Tonya Ford v. Commonwealth of Kentucky ( 2021 )

RENDERED: OCTOBER 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-0833-MR
TONYA FORD APPELLANT
ON REMAND FROM THE KENTUCKY SUPREME COURT
(FILE NO. 2019-SC-0538-DG)
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 10-CR-00162
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, LAMBERT, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: This matter is before us on remand from an opinion of
the Kentucky Supreme Court in Ford v. Commonwealth, No. 2019-SC-0538-DG,
2021 WL 3828505 (Ky. Aug. 26, 2021). The Supreme Court affirmed our
conclusion that Ford’s counsel did not render ineffective assistance on the issue of
jury instructions affecting the outcome of the proceeding. Upon holding that the
manifest injustice standard set out in Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010), did not apply to the intentional flaunting of the civil rules by defense
counsel in the formatting of his written argument, the high court reversed and
remanded on Ford’s remaining issues for consideration on their merits. Having
closely studied the record and the law, we again affirm the order of the Taylor
Circuit Court.
Facts and Procedural History
On August 24, 2012, a jury convicted Appellant of murdering her
husband, David Ford, and she was sentenced to twenty years in prison. Evidence
was adduced at trial that Appellant shot her husband, who had numerous affairs
during the marriage, in the back of his head after he told Appellant that he wanted
a divorce and that he was moving in with his latest paramour. Appellant confessed
to her mother that she committed the murder. Evidence was offered that
Appellant’s fingerprints were on a threatening note discovered near the body, and
cell phone records showed that she was in the vicinity of the murder at the time it
occurred. Witnesses testified that Appellant said she would kill David if she
discovered that he was cheating on her again.
At trial, the Commonwealth called Jerome McNear, an AT&T analyst,
who produced a propagation map of Taylor County showing where various cell
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towers were located and the areas to which they provide coverage. His testimony
placed Appellant in the general vicinity of the murder scene at the time the murder
was committed. His testimony contradicted Appellant’s earlier claim that she was
fifteen minutes away from the murder scene getting coffee at a Sonic fast food
restaurant.
Similarly, Kentucky State Police Detective Israel Slinker engaged the
services of Russ McIntyre to create a map identifying where and when calls were
made from Appellant’s cell phone. McIntyre was a Kentucky National Guard
analysist assigned to Kentucky State Police drug enforcement. At trial, and based
on McIntyre’s information, Detective Slinker offered his opinion that Appellant
was in the vicinity of the murder scene at the critical time.
Appellant’s conviction was affirmed by the Kentucky Supreme
Court.1 In June 2015, she filed a Kentucky Rules of Criminal Procedure (RCr)
11.42 motion seeking to vacate her conviction based on ineffective assistance of
counsel and prosecutorial misconduct. The Taylor Circuit Court conducted a two-
day hearing, and rendered a comprehensive order denying her motion for RCr
11.42 relief and her motion to set aside her conviction based on her claim that her
due process rights were violated and because the Commonwealth failed to produce
certain evidentiary items.
1
Ford v. Commonwealth, No. 2012-SC-000624-MR, 2014 WL 1118198 (Ky. Mar. 20, 2014).
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Ford appealed to this Court and moved for leave to exceed the 40-
page limit for her appellate brief. Ford’s first brief was returned to her as non-
compliant for exceeding the page limit. When Ford’s renewed motion to exceed
the 40-page limit was denied, Ford’s counsel filed a second appellate brief, this
time with a smaller font and narrower margins than allowed by the civil rules.
We regarded the filing of Ford’s second non-conforming brief as a
blatant attempt to circumvent the rulings of this Court and the civil rules.2 While
noting that minor formatting errors might not require redress, we determined that
2
We stated the following:
It has come to the Court’s attention that Appellant’s brief is not
in conformity with Kentucky Rules of Civil Procedure (“CR”)
76.12(4)(a)(ii). This rule requires the appellate brief to utilize 12-
point font, with a 1.5-inch margin on the left side and 1-inch
margins on all other edges. Appellant’s brief appears to employ a
font smaller than that required by the rule, with more lines per
page than can be achieved with 12-point font, and margins which
are smaller than 1.5 inches on the left and 1 inch on all other edges.
The result is that counsel has compressed more than 40 pages of
material within the 40 page limit, albeit in non-conformity with the
Civil Rules.
Appellant’s non-compliance with CR 76.12(4)(a)(ii) appears to
be intentional. It came about in the context of this Court’s denial
of her renewed motion to exceed the 40-page limit, and her first
brief having been returned to her as non-compliant. We may
reasonably conclude, then, that counsel intentionally sought to
circumvent the Civil Rules and the Orders of this Court to achieve
via purposeful non-compliance what was otherwise denied to her
by her compliance. Accordingly, we are compelled to address
counsel’s intentional non-compliance.
