Clifford Vick v. Commonwealth of Kentucky ( 2023 )

RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0420-MR
CLIFFORD VICK APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-CR-00059
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES.
ECKERLE, JUDGE: Following convictions for trafficking in a controlled
substance (methamphetamine) in the first degree, possession of drug paraphernalia,
and being a persistent felony offender in the first degree (PFO I), the Muhlenberg
Circuit Court sentenced Appellant, Clifford Vick (Vick) to 20 years in prison. The
Kentucky Supreme Court affirmed his conviction on direct appeal. Vick v.
Commonwealth, No. 2019-SC-0489-MR, 2021 WL 1679582 (Apr. 29, 2021).
Vick then filed a post-conviction motion, which the Trial Court denied. He
appeals that denial. Having reviewed his claims and found no error, we affirm.
BACKGROUND
The Kentucky Supreme Court detailed the facts underlying Vick’s
convictions as follows:
Mid-February 2019, two detectives with the
Pennyrile Narcotics Task Force received a tip that
Clifford Vick was selling drugs out of a motel in Central
City, Kentucky. The next day, initiating surveillance of
the motel, Detective Gibson was in the motel office and
Detective Shoemaker was in the parking lot in an
unmarked car when Vick left his motel room. Detective
Gibson, alerted of Vick’s movement toward the office by
Detective Shoemaker, watched Vick walk to the brush
line between the motel and an adjoining business and
stop there. Detective Gibson turned away from him in an
effort to remain undetected. After Vick returned to his
room, the detectives decided to meet at a convenience
store up the street from the motel. On the way, Detective
Gibson inspected the brush line where Vick had stopped
and retrieved a knotted yellow Dollar General bag that
did not appear to have been outdoors long. Detective
Gibson opened the bag once he was back in the car. The
bag contained methamphetamine placed in a pink cell
phone charger case; digital scales enclosed in a zipped
case; green marijuana in a Gerber baby food jar; and
napkins.
In an effort to continue surveillance, the detectives
got duplicate bags from the nearby Dollar General to
replace the bag they had ripped open. On their way back
to the motel, but before they were able to place a bag in
the brush line, the detectives observed Vick walking up
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the street. Vick was already past the brush line, so they
decided to detain him. Vick was messaging on his
mobile phone until then. Nothing was found on Vick
when he was detained other than his cell phone.
Vick informed the detectives that his wife, Amber,
was in the motel room. The detectives went to the motel
and Amber consented to a search of the room. She gave
the detectives a glass methamphetamine pipe and
“roaches,” the tips remaining from smoked marijuana
cigarettes; the roaches were in a Gerber baby food jar just
like the jar in the Dollar General bag containing the
marijuana. The detectives also found napkins in the
bathroom which matched those found in the Dollar
General bag. Amber identified the items in the Dollar
General bag and she spoke with the detectives about
Vick.
After Vick was arrested, the detectives obtained a
search warrant for the contents of Vick’s cell phone,
which contained text messages referring to drug
trafficking. Some of the messages included Vick’s name
or nickname, and Amber identified herself in some
transaction-related messages. Amber was not charged
with any crimes relating to this case.
Vick was charged with trafficking in a controlled
substance in the first degree, possession of drug
paraphernalia, possession of marijuana and PFO I. The
marijuana possession charge was dismissed without
prejudice. A jury found Vick guilty of the remaining
charges, and after finding Vick guilty of PFO I,
recommended twenty years in prison on the trafficking
offense. The trial court followed that recommendation
and sentenced Vick accordingly.
Id. at *1-3 (footnotes omitted).
