Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

KENNEDY, Before KRUPANSKY WELLFORD, Judges. Circuit

KENNEDY, Judge. Circuit appeals Paul Kordenbrock petition

District Court’s denial of his for a corpus. Appellant writ of habeas claims murder, that his conviction for intentional penalty, for which he received the death attempted and murder were obtained violation of his federal rights.1 appeal. He raises nine issues on We with the District Court that the introduction of his confession —taken in vi- olation of his Miranda harm- —was error, alleged less and that the other errors did not rights.2 violate his constitutional Friday, January 4, a.m., On 1980 at 9:30 appellant Paul Kordenbrock and a code- fendant, Kruse, parked Michael across the Florence, street from a Kentucky, Western They planned Auto store. to steal guns from the drug store and sell them for money. Appellant and Kruse entered the together. Appellant store gun. carried a Auto, The owner of Western William Thompson, was in the front of the store employee, Stanley Allen, while his was in Appellant the back. ordered the men at gunpoint to move the rear of the store and lie face down. He stood over them gun. time, with the About Jack Web- ster and eight-year-old his son came into the store to repaired. have his chainsaw Kruse, posing clerk, as a sales him told they repair did not do work. Webster and left, point his son at which Kruse broke the (argued), Timothy Edward C. Monahan glass gun display case. At that (argued), Dept, T. Riddell of Public Advoca- time, appellant shot Allen in the back of Frankfort, cy, Ky., for Paul Kordenbrock. Thompson the head and in the neck from a Cowan, Gen., Atty. Cicely Frederic J. Jar- eight died, distance of seven to feet. Allen Lambert, Gen., acz Atty. Asst. L. Thompson Michael but Appellant survived. and (argued), Penny Warren, Harned R. Asst. guns Kruse carried the to their car and Atty. Gen., (argued), left, Carol C. Ullerich Of- drove off. After Thompson Atty. Kentucky, fice of the police, ambulance, wife, Gen. Frank- called the fort, Ky., Scroggy. for Gene and Allen’s wife. murder, charged relief, Appellant attempt-

1. petition with appellant In his for habeas murder, degree robbery. pled twenty-three ed and first He raised assertions of error. The Court, guilty robbery charge, conducting for which he was District after extensive evi- years imprisonment. Appellant dentiary hearings, comprehensive sentenced to 20 pub- issued a years imprisonment opinion denying was also sentenced to 20 lished relief. Kordenbrock v. attempted Scroggy, F.Supp. (E.D.Ky.1988). for the murder conviction. Hensley robbery sembling appellant and Kruse. day appellant and before the and noticed that Auto store also saw news Kruse were at the Western bought appellant came in a p.m. examining guns wood he from 1:00 1:30 from containing glass. Auto box broken cutting Thompson tools. was alone at Western Fehler, Ramell, Hensley to co- at lunch. The next and decided store and Allen was again arranged day, appellant operate police. Hensley Kruse went to the and p.m., day p.m., appellant purchased appellant 1:00 meet at 10:00 store at and pay following robbery, guns several for the a hatchet. also saw glass appellant. Hensley received guns display in a case and asked from truck, pistol. Thompson police Python look at a Colt loaned and p.m. He gun night. him the arrested 10:10 showed police left the taken to the station for interro- Kruse store without incident. gation p.m. at about 11:30 a full made men to a evening, That the two went approximately two confession and one-half party at sister’s Cincinnati hours to three later. apartment. Appellant drank beer Kentucky jury A convicted whiskey, marijuana, and took some smoked attempted pri- murder and murder. The spent night He at cocaine. and Kruse the mary against appellant relating evidence apartment, morning appel- next and the directly testimony murder was Quaa- lant drank two beers and took two Thompson Mr. and Kordenbrock’s confes- They buy tape 9:00 a.m. a ludes. left at to court, upon sion. recommendation of appellant. a deck from friend of On jury, appellant sentenced to death. they gas way, stopped at a station where Following appeals in Ken- unsuccessful Quaaludes they purchased a Jef- ten from courts, petitioned tucky state he the Dis- Piper, pair frey Piper. According to for trict Court the Eastern District of Ken- Quaaludes. Ap- “laid appeared back” relief, tucky for habeas denied. was pellant and Kruse then went to the West- consider his claims of We nine constitution- crimes ern Auto store and committed the violations seriatim. al appeal. involved First, robbery, appellant than after claims he Less an hour that since indigent, to appellant Gary and Kruse went a Ra- is entitles him to Constitution they sold to him in psychiatrist mell’s home where him three a state-funded assist guns They guilt sentencing phase the stolen for then went of his trial. $200. Although appellant insanity at not the home of Richard Fehler where did assert to defense,3 guns, hoped payment psychiatric 10:30a.m. sold two for as a he to use January testimony due Accord- to a which was 1980. establish defense of dimin Fehler, appeared ing appellant jittery responsibility to based on ished his habitual Quaaludes. He drug hoped took some That af- and alcohol abuse. more ternoon, appellant Larry Hensley testimony purposes met a the same for use $300, phase. payable mitigation sentencing For purchased guns six for below, meantime, day. reasons set we the next In the Ramell out with robbery and mur- the District Court that was not saw a newscast about composite drawings any right. re- deprived of der which included your Q: all for defendant Kordenbrock have I understand that belief was at 3. "Counsel insane, your was not times that client nor rely upon served an intention to never notice of incompetent trial. correct? to stand Is that insanity as a The Court believes that defense. belief, my my That’s and that is A: ample opportu- afforded —that Kordenbrock has been my belief. nity develop such a defense if one exists." Continuance, 2, 1981, Denying June Order you Q: time ... at did ever [N]ever Neace, County Judge Sam Circuit Court. Boone requirements statutory pursuant App. Appellant’s testified Joint counsel your Kentucky file intention to a notice evidentiary hearing the District on the for Court defense, insanity you? did claim sanity appellant's writ was never con- I had no factual basis A: I—that’s correct. as a defense: sidered to do that. a Dr. erroneous. Rabidue v. the services of See Osceola Appellant obtained Refin Cincinnati, Ohio, psychia- (6th Cir.1986), Nizny, Co., Melvin 805 F.2d Nizny appellant and Dr. examined denied, trist. attorneys report an oral of his gave his (1987). Upon examination Nizny ordinarily Although Dr. evaluation. record, persuaded we are not that a he had payment until after require did not (“A finding has made. mistake been though Nizny Dr. had even testified and although clearly erroneous when there is bill, counsel for not submitted it, support reviewing court evidence to Nizny County that Boone advised Dr. left the defi on the entire evidence is pay his bill. Counsel knew refuse to and firm that mistake has nite conviction ongoing dispute was an over there committed.”) Although been we do county or the state was re-

