Alexander L. Ruff v. Commonwealth of Kentucky ( 2021 )

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0647-MR
ALEXANDER L. RUFF APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 08-CR-003686
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND MCNEILL, JUDGES.
KRAMER, JUDGE: Alexander L. Ruff appeals the Jefferson Circuit Court’s order
denying his motion to vacate, set aside, or correct sentence pursuant to RCr1 11.42.
After a careful review, we affirm.
In upholding Ruff’s conviction and sentence, the Kentucky Supreme
Court described the underlying facts thusly,
1
Kentucky Rules of Criminal Procedure.
On November 24, 2008, Alexander Ruff entered
the New York Fashions clothing store in Louisville,
Kentucky, with the intent to rob the store and its
customers. Ruff was accompanied that day by John
Benton and Kendrick Robinson. With tee-shirts tied
around their faces and armed with handguns, Ruff and
Benton entered the store while Robinson waited in a
nearby vehicle. Ruff fired a single shot into the ceiling
and ordered the people inside to get on the ground and
surrender their wallets and cash. Ruff fired the gun
again, this time striking store owner Mohamed
Abderlrahman in the abdomen. Ruff and Benton then
collected the customers’ wallets and fled in Robinson’s
car. Abderlrahman died as a result of internal bleeding
caused by his injury.
Four days later, Louisville Metro Police
Department (“LMPD”) Officers Christopher Sheehan and
Benjamin Lunte, while on narcotics patrol, stopped a
vehicle driven by Ruff’s girlfriend, Chesica White, for an
unreadable temporary tag. Ruff happened to be seated in
the passenger seat when the officers approached the
vehicle. After White and Ruff exited the vehicle, Ruff
suddenly fainted and fell to the street. The officers
testified that, suspecting that Ruff had swallowed
narcotics, they obtained consent from White to search the
vehicle. White disputed that she gave consent. Officer
Sheehan found a 45-caliber handgun and a garbage bag
full of clothing under the passenger seat of the car. Ruff
admitted ownership of the gun and clothing. He was then
arrested on unrelated charges and transported to an
LMPD substation for questioning.
That evening, Ruff was questioned and placed in
jail on the unrelated charges. Five days later on
December 3, Ruff was transported to the LMPD
homicide office for further questioning. He once again
returned for questioning on December 5. Over the course
of his interviews with LMPD detectives, Ruff admitted to
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being involved in the New York Fashions robbery, and
implicated Benton and Robinson as co-conspirators.
Ruff was indicted by a Jefferson County Grand
Jury on one count of murder and three counts of robbery.
His motions to suppress evidence found and statements
made during the vehicle stop and subsequent statements
at the LMPD office were denied. At trial, Ruff took the
stand in his own defense. He confessed to his
involvement in the robbery and shooting, including
taking customers’ wallets and firing his weapon in
Mohamad Abdelrahman’s direction. The jury convicted
Ruff of wanton murder and first-degree robbery. Finding
an aggravating factor of first-degree robbery, the jury
returned a sentence of life without the benefit of parole or
probation for twenty-five years. The trial court sentenced
in accord with the jury’s recommendation[.]
Ruff v. Commonwealth, No. 2011-SC-000640-MR, 2013 WL 1789861, at *1 (Ky.
Apr. 25, 2013) (footnote omitted).
After his conviction was affirmed, Ruff filed a pro se motion to vacate
his conviction and sentence pursuant to RCr 11.42 in the circuit court, which was
summarily denied. Ruff appealed to this Court, and the matter was remanded for
an evidentiary hearing.2 The circuit court appointed counsel to Ruff who
supplemented the pro se motion. The circuit court held an evidentiary hearing and
once again denied Ruff’s requested relief pursuant to RCr 11.42. This appeal
followed.
2
See Ruff v. Commonwealth, No. 2014-CA-001448-MR, 2017 WL 5045613 (Ky. App. Nov. 3,
2017).
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Although Ruff made numerous arguments for ineffective assistance of
counsel to the circuit court, his only argument to this Court is that trial counsel
failed to adequately prepare for the penalty phase of the trial. We disagree.
We first note that no recording of the jury trial, including the penalty
phase and sentencing, appears in the record before us. Ruff does not make direct
citations to testimony given during the penalty phase of the trial; however, his
arguments stem entirely from what he contends was the inadequacy of mitigation
testimony given by his sister and his aunt. Ruff filed a designation of record
pursuant to CR3 75.01 that designated, among other items, video recordings from
his trial and the evidentiary hearing. Although the evidentiary hearing is contained
in the record before us, the video recordings of the trial, including the penalty
phase and sentencing, are not.4
On appeal, the trial court’s findings of fact will not be
disturbed unless they are clearly erroneous. CR 52.01.
