trial counsel testified that he
discussed trial strategy with McNeil with the defense centered around mistaken
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identity because McNeil denied he was at the hotel when the offenses occurred.
Trial counsel explained the defense also involved challenges to the photo pack and
to testimony by Wheeler and Rose in which they identified McNeil as the
perpetrator, and the defense also highlighted the lack of physical evidence tying
McNeil to the crimes. Trial counsel testified that alibi witnesses would have
supported the mistaken identity defense and that he could have followed up on any
information relating to alibi witnesses had he been informed of them. Trial
counsel, however, testified he had no recollection of McNeil informing him of
possible alibi witnesses.
Trial counsel further testified he had created a system for handling
cases due to the volume of cases he was assigned. The system included, among
other things, taking notes of conversations with clients. Based upon his use of this
system, trial counsel testified he was “sure” he visited McNeil in jail, spoke to
McNeil on the phone, and wrote McNeil letters, but he could not provide specifics
as to those events without reviewing his file.
In contradiction of trial counsel’s testimony, McNeil testified that he
did not meet trial counsel until a scheduled court appearance in July 2013 and did
not get to speak to his counsel again until another scheduled court appearance in
September 2013, and then did not speak to counsel again in person until his first
day of trial. McNeil denied that trial counsel came to see him at the jail at any
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point prior to his trial and stated that they never really had a chance to
communicate.
McNeil testified that it was at the July 2013 court appearance that he
told trial counsel about two alibi witnesses, Antonio Johnson and his paramour,
Christy, but that his trial counsel failed to investigate them. McNeil testified he
did not mention his alibi witnesses to trial counsel again after their initial meeting,
and he did not put any information relating to his alibi witnesses in writing to trial
counsel despite writing to him three or four times. McNeil admitted he did not
inform his prior trial counsel about the alibi witnesses.
McNeil obtained a copy of the file prior to the hearing, but trial
counsel was not given an opportunity to review it. The only document McNeil
introduced from the file was a December 2013 letter from trial counsel in which he
explained to McNeil about his busy trial schedule and stated: “I have not forgotten
about your case.” Therefore, McNeil failed to provide any evidence from the file
to support his claim that he had informed trial counsel about these alibi witnesses.
None of McNeil’s alibi witnesses testified at the evidentiary hearing, so it was
unclear whether they could be located or whether they would have in fact provided
McNeil with an alibi.
The trial court, in denying McNeil’s RCr 11.42 motion, cited
McNeil’s testimony at the evidentiary hearing that, after the close of proof at trial,
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he remembered the jury submitting a question about where he was at the time of
the offense. McNeil testified he recalled the trial judge stating, outside the
presence of the jury, that the jury was required to reach its verdict based upon the
evidence presented during the trial.
In determining there was no credible evidence that McNeil gave trial
counsel the alibi witness information, the trial court stated:
The Court finds that it is highly unlikely and not credible
that [trial counsel], given timely information about an
alibi witness, would have failed to record or pursue that
information, given that fact that the defense which he and
Movant intended to pursue was one of a mistaken
identification. Any testimony of a credible alibi witness
would have supported the chosen defense. The Court
finds it highly probable that Movant’s allegation of an
alibi witness was prompted by the juror’s question about
where Movant was at the time of the offense, and may
explain Movant raising the contention now, and for the
first time according to [trial counsel’s] recollection.
Because the Court finds that there is no credible evidence
that the alibi witness information [w]as given to [trial
counsel], there is therefore no basis for an ineffective
assistance of counsel claim based on such.
After carefully reviewing the proof submitted at the evidentiary hearing, we
conclude the trial court’s finding that McNeil did not inform his trial counsel about
the alibi witnesses is not clearly erroneous. Given the contrary testimony, the trial
court was entitled to decide who to believe and chose to believe trial counsel over
McNeil.
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Based upon this finding, we further conclude the trial court did not err
in ruling McNeil failed to overcome the strong presumption that his trial counsel
performed reasonably and effectively. Counsel’s performance was not deficient
for failing to investigate witnesses of whom he had no reason to be aware. As
noted in Strickland, 466 U.S. at 691, 104 S.Ct. at 2066:
The reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s
own statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices made
by the defendant and on information supplied by the
defendant. In particular, what investigation decisions are
reasonable depends critically on such information.
McNeil’s second argument is that his trial counsel was ineffective for
failing to investigate a second phone number found in the victim’s cell phone log
and that the trial court erred in denying this claim without an evidentiary hearing.
Specifically, McNeil argues Wheeler initially gave the police two phone numbers
she believed belonged to the suspect, and this second number was, therefore, the
key to identifying the real “B.”
