Edward Lee HARPER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 97-SC-110-MR.
Supreme Court of Kentucky.
Sept. 3, 1998.
Rehearing Denied Nov. 19, 1998.
978 S.W.2d 311
We conclude that appellant‘s actual residence is in Trimble County. Although appellant may intend for his actual residence to be in Jefferson County, his objective actions show otherwise. The following objective factors aid us in our conclusion that appellant is not a bona fide resident of Jefferson County: (1) appellant did not change his voter‘s registration back to Jefferson County until July 23, 1997; (2) appellant‘s driver‘s license is still issued from Trimble County; (3) one of appellant‘s automobile‘s is titled in Trimble County; (4) appellant‘s tax records indicate his home address is in Trimble County; (5) appellant made his permanent home in Trimble County, only sleeping in Jefferson County occasionally and then in a hotel or at his place of business; and (6) appellant kept all of his personalty which was not directly related to his profession in Trimble, not Jefferson County. See Ravenel, 218 S.E.2d at 524-26 (five year residency requirement for one to be eligible for governor of South Carolina not met because voting record in New York, income tax returns showed New York address, and automobile registered in Connecticut). The factors above support the trial judge‘s finding that appellant is not a resident of Jefferson County; therefore, the trial judge‘s ruling will not be disturbed on this appeal. Tolley v. Commonwealth, Ky., 892 S.W.2d 580, 584 (1995).
III. JEFFERSON CIRCUIT COURT IS THE PROPER FORUM IN WHICH TO CHALLENGE APPELLANT‘S QUALIFICATIONS AS DISTRICT JUDGE.
The procedure for challenging the qualifications of a judicial candidate is set out in
IV. UNCALLED WITNESSES.
Appellant‘s last issue of error concerns the presumption of uncalled witnesses’ unfavorable testimony. This issue is moot given that appellant is a resident of Trimble County.
The final “Opinion and Order” of the Court of Appeals holding that appellant is not a bona fide candidate pursuant to
All concur.
A.B. Chandler, III, Attorney General, Connie Vance Malone, Susan Roncarti, David A. Smith, Janet M. Graham, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.
GRAVES, Justice.
Appellant, Edward Lee Harper, Jr., was convicted and sentenced to death in the Jefferson Circuit Court for the murder of his adoptive parents, Edward and Alice Harper. This Court affirmed his convictions and sentence on May 2, 1985. Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). On August 28, 1986, Appellant filed an
I.
Appellant contends that he was entitled to an evidentiary hearing because his claims of ineffective assistance of trial counsel could not be determined from the face of the trial record. Appellant argues his retained trial counsel was deficient in that he failed to: (1) obtain independent defense mental health experts; (2) request funds for such experts; (3) make adequate use of court-appointed mental health experts; (4) identify, research and present legal grounds for the suppression of Appellant‘s confession; and (5) anticipate and
A. Whether trial counsel should have retained independent defense mental health experts.
Appellant asserts that a hearing is essential to ascertain the reason why counsel, although relying on the defense of insanity, did not obtain his own independent mental health expert in addition to the court-appointed experts. Prior to trial, the trial court ordered an evaluation of Appellant at Kentucky Correctional Psychiatric Center (KCPC). The evaluation was subsequently performed by Dr. Pran Ravani, a psychiatrist, and Dennis Wagner, a psychologist. Appellant‘s counsel informed the trial court on several occasions that he was considering having Appellant examined by an independent expert, but was waiting to review the results of the KCPC evaluation. Ultimately, counsel chose not to retain an independent expert.
At trial, both Dr. Ravani and Wagner testified for the defense. Both stated that Appellant suffered from schizophrenic form disorder, an acute form of schizophrenia which can be shorter in duration. However, neither testified that in their opinion, Appellant, at the time of the murders, probably lacked substantial capacity to appreciate the criminal nature of the act or that he did not have the substantial capacity to conform his conduct to the requirements of law. Wagner did testify that if Appellant was suffering from the disorder at the time of the killings, he would not have been able to tell right from wrong or to control his actions.
