Ronald C. Fairchild v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 13, 2020
• Docket: 2018 CA 000932
• Status: Unknown

Opinion

RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2018-CA-000932-MR

RONALD C. FAIRCHILD APPELLANT

APPEAL FROM ROWAN CIRCUIT COURT v. HONORABLE WILLIAM E. LANE, JUDGE ACTION NO. 12-CR-00238

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Ronald Fairchild appeals the Rowan Circuit Court’s February

13, 2018 order denying his RCr1 11.42 motion for post-conviction relief alleging

ineffective assistance of trial and appellate counsel. Finding no error, we affirm.

1 Kentucky Rules of Criminal Procedure. BACKGROUND

Donald Walker and his girlfriend, Marlene Mauk, were killed during a

robbery at Walker’s trailer in Fleming County, Kentucky. Six years after the

bodies were discovered, investigators charged and arrested two individuals in

Ohio. Those two suspects, Jason Jackson and Rodney Dodson, quickly gave

statements implicating Fairchild, who was then arrested and charged.

During the investigation, police discovered Walker was not liked by

these three individuals. Jackson, Dodson, and Fairchild discovered Walker was

working as a Kentucky State Police informant and had allegations of sexual assault

and attempted baby buying – all of which did not sit well with Fairchild. Jackson,

Dodson, and Fairchild discussed robbing Walker. Ultimately, all three men went

to Walker’s home, wanting him to accompany them to Ohio to purchase more

marijuana because they were low on cash. Walker declined. At this point,

Fairchild allegedly shot Walker and Mauk, then stole an envelope full of cash.2

After hearing the evidence, the jury found Fairchild guilty of two

counts of complicity to commit murder, one count of robbery, and one count of

burglary. He was sentenced to twenty-seven and one-half years for each murder,

fifteen years for robbery, and fifteen years for burglary – all to run concurrently.

The Kentucky Supreme Court affirmed his conviction. See Fairchild v.

2 The various defendants told differing stories as to who was the actual gunman.

-2- Commonwealth, No. 2013-SC-000024-MR, 2015 WL 4967150 (Ky. Aug. 20,

2015).

After the Kentucky Supreme Court rendered its decision, Fairchild,

pro se, filed an RCr 11.42 motion to vacate for ineffective assistance of counsel.

The trial court denied the motion and his request for a hearing. This appeal

followed.

STANDARD OF REVIEW

Every defendant is entitled to reasonably effective, but not necessarily

errorless, counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App.

2011). In evaluating a claim of ineffective assistance of counsel, we apply the

familiar “deficient-performance plus prejudice” standard first articulated in

Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d

674 (1984).

Under this standard, the movant must first prove his counsel’s

performance was deficient. Id. at 687, 104 S. Ct. at 2064. To establish deficient

performance, the movant must show that counsel’s representation “fell below an

objective standard of reasonableness” such that “counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment[.]” Commonwealth v. Tamme, 83

S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21

(Ky. 2009).

-3- Second, the movant must prove that counsel’s “deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To

establish prejudice, the movant must demonstrate “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694, 104 S. Ct. at 2068.

As a general matter, we recognize “that counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Id. at 690, 104 S. Ct. at 2066. For

that reason, “[j]udicial scrutiny of counsel’s performance [is] highly deferential.”

Id. at 689, 104 S. Ct. at 2065. We must make every effort “to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Id.

ANALYSIS

Fairchild suggests multiple instances of ineffective assistance of

counsel in both the trial and appellate courts. He also argues the trial court erred

when it denied his motion without first conducting an evidentiary hearing.

Not every claim of ineffective assistance merits an evidentiary

hearing. Nor is an RCr 11.42 movant automatically entitled to one. See Stanford

v. Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993). The trial court need only

-4- 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) (citations

omitted); RCr 11.42(5). An evidentiary hearing is unnecessary when the record

refutes the claims of error or when the allegations, even if true, would not be

sufficient to invalidate the conviction. Harper v. Commonwealth, 978 S.W.2d 311,

314 (Ky. 1998). If an evidentiary hearing is mandated, then the trial court shall

appoint counsel to represent an indigent defendant. RCr 11.42(5).

In this case, as explained below, the claims raised by Fairchild are

either refuted by the record or are insufficient to justify relief under Strickland. An

evidentiary hearing was not warranted.

Trial Counsel Ineffectiveness

First, Fairchild contends trial counsel was ineffective for referencing

his polygraph in counsel’s opening statement, which led to the introduction of his

“negative” (failing) results. During opening statements, Fairchild’s counsel chose

to refer to the polygraph examination as a sham to bulldoze Fairchild into

admitting a role in the murders. This defense is permissible. Rogers v.

Commonwealth, 86 S.W.3d 29, 38 (Ky. 2002).

Because trial counsel used the polygraph in opening statements, the

trial judge allowed the recording of the polygraph to be heard, in its entirety,

-5- during the hearing. This opened the door for trial counsel to attack the

examination as a sham used to coerce a confession. Trial counsel elicited

testimony from three different experts about the risks of obtaining a false

confession, the proper conduct of a polygraph examination, and the unreliableness

of recognized methods. This was a trial strategy, and Fairchild fails to offer a

sounder strategy to combat his own statements to police.

Nonetheless, the polygraph, in and of itself, did not harm Fairchild.

He continuously made contradicting statements to police. Eventually, his

statements put him in the trailer, alongside Jackson and Dodson, with knowledge

of impending criminal acts. He also received cash from the crime. Given the

evidence – including his own statements – the jury’s verdict of complicity to

murder was the best possible outcome for him. He fails to satisfy the Strickland

elements. He did not demonstrate how his counsel was “deficient” or how he was

“prejudiced” by this deficiency.

