Jeremy Browning v. Commonwealth of Kentucky ( 2021 )

RENDERED: OCTOBER 1, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0195-MR
JEREMY BROWNING APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
v. HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 10-CR-00478
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MAZE, JUDGES.
CLAYTON, CHIEF JUDGE: Jeremy Browning appeals from a Bullitt Circuit
Court order denying his motion for relief under Kentucky Rules of Criminal
Procedure (RCr) 11.42. Browning argues that he was denied his Sixth Amendment
right to effective trial counsel. On April 19, 2021, the Commonwealth filed a
motion to hold Browning’s appeal in abeyance pending finality in Ford v.
Commonwealth, No. 2019-SC-0538-DG, 2021 WL 3828505 (Ky. Aug. 26, 2021).
The motion was granted by order of this Court on May 5, 2021. On September 20,
2021, the Commonwealth notified the Court that the opinion in Ford had become
final and moved to return Browning’s appeal to the active docket. This Court
accordingly returned the case to our active docket. Having reviewed the record
and applicable law, we affirm the order of the trial court.
Browning was convicted by a jury of two counts of unlawful
transaction with a minor in the first degree, sexual abuse in the first degree, incest,
and being a persistent felony offender in the second degree. He received a total
sentence of seventy years. His convictions were affirmed on direct appeal.
Browning v. Commonwealth, No. 2012-SC-000422-MR, 2013 WL 4680486 (Ky.
Aug. 29, 2013). The opinion of the Kentucky Supreme Court set forth the
underlying facts of the case:
Browning and his wife, Nicole, lived with their
four children and Nicole’s parents in a double-wide
trailer. At some point in 2010, Nicole became suspicious
that the relationship between Browning and their pre-
teenage daughter, G.B., had become inappropriate. To
determine if anything inappropriate was taking place,
Nicole purchased a digital audio recorder, which she
placed under the couple’s bed.
On October 19, 2010, Nicole left the house with
three of the couple’s children, leaving Browning and
G.B. behind. Before leaving, Nicole turned on the audio
recorder. At some point after she returned home, Nicole
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retrieved the recorder and listened to what had been
recorded.
On October 22, 2010, Nicole took the recording,
which she believed contained evidence of Browning’s
inappropriate behavior, and G.B. to the Bullitt County
Sheriff’s office. Officers listened to the recording and
two social workers interviewed G.B. During the course
of the interview, G.B. stated that she and Browning had
engaged in oral sex on a number of occasions and that
Browning had unsuccessfully tried to penetrate her
vagina twice. Based on this information, sheriff’s
deputies arrested Browning[.]
Id. at *1.
Following his arrest, Browning signed a waiver of his Miranda
rights,1 spoke with police officers at length, and confessed. Id. at *6. He thereafter
gave a recorded statement to the police in which he admitted that he engaged in
oral sex with G.B. on a number of occasions, fondled her, and attempted to
penetrate her vagina with his penis. Id.A trial was held from October 6 to 7, 2011. Following a series of
disputes over the timeliness and completeness of the discovery provided to the
defense by the Commonwealth, the court declared a mistrial. Browning’s counsel
filed a motion to suppress his recorded statement to police which the trial court
denied. A new trial was held from March 13 to 15, 2012. The evidence introduced
1
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), police
officers are required “to advise suspects of their rights against self-incrimination and to an
attorney prior to subjecting them to custodial interrogation.” Greene v. Commonwealth, 244
S.W.3d 128, 135 (Ky. App. 2008).
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by the Commonwealth included the audio recording that Nicole had secretly made
of Browning and G.B., and G.B.’s testimony identifying the sounds on that
recording as those of her father abusing her. The Commonwealth also introduced
the recorded portion of Browning’s self-incriminating statement to the police. The
jury convicted Browning of all charges.
