Anthony Watts v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0519-MR
ANTHONY WATTS APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
v. HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 18-CR-00184
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.
DIXON, JUDGE: Anthony Watts appeals pro se from an order of the Henderson
Circuit Court, entered May 21, 2019, denying his RCr1 11.42 motion. After careful
review of the briefs, record, and law, we affirm.
1
Kentucky Rules of Criminal Procedure.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On April 4, 2018, Watts was indicted for the murder of Angela
Parker, being a convicted felon in possession of a handgun, and being a persistent
felony offender in the second degree. Per the complaint:
[O]n 2/26/2018, members of the Henderson Police
Department responded to . . . a report of a female that had
been shot. Upon arrival, officers located [Parker] in the
back bedroom laying [in] the bed[, and she] appeared to
have multiple gun shots to her arm and head.
[Kenya Robards and her juvenile daughter were in]
the home at the time of arrival. . . . [Watts], the father of
her daughter, had been in town this weekend[, but he had
returned] to Covington after they had lunch on
02/25/2018. [Robards] stated that [Watts] and [Parker]
were fighting via text on the night of 02/25/2018.
[Robards] woke up around 3:00 am on 02/26/2018 to
[Watts] coming through the back patio door, which leads
directly to the back bedroom. . . . [Parker] and [Watts]
started to argue and [Robards] went to check on her
daughter. . . . [Parker] had a gun in her hand when
[Robards] left the room. [Robards] heard two gunshots
and went back to the bedroom and saw [Watts] standing
beside the bed[.] [Robards] asked [Watts], “What the
f[***] did you do?”. [Watts] replied back[,] “What the
f[***] I told her I was going to do.”
....
Detectives located a handgun on the headboard
shelf behind [Parker]’s body. The handgun appeared to
have been neatly placed there, not thrown or dropped. . . .
[T]he handgun is believed not to be the handgun used to
shoot [Parker]. [Parker] was pronounced dead at the
scene[.]
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(Paragraph breaks added.)
Watts was represented by Shannon Powers and Tina McFarland. On
October 31, 2018, after a lengthy and thorough colloquy, Watts entered an Alford2
plea on the murder charge, the remaining charges were dismissed, and he was
sentenced to 20 years to serve – the minimum – by judgment entered November
16, 2018. On April 15, 2019, Watts filed a motion to vacate his conviction
pursuant to RCr 11.42. The motion was denied without a hearing by order entered
May 21, 2019, and this appeal followed. We will introduce additional facts as they
become relevant.
STANDARD OF REVIEW
Where an RCr 11.42 motion is denied without an evidentiary hearing,
“[o]ur 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.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967); see also
Harper v. Commonwealth, 978 S.W.2d 311, 314 (Ky. 1998). It is the movant’s
responsibility to plead with sufficient specificity the factual basis supporting an
RCr 11.42 motion. RCr. 11.42(2); Hodge v. Commonwealth, 116 S.W.3d 463, 468
(Ky. 2003), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009).
2
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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Since Watts entered a plea, to successfully demonstrate that he was
afforded ineffective assistance of counsel he must show:
(1) that counsel made errors so serious that counsel’s
performance fell outside the wide range of professionally
competent assistance; and (2) that the deficient
performance so seriously affected the outcome of the
plea process that, but for the errors of counsel, there is a
reasonable probability that the defendant would not have
pleaded guilty, but would have insisted on going to trial.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001). See also Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “The
likelihood of a different result must be substantial, not just conceivable.”
Commonwealth v. Pridham, 394 S.W.3d 867, 876 (Ky. 2012) (quoting Harrington
v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792, 178 L. Ed. 2d 624 (2011)).
“[B]oth parts of the Strickland test for ineffective assistance of
counsel involve mixed questions of law and fact[.]” Brown v. Commonwealth, 253
S.W.3d 490, 500 (Ky. 2008) (citing McQueen v. Commonwealth, 721 S.W.2d 694,
698 (Ky. 1986)). Unless clearly erroneous, we “must defer to the determination of
facts and credibility made by the trial court.” Id. We review de novo “counsel’s
performance and any potential deficiency caused by counsel’s performance.” Id.-4-
ANALYSIS
Watts first argues that since Parker was a prominent member of a
small community and her death received media attention, his counsel’s failure to
seek a change of venue constituted ineffective assistance. In support, Watts asserts
that death threats were made against him and Robards and refers us to six articles
reporting on Parker’s death.
As an initial matter, Watts’s claim of deficient performance is refuted
by his plea colloquy during which he expressly denied having any complaint with
counsel’s representation or there being any reason he could not get a fair trial. As
Watts’s plea occurred subsequent to his raising the issue of venue with counsel via
letter written June 15, 2018, his concerns were knowingly waived. Moreover, we
agree with the Commonwealth that Watts has not demonstrated he was prejudiced.
