DAVID SANDERS V COMMONWEALTH OF KENTUCKY
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1999-SC-0115-MR ; 1999-SC-0195-MR ; 1999-SC-0395-MR
DAVID SANDERS
V
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
87-CR-18
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
This appeal is taken from an order of the Madison Circuit Court denying a RCr
11 .42 motion by Sanders and his motion pursuant to CR 59 .05. Sanders seeks relief
from his conviction for two capital murders and two robberies for which he received two
death sentences and two twenty-year sentences.
In 1987, Sanders was convicted of killing and robbing the proprietor of a
convenience store and a visitor who was in the store. Each victim was shot once in the
back of the head . At trial, insanity was the sole defense . In 1990, this Court affirmed
the conviction on direct appeal in Sanders v . Commonwealth , Ky ., 801 S .W.2d 665
(1990) . Sanders filed a petition for writ of certiorari in the United States Supreme Court
which was denied in Sanders v. Kentucky, 502 U .S . 831, 112 S .Ct. 107, 116 L .Ed .2d 76
(1991), and rehearing was subsequently denied in Sanders v. Kentucky, 502 U .S . 1000,
112 S.Ct. 623, 116 L.Ed.2d 645 (1991) . In 1993, he filed a RCr 11 .42 motion in the
circuit court which was denied by an order entered January 28, 1999, without a hearing .
In February 1999, Sanders filed a pro se notice of appeal and motion to suspend the
rules until appointment of counsel . Shortly thereafter, counsel for the Department of
Public Advocacy filed a CR 59 motion to reconsider . The attorney who filed the CR 59
motion also filed a notice of appeal from the January 1999 order denying RCr 11 .42
relief. The circuit judge denied the CR 59 .05 motion on March 9, 1999 . A notice of
appeal from this order was also filed . The three appeals in this case have been
consolidated in this opinion .
I . Standard of Review
We believe it is prudent to again set out the standard of review of claims raised
in a collateral attack pursuant to RCr 11 .42 . Such a motion is limited to issues that
were not and could not be raised on direct appeal . Sanborn v . Commonwealth , Ky .,
975 S .W.2d 905 (1998) . An issue raised and rejected on direct appeal may not be
relitigated in these proceedings by claiming it amounts to ineffective assistance of
counsel . Brown v . Commonwealth , Ky., 788 S .W.2d 500 (1990); Stanford v.
Commonwealth , Ky., 854 S .W.2d 742 (1993).
Even in a capital case, a RCr 11 .42 movant is not automatically entitled to an
evidentiary hearing . Stanford , supra . An evidentiary hearing is not required concerning
issues refuted by the record of the trial court. Stanford . Conclusionary allegations
which are not supported by specific facts do not justify an evidentiary hearing because
RCr 11 .42 does not require a hearing to serve the function of a discovery deposition .
Sanborn , supra .
Strickland v . Washington , 466 U .S . 668, 104 S.Ct . 2052, 80 L.Ed .2d 674 (1984),
upheld the decision of a state court not to conduct an evidentiary hearing on claims of
ineffective assistance of counsel . Strickland , supra , notes that the presumption that a
criminal judgment is final is at its strongest in collateral attacks on that judgment.
11 . The Flenning Report
The right to confrontation was not violated because defense counsel crossexamined Dr. Walker without restriction . Due process does not require the prosecutor
to disclose information already known by the defendant or counsel and available from a
third party .
Sanders contends that the prosecutor was constitutionally required to obtain Dr.
Flenning's report and provide it to his counsel pursuant to Brady v. Maryland , 373 U .S.
83, 83 S.Ct. 1194, 10 L .Ed .2d 215 (1963) . We cannot agree . Essentially, his argument
is that his attorney could have done a better job of arguing his insanity if he had
additional information contained in the Flenning report. In considering the report
together with all other reports involved, the conclusion by Dr. Flenning is not
inconsistent with Dr. Walker's testimony at trial .
