Commonwealth of Kentucky Court of Appeals

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1 RENDERED: JANUARY 9, 2015; 10:00 A.M. NOT TO BE PUBLISHED MODIFIED: MARCH 16, 2015; 10:00 A.M. Commonwealth of Kentucky Court of Appeals NO CA MR MAURICE WATKINS APPELLANT APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 07-CR COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, D. LAMBERT, AND VANMETER, JUDGES. COMBS, JUDGE: Maurice Watkins appeals the order of the Christian Circuit Court which denied his motion for relief pursuant to Kentucky Criminal Rule[s] of Procedure (RCr) After reviewing the record and the law, we affirm.

2 On March 28, 2007, the Dollar General Store in Hopkinsville was robbed. The robber brandished a gun and forced employees to give him a money bag; he then fled the store. The employees immediately called police. Responding officers discovered a gun lying on a shelf in the store. They thought it was a pistol, but it was actually a compressed carbon dioxide BB gun. Police officers also searched the area surrounding the store. At the nearby high school, they encountered Watkins. The store employees had described the robber as wearing gray sweatpants. Watkins was wearing dark-colored pants rather than gray, but he had the bag of money that had been taken from the store. While Watkins was being questioned by officers, another officer located the gray sweatpants in the grass. A key was in the pocket. Officers later found that it opened the door of Watkins s residence. Following a jury trial, Watkins was convicted of one count of first-degree robbery on March 4, On May 29, 2008, the final judgment and sentence were entered. Watkins received a sentence of sixteen-years incarceration. This Court affirmed his conviction on March 6, On October 19, 2011, Watkins filed a motion to vacate the judgment pursuant to RCr In his motion, he alleged ineffective assistance of counsel and denial of due process. He requested an evidentiary hearing. The trial court denied the motion on June 21, This appeal follows. In order to establish that he received ineffective assistance of counsel, a convicted defendant must show that counsel s performance was deficient and -2-

3 that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The prejudice must be proven by 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. On appeal, we may only review a trial court s denial of a motion for an evidentiary hearing for whether the allegations are refuted by the record and, if they were true, whether they would nullify the conviction. Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967). No evidentiary hearing is required if the record on its face contradicts the allegations. Sparks v. Commonwealth, 721 S.W.2d 726, 727 (Ky. App. 1986). At the outset, we must address the trial court s ruling on two of Watkins s claims relating to ineffective assistance of appellate counsel. The trial court did not decide the errors substantively; instead it summarily dismissed them relying on Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010). Hollon established the right for claims of ineffective appellate counsel to be brought forth in a collateral appeal. The trial court held that Hollon did not apply to Watkins because it was decided after his conviction and the conclusion of his direct appeal. The Hollon court, however, addressed how its holding should be applied: [o]ur ruling is to have prospective effect only. It applies to this case, to cases pending on appeal in -3-

4 which the issue has been raised and preserved, and to cases currently in or hereafter brought in the trial court in which the issue is raised. Id. at 439. Watkins filed his RCr motion in late 2011 several months after Hollon was rendered. Therefore, it was error for the trial court to decline analysis of the effectiveness of Watkins s appellate counsel. Because we may affirm for any reason, we will address the merits of Watkins s appeal. Fischer v. Fischer, 348 S.W.3d 582, 590 (Ky. 2011). Watkins first claims that trial counsel erred by not objecting to the characterization of a BB gun as a deadly weapon. However, trial counsel did raise that objection in his motion for a directed verdict. Thus, his argument is unfounded. Because this same allegation is the basis for Watkins s claim for denial of due process, we must nonetheless analyze the merits of this argument. One of the elements of first-degree robbery is that the defendant must have been armed with a deadly weapon. Kentucky Revised Statute[s] (KRS) (1)(b). In this case, a compressed carbon dioxide BB gun was found at the scene, and the robbery victims testified that Watkins used it to threaten them. Watkins correctly asserts that an actual deadly weapon must have been used in order for a jury to properly conclude that a defendant is guilty of first-degree robbery; a victim s perception of a toy or other object is insufficient to satisfy the element. See Wilburn v. Commonwealth, 312 S.W.3d 321, 327 (Ky. 2010). However, Wilburn does not apply to this case. -4-