Browning filed his RCr 11.42 motion to vacate, correct, or set aside
his conviction and sentence on December 10, 2016, raising multiple claims of
ineffective assistance of counsel. At the hearing, Browning’s trial counsel testified
that the Commonwealth offered Browning a twenty-year sentence in exchange for
a guilty plea which she strongly advised him to accept, based on her experience of
Bullitt County juries, and warned him that he was facing a maximum sentence of
seventy years. She also sent a letter to be placed in his file stating that he had
insisted on going to trial against her advice. The trial court entered an order
denying the motion and this appeal followed. Further facts will be discussed
below as necessary.
The test for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). It
has two components which must both be met. “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
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defendant by the Sixth Amendment.” Id. “Second, the defendant must show that
the deficient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.When, as in this case, an evidentiary hearing is held, we review “the
trial court’s findings of fact under the clearly erroneous standard set forth in
Kentucky Rules of Civil Procedure (CR) 52.01. Findings of fact are clearly
erroneous if they are not supported by substantial evidence. Even though claims of
ineffective assistance of counsel are subject to de novo review, a reviewing court
should defer to the determination of facts made by the trial judge.” Logan v.
Commonwealth, 446 S.W.3d 655, 658-59 (Ky. App. 2014) (citations omitted).
Browning’s first argument concerns the self-incriminating recorded
statement he made to the police following his arrest. Browning’s counsel filed a
motion to suppress the statement immediately prior to his second trial. The motion
argued that Browning’s statement was coerced, as evidenced by his testimony in
the first trial that he was choked by the police. In opposition, the Commonwealth
cited to testimony of the police officers at the first trial that this had not occurred.
In ruling on the suppression motion, the trial court asked the parties whether they
had any another evidence beyond the testimony at the first trial. “Both parties
agreed that they had no additional evidence. The trial judge stated that he had the
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exhibits from the first trial and that he had heard the testimony. Based on that
evidence, he concluded that Browning’s statement was knowing, voluntary, and
intelligent; therefore, he denied Browning’s motion to suppress.” Browning, 2013
WL 4680486, at *4.
The Kentucky Supreme Court opinion contains the following
summary of Browning’s testimony and the testimony of the police officers:
Browning testified at both trials that he was
arrested at approximately 2:30 p.m. Following his arrest,
Browning was transported to the sheriff’s office where he
was handcuffed to a chair in a holding cell. After what
seemed like several hours, Browning was questioned by
Detective Cook and Deputy Fowler. During the
questioning, Deputy Fowler stood behind Browning and
choked him whenever he denied having any
inappropriate contact with G.B. Several times Deputy
Fowler choked Browning to the point of
unconsciousness. In order to stop this abuse, Browning
signed a waiver of his Miranda rights and agreed to give
a videotaped statement. Prior to the statement, Detective
Cook coached Browning about what he should say.
After he gave his statement, Browning was taken
to the jail. Before he was taken to a cell, he signed a jail
intake form, indicating that he had not recently fainted or
been unconscious and that he did not have any injuries.
Browning testified that he did not read the document, that
no one explained it to him, and that he was not aware of
its contents when he signed it. Finally, Browning
testified that he did not have any visible bruises or marks
when he was admitted to the jail.
Id. at *3.
The police witnesses testified as follows:
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During both trials, Deputy Jailer Farmer testified
that he handled the intake procedure the night Browning
was admitted to the jail. As part of the intake procedure,
Deputy Jailer Farmer reviewed several forms with
Browning and obtained his signature. Deputy Jailer
Farmer did not notice any physical injuries on Browning;
however, Deputy Jailer Farmer could not recall if
Browning said whether he needed to see a physician.
The intake form, which the court admitted into evidence,
indicates that Browning denied having any head injuries
or having fainted.
...
Sheriff Tinnel, the former Bullitt County Sheriff,
testified at the first trial that he and Detective Cook
conducted a brief interview of Browning in the sheriff’s
office. The purpose of that interview, which was not
recorded, was to get Browning “comfortable” and to
explain his rights to him. Browning signed a waiver of
his rights in Sheriff Tinnel’s office.