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Ford’s attempt to avoid this Court’s rulings did require remediation. We turned to
Hallis, which held that,
[o]ur options when an appellate advocate fails to abide by
the rules are: (1) to ignore the deficiency and proceed
with the review; (2) to strike the brief or its offending
portions, CR 76.12(8)(a); or (3) to review the issues
raised in the brief for manifest injustice only, Elwell v.
Stone, 799 S.W.2d 46, 47 (Ky. App. 1990).
Hallis, 328 S.W.3d at 696.
Rather than ignore the deficiency or strike Ford’s brief, and given the
gravity of the underlying offenses, we chose to examine the circuit court
proceeding for manifest injustice in conformity with Hallis. That review resulted
in an opinion affirming the order of the Taylor Circuit Court.
Ford, through counsel, then prosecuted a second appeal to the
Kentucky Supreme Court. In an unpublished opinion rendered on August 26,
2021, the high court affirmed – albeit for different reasons – our conclusion that
Ford’s trial counsel did not provide ineffective assistance affecting the outcome of
the proceedings as to counsel’s failure to object to the jury instructions. The Court
then opined that the manifest injustice standard set out in Hallis should be applied
solely to instances of lack of preservation, and not broadly to other violations of
CR 76. Said the high court, “[a] review of both Hallis and Elwell make clear that
the manifest injustice standard of review is reserved only for errors in appellate
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briefing related to the statement of preservation.”3 Ford, 2021 WL 3828505, at *5.
It went on to state that,
we acknowledge the apparent intentional misconduct of
Ford’s counsel. In no way should this Opinion be read to
condone such conduct or to suggest appellate courts have
no redress for this type of conduct. An appellate court,
when faced with a situation such as this, can issue a show
cause order for the offending attorney and, after a
hearing, impose contempt sanctions on the attorney if
warranted. A court can also report unethical conduct to
the Kentucky Bar Association and, in fact, may be
required to in certain circumstances pursuant to Kentucky
Supreme Court Rule 3.130(8.3).
3
Hallis addressed both a lack of preservation and a significant deviation from the formatting
standard mandated by CR 76.12. It also expressly applied the manifest injustice standard to
“rules” (plural) violations as opposed to only the “rule” (singular) requiring preservation. The
Hallis Court stated:
It is a dangerous precedent to permit appellate advocates to
ignore procedural rules. Procedural rules ‘do not exist for the mere
sake of form and style. They are lights and buoys to mark the
channels of safe passage and assure an expeditious voyage to the
right destination. Their importance simply cannot be disdained or
denigrated.’ Louisville and Jefferson County Metropolitan Sewer
Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown
v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)).
Enforcement of procedural rules is a judicial responsibility of the
highest order because without such rules ‘[s]ubstantive rights, even
of constitutional magnitude, . . . would smother in chaos and could
not survive.’ Id. Therefore, we are not inclined to disregard
Vaughn’s procedural deficiencies.
Hallis, 328 S.W.3d at 696. The Hallis Court then applied the manifest injustice standard to the
brief’s “procedural deficiencies.” Id.-6-
Ford, 2021 WL 3828505, at *6. The high court then reversed our opinion on those
issues where we employed the manifest injustice standard and remanded them to
us for adjudication.
Arguments and Analysis
The Kentucky Supreme Court affirmed our conclusion that Ford is not
entitled to RCr 11.42 relief from judgment based on her counsel’s failure to object
to the Commonwealth’s tendered jury instructions. As such, that issue is not now
before us. Ford first argues that her trial counsel made a critical error in failing to
obtain an expert to rebut the Commonwealth’s claim that Appellant’s cell phone
records placed her in the area of the murder at the time it occurred. She asserts that
Detective Slinker improperly testified to expert matters without demonstrating
qualification as an expert and that Slinker used maps produced by McIntyre that
were not disclosed to defense counsel. As the Commonwealth properly notes, this
argument is an amalgam of ineffective assistance of counsel and Brady4 violations.
In examining the ineffective assistance argument, the trial court found
that Appellant’s counsel chose not to retain a cell phone tower expert primarily
because of financial considerations. It determined that this failure was deficient
performance thus satisfying the first prong of the Strickland test.5 It also
4
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
5
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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concluded, however, that this failure did not affect the outcome of the proceedings,
and thus did not satisfy the second prong of the Strickland test.
We agree with the trial court’s reasoning on this issue. During the
RCr 11.42 hearing, Appellant gave a new story attempting to demonstrate that
while she was in the vicinity of the murder scene at the time of the murder, she was
looking at a rental house near West Saloma Road which is located near the murder
scene. The trial court characterized this claim, which was raised for the first time
after her conviction, as “unfounded and unbelievable,” and a “complete
fabrication” to provide a plausible explanation for being near the murder scene.