5 Wilburn was not decided until two years after Watkins s conviction. At the time of his trial, the law in effect was that the victim s mere perception of an object as a deadly weapon satisfied that element of first-degree robbery. As the Commonwealth points out, trial counsel could not have been ineffective for failing to predict a change in the law. Additionally, Watkins incorrectly characterizes the weapon as a toy gun. A compressed carbon dioxide BB gun discharges projectiles that have the capability of harming a person. Several months after Wilburn, our Supreme Court commented that a jury could reasonably determine that a pellet or BB gun was a deadly weapon.... Johnson v. Commonwealth, 327 S.W.3d 501, 507 (Ky. 2010). Watkins s counsel did not err, and Watkins was not deprived of due process. Watkins next claims that it was error for trial counsel not to object to the Commonwealth s use of photographs of evidence during its opening statement. The objects in the pictures were the gray sweatpants and the house key that officers found in the parking lot where they arrested Watkins. Watkins argues that the photographs were improperly presented because the actual objects were improperly admitted. He contends that the pants and key were irrelevant. Watkins reasons that the objects were irrelevant because they were merely circumstantial evidence of his guilt. However, [c]ircumstantial evidence alone is sufficient to sustain a conviction. Turner v. Commonwealth, 328 S.W.2d 536, 538 (Ky. 1959) (internal citations omitted). In this case, the victims had described -5-

6 the robber as wearing gray sweatpants. Watkins was found close to the store around the time that the robbery was committed; the pants were found near Watkins; and the key in the pants opened the door of Watkins s residence. Watkins was also in possession of the money bag stolen from the store. This set of facts rendered the disputed evidence highly relevant. Trial counsel did not err in declining to object under these circumstances. Watkins also asserts that the evidence was improperly considered because the officer who found the sweatpants was not available to testify. Thus, a chain of custody could not be established. This argument lacks merit. Items that are clearly identifiable and distinguishable [do] not require proof of a chain of custody in order to be admissible. Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998). In this case, several police officers testified that they had either seen the sweatpants and key, handled them, or photographed them. They were readily identifiable. The tangible objects were not inadmissible. Therefore, counsel did not err by refraining from objecting to the photographs during the Commonwealth s opening statement. Watkins next argues that his appellate counsel erred when he failed to argue against the Commonwealth s peremptory strike of a black potential juror. After the thirteen jurors had been selected and the other venire members had been dismissed, Watkins s counsel pointed out that the Commonwealth had stricken a potential juror who was black. The Commonwealth stated that the strike was based on the juror s age, and it named other (white) potential jurors whom it had -6-

7 stricken for the same reason. The court accepted the Commonwealth s explanation and overruled Watkins s objection. Watkins now claims that his appellate counsel should have contested the decision in his direct appeal. The Sixth Amendment of the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.] (emphasis added) It is well established that if the jury selection has been based on racial reasons, the defendant s Fourteenth Amendment equal protection rights are violated. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Kentucky has adopted the Batson court s three steps to determine whether a peremptory strike was discriminatory: First, the defendant must make a prima facie showing of racial bias for the peremptory challenge. Second,... the Commonwealth [must] articulate clear and reasonably specific race-neutral reasons for its use of a peremptory challenge.... Finally, the trial court has the duty to evaluate the credibility of the proffered reasons and determine if the defendant has established purposeful discrimination. Washington v. Commonwealth, 34 S.W.3d 376, 379 (Ky. 2000). Three prongs must be fulfilled in order to prove a prima facie case of discriminatory juror practices: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. -7-

8 Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979). In this case, Watkins did not prove a prima facie case. He did not argue that any sort of systematic discrimination was being carried out in Christian County. In spite of the lack of a prima facie showing of discrimination, the Commonwealth fulfilled the second prong of the test. It provided a race-neutral reason for its strike: it believed the potential juror was close in age to Watkins. The trial court agreed that the juror and Watkins appeared to be of similar age, and it did not overrule the Commonwealth s strike. Watkins has not provided any evidence or authority which indicates that he would have prevailed in an appeal based on contesting the strike. Therefore, we are not persuaded that his appellate counsel was ineffective. Watkins has not provided evidence that his counsel was ineffective either at his trial or during the appeal process. Therefore, we affirm the Christian Circuit Court. ALL CONCUR. -8-

9 BRIEF FOR APPELLANT: Maurice Antoine Watkins, pro se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General James Havey Assistant Attorney General Frankfort, Kentucky -9-

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