Toma Washington v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0661-MR
TOMA WASHINGTON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CR-00413
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Toma1 Washington entered an Alford2 plea of guilty
to manslaughter in the first degree and possession of a handgun by a convicted
1
We will refer to the appellant by his first name in order to avoid confusion with other
individuals mentioned in this Opinion who share the same last name.
2
A plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162(1970), “permits a conviction without requiring an admission of guilt and while permitting a
felon. He thereafter moved to set aside his conviction pursuant to Kentucky Rules
of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR)
60.02, alleging discovery violations by the Commonwealth and ineffective
assistance of counsel. The Franklin Circuit Court denied his motion in a series of
orders, entered on March 1, 2021, April 9, 2021, and May 17, 2021, from which
Toma now appeals. Having reviewed the record and applicable law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2016, Jaleesa Robinson, Toma’s girlfriend and the
mother of one of his children, was shot and killed. Toma had spent the earlier part
of that day with his wife, Whitney. According to Whitney, he was drinking and
using marijuana. Toma, Whitney, and their child were driving around Frankfort
when he and Whitney got into an argument. Whitney claimed Toma pulled out a
pistol, stuck it in her side, and pulled the trigger, but the gun did not discharge.
Whitney drove Toma to the home of his relative, Brennan Washington, and
dropped him off there.
Toma and Brennan drove to the west side of Frankfort to get some
liquor. On the return trip, Toma called Jaleesa to meet them at Brennan’s. When
they returned to Brennan’s home, Jaleesa was parked in the driveway. Toma got
protestation of innocence.” Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004).
“The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard
plea of guilty.” Id. at 102.
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into the passenger seat of Jaleesa’s SUV and Brennan sat in the back seat behind
Jaleesa. According to Brennan, Jaleesa was looking at Toma’s phone and
unblocking herself on Facebook. Toma pointed his pistol at Jaleesa and fired.
Brennan jumped out and ran to his house. He saw Jaleesa get out of her vehicle,
get back in, and drive away. He did not realize she had been shot.
Jaleesa drove herself to a nearby convenience store, where she called
911 to report she had been shot. The dispatcher asked her twice who had shot her
and both times she replied, “I don’t know.” Jaleesa did not identify the shooter to
the police officer or to the fire and EMS workers who arrived at the scene. Jaleesa
was taken to the hospital where she later died.
The day after the shooting, Toma went to the police station where he
was arrested. He told the detective who interviewed him that he had no reason to
shoot Jaleesa. He admitted that his infidelity had caused a conflict between
Whitney and Jaleesa, and he claimed that the week before, Whitney had chased
him and Jaleesa with a gun.
On December 20, 2016, Toma was indicted for murder, being a
convicted felon in possession of a handgun, and two counts of being a persistent
felony offender in the first degree (PFO I). He was separately indicted for first-
degree wanton endangerment for the incident in which he pointed a gun at Whitney
and pulled the trigger. Toma retained private counsel.
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On January 4, 2017, the trial court entered a discovery order requiring
the Commonwealth to provide the defense with the materials set forth in RCr
7.24(1) and (2) and any exculpatory evidence known to the Commonwealth. The
order also required the Commonwealth to produce witness statements within ten
days of trial, in compliance with RCr 7.26, which requires the production of such
statements to be made at least forty-eight hours before trial.
The Commonwealth filed hundreds of documents on February 14,
2017. A dispute thereafter arose regarding whether the Commonwealth had
provided full discovery. On July 11, 2017, the defense filed a motion to compel
discovery, informing the trial court that it had received discoverable police reports
only after a meeting with a police detective and that the defense did not believe it
had received all discovery as ordered by the court, including police reports,
interviews with witnesses, and exculpatory evidence. The trial court conducted a
hearing and then ordered an in camera review of portions of the Commonwealth’s
file to determine whether any additional materials should be disclosed to the
defense.
After its review, the trial court entered an order on August 22, 2017,
finding the documents at issue were properly excluded from production under RCr
7.24(2). The trial court’s order stated that the Commonwealth divided the
documents into five separate groups. Of the five groups, three were previously
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provided to the defense in the Commonwealth’s initial discovery production, “the
only caveat being that the officers’ mental impressions and memoranda prepared in
anticipation of trial are not discoverable.” The two remaining groups consisted of
witness statements and memoranda generated by the police in their investigations,
which the trial court ruled were excluded by RCr 7.24(2). The order reiterated that
statements of witnesses were not to be provided to the defendant until ten days
before trial, as provided in its initial discovery order. The trial court sealed the
documents it had reviewed and placed them in the record in accordance with RCr
7.24(8).
