RENDERED: NOVEMBER 18, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0259-MR
AARON H. COPASS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 15-CR-00070
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
ACREE, JUDGE: A jury convicted Appellant, Aaron H. Copass, of first-degree
burglary under KRS1 511.020 and fourth-degree assault under KRS 508.030. The
Court of Appeals affirmed his conviction on direct appeal.2 Copass then filed a
1 Kentucky Revised Statutes. 2 Copass v. Commonwealth, No. 2015-CA-001647-MR, 2017 WL 2609244 (Ky. App. June 16, 2017). motion to vacate and set aside his conviction under RCr3 11.42. The Fayette
Circuit Court denied that motion, and Copass now appeals. Finding no error, we
affirm.
BACKGROUND
At the time of his arrest, Copass attended the University of Kentucky
and was a member of the National Guard. Copass previously served active duty in
Iraq. He and Amanda Fogle had a romantic relationship and lived together until
their relationship ended in February 2014. Copass and Fogle resumed their
relationship in September 2014 but continued to live separately. They acquired a
dog in November 2014, for which they shared day-to-day responsibilities in
providing care. Copass had a key to Fogle’s apartment so that he could come by
and take care of the dog.
After finishing a shift at work on December 4, 2014 at approximately
2:00 a.m., Copass texted Fogle to inform her that he would come over to her
apartment the next morning to get the dog. However, the text message exchange
became confrontational, and Copass went over to her apartment that night instead.
When Copass arrived at Fogle’s apartment, Fogle had closed two safety latches to
prevent Copass from entering. As Copass attempted to force the door open, Fogle
called 911. Copass succeeded in opening the door, and Fogle threw her phone at
3 Kentucky Rules of Criminal Procedure.
-2- him. A struggle ensued, which resulted in Fogle sustaining injuries to her face,
wrist, and thumb, and bruises elsewhere on her body. At one point during the
altercation, Copass covered Fogle’s mouth, which prevented her from breathing
and required her to bite his hand to force him to release her.
Two police officers arrived and interviewed Copass and Fogle
separately. The officers then arrested Copass. A grand jury subsequently indicted
him for first-degree burglary and fourth-degree assault.
The case proceeded to a jury trial. During voir dire, Copass’s attorney
moved to strike a juror for cause because the juror was a police officer employed
by the Lexington Police Department; the juror worked with and knew the arresting
officers and another witness for the Commonwealth. The trial judge denied the
motion following a bench conference. Copass’s attorney did not use a peremptory
strike to remove the officer and did not object to any other juror for cause. The
attorney used all nine of his allotted peremptory strikes on jurors other than the
officer.
Several jurors indicated that they had been victims of or otherwise had
experience with domestic violence or burglary. Copass’s attorney used peremptory
strikes to remove some of these jurors. However, he did not object to several
others, and five of these individuals ultimately served on the jury.
-3- Copass was convicted on both charges. On direct appeal, he argued
(1) the trial court abused its discretion by failing to strike for cause the juror who
was a police officer; (2) he was deprived of a fair and impartial jury because the
trial court did not strike the jurors who had experience with burglary or domestic
violence; and (3) he was entitled to a directed verdict on the burglary charge due to
insufficient evidence. Copass, 2017 WL 2609244 at *2.
This Court was not persuaded by his arguments on appeal, concluding
that, though he moved to strike the police officer for cause, he did not properly
preserve the issue for appeal because he chose to use peremptory strikes on jurors
that he had not objected to for cause rather than on the police officer. Id. at *3.
Further, Copass was not denied a fair and impartial jury on the basis of the jurors
who experienced burglary or domestic violence because he had waived the alleged
error by failing to challenge these jurors for cause. Id. Finally, Copass was not
entitled to a directed verdict because a reasonable jury could convict Copass of
both crimes after evaluating the evidence before them. Id. at *4.
Copass then filed a motion to vacate and set aside his sentence
pursuant to RCr 11.42 alleging ineffective assistance of counsel at trial. He
presented five arguments: (1) trial counsel was ineffective because he failed to use
a peremptory strike to remove the police officer during voir dire; (2) trial counsel
was ineffective because he failed to object for cause to jurors who had experience
-4- with domestic violence or burglary, and thereby failed to preserve the issue for
appeal; (3) trial counsel was ineffective because he failed to investigate Copass’s
mental health problems resulting from his military service and failed to present a
mental health defense; (4) trial counsel was ineffective because he failed to
impeach Fogle on the basis of purported inconsistencies between her grand jury
testimony and trial testimony; and (5) even if the above grounds are insufficient on
their own, they constitute cumulative error sufficient to deem his trial counsel’s
performance ineffective. The circuit court denied his motion without an
evidentiary hearing. This appeal followed.
ANALYSIS
“In a motion brought under RCr 11.42, ‘[t]he movant has the burden
of establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding.’” Haley v. Commonwealth, 586 S.W.3d 744, 750 (Ky. App. 2019)
(quoting Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006), overruled
on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009)).
“The Sixth Amendment recognizes the right to the assistance of counsel . . . [and]
‘the right to counsel is the right to the effective assistance of counsel.’” Strickland
v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674
(1984).
