GRIGGS (IVAN PARKER) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002333-MR
IVAN PARKER GRIGGS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 05-CR-01162
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, COMBS, AND KELLER, JUDGES.
CAPERTON, JUDGE: The Appellant, Ivan Parker Griggs, appeals the November
30, 2009, order of the Fayette Circuit Court, denying his RCr 11.42 motion
following an evidentiary hearing. Having reviewed the record, the arguments of
the parties, and the applicable law, we affirm.
The relevant facts of this case were sufficiently summarized by the
Supreme Court of Kentucky as follows:
Griggs was charged with the June 12 or 13, 2005, shooting death of
Mary Salyers at her home in Lexington. According to the
Commonwealth's proof, Griggs and Salyers had a child together,
Elizabeth Nicole, and since her birth in 1989 they had remained in
contact in conjunction with sharing Nicole's custody. Although the
extra-marital affair had ended and Griggs's marriage had survived,
there was evidence tending to show that Griggs continued to be
jealous of Salyers's relationships with other men.
On June 12, 2005, Nicole was to begin a month-long summer
visitation with Griggs, but that evening when Griggs and his wife
went to Salyers's residence to pick her up, she was not present. Earlier
that day she had gone with a friend to a wedding and had not yet
returned home. Griggs expressed resentment at being thus
inconvenienced, and he was also angered, the Commonwealth alleged,
by the presence at Salyers's residence of a male friend, with whom,
Griggs believed, Salyers was romantically involved. A short time
later, Nicole was delivered to the Griggses' residence to begin her
visitation. Later that night, between about 11:00 pm and midnight,
Griggs confronted Salyers at her residence. He fought with her and
then killed her by shooting her twice in the head.
The next morning, Griggs drove Nicole to summer school, but at
about 10:00 am he called his wife at work and asked her to give
Nicole a ride home. Nicole and Mrs. Griggs arrived home not long
thereafter and found Griggs asleep. When they tried to rouse him he
was incoherent. Also, they found a container for Ambien, a
prescription sleep aid, somewhere near Griggs's bed. They allowed
him to sleep a while longer, but when they again tried to rouse him
and his incoherence persisted, his wife called the police. At about 1:00
pm an officer dispatched an ambulance to the Griggses' home.
In the meantime, Salyers's nephew had discovered Salyers's body. He
contacted emergency personnel and at about noon phoned the
Griggses' residence apparently to accuse Griggs of the murder. Nicole
and Mrs. Griggs learned of Salyers's death from him.
At about 2:00 pm Griggs was admitted to the emergency room at St.
Joseph's Hospital in Lexington. The nurse who cared for him testified
at the suppression hearing that from 2:00 until about 4:00 Griggs had
slept, primarily, but that she had periodically been able to rouse him
and had found him responsive and coherent albeit lethargic and not
aware of where he was. He was treated for a possible Ambien
overdose. At about 3:00 pm, the nurse became aware that a uniformed
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policeman had apparently been assigned to Griggs's room, and at
about 3:30 pm Griggs was taken for a CT scan and was accompanied
by two uniformed officers. At about 4:00 pm, she asked him what had
happened; and he told her that he had taken perhaps “two or three” ten
milligram Ambien pills, after which, he claimed, he could remember
nothing. When the nurse returned to Griggs's room at about 4:15 pm,
she found him being interviewed by three police detectives. She
testified that the interview continued for about the next half hour,
during which she was in and out of the room several times.
One of the interrogating officers, Detective Persley, also testified at
the suppression hearing. He stated that he had initially been
dispatched to look into a possible suicide attempt, but that en route to
the hospital he was informed of Salyers's murder and of Griggs and
Salyers's relationship. He met two other detectives at the hospital who
were also there to investigate Griggs's possible involvement in
Salyers's death. Detective Persley testified that the interview with
Griggs lasted thirty to forty-five minutes and was audio recorded.
