Alfonso Diaz Diaz v. Commonwealth of Kentucky ( 2023 )

RENDERED: SEPTEMBER 29, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1109-MR
ALFONSO DIAZ-DIAZ APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE
ACTION NO. 13-CR-00061
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND COMBS, JUDGES.
THOMPSON, CHIEF JUDGE: Alfonso Diaz-Diaz appeals from an order of the
Woodford Circuit Court which denied his Kentucky Rules of Criminal Procedure
(RCr) motion to vacate his conviction due to ineffective assistance of counsel.
Appellant argues that he was denied effective assistance of counsel because his
counsel did not communicate effectively with him due to a language barrier.
Appellant also claims that trial counsel failed to conduct an adequate pretrial
investigation, failed to hire a toxicologist, failed to hire an accident
reconstructionist, and failed to subject a blood test to a Daubert1 hearing.
Appellant also argues that his trial counsel failed to inform him of possible lesser
included sentences that may have been available. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
On April 21, 2013, Appellant attended a rodeo in Woodford County.
At this rodeo, Appellant consumed alcohol. Appellant began causing a disturbance
at the rodeo and was asked to leave by security. Evidence in the record indicates
that security believed Appellant was intoxicated. Appellant left the rodeo in his
vehicle. He eventually began driving in the wrong lane on US 60 in Woodford
County. Multiple 911 calls were made regarding his driving. Ultimately,
Appellant crashed into a vehicle being driven by the Cohern family. Three adults
and a child were injured, one child was killed, and another child was uninjured. At
the accident site, Appellant smelled of alcohol and police found twelve empty beer
bottles in his vehicle.
On July 3, 2013, a grand jury indicted Appellant on one count of
murder;2 four counts of first-degree assault;3 two counts of first-degree wanton
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993).
2
Kentucky Revised Statutes (KRS) 507.020.
3
KRS 508.010.
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endangerment;4 one count of operating a motor vehicle while under the influence
of alcohol (DUI), first offense, with aggravating circumstances;5 and one count of
operating a vehicle without a license.6 Appellant hired attorney Brian Darling to
represent him. Mr. Darling had previously represented Appellant and spoke
Spanish.
On June 4, 2014, Appellant entered a guilty plea in which he would
plead guilty to all the charges and receive a twenty-five-year term of
imprisonment. During the plea hearing, Appellant and the trial court entered into a
lengthy plea colloquy. Although Appellant spoke little English, a Spanish
speaking interpreter from the Administrative Office of the Courts (AOC) was
present. His sentencing was then set for August 6, 2014.
Two days before the sentencing, Appellant, through counsel, filed a
motion to withdraw his guilty plea. On August 6, the trial court heard arguments
on the motion. Appellant argued that he was not a native Spanish speaker, but
raised speaking a language called Zoque. Appellant alleged that while he could
speak the Spanish language, he did not fully understand the legal terms used by his
attorney and the AOC Spanish interpreter. In other words, Appellant claimed that
4
KRS 508.060.
5
KRS 189A.010(5)(a).
6
KRS 186.410(1).
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he was not fully aware of what the guilty plea meant and did not understand that he
was being sentenced to twenty-five years in prison. The trial court denied the
motion to withdraw the guilty plea and sentenced Appellant according to its terms.
On June 9, 2015, Appellant filed a pro se RCr 11.42 motion alleging
ineffective assistance of counsel. In July of 2015, the trial court issued an order
setting the matter for a hearing and appointed the Department of Public Advocacy
to represent Appellant.7 The DPA attorney then filed a supplemental RCr 11.42
motion which included additional allegations of ineffective assistance of counsel.
In November of 2019, the trial court held a two-day hearing. The
following people testified at the hearing: Appellant; Mr. Darling, Appellant’s trial
attorney; Dr. Rusty Barrett, a linguistic anthropologist and expert in the Zoque
language; and Ilse Apestegui, the AOC interpreter who was present at Appellant’s
plea hearing and sentencing hearing. On August 15, 2022, the trial judge denied
Appellant’s RCr 11.42 motion. This appeal followed.
STANDARD OF REVIEW
Generally, to prevail on a claim of ineffective assistance of counsel,
Appellant must show two things:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
7
Judge Rob Johnson presided over Appellant’s plea and sentencing hearings. Judge Jeremy
Mattox presided over Appellant’s RCr 11.42 motion and hearing.
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functioning as the “counsel” guaranteed the defendant 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674 (1984). “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id.An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment. The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a
defendant has the assistance necessary to justify reliance
on the outcome of the proceeding. Accordingly, any
deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance
under the Constitution.
Id. at 691-92, 104 S. Ct. at 2066-67 (citations omitted). “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. at 2067. “The defendant must show that
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 a
probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.
Ct. at 2068.
At the trial court level, “[t]he burden is upon the
accused to establish convincingly that he was deprived of
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some substantial right which would justify the
extraordinary relief afforded by . . . RCr 11.42.” On
appeal, the reviewing court looks de novo at counsel’s
performance and any potential deficiency caused by
counsel’s performance.