...
Deputy Fowler, a deputy in the sheriff’s
department, testified at both trials that he arrested
Browning and took him to the sheriff’s department.
Deputy Fowler stayed with Browning until Detective
Cook and/or Sheriff Tinnel took control of Browning.
Deputy Fowler denied choking or otherwise assaulting
Browning. Furthermore, Deputy Fowler testified that he
did not place Browning in a holding cell and that he had
not been in a holding cell with Browning.
...
Detective Cook testified at the second trial that he
interviewed Browning in Sheriff Tinnel’s office and that
he later obtained a videotaped statement from Browning.
Detective Cook did not choke or direct anyone to choke
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Browning. Furthermore, he stated that he did not tell
Browning what to say during the recorded statement.
Id. at *4.
On direct appeal, Browning argued that the trial court should have
conducted a suppression hearing following the first trial and that his recorded
statement was involuntary as a result of police coercion. These claims were
reviewed and rejected by the Kentucky Supreme Court. Id. at *4-5. In assessing
the voluntariness of Browning’s confession and his allegations that he had been
choked unconscious so many times that he admitted to doing whatever the deputies
said he had done, the Supreme Court affirmed the trial court’s factual finding that
his statement was voluntary because the finding was supported by substantial
evidence in the form of the testimony of the police officers involved in his arrest
and interrogation. Id. at *5.
For the first time, Browning raised the additional argument in his
direct appeal that the statement should have been suppressed because he had
invoked his right to counsel immediately prior to making the statement. In its
opinion, the Supreme Court set forth these underlying facts: “At the beginning of
the recorded statement, and after he had already signed a waiver of his right to
counsel, Browning said, ‘I’d rather do this with an attorney present.’ In response,
Detective Cook said, ‘We’re just going to go over the statement you give [sic] us
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earlier, okay? That’s what I told you, right?’ Browning said, ‘Yeah,’ and Detective
Cook proceeded to take Browning’s statement.” Id. at *5.
The Supreme Court reviewed this unpreserved claim under the
palpable error standard, stating: “Prior to the videotaped statement, Browning had
signed a waiver of his rights, spoken with police officers at length, and confessed.
Browning has not shown how, in light of the preceding facts, the exclusion of his
videotaped statement would have altered the result. Thus, there was no palpable
error in the admission of Browning’s videotaped statement.” Id. at *6.
Browning contends that if his attorney’s suppression motion had
raised the argument regarding his invocation of the right to counsel, the recorded
statement would either have been excluded by the trial court or, alternatively, his
conviction would have been reversed on appeal because the claim would have been
reviewed under the clearly erroneous standard, rather than the more stringent
palpable error standard.
We are fully cognizant that under Martin v. Commonwealth, an
unpreserved error which does not warrant reversal on direct appeal under the
palpable error standard of review may nonetheless form the basis for a claim of
ineffective assistance of counsel in post-conviction proceedings. 207 S.W.3d 1, 4-
5 (Ky. 2006). The Martin Court distinguished the two standards thusly: “When an
appellate court engages in a palpable error review, its focus is on what happened
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and whether the defect is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Id. By contrast, the ineffective
assistance of counsel inquiry is broader and requires consideration of whether the
error “was a result of trial strategy, the negligence or indifference of counsel, or
any other factor that would shed light upon the severity of the defect and why there
was no objection at trial.” Id. In accordance with Strickland, a claimant making
an ineffective assistance of counsel claim need not show that counsel’s alleged
error actually determined the outcome of the trial, but only that it rendered the
result of the proceeding unreliable. “The result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the
outcome.” Martin, 270 S.W.3d at 4.