Toma’s trial was scheduled for January 22, 2018. On December 21,
2017, the Commonwealth provided recordings of interviews conducted with
seventeen individuals and on January 8, 2018, the Commonwealth provided
recordings of interviews with Whitney Washington and Brennan Washington.
On January 10, 2018, Toma filed a motion to continue his trial date,
informing the court that settlement negotiations were occurring between the
parties. The motion also stated that defense counsel had just received twenty
DVDs of witness statements from the Commonwealth, including the statements of
two critical witnesses, and needed more time to find and interview witnesses and to
conduct a forensic evaluation of the evidence. The motion requested an additional
sixty days to investigate and prepare for trial. At a hearing on January 12, 2018,
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defense counsel informed the court that plea negotiations were ongoing. The trial
court took the motion for a continuance under advisement.
On January 16, 2018, the Commonwealth made an offer to amend the
murder charge to manslaughter in the first degree, to keep the charge of possession
of a handgun by a convicted felon, to dismiss the two counts of PFO I, and to
dismiss the separate wanton endangerment case involving Whitney. The
Commonwealth offered to recommend a total sentence of nineteen years’
imprisonment.
On January 18, 2018, following a properly conducted Boykin3
colloquy, Toma entered an Alford plea in accordance with the terms of the plea
agreement and was sentenced to eleven years for the first-degree manslaughter
charge and eight years for convicted felon in possession of a handgun, to be run
consecutively.
On January 17, 2021, Toma filed a motion to set aside his conviction
pursuant to both RCr 11.42 and CR 60.02 as well as Sections 11 and 14 of the
Kentucky Constitution, and the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution. He alleged that the Commonwealth had committed
discovery violations and failed to turn over exculpatory and impeachment
materials as required under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
3
Boykin v. Alabama, 395 U.S. 238, 28 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
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Ed. 2d 215 (1963). He raised a claim of ineffective assistance of counsel, based on
a failure to investigate, and also sought to disqualify the Commonwealth attorney
and the trial judge from presiding over the post-conviction proceedings; and to
inspect the previously sealed documents and make them part of the post-conviction
record.
On March 1, 2021, the trial court entered a lengthy opinion and order,
denying the motion with the exception of reserving some documents for further
investigation in an evidentiary hearing. Toma filed a motion to enlarge and
continue the evidentiary hearing. The trial court denied the motion and held the
evidentiary hearing on April 14, 2021, within the parameters originally delineated
in its March 1, 2021 order. Detective Scott Morgan and Detective Josh Baker, who
investigated Jaleesa’s murder, both testified. The trial court entered a
supplemental order on May 17, 2021, denying the motion to set aside conviction.
This appeal by Toma followed. Further facts will be set forth below as necessary.
ANALYSIS
I. CR 60.02 Claims
The basis of Toma’s claims for relief under CR 60.02 is that the
Commonwealth withheld evidence in violation of RCr 7.24 and Brady, supra. CR
60.02 states:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
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judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
To the extent that Toma’s arguments are founded on claims of newly
discovered evidence under section (b) of the Rule, they are time-barred by the
terms of the Rule itself because he filed his CR 60.02 motion almost three years
after the entry of the final judgment. Toma concedes that his claim is founded on
newly discovered evidence but argues that it is of an extraordinary nature and thus
within the purview of CR 60.02(f). He contends that due to the Commonwealth’s
failure to disclose the police department’s documents, his only avenue for
discovery of these materials was by an open records request after the finality of the
case. Two years elapsed between the entry of the final judgment and Toma’s open
records request. Toma does not account for the lengthy delay in seeking the
records or explain why he was unable to file his motion within a year of his
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conviction. “[S]ubsection (f) was not intended to provide a means for evading the
strictures of the other subsections.” Alliant Hospitals, Inc. v. Benham, 105 S.W.3d
473, 479 (Ky. App. 2003). “CR 60.02(f) is a catch-all provision that encompasses
those grounds . . . that are not otherwise set forth in the rule.” Commonwealth v.
Spaulding, 991 S.W.2d 651, 655 (Ky. 1999).