whether pay condone the state’s refusal to Dr. Niz- experts appointed paying sponsible ny, find violation. no constitutional ad- criminal defendants. Counsel assist Nizny that Dr. Court vised Circuit Counsel’s further efforts to secure report testify a written would not psychiatrist another failed. The case was guaranteed payment. The unless he was (it again previously continued con been directing an order Circuit Court issued unavailable) Nizny Dr. tinued when pay Dr. Niz- County Boone Fiscal Court and the court ordered be ny. The Fiscal Court refused to do so. by psychiatrist examined at a state insti Appellant’s counsel made no effort to en- tution who could assist in de The District Court found force the order. fense. urged have that counsel could the Circuit order, appellant Pursuant to that county contempt officials in Court to hold 21, 1980, by seen on a Dr. November James county levy on bank accounts or to or to Services, Psychiatry Bland of Forensic a Nizny testify. to Dr. subpoena public hospital operated by Nizny was never advised of the Dr. Department of Human Resources. Dr. directing order County Court’s he be Boone appellant Bland was to examine on the upon filing report of his paid one half competency sanity. issue of his and Be- after he and half testified. The the other experts cause the state such restricted to a found counsel’s failure District Court objective concerning neutral and evaluation to Dr. payment Nizny and have to secure only competence sanity, to stand trial and attempt a deliberate to create testify was and Dr. because he feared that Bland’s issue. The court concluded appealable an confidential, opinion might ap- not remain Nizny’s evaluation would not have that Dr. pellant’s cooper- him defense, counsel advised not to appellant’s been useful to and that Nizny's ate. was aware of it. Dr. his counsel any report to counsel did not indicate oral 15, 1981, May appellant requested On Further, appellant mental illness. had told granted appointment and was a Dr. night that on the before the Nizny Dr. psy- Michael act Gureasko to as defense robbery the Western Auto store he had However, May chiatrist. on Dr. Gu- gas station and killed the attend robbed a reasko called the court and told it he would nature of Dr. Niz ant. The unfavorable not assist because of misunder- plus failure take ny’s report, counsel’s standing with counsel. The court denied steps to Dr. any of the obvious obtain appellant’s motion for a further continu- assistance, caused the court Nizny's lower ance and the case was tried. not