When the evidence is not presented for review, this court
is confined to a determination as to whether the pleadings
support the judgment and on all issues of fact in dispute
we are required to assume that the evidence supports the
findings of the lower court.
3
Kentucky Rule of Civil Procedure.
4
The record before us indicates that Ruff was sentenced at the end of the trial, and he waived a
presentence investigation (PSI) pursuant to RCr 11.02. The purpose of a PSI is “to furnish the
court with an adequate background from which an evaluation of the defendant may be made[.]”
Misher v. Commonwealth, 576 S.W.2d 238, 241 (Ky. App. 1978). The PSI would have provided
the circuit court, in relevant part, with additional background on Ruff’s family history, including
abuse, to take into consideration prior to imposition of his sentence.
-4-
McDaniel v. Garrett, 661 S.W.2d 789, 791 (Ky. App. 1983) (citation omitted).
Thus, without the complete record, we must assume the substance of
the testimony given during the penalty phase by Ruff’s sister and aunt support the
circuit court’s order. Id. We also look to the evidentiary hearing to analyze Ruff’s
argument that his trial counsel did not adequately prepare for the penalty phase of
the trial.
We review a trial court’s denial of an RCr 11.42 motion as to
whether the denial constituted an abuse of that court’s discretion. Bowling v.
Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
Because the trial court conducted an evidentiary hearing on the
motion, its findings of fact will not be set aside unless they are clearly erroneous.
CR 52.01; Adams v. Commonwealth, 424 S.W.2d 849, 851 (Ky. 1968). Findings
of fact are not clearly erroneous if supported by substantial evidence. Black Motor
Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964).
To prevail on a claim made pursuant to RCr 11.42, the defendant must
show that counsel’s performance was deficient and that the deficiency prejudiced
the defense. Demonstration of deficient representation requires showing that
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counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment and that representation fell
below an objective standard of reasonableness. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). To demonstrate
prejudice, a defendant must show that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable. Id. The proper
standard for attorney performance is that of reasonably effective assistance, and the
inquiry must be whether counsel’s assistance was reasonable considering all of the
circumstances. Id. A court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id. at 689, 104 S.Ct. at
2065.
Ruff argues trial counsel’s performance was deficient due to failure to
reasonably investigate his background and present mitigating evidence during the
penalty phase of the trial. We disagree.
Dr. Stephanie Hall, a psychiatrist, testified on Ruff’s behalf at the
evidentiary hearing. She interviewed Ruff post-conviction and diagnosed him with
post-traumatic stress disorder (PTSD) and major depressive disorder, stemming
primarily from childhood abuse and trauma. Ruff now argues that trial counsel
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was deficient because, although Ruff underwent a psychiatric evaluation by the
Kentucky Correctional Psychiatric Center (KCPC) prior to trial regarding
competency to stand trial, counsel should have obtained an expert witness to
conduct an independent psychiatric evaluation. He asserts that the KCPC report
pointed to childhood trauma and had counsel conducted a thorough investigation,
the necessity of an expert witness would have been apparent.
Ruff’s lead counsel during the trial has since passed away, but co-
counsel testified at the evidentiary hearing. She stated that, although she was
added to the defense team just two months prior to the trial, she was primarily
responsible for mitigation. Ruff was facing the death penalty for his crimes.
Counsel testified that the agreed-upon strategy was to have Ruff testify on his own
behalf to admit his involvement in the robbery and express remorse, which counsel
believed to be genuine. Ruff testified during the guilt phase of the trial, but not the
penalty phase, as counsel believed he could not add anything further. Counsel
testified that Ruff’s testimony was central to the defense strategy and that his
remorse was the best mitigation. However, Ruff’s sister and aunt testified during
the penalty phase regarding the abuse and trauma Ruff suffered in his childhood.
Counsel testified that she reached out to multiple family members, but only Ruff’s
sister and aunt were responsive.
