COMMONWEALTH OF KENTUCKY v. DELANIA FIELDS
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RENDERED: JUNE 15, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000960-MR
AND
NO. 2005-CA-001017-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT/CROSSAPPELLEE
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE STEVEN D. COMBS, SPECIAL JUDGE
ACTION NO. 98-CR-00079
DELANIA FIELDS
APPELLEE/CROSSAPPELLANT
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND VACATING AND
REMANDING IN PART
** ** ** ** **
BEFORE: LAMBERT, MOORE AND NICKELL, JUDGES.
MOORE, JUDGE: Appellant/Cross-Appellee Commonwealth of Kentucky, appeals the
Letcher Circuit Court's order granting Appellee/Cross-Appellant Delania Fields's Motion
to Vacate, Set Aside, or Correct her Sentence, pursuant to RCr 11.42. In 1999, Mrs.
Fields was convicted, following a jury trial, of first-degree manslaughter and sentenced to
serve twenty years of imprisonment. Mrs. Fields cross-appeals the Letcher Circuit
Court's order to the extent the court failed to rule upon the merits of her claim that her
pre-trial statement to police was not made knowingly, intelligently, and voluntarily and
that her trial counsel rendered ineffective assistance when he failed to challenge the
constitutionality of her statement. Further, Mrs. Fields appeals the circuit court's decision
to exclude the post-conviction testimony of Dr. Janice Ophoven. After a careful review
of the record, we affirm the Letcher Circuit Court's order in part and reverse it in part.
We also vacate part of the circuit court's order and remand that portion of the case for
further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mrs. Fields and her husband, Randy Fields, were married in 1985. In the
spring or early summer of 1997, Mrs. Fields began having an extra-marital affair with a
man named Roger Baker, who was one of her customers at the bank where she worked.
She became pregnant following a sexual encounter with Mr. Baker in late October 1997.
Mrs. Fields ended her relationship with Mr. Baker shortly thereafter. Several months into
her pregnancy, Mrs. Fields informed Mr. Baker that she was pregnant. She told him that
she would not have an abortion. Mrs. Fields informed Mr. Baker that the baby's due date
was July 25, 1998. During trial, Mr. Baker testified that at some point, he became
concerned Mrs. Fields would harm the baby but he did not explain why he had these
concerns. Mr. Baker further testified that he told Mrs. Fields she would never get away
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with it if she harmed the baby because he would make certain she was prosecuted. He
attested that Mrs. Fields responded that she could not harm a baby.
Mrs. Fields informed her husband Randy that she was pregnant a couple of
weeks before the baby was born. At that time, Randy thought that he was the father.
Randy noticed around June or July 1998 that Mrs. Fields's personality changed, she
became distant, and she stopped cleaning the house, when she used to keep the house
spotless. Randy testified at trial that during those months, Mrs. Fields also stopped
seeing her family.
Mrs. Fields's mother, Charlene Hylton, testified at trial that Mrs. Fields told
her she was pregnant around the beginning of July. Ms. Hylton was concerned about
Mrs. Fields's health, as she appeared swollen, and Ms. Hylton was concerned that the
swelling was due to Mrs. Fields's recurring kidney problem.
Jo Day, a friend of Mrs. Fields, learned in late June or early July of 1998
that Mrs. Fields was pregnant. Ms. Day testified at trial that Mrs. Fields's legs were
swollen and that this represented a change in her appearance. She further attested that
Mrs. Fields became withdrawn. While she was pregnant, Mrs. Fields informed Ms. Day
that she thought something was wrong with the baby.
During the course of her pregnancy, Mrs. Fields told several people that she
was receiving medical care during her pregnancy. However, she was not.
Mrs. Fields spent most of July 25, 1998, with Ms. Day, who took Mrs.
Fields home around 9:00 p.m. because Mrs. Fields was tired and her back was hurting.
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Randy Fields arrived home at approximately 2:00 a.m. the following
morning and found Mrs. Fields sleeping on the couch. She woke up, they spoke briefly,
then he went to bed at the end of the trailer. She didn't mention at that time experiencing
any problems with her pregnancy. When Randy woke up later that morning, he saw Mrs.
Fields lying on the floor of the kitchen with a cut over her eye. She told him that she had
blacked out and fallen. Randy placed her on the couch, where she stayed for a couple of
hours. Randy then went to take a shower. He did not notice anything unusual in the
bathroom or in the kitchen.
When Randy subsequently helped Mrs. Fields up from the couch, she began
bleeding from between her legs. Mrs. Fields then went to use the restroom, and Randy
attempted to clean up the blood on the couch and the drops of blood in the hallway.
Randy took Mrs. Fields to the local hospital's emergency room. While they were at the
hospital, Mrs. Fields told Randy that he was not the baby's father.
Mrs. Fields was admitted to the hospital on July 26, 1998. Wade Baker,
M.D., an obstetrician and gynecologist who had never treated Mrs. Fields, testified at trial
that upon her arrival at the hospital, Mrs. Fields told him that she was approximately
twenty-three weeks pregnant and that she had been bleeding through the night. Dr. Baker
examined Mrs. Fields and found that her heart rate was elevated, her blood pressure was
low, she had vaginal bleeding, and there was an umbilical cord protruding from her
vagina.
-4-
After performing various tests, Dr. Baker told Mrs. Fields that the baby was
not alive. Dr. Baker testified that Mrs. Fields appeared stunned. He induced labor and
when the placenta was delivered from Mrs. Fields, it appeared to Dr. Baker to be a fullterm placenta. However, a baby was not delivered.
Dr. Baker performed an ultrasound and realized that there in fact was not a
baby in Mrs. Fields's womb. He testified that he asked her if she had seen any tissue
come out with the excessive bleeding that she experienced at home, and she responded
that she had not. Mrs. Fields was severely anemic because she had lost a lot of blood.
After much deliberation, Dr. Baker contacted the police. He asked to meet
with Trooper Claude Little of the Kentucky State Police (KSP).1 When they met, Dr.
Baker explained the situation to Trooper Little.