to conclude that “denied” Oklahoma, Appellant relies on Ake v. assistance; merely psychiatric ma 84 L.Ed.2d S.Ct. appealable an issue. neuvering to create (1985) for his claim that the Constitution Scroggy, F.Supp. Kordenbrock guarantees court-appointed psychiat- him a finding (E.D.Ky.1988). This is a factual expert ric evidentiary to assist his defense and made after an extensive hear only clearly penalty phase set aside if of trial. Ake held that: which can be mitigating other responsibility or minished demonstrates defendant when a factors. time of sanity at the that his judge at factor significant However, is to be appellant’s the offense claim minimum, must, as- trial, at a and testi- the State Dr. Bland’s examination scope of competent effective is to a limited to be mony access was too the defendant sure at the appro- Bland testified an merit. Dr. conduct without who will psychiatrist District Court hearing evidentiary assist evalua- priate examination all have addressed that he could tion, presentation preparation, counsel want- psychiatric issues defense. Moreover, appel- Nizny Dr. to address.4 ed Id. The Court at 1096. at neutral that Dr. Bland was objection lant’s right: qualified this de- effective therefore could course, say, This is not merit. Ake is without fense assistance has a constitutional indigent defendant competent psychia- requires that a merely per- of his psychiatrist choose a right indigent defen- provided to assist trist be to hire liking receive funds or to sonal dants, of their choice. psychiatrist not the indi- is that concern his own. Our Appel- at 1096. 470 U.S. at S.Ct. compe- access to gent defendant have was not argument that Dr. Bland lant’s purpose we have for the psychiatrist tent him his counsel’s to examine required discussed.... Bland’s stated is belied Dr. direction pursue examination willingness his constitutional claims counsel: plotted by defense county along a course because rights were violated Nizny’s you services pay Q: you for Dr. have —would refused to ... Would offered, engage in expert court if directed the state-funded have because determining ap- the —defendant’s Bland, other matter which was limited Dr. if pursue, attorneys might you ask sanity, and could competence and pellant’s by the court? concerning di- ordered an evaluation not make number can psy- What about specializing THE COURT: physician was a 4. Dr. Bland given you have have been Could chiatry. that he would Paul be rehabilitated? He testified sentencing opinion phase that Dr. all areas of able to examine Nizny requested to examine: that? posed questions unusual any That was not an Q: WITNESS: [nineteen] Are THE Yes, Nizny asked, your to Dr. from Mr. Monahan I question in the letter honor. to be 8th, 1980, September corre- in that ... could have. prohibit- you spondence ed, would have been investigate and prepared to was also Dr. Bland address, unable, you unwilling had or family history psy- and testify as to Mr. Korden- and had able to examine been background: chological you? cooperated with brock your examina- part your Q: of As mental — say to answer that I would be able A: I can’t Doctor, accused, during period tion of the way. any That them in substantial all of taking important? thorough history ais But I didn't depend a lot of factors. would Yes. A: ad- any be able to here that I wouldn't see history part you as Q: in that Would include ques- types they’re of fact dress. And in any drugs or alco- your opinions of effects of pro- commonly asked in that are tions ceedings regarding might use either defendant hol which the my testimony. chronically, of the crime or on the occasion commonly questions right. are Q: Those All subsequent confession occasion of a or on the capaci- questions where mental posed in cases to the crime? might ty be an issue? mental illness or history. part of the That would be A: Yes. Yes. A: prepared to you been Q: would have And particularly to number COURT: Turn THE Doctor, you by defense if testify, called if mitigating statutory otherwise what any any of those effects of there to be found things these exist in Paul’s commission factors opinions your as respect with you con- been able to Would have offenses? capacity an individual? you testify come to the if had on that sider that up with Yes. had come A: up with some—if Likewise, intelligence background, family Q: something defendant? favorable factors? Yes. other environmental WITNESS: THE Yes, considered. be that would A: use, him of depriving thus drug and alcohol A: Yes. him necessary to convict specific intent of the amount of time Q: Regardless Although Ake does intentional murder. might take? deter bright line test for not “establish has demonstrated mining when a defendant Yes, A: I would. sanity of the offense will at the time neutral, that his ob- also stated Dr. Bland factor,” clear that significant it is be a supplied would have de- jective evaluation defendant, min at a “Ake requires that the appel- any information that fendant with imum, allegations supported by a fac make in his defense: lant could use sanity is showing that the defendant’s tual you have made THE But would COURT: Cartwright, in fact at issue in the case.” way and called it either the evaluation Volson, F.2d (quoting at 1212 802 F.2d You would have made the you saw it. 176). showing is not made at Such a you thought crazy If he was evaluation. positing was a habit merely irresponsible from the drugs and with and alcohol abuser. See Pedrero drug ual in- form the criminal drugs, or couldn’t Wainwright, F.2d drugs, mitigating or form a tent from denied, Cir.), circumstance, anything family in his (pre-Ake case (1979) mitigating background circum- were holding insanity made an issue is not just reported have like you stance would by showing drug was a addict defendant it, you right? saw entitling psy him state-funded defense just I have re- THE WITNESS: chiatrist). gave it and also an ported it as saw opinion about how that interpretive Finally, if court did even the state might my not have in might have or Dr. improperly deny appellant access to the situation. opinion affected Nizny, agree with the District Court the District that Dr. agree We Court under Ake that his constitutional assistance, taken ad- Bland’s adequately protected were the testimo it, have met Ake’s com- vantage of would ny Eljorn of Dr. Don Nelson. Dr. Nelson appellant “access to guaranteeing mand of taught pharmacology University at the will conduct competent psychiatrist College Cincinnati of Medicine and directed and assist appropriate examination drug poison college’s information evaluation, presentation preparation, and students, phy He teaches medical center. defense.” psychiatrists diagno sicians and about the that as a matter of at 1096. We drug sis and treatment of and alcohol him- appellant chose not to avail strategy special training He had received abuse. over con- His concern self of this witness. psychopharmacology. It the area of is bymet a court fidentiality could have been again important to note that ad coopera- court evidenced a The trial order. sanity mittedly never made his an issue— provide with the tive attitude to only sought to establish diminished ca he psychiatrist. service of a specific pacity inability and the to form rights un Appellant’s drugs of and alcohol. At intent because guaran der Ake were not violated. Ake’s trial, Dr. Nelson testified that he had exam psychiatrist arises tee of a state-funded long history and ined detailed sanity that his only defendant shows after drug He then testi and alcohol abuse. factor at trial.” significant will be “a specifically about mental fied Blackburn, 794 F.2d v. See also Volson crime: state at the time of the Cartwright May Cir.1986); (5th Doctor, Q: you opinion do have an as to (10th Cir.1986); nard, Bow 802 F.2d ability fully con- Paul Kordenbrock’s Cir.1985). Kemp, 767 F.2d 761 den v. 9:30, Saturday, actions at Janu- trol his insanity attempted to raise never 5th, 1980, ary based on ... information sought to show At most he as a defense. drugs? his level of through about capacity that his was diminished guarantee of Lastly, Ake’s access I Paul Kordenbrock was A: think that sentencing psychiatric counsel influence of alcohol and/or under the apply of trial does not to these facts. phase Diazapam Phencyclidene and/or and applies in guarantee two situa Ake’s he, of that probably, think as a result sanity sig tions—when the defendant’s ability judg- had a diminished to exercise at trial and “in the context nificant factor ment, decisions, and formulate ethical capital sentencing proceeding, when thoughts. I think he was basi- complex psychiatric presents the State evidence of terms, lay he drunk and cally, in was dangerousness.” the defendant’s future my opinion. stoned. That is only at 1096. Ake 470 U.S. at Q: you opinion an as to ... have [D]o right guarantees psy a defendant the to a whether not Paul Kordenbrock sentencing phase oppose chiatrist at the psychologically physically and addicted government’s psychiatric testimony. January drugs Saturday, at 9:30 on Supreme explained The that the need Court 5th, 1980? psychiatrist only for a defense arises when physically psy- and A: I think he was expert government uses an because chologically addicted to alcohol. If the assistance, “[wjithout psychiatrist’s Diazapam tablets contained he street cannot ex defendant offer well-informed certainly psychologically physi- view, pert’s opposing thereby loses a cally dependent to that. significant opportunity ju to raise in the questions rors’ minds about the State’s testimony Dr. Nelson’s went to the heart of proof aggravating Id. at appeal, appellant appellant’s defense. On factor.” added). (emphasis 105 S.Ct. at 1097 In Nizny’s to establish how Dr. testimo fails Bowden, “[ujnlike the court stated that Dr. ny would differ or add to Nelson’s Ake, sentencing pros situation in Bowden’s testimony. Although he claims that Dr. present psychiatric ecutor no need to explained Nizny’s testimony have factor, aggravating evidence to show an jury why appellant way behaved presented dangers and he none. did, appears that Dr. Nelson’s examina inequities which concerned the Court in testimony sufficient to tion and were estab consequently Ake do not exist.” 767 F.2d responsibility lish the defense of diminished dangers at 764 n. 5. Nor do those capacity. Simply asserting that and mental inequities appeal. exist in this The state Nizny’s testimony Dr. would have been presented psychiatric experts at the sen enough. is not “Where a defen beneficial tencing phase, only a doctor who was a undeveloped dant offers ‘little more than general family practitioner testified requested assistance assertions that such, drugs. appel As about the effects beneficial, deprivation we find no would be constitutionally lant entitled to a process judge’s decision of due ” psychiatrist under state-funded Ake. deny psychiatric Bow [to assistance].’ addition, testimony given Dr. Nelson den, (quoting 767 F.2d at 765 Caldwell drug and alcohol went to the effects of 323 n. Mississippi, 472 U.S. purposes abuse and could be used 2637 n. S.Ct. mitigation and to counter the state’s wit (1985)). Appellant’s defense was not that ness. mentally insane or diseased—it was he was drugs and affected his only that alcohol Appellant next claims that his con and ability specific to formulate intent was in violation of Mi fession obtained mitigation in his Arizona, should have been used for randa v. Therefore, agree (1966), we with the