Griggs, the detective stated, had seemed lethargic, like a person just
waking up in the morning. He had been oriented, however, had
understood who the detectives were, and had responded appropriately
and deliberately to all of their questions, including questions about the
waiver of his Miranda rights. After at first claiming that he could not
remember the previous night, Griggs confessed that he had returned to
Salyers's residence at about 11:00 pm, had fought with her, and had
killed her. He also admitted throwing away the gun, the murder
weapon, along the side of the road in or near Paris, Kentucky. About
fifteen minutes after the initial interview concluded, Detective Persley
returned to Griggs's room to ask some follow-up questions. He again
advised Griggs of his Miranda rights, and at that point Griggs
requested an attorney. Approximately an hour-and-a-half or two hours
later, after visits from family members, his pastor, and a suicide
prevention counselor, Griggs was released from the hospital and was
formally arrested.
Thereafter, Griggs was indicted with one count of murder and one count of
tampering with physical evidence. On October 3, 2006, Griggs filed a motion to
suppress statements he made to police. An evidentiary hearing was held on that
motion on October 5, 2006, after which the motion was overruled. Griggs was
subsequently tried from October 9-11, 2006. Griggs was ultimately convicted of
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murder and tampering with physical evidence on October 13, 2006, and was
sentenced to a total of 31 years. On direct appeal, the Supreme Court of Kentucky
affirmed the judgment of the trial court. See Griggs v. Commonwealth, 2008 WL
1851080 (Ky. 2008).
Subsequently, on October 20, 2008, Griggs filed a pro se RCr 11.42
motion. An evidentiary hearing was held on the motion on October 29, 2009.
During the course of the hearing, Griggs testified on his own behalf, along with his
ex-wife, Deborah and two of his daughters. In addition, Malaby Byrd (a member
of his church), and Gene Lewter (his trial counsel) also testified. During the
course of the hearing, Griggs claimed that he never discussed trial strategy with his
trial counsel, nor did they discuss evidence or witnesses. He testified that he was
an ordained deacon of his church and had many friends there, but asserts that trial
counsel did not ask him about his friends or social background. Griggs stated that
he did not consult with a mitigation specialist.
Griggs’s ex-wife, Deborah, also testified, and stated that Griggs had
an upstanding reputation in the church community. Deborah stated that Griggs’s
trial counsel did not contact her prior to trial. On cross-examination, she stated
that at the beginning of their marriage, Griggs was not always pleasant to her, and
that she had been slapped by Griggs. Griggs’s daughters also testified that they
had not been contacted by trial counsel, and stated that Griggs was a good father.
Malaby Byrd testified that Griggs was respected at his church.
However, on cross-examination, Byrd testified that she did not know Griggs had
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an extramarital affair, did not know that Salyers had previously filed an EPO
against Griggs, and did not know that Griggs had been physically abusive to his
ex-wife, Deborah.
Finally, Gene Lewter, Griggs’s trial counsel, testified during the course
of the evidentiary hearing. He stated that his trial strategy in this case was an
extreme emotional disturbance defense, and that he would try to use this defense to
obtain a conviction for manslaughter in the first degree rather than for murder.
Lewter explained that he interviewed Griggs about the facts of the case, and that he
talked to Griggs about possible witnesses. Lewter stated that he did not conduct an
investigation because there was nothing to investigate. He explained that he did
not interview Griggs’s ex-wife, Deborah, because she was a possible witness for
the Commonwealth and he was afraid of what she might say. Specifically, he
explained that he was afraid that Deborah would testify that Griggs had previously
assaulted her.
With respect to mitigation during the penalty phase, Lewter testified
that he recalled some difficulty with Griggs’s family concerning property and
custody of a child. He did not recall Griggs identifying anyone who would make a
good witness, and stated that he left it up to Griggs to inform him of any possible
mitigation witnesses. Lewter confirmed that he did not interview any mitigation
witnesses.
Upon questioning by the court, Lewter explained that if character
witnesses had been called on Griggs’s behalf, then the door would have been
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opened to the introduction of evidence relating to the contents of the EPO filed
against Griggs by Salyers, as well as for evidence concerning his domestic
violence toward his ex-wife. Lewter explained that there was no mitigation
evidence that could have avoided that potential pitfall. He also explained that
extreme emotional disturbance is a spur-of- the- moment defense, and that
accordingly, it did not matter whether or not Griggs was a “good guy,” because as
a matter of strategy the jury’s focus is on what happened in the moment that the
extreme emotional disturbance was triggered.