-5- “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Id. at
686, 104 S. Ct. at 2064. To establish this, a defendant must demonstrate to the trial
court (1) that his defense counsel’s performance was deficient, and (2) that the
deficient performance prejudiced his defense. Id. at 687, 104 S. Ct. at 2064.
When analyzing trial counsel’s performance for deficiencies, “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 (quoting Michel v.
Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83 (1955)); accord
Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007). To determine whether
this presumption has been overcome, courts must “analyze counsel’s overall
performance” as well as the totality of the circumstances surrounding his
performance. Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).
Demonstrating whether deficient trial performance prejudiced a
defendant “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, 466 U.S. at
687, 104 S. Ct. at 2064. “The critical issue is not whether counsel made errors, but
-6- whether counsel was so thoroughly ineffective that defeat was snatched from the
hands of probable victory.” Simmons, 191 S.W.3d at 561 (citing United States v.
Morrow, 977 F.2d 222 (6th Cir. 1992)).
Both components of the Strickland test “involve mixed questions of
law and fact[.]” Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
“[M]ixed questions of law and fact in collateral proceedings . . . are reviewed de
novo[.]” Johnson v. Commonwealth, 412 S.W.3d 157, 166 (Ky. 2013) (citing
Brown, 253 S.W.3d at 500). Both “counsel’s performance and any potential
deficiency caused by counsel’s performance” are, therefore, reviewed de novo.
Brown, 253 S.W.3d at 500 (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th
Cir. 1997)).
However, appellate courts review trial courts’ pure factual findings for
clear error. Brown, 253 S.W.3d at 500 (citing CR4 52.01). “When reviewing a
trial court’s findings under the clear error standard, the appellant court must
determine ‘whether or not those findings are supported by substantial evidence.’”
CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010) (quoting Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003)). “Substantial evidence is more than a
scintilla, and must do more than create a suspicion of the existence of the fact to be
established.” Am. Rolling Mill Co. v. Pack, 278 Ky. 175, 182, 128 S.W.2d 187,
4 Kentucky Rules of Civil Procedure.
-7- 190 (1939). But, substantial evidence need not be “absolutely compelling or lead
inescapably to but one conclusion[,]” and instead is “‘[e]vidence that a reasonable
mind would accept as adequate to support a conclusion[.]’” CertainTeed Corp.,
330 S.W.3d at 72 (quoting Moore, 110 S.W.3d at 354).
Jury Selection
Copass’s first and second arguments relate to jury selection. He first
argues his trial attorney was ineffective by failing to use a peremptory strike to
remove the police officer from the jury pool during voir dire. Second, he argues
his trial attorney was ineffective by failing to preserve juror bias issues for direct
appeal regarding a group of jurors who had, either directly or indirectly,
experienced burglary, domestic violence, or both. We disagree. The trial
attorney’s decision to use peremptory strikes on other jurors was an exercise of his
professional judgment. “Counsel’s decisions with respect to jury selection are
regarded as matters of trial strategy.” Caudill v. Commonwealth, 120 S.W.3d 635,
653 (Ky. 2003).
Court and counsel questioned the police officer individually. The trial
judge asked him whether he would feel pressure, as a police officer, to find Copass
guilty. The officer stated he felt no such pressure, and that he would be able to
consider and appropriately weigh the testimony and evidence. He acknowledged
that, when he charges someone, he believes the person committed a crime.
-8- However, when questioned further, the officer stated “facts and circumstances”
could ultimately bear out otherwise. He demonstrated a clear understanding that
criminal charges require probable cause, while convictions require proof beyond a
reasonable doubt. And, he stated that “every day” an officer could believe he has
probable cause to arrest someone who is later found not guilty.
A total of 24 jurors, including the officer, were questioned
individually at the bench, and six of these jurors were removed for cause. Eight of
the remaining eighteen were then removed by peremptory strike – defense counsel
struck six of the eight. Each of these six jurors stated during a bench conference
that he or she had directly or indirectly experienced burglary, domestic violence, or
both. For instance, two jurors were victims of domestic violence for an extended
period. Others’ homes had been burglarized. Some indicated they would have a
hard time remaining impartial based on their experiences. Accordingly, the bench
colloquies reflect that counsel considered the histories of each juror and chose to
exclude certain jurors over others. Defense counsel apparently believed the police
officer was more likely to be impartial than the jurors he removed. This was a trial
strategy decision, which does not constitute deficient performance.
Even if trial counsel’s decisions regarding jury selection amounted to
deficient representation, the police officer’s participation on the jury did not
prejudice Copass. A juror is not biased toward conviction solely because he or she
-9- is a police officer. In Brown v. Commonwealth, the appellant asserted the Warren
Circuit Court abused its discretion by denying a motion to strike for cause a juror
who was a police officer. 313 S.W.3d 577, 596 (Ky. 2010). The juror stated
during voir dire she worked as a police officer, encountered the Warren
Commonwealth Attorney’s office and the state police during her work, previously
worked in federal law enforcement, and her brother and father had worked
extensively in law enforcement. Id. at 597. However, when the court and parties
asked whether she could assess the credibility of police officers as she would any
other witness, “she stated that she was well aware that police officers could testify
falsely or mistakenly and that her training had impressed upon her the importance
of treating an officer’s testimony no differently than anyone else’s.” Id. Because
this juror had an “evident awareness of the realities of police testimony” and held a
“manifest respect for fair proceedings[,]” the trial court denied a motion to strike
her for cause. Id.
