RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0410-MR
JERARD GARRETT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NOS. 13-CR-000246-001 & 13-CR-000744-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MCNEILL, JUDGES.
KAREM, JUDGE: Jerard Garrett, pro se, appeals from the Jefferson Circuit
Court’s denial of his motion to alter, amend, or vacate judgment and sentence
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. Garrett contends
that he received ineffective assistance of counsel during his trial and post-
conviction proceedings. Upon careful review, we affirm. BACKGROUND
The charges against Garrett arose from two murders committed during
separate drug transactions that occurred several days apart.
In one indictment, a Jefferson County grand jury charged Garrett and his co-defendant, Billy Richardson, with one count each of murder, first-degree robbery, first-degree wanton endangerment, third-degree terroristic threatening, and being a first-degree persistent felony offender (“PFO1”), arising from the murder of Jamie Young on December 29, 2012. In a separate indictment, the grand jury charged Garrett and Richardson with one count each of murder and first- degree robbery, arising from the murder of Kenny Forbes on December 23, 2012. Over Garrett’s objection, the trial court consolidated the charges in the two indictments for trial. Pursuant to RCr 6.18, the trial court found that the defendants’ practice of scheduling meetings through a known intermediary to conduct a drug transaction, then robbing the victim, was sufficiently unique to warrant joinder of the charges and consolidation of the indictments.
Garrett v. Commonwealth, 534 S.W.3d 217, 220-21 (Ky. 2017), as modified (Dec.
20, 2017) (footnote omitted).
The jury convicted Garrett of two counts of murder, two counts of
first-degree robbery, one count of first-degree wanton endangerment, one count of
third-degree terroristic threatening and being a first-degree persistent felony
offender (PFO). He entered into a sentencing agreement pursuant to which the
Commonwealth agreed to dismiss the PFO charge and recommend a cumulative
-2- sentence of life in prison without the possibility of parole for twenty-five years.
The trial court sentenced Garrett in accordance with the terms of the agreement.
On direct appeal, Garrett argued that the ballistic examiner’s
testimony that the bullets found at both murder scenes were fired from the same
weapon should not have been admitted; that the trial court abused its discretion by
joining the Forbes and Young murder charges together in a single trial; that the
trial court should not have allowed a witness, Jamie Quisenberry, to make an in-
court identification of Garrett as the one who shot Young because Quisenberry had
not been able to identify him in a photographic lineup five days after the shooting;
that the trial court improperly allowed a police detective’s testimony to bolster his
own credibility; and that the Commonwealth’s use of CourtNet information
regarding a witness’s address was improper. These alleged errors were all
preserved for appeal by the objections of Garrett’s trial counsel. The final
judgment and sentence were affirmed on direct appeal. See id. at 228.
Garrett subsequently filed a RCr 11.42 motion, pro se. He alleged
that he was denied counsel during arraignment; the Commonwealth failed to turn
over two photo packs to his defense counsel; the Commonwealth failed to turn
over exculpatory evidence; and his trial counsel was ineffective for failing to raise
objections to the jury instructions, for failing to preserve the record for appeal, and
for advising him to accept the sentencing agreement. An attorney from the
-3- Department of Public Advocacy was subsequently appointed to represent Garrett.
He filed a supplemental RCr 11.42 motion. In reliance on an unpublished opinion
of the Superior Court of the District of Columbia, United States v. Tibbs, Case No.
2016-CF1-19431, 2019 WL 4359486 (D.C. Super. Ct. Sept. 5, 2019), he argued
that the Daubert1 hearing on the admissibility of the testimony of the ballistics
expert was inadequate.
The trial court held an evidentiary hearing on the RCr 11.42 motion
and heard testimony from Garrett and from his trial counsel.2 Garrett’s trial
counsel testified at length about his theory of the case and his defense strategy.
The trial court then entered an opinion and order denying the motion. This appeal
by Garrett followed.