Following the evidentiary hearing, the trial court entered an order
denying the motion on November 30, 2009. It is from that order that Griggs
appeals to this Court.
In reviewing the issues raised by Griggs on appeal, we note that in
order to prevail on an ineffective assistance of counsel claim, a movant must show
that his counsel's performance was so deficient that, but for the deficiency, the
outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The standard for assessing counsel's
performance is whether the alleged acts or omissions were outside the wide range
of prevailing professional norms based on an objective standard of reasonableness.
Id. at 688-89, 104 S.Ct. at 2065. A court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance.
Id. The defendant bears the burden of identifying specific acts or omissions alleged
to constitute deficient performance. Id. at 690, 104 S.Ct. at 2066.
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In measuring prejudice, the relevant inquiry is whether “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.
The burden is on the movant to overcome a strong presumption that counsel's
performance was constitutionally sufficient. Id. at 689, 104 S.Ct. at 2065;
Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). When an evidentiary
hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to
make findings on the material issues of fact, which we review under a clearly
erroneous standard. Kentucky Rule(s) of Civil Procedure (“CR”) 52.01.
As his first basis for appeal, Griggs argues that counsel was
ineffective for failing to interview and produce mitigating witnesses during the
penalty phase of the trial. Griggs argues that during the course of the evidentiary
hearing, the testimony of four potential witnesses made it clear that there were
witnesses available at the time of trial who could have offered valuable testimony
in mitigation of punishment, and who would have testified that he was highly
involved in his church, was an ordained deacon and volunteer, and was wellknown and respected in the community.1 Griggs asserts that these witnesses would
1
These included Griggs’s daughter, Angela Allen (whom he asserts would have recounted that
her father was always helping at church and that the members spoke highly of him); his friend,
Malaby Byrd (whom he asserts would have testified that she has known Griggs for 30-40 years
and that he was a friendly, likeable, respected man who was very involved at church); Griggs’s
former wife Deborah (who he asserts would have testified that Griggs was a loving and
supportive father); and Griggs’s daughter, Deneen Griggs, who would have testified to the same.
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have been located with the most basic of investigations, had counsel chosen to
conduct one.
Moreover, Griggs asserts that counsel’s failure to present this
evidence was not a strategic choice. In support of that assertion, Griggs directs this
Court’s attention to counsel’s testimony during the course of the evidentiary
hearing, as referenced previously herein.
Griggs also directs this Court’s attention to the fact that counsel only
cited the EPO taken out against him by Salyers as a reason for not presenting
mitigating evidence after specifically being questioned on this issue by the court,
and that accordingly, this was post-hoc-rationalization and not a strategy.
Regardless, Griggs argues that the testimony which his mitigation witnesses would
have provided had nothing to do with his propensity for peacefulness or violence,
and that accordingly, the Commonwealth could not have introduced evidence of
his prior acts of domestic violence on rebuttal.
In response, the Commonwealth acknowledges that counsel has a duty
to make reasonable investigations, or to make a reasonable decision that makes
particular investigations unnecessary. However, the Commonwealth further argues
that in assessing the reasonableness of an attorney’s investigation, the court must
consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate
further. The Commonwealth asserts that in the matter sub judice, Griggs’s trial
counsel was concerned that mitigation witnesses would have opened the door to
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bad acts evidence not admitted at trial. Thus, the Commonwealth argues that
counsel’s performance was not deficient because it was part of a reasonable trial
strategy, and that accordingly, Grigg’s fails to prove the first portion of the twoprong test set forth in Strickland.
The Commonwealth next argues that Griggs failed to satisfy the
second prong of Strickland, as he was not prejudiced by Lewter’s decision not to
interview or present mitigation witnesses during the penalty phase of the trial. The
Commonwealth asserts that at the time of the penalty phase, the jury had already
determined that Griggs murdered Salyers by shooting her, and that further, had
Griggs introduced evidence of his good character during the penalty phase it would
have been rebutted by evidence of his bad character. Thus, the Commonwealth
argues that there is no reasonable probability that the outcome of his penalty phase
would have been different had counsel interviewed and presented mitigation
witnesses.
