Cleosey Henderson v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: October 26, 2023
• Docket: 2022 CA 001047
• Status: Unknown

Opinion

RENDERED: OCTOBER 27, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1047-MR

CLEOSEY HENDERSON APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ERIC JOSEPH HANER, JUDGE ACTION NO. 11-CR-003874

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND EASTON, JUDGES.

EASTON, JUDGE: The Appellant (“Henderson”) seeks reversal of the Jefferson

Circuit Court’s denial of his RCr1 11.42 motion. The circuit court correctly

determined that Henderson’s appellate counsel for his direct appeal did not provide

ineffective representation. We affirm.

1 Kentucky Rules of Criminal Procedure. FACTUAL AND PROCEDURAL BACKGROUND

The Kentucky Supreme Court gave the following summary of the

circumstances of Henderson’s case:

Alice [a pseudonym], Henderson’s neighbor, walked over to his home to request money that she alleged Henderson owed her. After answering the door and engaging in some conversation, Henderson grabbed Alice by the throat and attacked her. She lost consciousness and, at some point, awoke, tied up in Henderson’s bedroom. Alice lost consciousness multiple times throughout the encounter but testified that Henderson had removed her pants and panties and digitally penetrated her vagina. Henderson cut Alice multiple times with a sharp object that Alice could not specifically identify in her testimony. Alice was ultimately able to free herself and leave through a window, during which her legs were cut from the broken glass. She escaped to a neighbor’s home where she obtained help and was taken to the hospital for treatment. She had multiple cuts and bruises from the assault.

Henderson v. Commonwealth, 563 S.W.3d 651, 657 (Ky. 2018).

Henderson chose to represent himself at trial. A jury convicted

Henderson of First-Degree Assault, First-Degree Sexual Abuse, and First-Degree

Unlawful Imprisonment. Henderson was found not guilty of Attempted Murder.

During the sentencing phase of the trial, the jury found Henderson to be a First-

Degree Persistent Felony Offender. The sentencing phase included evidence of

-2- Henderson’s prior convictions going back to 1986, including one for homicide,2

which Henderson described as just an unfortunate situation of being around bad

people. With a recommendation for consecutive sentencing, which the circuit

court followed, Henderson was sentenced to serve sixty years.

For his direct appeal, Henderson had appointed counsel, Shannon

Dupree Smith (“Smith”), with the Department of Public Advocacy. Smith raised

five arguments on the direct appeal: a speedy trial violation, failure to appoint

substitute counsel, failure to advise Henderson about stand-by counsel, denial of a

motion to suppress, exclusion of evidence under KRE3 412 (Kentucky’s Rape

Shield Law), and the limitation of Henderson’s recalling of a witness. Henderson,

563 S.W.3d at 657-658. The Kentucky Supreme Court unanimously found no

merit in all but one of these claims, specifically the speedy trial issue.

The merit of the speedy trial and other claims raised on appeal is

relevant to the assessment of whether the claims now asserted should have been

brought forward during the direct appeal. Henderson waited over fifty months for

2 Christian Circuit Court Case No. 02-CR-00019. Although Henderson accepted a sentence of ten years to serve for this killing, Henderson still insists on his innocence, noting he entered an North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), plea. When Henderson sought to reduce his $500,000 bond in the present case, the circuit court conducted a hearing on January 27, 2012. At this hearing, the prosecutor described this prior crime in Christian County as Henderson beating his wife to death with a baseball bat. The bond was not reduced. 3 Kentucky Rules of Evidence.

-3- his trial. Id. at 661. After assessing the reasons for the delay, the Kentucky

Supreme Court denied the speedy trial claim by a vote of four to three. Although

not condoning the delay, the majority found that some of the delay could be

attributed to Henderson. Id. at 662.

Federal courts denied habeas corpus relief. Henderson v. Jordan,

Civil Action No. 3:19-cv-216-RGJ-RSE, 2021 WL 11629776 (W.D. Ky. 2021).

Notably, Henderson sought abeyance of the habeas corpus action because of the

RCr 11.42 motion which is the subject of this appeal. Id. at *4. The federal court

denied the abeyance because Henderson did not show that his unexhausted RCr

11.42 claims had any merit. Id. The federal court also denied a certificate of

appealability. Id.

Henderson was represented by appointed counsel for the RCr 11.42

proceedings. The parties thoroughly briefed Henderson’s additional claims about

his trial. The circuit court granted an evidentiary hearing conducted on March 18,

2022. Smith was the only witness.

Smith acknowledged the best appeal argument was the speedy trial

violation claim, which was nearly successful. When questioned about the issues

Henderson thought should have been addressed on the appeal, Smith recalled that

she discussed many such issues with Henderson before selecting the claims made

in her lengthy brief. When asked specifically about the issues Henderson now

-4- thinks should have been asserted, Smith did not believe any of them was clearly

stronger than those previously argued on the direct appeal.