Although the trial court held that the CR 60.02 motion was untimely
under section (b), it nonetheless addressed the substance of Toma’s allegations
under section (f). We will do likewise, in accordance with Foley v.
Commonwealth, 425 S.W.3d 880, 885 (Ky. 2014), which addressed the appellant’s
arguments on the merits despite having “grave doubts” that he had met the
standard for equitable tolling of the deadline for CR 60.02 relief.
“[I]n order for newly discovered evidence to support a motion for new
trial it must be of such decisive value or force that it would, with reasonable
certainty, have changed the verdict or that it would probably change the result if a
new trial should be granted.” Id. at 886 (internal quotation marks and citation
omitted).
We review the denial of a CR 60.02 motion for an abuse of discretion.
Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010), overruled on
other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008). The
test for abuse of discretion is whether the trial court’s decision was “arbitrary,
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unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Absent a “flagrant
miscarriage of justice[,]” we will affirm the trial court. Gross v. Commonwealth,
648 S.W.2d 853, 858 (Ky. 1983).
Toma argues that the trial court abused its discretion in finding what
he claims are “official police reports” to be memoranda or investigative documents
that did not need to be disclosed under RCr 7.24(2). RCr 7.24(2) provides:
On motion of a defendant the court may order the
attorney for the Commonwealth to permit the defendant
to inspect and copy or photograph books, papers,
documents, data and data compilations or tangible
objects, or copies or portions thereof, that are in the
possession, custody or control of the Commonwealth,
upon a showing that the items sought may be material to
the preparation of the defense and that the request is
reasonable. This provision authorizes pretrial discovery
and inspection of official police reports, but not of
memoranda, or other documents made by police officers
and agents of the Commonwealth in connection with the
investigation or prosecution of the case, or of statements
made to them by witnesses or by prospective witnesses
(other than the defendant).
Toma argues that the Commonwealth violated RCr 7.24(2) by
withholding fifty-eight official police reports from its discovery responses, on the
pretext that they were internal memoranda. He contends that they were labeled
“reports” pursuant to departmental policy, titled “reports” in the header of each
document, and were in the same format as other reports which were disclosed. The
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trial court conducted an in camera review of these portions of the
Commonwealth’s file, and found that the documents in question, whatever their
designation, were witness statements and memoranda which are specifically
excluded by RCr 7.24(2).
One of these undisclosed reports, drafted by Detective Scott Morgan,
revealed the identity of a potential eyewitness to the shooting, Thomas Wideman.
The document at issue states that Detective Morgan learned from the
Commonwealth attorney that Brennan Washington had recently provided
information that an individual named “Biscuit” was a possible witness to the
shooting and that Biscuit was identified as Thomas Wideman. Two detectives
tried unsuccessfully to contact Wideman at different addresses.
The trial court found that the document was not an official police
report requiring disclosure, in reliance on Detective Morgan’s testimony that the
template he used to compose the document was the standard form used by the
police department at the time to document any occurrence. His intent in drafting
the document was to memorialize what had occurred in order to turn the
information over to the prosecution and he described the document as work
product prepared in the investigation of the case. The trial court found his
testimony to be credible and observed that Morgan, as the author of the document,
was in the best position to testify about his intent in creating it.
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The trial court further found that Toma was not prejudiced by the
Commonwealth’s failure to produce the document. Wideman was not a confirmed
witness and the police department had not been able to contact him. The trial court
also discounted Toma’s argument that Wideman’s testimony could have been used
to impeach Brennan’s testimony, as it was unlikely that Brennan would have
provided the prosecutor with information regarding a possible witness who would
undermine Brennan’s version of what had occurred.
Another document which was not disclosed contained information
provided by Toni Cremeans, who informed the police that an individual named
“Beanie” might have witnessed the shooting. Detective Josh Baker testified that
the police had been unable to locate Beanie.
Documents regarding the police investigation and interviews with
Mary Taylor and Kassie Jones were also not disclosed. The document pertaining
to Mary Taylor states that she contacted Detective Morgan on December 16, 2016,
identifying herself as being part of the Washington family. She told Morgan that
she had been conducting her own investigation of the shooting and “felt like” there
was a reasonable doubt that Toma Washington was responsible. She was not in
town at the time of the shooting and stated that she did not have any direct
knowledge of the shooting. She stated that she believed the detectives should
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speak with DJ Washington who lives with Brennan Washington and that the
shooting had something to do with all parties being part of the drug trade.