sentence. that it was not any denying preju District Court that error admission voluntary, and that its sentencing phase. the Nizny access to Dr. was harmless to diced the appellant although ap Dr. Nelson examined Court found that extent that The District Appel pellant’s issues. confession was obtained viola and testified same Miranda, its admission was harm rights under Ake were tion of lant’s constitutional any that waived less error and not violated. custody has to remain silent using the confession affirma- son in decided by violation depends on whether his under Miranda opening his statement and as tively in ‘right questioning’ ‘scrupu- to cut off was sentencing phase factor in the mitigating ” Mosley, lously Michigan honored.’ strategy. his defense part as of of trial 96, 104, however, L.Ed.2d asserts, that admis- its Appellant “I admitting that After did error re- not harmless was still sion I you I can is that did it.... That’s all tell its sentencing because cold calcu- gard to “Sir, you,” it” and I did it told impacted jury’s on the may have lated tone postpone fur- attempted several times of sentence violation of his determination day. Urged interrogation ther to the next right to a reliable eighth amendment his police, interrogation further of the the guilt of sentence. We determination robbery he went on to detail the mur- Court that con- the District agree with der, point “I saying at one that tried to occurred. violation stitutional get up.” shoot them so not would the state courts and District the Both holding question- After that the continued will not appellant’s that was Court found Miranda, ing violated has and that his confession the was overborne not appealed, District Court went free choice. product of will rational find its admission harmless. Murphy, 763 States v. F.2d See United record, After careful review of the entire Cir.1985). (6th Voluntariness a confes- of the admission confession question mixed of law and fact sion is a stop was Before harmless. he asked reviewing not court “will disturb the and a interrogation, had admitted com- findings unless ... clear error trial court’s mitting the murder. This admission was Id. at on the record.” 205-06. appears rights. made after he waived his Miranda totality is determined Voluntariness guilt admission of thus basic was not surrounding circumstances the con- In obtained violation of Miranda. ana- fession, taking consideration into the ac- lyzing impact entire written con- intelligence, physical age, and emo- cused’s trial, appellant fession on the has asked state, inherent and the coerciveness tional distinguish guilt that we its effects on the interrogation setting. Id. at 205. phase sentencing from its on the effects of the record shows that al- Review phase. argues Appellant if it “[e]ven interrogators at though the times threat- argued possibly could be error appellant’s several of friends ened that complained of herein harmless as was if he did not continue to be arrested conviction, argued cannot be that it statement, fuller record as a was harmless as to the sentence death.” that the trial court’s find- whole indicates Appellant’s Brief at 58. As District not was “clear error.” of voluntariness found, appellant Court his used confession cogent, was there was no force part as strategy. of his defense He did not by police, force and he was not or threat of deny committing attempted the murder and emotionally distressed. United States Cf. murder, sought explain but rather Brown, Cir.1977). 557 F.2d 541 penalty. circumstances avoid the death The District Court found that intro appellant’s guilt phase, strategy was written confession duction jury early to confess to the At on. however, was, of his violation Miranda beginning personally of the trial he ad- request stop ques his because jury, openly admitting guilt dressed tioning day the next honored. until indicating but under the influ- Miranda, the individual indi Under drugs ence of and intoxicated at the time of “[i]f manner, any prior time cates in to or argues He strategy crime. that this during questioning, that he wishes to re hampered by the callous tone silent, interrogation confession, main must cease.” written which did not mention 473-74, drug 86 S.Ct. at 1627. The U.S. intoxication or use and which included Supreme that “the that he the victims Court has said admissi statement shot “so up.” per- get bility of statements after the wouldn’t obtained Id,., op. Similarly, overwhelming slip at 3. argues personal that his state- Appellant appellant. to convict admitting the murder evidence existed jury ment to the Thompson, testimony not a matter of of Mr. attempted murder was There was the choice, strategy rather a he was positively as the but identified trial court errone- forced into because the Appellant had been in the store murderer. suppress to his written con- ously refused immediately days in the before twice fession, of his constitu- taken violation robbery. appellant’s possession There was However, agree with the rights. tional guns immediately of the almost and sale District Court that it is clear that following robbery and there were his strategy adopted this trial even would have killings before he oral admissions if excluded view his confession been stop interrogation. No ration- asked to overwhelming independent evidence juror guilty al could have failed to find him Perini, guilt. In Burks v. No. 85- of his killing attempting to kill Allen and (6th Cir., 25, 1986) Nov. F.2d 199 [810 Thompson. (table)] opinion) this (unpublished Court Appellant’s possible defense to sole invalidly held that admission of an obtained killing admit to the and claim diminished rejected was harmless error and confession capacity. was “confronted with claim that he confessed to the defendant’s permitting jury the dilemma of to con- part strategy of his defense jury as guilt sider his or innocence on the sole only erroneously court because or, condemning testimony [Thompson] illegal confession. Under cir- admitted his alternative, testifying on his own be- impossible distinguish from cumstances asserting half and that he shot the two defendant, Burks, appeal, the those of this capacity. Ap- in a men” while diminished men, died and the shot two one whom Burks, pellant, jury like confessed to the (Hernandez) This other of whom survived. only possible way it was the because reasoned: Court penalty. adopt the death We Burks’ avoid Hernandez, only eye who was the wit- here, Burks, analysis and find that as shootings, testified that ness to illegally the state’s use of his obtained con- provo- had shot men without Burks both fession did induce to make light of this substantial inde- cation. jury. the statement he did to the pendent evidence that Burks had indeed erroneous admission of the confession was shot both of the victims and on the entire record harmless. shootings unprovoked, a self de- were Appellant’s reliance on Harrison theory only recourse avail- fense was the States, United justify shootings. able to Burks to (1968) inapposite. and Burks were the Since Hernandez There, held the defendant’s the Court shootings, only to the actual witnesses trial, used to confession at which was avoid dilemma Burks was confronted with the illegally con- the effects of three obtained to consider his permitting fessions, improperly obtained “fruit of guilt on the sole condemn- or innocence poison tree” because it was induced or, testimony of Hernandez The defendant’s in- prior confessions. alternative, testifying on his own behalf court confession was used version men asserting that he shot the two prior from his confes- of facts defense. He elected the latter self different Here, however, action, appellant adopted sions. but failed to convince course support prior confession and used jury of his claimed defense. Accord- his We with the District ingly, court concludes that his defense. strategy a defense involuntary Court that this was government’s use of Burks’ imposition of the testify him conviction and did not induce avoid statement strategy appel- penalty, death and it was a and that the trial on his own behalf origi- if confession, have followed even lant would court’s decision to admit excluded. Because circum- nal confession had been although erroneous under the only admission of stances, applies where harmless error. Harrison constituted 80 sixth, next Appellant claims induces confession a obtained illegally Elstad, Oregon v. 470 testify, eighth, fourteenth amendment and defendant 1285, 222 84 L.Ed.2d 105 S.Ct. Mississippi, 472 U.S. Caldwell under Dis- (1985),5 here. As the inapplicable it is (1985) 231 L.Ed.2d found, in appellant’s admission trict Court the by the use of state’s were violated ameliorating of only basis the court was in to the word “recommend” reference appeared to be cold-blood-

