RENDERED: MARCH 25, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0831-MR
ANTONIO CORDERA DOUGLAS APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE LISA PAYNE JONES, JUDGE ACTION NO. 17-CR-00228
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL, JUDGES.
McNEILL, JUDGE: Antonio Cordera Douglas appeals from an order of the
Daviess Circuit Court denying his motion pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42. We affirm.
The underlying factual history of this matter was summarized in
Douglas v. Commonwealth, No. 2018-SC-000250-MR, 2019 WL 1747031 (Ky.
Apr. 18, 2019): On January 21, 2017, [Victoria] McFarland drove to Douglas’ home in Daviess County, Kentucky, to “hang out” and have sex. They had known each other for much of their lives and had a history of intimacy with each other. Prior to her arrival, McFarland consumed two beers and also smoked marijuana. While at Douglas’ house, Douglas told McFarland that he was scared and felt like someone was after him. Douglas then left the room and returned with a pistol. McFarland told him that he did not need the gun and that it was “not going to do anything for [him].” The two began kissing.
Sometime thereafter, McFarland noticed Douglas’ pistol on the floor, picked it up, and placed it in a nearby potted plant located in the corner of the living room. After a period of additional kissing, McFarland decided that she wanted to leave. Douglas protested and asked her where his gun was. He then stated that she was not allowed to leave until he found his gun. McFarland informed him that the gun was in the plant. After she turned and attempted to leave, Douglas grabbed her shirt, sat her down on a chair, pointed the gun at her head and shot her. The bullet passed through McFarland’s right arm and pelvic area, with an exit wound on her buttock.
Douglas declined McFarland’s cry for help. Instead, he laughed and said that she “took that like a soldier.” He then picked her up, exited the house, and placed her in the driver’s seat of her car. McFarland successfully drove home but then fell on the ground after exiting her vehicle. Seeing her neighbor nearby, she yelled “he shot me over a piece of ass!”
McFarland was hospitalized for two or three days during which she underwent two surgeries. Her arm required a metal plate and screws. In addition to other injuries, her strength and mobility had been diminished, specifically in her fingers. She disclosed to an investigating detective that although she thought the shooting was intentional, it could have been an
-2- “accident.” This disclosure was reiterated during her subsequent trial testimony.
Id. at *1.
Douglas was sentenced to twenty years’ incarceration following a jury
trial.1 After the Kentucky Supreme Court affirmed Douglas’ conviction, he filed a
pro se motion for relief pursuant to RCr 11.42 in the Daviess Circuit Court. The
motion was denied without an evidentiary hearing. This appeal followed.
To prevail under RCr 11.42, the defendant must show that trial
counsel’s performance was deficient by demonstrating counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. The defendant must also show that the deficient
performance prejudiced the defense by demonstrating that counsel’s errors were so
serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction
resulted from a breakdown in the adversary process that renders the result
unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984). The proper standard for attorney performance is that of
reasonably effective assistance and the inquiry must be whether counsel’s
assistance was reasonable considering all of the circumstances. Id. “[A] court
1 The jury also found that Douglas was a persistent felony offender in the first degree.
-3- 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 (internal quotation
marks and citation omitted).
Douglas raises four arguments to this Court, which we will address in
turn. His first two arguments concern the racial composition of the jury. He
contends that he was denied effective assistance of counsel because his trial
attorney failed to object to (1) the venire panel not being a representative cross
section of the population; and (2) a jury in which there was a substantial
underrepresentation of a racial or other identifiable group. The first part of
Douglas’ argument is self-defeating. On page 4 of his brief to this Court, he
acknowledges “there was no showing that the jurors in this case were not drawn
from a fair cross section of the community[.]” Nevertheless, he asserts that trial
counsel should have raised the issue. Douglas’ argument is without merit and we
decline to address it further.
Turning to the second part of Douglas’ argument regarding the racial
composition of the jury, we similarly find it to be meritless. The right to a
completely impartial jury does not entitle parties to a jury of any particular
composition. See Commonwealth v. Doss, 510 S.W.3d 830, 835 (Ky. 2016).
