TERRANCE BOYKIN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 20, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2001-CA-002658-MR
TERRANCE BOYKIN
v.
APPELLANT
APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE WILLIAM L. SHADOAN, JUDGE
ACTION NO. 98-CR-00029
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BARBER, SCHRODER, AND VANMETER, JUDGES.
BARBER, JUDGE:
The Appellant, Terrance Boykin (Boykin),
appeals from an order of the Hickman Circuit Court denying his
motion for post-conviction relief pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42.
Boykin contends that he
received ineffective assistance of counsel in connection with
his trial on charges of conspiracy to commit murder and six
counts of wanton endangerment, and in his direct appeal
following his conviction of the charges, because counsel
represented both him and a codefendant and, as such, was
laboring under a conflict of interest which resulted in
deficient and prejudicial representation.
For the reasons
stated below we affirm.
On the evening of June 21, 1998, Corey Fitts and
Natasha Wilson were sitting on the front porch of Natasha’s
grandmother’s house.
Fitts spotted a yellow Mustang convertible
which he believed belonged to codefendant Treon McElarth.
Fitts
testified that he became alarmed by the presence of the vehicle
because previously both he and Natasha had taken warrants out
against Boykin.
Fitts feared that Terrance Boykin was in the
vehicle with McElrath and had come to retaliate because of the
warrants.
Upon Fitts’ identification of the Mustang as
McElrath’s, Natasha went inside the house and made a 911 call to
the police.
Fitts testified that after Natasha placed the 911 call
she returned to the porch and that he stayed on the porch
because Natasha had informed him that the police were going to
pick up McElrath.
Fitts testified that some twenty minutes
thereafter he saw two armed men turn the corner of the house and
approach the porch where he and Natasha were seated.
At that
point both Fitts and Natasha ran for the door and entered it
about the same time.
While Fitts escaped into the house,
Natasha was shot and mortally wounded.
2
At trial, Fitts
positively identified the gunmen as Boykin and codefendant Andra
Devon Everett.
Other witness testimony placed Boykin and
Everett in the company of McElrath the night of the shooting.
A
search of Boykin’s home by police produced one of the weapons
used in the shooting, a .45 caliber pistol.
A search of
McElrath’s vehicle produced what was apparently the clip to the
weapon.
Boykin, McElrath, and Everett were each charged with
one count of complicity to murder and six counts of complicity
to wanton endangerment.
Following a jury trial Boykin, along
with his codefendants, was convicted of the seven charges.
Boykin received a sentence of twenty-two years on the complicity
to commit murder conviction and five years imprisonment on each
of the complicity to wanton endangerment convictions.
Each of
the sentences was ordered to be run consecutively for a total of
52 years to serve.
On September 28, 2000, the Supreme Court
entered an unpublished opinion affirming Boykin’s convictions
and the associated sentences.
See Case 1999-SC-0462.
On August 21, 2001, Boykin filed a motion for postconviction relief in Hickman Circuit Court pursuant to RCr
11.42.
Boykin also filed motions for appointment of counsel and
for an evidentiary hearing.
On September 27, 2001, the trial
court entered an order denying the motions.
followed.
3
This appeal
Boykin argues he received ineffective assistance of
counsel at trial because trial counsel also represented
codefendant Treon McElrath and that, as a result, trial counsel
was laboring under a conflict of interest which resulted in
deficient representation.
Boykin concedes that this issue is
not preserved because it was not raised in his pro se RCr 11.42
motion; however, he requests that we review this issue under the
palpable error standard as provided in RCr 10.26.
The record demonstrates that trial counsel was aware
of the potential for a conflict of interest as a result of his
representation of both Boykin and McElrath.
In his entry of
appearance as counsel for Boykin trial counsel stated as
follows:
Said Entry of Appearance will be
until it is known whether or not
be a conflict in defense between
McElrath and Terrance Boykin, in
this attorney will file a Motion
as attorney for Terrance Boykin.
valid only
there will
Treon
which case
to Withdraw
As trial counsel continued to represent both Boykin and
McElrath, there presumably, in his judgment, was not a conflict
of interest in the multiple representation.
RCr 8.30 directly addresses the issue of an attorney’s
representation of multiple codefendants.
RCr 8.30 is intended
to protect defendants from the potential consequences of dual
representation and assure that they are advised of potential
4
conflicts of interest.