Sanders never denied his involvement in the crime, but he claims that the report
supports his defense of insanity . Any evidence withheld must be favorable to the
accused and be material to either guilt or punishment. Brace, supra . Our review of the
Flenning report indicates that it is not exculpatory and it does not support the defense of
insanity . Here, the only question to consider as to whether the report is exculpatory is if
it supports the insanity defense . Original trial counsel had access to the report of Dr.
Walker in which she summarized the interview with Dr. Flenning . Because this report
did not support the defense of insanity and could actually damage Sanders, it was not
necessary to call the doctor as a witness .
Reliance by Sanders on Pennsylvania v. Ritchie , 480 U .S. 39, 107 S.Ct . 989, 94
L .Ed . 2d 40 (1987), is misplaced because that case involved a government
investigation of child abuse conducted by social workers employed by a Pennsylvania
agency. The U .S . Supreme Court held that the investigation file should be reviewed by
the trial court for potential exculpatory or impeachment information under Brady and
rejected the argument that only a review by defense counsel would be constitutionally
adequate. The investigators were not acting at the request of defense counsel and did
not submit a report for review by defense counsel .
Sanders has the burden of establishing that there is a reasonable probability that
the result of the trial would have been different if the allegedly withheld exculpatory
documents were disclosed to the defense . Strickler v. Greene , 527 U .S. 263, 119 S .Ct.
1936, 144 L.Ed.2d 286 (1999) . Claim of error must establish prejudice so as to
produce ineffective assistance of counsel . It is not enough for the defendant to show
that the error by counsel had some conceivable effect on the outcome of the
proceeding . Strickland .
Sanders argues that Strickland should not apply to his trial lawyer because that
counsel was subsequently disbarred in an unrelated matter after this trial . Kentucky
Bar Ass'n v. Kevin Charters , Ky ., 89-SC-148-KB . There is no persuasive authority
submitted by Sanders to presume that counsel was incompetent to try his criminal case .
Other courts have applied Strickland in similar cases after rejecting the per se
ineffectiveness argument. See United States v . Rondon , 204 F.3d 376 (2d Cir. 2000) ;
State v . McCroy, 613 N .W.2d 1 (Neb., 2000) . A reviewing court should consider the
overall performance of counsel throughout the case in order to determine whether the
acts or omissions overcome the presumption that counsel rendered reasonable
professional assistance . Cf. Strickland . A reasonable investigation is not the
investigation that the best criminal defense lawyer in the world, blessed not only with
unlimited time and resources but also with the inestimable benefit of hindsight would
conduct. Thomas v. Gilmore , 144 F.3d 513 (7th Cir. 1998) ; Cf. Baze v .
Commonwealth , Ky., 23 S.W.3d 619 (2000).
An evidentiary hearing is not automatically necessary in every case to ascertain
whether the performance of defense counsel was reasonable . Such an inquiry is
objective in nature and is presumed to be reasonable . Cf. Chandler v. United States ,
218 F .3d 1305 (11th Cir. 2000) .
The use of the Flenning report to cross-examine Dr . Walker, or by calling Dr.
Flenning as a witness would have resulted in a reinforcement of the argument by the
prosecutor about inconsistencies in Sanders' statements and illustrate that Sanders
repeatedly changed his version of various events as he was interviewed by different
evaluators . The circuit judge correctly rejected the complaints by Sanders about the
testimony of Dr. Walker and the report of Dr. Flenning .
Ill . Pretrial Statements
Sanders contends that his trial counsel was ineffective for failing to move to
suppress statements that he gave to police before trial . Trial counsel was not
ineffective because he failed to seek suppression of Sanders' pretrial statements . We
agree with the trial court that Sanders cannot establish prejudice connected with this
claim because he has not shown that a motion to suppress would have been
successful . On the contrary, his alleged assertions of a desire to stop further
questioning or to consult with an attorney do not even rise to the level of being
"equivocal ." His claim that his statements were involuntary due to his state of mind is
conclusory and unsupported . In addition, in making a decision on prejudice, the Court
should consider all the evidence presented against Sanders . Even if a motion to
suppress his statement had been made and sustained, considering the strength of the
other evidence presented against Sanders, the outcome of the trial would not have
been different .