And even though, both parts of the Strickland test
for ineffective assistance of counsel involve mixed
questions of law and fact, the reviewing court must defer
to the determination of facts and credibility made by the
trial court. Ultimately however, if the findings of the
trial judge are clearly erroneous, the reviewing court may
set aside those fact determinations. [Kentucky Rules of
Civil Procedure (CR)] 52.01 (“[f]indings of fact shall not
be set aside unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the
credibility of the witness.”) The test for a clearly
erroneous determination is whether that determination is
supported by substantial evidence. This does not mean
the finding must include undisputed evidence, but both
parties must present adequate evidence to support their
position.
Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (citations omitted).
Keeping the above standard in mind, we must also take into account
that this case involved a guilty plea. When analyzing alleged ineffective assistance
of counsel claims as they pertain to guilty pleas, we must consider the following:
A showing that counsel’s assistance
was ineffective in enabling a defendant to
intelligently weigh his legal alternatives in
deciding to plead guilty has two
components: (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
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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.
Evaluating the totality of the circumstances
surrounding the guilty plea is an inherently factual
inquiry which requires consideration of “the accused’s
demeanor, background and experience, and whether the
record reveals that the plea was voluntarily made.”
While “[s]olemn declarations in open court carry a strong
presumption of verity,” “the validity of a guilty plea is
not determined by reference to some magic incantation
recited at the time it is taken [.]” The trial court’s inquiry
into allegations of ineffective assistance of counsel
requires the court to determine whether counsel’s
performance was below professional standards and
“caused the defendant to lose what he otherwise would
probably have won” and “whether counsel was so
thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Because “[a] multitude of
events occur in the course of a criminal proceeding which
might influence a defendant to plead guilty or stand
trial,” the trial court must evaluate whether errors by trial
counsel significantly influenced the defendant’s decision
to plead guilty in a manner which gives the trial court
reason to doubt the voluntariness and validity of the plea.
Bronk v. Commonwealth, 58 S.W.3d 482, 486-87 (Ky. 2001) (citations omitted).
ANALYSIS
Appellant’s first argument on appeal is that his counsel was
ineffective because trial counsel could not properly communicate with him.
Appellant claims that trial counsel failed to realize that Appellant could not
effectively understand or communicate in Spanish, did not hire an interpreter who
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could speak Zoque, and caused him to enter a guilty plea involuntarily. Appellant
testified at the RCr 11.42 hearing that he could not always understand Mr. Darling
when he was trying to explain legal concepts to him and that counsel’s Spanish
was sometimes unclear. Dr. Barrett, the Zoque language expert, testified that he
spoke with Appellant and discussed the case with him. Dr. Barrett’s conclusion
was that, while Appellant was proficient in Spanish, he had difficulty
understanding specialized legal terms and concepts and was unable to effectively
communicate with his attorney throughout the legal process.
On the other hand, Mr. Darling testified that he was able to
communicate with Appellant using Spanish. He also testified that he would
sometimes utilize AOC interpreters when speaking with his client in conference
rooms at the courthouse.8 In addition, Ms. Apestegui, the AOC interpreter,
testified that, because of her profession, she had a good sense about whether a
defendant was having trouble understanding her translation. When asked if she
believed Appellant had difficulty understanding her, she testified that he was able
to understand her, and she saw no indications Appellant was having trouble.9 She
8
Appellant testified that Mr. Darling never used an interpreter.
9
Ms. Apestegui could not remember specifics regarding Appellant’s plea and sentencing
hearings; however, she reviewed the video recordings of both hearings and based her testimony
off of that review.
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also testified that if she believed Appellant could not fully understand her, she
would have notified the court.
The trial court concluded that Appellant was able to understand the
guilty plea process. The court based this on the testimony of Mr. Darling and Ms.
Apestegui. In addition, Judge Mattox reviewed the plea and sentencing hearings
and noted that Judge Johnson spent around twenty minutes on Appellant’s plea
colloquy. Further, any time Appellant expressed he was having difficulty
understanding during the plea hearing, Judge Johnson would explain things to him.
Judge Johnson also asked Appellant if Mr. Darling had explained the plea
agreement to him and explained his rights. Appellant answered in the affirmative
to those questions. Finally, Appellant ably asked Judge Johnson and the AOC
interpreter for clarification and to repeat themselves a few times during the
hearings, and those requests were carried out.
Based on these facts, the trial court believed Appellant was able to
understand the guilty plea process. We find no error. Judge Mattox was faced
with competing theories on whether Appellant was able to fully understand the
plea process. It was his prerogative which testimony to find more credible, Brown,
supra, and we must defer to his findings if they are supported by substantial
evidence. We believe that there is substantial evidence to support the trial court’s
conclusion. Mr. Darling and Ms. Apestegui both believed Appellant understood
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what was happening during the plea and sentencing hearings. Additionally, the
plea colloquy was extremely thorough and Appellant stated that he understood his
rights and was satisfied with Mr. Darling’s representation. Trial counsel was not
ineffective in this instance.