Trooper Little spoke with Mrs. Fields, explaining to her that he was there
because her baby was missing. Trooper Little asked for permission to search the Fields's
house, and Randy executed a consent to search form. Trooper Little and Trooper Dean
Craft searched the home while Randy was present. Trooper Little attested that there was
blood everywhere in the trailer. In the bathroom, he noticed bloody towels and blood on
the toilet. At one point during the search, Trooper Craft told Trooper Little that he
thought he had found the baby in the kitchen. Trooper Craft opened a garbage bag and
informed Trooper Little that the baby was in the bag. Trooper Little confirmed that there
1
Although he did not explain at trial how he knew to ask specifically for Trooper Little, we
assume that Dr. Baker knew Trooper Little.
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was a baby in the garbage bag. There were bloody paper towels, garbage, and what
appeared to be a face towel in the bag with the baby, and the baby appeared to be dead.
The KSP troopers asked Dr. Baker to look at the baby to determine whether
it appeared to be full-term.2 Dr. Baker opined that the baby appeared to be full-term and
that it looked as though the baby had been cleaned.
Detective Avery Shrum went to the hospital to interview Mrs. Fields. He
told her who he was, why he was there, and he read Mrs. Fields her Miranda rights.
Detective Shrum's interview was taped on audio tape.3 In the interview, Detective Shrum
explained the waiver of rights form to Mrs. Fields before she signed it. Mrs. Fields stated
during the interview that her pregnancy was not planned and that she was not happy
about the pregnancy.4 Detective Shrum told her that there was a problem because the
baby was missing. He informed Mrs. Fields that he knew she was aware of the baby's
whereabouts because she was the mother. He asked her to tell him what happened to the
baby.
Mrs. Fields explained she started having pain while lying on the couch at
home. She had the baby, a girl, around 4:00 or 5:00 a.m. in the kitchen of her home, but
2
It is unclear whether Dr. Baker was ever at the trailer, or whether the baby was taken to the
hospital for examination.
3
The tape of the interview was played for the jury during Mrs. Fields's trial. It should be noted
that, upon review of the trial tape reflecting when the interview was played for the jury, many of
Mrs. Fields's responses to Detective Shrum's questions were inaudible to this Court.
4
Although Mrs. Fields claimed to be thirty-two years old at the time of her interview with
Detective Shrum in July 1998, when she testified during trial one year later, she attested that she
was thirty-eight years old at the time of trial.
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her husband did not know she had delivered the child. When the baby was born, Mrs.
Fields wrapped her in a towel. Detective Shrum asked if the baby was breathing after she
was born, and Mrs. Fields responded "not that I know of." Mrs. Fields stated that she put
the baby in a plastic garbage bag in the kitchen closet. She was uncertain whether she
cleaned up the blood in the kitchen, as she had lost a lot of blood through the day. From
the time she woke up in pain on the couch to the time she had the baby, approximately
two hours passed.5 Mrs. Fields informed Detective Shrum that she was standing up when
she had the baby, and she caught the baby. Mrs. Fields told the detective that she never
saw the baby move and never heard her make a sound.
Mrs. Fields was charged and indicted under KRS 507.020 for the murder of
her baby. A jury trial was thereafter held. Following several hours of voir dire of the
jury, Mrs. Fields's trial counsel moved for a change of venue based on the amount of pretrial publicity the case had received, as evidenced by the fact that most of the potential
jurors had heard of the case before trial. Counsel's motion was denied as untimely.
During trial, the Commonwealth called Cristin Rolf, M.D., a state medical
examiner and forensic pathologist, to testify. Dr. Rolf testified that she finished her
residency in 1996. She explained that pathology is a laboratory branch of medicine in
which the doctor examines tissues and fluids taken from a person for the purpose of
determining whether disease or biochemical problems are present, as well as to perform
autopsies.
5
Mrs. Fields never explained why she did not go to the hospital to have the baby or why she did
not wake her husband up when she started experiencing a lot of pain.
-7-
Dr. Rolf testified that she had performed over 400 autopsies, including four
on newborn infants who had been killed. She practices forensic pathology, in which she
studies bodily tissues and fluids for the purpose of assisting law enforcement in solving
crimes. She performed the autopsy on Mrs. Fields's baby on July 28, 1998. Dr. Rolf
attested that there were no malformations on the baby and that she appeared to be fullterm; that the baby weighed seven pounds, nine ounces, and she was 20-7/8 inches long
and appeared to be well-nourished; that the baby's internal organs appeared normal; and
that there was no evidence of trauma to the baby.
Dr. Rolf testified that when a baby dies in the uterus, the baby's appearance
when born is different from the appearance of a live birth. For example, a stillborn baby's
head often appears bumpy because the skeletal plates have moved, and the baby's skin is
reddish-pink-looking, and it sloughs off very easily. Dr. Rolf opined that there was no
evidence that Mrs. Fields's baby died in the womb. She attested that if the baby had died
in the womb, some of the aforementioned indications could have been present, unless the
baby died within a few hours of birth or during birth. There was no evidence of disease
in the baby.
Based on her examination of the baby's lungs, Dr. Rolf testified that the
baby appeared to have taken more than one breath.6 She also attested that the baby's
lungs were normally developed and free of obstruction.
6
Dr. Rolf testified that this opinion was based on the number of open alveoli (i.e., air sacs), in
the baby's lungs.
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Dr. Rolf opined that the baby was somewhat decomposed when she
conducted the autopsy. She explained that when a body decomposes, gases are produced
by a bacteria, and the gases form uneven pockets in areas of the lung. In Mrs. Fields's
baby, some of these pockets had formed. When Dr. Rolf examined the baby's lungs
under a microscope, she was able to determine that the lungs were evenly aerated,
meaning that there were gases in the lungs. Dr. Rolf determined at that time that the
gases in the baby's lungs were not due only to decomposition, but due to breathing, as
well.