IV. Inconsistent Statements
Trial counsel was not ineffective because of the repeated inconsistencies in
statements given by Sanders to police and KCPC staff. The mere fact that Sanders
asked to talk to police during the sixth and final interview does not support an inference
that the police were forcing him to speak against his will. Sanders testified at trial,
admitted his guilt and was certainly free to explain the statements he made to police if
they were a result of being coerced or intimidated by the police.
Trial counsel pursued a trial strategy consistent with the statements Sanders had
provided to police during his last interview, admitting to the criminal acts, but denying
responsibility by virtue of mental disassociative reaction . Trial counsel was not under a
duty to try to convince the jury that Sanders had lied to the police because of the
pressure he felt from the officers . Sanders never made such a claim until he was
interviewed years after the trial by mental health experts . Counsel is not ineffective
simply because his client disregards his advice and the client chooses to do so even
though what he says to those individuals undermines his defense posture . Cf. Baze ,
supra .
V. Dr. Cooke
Sanders alleges that he was denied effective assistance of counsel because his
private defense attorney relied on an insanity defense but failed to move for funds for
expert witnesses, or that he failed to withdraw once he realized Sanders was indigent
and that funds would be needed for the psychiatric exams . Sanders claims that
Attorney Charters, who had been hired by his father to replace a public defender, used
money earmarked for a mental health expert for his own fee . Sanders reasons that
because the circuit court failed to hold an evidentiary hearing he was denied the
opportunity to develop the underlying facts of this claim.
We conclude that defense counsel was not ineffective in obtaining the services
of a clinical psychologist, Dr. Cooke, free of charge, to serve as the defense mental
health expert . Defense counsel cross-examined the prosecution witness, Dr. Walker,
regarding disagreements with the testimony provided by Dr . Cooke. Thus, the
testimony by Dr. Cooke was intended to reduce the negative effect of the report
submitted by Dr. Walker of KCPC.
Ake v. Oklahoma , 470 U .S . 68, 105 S .Ct. 1087, 84 L .Ed .2d 53 (1985),
commented that "Psychiatry is not, however, an exact science, and psychiatrists
disagree widely and frequently on what constitutes mental illness, on the appropriate
diagnosis to be attached to given behavior and symptoms, on cure and treatment, and
on the likelihood of future dangerousness ." Sanders was sent on his own motion to
KCPC for a six-week psychiatric evaluation by a team of social workers, psychologists,
a psychiatrist and a neurologist . Ake, supra, does not hold that an indigent defendant
has a constitutional right to choose the psychiatrist or to receive funds to hire his own .
As noted in Crawford v . Commonwealth , Ky ., 824 S.W.2d 847 (1992), a defendant is
not entitled to an additional state provided examination or funds to hire additional
experts simply because the initial evaluation is contrary to his defense. The fact that an
additional evaluation might be beneficial to the defense does not add credibility to his
claim . The trial judge stated that Sanders submitted reports from a psychologist, a
psychiatrist and a Ph.D . These experts were retained in connection with a defense of
charges resulting from a 1986 shooting in Lincoln County . As correctly observed by the
trial judge, the reports and the testimony would have made no difference in the
outcome of the trial . The jury rejected the opinion offered by Dr. Cooke and there is no
reason to believe they would have accepted a similar opinion simply because it came
from a different defense expert . Dr. Cooke indicated that he was willing to testify that in
his opinion Sanders satisfied the legal standard for insanity . Thus, Sanders had access
to qualified mental health experts to establish his insanity defense . His complaints
about ineffectiveness are without merit.
Vi . Effective Cross-examination
Sanders complains that failing to obtain KCPC records in preparation for crossexamination of Dr. Walker was not a reasonable performance by defense counsel . We
must disagree because trial counsel effectively cross-examined Dr . Walker . As we
have mentioned before, this Court is not required to determine whether another counsel
would have handled the case differently or even better. We will not turn back the clock
and retry cases in an effort to second guess what might have been done . Cf. Dorton v.