Since Watts was sentenced in accord with his plea, a change of venue would have
had no effect. See McKinney v. Commonwealth, 445 S.W.2d 874, 877 (Ky. 1969)
(“[I]nasmuch as McKinney decided to plead guilty[,] a request for a change of
venue would have been useless.”).
Further, Watts has failed to establish that his request would have been
successful. A change of venue shall be granted “if it appears that the defendant or
the state cannot have a fair trial in the county where the prosecution is pending.”
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KRS3 452.210. The non-specific assertions that Parker was well-known and Watts
and Robards received death threats provide an insufficient factual basis for this
Court to evaluate the merits of the allegations.
As for the six articles – only four of which both name Watts and
occurred prior to his plea – prejudicial news coverage can support a change of
venue if it is “reasonably likely to prevent a fair trial.” Dunn v. Commonwealth,
360 S.W.3d 751, 769 (Ky. 2012) (internal quotations omitted) (quoting Wilson v.
Commonwealth, 836 S.W.2d 872, 888 (Ky. 1992), overruled on other grounds by
St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999)). Here, while detrimental in that the
articles named Watts as the alleged perpetrator and noted he was on federal
probation at the time of Parker’s death, the four relatively brief and restrained
articles were published at least six months prior to his anticipated trial date by a
singular online news source.
In concluding Watts has failed to meet his burden of proof, we note
that Kentucky courts have consistently denied a change of venue in far more
publicized cases than this. See Hubers v. Commonwealth, 617 S.W.3d 750, 773
(Ky. 2020) (substantial news coverage both by local stations and several national
organizations, and defendant’s police interview was widely shared on social
media); Hilton v. Commonwealth, 539 S.W.3d 1, 7-8 (Ky. 2018) (all but four of the
3
Kentucky Revised Statutes.
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jurors initially called for service reported knowledge of some media coverage of
the case); Wood v. Commonwealth, 178 S.W.3d 500, 513-14 (Ky. 2005) (95
percent of jury pool was exposed to pretrial publicity). The law is clear, media
coverage alone is insufficient to support a change of venue. As this is the only
non-speculative evidence offered by Watts and the media coverage was not so
exceptional as to merit a presumption of prejudice, the court did not err in denying
a hearing on this issue.
Next, Watts contends counsel was ineffective by failing to interview
three witnesses – Brittany Harrelson, an unnamed person who is identified as the
sister of Lashawda Black, and Brooke Wolfe – who were necessary to his self-
protection defense. Citing the transcript of counsel’s interview of Robards as
proof, Watts states that Harrelson and Black’s sister would have verified that
Parker stated she selected a coffin for Watts and wanted to kill him. Likewise,
Wolfe would have confirmed that on multiple occasions Parker said she wanted to
shoot Watts to wound him, but not to kill him because he had a daughter. Watts
argues this evidence supports his and Robards’s claims that Parker brandished a
weapon the night he shot her and renders it reasonable for him to have rejected the
plea and proceeded to trial in order to pursue a self-protection defense. We agree
with the Commonwealth that Watts has failed to establish that he was prejudiced.
[W]here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence,
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the determination whether the error “prejudiced” the
defendant by causing him to plead guilty rather than go
to trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a
trial.
Hill, 474 U.S. at 59, 106 S. Ct. at 370.
Although the record does not establish whether counsel interviewed
the three witnesses, Watts admits that his counsel discovered evidence of Parker’s
threatening statements and was made aware of the potential corroborating
witnesses from interviewing Robards prior to entry of the plea. Accordingly, we
cannot say that counsel’s alleged failure to further develop redundant testimony
adversely impacted counsel’s plea advice. Moreover, we disagree with Watts’s
assessment that this evidence likely would have benefitted a self-protection
defense at trial and, thus, rendered it reasonable for him to reject a plea to the
minimum on the charged offense.
As a general rule, evidence of the victim’s character for violence may
be introduced to support a self-protection defense only “in the form of [a]
reputation or opinion, not specific acts of misconduct.” Saylor v. Commonwealth,
144 S.W.3d 812, 815 (Ky. 2004). “An exception exists, however, when evidence
of the victim’s prior . . . threats . . . is offered to prove that the defendant so feared
the victim that he believed it was necessary to use physical force[,]” but the
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defendant must have been aware of the statements at the time of the encounter. Id.
at 815-16 (citations omitted). Here, Watts does not assert that he was aware of
Parker’s threats at the time of the shooting, so it is questionable whether this
evidence would have been admissible.
