Simeon McKinnie v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 9, 2023
• Docket: 2021 CA 000583
• Status: Unknown

Opinion

RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0583-MR

SIMEON MCKINNIE APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 15-CR-00199-001

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE, JUDGES.

GOODWINE, JUDGE: Simeon McKinnie (“McKinnie”) appeals a Kenton Circuit

Court order denying his motion to alter, amend, or vacate his conviction under

RCr1 11.42 and for an evidentiary hearing. After careful review, finding no error,

we affirm.

1 Kentucky Rules of Criminal Procedure. The Supreme Court of Kentucky summarized the facts of the case as

follows:

On January 21, 2015, Simeon McKinnie sought to obtain a half-pound of marijuana. He contacted Matthew Bowling, who then contacted David Abney. Abney, in turn, contacted Ronald Hudson, who he knew sold marijuana. The next day, Abney met with Bowling, and the two went to pick up McKinnie on Holman Street in Covington. McKinnie was unexpectedly accompanied by DeLaun Hayes. The four – Abney, Bowling, McKinnie, and Hayes – traveled together from Holman Street en route to Hudson’s house on Hand’s Pike.

In the meantime and unbeknownst to Abney and Bowling, McKinnie had another plan. He had contacted Charles Knox prior to joining Abney and Bowling. McKinnie asked Knox to give him a ride to obtain marijuana; however, McKinnie never intended to ride with Knox, rather, he intended for Knox to follow him to Hudson’s. Knox, not owning a car, contacted Tara Little, who agreed to drive Knox to the drug deal in exchange for gas money. When Knox and Little arrived at Hayes’s house to pick up McKinnie, he was not there. Instead, McKinnie’s step-brother, John Palmer, got in the car and said McKinnie was in a truck around the corner. Confused, Knox called McKinnie, who told him to follow the truck.

Both vehicles made their way to Hudson’s house. Along the way, Little’s vehicle was separated from Bowling’s, and Hayes called Knox to see where he was. Hayes told Knox they would wait for him at a Speedway gas station on Madison Avenue; McKinnie told Bowling to stop at the gas station so he could get something to drink. After Little’s vehicle caught up to Bowling’s, the two vehicles continued to Hudson’s.

-2- When the group arrived at Hudson’s house, Bowling parked in the driveway, while Little parked on a side street and waited with her engine running. McKinnie and Hayes told Abney that they wanted to see the marijuana before they bought it. Abney, not wanting to bring someone new into Hudson’s home, went inside alone and brought a small amount of the marijuana out to McKinnie and Hayes. The two then told Abney that they wanted to see the entire amount weighed. Abney conveyed this information to Hudson, who told Abney to take McKinnie and Hayes to the garage, where he would meet them.

Abney, Bowling, McKinnie, and Hayes got out of the car and headed into Hudson’s garage. After they entered, Hayes asked again to look at the marijuana. Hudson gave him the bag and then asked if “the deal was going to go down.” Hayes responded, “Yeah, but it’s going to go down like this” and both Hayes and McKinnie pulled out pistols. Abney then lunged for Hayes, attempting to knock the marijuana and gun from his hand. While it is clear from witness testimony that both Hayes and McKinnie fired their pistols, it is unclear who shot whom. Ultimately, however, both Abney and Hudson were shot, and Hudson died of his wounds.

After the shots were fired, McKinnie took the marijuana, and he and Hayes ran from the garage. The two ran to Little’s car, and the group drove to Hayes’s grandmother’s house, where McKinnie, Hayes, Palmer, and Knox divided up the marijuana, and McKinnie and Hayes disposed of their pistols. McKinnie was charged with first-degree manslaughter, first-degree assault, and two counts of first-degree robbery, and these proceedings commenced.

McKinnie v. Commonwealth, No. 2016-SC-000348-MR, 2017 WL 2591810, at *1-

2 (Ky. Jun. 15, 2017) (footnotes omitted).

