COMMONWEALTH OF KENTUCKY V. CHARLES BUSSELL
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RENDERED : JUNE 21, 2007
MODIFIED : AUGUST 30, 2007
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TO BE PUBLISHED
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2006-SC-000001-MR
COMMONWEALTH OF KENTUCKY
V.
o.
APFTELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE CHARLES W . BOTELER, JR ., JUDGE
91-CR-000111
CHARLES BUSSELL
APPELLEE
OPINION OF THE COURT
AFFIRMING
The Commonwealth of Kentucky appeals from an order of the Christian Circuit
Court vacating Appellee's, Charles Bussell's, death sentence and granting him a new
trial . This case has been before this Court on several previous occasions, and thus a
detailed discussion of the facts is unnecessary, except as is necessary to articulate the
issues on this appeal .
In 1991, Bussell was convicted of the December 1, 1990, robbery and murder of
Sue Lail . He was sentenced to death and his conviction and sentence were affirmed
upon direct appeal to this Court.' Thereafter, we rejected Bussell's attempts 2 to delay
' Bussell v. Commonwealth , 882 S.W .2d 111 (Ky. 1994), cert. denied, 513 U .S .
1174, 115 S .Ct. 1154, 130 L.Ed .2d 1111 (1995), rehearing denied , 514 U.S . 1079, 115
S .Ct.. 1729, 131 L.Ed .2d 586 (1995).
2 Appellee's attorneys filed a "notice of intent" to file an RCr 11 .42 motion as well as
several motions to disqualify Judge White, the judge who had presided over the case,
the filing of an RCr 11 .42 motion in the face of the governor's death warrant.3 And, in
2004, this Court denied the Commonwealth's petition for a writ of prohibition in
Commonwealth v. Boteler.4
The matter before us began on March 26, 1996, when Bussell moved the
Christian Circuit Court for relief pursuant to RCr 11 .42, alleging numerous Brady-5
violations and alleging ineffective assistance of counsel . Judge Charles Boteler was
assigned as Special Judge . After various legal maneuvers, Judge Boteler granted an
evidentiary hearing, which lasted nine days over the course of more than a year and
which involved the testimony of sixty-four witnesses. On December 28, 2005, Judge
Boteler granted Bussell a new trial. It is from this order that the Commonwealth
appeals, arguing that the trial court committed several errors, viz., (1) that it erred in
granting a new trial based on alleged Brady violations, and (2) that it erred in finding that
Bussell was deprived of effective assistance of counsel during the penalty phase of his
trial.
I . Alleged Brace violations .
As a reviewing court, on this RCr 11 .42 appeal, we must defer to the findings of
fact and determinations of witness credibility made by the trial judge . Thus, unless the
trial court's findings of fact are clearly erroneous, those findings must stand .'
and a pre-filing request for "post-conviction discovery," which is not authorized under
our rules .
3 Bowling v. Commonwealth , 926 S .W.2d 667 (Ky. 1996) .
4 No. 2004-SC-0184-MR (April 22, 2004) (unpublished) .
5 Brady v. Maryland, 373 U .S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) .
6 Haight v. Commonwealth , 41 S.W .3d 436, 442 (Ky. 2001) (citin Sanborn v.
Commonwealth , 975 S.W.2d 905 (Ky. 1998); McQueen v. Commonwealth , 721 S.W.2d
694 (Ky. 1986) ; McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996)).
In Bradv v. Maryland , $ the United States Supreme Court held that "the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution ."9
Under the Bradv
doctrine, evidence is material "if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different ."1° This Court reviews de novo whether the particular material at issue falls
under Bra
.11 A "reasonable probability" may be defined as "a probability sufficient to
undermine confidence in the outcome .
The duty to disclose exculpatory evidence is applicable regardless of whether or
not there has been a request by the accused, 13 and the duty to disclose encompasses
impeachment as well as other exculpatory evidence .. Brady only applies to information
"which had been known to the prosecution but unknown to the defense . "15 With these
' Bowling v. Commonwealth , 80 S .W .3d 405 (Ky. 2002), cert. denied, 538 U.S . 931,
123 S.Ct. 1587, 155 L.Ed.2d 327 (2003).
8 373 U .S. 83.