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Following the Kentucky Supreme Court’s affirmation of his sentence,
Vick filed various, post-conviction motions, including a motion pursuant to RCr1
11.42, raising allegations of ineffective assistance of counsel. First, Vick claimed
that his attorney’s investigation was deficient for various reasons, including failing
to proffer evidence of a motel receipt and investigate more thoroughly the initial
police search for a “Clifford Boyd” before they discovered Vick. The allegations
also purportedly resulted in a “falsified” search warrant naming Vick instead of
“Clifford Boyd.” Second, Vick claimed that counsel’s performance at trial was
deficient in failing to call witnesses and present a “legitimate” defense. Vick
purports that his attorney should have presented an “innocent of the charges”
defense, which is in reality an alibi defense, as he claims it was his wife, Amber
Vick, who “was in possession and responsible for all items confiscated[.]” Also in
his innocence or alibi defense, Vick claims that his counsel should have called two
people that would have purportedly testified that they also were making drug deals
on the cell phone found on Vick’s person. Third, Vick claimed that his attorney’s
performance deviated from the standard because counsel’s impeachment of Amber
Vick was “inadequate.” Vick believed that his counsel should have argued to the
jury that Amber Vick “could have possibly been identified as the confidential
informant in the first place in order to punish her husband for his infidelity as well
1
Kentucky Rules of Criminal Procedure.
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as that she was in fact the sole party responsible for the items found in the yellow
bag.” Vick also filed a motion for an evidentiary hearing on his RCr 11.42 claims.
On April 1, 2022, the Trial Court entered an Opinion and Order
denying the RCr 11.42 motion and the motion for an evidentiary hearing, stating,
in relevant part:
First, the Defendant contends that his attorney “failed to
adequately investigate the evidence that was used against
him in this trial.” Defendant’s motion, at 5. In essence,
the Defendant argues that his attorney was deficient
because (a) he did not challenge the investigating
officers’ purported failure to positively identify the
Defendant as the perpetrator of the crime(s) charged, and
(b) he did not emphasize at trial what the Defendant has
characterized as a discrepancy between the “location of
arrest” noted on the uniform citation (which referenced
Room 317 of the Caronada [sic] Motel) and the actual
place where the Defendant was arrested (a gas station
next to the motel).
Regarding the supposed lack of “positive identification,”
the Defendant states that initially a confidential informant
alleged that “a man named ‘Clifford Boyd’ was the
individual that was at the hotel selling drugs.”
Defendant’s motion, at 6. The Defendant goes on to
indicate that, as the investigation progressed, the
detectives began to suspect the Defendant Clifford Vick
of criminal activity, “instead of pursuing Clifford Boyd
any longer.” Id.
In presenting this outlandish argument, the Defendant
conveniently fails to mention that at trial, in response to
defense counsel’s questioning, Detective Troy Gibson
(who led the investigation) testified that (a) he knew the
Defendant by sight and (b) he knew the Defendant went
by the names “Clifford Vick” and “Clifford Boyd.”
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(Detective Gibson also indicated that he knew the
Defendant’s father, who was named “Clifford Boyd,
Sr.”) In short, the Defendant’s suggestion that his
attorney was derelict by failing to pursue another
possible suspect, “Clifford Boyd,” is nothing more than a
red herring, and a feeble one at that. The record clearly
indicates that “Clifford Boyd” and “Clifford Vick” are
not different individuals, but one and the same person:
the Defendant.
The Defendant also makes much of the fact that the
uniform citation (attached to his motion as Exhibit E)
references the “location of arrest” as Caronoda Motel,
Room 317, while the officers’ testimony at trial indicated
the Defendant “was arrested at the Marathon gas station
down the road from the motel.” Id., at 7. The Defendant
has utterly failed to show that, had his attorney pursued
this distinction more aggressively, the outcome of this
case would have been different. Consequently, his
argument fails.
Second, the Defendant states that his attorney’s
performance was deficient and prejudicial because he
“failed to call any witnesses or present any legitimate
defense.” Id., at p. 10. In support of this contention, the
Defendant again intentionally makes the patently false
claim that “the identity of the target in the detectives’
investigation . . . [was] a man other than movant.” As
noted in the preceding paragraphs, Detective Gibson
knew the Defendant by sight and knew that he went by
both “Clifford Vick” and “Clifford Boyd.” The
detectives did not begin their investigation pursuing some
mysterious alternate perpetrator – they suspected that the
Defendant was engaged in illegal drug trafficking, and
their suspicions were ultimately confirmed.