The document regarding Kassie Jones indicates that Detective Morgan
interviewed her on December 27, 2016. He asked her if she knew Toma
Washington. She replied that the last time she had any contact with him was
approximately two weeks prior to the shooting. She stated she knew the victim
and had heard on the street that a girl named “Whitney” was responsible for the
shooting. Detective Morgan asked her if she knew “Marky Mark.” She replied
that he was a male with one leg who lives on Meagher Avenue next to an alley and
that she had not been inside his residence since around October 2016. Jones also
stated that, several days before Christmas, she gave a ride to a black girl with short
hair in her early twenties named Risha. Risha was intoxicated and spoke about the
shooting. Risha said that Marky Mark knows what happened and hid “them” out.
She said that Marky Mark knows “where everything is at.” Jones stated that Risha
is not from Frankfort and does not know Jaleesa or Toma. Jones told the detective
she dropped Risha at Marky Mark’s residence.
Toma argues that the information in these documents could have been
used by the defense to conduct further investigation into potential witnesses to the
shooting. But the value of this evidence is speculative. The statements of these
witnesses consist largely of hearsay, relating what they had heard from others
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about what may have occurred at the shooting or about who may have witnessed it.
Mere speculation or conjecture cannot be the basis of CR 60.02(f) relief. Foley,
425 S.W.3d at 887-88 (citation omitted). In any event, Toma received the actual
and complete witness statements upon which these police documents were based
and was therefore fully aware of what these witnesses had told the police.
In sum, Toma’s allegations regarding these documents do not meet
the high standard necessary to merit relief under CR 60.02(f). Rule 60.02(f) “may
be invoked only under the most unusual circumstances . . . and relief should not be
granted . . . unless the new evidence, if presented originally, would have, with
reasonable certainty, changed the result.” Brown v. Commonwealth, 932 S.W.2d
359, 362 (Ky. 1996). Toma had access to the information in these documents in
the form of the actual witness statements, and he does not explain what additional
information the police documents contain that would, with reasonable certainty,
have caused him to reject the plea offer and procced to trial.
Toma also argues that the Commonwealth withheld evidence in
violation of his due process rights under Brady v. Maryland, supra. In Brady, the
Supreme Court held that “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. 83, 87, 83 S. Ct. at 1196-97. To rise to the level of
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a Brady violation, “[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; . . . [the] evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.” Goben v. Commonwealth, 503 S.W.3d 890, 914 n.21 (Ky. 2016)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948, 144 L.
Ed. 2d 286 (1999)).
In the context of guilty plea proceedings, the Supreme Court held that
Brady does not apply to the disclosure of material impeachment evidence. See
United States v. Ruiz, 536 U.S. 622, 633, 122 S. Ct. 2450, 2457, 153 L. Ed. 2d 586(2002) (“[T]he Constitution does not require the Government to disclose material
impeachment evidence prior to entering a plea agreement with a criminal
defendant.”). The Supreme Court has not decided if Brady applies to material
exculpatory evidence. We need not address the issue here, however, because even
if Brady does apply, Toma’s claims do not rise to the level of meriting CR 60.02(f)
relief.
The evidence at issue consists of photographs of text messages
between Whitney and Brennan Washington which they exchanged on the evening
of the day Jaleesa was shot. Brennan initiated the contact, telling Whitney he
heard a female was shot. Whitney told him it was Jaleesa. The following
exchange took place:
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Brennan: WHAAAAAT
Whitney: I tried to tell you.
Brennan: Wtf. Is she ok.
Whitney: Idk someone told me she got airlifted out I’m
not sure if its true
Brennan: Dam it was on the news
Brennan: Girl did u shoot that girl
Whitney: Shut the f***ck up Oh u wanna play your role
huh
Brennan: Lol. Naw a mf just tried to say u did . . . .
N***a I know u wasn’t even around
Whitney: Toma did that s**t n I know it . . . He pulled it
out n pulled the trigger in front of Joey right before we
pulled up. I told you he was the one
Brennan: S**t. I’m glad you got away from that n***a.
I’m glad you and the kids are okay
Whitney: Me too
In its March 1, 2021 order, the trial court found that the photographs
of these Facebook messages taken from the screen of Whitney’s phone were
disclosed to the defense on a disc as part of the February 13, 2017 discovery.