STANDARD OF REVIEW
Garrett claims that he was denied effective assistance of counsel, in
violation of his rights under the Sixth and Fourteenth Amendments. Claims of
ineffective assistance of counsel are reviewed under the two-pronged test
established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 2 Although the recording of the RCr 11.42 hearing was not designated to be made part of the record, it was in the record before this panel, and we were able to review it.
-4- Under the Strickland framework, an appellant must first show that counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. 2052. A “deficient performance” contains errors “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the appellant must show that counsel’s deficient performance prejudiced his defense at trial. Id. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. An appellant must satisfy both elements of the Strickland test in order to merit relief. Id.
Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016).
In reviewing counsel’s performance, we are required to presume that
counsel’s performance was reasonable. Commonwealth v. Bussell, 226 S.W.3d 96,
103 (Ky. 2007). We review “the trial court’s factual findings for clear error while
reviewing the application of its legal standards and precedents de novo.” Ford v.
Commonwealth, 628 S.W.3d 147, 156 (Ky. 2021) (citing Commonwealth v.
Pridham, 394 S.W.3d 867, 875 (Ky. 2012)).
ANALYSIS
1. The trial court’s findings were adequate
Garrett argues that the trial court failed to make adequate findings
following the evidentiary hearing, as required by RCr 11.42(6), which provides as
follows:
At the conclusion of the hearing or hearings, the court shall make findings determinative of the material issues of fact and enter a final order accordingly. If it appears
-5- that the movant is entitled to relief, the court shall vacate the judgment and discharge, resentence, or grant him or her a new trial, or correct the sentence as may be appropriate. A final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02.
RCr 11.42(6).
Garrett contends that his post-conviction counsel was ineffective for
failing to file a motion pursuant to Kentucky Rules of Civil Procedure (CR) 52.02
to request such findings.
This argument fails for several reasons. First, the trial court’s opinion
and order does contain adequate findings to support its decision to deny the
motion. Second, Garrett does not specify what evidence was presented at the
hearing that should have formed the basis for any additional findings. RCr
11.42(2) expressly requires the movant to “state specifically the grounds on which
the sentence is being challenged and the facts on which the movant relies in
support of such grounds[,]” or face “a summary dismissal of the motion.” RCr
11.42(2). Third, his claim that his post-conviction counsel was ineffective for
failing to file a motion for additional findings pursuant to CR 52.02 is not
sustainable because “[t]here is no constitutional right to an attorney in state post-
conviction proceedings. Consequently, a petitioner cannot claim constitutionally
-6- ineffective assistance of counsel in such proceedings.” Bowling v. Commonwealth,
981 S.W.2d 545, 552 (Ky. 1998) (quoting Coleman v. Thompson, 501 U.S. 722,
752, 111 S. Ct. 2546, 2566, 115 L. Ed. 2d 640 (1991)).
2. Trial counsel was not ineffective for failing to investigate witnesses and evidence
Next, Garrett argues that his trial counsel was ineffective for failing to
perform an adequate investigation, thus depriving him of a reasonable defense. In
rejecting this argument, the trial court stated that Garrett had not provided details
about what investigation was lacking nor about which witnesses could have
testified on his behalf. The trial court concluded that his allegations were
speculative and lacking in specific factual support. Garrett contends that his
appointed post-conviction counsel was ineffective for failing to provide such
factual support for these unidentified allegations and for failing to seek
substantiation of the allegations at the evidentiary hearing. Garrett relies on
Kentucky Revised Statute 31.110(2)(a), which states in relevant part that “[a]
needy person who is entitled to be represented by an attorney under subsection (1)
of this section is entitled: . . . [t]o be counseled and defended at all stages of the
matter[.]” As previously stated, no right to effective post-conviction counsel has
been recognized in Kentucky. In any event, Garrett’s post-conviction counsel
would have had to rely on Garrett to inform him about the specific evidence his
trial counsel should have investigated. “RCr 11.42 motions are not intended to
-7- conduct further discovery or fishing expeditions. It is well-settled, ‘vague
allegations, including those of failure to investigate, do not warrant an evidentiary
hearing and warrant summary dismissal of the RCr 11.42 motion.’” Prescott v.