The Defendant goes on to claim that “there was no
absolute evidence ever presented as to any possession by
movant of any items found in the brush line next to the
motel.” This is false. Detective Gibson testified that he
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observed the Defendant walk from the motel to the
aforementioned brush line and stop there, pause, and
return toward the motel. Detective Gibson seized a
plastic bag from the area of the brush line where the
Defendant had just stopped. The bag contained
methamphetamine and marijuana. The Defendant
suggests his attorney was deficient because he did not
convince the jury that there was “no reasonable proof that
would even vaguely suggest that movant was responsible
for the bag and its contents.” Id., at 12. As the
discussion above shows, this claim has no merit
whatsoever.
The Defendant also claims his lawyer should have called
“Jeffrey Dukes and Billy Groves, movant’s friends, as
witnesses.” Id., at 13. He alleges that these potential
witnesses had access to his phone and intimates that they
may have been using it for illegal drug transactions. Id.
As it is highly unlikely that Dukes and Groves would
have admitted any of this on the witness stand, the
decision not to pursue this line of defense can be
characterized as sound trial strategy. It is in fact likely
that Dukes and Groves would have further implicated the
Defendant in illegal activities.
Lastly, the Defendant asserts that his attorney’s failure to
“impeach the testimony of Amber Vick during movant’s
trial” amounted to ineffective assistance of counsel. Id.,
at 16. This argument is untenable. On the night of the
Defendant’s arrest, the police questioned Amber Vick.
At that time, she made a damning statement against the
Defendant, accusing him of possessing the
methamphetamine found in the brush line and
implicating him in drug trafficking. At trial, however,
Amber Vick stated she made this prior statement to the
police because she was “on the verge of divorce because
of . . . [the Defendant’s] infidelity.” Id. Obviously,
Amber Vick made an effort during her trial testimony to
refute her prior statement to the police. The jury simply
did not believe her testimony. In the end, the Defendant
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was not convicted because of his attorney’s failure to
impeach Amber Vick; he was convicted because the
Commonwealth had overwhelming evidence evincing his
guilt.
In order to prevail on a motion filed pursuant to RCr
11.42, the Defendant must demonstrate that his attorney’s
performance was deficient and that the deficient
performance prejudiced the Defendant so as to deprive
him of a fair trial. Strickland v. Washington, 446 U.W.
[sic] 668 (1980). As the above discussion shows, the
Defendant has failed to meet either prong of the
Strickland test.
Vick timely filed a notice of appeal and moved for appointment of
counsel on appeal. The Department of Public Advocacy (DPA) reviewed the
record and underlying claims and “determined that this ‘post-conviction
proceeding . . . is not a proceeding that a reasonable person with adequate means
would be willing to bring at his own expense.’”2 Accordingly, this Court permitted
Vick to file a brief pro se. The Commonwealth then filed a responsive brief, and
we now address the issues raised by Vick.
ANALYSIS
Vick raises three issues on appeal: the Trial Court erred by finding
his trial counsel’s performance was not deficient for an alleged failure to
investigate; the Trial Court erred by finding his trial counsel’s performance was
2
Citing to and quoting from Kentucky Revised Statutes (KRS) 31.110, which enables attorneys
with the DPA to represent needy persons in certain circumstances.
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not deficient for an alleged failure to call witnesses and present a defense; and the
Trial Court erred by denying his request for an evidentiary hearing.
The Kentucky Supreme Court has laid out the following standards for
our review of ineffective assistance of counsel claims:
We evaluate ineffective assistance of counsel claims
under the standard set forth in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
adopted by this Court in Gall v. Commonwealth, 702
S.W.2d 37 (Ky. 1985). Under the Strickland framework,
an appellant must first show that counsel’s performance
was deficient. Strickland, 466 U.S. at 687, 104 S. Ct.