Dr. Rolf testified that when she received the baby for the purpose of
conducting an autopsy, the baby was inside three plastic garbage bags (i.e., one was
inside another, and that was inside yet another garbage bag). Dr. Rolf further attested
that the garbage bags were tied with a yellow rubber band. She explained that there were
towels and garbage, as well as blood clots, in the bag with the baby. Dr. Rolf testified
that she was able to state with a reasonable medical certainty that the baby was born
alive. Her opinion was that the baby died of asphyxiation, apparently from being placed
in the garbage bags and tying them with a rubber band.
John Ludgate, Ph.D., a licensed clinical psychologist, testified for the
defense. He began treating Mrs. Fields in August 1998, after she was referred to him by
a social worker following the baby's death. Dr. Ludgate treated Mrs. Fields for
depression and anxiety. He testified that he believed Mrs. Fields had a dissociative
reaction, which he explained as when a person can say things without being aware of
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what he/she is saying, and can do things without having any feeling associated with
his/her actions. Dr. Ludgate attested that he believed Mrs. Fields had a dissociative
disorder in 1998, after the baby's death, and he opined that she had dissociative amnesia
on the night in question. Dr. Ludgate explained that when Mrs. Fields tried to recall the
events of the night the baby was born and relate them to him, her memory was
fragmented, and she did not remember everything that happened. Dr. Ludgate opined
that when Mrs. Fields was in the hospital, she probably was confused and she probably
believed different things had occurred at different times.
Harwell Smith, Ph.D., a clinical psychologist, also testified for the defense.
Dr. Smith attested that he thought Mrs. Fields may not have been "in touch with reality"
at the time she gave birth, due to her dissociative disorder.
Mrs. Fields also testified at trial. She attested that she first suspected she
was pregnant in December 1997 or January 1998. After learning of her pregnancy and
ending her relationship with Roger Baker, he began following her around town. She
began to feel trapped, and she began to stay home most of the time, making her more
depressed. Mrs. Fields testified that she was close to her mother, but she was afraid her
mother would disown her if she found out Mrs. Fields had engaged in an extra-marital
affair.
Mrs. Fields testified that she did not remember what happened the night of
the baby's birth; she did not remember having the baby; she remembered seeing some
blood; she vaguely remembered her husband taking her to the hospital; and she did not
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remember meeting Dr. Baker or talking to Detective Shrum. Mrs. Fields attested that she
and her husband were not trying to get pregnant, but they were not trying to prevent a
pregnancy, either. She swore that she would have been happy if she and her husband had
a baby. She began having suicidal thoughts the summer that she had the baby.7 Roger
Baker began calling her twice a day after she told him she was pregnant. Mrs. Fields
testified that she did not recall telling people she was seeing a doctor for prenatal care.
The Commonwealth's attorney cross-examined Mrs. Fields, asking her if
she remembered the color of the tie that she used to tie the garbage bags shut, and Mrs.
Fields replied that she did not remember.8 Mrs. Fields explained that she remembered
blood, but that was the only thing she could remember about the baby's birth and death.
During the Commonwealth's opening and closing arguments at trial, it
claimed that Mrs. Fields put the baby in a garbage bag and tied the top of the bag.
Additionally, during closing arguments, the Commonwealth's attorney made the
following claim about Mrs. Fields: "[S]he placed her baby inside not one, but three
plastic bags . . . [and] tie[d] it up tightly with a yellow hair tie. . . . Why tie the top? To
make sure it [didn't] get any air. This is a mind at work. . . . These are not the acts of
someone in a trance."
The jury found Mrs. Fields guilty of the lesser-included offense of firstdegree manslaughter. She was sentenced to serve twenty years of imprisonment. Mrs.
7
Mrs. Fields did not explain whether she had such suicidal thoughts before giving birth, after
giving birth, or both.
8
It should be noted that Mrs. Fields did not admit tying the bags closed, but she did not deny it,
either.
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Fields appealed, and the Supreme Court of Kentucky affirmed her conviction and
sentence on January 25, 2001. See Fields v. Commonwealth, 44 S.W.3d 355 (Ky. 2001).
Mrs. Fields filed a petition for rehearing in the Supreme Court of Kentucky that was
denied on May 24, 2001.
In August 2002, Mrs. Fields timely filed her RCr 11.42 motion to vacate,
set aside, or correct the sentence against her. Her motion raised, inter alia, claims that
she had received the ineffective assistance of trial counsel. After the Commonwealth
filed its answer to Mrs. Fields's motion, the trial judge recused himself from the case due
to an allegation that Mrs. Fields had raised in her motion to vacate, and a special judge
was appointed to preside over the case. Mrs. Fields moved to amend her RCr 11.42
motion in September 2004. Her request for leave to amend was denied and later that
month, Mrs. Fields filed a second motion to amend her RCr 11.42 motion, which was
also denied. In October 2004, Mrs. Fields filed her third motion to amend her RCr 11.42
motion, and the trial court granted that motion.
Mrs. Fields requested an evidentiary hearing concerning her RCr 11.42
motion. The circuit court granted her motion. Before the hearing was held, the
Commonwealth moved to preclude the introduction of testimony from defense expert
witnesses Janie J. Ophoven, M.D., and George H. Nichols, M.D. The circuit court did
not rule on the Commonwealth's motion prior to the hearing and permitted those two
defense experts to testify during the hearing.
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At the evidentiary hearing, the Commonwealth's trial attorney was called as
a witness. He testified that he had "no idea" from where the yellow rubber band that was
used to tie the garbage bags closed came. He also attested that if he had argued at trial
that the yellow tie was placed on the bag by Mrs. Fields, then he must have had a good
reason to believe that at that time.
However, the Deputy Coroner for Letcher County, Robert Campbell,
testified at the evidentiary hearing that he had gone to the Fields home in 1998 to
investigate the baby's death. Mr. Campbell attested that he had been the person who tied
the garbage bags containing the baby closed with a yellow band like the type that women
wear in their hair. He testified that after doing so, he placed the garbage bags in a body
bag, identified it, and sent it to Frankfort.
Mr. Campbell remembered the family bringing him a letter from Mrs.