what otherwise punishment. jury’s imposing capital in role attempt a botched at ed execution and 532.025(l)(b) provides upon KRS that one. second capital tried be finding guilt case that if the Appellant asserts even jury: fore a guilt phase in the harmless confession was give appropriate judge jury the shall the overwhelming inde presence of to the due instructions, jury and the shall retire guilt, it may have pendent evidence ag- any mitigating determine whether impose juror to death6 at one caused least gravating exist and circumstances ... his statement that he it contained because a sentence for the defendant. recommend Thompson they and “so to shoot Allen tried Upon findings judge jury, In his get up.” statement wouldn’t pre- limits shall fix a sentence within the court, explained the circumstanc by law. scribed crime, in surrounding including his es During dire the attor voir Commonwealth Quaaludes. He also and use of toxication ney that on jury stated to members of the that he “never intended to shoot explained “living they he had been murder would be anybody,” that intentional count eighteen shooting] past months for required recommend to the the sentence [the days,” and that he didn’t twenty-six judge “imposes It who that sentence.” into words put how to how feel.” “know explained judge “heavily” that the con opening Appellant statement. Appellant’s or that he sidered recommendation Lee, State So.2d 1176 directs us “great recommendation State, (La.1987); Cannaday v. 455 So.2d weight.” penalty phase jury The instruc denied, (Miss.1984), jurors tions told the on the death L.Ed.2d they count should recommend one of on the fact cases relied These sentences, years, three possible 20 or more showed confessions defendants’ imprisonment, life or death. for their crimes therefore no remorse claims that because the state characterized jury influenced to recom could have jury's imposing capital punish role However, case mend death. death, “recommending” ment as one of made to jury we have statement jury its perceived decision was not showing remorse. express purpose responsible final therefore felt less entirety, the earlier Read in its confession imposing the death sentence. Under Cald significantly appel differ from does not well, constitutionally impermissible “it He in-court admission. also claims lant’s rest a death sentence on a determination prejudicial because the confession made a sentencer has been led to drug and use. mention his alcohol failed to responsibility believe that the for determin However, overwhelming un there was appropriateness of the defendant’s presented jury evidence contradicted 328-29, death elsewhere.” rests drug and tracing appellant’s alcohol use. question S.Ct. at 2639. then is wheth sentencing its effect We find er use of “recom the state’s the word beyond a phrase reasonable was harmless impermissibly jury’s mend” lessened doubt. case, position implic held that this we take no on the correctness 5. The District Court also Elstad Harrison, holding. citing itly ex United States overruled Director, C No. 83 1985 WL rel. Perri v. 16, 1985). imposition only (N.D.Ill. reaching Sept. allows the of death Because unanimously disposition recommends it. to our if the that issue is not essential death would fi- responsibility imposing in death recommendation of not be sense of appreciate point them not to their out the and caused nal. He was careful that jury responsibility. We find that the jury’s recommenda- court would the affirm the District not misled and therefore “great weight” “heavily” tion consider Court. in record does it. Nowhere the point indicating statement to the

The state’s use of the word “recom responsible jury that it would not be for constitu mend” did not violate Caldwell, rep- There the sentence of death. were no under Caldwell. tional as post-Caldwell jury that appellant relies resentations to the their sentence well as cases upon, distinguishable. Each case in would be reviewed or that the final decision are attempts by volved deliberate the state to of death would rest elsewhere. This is jury responsibility convince the that for clearly distinguishable from the cited cases Cald imposing death In rested elsewhere. Caldwell appellant. The Court well, prosecutor jury the told the its deci argument concerned the that was inac- final, regarding punishment is not sion misleading curate and as to the nature of “job imposing their is re [in death] appellate appellate the court’s review. The viewable,” you the decision “render is auto Mississippi impose do not courts the matically Supreme reviewable penalty, merely death but rather review the “your and that decision is not the Court” jury’s decision and that review is done with Butler, Sawyer final decision.” In presumption of correctness. There is no 582, (5th Cir.1988), prose 848 F.2d 331, appellate mercy. 472 U.S. at jury you wrong “if cutor told the are at 2640. decision, me, your believe there will be Here, neither the Commonwealth attor- you others who will be behind to either ney nor the trial court misstated the law. you say you wrong.” or to are jury’s function is to make a recommen- Wainwright, In Adams v. 804 F.2d given great weight by dation which is Cir.1986), jury the court told the judge. There was no effort to diminish the by your that the “Court is not bound rec jury’s responsibility. ommendation The ultimate re [of death]. addressing In this same constitutional is- sponsibility gets this man is not what sue, the Eleventh has ruled that Circuit your my on shoulders. It’s shoulders. by merely constitutional violation occurs merely group advisory You are to me referring jury’s to the “recommendation”: v.Ward Com sentencing phase].” In [the Supreme We Court intended monwealth, believe (Ky.1985), 695 S.W.2d Caldwell that a violation should include prosecutor jury if told the some affirmative misstatement or mis- recommend, to decide to and it is “were jury as to conduct that misleads its only, point again you, out want sentencing process. Caldwell role in the [get If the rec a recommendation. we do advisory if an penalty] may does not mandate reversal death ommendation] [the Frye v. Com jury is told that its role is to advise or to very [happen].” In well recommend_ monwealth, [E]mphasizing 281 Va. 345 S.E.2d ... (1986), prosecutor jury jury making told the fact that is a “recom- “judge person judge, sup- that fixes will be mendation” to the does not guilty you sentence if find the defendant Caldwell port a claim. Such statements punishment misleading. and fix at death. The ... are neither inaccurate nor pronounce Court will sentence.” Dugger, Harich 844 F.2d 1473-74 — denied, (11th Cir.1988), U.S. —, cases, prosecutor In contrast to these (1989) (em explicitly present appeal neither nor present jury phasis original).7 appeal, In the implicitly persuade tried to that its Harich, ‘‘[njeither prosecutor jury nor the trial was told that its sentence cuit said judge implied jury’s advisory that the recommendation recommendation and that the was an superfluous. impose ap- The fact that the knew the final sentence. On was they court would peal making proceeding, a recommendation did not in a habeas the Eleventh Cir- were Because this case made no statement error. prosecution review, fact it to limited beyond the that was recom- we are jury before us habeas it Even then reiterated the mend a to violations of granting sentence. relief for give their that the court recommen- the or treaties of “Constitution laws weight.” We that “great conclude States,” 2254(a), dation and we United 28 U.S.C. § mere in use of word “rec- this context only can relief for state court error appellant’s not violate consti- ommend” did alleged error is of constitutional where rights under Caldwell. tutional Egeler, 552 F.2d proportions. Dupuie v. (6th Cir.1977); v. Borden 704, 710 Jenkins dispositive While not constitutional kircher, Cir.1979), cert. issue, support for 611 162 find further this re F.2d denied, 943, 2169, Kentucky holding that use of 100 64 sult cases 446 U.S. S.Ct. is re apply “recommend” itself not word L.Ed.2d 798 Failure to See Sanborn v. Common Tamme appellant’s versible error. most case would at wealth, 534, (Ky.1988); S.W.2d 546 only. 754 a make out violation of state law Commonwealth, 709 v. Matthews S.W.2d Although using may vi “recommend” now denied, cert. 414, (Ky.1985), 421 479 U.S. law, Kentucky it of olate state does not 245, 871, (1986) 107 L.Ed.2d 170 S.Ct. 93 rights. appellant’s fend constitutional (“[U]se of the word ‘recommend’ ... is not Appellant next claims the trial long as the context in it incorrect as permit testimony court’s refusal jury used not mislead the to its is does as Stassen, Dr. a Ethicist at Glen Christian exercising its responsibility sentenc ... Theological Seminary, Baptist Southern Commonwealth, Skaggs v. function.”); ing right his violated to have 672, de (Ky.1985), 679 694 S.W.2d jury consider evidence offered in miti 1130, nied, U.S. 106 S.Ct. gation sentence less than death. (“ (1986) is L.Ed.2d 678 ‘[Recommendation’ Carolina, Skipper v. South clearly proper statute and it is used (1986); Lockett S.Ct. The error to refer it as such. occurs Ohio, comments, when, of additional because Zant, (1978); Westbrook v. L.Ed.2d 973 conveyed juror’s message is that deci (11th Cir.1983). F.2d 1487 The District one.”).8 the final sion is not testimony that Court held Dr. Stassen’s argues that cumulative and irrelevant. procedural Kentucky Supreme Court’s new testify appel- Dr. Stassen was as to requirement announced in Tamme v. Com relations, lant’s familial his for com- sorrow monwealth, (Ky.1988) 759 S.W.2d 51 that crime, mitting history drug “fix,” juries not be instructed “recom abuse, potential for rehabilitation. mend,” capital punishment, ap should be pro- The record that Dr. shows Stassen’s plied retroactively to invalidate posed testimony general primarily sentence. Tamme disallowed use addressing religious discussion various word “recommend” favor of “fix” when philosophical positions regard to the referring jury’s in imposing to the role penalty. only death The witness had Appellant argues death if sentence. case, talked to for 45 minutes Tamme were applied to his use of morning testify. he was to As the trial would have been “recommend” reversible found, court little jury’s He added to the error under law. therefore understanding Tamme apply urges retroactively that was not that we However, already provided grant say by appellant’s family. him relief. As Skipper clear, prohibits now use makes Kentucky law evidence from a non- referring family word when to the member “recommend” is excludable as cumu- jury’s sentencing lative, role does not jury may give weight make out a since the more importance although phrase

