Stephon Newcomb v. Commonwealth of Kentucky

RENDERED: JUNE 24, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0269-MR
STEPHON NEWCOMB APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE BRIAN K. PRIVETT, JUDGE
ACTION NO. 07-CR-00084
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Stephon Newcomb brings this appeal from a January 30,
2020, Opinion of the Scott Circuit Court denying his Kentucky Rules of Criminal
Procedure (RCr) 11.42 motion after an evidentiary hearing. We affirm.
The underlying facts have been set forth by the Kentucky Supreme
Court in Newcomb v. Commonwealth, 410 S.W.3d 63 (Ky. 2013), as follows:
The charges against Newcomb involved the rape
of two female victims, Karen and Jennifer
[pseudonyms]. . . .
The first alleged victim, Karen, was 17 years old at
the time of the offense. She and Newcomb both worked
at Burger King[.] . . .
On the day of the alleged rape, Newcomb and
Karen were working the drive-through at Burger
King. Upon receiving permission from her mother,
Karen agreed to drive Newcomb home after work
because he needed a ride. . . . Newcomb told Karen to
drive past his house because he needed to talk with her.
Newcomb directed Karen to a deserted parking lot,
where she stopped the car. When Karen put the car in
park, Newcomb removed the keys from the ignition,
leaned toward Karen, and began kissing her neck. Karen
told Newcomb that he had the wrong idea and told him to
stop. Newcomb then started to remove his pants, and
Karen pushed him away, telling him that they were not
going to have sex. Newcomb moved back into the
passenger side of the car and said that he could not
believe Karen was doing this. When Karen demanded
the car keys, Newcomb grabbed her hair and pulled her
on top of him. While holding Karen by the hair,
Newcomb pulled down her pants and raped her.
....
The second alleged victim, Jennifer, was 20 years
old at the time. Jennifer knew Newcomb because they
lived in the same neighborhood. Newcomb dropped by
Jennifer's house occasionally to visit her and her brother,
and she and Newcomb were friendly. . . .
On a day that was about ten-days after the alleged
rape of Karen, Jennifer was at home collecting her
laundry to take to Alicia Carroll’s house for washing
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when she realized Newcomb was standing in her living
room. The door to Jennifer’s house had not been
completely shut, but she did not invite Newcomb into her
house; he just appeared without announcing himself.
Newcomb forced Jennifer to him and started
kissing her neck, saying, “You know you want me.”
Jennifer resisted his advances and demanded that he
leave. But he kept kissing her neck and told her, “Don’t
push me away. You know you want me.” She again told
him no.
Newcomb then started unfastening Jennifer’s belt,
but she re-fastened it. Newcomb loosened her belt again;
and, at that point, Jennifer froze in fear. Newcomb then
had intercourse with Jennifer on her couch, against her
will. Jennifer testified that she did not scream or fight
Newcomb because she was afraid and in shock. . . .
Id. at 70-71.
As Newcomb was seventeen years old at the time of the offenses,
Newcomb was brought before a juvenile session of the Scott District Court. The
Commonwealth filed a motion seeking to transfer Newcomb as a youthful offender
to the circuit court to be tried as an adult pursuant to Kentucky Revised Statutes
(KRS) 640.010. Following a hearing, the district court concluded that Newcomb
should be transferred to circuit court and tried as an adult.
Thereafter, the Scott County Grand Jury indicted Newcomb upon two
counts of first-degree rape, second-degree burglary, second-degree unlawful
imprisonment, and intimidating a witness. The first jury trial ended in a mistrial
due to a hung jury. But, in the second trial, the jury found Newcomb guilty upon
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two counts of first-degree rape, criminal trespass, and intimidating a participant in
legal process. The court sentenced Newcomb to a total of 25-years’ imprisonment.
Newcomb appealed his conviction and sentence of imprisonment. In Newcomb v.
Commonwealth, 410 S.W.3d 63, the Supreme Court affirmed same.
In 2019, Newcomb filed an RCr 11.42 motion to vacate his sentence
of imprisonment based upon ineffective assistance of counsel. The circuit court
conducted an evidentiary hearing, and by Opinion entered January 30, 2020, the
circuit court denied the RCr 11.42 motion. This appeal follows.