In addressing this issue, we note that our Kentucky Supreme Court
adopted the following balancing test in Hodge v. Commonwealth, 68 S.W.3d 338,
334 (Ky. 2001), to determine if counsel adopted a reasonable investigation:
An attorney has a duty to conduct a reasonable investigation,
including an investigation of the defendant’s background, for possible
mitigating evidence. In evaluating whether counsel has discharged
this duty to investigate, develop, and present mitigating evidence, we
follow a three-part analysis. First, it must be determined whether a
reasonable investigation should have uncovered such mitigating
evidence. If so, then a determination must be made whether the
failure to put this evidence before the jury was a tactical choice by
trial counsel. If so, such a choice must be given a strong presumption
of correctness, and the inquiry is generally at an end. If the choice
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was not tactical, and the performance was deficient, then it must be
determined whether there is a reasonable probability that, but for
counsel’s unprofessional errors, the result would have been different.
Id. (citing Porter v. Singletary, 14 F.3d 554, 557 (11th Cir. 1994), cert. denied, 513
U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435). Therefore, the failure to present
mitigating witnesses is not indicative of deficient performance if that decision is
the result of reasonable trial strategy. Foley v. Commonwealth, 17 S.W.3d 878,
885 (Ky. 2000)(overruled on other grounds by Stopher v. Conliffe, 170 S.W.3d
307 (Ky. 2005)(overruled on other grounds by Hodge v. Coleman, 244 S.W.3d 102
(Ky. 2008)).
We also note that decisions relating to witness selection are normally
left to counsel’s judgment, which will not be second-guessed by hindsight. See
Foley, supra. Thus, the movant arguing ineffective assistance of counsel has the
burden of stating what the testimony of the witness would have been, and how this
testimony would have changed the reliability of the verdict. Foley, 17 S.W.3d at
878. As our United States Supreme Court has ruled, the movant must overcome
the strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. See
Strickland, supra, at 690.
Having reviewed the record, including counsel’s testimony during the
course of the evidentiary hearing, we are simply not persuaded that counsel’s
decision not to call mitigation witnesses fell below an objective standard of
reasonableness. While counsel may not have specifically addressed the EPO issue
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until questioned by the court, counsel was no doubt aware of the EPO, as well as
Griggs’s history of domestic violence. Indeed, counsel specifically testified that he
did not call Deborah Griggs to testify because he was concerned as to possible
testimony she might provide concerning domestic violence. We do not agree with
Griggs that this was only a post-hoc-rationalization simply because counsel
explained the ramifications of calling such witnesses in response to a question by
the court.
Moreover, we cannot find that a significant likelihood exists that the
outcome of Griggs’s trial would have been different had these witnesses been
called. Clearly, Griggs has a history that is significant for multiple episodes of
domestic violence. The Commonwealth was aware of this evidence, and would
certainly have utilized it in rebuttal had Griggs introduced evidence of good
character.2 As a result, we find that the trial court’s denial of Griggs’s RCr 11.42
motion as it pertained to this issue was supported by substantial evidence, and we
affirm.
As his second basis for appeal, Griggs argues that counsel failed to
effectively investigate and present an extreme emotional disturbance defense, and
that the trial court erred in finding that this was not ineffective assistance of
counsel. In support of this argument, Griggs asserts first that trial counsel should
have called his ex-wife, Deborah, to testify at trial. Griggs asserts that trial counsel
2
This was exemplified in the Commonwealth’s cross-examination of Malaby Byrd during the
course of the evidentiary hearing, who testified that she did not know Griggs had an extramarital
affair, did not know of his history of domestic abuse, and did not know that Salyers had
previously taken out an EPO against Griggs.
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did not call Deborah because he was afraid of potential testimony concerning prior
domestic violence in her marriage to Griggs and the contents of jail phone calls
between the two. Griggs nevertheless argues that counsel should have interviewed
Deborah, who would have allayed those fears, and moreover, that her testimony
would have provided a critical narrative of supporting facts for Griggs’s extreme
emotional disturbance defense, including various stressors in his life which led up
to and contributed to Griggs’s emotional state at the time of the shooting.