Commonwealth , Ky., 433 S.W.2d 117 (1968) ; Penn v . Commonwealth , Ky., 427
S .W.2d 808 (1968) .
The RCr 11 .42 motion lists 17 points of ineffective assistance of counsel as it
concerns the cross-examination of Dr. Walker . In his brief to this Court, Sanders has
reduced that number to 15 points .
The records were not exculpatory and would not have created a reasonable
probability of a different trial result . None of the KCPC evaluation staff concluded that
Sanders was legally insane or lacked criminal responsibility . The conclusion by Dr.
Walker that Sanders was sane and responsible for his conduct is consistent with the
evaluation reports prepared by the KCPC employees .
VII. Juror Questioning
The fact that trial defense counsel did not question a juror who had a passing
acquaintance with the father of the victim is not sufficient to demonstrate that counsel
was ineffective . Sanders maintains that trial counsel was ineffective because he did not
question and did not move to strike a juror who was acquainted with the father of one of
the victims . Sanders presents no information indicating the bias which would have
been revealed through further questioning of the juror. We must conclude that this
allegation of bias on the part of the juror is merely speculative, and that it does not
establish any prejudice toward Sanders . The casual acquaintance was not the close
relationship needed to imply bias on the part of the juror as found in Marsch v .
Commonwealth , Ky., 743 S.W.2d 830 (1987) .
Vill . In Chambers Conference
Conducting a conference in chambers regarding the juror in the absence of
Sanders, did not violate either his due process right to be present at all critical stages of
the proceeding or his right to confront witnesses. He was not prejudiced by his
absence from the brief, three-minute conference . Sanders did not have a due process
right to attend in person . His attorney was present and there is nothing that Sanders
could have done by being present . His presence was not required to insure
fundamental fairness . His due process rights were not violated . Cf. Kentucky v. Stincer,
482 U .S . 730, 107 S .Ct. 2658, 96 L.Ed .2d 631 (1987) . The proceedings did not involve
any witness . There was no ineffective assistance of counsel .
IX . Failure to Repeat Voir Dire Questions
Sanders alleges that the failure of trial counsel to question potential jurors either
as a group or individually about their knowledge of the case was ineffective . He claims
that additional questioning would have produced information sufficient to support
striking jurors for cause . We disagree .
The decisions of counsel during voir dire are generally considered to be matters
of trial strategy . Hodge v. Commonwealth , Ky., 17 S .W.3d 824 (2000) . The trial judge
questioned jurors about their relationships to the victims and their families as well as
asking about exposure to pretrial publicity . Defense counsel did not have to repeat
such questions . The voir dire was conducted in three phases . In the first phase, the
trial judge questioned the panel ; next, the jurors were questioned individually in
chambers, and finally the prosecution and defense questioned the remaining potential
jurors as a group . There is nothing in this procedure which shows that the decisions of
the defense counsel were so ill chosen that they could affect the entire proceedings .
There was no ineffective assistance of counsel and there was no prejudice
demonstrated by Sanders .
X. Peremptory Challenges
Sanders claims that the failure of counsel to move that six jurors be stricken for
cause required the defense to use peremptory challenges to remove them. He claims
that the use of the peremptory challenges, rather than those for cause, resulted in the
constructive denial of peremptory challenges . We do not agree.
Trial counsel did seek to strike two of these jurors for cause, but the trial judge
refused to do so and that decision was affirmed on direct appeal. There was nothing
that would have supported a strike for cause . Sanders raised a number of issues
related to the jury selection in his direct appeal but was rejected in all respects .
Additional review does not reflect any ineffective assistance of counsel .
