Van Mooney Jr v. Commonwealth of Kentucky ( 2021 )

RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0798-MR
VAN MOONEY, JR. APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 06-CR-00270
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
DIXON, JUDGE: Van Mooney, Jr., pro se, appeals the denial of his RCr1 11.42
motion to vacate judgment of his conviction of murder and tampering with
physical evidence, entered by the Hopkins Circuit Court on April 24, 2019,
alleging ineffective assistance of trial counsel. Applying the two-pronged
performance and prejudice standard established in Strickland v. Washington, 466
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Kentucky Rules of Criminal Procedure.
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court denied Mooney’s
motion, finding that he failed to show his case was prejudiced by trial counsel’s
deficient actions. Following a careful review, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Mooney filed his initial RCr 11.42 motion, pro se, September 15,
2014, wherein he contended his trial counsel was ineffective. The trial court
granted Mooney counsel, which supplemented his RCr 11.42 motion on November
10, 2016. After an evidentiary hearing was held on March 14, 2017, the trial court
agreed and ordered a new trial, which the Commonwealth then appealed.
In Commonwealth v. Mooney, No. 2017-CA-001080-MR, 2018 WL
4522178 (Ky. App. Sept. 21, 2018), another panel of our Court disagreed with part
of the trial court’s conclusions of ineffective assistance of counsel. However, the
Court affirmed the trial court’s order regarding its finding that counsel’s
performance was deficient when he failed to object to the investigating officer—
Sergeant Lutz’s—characterization of Mooney as untruthful, and it remanded the
case for additional findings as to whether Mooney was prejudiced as a result of this
instance of deficient performance. That panel held:
a witness should not be asked to comment on the
credibility of another witness. Such determinations are
within the exclusive province of the jury. See [Moss v.
Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997)].
Given Sergeant Lutz’s repeated comments (on both the
recording and in his live testimony) commenting on
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Mooney’s credibility, counsel’s failure to object was
clearly deficient. Likewise, counsel was also deficient in
failing to secure an admonition with respect to Sergeant’s
[sic] Lutz’s recorded comments. See Lanham v.
Commonwealth, 171 S.W.3d 14, 19, 23-29 (Ky. 2005).
Lastly, we also agree with the circuit court that defense
counsel was deficient by eliciting such commentary from
Sergeant Lutz during cross-examination.
However, the circuit court only made a conclusory
finding that “it is reasonably probable that the outcome of
the trial would have been different but for counsel’s
errors.” An admonition following an objection will
generally cure any prejudice resulting from a Moss
violation. Thus, if counsel had objected and the trial
court admonished the jury, then a single error would not
have been prejudicial. On the other hand, counsel’s
failure to object also allowed the jury to hear repeated
instances of Sergeant Lutz’s comments on Mooney’s
credibility.
Had there been other instances of deficient
performance, the absence of specific findings of
prejudice on this issue would not have been as
problematic. But as discussed below, this matter presents
the only actionable basis for finding ineffective
assistance by Mooney’s trial counsel. While trial counsel
was deficient in failing to object to Sergeant Lutz’s
comments, there was substantial admissible evidence
which cast doubt on Mooney’s credibility relating to his
assertions of self-defense. Under the circumstances, we
conclude that the circuit court must make specific
findings whether Mooney was prejudiced due to his trial
counsel’s deficient performance.
Id., at *2.
On remand, by order of April 24, 2019, the trial court entered its
additional findings and denied Mooney RCr 11.42 relief. Contrary to Mooney’s
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version of events presented at trial, the trial court specifically found that Mooney
was not prejudiced as a result of counsel’s deficient performance. This appeal
followed.
STANDARD OF REVIEW
As established in Bowling v. Commonwealth, 80 S.W.3d 405, 411-12
(Ky. 2002):
The Strickland standard sets forth a two-prong test for
ineffective assistance of counsel:
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 by the Sixth
Amendment. 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.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To show
prejudice, the
defendant must show there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is the probability
sufficient to undermine the confidence in the
outcome.
Id., 466 U.S. at 694, 104 S.Ct. at 2068.
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Both Strickland prongs must be met before relief may be granted. “Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In the case herein, it has already
been determined that the performance of Mooney’s trial counsel was deficient.
Therefore, we must only review whether the trial court correctly determined that
Mooney failed to demonstrate prejudice resulting from counsel’s deficient
performance.
To establish prejudice, a movant must show a reasonable probability
exists that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. In short, one
must demonstrate that “counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id., 466 U.S. at 687, 104 S.Ct. at
2064.
ANALYSIS
On appeal, Mooney relies on the fact that both the trial court and
another panel of our Court determined his trial counsel was deficient for failures
concerning Sgt. Lutz’s characterization of Mooney’s veracity. Mooney argues the
trial court abused its discretion on remand in finding these deficiencies were not
prejudicial. Although Mooney believes the verdict could have been different had
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counsel performed better or differently, his assertions are sheerly speculative.
Mooney cannot rely solely on the mere presence of counsel’s deficiencies to create
a presumption of prejudice; prejudice must be shown by more than speculation. In
this regard, Mooney falls short of his burden.
Mooney failed to establish the high bar of a substantial likelihood the
jury would have returned a different verdict had counsel prevented and/or cured
Sgt. Lutz’s characterization of Mooney’s version of events, as required to merit
RCr 11.42 relief. Further, Mooney failed to demonstrate that the trial’s outcome
would have been any different had the jury heard an admonition to Sgt. Lutz’s
recorded interview, had counsel objected to Sgt. Lutz’s testimony concerning
Mooney’s veracity, and/or had counsel not asked Sgt. Lutz to characterize
Mooney’s version of events. We will not search the record to construct Mooney’s
argument for him, nor will we go on a fishing expedition to find support for his
underdeveloped arguments. “Even when briefs have been filed, a reviewing court
will generally confine itself to errors pointed out in the briefs and will not search
the record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979)
(citation omitted).
Nevertheless, considering the record before us, it is clear the trial
court did not err in determining that the overwhelming amount of testimony from
multiple witnesses which contradicted Mooney’s version of events—including his
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own testimony at times—was the basis of his conviction. Nor did the trial court err
in finding that trial counsel’s failures did not prejudice Mooney. Furthermore,
contrary to Mooney’s assertions, the trial court did not apply the wrong standard in
assessing whether counsel’s actions constituted prejudice to Mooney. On review,
it is clear from the trial court’s order that it applied the Strickland standard rather
than one of palpable error. Accordingly, the trial court did not err in denying
Mooney RCr 11.42 relief.
CONCLUSION
Therefore, and for the forgoing reasons, the order entered by the
Hopkins Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Van Mooney, Jr., pro se Daniel Cameron
LaGrange, Kentucky Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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