Commonwealth, 572 S.W.3d 913, 926 (Ky. App. 2019) (citation omitted).
Garrett’s claim lacks specificity and does not overcome the strong presumption
that his counsel’s performance was reasonable. Strickland, 466 U.S. at 690, 104 S.
Ct. at 2066.
3. Trial counsel was not ineffective in his handling of witnesses and the introduction of photo packs
Garrett’s next argument relates to the testimony of trial witness Jamie
Quisenberry, an eyewitness to one of the shootings. Garrett’s trial counsel
objected to Quisenberry making an in-court identification of Garrett as the shooter,
on the grounds that Quisenberry had failed to identify Garrett in a photographic
line up five days after the shooting. The trial court overturned the objection. On
direct appeal, the Kentucky Supreme Court affirmed the trial court’s decision,
stating as follows:
Garrett’s argument is not well taken. After appellate briefs were submitted in this case, this Court issued an Opinion in Fairley v. Commonwealth, 527 S.W.3d 792 (Ky. 2017), rejecting the very claim Garrett now presents. In Fairley, we held that the witness’s inability to identify the defendant in a photographic lineup did not bar him from making an in-court identification:
-8- [T]he proper course is to permit the witness to attempt to identify the suspect in court and, if an identification is made, allow the defense to thoroughly cross-examine the witness concerning his failure to make a prior identification. The jury is fully capable of determining what weight to assign to the in-court identification . . . . Accordingly the trial court did not abuse its discretion in permitting the introduction of this evidence.
Id. at 797.
In Fairley, we also rejected the defendant’s assertion that the witness’s in-court identification should have been analyzed by the trial court under the factors set forth in Biggers[3] before allowing the witness to testify. Id. at 798. “In Biggers, the Supreme Court set forth a two-prong due process test for considering an identification by a witness following impermissible suggestive pretrial procedures such as a photo array or line-up.” Id. at 797-98. We expressly declined to extend Biggers to in-court identifications when no unduly suggestive pretrial behavior has been alleged; “‘a primary aim of the Biggers line of cases was deterrence of law enforcement’s use of improper lineups, showups, and photo arrays, a factor clearly not present in the case before us.’” Id. at 799 (citation omitted).
Garrett has not suggested that the photographic lineup presented to Quisenberry was unduly suggestive, or alleged any other improper pretrial procedures; rather, Garrett argues that the in-court identification by a witness who did not make an identification previously is unduly suggestive. This reasoning does not trigger application of Biggers, and is unsupported by Kentucky case law. The trial court followed the proper course of action by
3 Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
-9- allowing Quisenberry to make an in-court identification, allowing Garrett the opportunity to cross-examine him, and letting the jury assess Quisenberry’s credibility and weigh the evidence presented.
Garrett, 534 S.W.3d at 224-25.
In its order and opinion denying the RCr 11.42 motion, the trial court
correctly ruled that this claim had been decided because the Kentucky Supreme
Court held that the trial court properly permitted Quisenberry to make the in-court
identification of Garrett. Garrett argues that the trial court erred because “a failure
to prevail on a palpable error claim [on direct appeal] does not obviate a proper
ineffective assistance claim.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky.
2006), as modified (May 23, 2006). But the Kentucky Supreme Court did not
engage in palpable error review because Garrett’s trial counsel objected to
Quisenberry’s in-court identification and thus properly preserved the error for
appellate review.