Newcomb contends that the circuit court erroneously denied his RCr
11.42 motion to vacate. Initially, Newcomb argues that his counsel at the transfer
hearing in district court rendered ineffective assistance. Newcomb asserts that
counsel was ineffective for failing to secure the testimony of an expert witness
regarding juvenile sex offender treatment. Newcomb particularly points to the
testimony of Dr. Edward Connor at the RCr 11.42 hearing:
Most importantly to the juvenile court’s decision
to transfer in this case, Dr. Connor’s testimony at the
hearing made clear that there were, in fact, additional
services that could have been offered to Stephon to
continue his treatment in DJJ [Department of Juvenile
Justice]. Furthermore, it was Dr Connor’s opinion that
“if he would have continued to be treated within DJJ, that
treatment, combined with natural neurological
development, would have led to a positive prognosis.” In
making that assessment, Dr. Connor stated that the
adolescent brain is not fully developed until the mid-
twenties and Stephon could have stayed in treatment to
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receive services until he was twenty-one (21) years of
age. Furthermore, Dr. Connor stated that this fact, in
conjunction with the fact that Stephon suffered from
mental illness and was in need of psychiatric care, meant
that with four additional years of additional services he
“would’ve had a much better prognosis” especially
considering “DJJ generally does a very good job of
treating our juveniles.”
It was Dr. Connor’s opinion that while DJJ had been very
involved with Stephon, the problem was not that Stephon
was not receiving attention. The problem arose from the
fact that, in this case, Stephon received a lack of
consistency in his treatment and this is why it was not
effective. Dr. Connor believed that with the additional
four years of treatment, with proper medication and
consistent individual therapy it is very likely that Stephon
could have been successfully treated within DJJ and for
that reason it was Dr. Connor’s opinion that “he was
transferred prematurely.”
Newcomb’s Brief at 9-10 (citations omitted).
To prevail upon a claim of ineffective assistance of counsel,
Newcomb must demonstrate that counsel’s performance was deficient and that
such deficiency resulted in prejudicial error. Strickland v. Washington, 466 U.S.
668 (1984); Brown v. Commonwealth, 253 S.W.3d 490, 498 (Ky. 2008). And,
prejudice occurs where “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
KRS 640.010 controls a transfer hearing held in district court to
determine if a juvenile should be tried as an adult in circuit court. Thereunder, the
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district court must determine if probable cause exists to believe that an offense had
been committed, and if so, the court must then consider the following factors to
decide if transfer to the circuit court is proper under KRS 640.010(2)(c):
(c) If the District Court determines probable cause exists,
the court shall consider the following factors before
determining whether the child’s case shall be transferred
to the Circuit Court:
1. The seriousness of the alleged offense;
2. Whether the offense was against persons or
property, with greater weight being given to
offenses against persons;
3. The maturity of the child as determined by his
environment;
4. The child’s prior record;
5. The best interest of the child and community;
6. The prospects of adequate protection of the
public;
7. The likelihood of reasonable rehabilitation of
the child by the use of procedures, services, and
facilities currently available to the juvenile
justice system;
8. Evidence of a child’s participation in a gang;
9. Whether the child is a defendant with a serious
intellectual disability in accordance with KRS
532.130; and
10. Whether the child used a firearm in the
commission of the offense.
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In its January 30, 2020, Opinion, the circuit court determined that no
prejudice resulted from any alleged error committed by counsel in the district court
proceedings:
A quick look at the Strickland test of deficient
performance and prejudice shows that Defendant’s
counsel provided effective assistance at the Transfer
Hearing. Skipping to the 2nd prong, prejudice, the
weight of the evidence is very strong that the District
Court could have found six of the eight factors in favor of
Transfer just from the case file and the allegations in the
complaint. The offense was very serious, a Rape 1st, and
it was against a person. The Defendant was 17 years old
at the time of the offense and he was then committed to
DJJ as a Juvenile Sex Offender for a previous Rape lst
[of his sister], so that it would be in the best interest of
the public, and for the protection of the public, that the
Defendant be Transferred as a Youthful Offender. The
only factor in the Defendant’s favor without any rebuttal
would be there was no evidence he was in a gang. This
evidence at Transfer could not be controverted or
mitigated by an expert on one factor of eight, when six of
the factors weighed so heavily against him. The
Defendant can show no real prejudice to his case against
Transfer, so under the Strickland test his grounds on
ineffective assistance must fail.
Defendant offered testimony at hearing in this
11.42 matter from an expert, Dr. Edward Conner, an
expert on juvenile sex offender treatment, and also
submitted as an exhibit a commitment review report
presented by the Department of Juvenile Justice. Dr.
Conner basically stated that the Defendant had not
exhausted all treatment options at the time of the Transfer
Hearing. This again, would not have been enough to
overcome the District Court’s findings on all
the other factors that necessitated Transfer.