Several contentions were brought up in the briefs filed with the circuit

court and during the hearing. The circuit court addressed the claims and found no

ineffective assistance by Henderson’s appellate counsel. Henderson has

abandoned all but three of his claims4 for his brief to this Court.

The first claim is that the circuit court invited a double jeopardy error

when it instructed the jury on both Attempted Murder and First-Degree Assault.

Second, Henderson claims he was denied a unanimous verdict because of the

“combination” instruction used for First-Degree Assault. Finally, Henderson

believes the circuit court should have granted a directed verdict on the First-Degree

Assault charge because of the lack of evidence of a serious physical injury. We

will address each of these claims in our following analysis.

STANDARD OF REVIEW

The standards which measure ineffective assistance of counsel are set

out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). First, the defendant must show that counsel’s performance was so

4 For example, Henderson asked about jurors excused and hearsay rulings during testimony of police officers, including a report detailing a blood trail left by Alice. Smith correctly responded that some of the hearsay now complained of was invited by Henderson’s questioning of the police witnesses, and the circuit court had allowed evidence from the report which Henderson sought to introduce, even though the report itself was not entered into evidence.

-5- deficient that counsel was not functioning as the “counsel” guaranteed by the Sixth

Amendment of the United States Constitution. Id. at 687, 104 S. Ct. at 2064.

Second, the defendant must show the counsel’s deficiency prejudiced the defense

by depriving the defendant of a fair proceeding, a proceeding whose result is

reliable. Id. “Counsel is constitutionally ineffective only if performance below

professional standards caused the defendant to lose what he otherwise would

probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992).

The critical issue is not whether counsel made errors but whether

counsel was so thoroughly ineffective that defeat was snatched from the hands of

probable victory. Id. A defendant is not guaranteed errorless counsel, or counsel

judged ineffective by hindsight, but counsel likely to render and rendering

reasonably effective assistance. McQueen v. Commonwealth, 949 S.W.2d 70, 71

(Ky. 1997).

Strickland requires a court to indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance.

Strickland, supra, at 689, 104 S. Ct. at 2065. The defendant must overcome the

presumption that, under the circumstances, the challenged action might be

considered sound strategy. Id. For a claim of appellate ineffective assistance of

counsel (“IAAC”), the arguments omitted by counsel must be shown to be “clearly

stronger” than those chosen for the appeal. Hollon v. Commonwealth, 334 S.W.3d

-6- 431, 436 (Ky. 2010). See also Commonwealth v. Pollini, 437 S.W.3d 144 (Ky.

2014).

“[W]hen reviewing a trial court’s findings of fact following an RCr

11.42 evidentiary hearing, an appellate court utilizes the clearly erroneous standard

set forth in Kentucky Rules of Civil Procedure (CR) 52.01. Findings of fact are

not clearly erroneous if supported by substantial evidence. Even though claims of

ineffective assistance of counsel are subject to de novo review, a reviewing court

should defer to the determination of facts made by the trial judge.” Saylor v.

Commonwealth, 357 S.W.3d 567, 570-71 (Ky. App. 2012) (citations omitted).

Overall, a circuit court’s denial of an RCr 11.42 motion is reviewed for an abuse of

discretion. Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App. 2014).

ANALYSIS

In a thorough and well-reasoned order, the circuit court explained its

denial of Henderson’s RCr 11.42 motion. None of the findings of fact, for

example the outline of what Smith did, are erroneous, and our de novo review of

the law of what constitutes ineffective assistance of counsel confirms the result

reached by the circuit court. There was no abuse of discretion in the denial of the

RCr 11.42 motion.

For his IAAC claim, Henderson invites the application of a list of

factors provided by the Sixth Circuit Court of Appeals in Franklin v. Anderson,

-7- 434 F.3d 412, 429 (6th Cir. 2006). Some of these factors relate to the overall

question under Hollon of whether the omitted argument was clearly stronger than

those asserted on the appeal. For example, the court in Franklin suggested

consideration of whether the omitted issues were significant and if there is contrary

authority to the ruling of the trial court on the issue. Id.

For other factors, we note Smith was an experienced appellate

advocate who had never testified about a claim of IAAC pertaining to her. She

reviewed the record of the trial and discussed with Henderson the many claims he

might have asserted. The most apt factor from Franklin may be the final one on

the list: “Was the decision to omit an issue an unreasonable one which only an

incompetent attorney would adopt?” Id. The answer to this inquiry as well as the

general question of whether omitted arguments were clearly stronger than those

raised on the appeal lead to the same result in this case. We will illustrate this for

each of the claims of error.

Henderson’s Indictment charged both Attempted Murder and First-

Degree Assault. The difference is whether Henderson acted with an intention to

cause death5 or to injure.6 The jury instructions in this case clearly make this

distinction. In the circumstances of this case, conviction of both Attempted

5 Kentucky Revised Statutes (“KRS”) 507.020(1). 6 KRS 508.010(1).

-8- Murder and First-Degree Assault would have violated Double Jeopardy. See

Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014) (case relied upon by

Henderson). See also Kiper v. Commonwealth, 399 S.W.3d 736 (Ky. 2012) (ruling

Double Jeopardy would not be violated if the acts of a defendant were separated in

time permitting a separate forming of intent to commit two acts, one attempted

murder and the other an assault).