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We agree with the circuit court’s analysis regarding the issue of
deficiency:
In Wong v. Belmontes,[5] the U.S. Supreme Court
was faced with a set of facts similar to the facts of this
case. 558 U.S. 15 (2009). Defense counsel in Wong was
criticized for not presenting expert testimony on the
defendant’s mental state. Id. at 23-24. Instead, trial
counsel used family members and the defendant himself
to present lay testimony of defendant[’]s troubled
childhood. Id. at 21. The Court found no error in trial
counsel’s strategy and explained that “the body of
mitigating evidence . . . was neither complex nor
technical.” Id. at 24. Further, the evidence “required
only that the jury make logical connections of the kind a
lay person is well equipped to make.” Id. Finally, the
Court held that “the jury simply did not need expert
testimony to understand the ‘humanizing’ evidence; it
could use its common sense or its own sense of mercy.”
Id.
Here, trial counsel testified at the post-conviction
hearing that all decisions regarding Ruff’s defense were
made for reasoned, tactical purposes. For instance, trial
counsel believed the best strategy was to have Ruff take
the stand and show remorse. If the [KCPC report]
accusing Ruff of malingering in bad faith were presented
to the jury, they could have frustrated the overall defense
strategy. Similarly, it was trial strategy to stipulate
competency and the contents of the KCPC report that
concluded Ruff was competent to stand trial. Again, trial
counsel made an informed decision that if the KCPC
report detailing Ruff’s anti-social personality disorder
and malingering were presented to the jury, the entire
trial strategy of admitting guilt, taking responsibility, and
showing remorse would be jeopardized.
5
Wong v. Belmontes, 558 U.S. 15, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009).
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Ruff titled the first roman [sic] numeral in the
Argument section of his post-hearing memo as “trial
counsel failed to present mitigation evidence.” This is
disingenuous. Trial counsel did present mitigation
evidence in the form of testimony by several of Ruff’s
family members. Ruff’s aunt and sister testified to his
family and social history as well as his childhood trauma.
Similar to Wong, “The jury simply did not need expert
testimony to understand the ‘humanizing evidence’”
presented by Ruff’s family members. Id.
As in Wong, it is important to consider all the evidence the jury would
have had before it had Ruff’s trial counsel followed the path he now asserts. Had
Ruff presented expert testimony during mitigation regarding PTSD and depression,
he would have opened the door for the Commonwealth to present the KCPC
report, which was laden with findings that would have potentially undermined the
defense strategy entirely. For instance, the KCPC report noted Ruff’s proclivity to
commit violence and have a complete lack of remorse. It detailed a history of
lying since childhood and that Ruff never felt bad about doing so. The report also
contained detailed findings of malingering, deceit, aggression, and disregard for
the safety of others. This was in opposition to the remorseful, honest testimony
that counsel hoped to convey to the jury by Ruff.
We agree with the circuit court that trial counsel’s strategy regarding
mitigation was sound. Ruff failed to overcome the presumption that counsel
provided a reasonable trial strategy. See United States v. Morrow, 977 F.2d 222,
229-30 (6th Cir. 1992). Accordingly, we find no error.
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Ruff has similarly failed to demonstrate prejudice. When a defendant
claims prejudice related to mitigation evidence, he must establish “a reasonable
probability that a competent attorney, aware of [the available mitigating evidence],
would have introduced it at sentencing,” and “that had the jury been confronted
with this . . . mitigating evidence, there is a reasonable probability that it would
have returned with a different sentence.” Wiggins v. Smith, 539 U.S. 510, 535-36,
123 S. Ct. 2527, 2542-43, 156 L. Ed. 2d 471 (2003). Ruff failed to meet this
burden.
Ruff points out that he faced five sentence possibilities for the murder
conviction, imprisonment for (1) a term of twenty to fifty years; (2) life; (3) life
without the possibility of parole for twenty-five years; (4) life without the
possibility of parole; or (5) death.6 Ruff received the punishment of life with the
possibility of parole at twenty-five years. He contends that, had trial counsel
presented expert testimony, there was “a reasonable probability that at least one
juror would have been persuaded to give a lesser sentence.”7 Ruff was facing the
death penalty. He took the stand and admitted to his involvement in the robbery
and shooting a gun in the direction of the victim. We agree with the circuit court
6
The jury found that the murder was committed under aggravating circumstances because Ruff
was engaged in the commission of robbery in the first degree when he murdered the victim.
Thus, he was subject to the death penalty.
7
See page 14 of Appellant’s brief.
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that, considering the evidence against Ruff, he received a relatively light sentence.
He has failed to demonstrate that actions of trial counsel prejudiced him at all,
much less to the extent that the results of the trial would have been different.
Accordingly, we affirm the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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