-3- McKinnie’s jury trial began on April 19, 2016. A jury found him

guilty of first-degree manslaughter, principal, or accomplice; first-degree assault,

principal or accomplice; and two counts of first-degree robbery. The jury

recommended a total sentence of 55 years, which the circuit court imposed. The

Kentucky Supreme Court affirmed McKinnie’s conviction on direct appeal. Id.

On May 1, 2018, McKinnie filed a pro se motion to vacate conviction

and sentence under CR2 60.02(f), arguing a new affidavit by Knox recanting his

trial testimony was of such extraordinary nature that it justified relief. The circuit

court denied the motion finding the motion was “factually a CR 60.02(c) motion”

and was untimely. Record (“R.”) at 531. The court also found Knox’s affidavit

was “not sufficient or specific enough to determine” if Knox’s affidavit or new

testimony was truthful. Id. McKinnie did not appeal this order.

On May 8, 2019, McKinnie filed pro se motions to vacate, set aside,

or correct sentence under RCr 11.42, for an evidentiary hearing, to proceed in

forma pauperis, and for appointment of counsel. He raised three issues: (1) trial

counsel should have moved to dismiss the assault charge because it was a double

jeopardy violation when charged along with robbery;3 (2) trial counsel’s failure to

investigate his case, specifically that counsel failed to elicit testimony from his

2 Kentucky Rules of Civil Procedure. 3 McKinnie did not raise the double jeopardy issue on appeal.

-4- codefendants that comported with his theory of the case; and (3) trial counsel was

ineffective for failing to obtain a qualified expert under Daubert v. Merrell Dow

Pharmaceuticals Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

The Commonwealth filed a timely response in opposition to the motion, and

McKinnie timely replied.

On April 22, 2021, the circuit court entered an order denying

McKinnie’s motion.4 First, the circuit court found the Kentucky Supreme Court

addressed McKinnie’s double jeopardy argument on direct appeal. Further,

counsel was not ineffective for failing to move to dismiss the assault charge as

constituting double jeopardy when charged along with robbery because these are

two separate charges. Second, regarding trial counsel’s failure to investigate his

case, the circuit court found McKinnie’s argument lacked specific facts and trial

counsel zealously advocated for McKinnie. Third, the circuit court found trial

counsel brought forth a potential witness to testify to show gunshot wounds

inflicted on the victims only came from one gun, but the circuit court found the

testimony did not meet the standards of Daubert. The circuit court found an

evidentiary hearing was not required because the allegations could be resolved on

the face of the record. This appeal followed.

4 The record does not indicate the reason for delay in ruling on the motion.

-5- On appeal, McKinnie argues: (1) trial counsel was ineffective for

failing to move to dismiss the assault charge and failing to elicit favorable

testimony from Knox and Hayes; (2) the circuit court went outside the bounds of

RCr 11.42 by making findings outside the record; and (3) the circuit court erred in

denying his request for an evidentiary hearing.

“We review the trial court’s denial of an RCr 11.42 motion for an

abuse of discretion.” Teague v. Commonwealth, 428 S.W.3d 630, 633 (Ky. App.

2014). “The test for abuse of discretion is whether the trial judge’s decision was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).

A successful claim of ineffective assistance of counsel must survive

the twin prongs of “performance” and “prejudice.” 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).

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To show prejudice, the defendant must show there is a reasonable probability that, but for counsel’s

-6- unprofessional errors, the result of the proceeding would have been different. A reasonable probability is [a] probability sufficient to undermine the confidence in the outcome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.

Bowling v. Commonwealth, 80 S.W.3d 405, 411-12 (Ky. 2002). “The burden is on

the movant to establish convincingly that he has been deprived of some substantial

right which would justify the extraordinary relief afforded by post-conviction

proceedings.” Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003),

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

2009) (citing Dorton v. Commonwealth, 433 S.W.2d 117 (Ky. 1968)).

First, McKinnie argues trial counsel was ineffective for failing to

move to dismiss the assault charge and failing to elicit favorable testimony from

Knox and Hayes. McKinnie abandoned the double jeopardy violation aspect of

this argument on appeal. He now simply argues counsel failed to move for

dismissal of first-degree assault. This precise argument is unpreserved and refuted

by the video record.