Garrett also raises an argument regarding another eyewitness, Charles
Young. Garrett claims that his attorney was ineffective for failing to file a motion
to compel the introduction of some additional photo packs at trial. Apparently, the
additional photo packs could have been used to impeach Young’s identification of
Garrett as the shooter. Garrett’s previous attorney had filed a motion to suppress
both Young and Quisenberry’s identification of Garrett. A hearing was held on the
motion to suppress, and it was denied. At the RCr 11.42 hearing, Garrett’s trial
-10- counsel testified that he knew of the existence of other photo packs from his
review of the suppression hearing. Rather than filing a motion to compel the
Commonwealth to produce them at trial, he decided it would be a more effective
trial strategy to “spring it” on the investigating police officer in order to impeach
his testimony. He explained that on cross-examination, the officer several times
was forced to testify that he had no explanation for the other photo packs. “To
show ineffective assistance of counsel, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. A defense attorney must enjoy great discretion in
trying a case, especially with regard to trial strategy and tactics.” Vincent v.
Commonwealth, 584 S.W.3d 762, 770 (Ky. App. 2019) (internal quotation marks
and citations omitted). Garrett has not offered any basis for overcoming the
presumption that his trial counsel’s decision was sound trial strategy.
4. Trial counsel was not ineffective for failing to subpoena a defense witness
According to Garrett, an individual named Michael McCain or
McClain should have been subpoenaed as a defense witness. Garrett claims he
could have testified that one of the victims was carrying a bag which did not
contain drugs but a handgun. In his RCr 11.42 memorandum, he alleged that this
was a Brady violation. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963). Garrett claims his trial counsel was ineffective for failing to
-11- investigate and subpoena McCain. This argument is clearly refuted by the record,
which shows that trial counsel moved to compel discovery, specifically requesting
information about an individual named “LaMichael McClain” and also tendered an
order to the trial court requiring the police to disclose evidence relating to
individuals allegedly involved in the shootings, including “LaMichael McClain.”
We agree with the trial court’s conclusion that this claim is purely speculative and
does not warrant relief under RCr 11.42.
5. Trial counsel was not ineffective for failing to object on the grounds that the jury instructions were flawed and resulted in a lack of unanimous verdict
Garrett argues that his counsel was ineffective for failing to object to
the jury instructions which he claims deprived him of a unanimous verdict.
The jury was asked to find Garrett guilty of robbery if he acted alone
or in complicity with Richardson to steal or attempt to steal money and/or
marijuana from the victim Kenny Forbes and in doing so, acting alone or in
complicity with Richardson, he caused physical injury to Forbes. A similar
instruction asked the jury to find Garrett guilty of murder if he acted alone or in
complicity with Richardson to kill Kenny Forbes by shooting him with a gun and
in doing so, acting alone or in complicity with Richardson, he intentionally caused
Kenny Forbes’s death. The jury instructions for Garrett’s codefendant, Billy
Richardson, followed the same pattern, with the jury being asked to determine
whether Richardson acted alone or in complicity with Garrett to commit robbery
-12- and/or murder. The jury found Garrett guilty of both the murder and robbery of
Kenny Forbes and found Richardson not guilty of either charge.
Garrett argues that his trial counsel should have objected after the
return of these verdicts on the grounds that the jury’s finding of guilt was not
unanimous. He contends that because the jury found Richardson not guilty of the
murder or robbery of Forbes, the alternative theory of “in complicity” found in
Garrett’s instructions means the verdict was not unanimous.
The Kentucky Supreme Court has identified three different types of
unanimous verdict violations. “The first type . . . occurs when multiple counts of
the same offense are adjudicated in a single trial.” Cox v. Commonwealth, 553
S.W.3d 808, 812 (Ky. 2018) (citation omitted). The second type “occurs when a
jury instruction may be satisfied by multiple criminal acts by the defendant.” Id.
More specifically, this requirement “is violated when ‘a general jury verdict [is]
based on an instruction including two or more separate instances of a criminal
offense, whether explicitly stated in the instruction or based on the proof.’” Id.
The third type stems from a “combination jury instruction.” “A ‘combination’
instruction permitting a conviction of the same offense under either of multiple
alternative theories does not deprive a defendant of his right to a unanimous
verdict, so long as there is evidence to support a conviction under either theory.”