XI . Potential Insanity Strikes
Sanders argues that his defense counsel was ineffective for failing to move to
strike for cause four jurors based on their response to voir dire questions as to insanity
and alternately for failing to ask follow up questions of them . On direct appeal, Sanders
raised a number of unpreserved jury challenges. In this instance, the answer given by
the challenged jurors does not indicate that he was denied due process of law . The
four jurors involved indicated that they could follow the instructions of the trial judge on
insanity. Further voir dire examination was not necessary .
XII . Lack of Avowals/Bond
Sanders asserts that he was denied effective assistance because an avowal
should have been made regarding 1) a videotape taken of him at the jail shortly after
his arrest, and 2) his reasons for not seeking bond .
Sanders' private attorney filed a motion to admit a videotape interview, but the
trial judge reserved ruling and asked private counsel to get the tape for review prior to
trial . The trial judge was not able to review the tape because the public advocate
(Sanders' previous attorney) wanted a waiver of privilege signed by Sanders . The delay
in the ruling was a result of this desire to have a written waiver of the attorney/client
privilege . There is nothing in the record to indicate that the prerequisite of a waiver was
ever produced by Sanders . Moreover, this tape was not presented to the trial court at
the RCr 11 .42 proceedings . In the absence of the tape, there is nothing to complain
about related to ineffective assistance . In addition, Sanders has not met his burden of
establishing that the tape would have been admissible . The apparent purpose was to
show his state of mind . However, the only point in time in which his state of mind is
germaine is on the date of the crime, not subsequent thereto .
We find no authority permitting the admission of an unauthenticated tape of a
defendant making a self-serving statement and exhibiting self-serving conduct. See
McQueen v. Commonwealth , Ky., 948 S .W.2d 415 (1997) ; Sanborn v . Commonwealth ,
892 S .W .2d 542 (1995) .
The trial judge correctly ruled that the claim by Sanders concerning the bond
issue was subject to summary dismissal based on its failure to meet the standards of
RCr 11 .42(2) . Foley v . Commonwealth , Ky., 17 S .W.3d 878 (2000) .
XIII . Lack of Penalty Phase Preparation
Sanders alleges that his counsel did not prepare for the penalty phase until the
jury returned the verdict, leaving less than three days to prepare for the penalty phase .
He contends that apart from his own testimony which lasted less than 8 minutes,
testimony from witnesses presented by his counsel in the penalty phase only lasted 9
minutes and 46 seconds . Sanders also claims that counsel inadequately prepared him
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was not adequately prepared for his testimony . The circuit judge properly denied his
RCr 11 .42 request .
Sanders also complains that his trial counsel should have requested another
competency evaluation . The same claim was raised during his direct appeal . It cannot
be presented again at this time . Sanborn , supra .
XIV. Jail Employees and Psychologist
Sanders argues that his defense counsel was ineffective for not calling a
psychologist and two jail employees to testify about his mental state after his arrest .
Sanders did testify himself extensively about his emotional state and suicidal
tendencies after his arrest. Additional testimony from either the psychologist or the
jailers would have been cumulative . Cf. Hodge v . Commonwealth , Ky ., 17 S .W.3d 824
(2000) . The fact that defense counsel determined not to present such cumulative
testimony was not ineffective.
XV. Marital Privilege
Sanders argues that his counsel was ineffective for failing to advise his wife that
she could refuse to testify, and that he asked questions which opened the door to
damaging testimony . The wife had testified during the guilt phase. Sanders does not
offer anything to indicate that the wife was advised or not advised of the marital
privilege . The party invoking the marital privilege has the burden of proving its
applicability and Sanders has failed to do so .
Defense counsel was not ineffective for asking questions that allegedly opened
the door to testimony about two violent incidents in the marriage . Defense counsel
used the wife's testimony to positive advantage . She explained two violent incidents so
as to be consistent with the insanity defense. Sanders had previously raised the issue
-14-
about the violent incidents in his direct appeal. It cannot be reargued at this point. The
allegations presented by Sanders do not support the argument that the trial judge
should have conducted an evidentiary hearing about the privilege question . The
conduct of counsel was reasonable .