-4- Without any evidence whatsoever, Douglas asserts that trial counsel “failed to
investigate the back door practices of racial discrimination utilized by officials in
Daviess County where only 1 or 2 African American’s [sic] are called to be venire
panel members[.]”2 Douglas fails to identify what he believes these “back door
practices” to be, yet he contends his attorney should have made the argument
nonetheless.
“Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried.” [Akins v. State of Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945)]. “Although a defendant has no right to a petit jury composed in whole or in part of persons of [the defendant’s] own race, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (internal quotes and citations omitted.) The Constitution does not require “petit juries . . . [that] mirror the community and reflect the various distinctive groups in the population,” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)[.]
Doss, 510 S.W.3d at 835.
The Kentucky Supreme Court went on to describe the criteria used in
Kentucky to select prospective jurors:
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MARCH 25, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0831-MR
ANTONIO CORDERA DOUGLAS APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE LISA PAYNE JONES, JUDGE ACTION NO. 17-CR-00228
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL, JUDGES.
McNEILL, JUDGE: Antonio Cordera Douglas appeals from an order of the
Daviess Circuit Court denying his motion pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42. We affirm.
The underlying factual history of this matter was summarized in
Douglas v. Commonwealth, No. 2018-SC-000250-MR, 2019 WL 1747031 (Ky.
Apr. 18, 2019): On January 21, 2017, [Victoria] McFarland drove to Douglas’ home in Daviess County, Kentucky, to “hang out” and have sex. They had known each other for much of their lives and had a history of intimacy with each other. Prior to her arrival, McFarland consumed two beers and also smoked marijuana. While at Douglas’ house, Douglas told McFarland that he was scared and felt like someone was after him. Douglas then left the room and returned with a pistol. McFarland told him that he did not need the gun and that it was “not going to do anything for [him].” The two began kissing.
Sometime thereafter, McFarland noticed Douglas’ pistol on the floor, picked it up, and placed it in a nearby potted plant located in the corner of the living room. After a period of additional kissing, McFarland decided that she wanted to leave. Douglas protested and asked her where his gun was. He then stated that she was not allowed to leave until he found his gun. McFarland informed him that the gun was in the plant. After she turned and attempted to leave, Douglas grabbed her shirt, sat her down on a chair, pointed the gun at her head and shot her. The bullet passed through McFarland’s right arm and pelvic area, with an exit wound on her buttock.
Douglas declined McFarland’s cry for help. Instead, he laughed and said that she “took that like a soldier.” He then picked her up, exited the house, and placed her in the driver’s seat of her car. McFarland successfully drove home but then fell on the ground after exiting her vehicle. Seeing her neighbor nearby, she yelled “he shot me over a piece of ass!”
McFarland was hospitalized for two or three days during which she underwent two surgeries. Her arm required a metal plate and screws. In addition to other injuries, her strength and mobility had been diminished, specifically in her fingers. She disclosed to an investigating detective that although she thought the shooting was intentional, it could have been an
-2- “accident.” This disclosure was reiterated during her subsequent trial testimony.
Id. at *1.
Douglas was sentenced to twenty years’ incarceration following a jury
trial.1 After the Kentucky Supreme Court affirmed Douglas’ conviction, he filed a
pro se motion for relief pursuant to RCr 11.42 in the Daviess Circuit Court. The
motion was denied without an evidentiary hearing. This appeal followed.
To prevail under RCr 11.42, the defendant must show that trial
counsel’s performance was deficient by demonstrating counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. The defendant must also show that the deficient
performance prejudiced the defense by demonstrating that counsel’s errors were so
serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction
resulted from a breakdown in the adversary process that renders the result
unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984). The proper standard for attorney performance is that of
reasonably effective assistance and the inquiry must be whether counsel’s
assistance was reasonable considering all of the circumstances. Id. “[A] court
1 The jury also found that Douglas was a persistent felony offender in the first degree.
-3- 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 (internal quotation
marks and citation omitted).
Douglas raises four arguments to this Court, which we will address in
turn. His first two arguments concern the racial composition of the jury. He
contends that he was denied effective assistance of counsel because his trial
attorney failed to object to (1) the venire panel not being a representative cross
section of the population; and (2) a jury in which there was a substantial
underrepresentation of a racial or other identifiable group. The first part of
Douglas’ argument is self-defeating. On page 4 of his brief to this Court, he
acknowledges “there was no showing that the jurors in this case were not drawn
from a fair cross section of the community[.]” Nevertheless, he asserts that trial
counsel should have raised the issue. Douglas’ argument is without merit and we
decline to address it further.