Id.
-13- Garrett seems to be alleging the third type of violation but does not
meet it because there was evidence to support a conviction under either theory, that
is, that Richardson or Garrett was either acting alone or in complicity with the
other. For example, if the jury had found both men acted alone in committing the
murder and robbery of one victim, unanimity would have been implicated because
the verdicts would have been contradictory. By finding that Richardson was not
guilty of acting alone or in complicity with Garrett, however, the jury clearly found
that Garrett acted alone, not in complicity with Richardson. There was nothing
contradictory or inconsistent in the jury’s verdicts and nothing to indicate a lack of
unanimity. Consequently, trial counsel was not ineffective for not objecting to the
verdicts on the grounds of lack of unanimity.
Garrett further argues that there was a constructive amendment
between his indictment for the murder of Jamie Young and the jury instructions on
this offense with the result that the final verdict lacked unanimity. His argument in
this regard is somewhat confusing. The indictment charged Garrett and
Richardson with acting alone or in complicity with each other to murder Jamie
Young. Richardson’s second-degree manslaughter instruction required the jury to
find that Garrett killed Jamie Young and that prior to the killing Richardson had
acted in complicity with Garrett to rob and/or engage in a drug transaction with
Jamie Young and that in doing so, Richardson was aware of and consciously
-14- disregarded a substantial and justifiable risk that Jamie Young would be killed.
Richardson was found guilty under this instruction. Garrett indicates that the
jury’s finding means that there was no complicity relating to the killing of Jamie
Young, only that Garrett alone killed him. He seems to argue that this removed the
alternative theory of “in complicity” and the verdict could not be unanimous under
both theories. The instructions required the jury to determine the level of
culpability between Richardson and Garrett and the jury did so. The jury
determined that Garrett acted alone in killing Young, and that Richardson prior to
the killing had acted in complicity with Garrett to rob and/or engage in a drug
transaction with Young. We fail to see how the verdict was not unanimous. If the
jury had found that Garrett acted in complicity with Richardson to commit murder,
then Richardson would also have been convicted of murder under that instruction
and the jury would not have proceeded to the second-degree manslaughter
instruction.
The verdicts did not lack unanimity and consequently Garrett’s trial
counsel was not ineffective for not raising an objection.
6. Trial counsel was not ineffective for failing to object to alleged prosecutorial misconduct
The lead detective in the Forbes murder investigation secured
surveillance video of a liquor store parking lot located near the scene of the
murder. The video showed an individual who appeared to be Forbes entering a
-15- black sedan in a gas station parking lot across the street. Shortly thereafter, a red
truck left the parking lot. The video does not show either a robbery or a murder.
The prosecutor took the video home and enlarged it to make it easier to view as a
PowerPoint. Garrett contends that his counsel should have objected to this
modified video being shown to the jury. At the RCr 11.42 hearing, trial counsel
testified that he did object to the enlarged footage and explained the prosecutor
made no alterations to the video except to enlarge it. Garrett argues that by
enlarging the video, the Commonwealth was able to present a false impression of
what the video was really showing. But he does not explain what this false
impression was.
Garrett also argues that his trial counsel should have objected to
testimony by Detective Guffy about a series of phone calls the victim Forbes made
before his death. Garrett argues that the testimony regarding the phone records
was not adequately authenticated. He presents a summary of Guffy’s testimony
but does not provide a reference to where it is located in the record. He contends
that the testimony presented a false impression of the facts premised solely upon
inferences, but he does not elaborate on this contention any further. Garrett has
simply not demonstrated or explained how his attorney’s alleged failure to object
to the allegedly inadequate foundation for the testimony constituted deficient
performance, much less how it deprived him of a fair trial.
-16- CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
opinion and order denying Garrett’s RCr 11.42 motion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jerard Garrett, pro se Daniel Cameron Eddyville, Kentucky Attorney General of Kentucky
Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
-17-