Here, too, we conclude the police officer who participated on the jury
did not indicate a bias requiring removal. As in Brown, the officer here was
confident he could evaluate the evidence fairly and did not feel pressured to reach
a conviction. He understood an arrest or charge is not a conviction, and that
conviction required a higher standard of proof. As in Brown, the juror here was
-10- not automatically biased because he was a police officer and, therefore, his
inclusion on the jury did not prejudice Copass.
Similarly, participation of five jurors who experienced burglary or
domestic violence did not result from ineffective assistance, nor did it prejudice
Copass. “[T]he mere fact that a prospective juror has been the victim of a crime
similar to the crime being tried does not by itself imply a disqualifying bias.”
Brown, 313 S.W.3d at 598. Just as counsel and court examined the jurors who
were removed, they examined these five jurors individually. Each indicated he or
she could be impartial despite their experiences. Defense counsel considered their
histories and answers and used his professional judgment to exercise his
peremptory strikes on others and to allow these five to remain on the jury. We
presume that such decisions “fall[] within the wide range of reasonable
professional assistance[,]” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, and the
trial court did not err in finding Copass failed to overcome this presumption.
Mental Health Defense
Copass argues his trial counsel was ineffective because he did not
investigate Copass’s history of PTSD or hire a mental health expert to present a
mental health defense at trial. Again, we disagree. In victim impact statements,
Fogle and her mother both stated their belief that Copass suffered from PTSD
resulting from his active duty military service. Copass testified in his own defense
-11- at trial, and he informed the jury that he had served in active duty in the National
Guard and was undergoing counseling through the Veterans Administration.
Though counsel did not pursue a mental health defense during trial, he did present
mental health issues for mitigation purposes during sentencing.
“In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691,
104 S. Ct. at 2066. “Counsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by
the defendant.” Id. Copass’s trial counsel was aware of Copass’s mental health
history, and used information obtained from conversations with his client to inform
his tactical decision to use this information to mitigate Copass’s sentence rather
than as a defense at trial. “[W]hen a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as unreasonable.”
Id. Thus, the trial court did not err when it determined that trial counsel’s decision
to not present a mental health defense did not constitute ineffective representation.
Impeachment of Fogle
Next, Copass argues his trial counsel was ineffective because he did
not impeach Fogle based on inconsistencies between her trial testimony and her
-12- grand jury testimony. As the Commonwealth correctly notes in its brief, there is
no transcript of Fogle’s grand jury testimony in the appellate record. Though the
trial court’s order does discuss Fogle’s grand jury testimony – specifically, that
Fogle had asked Copass earlier that day to come over to take care of the dog – the
record does not include the transcript of Fogle’s grand jury testimony. “[W]hen
the complete record is not before the appellate court, that court must assume that
the omitted record supports the decision of the trial court.” Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985). We must assume the omitted
transcript of any grand jury testimony would have supported the trial court’s
determination that counsel’s decision not to cross examine Fogle here did not
constitute ineffective assistance.
Regardless, the trial court properly deferred to defense counsel’s
decision to limit his cross examination of Fogle. It is reasonable strategy to avoid
excessive impeachment of the victim during a domestic violence and burglary trial.
We agree with the trial court that this decision was strategic and is therefore an
insufficient basis to conclude defense counsel was ineffective.
Cumulative Effect
Copass argues his defense counsel was ineffective due to cumulative
error. He argues the alleged instances of ineffective assistance demonstrate, in
combination, that he was deprived of a fair trial, even if each instance is
-13- insufficient on its own to warrant setting aside his sentence. We find no such
cumulative effect. “In view of the fact that the individual allegations have no
merit, they can have no cumulative value.” McQueen v. Commonwealth, 721
S.W.2d 694, 701 (Ky. 1986).
Evidentiary Hearing
Lastly, Copass argues the trial court erred by denying his motion
without first conducting an evidentiary hearing. We disagree. When a trial court
evaluates an RCr 11.42 motion, it “shall determine whether the allegations in the
motion can be resolved on the face of the record, in which event an evidentiary
hearing is not required[;]” it is required to conduct an evidentiary hearing “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 (Ky. 1993)).
Copass has stated no such grounds. Each of his arguments alleging
ineffective assistance can be conclusively resolved upon an examination of the
record. In our view, the record demonstrates each alleged error was an exercise of
trial counsel’s professional judgment in shaping his trial strategy. Because the trial
court could evaluate the merits of Copass’s RCr 11.42 motion on the face of the
-14- record before it, it did not err by not conducting an evidentiary hearing before
denying his motion.
CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court’s
December 29, 2020 opinion and order denying Copass’s RCr 11.42 motion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
J. Ryan Chailland Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Mark D. Barry Assistant Attorney General Frankfort, Kentucky
-15-