XVI . Failure of Continuance for Further Evaluation
The argument by Sanders that his defense counsel should have requested a
continuance in order to allow more time for a more thorough evaluation by Dr. Cooke
fails to present any grounds sufficient to justify such a continuance and does not
indicate what would have been gained by such a continuance . A review of the entire
trial indicates that defense counsel did not hesitate to seek a continuance when he
believed one was necessary . In the absence of a motion for a continuance, the
presumption must be that counsel did not think one was needed . Cf. Ma e v.
Commonwealth , Ky., 386 S .W.2d 731 (1965) . Sanders has not met his burden of
overcoming such a presumption . A review of the record indicates that the psychologist
had adequate time to interview and test Sanders, as well as to consider the entire
matter. There was no basis for requesting a continuance . RCr 9 .04; Taylor v.
Commonwealth , Ky., 545 S .W .2d 76 (1976) .
XVII . Change of Venue
The claim by Sanders of ineffective assistance of counsel in failing to file a
motion for change of venue, investigate pretrial publicity or seek an expert to support
the change of venue motion is without merit. This Court had already determined on
direct appeal that Sanders received a fair trial from an impartial jury. Sanders again did
not meet his burden to plead specific facts in order to establish an ineffective
assistance claim . He merely seeks to relitigate an issue that was disposed of on direct
appeal . There was no prejudice resulting from the conduct of defense counsel .
XVIII . Discovery Motion
A careful review of the record indicates that Sanders cannot properly establish
either unreasonable performance or prejudice with his claim that defense counsel was
ineffective for failure to file a formal discovery motion.
Sanders requests this Court to overrule two cases which hold that postconviction discovery is not required . Sanborn , supra ; Skagg,s v . Redford , Ky ., 844
S .W.2d 389 (1992).
The circuit court properly relied on the open discovery policy that was embodied
in a standard discovery order in the circuit court which requires the Commonwealth to
furnish a defense attorney with exculpatory evidence. The order also directs the
Commonwealth and all law enforcement officers to comply with all reasonable requests
for discovery and inspection . The absence of a formal discovery motion does not mean
that defense counsel did not informally request or receive discovery . The failure to
make an unnecessary motion is not unreasonable. The circuit court correctly noted that
the KCPC records were available to Sanders as well as the Commonwealth .
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the Penning report and the results
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were undertaken . There is no prejudice arising from the rulings of the circuit court.
This Court declines to reconsider any of the arguments concerning postconviction discovery . RCr 11 .42 does not authorize such proceedings and the cases of
Sanborn and Skaggs , supra , are appropriately decided .
XIX . Psychiatrist Hearsay
The argument by Sanders that his counsel was ineffective for not objecting to a
part of Dr. Walker's testimony as hearsay is without merit . This matter regarding
comments by the KCPC chaplain that Sanders expressed remorse only when words
were put into his mouth, was disposed of on direct appeal and cannot be relitigated at
this time. Sanborn .
XX . Presumption of Sanity Comments
Contention that defense counsel should have objected to the alleged comments
by the prosecutor on the presumption of sanity during closing argument was correctly
rejected on direct appeal. It cannot be re-presented . Sanborn . Moreover, there is an
absence of any allegation of prejudice .
XXI . Objection to Insanity Defense .
The allegation that defense counsel should have objected to the prosecutor's
cross-examination of Sanders relating to his insanity defense was rejected on direct
appeal . The circuit court correctly denied this claim pursuant to RCr 11 .42(2) because
it failed to satisfy the requirements of the rule regarding specific pleadings . In addition,
there is an absence of any allegation of prejudice .
XXII . Improper Comments
The claim that defense counsel should have objected to alleged improper
comments in the penalty phase closing argument did not satisfy the pleading
requirements of specificity set out in RCr 11 .42(2) and was thus subject to summary
dismissal . In addition there was no allegation of prejudice of any sort. This matter was
also raised on direct appeal and cannot be relitigated . Sanborn ,
XXIII . Reasonable Doubt
Sanders claims that defense counsel was ineffective for not objecting when the
prosecutor allegedly defined reasonable doubt during voir dire examination . This claim
was not pled with the specificity required by RCr 11 .42(2) and cannot be reconsidered
because it was originally reviewed on direct appeal and rejected . It does not raise a
question of prejudice as required by Strickland .