At the time he made the statement to Detective Cook that he would
“rather do this with an attorney present,” Browning had already signed a Miranda
waiver and confessed to the police. The Commonwealth argues that Browning’s
invocation of counsel was equivocal and that seeking to suppress his statement on
this basis would have been futile. In light of these circumstances, the fact that
Browning’s attorney did not raise the right to counsel issue in the suppression
motion did not render her performance professionally deficient. Browning’s
attorney filed a competent suppression motion based on what she reasonably
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viewed as the more powerful argument, that his confession was coerced by the
police.
Furthermore, counsel’s decision not to raise this claim does not meet
the second component of Strickland, which, as reiterated by Martin, requires a
showing that the omission rendered the proceeding unreliable and hence unfair.
The evidence against Browning was, as his trial attorney testified at the RCr 11.42
hearing, overwhelming. The jury heard the audio recording secretly made by
Browning’s wife, and also heard G.B.’s testimony that the sounds on that recording
were of her father abusing her. This constituted powerful evidence to support the
jury’s verdict. Browning has not shown that his attorney’s decision not to raise the
invocation of the right to counsel argument in the suppression motion rendered his
trial unfair or its outcome unreliable.
Next, Browning argues that his trial counsel was ineffective for failing
to preserve by avowal his wife’s testimony about her pending indictment for
manufacturing methamphetamine. Its opinion sets forth the following account of
what occurred at trial:
At the time of the second trial, Browning’s wife,
Nicole, had charges pending in Bullitt County. During
cross-examination, Browning’s counsel asked Nicole
about those pending charges and the Commonwealth
objected. At the bench conference, Browning’s counsel
argued that the fact Nicole had charges pending went to
her credibility. The court asked if counsel had any
evidence that Nicole had been offered any consideration
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by the Commonwealth with regard to those charges in
exchange for her testimony against Browning. Counsel
said that she did not have any evidence of any offer by
the Commonwealth to Nicole. The court then granted the
Commonwealth’s objection and admonished the jury to
disregard the question. . . . Browning did not seek to ask
any further questions by avowal.
Browning, 2013 WL 4580486, at *8.
On direct appeal, Browning argued that the trial court’s ruling
hampered his ability to effectively cross-examine Nicole and that her indictment
was evidence of her bias against him. Id. In reviewing this argument under the
palpable error standard, the Supreme Court stated:
Browning argues that his inability to impeach Nicole’s
credibility “had a material effect on [his] defense in this
case,” which was that he did not abuse G.B. In support
of his argument, Browning cites to the overall weakness
of the Commonwealth’s case and to G.B.’s inconsistent
statements. He does not set forth what portion of
Nicole’s testimony was false or even questionable. And
he does not set forth how attacking her credibility would
have done anything to further his claim that he did not
abuse G.B. As the Commonwealth notes, Nicole
primarily testified about placing and retrieving the audio
recorder and taking the recorder and G.B. to the sheriff’s
office. Those facts were not in dispute and impeaching
Nicole’s credibility would not have changed them.
Therefore, we cannot say that the trial court’s exclusion
of questions regarding Nicole’s pending criminal charges
was palpable error.
Id. at *8.
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In its order denying the RCr 11.42 motion, the trial court stated that
Browning had shown no prejudice stemming from the exclusion of Nicole’s
testimony regarding her indictment nor had he shown how her cross-examination
on this matter would have benefitted his case. We agree. Speculative allegations
regarding Nicole’s alleged bias do not rise to the level of specificity required by
RCr 11.42(2). Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012). Even if
we accept for the sake of argument that Nicole had agreed to cooperate with the
police to convict Browning in exchange for leniency in her own case, impeaching
her on these grounds would not have undermined her primary testimony about how
she placed and retrieved the audio recorder and then took it and G.B. to the
sheriff’s office. The fact that Browning did not preserve Nicole’s testimony
regarding her indictment by avowal did not affect the reliability of his trial nor did
it create a reasonable likelihood that the outcome of the trial would have been
different.
For the foregoing reasons, the order of the Bullitt Circuit Court
denying Browning’s RCr 11.42 motion is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Maureen Sullivan Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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