detract their from the decision.” Note still exists in the statute, prohibited use of "recommend" now 844 F.2d at 1475. Commonwealth, Kentucky. Tamme (Ky.1988). S.W.2d 51

«3 required unanimity. The in- non-family members. factor testimony of carefully finding stated that Nonetheless, non- structions testimony of such required agree- such aggravating factor shown to be family members must still be ment, reasonably but it cannot be inferred Lockett, n. 438 U.S. at 604 relevant. See mitigating finding silence as to (“Nothing in this at 2965 n. 12 likely to as- factor would cause authority of a opinion limits the traditional unanimity require- sume that was also a irrelevant, exclude, evidence not court to as ment. The instructions were not mislead- character, prior bearing on the defendant’s ing. therefore conclude that the in- We record, circumstance of his of- or the deprive appellant did not of due struction fense.”). agree with the District Court We any right. process or invade constitutional excluding testimony Dr. that Stassen’s the discretion of the trial court and within Appellant next claims that his con that discretion. that the court did not abuse rights by the trial stitutional were violated place any Although appellant right has a change court’s failure to venue because of jury purposes of evidence before prejudicial publicity adverse and surround by mitigation, right that is limited the fact ing He the trial. cites much data indicat relevant, the determination of that it be coverage, ing there was extensive media judge. More- rests with the trial which many people that in the area knew of the exclusion, over, improper, if even opinions case and that some had formed to the extent that Dr. Stassen’s harmless appellant’s guilt. Despite about wide of testimony was cumulative to that Rever- however, spread publicity, ap that we find Appellant’s Feamster. consti- end Thomas pellant’s rights were not vio these tutional were not violated on by change lated the trial court’s refusal to facts. venue. argues

Appellant next his constitu course, recognize, We of that rights were violated when the trial right tional by has a sixth amendment to be tried jury penalty judge instructed the “panel impartial, jurors.” ‘indifferent’ 717, phase aggravating Dowd, 722, an factor had to be that Irvin v. 366 81 S.Ct. U.S. 1639, 1642, (1961). unanimously, found but was silent with L.Ed.2d 751 6 stan many agree finding determining juror impartiality regard to how dard for mitigating presence coverage factor. He claims this caused the of extensive media Florida, finding Murphy outlined in v. 421 jury mistakenly believe that 794, 2031, 44 L.Ed.2d 589 mitigating required unanimi U.S. 95 S.Ct. factor also (1975): claim, reviewing In this first note ty. of instruction are not reviewa any

that errors hold that the mere existence of To they proceeding in a habeas unless guilt ble or preconceived notion as to process. more, deprive appellant accused, of due work innocence of an without Cir.1981), Smith, (6th presumption 663 F.2d 18 of a Long v. sufficient to rebut the 1024, 1724, denied, prospective juror’s impartiality 455 102 S.Ct. would be cert. (1982). impossible It is 72 L.Ed.2d 143 The standard for to establish an standard. ailing juror lay in if the can aside his determining this is “whether the sufficient impression opinion and render a ver- by itself so infected the entire struction presented in resulting dict on the evidence trial that the conviction violates based merely it is erro court. process,” due not whether 145, Kibbe, 431 U.S.

neous. Henderson v. 800, Irvin, (quoting Id. at 95 S.Ct. at 2036 1730, It is 97 S.Ct. 1642). Thus, 723, 81 366 U.S. at S.Ct. given here did clear that the instructions totally ignorant need not be deny appel “infect the entire trial” and impartial. case to be process. lant due case, jurors the individual stated held, opinions their and ren- there is could set aside As the District Court evidence, at der a verdict based on the nothing in the instructions that would lead mitigat- point the burden shifted to jurors finding to believe 84 denied, Cir.), cert. (5th 474 U.S. existence such “the actual