XXIV . Jury Selection
The claim that defense counsel should have objected to jury selection
procedures was not properly presented with the specificity required by RCr 11 .42(2)
and had previously been rejected on direct appeal.
XXV. Penalty Phase Instruction
The claim that defense counsel should have objected to the penalty phase
instruction is one that could have been raised on direct appeal . As an unpreserved
claim, it was reviewed and rejected by the court on direct appeal; it cannot be
considered again . In addition, this Court has repeatedly rejected the argument that the
jury must be told that its findings on mitigation need not be unanimous . Bowling v.
Commonwealth , Ky ., 873 S .W.2d 175 (1993) . There is no probability that a differently
worded instruction on mitigation would have resulted in any difference in outcome . It
was not unreasonable for defense counsel not to object.
XXVI . "Recommended"
The claim that defense counsel should have objected to the use of the word
"recommended" in the jury instructions by the trial court was considered and rejected on
direct appeal . It cannot be reconsidered at this time . This Court originally determined
that apart from the mere use of the word recommend, there was no emphasis or
implication tending to diminish the responsibility of the jury.
XXVII . Failure to Emphasize
The failure of defense counsel to emphasize certain mitigating evidence in his
closing argument during the penalty phase did not render his trial performance
constitutionally deficient or unreasonable . As stated in Strickland , this Court is not
going to second-guess counsel's choices of which things to stress and which avenues
not to pursue as vigorously.
Sanders has not established any probability that the jury would have decided the
case differently if counsel had argued the points raised now by Sanders . Sanders has
failed to demonstrate any deficient performance by defense counsel .
XXVIII . Evidentiary Hearing
The circuit court correctly concluded that Sanders was not entitled to an
evidentiary hearing to develop the factual basis for his RCr 11 .42 claims . He did not
present any circumstances which required an evidentiary hearing and the authorities he
cites in this respect are unpersuasive . It has been previously held that a motion for
ineffective assistance must set out all the facts necessary to establish the existence of
a constitutional violation and the court will not presume facts omitted from the motion to
establish the existence of any violation . Sk~ agg_s, supra . Even the federal courts do not
conduct an evidentiary hearing in death penalty cases when presented with nothing
other than conclusionary statements regarding ineffective assistance . Barnard v .
Collins , 958 F .2d 634 (6th Cir . 1992) . Ineffective assistance of counsel claims are
reviewed under a standard of objective reasonableness and here, as in many other
cases, the reasonableness of the performance of defense counsel can easily be
determined from the trial record without an evidentiary hearing .
XXIX . Discovery
Sanders was not entitled to an evidentiary hearing, his discovery claims are not
properly preserved and post-conviction discovery is not required by either the state or
federal constitution . It was the failure of Sanders to comply with the requirements of the
rule that resulted in the denial of his motions without hearing . His argument relating to
discovery is not preserved, and he did not move for discovery during the course of his
RCr 11 .42 proceedings . RCr 9.22. This Court has repeatedly held that post-conviction
discovery is not authorized . See Foley v . Commonwealth , supra . Restrictions imposed
by this Court on collateral attack motions and proceedings pursuant to RCr 11 .42 do
not violate the constitutional prohibitions upon suspending the writ of habeas corpus .
Similar arguments have been rejected by this Court and by federal courts . See
Freeman v. Paae , 208 F.3d 572 (7th Cir. 2000) ; Commonwealth v . Marcum , Ky., 873
S .W.2d 207 (1994) ; Eubank v . State, 949 P .2d 1068 (Idaho App. 1997) .
XXX. Relitigation
There is simply no federal constitutional right to relitigate issues raised on direct
appeal in a collateral attack proceeding such as RCr 11 .42. The standards adopted for
review of unpreserved errors in this case on direct appeal are not contrary to Strickland .