Appellant believes that an independent expert was essential to assist counsel in determining whether insanity was an appropriate defense, to aid counsel in presenting that defense, and to aid counsel in the presentation of mitigating evidence. Appellant relies on this Court‘s opinion in Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995), which held that the trial court‘s appointment of a neutral mental health expert was “insufficient to satisfy the constitutional requirement of due process because the services of a mental health expert should be provided so as to permit that expert to conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense.” Id. at 386. This Court recognized that pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), indigent defendants are entitled to be provided with a psychiatrist to assist in building an effective defense. Binion, supra at 386; see also Hunter v. Commonwealth, Ky., 869 S.W.2d 719 (1994).
Here, however, we are presented with a different situation. Appellant was not indigent and was represented by retained counsel of his choice. The question is not whether the trial court had the responsibility to provide an expert, but whether counsel was ineffective in failing to retain an independent expert to assist in the defense.
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established the standard by which to evaluate counsel‘s performance. In order to overcome the strong presumption that counsel‘s conduct fell within the wide range of reasonably pro-
When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer—including an appellate court, to the extent it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2069; see also Hopewell v. Commonwealth, Ky., 687 S.W.2d 153 (1985).
In Henderson v. Commonwealth, Ky., 636 S.W.2d 648, 650 (1982), this Court stated that “defense counsel should be required to perform at least as well as a lawyer with ordinary training and skill in criminal law, utilizing that degree of training to conscientiously protect his client‘s interest.”
A reviewing court, in determining whether counsel was ineffective, must be highly deferential in scrutinizing counsel‘s performance. The tendency and temptation to second guess is strong and should be avoided. Thus, we must look to the particular facts of the case and determine whether the acts or omissions were “outside the wide range of professionally competent assistance” to the extent that the errors caused the “adversarial testing process” not to work. Strickland, supra at 690, 104 S.Ct. at 2066.
We are of the opinion that trial counsel‘s decision not to present additional mental health experts is certainly consistent with trial strategy based on investigation. The record reflects that it was clearly counsel‘s strategy to await the results of the KCPC examination before determining whether to have Appellant independently examined. The court-appointed experts essentially conceded that Appellant suffered from some form of a mental disorder, and Wagner went so far as to testify that if the disorder was present at the time of the murders, Appellant would not have been able to control his actions. Thus, counsel could have reasonably concluded that testimony from an independent expert was unnecessary.
Further, an argument may be made that a jury would view a court-appointed expert more credibly than an expert hired to assist and testify for the defense. Nonetheless, Appellant has not demonstrated that the experts by whom he was examined were not qualified, or that counsel had reason to believe they were not qualified to determine whether Appellant‘s mental capacity was diminished at the time of the offenses. Competent representation does not demand that counsel seek repetitive examinations of Appellant until an expert is found who will offer a supportive opinion.
B. Whether counsel was ineffective for failing to request funds for an independent mental health expert.
Appellant further takes issue with counsel‘s failure to request funds for independent mental health experts. Appellant sets forth several alternatives trial counsel had available to him to obtain funds, from declaring Appellant indigent (although he had retained counsel) to requesting funds pursuant to
We find Appellant‘s claims to be conjecture without any evidentiary support. There is absolutely nothing in the record to indicate that counsel rendered ineffective assistance by failing to request funds. No evidentiary hearing is required if the allegations of the
C. Whether counsel competently used the court-appointed mental health experts to present defense evidence.
In the first part of this argument, Appellant alleges that counsel rendered ineffective assistance during the competency hearing by failing to question Dr. Ravani as to whether Appellant met the statutory definition of competence to stand trial as set
We note that the trial court elicited from Dr. Ravani during the competency hearing that Appellant met the statutory definition of competent. Further, this Court on direct appeal affirmed the trial court‘s finding of competency. Harper, supra at 670. Given that Appellant testified during the suppression hearing and trial, we fail to perceive any benefit from calling him as a witness during the competency hearing. The fact that Appellant was difficult and failed to tell the entire truth to his counsel does not equate to a finding of incompetency. On the contrary, such conduct is subject to an inference of gamesmanship.