to show (recu (1985) juror as will 88 L.Ed.2d the mind S.Ct. opinion in partiality.” necessary specific absent conduct presumption sal not raise the defendant). found there was no such judge evidencing prejudice against The trial findings regard showing, and We with the District Court given special to be impartiality are juror not reveal conduct record does Yount, See Patton 467 U.S. deference. evidencing or bias judge prejudice (1984); L.Ed.2d Appellant was thus not the trial court. Marshall, 751 F.2d 845 process. denied due Brofford denied, Cir.), Finally, claims (1985); U.S.C. L.Ed.2d 163 rights when was denied his constitutional hear 2254(d). The court concluded after § police tape erased confession experts testimony several from pills photo display. and lost a vial prejudice, nor was there was actual argues Thompson’s He that identi first Mr. appellant could not there a likelihood photo him was a fication of influenced in the area. It found that get fair trial a suggested display improperly which coverage immediately the media most of appellant the The suspect. display was descriptive of routine trial was before photographs, of six all of them consisted pub that the adverse events and courtroom mug except appellant’s, shots which by appellant year was over a old licity cited ordinary snapshot. Appellant was an ar of trial. The trial court’s find at the time gues prevented making he was from a prejudice jury the publicity did not ing that showing jury the a to that there was sub clearly Appellant does erroneous. was not likelihood of stantial misidentification be that he denied a fair trial was not establish police destroyed display. cause the the of extensive media cover merely because process photo Due is a violated where dis age. play “very creates a substantial likelihood Appellant next claims that he was Sim irreparable of misidentification.” judge process when trial denied due States, mons v. United 377, 384, 390 U.S. motion that he recuse denied 971, (1968). 88 19 1247 S.Ct. L.Ed.2d represented by judge The was himself. Biggers, v. Neil 93 S.Ct. Attorney appellant when Commonwealth (1972), 34 L.Ed.2d the Court set prohibition against him in filed a writ out in determining five factors consider Appeals prevent Kentucky Court of there is a whether substantial likelihood of hearing the case in Boone judge from op misidentification. Under the first —the Relying upon Rapp v. Du Van County. portunity of the view the witness to ac (3d Cir.1965), sen, F.2d 806 he claims Thomp cused at the time of the crime —Mr. process denied due because he was he was appellant days prior son on saw both by “an advocate who has al prosecuted shooting periods in his store for of about judge’s as the counsel in the ready acted appellant He a minutes. showed small litigation.” at 812. As the Dis same before, pistol day ap and he observed however, found, judge was trict Court pellant just prior shooting. The party only a nominal named in the suit as opportunity had ample witness therefore required to recuse and as such was appellant. observe Tire & Rubber himself. See General Co. Neil The is the Watkins, second factor witness’ (4th Cir.), 363 F.2d 87 Thompson Mr. attention. was interviewed denied, police shooting. an hour after the judge Because L.Ed.2d interviewing officer commented how prohibition pro personal interest surprised Thompson’s he was at Mr. justification alert- ceeding, there was no for his Moreover, Thompson ness coherence. appellant indi also fails to recusal. description prejudiced by ap- he able to accurate cate how pellant. himself. See recuse thus with the District judge’s failure to We Harrelson, finding Thompson United States 754 F.2d Court’s Mr. dis- police Appellant also claims Similarly, of attention. good deal played pills hoped prior misplaced a vial of the witness’ third factor—that Neil’s capacity of diminished is accurate—is use in his defense description of the accused wholly Thompson appellant through drug use. This claim ease. said met in this test, light brown the Trombetta Kenny Rogers, had without merit. Under looked like apparent full excul eyes, pills and a beard vial did not have hair and brown helped police Indeed, Thompson himself patory moustache. value. drawing making composite right only that he was denied his claims day. by showing present complete defense” “a drugs at the time of the possessed that he fourth factor—that witness Neil’s majori significantly, the vast crime. More upon confronting the certainty demonstrate regarding drug ty of his evidence at trial Although appel- also met. accused—was ingestion intoxication came from his differently lineup groomed lant was statement to the and from those own lighting poor, he identified and the immediately and after who saw him before being codefendant Kruse as involved Appellant had and utilized sev the crime. one did robbery as the showing avenues for that he was eral shooting. Thompson demonstrated drugged and intoxicated. The failure to making degree certainty good preserve deny vial did not him this identification. defense. Lastly, the amount of time between and the confrontation was sufficient- crime Appellant asserts that his constitu Thompson picked appellant out ly short. rights tional were violated when the month after the lineup the less than a of police tape erased the of his confession. the lower court that crime. We he make claims that could not a sufficiently amount of time was short complete pre-trial attack of the confession reliability. considered guarantee to When tape, without the since alone revealed the in are together, the factors outlined Neil interrogation. tenor and tone of the With in and lead us to conclude met this case it, hoped pre-trial challenge a he to make not cause a photo display that the did sub- process on due and fifth amendment likelihood of misidentification. stantial grounds.

Thus, not de- losing photographs the did First, similarly merit. This claim has no make opportunity of the to prive Kentucky Supreme Court although the showing to the that misidentification urges keep recordings of con- officials to an issue. Commonwealth, fessions, Hendley v. 573 662,

Moreover, (Ky.1978), police may the S.W.2d the District Court was spe- dispose the of them unless defense counsel holding in that destruction of correct preserved. cifically asks that be display did not constitute constitu photo Here, Trombetta, appellant’s confession was erased be- tional error. California preserve it. request 413 fore a was made to 81 L.Ed.2d 104 S.Ct. Second, preclude appel- did not (1984) er its erasure to show constitutional held that evidence, making meaningful challenge ap lant from destroying it must be ror in The was in exculpatory to his confession. confession the evidence had parent that form. The dia- permanent, not be transcribed and that able value and other relevant as- by any logue, questions, comparable evidence other get to 488-89, interrogation available- pects of the were at 104 S.Ct. reasonable means. Id. Although challenge. the Here, to appellant could have at 2533-34. interrogation and tenor of the verbal tone Thompson to determine cross-examined tape, appellant the admitted was lost with influenced the format he was whether accurately the addition, transcript reflected it cannot that the display. In be cannot now disavow exculpa interrogation. He apparent display the said that not accu- that admission and claim it was any part appel play tory value or would Also, tape’s exculpatory the value rate. time it was lost. lant’s defense at the police prescriptions of at the time it officers followed apparent was not warnings the defendant out in to set was erased. Arizona, Miranda v. 384 U.S. 86 S.Ct. pre Any the state’s failure to doubt that (1966), 1602, 16 “promul which L.Ed.2d pieces of evidence did not serve these protect gated safeguards set of process of due was laid denial amount to a there-delineated of Supreme Court in Arizona v. rest persons police custodial inter subjected to — U.S. —, Youngblood, Mosley, Michigan v. rogation.” 423 U.S. (1988). Youngblood held 102 L.Ed.2d 96, 99, 321, 324, 46 L.Ed.2d 313 can show a criminal defendant that “unless partic case The latter discussed part police, failure on the bad faith suspect’s “option ular custodial to ter useful does preserve potentially evidence questioning,” minate “scru must be process denial of due not constitute pulously honored.” at Young at 337. S.Ct. Id. law.” Mosley at S.Ct. decided that “admissi blood, preserve failed to the se police bility of per statements obtained after the victim, clothing a rape men-stained custody son has decided remain si sought prove to use to which the defendant lent” in order to must be denied effectuate The Court said that his innocence. protections sought to be achieved police refrigerate “failure of Miranda. Id. 96 S.Ct. at 326. tests perform on the semen clothing and to negli be as samples can at worst described I cannot reach conclusion but present appel gent.” appeal, In the ques- officers involved in the allegations showing or lant makes tioning not carefully of defendant did ob- erasing faith in police acted bad option postpone serve Kordenbrock’s losing pills taped vial confession interrogation. agree, however, custodial display. photographic We find no con voluntarily did Kordenbrock confess to upon grant appel which to error stitutional during phase ques- them the initial lant relief. tioning habeas shootings committed view, my then,