9 .13radv, 373 U .S. at 87, 83 S.Ct. at 1196-97.
1°
Kyles v. Whitley, 514 U .S . 419, 433-34, 115 S .Ct. 1555, 1565-66, 131 L.Ed.2d 490
(1995) ; United States v. Bagley , 473 U.S. 667, 682, 105 S .Ct. 3375, 3383, 87 L.Ed.2d
481 (1985).
11 United States v. Corrado , 227 F.3d 528, 538 (6th Cir. 2000) .
12
Strickland v. Washington, 466 U .S. 668, 694,104 S.Ct. 2052, 2068, 80 L.Ed .2d
674 (1984).
13 Untied States v. Agurs , 427 U.S. 97,107, 96 S .Ct. 2392, 2397, 49 L.Ed .2d 342
(1976).
14 Bagley, 473 U.S . at 676, 105 S .Ct. at 3380 .
15 Id. at 103, 96 S.Ct. at 2397.
guidelines in mind, we will examine each argument propounded by Appellant, the
Commonwealth, disputing the existence of Brady violations .
In his RCr 11 .42 motion, Bussell alleged that the Commonwealth failed to turn
over to his trial counsel exculpatory evidence in violation of Brady. Specifically, Bussell
claimed the Commonwealth failed to disclose numerous police reports in violation of
Brady and the trial court's discovery order entered September 6, 1991 . This order
required the Commonwealth to disclose all police reports and statements of witnesses
expected to testify. In its order granting Bussell a new trial, the circuit court found that
the undisclosed police reports would have suggested the possibility of an alternate
suspect in Mrs. Lail's death .
Six of the nine police reports found to have been undisclosed to the defense
were compiled by Detective Mary Martins of the Hopkinsville Police Department. The
reports disclosed the following information : (1) report on December 4, 1990, that there
were new pry marks on the outside and inner portions of the door leading to screen
portion of Lail's home as well as a broken lock on the door, signs suggesting forced
entry; (2) report on December 5, 1990, indicating a plaster cast of a tire print found in
Lail's yard ; (3) report on December 11, 1990, memorializing Martins' conversation with
an employee of a gas company who saw Lail the day before she disappeared and
indicating that Lail's gas bill was paid December 3, 1990, two days after she
disappeared ; (4) report on January 19, 1991, based on statements from a confidential
informant, and suggesting two other possible suspects in Lail's death ; (5) report on
January 22, 1991, reflecting a conversation Martins had with Don Bilyeau, a store owner
in the area, in which Bilyeau reported that the black male he had seen in the area of
Lail's house on the day of her disappearance had just been in his store ; and (6) report
on February 24, 1991, reflecting a conversation Martins had with Brian Cunningham, an
employee of a local radio station who advised Martins that he checked a transmitter
daily near the place where Lail's body was found.
The three remaining police reports discussed by the circuit court contained the
following: (1) December 5, 1990, report that Lail had just had new carpet installed and,
as a result, her front door would not close, suggesting easy entry with minimal force; (2)
December 8, 1990, report where Don Bilyeau stated that he saw a black male or
someone other than Bussell walking up Lail's driveway or her neighbor's driveway at
about 4 :00 p.m. on or about the day Lail disappeared ; and (3) January 3, 1991, report in
which Christian County Sheriff's deputy Bobby Dale Williams stated that a confidential
informant had reported seeing a red GMC pickup backed up to Lail's home between
11 :00 p.m. and 11 :30 p.m. near the night of December 1, 1990.
At the RCr 11 .42 hearing, the court heard testimony from circuit judge John
Atkins, who at the time of Bussell's trial was the prosecutor who tried the case. The
court also heard the testimony of Rob Embry, first-chair defense trial counsel, and
Delissa Milburn, second-chair defense trial counsel.