Second, Fairchild argues that trial counsel’s failure to preserve a juror

selection issue is ineffective assistance of counsel. Fairchild wished to strike five

jurors for cause and counsel used peremptory strikes to remove them. However,

counsel tendered to the court additional jurors Fairchild wanted to strike, but only

after jury selection. He claims his trial counsel did not preserve the issue

appropriately under Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009).

-6- Gabbard requires that “the defendant must identify on his strike sheet any

additional jurors he would have struck” to preserve an error alleging deprivation of

a peremptory challenge through the trial court’s erroneous failure to strike a juror

for cause. Id. at 854. This is true; yet, it does not apply to the post-conviction

relief Fairchild seeks. Fairchild must identify how he was prejudiced by this

erroneous preservation. Specifically, he must show how the presence of the jurors

he wished to dismiss impaired the fairness of his proceedings. Without this

specificity, we cannot conclude Fairchild’s trial counsel was ineffective.

Third, Fairchild argues his trial counsel failed to object to

introductions of statements that had a prejudicial/inflammatory effect. On his

direct appeal to the Kentucky Supreme Court, the Court found all statements

relevant, in that “[i]t is plain to see that Fairchild’s incriminating statement makes

a fact of consequence – he being the gunman in the murders of Walker and Mauk –

more probable than it is without that evidence.” Fairchild, 2015 WL 4967150, at

*12. It held that the trial court did not abuse its discretion in finding the statements

reliable, and even if they were inadmissible, the error was harmless because the

jury only found he was complicit. Id.

Additionally, although this testimony was objectionable, trial counsel

may well have refrained from objecting as a matter of trial strategy, to avoid

bringing additional attention to the statement. Furthermore, even if counsel simply

-7- erred in not objecting to this testimony, we cannot say that this one deficiency

negated what was otherwise competent representation, or that there would be any

likelihood that the outcome of the trial would have been any different had he

objected. “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.” Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001),

overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky.

2009). Every defendant is entitled to reasonably effective, but not necessarily

errorless, counsel. Fegley, 337 S.W.3d at 659.

Fairchild also blames trial counsel for not putting on sufficient

evidence to warrant a jury instruction on facilitation. A person is guilty of criminal

facilitation when, by “acting with knowledge that another person is committing or

intends to commit a crime, he engages in conduct which knowingly provides such

person with means or opportunity for the commission of the crime and which in

fact aids such person to commit the crime.” KRS3 506.080. According to the

Kentucky Supreme Court’s opinion on Fairchild’s direct appeal, he failed to

provide evidence he provided the “means and opportunity” to commit the crime.

Fairchild, 2015 WL 4967150, at *13 (“Fairchild has not met this burden,

particularly concerning the ‘means or opportunity’ element.”).

3 Kentucky Revised Statutes.

-8- On this appeal, Fairchild still does not provide evidence to satisfy this

element of criminal facilitation. Fairchild offers no evidence his trial counsel was

ineffective as that standard is set out in Strickland.

Appellate Counsel Ineffectiveness

Next, Fairchild argues he received ineffective assistance of appellate

counsel because counsel, on direct appeal, failed to raise a claim that his conviction

was based on his coerced statement to police. See id. at *3-*5. In Hollon v.

Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010), our Supreme Court recognized

that criminal defendants are entitled to effective assistance of appellate counsel.

Should appellate counsel wholly fail in this endeavor in the appellate court,

criminal defendants may pursue a claim of ineffective assistance of appellate

counsel.

We evaluate the effectiveness of appellate counsel’s representation

under Strickland’s performance and prejudice standard. Id. Appellate counsel’s

failure to raise a particular issue on direct appeal may constitute deficient

performance, but petitioners who allege their appellate counsel’s deficiency must

overcome the “strong presumption that [their counsel’s] choice of issues to present

[on appeal] was a reasonable exercise of appellate strategy.” Id. To overcome this

strong presumption, Fairchild must show that the omitted issue was a “clearly

stronger” issue than those presented. Id. Prejudice must derive from counsel’s

-9- omission, and so we ask whether “absent counsel’s [omission,] there is a

reasonable probability that the appeal would have succeeded.” Id. at 437.

Fairchild is unable to overcome these hurdles.

Fairchild’s counsel did not fail to raise this issue. The Supreme Court

fully addressed it in the opinion it rendered in his direct appeal. Fairchild, 2015

WL 4967150, at *3-*5. Rather, Fairchild argues his appellate counsel was

ineffective in the manner in which he argued the case on appeal because he failed

to reference specific claims of coercion during his police interrogation. This

argument fails first because the Supreme Court made it clear that “IAAC claims

will not be premised on inartful arguments or missed case citations; rather counsel

must have omitted completely an issue that should have been presented on direct

appeal.” Hollon, 334 S.W.3d at 437. Furthermore, the argument fails because, as

the Supreme Court said in his direct appeal, the record contains nothing of this

alleged coercion except “Fairchild’s bare allegations . . . .” Fairchild, 2015 WL

4967150, at *5. Both are reasons for denying his RCr 11.42 motion.

CONCLUSION

We affirm the Rowan Circuit Court’s February 13, 2018 order

denying Fairchild’s RCr 11.42 motion for post-conviction relief alleging

ineffective assistance of trial and appellate counsel.

ALL CONCUR.

-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Ronald C. Fairchild, pro se Andy Beshear LaGrange, Kentucky Attorney General of Kentucky

James Havey Assistant Attorney General Frankfort, Kentucky

-11-