the two victims. In CONCLUSION permitted officers should have been tes- tify1 that Kordenbrock confessed to the record Upon and considera- review shootings permit- should not have but been claims, appellant’s we con- tion of all of details, including ted to introduce the appellant failed clude that establish full written version. right in any was offended Accordingly, trial court. admitting The in error the more detailed judgment District Court’s de- AFFIRM admissions of Kordenbrock’s admissions nying petition of ha- writ constituted, view, my in harmless error. corpus. beas Kordenbrock was well aware of his situa- in discussing charges, tion expe- WELLFORD, Judge, Circuit in dealing police rience gener- concurring. ally knowing accountable for my respect. generally colleague’s guilt, apart I well this The evidence of concur confession, very in this case but from opinion strong. difficult I considered trou- write on issues most therefore find no error the rationale of separately foremost, I bling. find no revers- the district court in its First and discussion of this v. Wainwright, Martin guilt phase proceed- issue find ible and also error Cir.1985) (11th ing point. 770 F.2d 918 on See Kordenbrock convicted which Perini, Burks v. attempted pleaded murder No. 85-3507 Cir. murder and 25, 1986) robbery. (un- The Nov. guilty (table)] most serious F.2d 199 to armed [810 respect published question opinion). pointed in this concerned It should raised be in Michigan Mosley out that of Kordenbrock’s confes- the decision circumstances Michigan appellate into overturned a being sion officers after taken decision police a murder reversed conviction based custody. holding partic- addressed this interpretation of Mi- The court’s overly strict “sanity” stating: ular issue of striking of a confession after randa and indicated he did the defendant had at first We hold that when a defendant has point in questions. answer The showing not want to preliminary made a that his san- had not Mosley was that the defendant ity likely at the time of the offense is persisted trial, that he in his initial significant indicated factor at be a Consti- requires provide decision to remain silent. that a tution State ac- psychiatrist’s cess to a assistance on this admit the The trial court’s decision to issue if the defendant cannot otherwise impacted upon entire confession doubt one. afford trial, and his course at on advice defendant 470 U.S. at 105 S.Ct. at 1091. counsel, guilt stage to admit of his at the explained The court in Ake that the guilt opening to the in an statement basis holding for this was that this afforded the extenuating mitigat- try to set out but indigent opportunity “a fair defendant ing of the murder without circumstances present his defense.” Id. at having to take the witness stand under holding at 1092. The other in Ake related complicates the confes- oath. This action penalty phase of that case where the me, my but it does not affect sion issue for presented psychiatric testimony re- state only conclusion that harmless error was garding dangerousness the future beyond a reasonable That involved doubt. specific setting, defendant. factual may complicate these circumstances this Ake held: taken as a criticism of issue should not be strategy respect dangerousness sig- Ake’s future was a

counsel’s faced sentencing phase. nificant factor at the enormity proof of the factors and with the psychiatrist say, I state who treated Ake arrayed against his client. cannot hospital mental however, state testified at that defendant would have that, guilt phase because of his men- strategy adopted this trial had most of illness, posed a threat tal Ake of continu- excluded, details nor can confession been testimony criminal violence. This the district court that this was a agree with danger- raised the issue of Ake’s future “deliberate waiver Miranda viola- ousness, aggravating which is an factor F.Supp. tion.” 680 at 880. capital sentencing under Oklahoma’s question The second difficult revolves scheme, prosecutor ... on which the re- requirements of Ake v. around Okla sentencing. lied at We therefore con- homa, 470 U.S. clude that Ake also was entitled to the (1985)and defendant’s asserted L.Ed.2d 53 psychiatrist of a on this issue assistance right independent psy to an of that assistance that denial Empha under the circumstances. chiatrist deprived process. him of due throughout upon sis in Ake the fact that 86, 87, 470 U.S. at 105 S.Ct. at 1098. presented a “sole defense” of defendant Ake, Burger, concurring in took Justice 72, 105 “insanity.” 470 U.S. at S.Ct. at 1091. pains applica- to caution about the narrow opportunity, pre-trial At the initial at stating holding by tion of the facts “[T]he conference, attorney Ake’s “informed the presented question and the con- case insanity client raise an court that his holding of the fine the actual Court.” 72, 105 The defense.” Id. at S.Ct. at 1090. contrast, after case, trial court was aware that at and by indi- The facts in this arraignment had been defendant’s conduct in- presented never cate that defendant jury. that he was ordered examined sanity so “bizarre” to the court or The defense The defen competency for to stand trial. made extensive efforts to judge, expert psychiatric and the court as- request provide dant’s was denied Kordenbrock sistance, impres- expert apparently that “there testi under the emphasized was was claiming insani- mony sanity either side on Ake’s at the sion that Kordenbrock investigating an ty at that his counsel was time of the offense.” Id. at insanity plea. The district court found 1091. error as not constitute reversible “to a defense of dimin- do raise hoping he was by the court. on “habitual found district responsibility” based ished F.Supp. 872. dis- drugs.” 680 use of question Finally, Kentucky law on the “ap- it became trict court determined penalty process jury’s role in the death psychiatrist Nizny, the Dr. parent” that in this case created some confusion has approved the court consulted who by the prior its clarification. As noted defendant “would not be assist to serve to Court, Supreme word “[T]he case.” Kordenbrock’s helpful used, to such an 'recommend’ was but not reading not a fair I do believe F.Supp. 872. responsibility denigrate extent as to view,1 supports but of the evidence iury imposing penalty.” the death not in error district court was conclude the at 700 S.W.2d 389. finding the failure of state to opinion my colleague’s set As well out Nizny’s for Dr. payment services provide analysis, “affirmative there was no oppor- of a “fair deprive not defendant did misstatement or conduct that misleads defense,” his tunity to within present jury as to its role” in this case. Harich v. meaning of Ake. Cir. Dugger, F.2d Ake, Marshall, himself author Justice 1988). right recognize limit “we observed to af- I therefore concur decision impose heavy today,” thus did not corpus firm the denial of habeas relief. on the state.2 U.S. at financial burden 1094. S.Ct. expert testimony present Defendant did drug habits effect of

on the to the murder. He not ingestion prior presenting a diminished ca precluded from compel Ake does not pacity defense. that constitutional error oc conclusion respect expert and psychiat curred with America, UNITED STATES testimony available to this defendant ric Plaintiff-Appellee, guilt stage penalty or the at the either Diminished stage capacity, case. of this NEWMAN, William Howard retardation, may well be a miti like mental Defendant-Appellant. circumstance, recently but as indi gating Court, Supreme existence of cated No. 88-3499. capacity preclude does limited mental of Appeals, United States Court finding penalty of the death under jury’s Circuit. Sixth Penry See appropriate circumstances. — —, Lynaugh, Argued May 1989. 106 L.Ed.2d Decided Nov. One must comment on failure of police photo evidence of the retain pills in

spread the bottle of this case. approbation deserve but These failures support authority ordering for the district view acted its 1. I do find court’s court within pursued County counsel a "deliberate de- provide private psychiatric that defense Boone ser- strategy” cooperate fense available vices for Kordenbrock and have taken should employed psychiatrists "neutral” state necessary steps to enforce its order. 700 S.W.2d might provided testimony defendant have court; part This on the 390. failure beyond policy the stated limits of evaluation "competency pursue; defendant’s failure to counsel’s sanity.” F.Supp. County provide pay- recalcitrance of Boone not, however, Nizny ment for Dr. do constitute Leibson, judge 2. Justice dissenting deficiency. a constitutional appeal Supreme Court in the direct view, my pointed properly, out the trial

Case Details

Case Name: Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 3, 1989

Citation: 889 F.2d 69

Docket Number: 88-5467, 89-5107

Court Abbreviation: 6th Cir.