Thus, counsel’s failure to produce an expert cell phone tower witness did not affect
the outcome of the proceedings, as Appellant admitted to being in the vicinity of
the murder at the time it occurred. Further, such expert testimony would not have
overcome the strong circumstantial evidence, including Appellant’s admission to
her mother that she killed David. As there was no prejudice, there is no basis for
RCr 11.42 relief. Strickland, supra.
In her related argument, Appellant contends that a Brady violation
occurred when the Commonwealth failed to disclose that Russ McIntyre created
cell phone tower coverage maps that were later relied on by Detective Slinker
when Slinker testified at trial. Appellant maintains that if the Commonwealth had
disclosed McIntyre’s identity as the author of Slinker’s maps and opinion,
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reasonable counsel would have objected and had those opinions excluded at trial.
She asserts that this failure to disclose constitutes a Brady violation, because there
is a reasonable probability that the outcome of the trial would have been different
but for Detective Slinker’s testimony.
We review de novo whether the conduct of the Commonwealth
pertaining to the evidentiary issue constitutes a Brady violation. Commonwealth v.
Parrish, 471 S.W.3d 694, 697 (Ky. 2015) (citing Commonwealth v. Bussell, 226
S.W.3d 96, 100 (Ky. 2007)). Brady holds in relevant part that the prosecution’s
suppression of evidence at trial constitutes a Due Process violation if the evidence
is material to either guilt or sentencing. Evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Kyle v. Whitley, 514 U.S.
419, 433-34, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (quoting United States v.
Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)).
The question for our consideration, then, is whether Appellant has
demonstrated that the disclosure of McIntyre would have resulted in a different
verdict. We must answer that question in the negative. It is uncontroverted that
McIntyre did not testify at trial, but rather offered his opinion to Detective Slinker
during the investigative phase. Further, the trial court made a factual finding that
“the testimony of [AT&T specialist] Jerome McNear was also generally consistent
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with the preliminary work of Russ McIntyre.” The import of this finding is that
the opinions given by McIntyre to Detective Slinker during the investigation are
substantially the same as the opinion of expert witness McNear at trial. Ultimately,
we conclude that Appellant has not produced a basis for finding that a reasonable
probability exists that, but for the nondisclosure of McIntyre, the outcome of the
proceeding would have been different. The cell phone issue was but one element
of the Commonwealth’s case against Appellant, which included her threat to kill
David, fingerprint evidence, and admission of guilt to her mother. In sum, the
prejudice element of the Brady analysis cannot be shown, and we find no error.
Appellant next argues that her trial counsel was ineffective when he
failed to conduct a basic investigation of her alibi witnesses and present their
testimony at trial. She maintains that her trial counsel’s errors were compounded
by the Commonwealth’s failure to disclose an exculpatory statement of an alibi
witness and Slinker’s false testimony regarding that undisclosed statement. As
Appellant’s defense at trial centered on her claim that she was not present at the
murder scene when the crime was committed, she asserts that her trial counsel had
a duty to produce witnesses who were employed at a Sonic restaurant where
Appellant claimed to be at the time of the murder. Specifically, Appellant
maintains that her trial counsel could not recall whether he interviewed Sonic
employees Gribbons and Yocum who may have been able to testify that Appellant
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was at the Sonic restaurant shortly after 11:00 a.m. on the morning of the murder.
The substance of Appellant’s argument on this issue is that there is a reasonable
probability that absent her trial counsel’s failure to investigate Sonic employees
Gribbons and Yocum, the result of her trial would have been different. Pursuant to
Strickland, Appellant argues that she is entitled to have her conviction vacated.
Trial counsel has full authority to manage the conduct of the trial.
Commonwealth v. Tigue, 459 S.W.3d 372, 385 (Ky. 2015) (citing Taylor v.
Illinois, 484 U.S. 400, 418, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)). Defense
counsel’s reasonable investigation must not mimic the investigation of the best
criminal defense lawyer in the world, blessed with unlimited time and resources,
but rather must provide an investigation which is reasonable under the
circumstances. Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000), reversed
on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005). A defendant
is not guaranteed errorless counsel, nor counsel judged ineffective by hindsight,
but counsel who renders reasonably effective assistance. McQueen v.
Commonwealth, 949 S.W.2d 70, 71 (Ky. 1997).
In the matter before us, Appellant’s defense counsel presented two
alibi witnesses in an attempt to bolster her version of the timeline. Even if her trial
counsel called Gribbons and Yocum to the witness stand, their testimony would
have been cumulative rather than unique. And further, the other evidence against
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Appellant was compelling. When reviewing the record in its totality, we cannot
conclude that her trial counsel’s assistance was ineffective on this issue, nor that
the failure to call Gribbons and Yocum affected the outcome of the proceedings.