RCr 8.30(1) prohibits dual
representation of persons charged with the same offenses unless:
(a) the judge of the court in which the
proceeding is being held explains to the
defendant or defendants the possibility of a
conflict of interest on the part of the
attorney in that what may be or seem to be
in the best interests of one client may not
be in the best interests of another, and
(b) each defendant in the proceeding
executes and causes to be entered in the
record a statement that the possibility of a
conflict of interests on the part of the
attorney has been explained to the defendant
by the court and that the defendant
nevertheless desires to be represented by
the same attorney.
It appears from the record that RCr 8.30 was not
complied with in this case.
In a pretrial hearing held on
October 16, 1998, the following discussion occurred between
defense counsel and the trial court:
Defense Counsel:
I represent Mr. Boykin
and Mr. McElrath.
Court:
You represent two of
them?
Defense Counsel:
Yes sir.
Court:
No conflicts?
. . .
Defense Counsel:
We have got everything
signed on those two
gentlemen.
5
You got a
Neither here, nor anywhere else in the record, is it
demonstrated that the trial court complied with its obligation
to inform Boykin of the potential consequences of a dual
representation as required by RCr 8.30(1).
In response to Boykin’s motion to supplement the
appellate record, on October 7, 2002, the Hickman Circuit Court
certified as missing portions of the circuit court record
relating to Boykin.
However, the circuit court record in
companion case McElrath v. Commonwealth, Case 2002-CA-001732,
which is also currently on appeal with this Court from the
Hickman Circuit Court’s denial of codefendant McElrath’s motion
for post-conviction relief pursuant to RCr 11.42,1 contains the
following waiver of dual or multiple representation executed by
McElrath:
WAIVER OF DUAL OR MULTIPLE REPRESENTATION
The Undersigned Defendant, TREON MCELRATH,
being before this Court charged with the
offense of Complicity to Murder,
acknowledges that the Court has explained to
him and that he understands the possibility
that a conflict of interest may exist on the
part of his attorney, BENJAMIN J. LOOKOFSKY,
in that what may be in the best interests of
this Defendant may not be in the best
interests of his Co-Defendant, TERRANCE
BOYKIN.
With the understanding the undersigned
nevertheless desires that attorney, BENJAMIN
1
This Court’s decision in the companion case was also rendered on this date.
6
J. LOOKOFSKY, represent him in this
proceeding and that he has no objection to
him continuing to act as counsel for the
other Co-Defendant mentioned in this Waiver
as being involved in a possible conflict of
interest.
While the appellate record does not contain a similar
waiver by Boykin, portions of the trial record relating to the
appellant’s case have been certified as missing.
Boykin does
not allege that he did not execute a similar waiver, and based
upon the record before us it is reasonable to presume that he
did.
Nevertheless, while the waiver contains the statement “the
Court has explained to him and . . . he understands the
possibility that a conflict of interest may exist on the part of
his attorney,” the record does not support this.
It appears,
rather, that the trial court did not provide the required
explanation.
However, Boykin does not premise his claim for RCr
11.42 relief upon a violation of RCr 8.30.
Rather, the
appellant’s argument is limited to the assertion that he
received ineffective assistance of counsel as a result of the
dual representation.
Because Boykin’s claim of ineffective assistance of
counsel is based upon a conflict of interest, a different
standard is used than the general standard applicable to a
typical ineffectiveness claim.
The Supreme Court set forth the
7
standard for reviewing conflict of interest cases in Cuyler v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333
(1980), and summarized it again in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as follows:
In Cuyler . . . [we] held that prejudice is
presumed when counsel is burdened by an
actual conflict of interest. In those
circumstances, counsel breaches the duty of
loyalty, perhaps the most basic of counsel's
duties. Moreover, it is difficult to
measure the precise effect on the defense of
representation corrupted by conflicting
interests. Given the obligation of counsel
to avoid conflicts of interest and the
ability of trial courts to make early
inquiry in certain situations likely to give
rise to conflicts . . . it is reasonable for
the criminal justice system to maintain a
fairly rigid rule of presumed prejudice for
conflicts of interest. Even so, the rule is
not quite the per se rule of prejudice that
exists for the Sixth Amendment claims
mentioned above [actual or constructive
denial of the assistance of counsel
altogether]. Prejudice is presumed only if
the defendant demonstrates that counsel
"actively represented conflicting interests"
and that "an actual conflict of interest
adversely affected his lawyer's
performance." (Emphasis added).
Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at
696 (emphasis added) (quoting Cuyler, 446 U.S. at 350, 348, 100
S. Ct. at 1719, 1718, 64 L. Ed. 2d at 348, 346-47).
Hence, the crucial inquiry in this type of case is whether trial
counsel actually represented conflicting interests and, if so,
whether the conflict adversely affected trial counsel’s
performance.