The standard of review for unpreserved errors has been consistently applied in
appropriate circumstances by this Court in reviewing subsequent death penalty cases .
See e .g . Mills v. Commonwealth , Ky., 996 S.W.2d 473 (1999) .
The decision of the Madison Circuit Court denying the RCr 11 .42 motion by
Sanders and his motion pursuant to CR 59 .05 is affirmed .
-20-
Lambert, C .J ., Cooper, Graves and Johnstone, JJ ., concur.
dissents by separate opinion joined by Keller, J .
COUNSEL FOR APPELLANT :
Elizabeth R. Stovall
Susan M .J . Martin
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Albert B. Chandler III
Attorney General
Connie V. Malone
Assistant Attorney General
Ian G. Sonego
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 30501-8204
Stumbo, J .,
RENDERED : JUNE 13, 2002
TO BE PUBLISHED
#uVrtme Tourt of Wentuckg
1999-SC-0115-MR ; 1999-SC-0195-MR ; 1999-SC-0395-MR
APPELLANT
DAVID SANDERS
V.
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
NO . 87-CR-18
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent because of the failure to conduct an evidentiary
hearing on three of the issues discussed herein . I believe that there should have been
an evidentiary hearing held to inquire into : the allegation that trial counsel failed to
make any preparation for the penalty phase ; why trial counsel failed to call certain jail
employees and the psychologist who examined Appellant soon after his arrest to
provide evidence of his mental state ; and counsel's alleged failure to advise Appellant's
wife that she could escape testifying against him by asserting the marital privilege .
KRS 421 .210(1) . Therefore, I would reverse and remand for a hearing .
The need for an evidentiary hearing is vital in the examination of counsel's
performance during the penalty phase of the trial . At the conclusion of the guilt phase,
counsel advised the court that the mitigation testimony had already been presented .
The record establishes that the evidence presented by counsel during the penalty
phase lasted less than twenty minutes, including Appellant's own testimony . When the
closing argument of counsel is reviewed, we find that there was no reference made to
any testimony given during the guilt phase. Further, the argument that was made was
extremely abbreviated and failed to include any discussion of mitigation evidence such
as medical testimony that Appellant did indeed suffer from a personality disorder, that
he repressed anger and his feelings, and that, during his testimony, Appellant did
express remorse for his actions . An evidentiary hearing is necessary to determine
whether counsel's actions were strategic or incompetent .
The first psychologist to examine Appellant did so during Appellant's pretrial
incarceration when the jailer was concerned about Appellant's behavior . It was that
professional's opinion that Appellant was under severe emotional stress, was suicidal,
and was suffering from a serious psychiatric disorder, possibly of the dissociative
disorder type. Appellant complains of his counsel's failure to call this psychologist as a
witness to this condition as well as the failure to call two jail employees who witnessed
that behavior . What could be more important to a diminished capacity defense than
testimony from a trained mental health professional with access to the defendant
immediately after the crime, supported by testimony from witnesses who were charged
with Appellant's custody and welfare during incarceration? An evidentiary hearing is
necessary to determine whether counsel decided not to call these witnesses as a part
of trial strategy or out of incompetence .
The final issue that requires an evidentiary hearing is the question of whether
Appellant's wife was advised of her right to refuse to testify against him as provided by
KRS 421 .210(1), as the marital privilege was statutory at the time this matter was tried .
Mrs. Sanders' testimony described, among other things, telephone conversations
between herself and her husband, talks with the police, and the fact that she gave the
police a .22 pistol found in Appellant's truck . She also described an incident during
which Appellant held a pillow over her face . This testimony would not have been
admissible if Mrs. Sanders' invoked her right not to testify against her husband . There
is nothing in the record that indicates that she was aware of that right and therefore, an
evidentiary hearing should have been conducted . I would reverse and remand for
further proceedings .
Keller, J ., joins this dissent.
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