Fields's trial counsel asking that he leave the child intact and not preserve or embalm the
child so that a second autopsy could be performed. Approximately two weeks later, he
received a call from Dr. Nichols, wherein Dr. Nichols said that Mrs. Fields's trial counsel
asked him to conduct a second autopsy. At that point, nothing had been done to preserve
the body, and it had begun to decay. Dr. Nichols told Mr. Campbell that he was going to
have to take a different route to determine the cause of the baby's death due to the
decomposition of the body, and Mr. Campbell testified that this probably meant that Dr.
Nichols would look at the laboratory slides from the medical examiner to determine the
cause of death. One week later, Mr. Campbell was told to embalm and bury the body.
- 13 -
Dr. Nichols testified at Mrs. Fields's RCr 11.42 evidentiary hearing. He
attested that he is a pathologist and that he was the first Kentucky Chief Medical
Examiner, a position which he held for twenty years, from 1977 to 1997. During that
time, Dr. Nichols performed approximately forty autopsies on newborns. He testified
that while conducting such an autopsy, it is important to examine the newborn baby,
placenta and umbilical cord, as well as the mother's medical records.
Dr. Nichols attested that many things can occur during labor and delivery
that can cause problems for the baby, but which do not necessarily involve any structural
abnormality at which a doctor can look and affirmatively say that the abnormality was the
cause of the baby's death. Dr. Nichols explained the many different situations that can
cause a baby's death during labor and delivery, including infections that can travel up the
vagina and enter the placenta. He testified that in the present case, there was evidence of
such an infection. Dr. Nichols further attested he saw an abnormality in Mrs. Fields's
placenta.
Dr. Nichols testified that total expansion of the lungs can be a sign a child
was born alive, but it can also be caused by someone performing cardiopulmonary
resuscitation on the baby. He explained that partial expansion of the lungs can be caused
when a baby's chest is compressed as it passes through the birth canal. Furthermore, the
activity of bacteria as they grow, as occurs during decomposition, causes gases to appear
in the body. In order to form an opinion as to the cause of death in the present case, Dr.
Nichols reviewed, inter alia, the autopsy report and fourteen microscopic slides taken
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during the baby's autopsy. He found abnormalities in the placenta and in the infant,
especially in the baby's lungs.
Dr. Nichols attested that he initially received a telephone call from Mrs.
Fields's trial counsel in 1998 asking him to do a second autopsy on the baby. Dr. Nichols
told the attorney that he needed to see the structures that had been removed from the
child, as well as the placenta and umbilical cord. Dr. Nichols testified that Mrs. Fields's
trial attorney never contacted him again and never sent him any materials concerning the
case. Dr. Nichols was contacted by the funeral home to come and examine the baby's
body, but Dr. Nichols explained to them that it would not do any good to examine the
baby's body because he really needed to see what had been removed from inside the
body, and the funeral home would not have had those body parts. Rather, Dr. Nichols
testified that only the medical examiner would have had them, and Dr. Nichols had
previously informed Mrs. Fields's trial counsel of this.
Although Dr. Nichols was not asked to review the microscopic slides of the
baby's bodily tissues for purposes of trial, Mrs. Fields's post-conviction counsel asked
him to review the slides for purposes of testifying at the evidentiary hearing. Thus, Dr.
Nichols was ultimately able to review the evidence he needed in order to make a
determination concerning the cause of death. Dr. Nichols testified that he would have
provided the same opinion at trial as he did during the evidentiary hearing if Mrs. Fields's
trial counsel had only sent him the materials he needed to review and had contacted him
again. Dr. Nichols attested that he was never paid by Mrs. Fields's trial counsel.
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However, as examined infra, Mrs. Fields's family paid trial counsel $4,000.00 to hire Dr.
Nichols.
Dr. Nichols opined during the evidentiary hearing that the baby's cause of
death is undetermined because there is evidence of abnormalities in the placenta,
including infection and something like a blood clot that obstructed the flow of blood
between the baby and the mother. There were also blood clots in the placenta, and the
infection in the placenta "almost approach[ed] abscess formation."
Dr. Nichols further opined that he could find no evidence indicating, with a
reasonable medical certainty, that the baby was born alive. He testified that this is
because of the fact that there was irregular aeration of the alveoli and obstruction of the
bronchi which prevented the passage of air. Dr. Nichols clarified his opinion and noted
that he was not opining that it is impossible the baby was born alive. Rather, he could not
find any evidence indicating with a reasonable medical certainty, which he defined as a
"ninety-five percent confidence," that the baby was born alive. Dr. Nichols testified that
he had never seen any photographs of the autopsy or of the crime scene, and he was never
provided copies of the KSP investigation report. He stated that he would have preferred
to have had those pieces of evidence for his review.
Mrs. Fields's trial attorney, Ned Pillersdorf, also testified at the evidentiary
hearing. He attested that he would have been very interested in knowing at the time of
trial what Dr. Nichols ultimately testified to at the evidentiary hearing. Mr. Pillersdorf
testified that he did not remember talking to Dr. Nichols concerning this case but that he
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spoke to him at times concerning his cases, so it was possible that he spoke with Dr.
Nichols about Mrs. Fields's case.
Charlene Hylton, Mrs. Fields's mother, testified again at the evidentiary
hearing. She swore that there was a delay in burying the baby because trial counsel
wanted a second autopsy performed, and Mrs. Fields's family paid $4,000.00 to trial
counsel because he had told them that he wanted to hire Dr. Nichols to do the autopsy.9
Mrs. Fields's sister also testified that the family paid $4,000.00 to trial counsel to hire Dr.
Nichols as an expert witness.
Dr. Ophoven testified at the evidentiary hearing. However, her testimony
was, for the most part, duplicative of Dr. Nichols's testimony.
Several months after the conclusion of the evidentiary hearing, the
Commonwealth renewed its motion to preclude the testimony of defense experts Dr.