Judge Atkins testified that, after the passage of thirteen years, he had no specific
recollection of whether the police failed to provide him with any particular items of
discovery or exculpatory evidence during his prosecution of Bussell or whether he had
failed to turn over any items of discovery or exculpatory evidence . Embry, a convicted
felon by the time of Bussell's evidentiary hearing on his RCr 11 .42 motion, testified that
he did not remember seeing or receiving several of the police reports during his defense
of Bussell . However, Milburn, who assisted Embry in Bussell's defense, testified that at
least after the September 6, 1991, discovery order was entered, there was no violation
of the discovery rules or the discovery order and that to her knowledge the defense had
received "everything [they] had asked for' by the day the trial began on November 18,
1991 .
The Commonwealth contends that the trial court erred in accepting the testimony
of a convicted felon, Embry, over that of Judge Atkins, and that the trial court completely
disregarded Milburn's testimony on the matter. While the Commonwealth is correct that
the burden is on the defendant to prove that evidence favorable to him was withheld
and to show that there is a reasonable probability the result of the trial would have been
different had the exculpatory evidence been disclosed to the defense, 16 we cannot
agree that Judge Boteler erred in this case . We are ever mindful that the trial court is in
the best position to determine the credibility of witnesses and this Court should not
second-guess credibility determinations ." The circuit court found that the evidence
presented at the RCr 11 .42 hearing "clearly establishes that more likely than not these
nine reports were never disclosed to [Bussell's] defense team." This finding is
conclusive.
Whether the evidence withheld was material and met the standard of reasonable
probability of a different result at trial, we rely on Kyles v. Whitley18 as follows:
While the definition of Bagle 19 materiality in terms of the
cumulative effect of suppression must accordingly be seen
16
Sa nders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002) .
17 See Haight, supra .
18 514 U .S. 419.
19Bagley , 473 U .S. 667 .
as leaving the government with a degree of discretion, it
must also be understood as imposing a corresponding
burden . . . . [T]he prosecution, which alone can know what is
undisclosed, must be assigned the consequent responsibility
to gauge the likely net effect of all such evidence and make
disclosure when the point of "reasonable probability" is
reached . This in turn means that the individual prosecutor
has a duty to learn of any favorable evidence known to the
others acting on the government's behalf in the case,
including the police . But whether the prosecutor succeeds or
fails in meeting this obligation (whether, that is, a failure to
disclose is in good faith or bad faith, see Brady, 373 U.S. at
87, 83 S.Ct. at 1196-1197), the prosecution's responsibility
for failing to disclose known, favorable evidence rising to a
material level of importance is inescapable .
Under the totality of the circumstances as found by the trial court, we agree that those
reports known to the prosecution and withheld for whatever reason were material to
Bussell's guilt. Moreover, while not every police report discussed during the evidentiary
hearing was exculpatory or was otherwise required to be disclosed, the cumulative
effect of the information contained in those reports certainly suggests a reasonable
probability that had the information been disclosed, the outcome of Bussell's trial would
have been different . And, under the rationale set forth in Kyles , supra, the prosecutor in
this case was under a concomitant "duty to learn of any favorable evidence known to . . .
the police." Id.
Furthermore, we disagree with the Commonwealth's assertion that "'alternative
suspect' information is not exculpatory unless it eliminates the defendant as the culprit."
1n Beaty v. Commonwealth, this Court held that "a defendant `has the right to
introduce evidence that another person committed the offense with which he is
2°
Kyles, 514 U .S . at 437-38, 115 S .Ct. at 1567-68 (emphasis added) .
2'
125 S.W .3d 196, 207 (Ky. 2003) (uotin Eldred v. Commonwealth , 906 S.W.2d
694, 705 (Ky. 1994)) .
.
charged,"' and that this right may be infringed only where the defense theory is
unsupported or far-fetched, as this may confuse or mislead the jury .22 Additionally, the
test set forth in Bradv requires only that the court find the undisclosed evidence to be
material to the defendant's guilt or punishment . Thus, exculpatory evidence must only
meet the requirement established for "materiality" - that is, there must be a "reasonable
probability" that had the evidence been disclosed to the defendant, the outcome of the
trial would have been different . 24
The court held that the undisclosed reports were material and that "the
information contained in these reports are favorable to [Bussell] pursuant to .Brady ."