8
We conclude that trial counsel did err by undertaking
a dual representation without compliance with RCr 8.30.
Under
RCr 8.30, Boykin should have been advised by the trial court of
the potential consequences of trial counsel’s dual
representation, and it was incumbent upon trial counsel to
assure that the rule was complied with.
Further, it appears
that trial counsel entered into the record a waiver that stated
that such an admonishment had been given to Boykin by the trial
court when it had not.
As a result of trial counsel’s errors in
this regard, the trial record does not clearly demonstrate that
Boykin was made aware of the consequences of a dual
representation or that he was given an informed opportunity of
seeking (or, if appropriate, of having appointed) an attorney
not in that position.
Nevertheless, under Cuyler a defendant is only
entitled to post-conviction relief in the event of prejudice,
and prejudice is presumed only if the defendant demonstrates
that counsel "actively represented conflicting interests" and
that "an actual conflict of interest adversely affected his
lawyer's performance," and that will be the focus of our review.
In support of his argument that he received
ineffective assistance of counsel – and that he was prejudiced
thereby - as a result of trial counsel’s dual representation,
Boykin states as follows:
9
In the case at bar, the conflict between
Boykin and McElrath is obvious, and possible
avenues of defense for Boykin were closed in
order to protect McElrath’s defense. The
Commonwealth tried to prove that McElrath
was the driver of the car, while Boykin was
the shooter. It was clear that counsel
believed the evidence against McElrath was
weak and he focused the defense strategy on
defending McElrath. As a result, almost
none of the evidence that tended to further
implicate McElrath instead of Boykin was
brought to light during the trial. Several
witnesses, including police officers, placed
McElrath and his car near the scene of the
crime along with three other black males,
but none of these witnesses personally saw
Boykin with McElrath on the night of the
shooting. Similarly, the victim herself
identified McElrath when she made the first
911 call. In contrast, only witness Fitts
directly implicated Boykin as a shooter at
trial. Yet, when the first officer arrived
on the scene of the shooting, Fitts told him
that “McElrath had done it.” Similarly,
during the preliminary hearing, it was
revealed that Wilson’s five-year old son
(who was in the home during the shooting)
identified the shooters as McElrath and
Everett. Yet, this witness was never
questioned at trial.
Detective Perry also testified that McElrath
made a statement to police admitting that he
was in Clinton with Everett on the night of
the shooting, but did not implicate Boykin.
In contrast, Boykin denied being in Clinton
on that night and told police he had met up
with McElrath after McElrath had returned to
Union City. The alleged weapon was
recovered in part from the home of Boykin’s
grandmother and the gun clip from the glove
box of McElrath’s car, yet it was never
argued that Boykin and McElrath were cousins
who each had access to their grandmother’s
home. Defense counsel filed a motion for
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separate trial and motion for bill of
particulars of McElrath, but not for Boykin.
Contradictory testimony as to which of his
clients was the shooter presented defense
counsel with an actual conflict which would
adversely affected [sic] his representation
of Mr. Boykin. It was apparent that defense
counsel favored the defense of McElrath over
Boykin, and as a result Boykin was
prejudiced by counsel’s failure to further
investigate and cross examine witnesses that
may have produced evidence or testimony
unfavorable to McElrath. In this case,
counsel’s loyalty was divided and Mr. Boykin
suffered as a result of it. As emphasized
by the courts, “in a case of joint
representation the evil . . . is what the
advocate finds himself compelled to refrain
from doing . . .” (Case and transcript
citations omitted.)
Boykin’s argument and the record clearly
refute the appellant’s claim that trial
counsel provided deficient representation
and that Boykin was prejudiced by trial
counsel’s representation of both the
appellant and McElrath.
As we interpret the above, Boykin’s principal conflict
of interest argument is that trial counsel should have pursued
the defense theory that McElrath and Everett, as opposed to
Boykin and Everett, were the gunmen but did not because counsel
also represented McElrath.
Implicit in this argument is the
presumption that if Boykin could be eliminated as one of the
gunmen, then he would also be eliminated as a suspect in the
killing of Natasha Wilson.
11
The Commonwealth’s theory of the case was that Boykin
and Everett were the gunmen and McElrath was the get-away
driver.
This theory was based primarily upon the eyewitness
identification by Corey Fitts of Boykin and Everett as the
gunmen and the testimony of two disinterested witnesses who
stated that McElrath unexpectedly visited them at a nearby
residence a few minutes before the shooting, and left
immediately after the shots were heard.