Ophoven and Dr. Nichols and requested in the alternative to permit the Commonwealth
to supplement the record with the testimony of Dr. Rolf.10 The circuit court granted the
9
Trial counsel testified at the evidentiary hearing that the $4,000.00 paid by Mrs. Fields's family
was placed in an escrow account set up by counsel, and it was later used to pay Dr. Harwell
Smith, a psychologist, for the time Dr. Smith spent serving as an expert witness for the defense.
However, in reviewing Mrs. Fields's RCr 11.42 motion and the evidence, the trial court made the
following finding: [Trial counsel] told the Defendant's family that he would hire Dr. Nichols and
asked them to bring $4,000.00 to him to retain Dr. Nichols, which they did." As the reviewing
court, we must defer to this factual determination by the circuit court. See Simmons v.
Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006).
10
Although, in its filings before this Court, the Commonwealth refers to its expert witness at
trial as Dr. Cristin "Rolf," in its renewed motion to preclude the testimony of the defense experts,
or in the alternative, to allow the Commonwealth to supplement the record with the testimony of
its own expert during the RCr 11.42 proceedings in the circuit court, the Commonwealth referred
to its expert witness as Dr. Cristin "Roth." Furthermore, in its Combined Reply/Cross-Appellee
Brief filed in the present appeals, the Commonwealth repeatedly refers to her as Dr. "Rolfe."
Nevertheless, because the Commonwealth spelled her last name as "Rolf" in its opening brief
- 17 -
Commonwealth's motion concerning Dr. Ophoven's testimony and denied the motion as
it pertained to Dr. Nichols's and Dr. Rolf's testimonies.
Regarding Mrs. Fields's RCr 11.42 motion, the circuit court granted the
motion to the extent that Mrs. Fields alleged that she received the ineffective assistance
of trial counsel due to counsel's failure to investigate and adequately challenge the cause
of death of the baby and due to counsel's failure to timely move for a change of venue.
Regarding Mrs. Fields's claim that she received the ineffective assistance of trial counsel
due to counsel's failure to investigate and challenge her statement given to Detective
Shrum during her interview with him while she was in the hospital, the circuit court held
as follows: "Because the Court is granting [Mrs. Fields's] RCr 11.42 Motion on other
grounds, the Court will not consider this ground at this time. At any retrial of this
Indictment, the Court will assign an appropriate Motion for hearing." The circuit court
then set aside Mrs. Fields's conviction and returned the indictment in her case to the
court's active docket.
The Commonwealth now appeals the circuit court's order, raising the
following claims: (1) the circuit court erred concerning Mrs. Fields's ineffective
assistance of counsel/change of venue claim because any issue regarding a change of
venue should have been raised on direct appeal and cannot be raised in a RCr 11.42
motion by placing an ineffective assistance of counsel tag on it; (2) the circuit court erred
when it sua sponte granted a motion for a hearing regarding Mrs. Fields's pre-trial
filed in this Court, that is the spelling we have chosen to use when referring to her in this
opinion.
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statement to Detective Shrum; (3) the circuit court erred when it granted Mrs. Fields's
third motion to amend her RCr 11.42 motion; (4) the circuit court erred when it granted
Mrs. Fields's RCr 11.42 motion based on her ineffective assistance of counsel/cause of
death claim because the issue was procedurally barred and the claim failed on the merits;
(5) the circuit court abused its discretion when it denied the Commonwealth's motion to
exclude the testimony of Dr. Nichols; and (6) the circuit court abused its discretion when
it denied the Commonwealth's motion to supplement the record with further testimony
from Dr. Rolf.
Mrs. Fields cross-appeals, arguing that the circuit court erred when it failed
to enter a decision on the merits of her claim that she received the ineffective assistance
of trial counsel due to counsel's failure to investigate and challenge her statement given to
Detective Shrum. She also alleges that the circuit court erred when it excluded the
testimony of Dr. Ophoven, purportedly without providing any reasons for doing so.
II. STANDARD OF REVIEW
A motion brought under RCr 11.42 "is limited to issues that were not and
could not be raised on direct appeal." Simmons v. Commonwealth, 191 S.W.3d 557, 561
(Ky. 2006). "An issue raised and rejected on direct appeal may not be relitigated in this
type of proceeding by simply claiming that it amounts to ineffective assistance of
counsel." Id. "The movant has the burden of establishing convincingly that he or she
was deprived of some substantial right which would justify the extraordinary relief
provided by [a] post-conviction proceeding. . . . A reviewing court must always defer to
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the determination of facts and witness credibility made by the circuit judge." Id.
(citations omitted).
III. ANALYSIS
As an initial matter, we note that none of the claims that Mrs. Fields raised
in her RCr 11.42 motion were brought in her direct appeal. See id.
A. CLAIM THAT CIRCUIT COURT ERRED IN GRANTING MRS. FIELDS'S
RCr 11.42 MOTION BASED ON HER INEFFECTIVE ASSISTANCE OF
COUNSEL/CHANGE OF VENUE CLAIM
The Commonwealth first argues that the circuit court erred in granting the
RCr 11.42 motion based on Mrs. Fields's claim that she received the ineffective
assistance of trial counsel due to counsel's failure to timely move for a change of venue.
Specifically, the Commonwealth contends that any issue regarding a change of venue
should have been raised on direct appeal and cannot be raised in a RCr 11.42 motion by
placing an ineffective assistance of counsel tag on it. Moreover, the Commonwealth
asserts that even if the claim was not procedurally barred, it lacked merit, and the circuit
court erred in granting Mrs. Fields's RCr 11.42 motion based on the merits of the claim.
Although we would have to agree that if Mrs. Fields had simply asserted in
her RCr 11.42 motion that a change of venue should have been granted by the trial court,
such a claim should have been raised on direct appeal rather than in a RCr 11.42 motion,
see id., that is not the claim that Mrs. Fields actually asserted in the circuit court. Rather,
she claimed that she received the ineffective assistance of counsel due to counsel's failure
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to timely request a change of venue due to the amount of pre-trial publicity. Mrs. Fields's
trial counsel also represented her on direct appeal.