Toma argues that the trial court’s finding was erroneous, based on the Franklin
Circuit Court clerk’s affidavit stating that typically the circuit clerk is only
provided with a photocopy of the disc provided to defense counsel and therefore
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the actual disc was not in the court record. Toma argues that the trial court could
not therefore have reviewed the disc to make sure the photographs were on it.
In its order of April 9, 2021, the trial court held that even if the photos
were not included on the disc, the Facebook messages were not withheld from the
defense because they were contained in a recorded interview of Whitney
Washington which was provided to the defense as part of the January 8, 2018,
discovery response. In the interviews, conducted by the police on December 13
and 15, 2016, Whitney recalled her Facebook exchange with Brennan and
recounted it to the police. We have reviewed the recording of the interview and
Whitney summarized and then read aloud from the phone the full exchange with
Brennan. This claim is therefore without merit because the evidence was disclosed
to Toma.
Toma argues that he was entitled to an evidentiary hearing on his CR
60.02 motion. “Before the movant is entitled to an evidentiary hearing, he must
affirmatively allege facts which, if true, justify vacating the judgment and further
allege special circumstances that justify CR 60.02 relief.” Gross, 648 S.W.2d at
856. Toma’s allegations do not rise to the level of meriting an evidentiary hearing.
II. RCr 11.42 Claim
Toma also argues that his defense counsel was ineffective for failing
to conduct a meaningful investigation of witnesses and that he was entitled to an
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evidentiary hearing on this claim. When a defendant claims that “he was unable to
intelligently weigh his legal alternatives in deciding to plead guilty because of
ineffective assistance of counsel, he must demonstrate the following”:
(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.
Rigdon v. Commonwealth, 144 S.W.3d 283, 288 (Ky. App. 2004).
The Commonwealth produced numerous witness statements to the
defense on December 20, 2017, and January 8, 2018, in compliance with the
deadline in the trial court’s discovery order. The trial was scheduled to take place
on January 22, 2018. At the hearing on the motion for a continuance, defense
counsel told the court he could not effectively try a murder case on the scheduled
date. He explained that ten of the witness statements were from people of whom
he had never heard and that he could not assure his client he had followed down
the trail of all the evidence if he did not have time to investigate. The trial court
stated it would issue an order on the continuance motion the following Monday.
Before the trial court issued its ruling, defense counsel advised Toma to accept the
Commonwealth’s plea offer.
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Toma argues that his attorney’s advice constituted ineffective
assistance of counsel because, by counsel’s own admission to the trial court, the
investigation into the case was incomplete. Toma contends that, if the
investigation had been completed and he fully understood the evidence in his case,
a decision to reject the plea offer would have been rational under the circumstances
and he would have insisted on going to trial. Toma does not explain with any
specificity what evidence would have persuaded him to change his mind and go to
trial. He alludes to Kassie Jones’s statement that she heard a girl named Whitney
was responsible for the shooting and that Marky Mark knew what happened. But
Toma and his attorney knew that Whitney had a motive to kill the victim and
defense counsel interviewed both Brennan and Whitney shortly after the shooting.
The allegation that Marky Mark knew what happened is completely unsupported.
“Advising a client to plead guilty is not, in and of itself, evidence of
any degree of ineffective assistance of counsel.” Rigdon, 144 S.W.3d at 288. The
record shows that Toma’s attorney pursued his defense with vigor. He obtained an
investigator and funding for a forensic examiner. He filed numerous motions
related to discovery. His motion seeking a continuance does not undermine the
wisdom of his decision to advise Toma to accept the plea offer. Toma was facing a
murder charge as well as two charges of PFO I. His counsel had to weigh the
benefit of accepting the Commonwealth’s favorable plea offer against going
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forward to trial based on the hope that some of the witness statements might yield a
credible witness who could exonerate Toma or a credible alternate perpetrator of
the crime. Under the circumstances, his recommendation to Toma to accept the
plea offer was well-founded.
An evidentiary hearing is only required “if there is a material issue of
fact that cannot be conclusively resolved, i.e., conclusively proved or disproved, by
an examination of the record.” Fraser v. Commonwealth, 59 S.W.3d 448, 452
(Ky. 2001) (citations omitted). There is no material issue of fact that needs to be
resolved here and therefore an evidentiary record was not required.
CONCLUSION
For the foregoing reasons, the Franklin Circuit Court’s orders denying
Toma’s motion to set aside his conviction are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Whitney N. Wallace Daniel Cameron
Christine N. Madjar Attorney General of Kentucky
Frankfort, Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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