In denying McNeil’s claim on this ground, the trial court determined
McNeil failed to establish the second prong under Strickland – that he was
prejudiced by his trial counsel’s failure to investigate:
To the extent that trial counsel may have failed to try to
procure records of the second cellphone number, Movant
has not established that the outcome would likely have
been different had the owner of that number been found.
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Wheeler carried on an extensive text message
conversation with “B” at a cellphone number linked to
Movant, which culminated in “B” coming to the motel
room shortly after a text message. Both Wheeler and
Rose identified Movant in photo packs as the likely
perpetrator, and both positively identified him in open
court. Given Movant’s known link to the number, it is
mere speculation that the owner of another cellphone to
which Wheeler communicated would have been
identified as the perpetrator. Movant has not established
that but for counsel’s failure to investigate the records of
an additional cellphone, the outcome likely would have
been different.
We agree with the trial court’s conclusion and rationale.
“A perfect trial is never required. What is required is a fair trial.”
Stanford v. Commonwealth, 854 S.W.2d 742, 748 (Ky. 1993). “The critical issue
is not whether counsel made errors but whether counsel was so thoroughly
ineffective that defeat was snatched from the hands of probable victory.” Haight v.
Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001), overruled on other grounds by
Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). Here, there was
substantial evidence to support the jury’s verdict.
Also, McNeil is not airing a known grievance. Instead, he speculates
that investigating this second number would have helped his case. This is evident
from his use of words such as “perhaps” or “likely” when discussing whether the
investigation into this second number would have revealed the perpetrator. “A
claim that certain facts might be true, in essence an admission that [a]ppellant does
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not know whether the claim is true, cannot be the basis for RCr 11.42 relief.” Mills
v. Commonwealth, 170 S.W.3d 310, 328 (Ky. 2005), overruled on other grounds
by Leonard, 279 S.W.3d at 159. See Gilliam v. Commonwealth, 652 S.W.2d 856,
858 (Ky. 1983).
McNeil’s third argument is that his trial counsel was ineffective for
failing to investigate or interview Wheeler regarding why, in her initial statement
to the police, she characterized the suspect, “B,” as a friend of Rose’s ex-boyfriend
and that an evidentiary hearing should have been held on this issue. McNeil argues
that interviewing Wheeler would have enabled his trial counsel to impeach her on
this statement, which he states she denied making at trial. The trial court
summarily denied this claim because McNeil again failed to show how he was
prejudiced by his trial counsel’s failure to investigate any such inconsistency.
We note that McNeil provided no record citation to Wheeler’s denial
of her prior statement. “It is well-settled that an appellate court will not sift
through a voluminous record to try and ascertain facts when a party has failed to
comply with its obligation . . . to provide specific references to the record.” Parker
v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). See Kentucky Rules of Civil
Procedure (CR) 76.12(4)(c)(iv). In our review of the record, we did not find
where, at trial, Wheeler denied her prior statement that the suspect was a friend of
Rose’s ex-boyfriend. Because it appears the denial upon which McNeil bases this
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claim did not occur at trial, his claim is refuted by the record, and the trial court
properly denied it.
Even if, as McNeil argues, Wheeler denied this prior statement, we
agree with the trial court that he failed to show how any failure by his trial counsel
to investigate or to aggressively cross-examine Wheeler on her characterization of
“B” as a friend of Rose’s ex-boyfriend prejudiced him. Wheeler testified at trial
she did not know McNeil well, as she had only briefly met him on two prior
occasions. It is doubtful that any confusion Wheeler may have had with respect to
“B” being a friend of Rose’s ex-boyfriend would have seriously impacted her
credibility. Most important, however, is the fact that the jury’s verdict is supported
by substantial evidence in that both Wheeler and Rose identified McNeil in open
court with absolute certainty as the man who, after carrying on an extensive text
message conversation with Wheeler, came up to their hotel room, stole Wheeler’s
purse, and ran over Rose with his car. This could be true even if McNeil did not
go by the name “B” or if he was not a friend of Rose’s ex-boyfriend, as Wheeler
told the police.
Accordingly, the trial court did not err in denying McNeil evidentiary
hearings on the second and third issues as an evidentiary hearing is only required
when the allegations, if true, would warrant relief. Fraser v. Commonwealth, 59
S.W.3d 448, 452 (Ky. 2001). As explained above, the trial court correctly ruled
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that McNeil failed to show he was prejudiced by any such failure by his trial
counsel to investigate these issues. Because McNeil failed to show he was entitled
to relief under RCr 11.42, the trial court properly dismissed these claims without a
hearing. Fraser, 59 S.W.3d at 452; RCr 11.42(2).
For the foregoing reasons, we affirm the order of the Jefferson Circuit
Court denying McNeil’s RCr 11.42 motion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Whitney Wallace Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky
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