The United States Court of Appeals for the Sixth Circuit has noted:
In Ohio, res judicata bars state courts from considering
constitutional claims in post-conviction collateral attacks . . .
when those claims have already been or could have been fully
litigated on direct appeal. . . . Res judicata also bars
ineffective assistance of trial counsel claims, not asserted on
direct appeal, when the defendant is represented by a different
counsel on direct appeal. . . . However, if the defendant was
represented by the same counsel at trial and on direct appeal,
claims of ineffective assistance of trial counsel are not
[procedurally barred] because appellate counsel will rarely
assert his own ineffectiveness at trial.
Hicks v. Collins, 384 F.3d 204, 211 (6th Cir. 2004) (citations omitted). The same logic
applies here. Although Kentucky, like Ohio, bars post-conviction petitioners from raising
claims in a RCr 11.42 motion that were or could have been raised on direct appeal, see
Simmons, 191 S.W.3d at 561, Mrs. Fields was represented on direct appeal by the same
counsel who represented her at trial. Thus, she could not have raised her claim that trial
counsel rendered ineffective assistance by failing to timely move for a change of venue in
her direct appeal. See Hicks, 384 F.3d at 211. Consequently, the Commonwealth's
assertion that this claim is procedurally barred lacks merit.
However, to the extent that the Commonwealth contends that this
ineffective assistance of counsel claim fails on the merits, we agree. Regarding claims of
ineffective assistance of counsel, the Kentucky Supreme Court has noted:
The standards which measure ineffective assistance of
counsel are set out in Strickland v. Washington, 466 U.S. 668,
- 21 -
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v.
Commonwealth, 702 S.W.2d 37 (Ky. 1985). In order to be
classified as ineffective, the performance of counsel must be
below the objective standard of reasonableness and so
prejudicial as to deprive a defendant of a fair trial and a
reasonable result. Strickland, supra. “Counsel is
constitutionally ineffective only if performance below
professional standards caused the defendant to lose what he
otherwise would probably have won.” United States v.
Morrow, 977 F.2d 222 (6th Cir. 1992). The critical issue is
not whether counsel made errors, but whether counsel was so
thoroughly ineffective that defeat was snatched from the
hands of probable victory. Morrow, supra. The purpose of
RCr 11.42 is to provide a forum for known grievances, not to
provide an opportunity to research for such grievances.
Gilliam v. Commonwealth, 652 S.W.2d 856 (Ky. 1983).
In reviewing a claim of ineffective assistance, the court must
focus on the totality of evidence before the judge or jury and
assess the overall performance of counsel throughout the case
in order to determine whether the identified acts or omissions
overcome the presumption that counsel rendered reasonable
professional assistance. See Kimmelman v. Morrison, 477
U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Morrow;
[Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001)],
supra. A defendant is not guaranteed errorless counsel or
counsel judged ineffective by hindsight, but counsel likely to
render and rendering reasonably effective assistance. Haight;
See also McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.
1997).
Simmons, 191 S.W.3d at 561.
In the present case, trial counsel failed to timely move for a change of
venue, and such may have constituted deficient performance on counsel's part, thus
satisfying the first part of the Strickland test for ineffective assistance of counsel.
However, we cannot agree that this deficient performance so prejudiced Mrs. Fields's
defense that the outcome of her trial would have been different had trial counsel timely
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moved for a change of venue. See id. (citing Morrow, 977 F.2d at 222). Thus, the
second part of the Strickland test has not been met.
Moreover, during the evidentiary hearing, trial counsel testified that he
initially chose not to move for a change of venue because Mrs. Fields's family was wellregarded in the community and he thought that sentiment would have a positive influence
on the jury. Therefore, trial counsel's decision not to move for a change of venue prior to
trial was presumably part of his trial strategy, and Mrs. Fields is unable to show that trial
counsel rendered ineffective assistance when he failed to request a change of venue at an
earlier time. See Strickland, 466 U.S. at 689 ("[A] court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” (internal
quotation marks and citation omitted)). Consequently, we reverse the circuit court's
decision as it pertained to this claim.
B. CLAIMS CONCERNING MRS. FIELDS'S PRE-TRIAL STATEMENT TO
DETECTIVE SHRUM
The Commonwealth next argues that the circuit court erred when it sua
sponte granted a motion for a hearing regarding Mrs. Fields's pre-trial statement to
Detective Shrum. In a related claim, Mrs. Fields contends in her cross-appeal that the
circuit court erred when it failed to enter a decision on the merits of her claim that she
received the ineffective assistance of trial counsel due to counsel's failure to investigate
and challenge her pre-trial statement.
- 23 -
A trial court is required "to rule on all of the issues raised" in a RCr 11.42
motion. Wilson v. Commonwealth, 975 S.W.2d 901, 904 (Ky. 1998). In the present case,
regarding Mrs. Fields's claim that her trial counsel rendered ineffective assistance when
he failed to investigate and challenge her pre-trial statement, the circuit court held that it
would "not consider this ground at this time" because it was granting the RCr 11.42
motion on other grounds. Pursuant to Wilson, the circuit court erred in so holding, and
we vacate that part of the circuit court's decision and remand for further consideration of
this claim.
As previously mentioned, the Commonwealth argues that the circuit court
erred when it sua sponte granted a hearing upon retrial of the indictment regarding Mrs.
Fields's pre-trial statement claim. However, because we are vacating the circuit court's
decision as it pertains to Mrs. Fields's pre-trial statement claim and remanding that claim
for further consideration, the Commonwealth's claim is moot.
C. CLAIM THAT THE CIRCUIT COURT ERRED WHEN IT GRANTED MRS.
FIELDS'S THIRD MOTION TO AMEND HER RCr 11.42 MOTION
The Commonwealth next claims that the circuit court erred in granting Mrs.