Next, Appellant alleges that counsel “failed to use the neutral KCPC experts to explain to the jury how what was inside Harper‘s mind resulted in Harper‘s homicidal behavior.” A review of the record, however, reveals that counsel not only used the KCPC experts to convey such information, but also used several other witnesses. The KCPC experts specifically related Appellant‘s conduct in committing the murders to his mental disorder and the problems he was experiencing. Further, several family members and friends described Appellant‘s mental state and resulting behavior at that time.
Finally, Appellant argues that counsel failed to use the KCPC experts during the penalty phase to adequately convey mitigating factors and explain Appellant‘s motivation. However, counsel presented the testimony of Wagner, who reiterated that schizophrenic form disorder is of a brief duration and is characterized by emotional turmoil and confusion. Further, it is clear that counsel presented an abundance of information explaining to the jury how all of the factors culminated in the acts of killing. Again, it is clear that these allegations were sufficiently resolved by a review of the record.
D. Whether counsel rendered ineffective assistance during the suppression hearing.
Appellant argues that counsel failed to present proper legal grounds for the suppression of his confession. During the suppression hearing, Appellant testified that he gave a full confession to police on April 3, 1982. In response to questioning, Appellant stated he could not remember whether his rights had been read to him prior to giving the statement. He did testify, however, that when he asked for his lawyer before signing the waiver of rights form, police told him that a lawyer would only take his money and urged him to sign the consent form. Appellant proceeded to give a full confession, and recounted the story not only to several individuals at the police station, but also in phone conversations throughout the day. The Commonwealth, in turn, presented several witnesses who testified that Appellant was given Miranda rights at least two times prior to questioning.
Counsel did file a pretrial motion to suppress all statements made by Appellant on the grounds they “were made under duress without a knowing and voluntary waiver of Appellant‘s right to counsel, and to remain silent.” Further, it is clear that counsel elicited Appellant‘s testimony during the suppression hearing in order to show that Appellant had asked for a lawyer before giving his statement, and thus had invoked his Fifth Amendment privilege. However, the trial court conducted the suppression hearing in accordance with
We are unpersuaded by Appellant‘s claim that his confession should have been suppressed because it violated his Fifth and Sixth Amendment rights, and was not voluntary because of his “mental illness.” The admissibility of the confession was addressed by this Court on direct appeal, wherein we held that although a portion of the transcript of the suppression hearing was missing from
E. Whether counsel failed to anticipate and prepare for the penalty phase of trial.
Appellant complains that counsel failed to investigate and develop critical statutory and nonstatutory mitigation evidence during the penalty phase. Appellant goes to great lengths to set forth the various publications which were available at the time of trial to help counsel prepare for the penalty phase in a capital case. Had counsel adequately investigated, Appellant concludes, then he would have presented mitigating evidence such as Appellant‘s lack of criminal record, the “dysfunction present in his biological family” (although he was adopted at birth), his loving relationship with his son, and his “considerable talent in sports.” Further, had counsel seriously prepared for the penalty phase, he would have moved for a continuance to allow the jury to “cool off“, as well as renewed all pretrial motions.
With regard to the “myriad of resources” available to counsel at that time, we find it completely irrelevant to the determination of counsel‘s effectiveness. Appellant does not even state how these publications would have aided counsel. Further, it is apparent that counsel did present many positive aspects of Appellant‘s life during the guilt phase of trial. When the same jury sits in both parts of a bifurcated proceeding in a capital murder trial, all evidence introduced in the guilt phase may be considered by the jury during the sentencing phase. Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1988), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 774 (1990). Finally, we find absolutely no credence in Appellant‘s “theory” that counsel should have moved for a continuance and renewed pretrial motions. This is simply not grounds for an ineffective assistance of counsel claim.