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The DJJ commitment review report, of which the
Defendant argues is very important to his case for
ineffective assistance of counsel, when read in full, does
not support the Defendant’s claim that DJJ recommended
further treatment. A look at the full report, which has to
do with whether the juvenile should remain committed to
DJJ (the only other option being release), shows that
Defendant was in placement, receiving treatment, was
released to the community, where he had some minor
issues in school, and then received the charges for which
he was transferred and ultimately found guilty. The
report also states that while there may be treatment
available for the juvenile at the time, DJJ could not
perform those services because he had been taken into
custody on a new Rape lst charge, basically, that
treatment was not available then for the Defendant
because he had allegedly reoffended by committing
another rape. This is not favorable to the Defendant at
all. The Defendant’s argument attempts to cherry-pick
the treatment option out of four pages of bad facts against
him when it is clear the current charges, and Defendant’s
history, and other factors made further treatment as a
juvenile a poor option.
Given all of the factors weighing heavily against
the Defendant at Transfer, when examined in the totality
of circumstances, this Court cannot find that Defendant
suffered any prejudice, nor that trial counsel made any
error during the Transfer Hearing.
Scott Circuit Court Opinion at 3-5. We agree with the circuit court.
At the transfer hearing in district court, Stacy Heisler, a social services
worker employed by the Department of Juvenile Justice (DJJ), testified that
Newcomb had been previously committed to the DJJ in 2003. According to
Heisler, Newcomb had raped his sister, bound her with duct tape, and threatened
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her life. Heisler stated that Newcomb had completed the sexual offender treatment
program. Heisler also believed that it was in the best interests of the community
for Newcomb to be transferred to circuit court. Barbara Edwards also testified at
the transfer hearing. She was employed as a juvenile services specialist with the
DJJ. Edwards stated that if Newcomb was not transferred, he would stay in DJJ’s
custody and would repeat the sexual offender treatment program. Edwards also
believed Newcomb should be transferred because she questioned whether
Newcomb could be rehabilitated by participating in the same program again.
Even if counsel were deficient for failing to secure expert testimony at
the transfer hearing and for failing to generally investigate, we conclude that such
deficiency was not prejudicial. Considering the factors set forth in KRS 640.010
and the uncontradicted evidence at the hearing, we do not believe that a reasonable
probability exists that the outcome of the hearing would have been different – that
Newcomb would not have been transferred. Newcomb had previously raped his
sister and had been committed to DJJ. While at DJJ, Newcomb completed sexual
offender treatment program but still reoffended by committing two additional
rapes. Simply stated, we cannot conclude that Newcomb’s counsel at the transfer
hearing rendered ineffective assistance.
Newcomb next asserts trial counsel rendered deficient and prejudicial
performance during closing argument. Newcomb particularly argues:
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[D]uring the second trial, Stephon’s attorney, during
closing arguments, commented on E.J.’s [victim] absence
by remarking that E.J. was not present and asking, “What
is their explanation for that?” That comment then
permitted the Commonwealth to make the following
damning remarks during its closing, “I’ll tell you why
E.J. is not here. It is because she’s scared. And she’s
been threatened.” The Commonwealth continued saying
that the worst part about it “is that it corrupts the system
. . . why isn’t E.J. here? In all probably [sic] it is because
she’s been threatened and she is scared about what will
happen if she comes down and testifies.”
....
Had counsel not opened the door and allowed the
Commonwealth to directly argue to the jury that the
reason E.J. had not appeared was that she was afraid of
Stephon, there is a reasonable probability of a different
result. This is because of the prejudicial effect of E.J.’s
absence in light of the allegation of intimidation. In
effect, E.J.’s absence combined with the
Commonwealth’s statement corroborated the
intimidation charge, which then corroborated E.J.’s rape
allegation, which corroborated A.P.’s rape allegation.
The evidence of this fact is that, again this was the only
change between the two trials, one of which resulted in a
jury that could not come to a verdict, and one that
resulted in a guilty verdict and twenty-five (25) years in
prison.
Newcomb’s Brief at 12-14 (citations omitted).
The circuit court viewed trial counsel’s comments during closing
argument as trial strategy. We agree that trial counsel is afforded discretion during
closing argument and believe that even if trial counsel rendered deficient
performance, such deficiency was not prejudicial. Considering the evidence at
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trial, we are unable to conclude that the outcome of the trial would have been
different absent the alleged deficient performance of trial counsel. Accordingly,
we are of the opinion that the circuit court properly denied Newcomb’s RCr 11.42
motion to vacate.
For the foregoing reasons, the opinion of the Scott Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kieran J. Comer Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy Frankfort, Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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