Fields's third motion to amend her RCr 11.42 motion, which was filed for the purpose of
raising her ineffective assistance of counsel/cause of death claim. "A trial court's ruling
on a motion to amend will not be disturbed on appeal unless there has been a clear abuse
of discretion." Bowling v. Commonwealth, 981 S.W.2d 545, 548 (Ky. 1998). In a RCr
11.42 context, "[l]eave to amend shall be freely given when justice so requires." Hodge
v. Commonwealth, 116 S.W.3d 463, 472 (Ky. 2003) (internal quotation marks and
- 24 -
citation omitted). Because the circuit court ultimately granted Mrs. Fields's RCr 11.42
motion based, in part, on her ineffective assistance of counsel/cause of death claim, the
circuit court clearly thought that justice required it to allow Mrs. Fields to amend her RCr
11.42 motion to include that claim. See id. Thus, the circuit court did not abuse its
discretion when it granted Mrs. Fields's third motion to amend. See Bowling, 981 S.W.2d
at 548.
D. CLAIM THAT THE CIRCUIT COURT ERRED WHEN IT GRANTED MRS.
FIELDS'S RCr 11.42 MOTION BASED ON HER CLAIM THAT TRIAL
COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO
INVESTIGATE AND CHALLENGE THE CAUSE OF DEATH THEORY SET
FORTH BY THE COMMONWEALTH
The Commonwealth next alleges that the circuit court erred in granting Mrs.
Fields's RCr 11.42 motion based on her claim that she received the ineffective assistance
of trial counsel due to counsel's failure to investigate and challenge the cause of death
theory set forth by the Commonwealth. Specifically, the Commonwealth argues that the
issue was procedurally barred and the claim failed on the merits.
First, this claim is not procedurally barred because, as discussed supra, Mrs.
Fields was represented on direct appeal by the same attorney who represented her at trial,
and it is counter-intuitive to think that counsel would have raised an ineffective assistance
of counsel claim concerning his own representation of Mrs. Fields. See Hicks, 384 F.3d
at 211.
Second, regarding the merits of the claim, the evidence presented during the
RCr 11.42 evidentiary hearing shows that trial counsel spoke with Dr. Nichols, and Dr.
- 25 -
Nichols agreed to perform a second autopsy on the baby. Mrs. Fields's family then paid
$4,000.00 to trial counsel to retain Dr. Nichols as an expert witness. However, Dr.
Nichols never received the money, never received any further calls from trial counsel,
and never received any evidence from trial counsel to review for purposes of providing
an expert opinion concerning the baby's cause of death.
At the evidentiary hearing, Dr. Nichols testified that, after reviewing
numerous microscopic slides and the autopsy report prepared by the Commonwealth's
expert, he could find no evidence indicating with a reasonable medical certainty that the
baby was born alive. Dr. Nichols also testified that this opinion is based on his finding
that there was irregular aeration of the alveoli in the baby's lungs and obstruction of the
baby's bronchi which prevented the passage of air. He further attested that he would have
provided this same testimony at trial if trial counsel had hired him.
Dr. Nichols's opinion concerning the baby's cause of death was directly
contradictory to the opinion of the Commonwealth's expert, Dr. Rolf. Dr. Rolf testified
that the baby's lungs were free of obstruction, that the lungs were evenly aerated, that she
was able to state with a reasonable medical certainty that the baby was born alive, and
that the baby died of asphyxiation.
Thus, because Dr. Nichols would have provided expert testimony directly
contradicting the opinion of the Commonwealth's expert if trial counsel had only hired
him, and because Mrs. Fields's family paid $4,000.00 for the purpose of hiring Dr.
Nichols, but trial counsel failed to hire him, trial counsel's performance was deficient.
- 26 -
Furthermore, there is a reasonable probability that, but for trial counsel's deficient
performance concerning the cause of death issue, the outcome of Mrs. Fields's trial would
have been different. Therefore, trial counsel rendered ineffective assistance by failing to
investigate and challenge the Commonwealth's theory concerning the baby's cause of
death. See Simmons, 191 S.W.3d at 561.
Moreover, Dr. Rolf opined that the baby died of asphyxiation after noting
that, when she received the baby, the baby was lying inside three garbage bags that were
tied at the top with a yellow rubber band. The Commonwealth's trial attorney also argued
repeatedly during opening and closing arguments that Mrs. Fields had tied the garbage
bags shut with a yellow rubber band. However, during the RCr 11.42 hearing, the
Deputy Coroner testified that he was the person who placed the yellow rubber band on
the bags and that he did so for the purpose of transporting the baby. This further supports
the circuit court's ruling on this claim because it appears that Mrs. Fields "was deprived
of [a] substantial right which would justify the extraordinary relief provided by [a] postconviction proceeding." Id.
The Commonwealth asserts that trial counsel's strategy was that if Mrs.
Fields killed the baby, she did so because she was mentally ill, and the Commonwealth
argues that such a strategy shows trial counsel did not render ineffective assistance.
However, trial counsel himself admitted during the evidentiary hearing that he would
have been very interested in knowing before trial what Dr. Nichols ultimately testified to
during the RCr 11.42 hearing. Thus, it appears that such was not part of trial counsel's
- 27 -
strategy and that he would have only had to take the steps to hire Dr. Nichols to be
informed of his testimony. Trial counsel testified that he would have presented Dr.
Nichols's testimony at trial if he had only been aware of Dr. Nichols's opinion.
The Commonwealth also contends that, during the RCr 11.42 proceedings,
it obtained an affidavit from Joseph Lane, one of the attorneys from trial counsel's law
office, stating that he
recall[ed] having a conversation with other attorneys in the
office as to the Delania Fields case. . . . Dr. Nichols had been
contacted. However, it was discussed that one of the
attorneys in the office had talked to Dr. Nichols, at which
time Dr. Nichols indicated he would not be helpful in the
Delania Fields case based on the information he had
reviewed.
However, this affidavit from Mr. Lane is hearsay, at best, because it is offered for the
truth of the matter asserted. See KRE 801. Thus, it is inadmissible. Consequently, the
trial court did not err in granting Mrs. Fields's RCr 11.42 motion based on her claim that
trial counsel rendered ineffective assistance when counsel failed to investigate and
challenge the Commonwealth's theory regarding the baby's cause of death.