2052. A “deficient performance” contains errors “so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id.Second, the appellant must show that counsel’s deficient
performance prejudiced his defense at trial. Id. “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. An appellant must satisfy both elements
of the Strickland test in order to merit relief. Id.When faced with an ineffective assistance of
counsel claim in an RCr 11.42 appeal, a reviewing court
first presumes that counsel’s performance was
reasonable. Commonwealth v. Bussell, 226 S.W.3d 96,
103 (Ky. 2007) (quoting Haight v. Commonwealth, 41
S.W.3d 436, 442 (Ky. 2001), overruled on other grounds
by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009)). We must analyze counsel’s overall performance
and the totality of circumstances therein in order to
determine if the challenged conduct can overcome the
strong presumption that counsel’s performance was
reasonable. Haight, 41 S.W.3d at 441-42. In addition,
the trial court’s factual findings and determinations of
witness credibility are granted deference by the
reviewing court. Id. Finally, we apply the de novo
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standard when reviewing counsel’s performance under
Strickland. Bussell, 226 S.W.3d at 100.
Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).
When a Trial Court does not hold an evidentiary hearing on an RCr
11.42 motion, “appellate review is limited 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.’” Haley v. Commonwealth, 586 S.W.3d 744, 750 (Ky.
App. 2019) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967)).
“A hearing is 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) (citing Stanford v.
Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993), cert. denied, 510 U.S. 1049,
114 S. Ct. 703, 126 L. Ed. 2d 669 (1994); and Lewis, 411 S.W.2d at 322). See also
RCr 11.42(5).
With these standards in mind, we turn to Vick’s appellate issues.
I. Hotel receipt.
Vick first argues that his trial attorney’s performance was deficient
because he did not at trial introduce a receipt from the Caronoda Motel that Vick
proffers shows he was staying in rooms 308 and 312, and not room 317. The Trial
Court’s order does not specifically address this aspect of the claim, but it does
reject Vick’s claim that his counsel failed to investigate. Regardless, we review
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the two Strickland elements de novo, and under that review, we have found no
error.
Vick claims that his trial counsel did not present a receipt from the
hotel showing that he had been staying in rooms 308 and 312, and not 317. Vick
avers that this evidence “had always been available in the record[.]” Appellant’s
Brief at 11. Vick argues that his connection to room 317 was critical because the
items found in room 317 were similar to the items found in the brush line outside
of the motel in a bag that the Commonwealth alleged Vick had possessed.
The Commonwealth responds that even assuming without admitting
that if Vick’s counsel made a less than complete investigation, his counsel still
made a reasonable investigation and decision that was not deficient because
counsel presented a thorough alibi or innocence defense, and the receipt did not
“preclude [Vick’s] presence in the room, use of the room, or possession or use of
drugs in the room.” Appellee’s Brief at 8. We agree.
While trial counsel has a duty to make reasonable investigations and
reasonable decisions about what investigations to pursue, trial counsel does not
have to make an “investigation that the best defense lawyer, blessed not only with
unlimited time and resources but also with the inestimable benefit of hindsight,
would conduct.” Baze v. Commonwealth, 23 S.W.3d 619, 625 (Ky. 2000),
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overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.
2009) (citations omitted).
Here, it is apparent from the trial that counsel made reasonable
investigations into the evidence. Counsel thoroughly presented Vick’s alibi
defense. Counsel cross-examined the Commonwealth’s witnesses, getting the
officers to admit that the confidential informant never identified the seller of the
drugs, that there was never a sale of drugs recorded on video, and that Vick was
never seen in possession of any items found in the brush line. Further, Vick’s
wife, Amber, who was found by the officers in room 317, denied that Vick was
staying in room 317. She claimed any incriminating statements she made about
Vick when the officers arrived at room 317 were due to a constellation of issues –
she was “high as hell,” having taken a half-dozen drugs and not slept over the
previous few days, she was naked, and she was vengeful because Vick had been
engaging in extra-marital relations.
Additionally, we have reviewed the hotel receipt, which Vick attached
as Exhibit D to his RCr 11.42 motion, and we note that of the two rooms listed as
Vick’s on the receipt, one is 308 and the other appears to be 317. While the “7” in
317 is admittedly not clear, there are numerous handwritten twos and sevens on the
document, and the number more closely resembles the other handwritten sevens
than it does the handwritten twos. Given the ambiguity, the evidence was
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potentially inculpatory and could have worked against Vick’s innocence or alibi
defense. Accordingly, the Trial Court did not err by finding no deficient
performance on this issue.