Having reviewed each allegation of ineffective trial counsel, we conclude that Appellant has failed to demonstrate any claims which are not refuted by an analysis and review of the trial record. As noted by the trial court, many of Appellant‘s claims are nothing more than bold assertions without any factual basis. Such does not justify an evidentiary hearing pursuant to
On review, as a court far removed from the passion and grit of the courtroom, we must be especially careful not to second-guess or condemn in hindsight the decision of defense counsel. A defense attorney must enjoy great discretion in trying a case, especially with regard to trial strategy and tactics. Under Strickland, supra, it is not enough that counsel erred and Appellant‘s trial reached an unfavorable result. Instead, Appellant must demonstrate that, absent counsel‘s errors, there exists a “reasonable probability” the jury would have reached a different verdict. Id. Inasmuch as we might not necessarily agree with trial counsel‘s trial strategy and may likely have employed other tactics, we do not believe that in light of all of the circumstances his performance was “outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. at 2066.
II.
Appellant argues that his counsel on direct appeal was also ineffective in failing to develop a narrative statement of the suppression hearing. Appellant points out that in this Court‘s opinion affirming his conviction, we did not fully address the suppression issue because a portion of the hearing tape was lost. The opinion stated that it was incumbent upon Appellant to supply a transcript of the hearing on appeal in order for the Court to be able to undertake a complete review of the suppression issue. Harper, supra at 668. Appellate counsel did subsequently prepare a narrative statement which was submitted to this Court in support of Appellant‘s petition for rehearing.
We think there is a substantial difference in the situation of a convicted defendant for whom no appeal was even taken or one whose appeal was dismissed solely due to neglect of counsel and the situation of a defendant whose appeal was completely processed and the judgment affirmed. In the first case, there was never any consideration of the merits of any substantive issue by the appellate court. In the latter case, the appellate court has considered and decided the merits of the appeal. We will not examine anew an appeal reviewed, considered and decided by this Court. Id. at 281.
III.
Appellant further claims post-conviction counsel was ineffective. Appellant concedes that this issue is not preserved, however he urges that it is reviewable as palpable error under
The Commonwealth aptly points out that the purpose of an
Notwithstanding the procedural deficiency, Appellant‘s argument is without merit. In Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991), the United States Supreme Court held that “[t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” (citations omitted); See also Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). Thus, Appellant‘s argument fails on the merits and clearly demonstrates that an evidentiary hearing was not necessary as the issue involved strictly a question of law. See Stanford, supra and Skaggs, supra.
Accordingly, for the reasons set forth herein, we conclude that the trial court properly denied Appellant an evidentiary hearing. All claims set forth both in the original and supplemental
The decision of the Jefferson Circuit Court is affirmed.
STUMBO, J., dissents by separate opinion in which COOPER and LAMBERT, JJ., join.
STUMBO, Justice, dissenting.
Respectfully, I must dissent. The issues raised by Appellant in his
While it is true our function is not to second-guess the actions of trial counsel, we are not required to assume that trial counsel has within his or her grasp every detail about his or her client and is fully versed in all aspects of trial strategy. Each case is different and presents its own complexities, which may or may not fit within the parameters of counsel‘s previous experience. In a case in which the potential penalty is death and the client is uncooperative, preparation for trial is far more difficult than in typical cases, and the demands on even usually competent counsel are increased. There are times when a lawyer is simply over his or her head. In saying this, I do not mean to disparage trial counsel in this case, but rather I merely point out that without an evidentiary hearing and the requisite findings by the court conducting same, we cannot, and should not, pass judgment on whether this particular lawyer‘s actions in this particular case were within the requisite range of professional skills needed to conscientiously protect the client‘s interests. Henderson v. Commonwealth, Ky., 636 S.W.2d 648 (1982). I would, therefore, remand this case to the trial court for an evidentiary hearing on the allegations presented by the
LAMBERT, J., joins.
COOPER, J., joins this dissent to the extent that he would reverse and remand for an evidentiary hearing.