Further, Fitts
personally knew Boykin, and his identification of Boykin was an
identification of someone he recognized and knew on sight.
In
addition, Boykin had a motive for the armed attack, and forensic
testimony conclusively identified a .45 caliber pistol seized at
Boykin’s residence as one of the weapons used in the shooting.
In support of his theory that McElrath was Everett’s
co-gunman Boykin primarily relies upon Fitts’ statement on the
night of the murder to the effect that “Treon did it” in
response to a question by a police officer.
At trial Fitts
denied making the statement, and stated that if he did it was
because he was “psyched out” in the aftermath of the murder.
Fitts was thoroughly cross-examined on the alleged statement by
Everett’s trial counsel, but Fitts stuck firmly with his
identification of Boykin and Everett as the gunmen.
In any
event, McElrath was positively placed at a nearby residence at
the time of the shooting by two disinterested witnesses, and the
12
single isolated and ambiguous statement allegedly made by Fitts,
in light of the overwhelming evidence to the contrary, does not
support the adoption of a defense theory that McElrath was one
of the gunmen to the exclusion of Boykin.
Boykin also relies upon the statement of a five-year
old child who supposedly identified McElrath as a gunman;
however, the undisputed trial testimony was that the child was
in the residence at the time of the shooting, and was not in a
position to have personally observed the gunmen.
In support of his theory Boykin also cites his police
statement denial that he was in Clinton the night of the murder
and that McElrath could have hidden the .45 caliber pistol in
his residence.
We conclude that neither of these factors is
sufficient to reasonably support the defense theory now adopted
by Boykin.
Based upon the record, there is not a reasonable
probability that an unconflicted defense attorney would have
attempted to defend Boykin by seeking to identify McElrath as
Everett’s co-gunman.
The defenses and interests of Boykin and
McElrath were not adverse or in conflict.
We conclude that
trial counsel did not actively represent conflicting interests
by defending both McElrath and Boykin.
13
The conflicts identified by Boykin are speculative and
hypothetical.
The trial record conclusively demonstrates that
an actual conflict did not exist, and trial counsel did not
provide deficient representation of Boykin by representing both
the appellant and codefendant McElrath.
In addition, the trial
evidence reflects no evidence that Boykin was prejudiced by the
dual representation.
Accordingly, Boykin did not receive
ineffective assistance of counsel as a result of trial counsel’s
dual representation of Boykin and McElrath.
Boykin also contends that he is entitled to postconviction relief on the basis that he received ineffective
assistance of counsel on the appeal of his conviction and
sentence to the Supreme Court.
Boykin basis his claim of
ineffective assistance upon appellate counsel’s dual
representation of both the appellant and codefendant McElrath.2
An RCr 11.42 motion cannot be used as a vehicle for
relief from ineffective assistance of appellate counsel.
Harper
v. Commonwealth, Ky., 978 S.W.2d 311, 318 (1998), cert. denied,
526 U.S. 1056, 119 S.Ct. 1367, 143 L.Ed.2d 527 (1999); Bowling
v. Commonwealth, Ky., 80 S.W.3d 405, 421 (2002).
As ineffective
assistance of appellate counsel is not a proper issue to raise
in an RCr 11.42 motion, we will not address this issue on the
merits.
2
Trial counsel also served as appellate counsel on the direct appeal of the
codefendants.
14
Boykin also contends that he is entitled to an
evidentiary hearing on his RCr 11.42 motion and appointment of
counsel.
A hearing in an RCr 11.42 proceeding is not required
if the allegations contained in the motion can be resolved on
the face of the record.
A hearing is required only 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, Ky., 59 S.W.3d 448, 452 (2001).
If an evidentiary hearing is required, counsel must be appointed
to represent the movant if he/she is indigent and specifically
requests such appointment in writing.
Ky., 386 S.W.2d 465 (1965).
Coles v. Commonwealth,
If an evidentiary hearing is not
required, counsel need not be appointed, "because appointed
counsel would [be] confined to the record."
Fraser at 453.
In this case all allegations can be resolved from the
face of the record and there are no material issues of fact
which cannot be conclusively proved or disproved by an
examination of the record.
Thus, the appellant is not entitled
to an evidentiary hearing.
Moreover, since an evidentiary
hearing is unnecessary, the appellant is not entitled to the
appointment of counsel.
For the foregoing reasons the judgment of the Hickman
Circuit Court is affirmed.
ALL CONCUR.
15
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Misty Jenine Dugger
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Connie V. Malone
Assistant Attorney General
Frankfort, Kentucky
16
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