After the Commonwealth rested its case-in-chief and after the close of

all evidence, trial counsel moved for a directed verdict on all counts, including

first-degree assault. The circuit court found the Commonwealth presented

sufficient evidence to overcome the motion. During closing argument, trial

counsel instructed the jury they could return not guilty verdicts for McKinnie on all

-7- charges, including assault and argued McKinnie did not assault either of the

victims. As counsel did what McKinnie argues he failed to do, he fails to prove

deficient performance.

McKinnie also argues counsel was ineffective in failing to elicit

testimony from Knox and Hayes at trial that McKinnie did not possess or shoot

anyone during the incident. In support of this argument, McKinnie attached

affidavits by Knox and Hayes recanting their trial testimony. At trial, both Knox

and Hayes testified McKinnie had a gun. In his affidavit, Knox stated he did not

see anyone with a gun, and McKinnie did not go to Hayes’s house to split the

marijuana. Hayes’s affidavit stated he did not see McKinnie shoot anyone and did

not see him with a gun during or after the incident.

The circuit court denied McKinnie’s argument finding trial counsel

zealously attempted to obtain statements from Knox and Hayes supporting

McKinnie’s position that he did not possess or fire a gun during the incident. Trial

counsel moved to compel production of statements by Knox and Hayes to police,

which the circuit court denied. Trial counsel also moved to exclude the testimony

of Knox and Hayes at trial, which the circuit court denied. Additionally, the circuit

court noted it previously addressed the effect of recanted testimony in its order

denying McKinnie’s CR 60.02 motion.

-8- “Affidavits in which witnesses recant their testimony are quite

naturally regarded with great distrust and usually given very little weight.”

Hensley v. Commonwealth, 488 S.W.2d 338, 339 (Ky. 1972) (citing Thacker v.

Commonwealth, 453 S.W.2d 566 (Ky. 1970)). “[T]he trial judge is in the best

position to make the determination because he has observed the witnesses and can

often discern and assay the incidents, the influences and the motives that prompted

the recantation; and his rejection of the recanting testimony will not lightly be set

aside by an appellate court.” Thacker, 453 S.W.2d at 568. The circuit court

weighed the recanted testimony and was unpersuaded by it. We will not set aside

the circuit court’s decision to disregard Knox’s and Hayes’s recanted testimony.

Additionally, the circuit court pointed out that because McKinnie was

found guilty of first-degree assault as either principal or accomplice, it was not

necessary for the jury to find that he possessed or shot the gun in order to find him

guilty. Thus, McKinnie failed to meet his burden of proving trial counsel was

ineffective.

Second, McKinnie argues the circuit court went outside the bounds of

RCr 11.42 in making findings outside the record. Above, we held the circuit court

did not err in its findings or conclusions denying McKinnie’s ineffective assistance

of counsel claims. These findings were based on evidence in the record. Thus, we

hold this unsupported argument lacks merit.

-9- Finally, McKinnie argues the circuit court erred in denying his request

for an evidentiary hearing. A trial court is not required to hold an evidentiary

hearing on a motion under RCr 11.42. Stanford v. Commonwealth, 854 S.W.2d

742, 743 (Ky. 1993). “An evidentiary hearing is not necessary to consider issues

already refuted by the record in the trial court. Conclusory allegations which are

not supported with specific facts do not justify an evidentiary hearing

because RCr 11.42 does not require a hearing to serve the function of

discovery.” Hodge, 116 S.W.3d at 468 (citation omitted). Based on our review of

McKinnie’s ineffective assistance of counsel claims, they were refuted by the

record. Thus, the circuit court correctly denied McKinnie’s motion for an

evidentiary hearing.

For the foregoing reasons, we affirm the order of the Kenton Circuit

Court.

ALL CONCUR.

-10- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Darrell Cox Daniel Cameron Noah P. Wentz Attorney General of Kentucky Covington, Kentucky Matthew F. Kuhn Solicitor General

Brett R. Nolan Principal Deputy Solicitor General

Rachel A. Wright Assistant Solicitor General Frankfort, Kentucky

-11-