E. CLAIMS CONCERNING THE CIRCUIT COURT'S DECISION REGARDING
THE COMMONWEALTH'S MOTION TO EXCLUDE THE TESTIMONY OF
DR. NICHOLS AND DR. OPHOVEN
The Commonwealth asserts that the circuit court abused its discretion in
denying the Commonwealth's motion to exclude the testimony of Dr. Nichols. In a
related claim, Mrs. Fields contends that the circuit court erred when it excluded the
- 28 -
testimony of Dr. Ophoven, allegedly without providing any reasons for excluding that
testimony.
We review the circuit court's rulings concerning the admissibility of expert
testimony for an abuse of discretion. See Goodyear Tire & Rubber Co. v. Thompson, 11
S.W.3d 575, 577-78 (Ky. 2000). In the present case, the circuit court first granted the
Commonwealth's motion to exclude Dr. Ophoven's testimony. The court then denied the
Commonwealth's motion to exclude Dr. Nichols's testimony, reasoning as follows:
The Hon. Ned Pillersdorf [i.e., trial counsel,] actually
engaged Dr. Nichols to testify at trial, and [Mrs. Fields's]
family forwarded money to Mr. Pillersdorf to retain Dr.
Nichols, but counsel failed to present Dr. Nichols'[s]
testimony at trial. Therefore, what Dr. Nichols would have
said at trial and his findings are critical to the RCr 11.42
hearing.
Furthermore, while discussing whether to allow Dr. Rolf to testify in the RCr 11.42
proceedings, the circuit court held that "any testimony that Dr. Rolf would provide now
would be no more probative than any testimony that Dr. Ophoven offered." Thus,
contrary to Mrs. Fields's assertion, although the circuit court did not provide explicit
reasons for excluding Dr. Ophoven's testimony, the court's reasons appear to be implicit
based on its reasons for admitting Dr. Nichols's testimony and for denying the
introduction of further testimony from Dr. Rolf.
Dr. Nichols was initially contacted by trial counsel, and he was willing to
serve as a defense expert at trial. Additionally, Mrs. Fields's family paid money to trial
counsel for the purpose of retaining Dr. Nichols as an expert witness, but trial counsel
- 29 -
never contacted Dr. Nichols again. Thus, the testimony that Dr. Nichols would have
provided at trial, which he ultimately provided during the evidentiary hearing, was
important for purposes of ruling on the RCr 11.42 motion. Accordingly, the circuit court
did not abuse its discretion when it admitted Dr. Nichols's testimony. See Goodyear Tire
& Rubber Co., 11 S.W.3d at 577-78.
Similarly, because Dr. Ophoven's RCr 11.42 hearing testimony was
primarily duplicative of Dr. Nichols's testimony, the circuit court did not abuse its
discretion when it granted the Commonwealth's motion to exclude her testimony. Id.
Moreover, because the circuit court acted as the fact-finder during the evidentiary
hearing, it had the sole responsibility to weigh the evidence and judge the credibility of
all witnesses. The court was not bound to accept the testimony of any witness as true.
See Dunn v. Commonwealth, 286 Ky. 695, 151 S.W.2d 763, 764-765 (Ky. 1941). It was
the circuit court's duty to weigh the probative value of the evidence and to choose which
testimony it found most convincing. See Commonwealth, Dep't of Highways v. Dehart,
465 S.W.2d 720, 722 (Ky. 1971). The circuit court was free to believe all of a witness's
testimony, part of a witness’s testimony or none of it. See Gillispie v. Commonwealth,
212 Ky. 472, 279 S.W. 671, 672 (Ky. 1926). Therefore, even if the circuit court excluded
Dr. Ophoven's testimony because it found her not credible, that was a decision for the
court to make, and the court did not abuse its discretion in making that decision. See
Goodyear Tire & Rubber Co., 11 S.W.3d at 577-78.
- 30 -
F. CLAIM THAT THE CIRCUIT COURT ABUSED ITS DISCRETION WHEN
IT DENIED THE COMMONWEALTH'S MOTION TO SUPPLEMENT THE
RECORD WITH FURTHER TESTIMONY FROM DR. ROLF
The Commonwealth argues that the circuit court abused its discretion when
it denied the Commonwealth's motion to supplement the record with further testimony
from Dr. Rolf, for the purpose of rebutting the testimony provided by Dr. Nichols at the
evidentiary hearing. The circuit court reasoned that the Commonwealth's motion
concerning Dr. Rolf was untimely, as it was filed three months after the evidentiary
hearing was held. The court explained:
The Commonwealth knew or should have known that Dr.
Nichols would be called as a witness and could have had Dr.
Rolf or another physician present or standing by to testify.
Furthermore, Dr. Rolf has already testified at trial and made
her findings. Hence, any testimony that Dr. Rolf would
provide now would be no more probative than any testimony
that Dr. Ophoven offered.
Because Dr. Rolf had previously testified at trial and the Commonwealth failed to move
to have her testify in the RCr 11.42 proceedings until three months after the evidentiary
hearing was held, the circuit court did not abuse its discretion in denying the
Commonwealth's motion. See Goodyear Tire & Rubber Co., 11 S.W.3d at 577-78.
Accordingly, the order of the Letcher Circuit Court is reversed in part as it
pertained to Mrs. Fields's claim that she received the ineffective assistance of trial
counsel due to counsel's failure to timely move for a change of venue. Additionally, we
vacate and remand for further proceedings the part of the circuit court's order concerning
Mrs. Fields's claim that trial counsel rendered ineffective assistance when he failed to
- 31 -
investigate and challenge her pre-trial statement. The circuit court is instructed to make a
determination on the claim before the initiation of Mrs. Fields's new trial. We further
find the Commonwealth's claim that the circuit court erred in sua sponte granting a
hearing concerning Mrs. Fields's pre-trial statement to be moot. Finally, the remainder of
the Letcher Circuit Court's order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Margaret O'Donnell
Frankfort, Kentucky
Susan Roncarti Lenz
Frankfort, Kentucky
Kevin M. McNally
Frankfort, Kentucky
- 32 -
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