Finally, if it were deficient performance to fail to introduce the
receipt, that deficiency did not result in prejudice. Vick’s trial counsel thoroughly
presented an innocence or alibi defense, which the jury rejected. This one
additional piece of evidence, which is potentially inculpatory, did not result in a
“likelihood of a different result [that was] 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)). The
Trial Court properly denied Vick’s motion on this claim.
II. Cell phone.
Vick next argues that his counsel’s performance was deficient because
counsel did not call two witnesses to testify that they had also been using the cell
phone found on Vick. The cell phone contained numerous messages indicating the
cell phone’s user had been trafficking in drugs. Vick claims that this phone, which
was on his person when arrested, was a communal phone used by others.
The Commonwealth responds that Vick’s counsel’s performance was
not deficient because he thoroughly cross-examined the witnesses about the cell
phone. Specifically, one of the investigating officers admitted that at least two
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people had been using the phone, that he could not say that the texts came from
Vick, and that even with Vick’s name on the texts that he could not verify that
Vick sent the messages. Notably, Amber Vick admitted that she also had used the
cell phone. Moreover, the Commonwealth argues that even had trial counsel
attempted to call witnesses to testify that they had used the cell phone, those
witnesses likely would have invoked their rights to remain silent and not testify
against themselves. See Amendment 5 to the United States Constitution, and
Section 11 of the Kentucky Constitution. We agree.
Having reviewed the trial and counsel’s performance, we cannot find
any deficient performance regarding calling additional witnesses to testify about
the cell phone. The cell phone was found on Vick’s person and contained
incriminating text messages. To distance Vick from the messages, counsel artfully
elicited testimony of multiple witnesses including Vick’s wife and the
investigating officers, all of which admitted at least one other person was using the
phone. Given the overwhelming evidence against Vick, the jury rejected his alibi
defense, and the scale would not have tipped in Vick’s favor if two additional
witnesses (who probably would not self-incriminate) presented echoes of already-
elicited testimony. See, e.g., Commonwealth v. Searight, 423 S.W.3d 226, 232
(Ky. 2014) (not ineffective to fail to call witness who, among other reasons, would
have provided testimony cumulative of that already presented at trial).
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Moreover, “[d]ecisions relating to witness selection are normally left
to counsel’s judgment and this judgment will not be second-guessed by hindsight.”
Foley v. Commonwealth, 17 S.W.3d 878, 885 (Ky. 2000), overruled on other
grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005) (citation omitted).
This platitude holds especially true here where the witnesses would likely have
invoked their right to remain silent and not be compelled to testify against
themselves.
Accordingly, Vick’s counsel’s performance was not deficient.
Additionally, given the likelihood that the purported witnesses would have elected
not to testify, Vick was not prejudiced by their non-testimony. Thus, the Trial
Court properly denied Vick’s motion for post-conviction relief.
III. Evidentiary hearing.
Finally, Vick argues that the Trial Court erred by denying his motion
for an evidentiary hearing regarding the aforementioned two potential witnesses.
Because the issue is conclusively refuted by the face of the record, the Trial Court
did not err by denying the motion for an evidentiary hearing. Haley, supra;
Fraser, supra. Accordingly, we affirm the Trial Court’s order on this claim.
CONCLUSION
Having thoroughly reviewed the trial, we hold that Vick did not suffer
from counsel who was laboring under Strickland deficient performance.
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Additionally, we hold that Vick suffered from no Strickland prejudice from any of
counsel’s alleged errors. Accordingly, we AFFIRM the Trial Court’s order
denying the RCr 11.42 motion and the motion for an evidentiary hearing.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Clifford Vick, pro se Daniel Cameron
Fredonia, Kentucky Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
Rachel A. Wright
Assistant Solicitor General
Frankfort, Kentucky
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