Henderson was not convicted of both charges. The law does not

prohibit multiple charges for the same act; it prohibits only multiple punishments

for the same act. Quisenberry v. Commonwealth, 336 S.W.3d 19, 39 (Ky. 2011).

Double Jeopardy is more a right pertaining to sentencing than to the guilt or

innocence phase of a trial. As the Spicer case itself shows, the remedy would be to

prohibit two punishments when someone in Henderson’s position is convicted of

both Attempted Murder and First-Degree Assault, but that did not occur in this

case.

The jury obviously understood the instructions and saw the two

charges were related to the same actions. They convicted Henderson of only one

of these two offenses. There was no Double Jeopardy violation. This argument

was not clearly stronger than those raised on the direct appeal. Smith was not

ineffective for not raising this argument on appeal.

-9- The next complaint focuses on the “combination” instruction for the

First-Degree Assault charge. A First-Degree Assault may be based on intentional

conduct or wanton behavior.7 In cases where a jury may conclude a defendant’s

state of mind could be either intentional or wanton, the jury instruction may allow

each juror to base his or her decision on the defendant’s intentional or wanton state

of mind. This does not present a unanimous verdict violation. Gribbins v.

Commonwealth, 483 S.W.3d 370, 376 (Ky. 2016).

Accepting this initial premise, Henderson must show there is

insufficient evidence of one of the two options. But the trial testimony and other

evidence clearly supported both theories. Henderson said he panicked when he

realized Alice had a knife, which may have been the sharp dangerous instrument

Henderson used to injure Alice. The location, nature, and number of the wounds

could have supported an intention to cause serious physical injury or a wantonness

in that same regard.

There was no unanimous verdict error. Even if no evidence of one of

the two state of mind options had been established, which is not the case here,

Henderson must still show a reasonable possibility that some member of the jury

relied on the erroneously included theory. Malone v. Commonwealth, 364 S.W.3d

121, 130-32 (Ky. 2012). Again, this argument is not clearly stronger than those

7 KRS 508.010(1)(a), (b).

-10- raised on the appeal. Smith was not ineffective for not raising this argument on the

direct appeal.

Finally, Henderson contends he should have been granted a directed

verdict because the evidence did not support a finding of a serious physical injury

to Alice. Henderson cites Anderson v. Commonwealth, 352 S.W.3d 577 (Ky.

2011). A proper analysis of Anderson and other cases on the subject shows why

this last argument by Henderson has no merit.

In Anderson, the victim of the assault had a single small cut along his

jawline. Id. at 581. He received some stitches and was sent home from the

hospital. Id. at 582. At the time of Henderson’s trial, serious physical injury was

defined: “means physical injury which creates a substantial risk of death, or which

causes serious and prolonged disfigurement, prolonged impairment of health, or

prolonged loss or impairment of the function of any bodily organ.” KRS

500.080(15).8

Alice did not have just one small cut closed by a few stiches. Alice

had a substantial loss of blood. Surgeries were required due to the several cuts she

received all over her body. Alice had casts applied to her arms. She underwent

occupational therapy. At the time of the trial, years later, Alice still had pain and

8 KRS 500.080(18) now provides an expanded list of injuries meeting this definition, including for example any injury requiring surgery. KRS 500.080(18)(n).

-11- limitations due to injuries suffered in the attack. The scars from the attack were

still visible. Alice suffered a serious physical injury. See Brooks v.

Commonwealth, 114 S.W.3d 818 (Ky. 2003).

Given the standard for a directed verdict, it would have been clearly

erroneous for the circuit court to have granted a directed verdict in Henderson’s

favor based on a lack of a serious physical injury. See Commonwealth v. Benham,

816 S.W.2d 186 (Ky. 1991) (standard for lack of evidence required to grant a

directed verdict). Once again, this new argument is not clearly stronger than those

made in the initial appeal. Smith did not provide ineffective assistance of counsel.

Finding no individual error for Henderson’s three claims, simple math requires the

conclusion that there can be no cumulative error. McQueen, supra, at 701.

CONCLUSION

The Jefferson Circuit Court correctly determined that Henderson’s

appellate counsel did not provide ineffective representation. It then becomes

unnecessary to comment at length on the separate requirement of showing

prejudice. With the overwhelming evidence against Henderson, he could not have

shown prejudice arising from any one or combination of the issues raised in his

RCr 11.42 motion. The Jefferson Circuit Court is AFFIRMED.

-12- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Jacquelyn Jaye Bryant-Hays Daniel Cameron Kara Stinson Lewis Attorney General of Kentucky Frankfort, Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky

-13-