Appellant’s next argument on appeal is that trial counsel was
ineffective for failing to conduct a thorough pretrial investigation before advising
Appellant to enter a guilty plea. Appellant claims that Mr. Darling did not review
the discovery with him, inform him of any defenses he might have should the case
go to trial, or inform him of any independent investigations that might be carried
out in his defense.
Appellant does not advise this Court as to how a pretrial investigation
would have benefited his case. He points to no witnesses or other evidence that
could potentially help his cause. Appellant was found at the scene of the accident,
his car was involved in the accident, and he was driving on the wrong side of the
road. He also admitted on the record before the trial court that he caused the
accident. A pretrial investigation would have been futile.
In addition, Mr. Darling testified that he did review the case with
Appellant, including the discovery and possible defenses he might have. Mr.
Darling also testified that he discussed the possibility of getting a lengthier
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sentence if he went to trial. Finally, Mr. Darling testified that Appellant’s focus
was getting the best plea deal possible.
Again, we have an instance of conflicting testimony. When it comes
to witness credibility and weighing testimony, we must defer to the trial court.
Brown, supra. Here, the trial court found no error and that finding is supported by
substantial evidence.
Appellant next argues that trial counsel was ineffective for failing to
hire a toxicologist as an expert witness and for failing to request a Daubert hearing.
After the accident, Appellant was transported to the hospital and his blood was
drawn. A blood serum test was conducted and the alcohol content in his blood
serum was found to be 220 mg/dL. “Blood serum occurs when the solid cellular
material in whole blood is precipitated out, leaving only the liquid portion called
serum. When this serum is tested for alcohol a higher BAC[10] often results as more
alcohol is concentrated in the liquid serum.” Love v. Commonwealth, 55 S.W.3d
816, 821 (Ky. 2001). Appellant argues that a toxicologist could have thrown doubt
onto his level of intoxication due to a serum test being performed and not a whole
blood test, which is the usual method of testing for alcohol intoxication. Appellant
also argues that a Daubert hearing would have shown a serum test is unreliable.
KRS 189A.010(1) states in pertinent part:
10
Blood alcohol concentration.
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A person shall not operate or be in physical control of a
motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more
as measured by a scientifically reliable test or tests of
a sample of the person’s breath or blood taken within
two (2) hours of cessation of operation or physical
control of a motor vehicle[.]
KRS 189A.005(1) defines alcohol concentration as “either grams of alcohol per
100 milliliters of blood or grams of alcohol per 210 liters of breath[.]” Here,
Appellant argues that a toxicologist and Daubert hearing could have shown that
blood serum testing was not a reliable method of determining if a person was
above the legal limit of alcohol intoxication according to the standards set out in
Kentucky statutes.
We do not believe Mr. Darling was ineffective as to this issue. A
person’s BAC is not required to prove the crime of driving under the influence.
KRS 189A.010(1)(b) states that it is unlawful for a person to operate a vehicle
under the influence of alcohol. KRS 189A.010(3) allows proof, other than a
person’s BAC, to be introduced to prove intoxication. Here, there was ample proof
that Appellant was intoxicated while he was driving. He was asked to leave the
rodeo due to intoxication, he was driving on the wrong side of the road, there were
twelve empty beer bottles in his car, and he smelled like alcohol. There was a
plethora of proof showing that Appellant was driving while intoxicated even
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without a BAC. A toxicologist and Daubert hearing were unnecessary and we find
no error.
Appellant’s next claim is that Mr. Darling should have consulted with
an accident reconstructionist. This argument is without merit. As the trial court
stated in the order being appealed, “[t]he employment of an accident
reconstructionist would [not] make any difference whatsoever.” We agree.
Appellant was driving on the wrong side of the road and collided with the Cohern
family’s vehicle. How an accident reconstructionist could have helped Appellant’s
case is unclear. Again, we find no error.
Appellant’s next argument on appeal is that his trial counsel was
ineffective for failing to inform him that, had he gone to trial, he would have been
eligible for jury instructions which would include lesser included offenses. Again,
we find no error here. Mr. Darling testified that he went over the elements of the
case with Appellant and possible lesser included offenses. In addition, Mr. Darling
testified that Appellant was focused on getting the best plea deal possible with the
least amount of time. We find no error as to this issue.
Appellant’s final argument on appeal is that he was denied effective
assistance of counsel due to trial counsel’s accumulated errors. Cumulative error is
a doctrine “under which multiple errors, although harmless individually, may be
deemed reversible if their cumulative effect is to render the trial fundamentally
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unfair. We have found cumulative error only where the individual errors were
themselves substantial, bordering, at least, on the prejudicial.” Brown v.
Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010) (citation omitted). We have
indicated in this Opinion that Appellant’s trial counsel did not make any errors;
therefore, there can be no reversal based on cumulative error.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Woodford
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kieran J. Comer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
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