Even if admissible, we cannot say the evidence is of such a caliber
that Watts would likely have fared better at trial. “The use of deadly physical force
by a defendant upon another person is justifiable . . . only when the defendant
believes that such force is necessary to protect himself against death, serious
physical injury, . . . [or a] felony involving the use of force[.]” KRS 503.050(2).
However, the defense is not available when “[t]he defendant, with the intention of
causing death or serious physical injury to the other person, provokes the use of
physical force by such other person” or was the initial aggressor. KRS 503.060(2)-
(3).
From the complaint and the transcript of Robards’s interview, the
evidence shows that after fighting with Parker via text the preceding evening,
Watts entered, without permission, the residence4 and bedroom where Robards and
Parker were sleeping at 3:00 a.m., immediately began a verbal altercation, stating
“[d]o y’all think this is a joke,” and was armed with the handgun he ultimately
4
The limited record does not reveal who owned the residence or what legal right Watts or
Parker had thereto, so it is unclear if the castle doctrine is applicable.
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used to shoot Parker. As none of the witnesses listed by Watts was present at the
scene, their corroboration of Parker’s general animus does nothing to counteract
the credible implication that Watts provoked or initiated the aggression or
otherwise serve to mitigate his penalty risk of 20 to 50 years, or life. See KRS
532.025; KRS 532.030. Consequently, the court did not err in denying relief on
this matter.
Watts additionally contends that the cumulative effect of counsel’s
deficient representation prevented his plea from being knowing, intelligent, and
voluntary. Cumulative error may be found only when “the individual errors were
themselves substantial, bordering, at least, on the prejudicial.” Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). “Where, as in this case,
however, none of the errors individually raised any real question of prejudice, we
have declined to hold that the absence of prejudice plus the absence of prejudice
somehow adds up to prejudice.” Id. (citing Furnish v. Commonwealth, 95 S.W.3d
34 (Ky. 2002)). Therefore, Watts’s claim fails.
Finally, we turn to Watts’s allegation that his counsel had a conflict of
interest. It is not disputed that a criminal defendant has the right to conflict-free
counsel. Samuels v. Commonwealth, 512 S.W.3d 709, 712 (Ky. 2017). “A
conflict arises from competing duties or interests that create the potential for
prejudice.” Beard v. Commonwealth, 302 S.W.3d 643, 647 (Ky. 2010). The
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standard for determining whether a defendant is entitled to relief depends upon
when the conflict is raised. Samuels, 512 S.W.3d at 712-13. If raised pre-
conviction, a defendant “need only show that a conflict of interest existed[,]” but if
first raised on post-conviction, a defendant must also establish that the conflict
“prejudiced him – i.e., that it adversely affected his counsel’s performance – in
some cognizable way.” Id. In the plea context, prejudice is established if the
conflict adversely affected the voluntary nature of the defendant’s guilty plea.
Mitchell v. Commonwealth, 323 S.W.3d 755, 760 (Ky. App. 2010) (quoting
Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir. 1987)).
Here, the Commonwealth argues the latter standard applies as the
issue was not raised until the underlying RCr 11.42 motion was filed. Conversely,
Watts asserts the former should apply because he attempted to address his concerns
through a letter to the trial court that counsel failed to file on his behalf. Assuming
arguendo the validity of Watts’s contention that a thwarted attempt to raise the
conflict prior to conviction necessitates a review under the more lenient standard,
his declaration of fact is refuted by the record as the referenced letter is silent as to
the alleged conflict, and Watts denied any concerns with counsel during his plea
colloquy. Accordingly, to be successful, Watts must establish both that a conflict
existed and that he was prejudiced.
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In support, Watts recounts that McFarland, who was assistant counsel
on his defense team, advised at their initial meeting that she was a longtime, close
family friend of the victim’s mother and a member of the same church as the
Parker family.5 McFarland explained that, as it was a small town, lots of people
know one another. Watts attributes this relationship with counsel’s failure to seek
a change of venue, to interview witnesses, and to pursue his self-protection
defense, all of which we have addressed above.
The trial court disagreed that McFarland’s relationship created a
conflict and, after noting that Powers was lead counsel, found that counsel
collectively provided reasonable professional assistance under the facts and that
Watts’s plea was voluntary. While the record does not conclusively establish that
McFarland did not have a conflict, having previously rejected Watts’s various
charges of ineffective assistance of counsel which underlie this claim, we agree
that Watts has failed to demonstrate that his decision to enter a plea was adversely
impacted.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Henderson
Circuit Court is AFFIRMED.
5
In this section of his brief, Watts additionally complained of Powers’s representation; however,
as Watts did not identify any facts which could support finding Powers had a conflict of interest,
we have declined to address these unrelated grievances.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Anthony Watts, pro se Daniel Cameron
Sandy Hook, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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