Turning to the second part of Douglas’ argument regarding the racial
composition of the jury, we similarly find it to be meritless. The right to a
completely impartial jury does not entitle parties to a jury of any particular
composition. See Commonwealth v. Doss, 510 S.W.3d 830, 835 (Ky. 2016).
-4- Without any evidence whatsoever, Douglas asserts that trial counsel “failed to
investigate the back door practices of racial discrimination utilized by officials in
Daviess County where only 1 or 2 African American’s [sic] are called to be venire
panel members[.]”2 Douglas fails to identify what he believes these “back door
practices” to be, yet he contends his attorney should have made the argument
nonetheless.
“Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried.” [Akins v. State of Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945)]. “Although a defendant has no right to a petit jury composed in whole or in part of persons of [the defendant’s] own race, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.” Powers v. Ohio, 499 U.S. 400, 404, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (internal quotes and citations omitted.) The Constitution does not require “petit juries . . . [that] mirror the community and reflect the various distinctive groups in the population,” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)[.]
Doss, 510 S.W.3d at 835.
The Kentucky Supreme Court went on to describe the criteria used in
Kentucky to select prospective jurors:
[t]he selection of prospective jurors is now accomplished by an indifferent and color-blind computer that produces a randomized list of prospective jurors consisting of the county’s roll of registered voters, persons over the age of
2 See page 3 of Appellant’s brief.
-5- eighteen holding valid drivers’ licenses, and citizens of the state who have filed resident individual tax returns. KRS[3] 29A.040; see Administrative Procedures for the Court of Justice, Part II, Sections 3 and 5.
Id. at 836. Douglas fails to identify any irregularities with the process of selection
of prospective jurors in his case. His argument must fail.
Douglas next argues that his trial counsel failed to present a defense.
He asserts, with no factual basis whatsoever, that defense counsel should have
presented a defense of “insanity or EED.”4 We find this argument to be meritless.
Douglas exercised his Fifth Amendment right against self-incrimination and
declined to testify. Defense counsel did not call any witnesses. Douglas fails to
identify any witnesses he believes should have been called in his defense or the
factual basis for any defense related to insanity or EED. RCr 11.42(2) requires that
Douglas’ motion “shall state specifically the grounds on which the sentence is
being challenged and the facts on which the movant relies in support of such
grounds.” He failed to do so.
Moreover, Douglas’ assertions are contradicted by the record before
us. Defense counsel aggressively and thoroughly cross-examined the victim in this
case. It was clear from cross-examination that counsel’s trial strategy was to show
3 Kentucky Revised Statutes. 4 Although undefined by Douglas, we presume “EED” to mean extreme emotional disturbance.
-6- the shooting was accidental, rather than the result of any intentional act or wanton
behavior by Douglas. Counsel’s cross-examination resulted in the victim
admitting that she had used alcohol and marijuana on the night of the shooting and
that Douglas was not angry, jealous, or otherwise exhibiting aggressive behavior
on the night in question. McFarland also admitted that, even though she told
police she believed the shooting was intentional, she could not say that it was
intentional and acknowledged it could have been accidental. Trial counsel was
also able to reveal inconsistencies between what McFarland told police on the
night of the shooting and her testimony at trial. Accordingly, trial counsel
demonstrated at least a level of reasonable effectiveness and Douglas’ argument
must fail.
Douglas finally contends that trial counsel “failed to offer evidence of
[his] mental state at the time of the offense in mitigation at sentencing[.]” His
entire supporting argument is two sentences in length. Although defense counsel
did not call any witnesses during the sentencing phase of the trial, she asked the
jury for leniency. The jury sentenced Douglas to twenty years’ incarceration after
finding he was a persistent felony offender in the first degree. This was in lieu of
any sentence for his conviction of assault in the first degree. Douglas was facing
twenty to fifty years or a life sentence, and the jury recommended the minimum
-7- amount of time. Therefore, we disagree with Douglas that trial counsel’s strategy
was ineffective.
For the foregoing reasons, the order of the Daviess Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Antonio Cordera Douglas, pro se Daniel Cameron LaGrange, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-8-