Thus it concluded that the undisclosed reports undermined confidence in the outcome
of the trial, denying Bussell's right to a fair trial. The court considered the reports as a
collective pursuant to Kyles , supra, and found that the reports "could have been used to
develop a rational defense, which [Bussell] failed to present in November of 1991 ." We
perceive no error in the trial court's ruling with regard to its finding that a Bradv violation
occurred in Bussell's case, and we note that this ruling does not imply bad faith on the
part of the Commonwealth in failing to disclose the reports . Moreover, the Bradv
violation in this case was compounded by the ineffective assistance of Bussell's trial
counsel .
22
23
24
See id. ; see also Commonwealth v. Maddox, 955 S .W.2d 718, 721 (Ky. 1997) .
Brad v, 373 U.S. at 87, 83 S.Ct. at 1196-97.
Kyles, 514 U .S. at 433-34,115 S.Ct. at 1565-66 . See also Metcalf v.
Commonwealth, 158 S.W.3d 740, 746 (Ky. 2005) .
21
See Brady, 373 U.S. at 88, 83 S .Ct. at 1197 (holding that suppression of evidence
favorable to the accused upon request violates due process, irrespective of the good
faith or bad faith of the prosecution) .
11.
Allegations of ineffective assistance of counsel.
The standard by which we measure ineffective assistance of counsel is found
in Strickland v. Washin ton. A claim of ineffective assistance of counsel requires a
showing that counsel's performance "fell below an objective standard of
reasonableness ,,2' and was so prejudicial that the defendant has been deprived "of a
fair trial and reasonable result.,,
28
"Counsel is constitutionally ineffective only if
performance below professional standards caused the defendant to lose what he
otherwise would probably have won. »29
Thus, Bussell must show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different ." 3° The "reasonable probability" standard of Strickland is the same "reasonable
probability" standard used to prove a Bradv violation, viz . , a "probability sufficient to
undermine confidence in the outcome ." 31 However, the purpose of RCr 11 .42 is not to
provide an opportunity to conduct a fishing expedition for grievances, but rather to
"provide a forum for known grievances . ,32
26
466 U .S . 668, 104 S .Ct. 2052, 80 L. Ed.2d 674 (1984); accord Gall v.
Commonwealth , 702 S .W.2d 37 (Ky. 1985).
2'
Strickland , 466 U .S . at 688, 104 S .Ct. at 2064.
28 Haight v. Commonwealth , 41 S.W.3d 436, 441 (Ky. 2001) (citin
supra).
29
30
31
32
Strickland ,
United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) .
Strickland , 466 U.S. at 694, 104 S .Ct. at 2068.
Ha- ight, 41 S.W.3d at 441 (citin Gilliam v. Commonwealth , 652 S .W.2d 856, 858
(Ky. 1983)) .
There is "a strong presumption that counsel's conduct falls within a wide range of
reasonable professional assistance ."33 As a reviewing court, we "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 ."34 As a reviewing court, we must defer to the findings of fact and
determinations of witness credibility made by the trial judge .35 Moreover, in an RCr
11 .42 proceeding, the movant has the burden of establishing that he was "deprived of
some substantial right which would justify the extraordinary relief afforded by the postconviction proceeding .»36
In Bussell's RCr 11 .42 motion, he alleged that, during the guilt phase of his trial,
Embry failed to investigate and interview prospective witnesses and that he failed to
retain experts to refute scientific evidence proffered by the Commonwealth .
Additionally, Bussell argued in his RCr 11 .42 motion that defense counsel was
ineffective during the penalty phase of the trial because it put forth no mitigating
evidence despite an alleged abundance of such evidence .
Specifically, Bussell alleged that Embry failed to investigate and interview Kay
Bobbett and Robert Joiner . Bussell argued that had Embry investigated Joiner, he
would have discovered that joiner was mentally limited; that he was routinely taken
33
Id . at 442 (citin Strickland , supra).
