GABRIELLE L. CECIL v. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
GABRIELLE L. CECIL
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS WINE, JUDGE
ACTION NO. 91-CR-001014
COMMONWEALTH OF KENTUCKY
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COMBS, DYCHE, and SCHRODER, Judges.
This is an appeal from an order denying
appellant's RCr 11.42 motion alleging ineffective assistance of
In June 1991, appellant was indicted for the murder of
but mentally ill.
At trial in February 1992, she was found guilty
The trial judge sentenced her to life
imprisonment as recommended by the jury.
On direct appeal, the
conviction and sentence were affirmed by the Kentucky Supreme
Cecil v. Commonwealth, Ky., 888 S.W.2d 669 (1995).
In January 1997, the appellant filed a RCr 11.42
Following an evidentiary hearing, the motion was denied
in December 1997 by an order of the trial court.
The appellant's first argument is that the trial court
erred by denying her motion for RCr 11.42 relief due to
ineffective assistance of counsel since her trial counsel failed
to develop a solid theory of defense.
She maintains that trial
counsel failed to interview adequately mental health experts
involved in the case and failed to introduce helpful lay witness
testimony at trial.
In an ineffective assistance of counsel claim, the
burden is on the appellant to prove that she was not competently
represented by counsel.
Jordan v. Commonwealth, Ky., 445 S.W.2d
She must first show that counsel made errors so
serious that counsel's performance did not meet the standard that
is guaranteed by the Sixth Amendment of the United States
Second, she must show that her counsel's deficient
performance prejudiced her so gravely that, but for counsel's
ineffective assistance, there is a reasonable probability that
the outcome of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37
(1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d
Appellant contends that the failure of her trial
counsel adequately to interview and to prepare mental health
experts for trial prejudiced her because she was ultimately
denied instructions relative to lesser-included offenses.
insists that had the expert testimony been properly presented,
she would have been entitled to an instruction regarding extreme
emotional disturbance, permitting the jury to reduce the
intentional killing from murder to first-degree manslaughter.
She refers to the Kentucky Supreme Court's opinion on direct
appeal which held that she had failed to prove any "triggering"
event for the shooting.
We are not persuaded that the denial of such a jury
instruction was wholly attributable to counsel's failure to
educate his experts with respect to the legal definition of
"extreme emotional disturbance" or "triggering event" or to
present evidence indicating that the appellant labored under this
On the contrary, the circumstances which the
appellant cites as proof that she acted under an extreme
emotional disturbance were adequately explored at trial, and,
according to a majority of the Kentucky Supreme Court, were not
sufficient to authorize the instructions to which she claims to
As the majority noted on direct appeal:
The evidence before the trial court in this case
supported a conclusion of intentional murder. The
appellant bought the murder weapon only a month or so
before the killing, as her relationship with the victim
and Ms. Collard continued to deteriorate. She carried
it in her automobile on the day of the murder when she
followed the victim and Ms. Collard to the Wal-Mart
parking lot. She removed the pistol from the car and
carried it on her person as she stalked them into the
store. Before they could return to Ms. Collard's car,
[the appellant] drew the pistol, held it within a foot
of the victim's head, and pulled the trigger. This was
the only "triggering" event that occurred that day.
Cecil at 673.
A majority of the court specifically rejected any
notion that the appellant's worsening duress, extreme jealousy,
and mounting frustration constituted a "triggering" event that
would entitle her to claim extreme emotional disturbance.
appellant has failed to point to anything beyond these
speculative factors that might have elicited by a "better epared"
expert trial witness.1
As the trial court aptly reasoned:
We note that a minority of the court was persuaded by a
review of the record that the appellant had, indeed, presented
sufficient evidence to be entitled to a manslaughter instruction.
Justice Leibson and Justice Stumbo were convinced that "ample
The movant arranged a meeting which fit the pattern of
previous encounters. Tragically, this time the Movant
brought a gun. The evidence shows that the Movant was
looking for Mr. Hibbard and Ms. Collard. She found
them. The meeting in the parking lot was the occasion
of Movant's crime - created by her choice, not the
cause of it. . . . Trial counsel does not have the
responsibility to "manufacture" testimony during the
trial to support the Movant's contention that she acted
under extreme emotional disturbance.
We concur with the trial court's conclusion that the performance
of the appellant's trial counsel was not ineffective as alleged.
The appellant also contends that her counsel was
ineffective for failure to prepare lay witnesses for their
testimony at trial and for omitting to call other helpful
Again, we disagree.
Having reviewed the proffered
evidence, we do not conclude that there was any reasonable
probability that its introduction would have affected the outcome
of the proceeding.
Strickland v. Washington, supra.
Finally, appellant argues that she is being denied due
process of law and that she is subjected to cruel and unusual
punishment because treatment required under KRS 504.150 is not
being provided to her.
We are not persuaded that this allegation
is properly asserted by means of an RCr 11.42 motion.
arguments appear to be designed to attack the constitutionality
of the statutory provisions which authorize a guilty but mentally
This issue was not raised at trial — nor was it
evidence" had been presented to support the inference that the
appellant had acted under extreme emotional disturbance. The
difference in opinion appears to have been based upon a
divergence in the construction and interpretation of the law —
not from an assessment of the quality or quantity of the evidence
presented at trial.
raised on direct appeal.
No notice of this challenge to the
statutory provisions was given to the attorney general as
required by KRS 418.075 and Maney v. Mary Chiles Hosp., KY., 785
S.W.2d 480 (1990).
Therefore, we will refrain from addressing
The order of the Jefferson Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Franklin P. Jewell
A.B. Chandler III
Ian G. Sonego
Assistant Attorney General