Further, Griggs argues that counsel’s closing argument at trial was
ineffective as he neglected to argue two key points of law relating to an extreme
emotional disturbance defense: (1) that the reasonableness of Griggs’s provocation
under the circumstances was to be judged as Griggs perceived the circumstances to
be; and (2) that there is no requirement for a definite timeframe between when the
extreme emotional disturbance is triggered and the time that the homicide occurs.
In addition, Griggs argues that rather than providing the jury with a theory as to
when the triggering event occurred, trial counsel told the jury that it was
unnecessary to know “exactly what set him off.”
Griggs asserts that throughout the closing argument trial counsel
discussed Griggs’s anger about Elizabeth Nicole not being at Salyers’s home when
he arrived to pick her up, but failed to articulate that the triggering event occurred
when Griggs felt that he was “set up” by Salyers so as to make him jealous.
Finally, Griggs asserts that counsel should also have explained in closing that even
if the jurors found that Griggs intentionally killed Salyers, they could still find that
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he was acting under the influence of extreme emotional disturbance which finding
would have resulted in a conviction for first-degree manslaughter instead of
murder.
In response, the Commonwealth argues first that Griggs should be
precluded from arguing this issue as an RCr 11.42 claim because it was disposed of
on direct appeal by the Kentucky Supreme Court when Griggs argued that the
Commonwealth failed to prove the absence of extreme emotional distress.3
Notwithstanding that argument, however, the Commonwealth also asserts that
Griggs’s arguments on this issue fail to satisfy either prong of Strickland.
Concerning Griggs’s assertions regarding closing arguments, the
Commonwealth argues that this is simply another attack on trial counsel’s strategy.
The Commonwealth notes that during closing, counsel used the “straw that broke
the camel’s back” idiom to explain how the accumulation of stressors in Griggs’s
life ultimately led to the murder. He also discussed the cause of Griggs’s anger
prior to the time of the murder, and argued that Griggs was acting under extreme
emotional disturbance at the time he committed the murder.
Having reviewed the record and applicable law, we are in agreement
with the Commonwealth that Griggs’s arguments concerning counsel’s closing
essentially amount to an attack on trial counsel’s strategy. The mere fact that the
3
Having reviewed the record, we are not persuaded that the argument presented before our Court
is the same as that addressed by the Supreme Court on direct appeal. A review of the record
reveals that the issue raised on direct appeal was whether the court erred in instructing the jury
that it could find Griggs guilty of murder because the Commonwealth failed to prove the absence
of extreme emotional disturbance. The issue presented herein is whether counsel was ineffective
in presenting the extreme emotional disturbance offense. As these are different issues, we do not
believe that Griggs is precluded from making arguments based on them in his appeal of the RCr
11.42 motion.
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jury did not find that Griggs acted under extreme emotional disturbance does not
mean that counsel’s closing argument was deficient. It is well-settled that judicial
scrutiny of counsel’s performance must be highly deferential, and it is not the
function of a reviewing court to usurp or second-guess the strategy of trial counsel.
Strickland, 466 U.S. at 689.
In the matter sub judice, Griggs’s trial counsel litigated the issue of
extreme emotional disturbance, moved for a directed verdict on the grounds that
extreme emotional disturbance had not been disproved by the Commonwealth, and
addressed that defense in closing arguments before the jury. Indeed, enough
evidence was presented by Griggs’s counsel to warrant an instruction on extreme
emotional disturbance, which further illustrates counsel’s effective performance.
As our courts have held, an extreme emotional disturbance instruction must be
supported by definite, non-speculative evidence. Holland v. Commonwealth, 114
S.W.3d 792, 807 (Ky. 2003)(quoting Hudson v. Commonwealth, 979 S.W.2d 106,
109 (Ky. 1998)). In the matter sub judice, even without testimony from Griggs
himself, counsel produced enough evidence to warrant such an instruction.
Accordingly, we cannot find that counsel’s performance fell below an objective
standard of reasonableness, and we decline to reverse on this basis.
Wherefore, for the foregoing reasons, we hereby affirm the November
30, 2009, order of the Fayette Circuit Court, denying Griggs’s RCr 11.42 motion
following an evidentiary hearing, the Honorable Ernesto Scorsone, presiding.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Kate Dittmeier Holm
La Grange, Kentucky
Jack Conway
Attorney General of Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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