34
Id . at 441-42 ; see also Morrow, supra ; Kimmelman v. Morrison , 477 U.S . 365, 106
S .Ct. 2574, 91 L. Ed.2d 305 (1986).
35
Id. (citin Sanborn v. Commonwealth , 975 S .W.2d 905 (Ky. 1998); McQueen v.
Commonwealth , 721 S .W .2d 694 (Ky. 1986) ; McQueen v. Scroggy , 99 F.3d 1302 (6th
Cir.1996)) .
36
Id . (citin
Dorton v. Commonwealth , 433 S.W.2d 117, 118 (Ky. 1968)) .
10
advantage of by neighbors and Bobbett ; that he told at least three different versions of
his story to Sgt. Over regarding the ring allegedly sold to him by Bussell ; that his trial
testimony directly contradicted his statements to the 911 operator and the police ; that
he had a bad reputation for truthfulness in the community ; and, that he had told Bobbett
the location of Lail's body before it was discovered . Bussell also argued that had Embry
investigated Bobbett, he would have discovered that she took advantage of Joiner and
also lied during her testimony that she had only received one other ring from Joiner
when in fact she had received two other rings from him before being given the ring
found to have been stolen from Lail.
Bussell also alleged that Embry failed to offer the statement of the victim's
daughter-in-law, Patty Lail, during the trial despite the fact that a copy of her statement
was found in the case file. Patty Lail's statement directly contradicted testimony offered
by her husband, Mrs. Lail's son Webb Lail, that Webb had seen the sapphire ring only a
week before Lail disappeared . Patty, however, stated to police that Lail had not shown
the ring to her or Webb at any time during the week before her disappearance . The
RCr. 11 .42 court commented that "[w]ith Patty Lail's statement coming to light, even had
Bussell stolen the ring, a credible argument that the ring was not stolen when Mrs . Lail
was killed could have been made . . . . It is disturbing and certainly pertinent to our
inquiry that defense counsel had a key piece of evidence within his possession, but his
investigation was so deficient he failed to review reasonably his own case file ."
Bussell further claimed that Embry failed to reasonably educate himself in the
various forensic fields and thus his future decisions to retain experts in these fields was
unreasonable . During Bussell's trial, the Commonwealth employed experts from the
Kentucky State Police (KSP) Crime Lab to testify concerning tree bark found near Lail's
body as well as on the damaged fender of Bussell's car, automobile paint found on the
tree, and hair and fiber analysis of samples taken from Bussell's car and Lail's home .
However, during the RCr 11 .42 hearing, Bussell presented testimony from two experts
in these same fields, Dr. Richard Saferstein and Dr. Terry Connors, which discredited
that offered by the Commonwealth's experts .
Doctor Saferstein, former Director of the New Jersey State Police Crime Lab,
testified that the analysis of the paint evidence by the Commonwealth's expert Laurence
King was "erroneous," was not "scientifically valid" and was a "false characterization" of
the evidence . King had testified during Bussell's trial that the samples of paint from
Bussell's car and from the damaged tree were identical regarding the top two layers of
paint. The circuit court found that "Mr. King's ultimate conclusion was contradicted by
the facts and by his own testimony."
Doctor Saferstein also disagreed with the hair and fiber analysis conducted by
Linda Winkle of the KSP Crime Lab. Of the four hairs found in Bussell's car that Winkle
reported were "similar" to Lail's hair, Dr. Saferstein testified that three of the
comparisons were not valid, finding that one was "not a valid comparison," that he
"fervently disagreed" with Winkle's comparison of another, and that the third was "of
limited value" given the fact that it was white in color, making it inappropriate for
comparison . Doctor Saferstein was unable to analyze the fourth hair because the
Hopkinsville Police Department had lost the hair. Additionally, Dr. Saferstein found
Winkle's approach to hair comparison "quite disturbing" and that there was no indication
in Winkle's notes that a comparison microscope had been used, which in his opinion
was a very basic notation he would have expected to see. In essence, Embry failed to
consult an expert in this area and failed to request Winkle's bench notes detailing her
analysis .
Finally, Dr. