Kareem M. Edwards v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 29, 2023
• Docket: 2023 CA 000164
• Status: Unknown

Opinion

RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0164-MR

KAREEM M. EDWARDS APPELLANT

APPEAL FROM LYON CIRCUIT COURT v. HONORABLE JAMES REDD, JUDGE ACTION NO. 17-CR-00162

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.

EASTON, JUDGE: Kareem Edwards (“Edwards”) appeals the denial of his RCr1

11.42 motion in which he alleged a Brady2 violation and ineffective assistance of

counsel. Finding no Brady violation and no ineffective representation, we affirm.

1 Kentucky Rule of Criminal Procedure. 2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (due process guaranteed for state prosecutions prohibits the state from withholding material evidence from an accused). FACTUAL AND PROCEDURAL BACKGROUND

In June of 2017, Edwards was an inmate at the Kentucky State

Penitentiary (“KSP”) in Eddyville. He was serving a thirty-year sentence for

murder to which he pled guilty.3 On June 29, 2017, a riot broke out at KSP.

During this riot several prison officers were assaulted and injured. Edwards was

charged for his participation in the riot and with three counts of assault on

officers4.

After a jury trial in May of 2019, the jury convicted Edwards on all

charges. The jury fixed the sentences at two years for the riot and five years on

each of the assaults. The jury further recommended consecutive sentences, which

the circuit court imposed for a total sentence of seventeen years. The trial decision

was affirmed on direct appeal by this Court.5

In December of 2021, Edwards filed his pro se RCr 11.42 motion.

Initially, the circuit court denied the motion without appointment of counsel and a

3 Fayette Circuit Court, Case No. 06-CR-00099. 4 Although Edwards initially faced one count of second-degree assault and two counts of third- degree assault, the Commonwealth reduced the second-degree assault charge to third-degree assault for trial. 5 Edwards v. Commonwealth, No. 2019-CA-000891, 2020 WL 5084269 (Ky. App. Aug. 28, 2020). This Court also affirmed on the simultaneous appeal by Edwards of prison disciplinary actions imposed because of the riot and assaults. Edwards v. Department of Corrections, No. 2018-CA-001725-MR, 2020 WL 4515458 (Ky. App. Jul. 24, 2020).

-2- hearing. To outline the claims, we will start with Edwards’ motion and the circuit

court’s first order.

Edwards’ nineteen-page motion may be fairly read to assert some

typical and general complaints about appointed counsel. Edwards argues the

attorney did not adequately investigate potential testimony of witnesses, even

though the attorney had retained an investigator in this case. The investigator

primarily worked to gather evidence to support a change of venue. Edwards made

a specific allegation about two fellow inmates who Edwards claimed could have

provided information about Edwards’ location when the altercations began.

Other complaints include a failure to move to dismiss two of the

assault charges because the Indictment was not specific enough about those

charges. Edwards also felt a continuance should have been sought when the

Commonwealth did a discovery “dump” just prior to the start of the trial.

The main concern was about a claimed Brady violation. Edwards

believed the Commonwealth failed to provide to him a video of him after he had

been restrained. He thinks his attorneys should have insisted on getting this

evidence for use at trial. He believes the evidence could have impeached

testimony given by one of the assaulted officers about the absence of such videos.

Edwards believes the video also would have shown that this assault victim was not

really injured.

-3- The first Order Denying RCr 11.42 Relief denied all asserted claims.

A later Order on Defendant’s Motion for Additional Findings granted a hearing on

only two claims, specifically the claim about the identified witnesses and the video

supposedly withheld in violation of Brady. The judge who had presided over the

trial and the initial RCr 11.42 proceedings was succeeded by another judge who

conducted the evidentiary hearing. After the hearing, the circuit court again denied

the RCr 11.42 motion in its entirety. This appeal followed.

STANDARD OF REVIEW

We must start by recognizing that a Brady violation claim is separate

from a claim of ineffective assistance of counsel, although failure by counsel to

address a discovered Brady claim could be part of ineffective assistance. We will

address the merits of the Brady claim and the ineffective assistance of counsel with

or without a Brady violation. An appellate court reviews de novo whether a Brady

violation has occurred. Commonwealth v. Bussell, 226 S.W.3d 96, 1001 (Ky.

2007).

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

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.

-4- 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, 466 U. S. 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.

“[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

-5- 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

RCr 11.42(2) requires specific allegations in a motion. General or

vague allegations, such as failure to investigate or a generalized discovery

complaint do not justify a hearing. In this category is the allegation of a discovery

“dump” on the morning of trial. Nowhere in the motion does Edwards identify

anything in these materials which had not already been made available or any new

item which was introduced to his prejudice during the trial.

When we examine the evidence in the record, we see hundreds of

pages of medical records documenting the injuries to one of the officers who

sustained considerable dental injury. Again, there is no specific allegation of

anything not previously disclosed. When we consider that third-degree assault

does not even require evidence of an injury, the vague complaint about a discovery

“dump” cannot be shown to have necessitated a hearing much less a trial

continuance or any actual prejudice to Edwards at his trial.

-6- The complaint about the refusal to dismiss two counts of third-degree

assault does not depend on any allegation of facts, as the Indictment says what it

says. This presents only a question of law. Edwards believes Counts 3 and 4 of

his Indictment alleging two counts of third-degree assault were deficient because

the counts did not contain the name of the charge against him. This argument is

specious, and Edwards’ attorney had no obligation to file a completely meritless

motion to dismiss.

Edwards relies on Parker v. Commonwealth, 291 S.W.3d 647 (Ky.

2009). This case indeed explains that all that is required for a valid charge in an

indictment is for the charge to be named. Id. at 656. Edwards suggests each count

within an indictment therefore must contain the name of the charge. Parker does

not say this, and this interpretation is contrary to well-established law.

Parker recognized that indictments under the present procedural rules

no longer required a listing of every element of a charge. Thomas v.

Commonwealth, 931 S.W.2d 446, 448-49 (Ky. 1996) (summary of the law on this

subject relied upon in Parker). The four charges in Edwards’ Indictment are on its

first page. The heading of the Indictment lists the applicable statute (KRS6

508.025) and explains Edwards is being indicted for two counts of third-degree

assault.

6 Kentucky Revised Statutes.

-7- Counts 3 and 4 track the language of the applicable statute and contain

the elements of third-degree assault. The victims of the assaults are named and

identified as KSP officers with the allegation that Edwards “did intentionally cause

or attempt to cause physical injury to” the officers. Even Parker acknowledged

that tracking the language of the statute in an indictment is enough. Parker, 291

S.W.3d at 656.

“An indictment . . . is sufficient if it informs the accused of the

specific offense with which he is charged and does not mislead him.” Wylie v.

Commonwealth, 556 S.W.2d 1, 2 (Ky. 1977). The Indictment in this case was

clearly sufficient. A motion to dismiss it would have been denied and could have

been subject to sanctions for filing a frivolous motion.

The allegation about fellow inmate witnesses was specific to a point

in that names were provided. Edwards also suggests that these two men were with

him at the time of the riot. Edwards, who clearly has been able to gather materials

and write a detailed motion, did not provide an affidavit from either witness with

his RCr 11.42 motion. We note assigned counsel for the RCr 11.42 proceedings

properly concluded this argument had no merit as indicated by the essential

abandonment of it for the evidentiary hearing.

This complaint about these witnesses presents a curious problem for

Edwards in that, regardless of where Edwards may have been when the riot started,

-8- Edwards also admits the altercation with two of his victims but suggests he acted

in self-defense as stated at page 4 of Edwards’ motion. The videos from multiple

vantage points which were shown to the jury show what they show, including

Edwards’ interactions with the officers. A jury found them convincing enough for

conviction. Edwards has not shown any deficient performance by his counsel as to

these witnesses who might have theoretically said Edwards did not start the riot.

That did not prevent a conviction for participation in the riot. Edwards has shown

no prejudice to his case relating to these witnesses.

This gets us to the only substantive issue which Edwards’ RCr 11.42

counsel properly focused on at the hearing – the video of Edwards with Officer

Neely and other officers after the assaults while Edwards was in a restraint chair.

The Commonwealth conceded that they did not produce this video in discovery.

Edwards was able to obtain a copy of this video through his civil rights attorneys

by way of open records requests. The first records request document has a notation

that when the provided disc was opened on January 29, 2018, the disc did not have

anything on it. A second records request document dated February 12, 2018, does

not have this notation, and Edwards signed to indicate he was satisfied that his

records request had been fulfilled.

Significantly, whether he saw the video or not, Edwards was aware of

the video at the time of the trial. Edwards refused to meet with his assigned

-9- attorney and investigator the week prior to the trial after they had driven some

distance to confer with him to prepare for the trial. Edwards also refused to talk

with his attorney just before trial began. Edwards also insisted on rejecting his

counsel’s advice not to be seen by the jury wearing prison clothes and shackles.

At page 12 of his motion, Edwards supposedly quotes his trial

attorney as saying that she understood his effort to set up an RCr 11.42 motion for

later. If that is what Edwards was doing, that cannot be allowed to succeed.

Edwards was obligated to let his attorney know about the video he had obtained in

a timely manner rather than wait to see if the Commonwealth would provide it.

Edwards cannot even now refuse to adequately document what his supposed

witnesses would say and then blame a lawyer for not investigating this or

presenting the non-existent or questionable evidence at a trial or a hearing.

Edwards should not be heard to complain about any failures of his

counsel which could have been addressed during refused meetings. Edwards’

cooperation may have made for a better record of his Brady claim for appeal. The

Commonwealth suggests that any Brady violation then should have been addressed

on the direct appeal of this case. Perhaps, but since Edwards would then just

blame his RCr 11.42 or appellate counsel for this failure, we should address the

Brady claim while we look at ineffective assistance of counsel.

-10- Edwards insists the video could serve two exculpating purposes. It

could impeach Officer Neely, who testified that there was no video recording of

Edwards’ assault on him. The video also showed Neely after the assault, and

Edwards believes this was helpful evidence to show that Neely was not actually

injured. As we will see, review of Neely’s trial testimony and the video show that

neither of these claims is sustainable.

During his testimony,7 Neely explained that Edwards’ assault on him

occurred when Neely and others were escorting Edwards inside a cell block

building to be placed in a restraint chair. During this escort, Edwards hit Neely in

the face and ribs with his elbow. Neely testified that this assault was not on video.

When asked why, Neely explained that there was no stationary or fixed camera in

the area where it occurred. Neeley also said: “Normally, everything that is done

as far as restraint chair is recorded, but due to the sheer number of people we were

putting in the restraint chairs, we didn’t have enough cameras.”8

On cross examination, Edwards’ attorney asked Neely about Officer

English, who is mentioned in a recording played to the jury. Indeed, the recording

captures a question asking where English was. Neely explained that English was

7 Neely’s entire testimony was not lengthy and appears at 1:31:57-1:47:54 of the DVD of the trial on May 19, 2019. 8 Trial testimony at 1:43:41-1:44:01.

-11- in the same building but not in the area where the assault occurred. Neeley

confirmed there was no video of Edwards’ being taken in for the purpose of getting

him to the restraint chair. In a properly strategic cross examination, Edwards’ trial

attorney was able to confirm there was no video of the assault to support Neely’s

testimony about it. Edwards’ attorney then questioned Neely about Edwards being

able to elbow the officer even though cuffed and shackled in full restraints to

suggest doubt about Edwards hitting Neely.

The video Edwards obtained was of him sitting in a shower already

in the restraint chair. The video lasts for ten minutes and thirty-one seconds.

English is the narrator of the video, but it was taken by another officer who

identifies himself as Massey. A team of other officers, including Neely, are also

seen on the video.

The officers attempt to remove Edwards from the chair. As soon as

Edwards is standing, the video shows Edwards scuffling with the officers leading

to Edwards’ being tazed. The officers decide to return Edwards to the chair.

During this process, the audio reveals Neely saying Edwards tried to bite him when

he was returned to the chair. In response to this attempted bite, Edwards is tazed

again. Because of Edwards’ continued violent behavior, the officers decided to

leave arm and leg restraints on Edwards. This required a medical check also seen

on the video.

-12- Nothing on this video impeaches Neely’s trial testimony. Neely

said there was no recording of the elbowing assault by Edwards. The video of the

later recorded interaction in the restraint chair does not contradict this. The

existence of the video also does not otherwise impeach Neely about recordings.

He said they usually tried to record everything but could not on that day. He

acknowledged English was in the same building but was not where the assault

happened, which another recording confirms.

The recording also does not help Edwards in his argument that

Neely was not really injured. Exhibits 14 and 15 show Neely’s injuries. He has a

swollen area on his right cheek just below the eye. He has a bruised area on his

right side near his ribs. The video taken just after the assault does not show a

bruise because Neely is still clothed such that any bruise could not be seen, even if

we ignore common experience of the time it may take for a bruise to appear.

Swelling also takes some time. While the video of Neely’s face does

not show the same level of swelling as shown in Exhibit 14, a careful and unbiased

repeated review of the video indicates some swelling to the right side of Neely’s

face, and Neely winces as the camera shows his face. Regardless, the video

certainly does not prove that a third-degree assault did not occur.

Edwards forgets that third-degree assault does not even require any

injury. A mere attempt to cause injury is sufficient. See Mullikan v.

-13- Commonwealth, 341 S.W.3d 99, 105-06 (Ky. 2011). Edwards’ apparent belief that

the video helps his case is beyond wishful thinking. In fact, the video could have

served as proof of an additional act of third-degree assault in the form of Edwards’

attempt to bite Neely.

To establish a Brady violation, Edwards must show that the

Commonwealth withheld something he did not know about. Bussell, 226 S.W.3d

at 100. Even if Edwards could pass this hurdle, he must prove “there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Id. at 99-100. The existence

of this video did not impeach Neely and thus did not contribute to Edwards’

defense on that ground. The video did not directly dispute Neely’s having been

injured, which was not required anyway. If anything, the video would have hurt

Edwards at his trial because it documented his continued belligerence and a

possible separate and additional act of third-degree assault toward Neely.

CONCLUSION

There being no violation of Brady, we look finally at the overall

denial of the RCr 11.42 motion. There is no clearly erroneous fact found by the

circuit court from the evidentiary hearing. Edwards failed to show any deficiency

in his attorney’s representation. Whatever Edwards may think of that

representation, he has not and could not show prejudice to his case affecting its

-14- ultimate outcome. The circuit court did not abuse its discretion in denying the RCr

11.42 motion. The Lyon Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Aaron P. Riggs Daniel Cameron LaGrange, Kentucky Attorney General of Kentucky

Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky

-15-