Strickland, supra. And while the trial court determined that the recorded interview
of Gribbons was inadvertently not provided to Appellant, there again is no
reasonable probability that it affected the outcome of the proceedings. As such, the
trial court properly found no Brady violation.
Appellant goes on to argue that her trial counsel was ineffective for
failing to object to Slinker’s testimony about the handwriting found on a
threatening note and failing to investigate the note. Additionally, she asserts that a
Brady violation occurred concerning another letter found in the victim’s truck.
A threatening note was found near David’s body. Neither the
Commonwealth nor defense counsel conducted a handwriting analysis. In
addition, Detective Slinker did not testify as to such an analysis, nor did he offer an
opinion regarding who wrote the note. Rather, Slinker testified as to his opinion
that the handwriting on the note looked disguised. At the RCr 11.42 hearing, the
trial court ruled that her trial counsel’s failure to object to Detective Slinker’s
testimony did not prejudice the proceedings against Appellant.
We find no error in this conclusion. There is no basis for concluding
that her trial counsel’s representation of Appellant was ineffective based on his
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decision not to conduct an expert analysis of the note. Arguendo, even if her trial
counsel’s decision did constitute ineffective assistance, it did not affect the
outcome of the proceedings. McQueen, supra. Further, the trial court correctly
determined that there was no Brady violation regarding another note found in
David’s truck. While this note was not turned over to Appellant’s counsel, she has
failed to demonstrate that the note – which the Commonwealth characterizes as not
exculpatory – would have had any effect on the jury’s decision to return a guilty
verdict. We find no error on this issue.
Appellant’s next argument is that her trial counsel was ineffective in
failing to object to statements made by the Commonwealth as part of its closing
argument. During direct examination at trial, Detective Slinker was asked if he
thought it “would be normal” for an innocent spouse to make a 911 call from just
outside the residence in the edge of the yard. In answering, Slinker equivocated by
saying it depended on whether a third-party gunman was in the residence, and
whether anyone was checking for signs of life from the victim. At closing
argument, the Commonwealth relied in part on this testimony by mentioning that
“most reasonable people would think” that an innocent spouse who discovered the
body would run to a neighbor’s house in case a gunman was in the residence.
Appellant now argues that her trial counsel was ineffective in failing to object to
this and related statements.
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In examining this argument at the RCr 11.42 hearing, the trial court
concluded that her trial counsel should have objected to the Commonwealth’s
statements as to what reasonable people might do when discovering a murdered
spouse. It went on, however, to find that the statements at issue had no bearing on
the outcome of the trial. This conclusion is supported by the record and the law,
and we find no error arising therefrom.
Appellant also argues that her trial counsel was ineffective for failing
to interview Carl Lusk, and that a Brady violation occurred when a recorded
interview of Lusk was not given to her. Lusk was a Taylor County Emergency
Rescue Chaplain who accompanied Appellant to the bathroom at a neighbor’s
house, and an issue arose to as whether Appellant washed her hands in the
bathroom after expressly being told not to do so in order to preserve any gunshot
residue.
Appellant’s hands were never tested for gunshot residue, and as such,
no gunshot residue results were offered into evidence. Accordingly, Lusk’s
testimony, if any, regarding whether he heard or did not hear Appellant washing
her hands in the bathroom is largely irrelevant. This is especially true in the
context of all of the evidence of guilt presented against Appellant. As Lusk’s
testimony, if any, would not have affected the jury’s verdict, there is no basis for
finding ineffective assistance of counsel nor a Brady violation. For the same
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reason, we find no error as to Appellant’s penultimate argument that her trial
counsel was ineffective for failing to explore the possibility of an alternative
perpetrator.
Appellant’s final argument is that the foregoing errors constitute
cumulative error sufficient to reverse the judgment on appeal. Citing Funk v.
Commonwealth, 842 S.W.2d 476, 483 (Ky. 1992), Appellant maintains that even if
each of the errors presented do not individually constitute grounds to vacate her
conviction, the cumulative effect of them rendered her trial fundamentally unfair
and constituted a violation of due process.
We are not persuaded that the purported individual errors are
sufficient to constitute cumulative error justifying a reversal of her conviction. As
noted by the Kentucky Supreme Court, “we have declined to hold that the absence
of prejudice plus the absence of prejudice somehow adds up to prejudice.” Brown
v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citation omitted). We find no
cumulative error.
Conclusion
For the foregoing reasons, we affirm the order of the Taylor Circuit
Court denying Appellant’s motion for RCr 11.42 relief.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Margaret A. Ivie Andy Beshear
Kelsey Doren Attorney General of Kentucky
Frankfort, Kentucky (former)
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
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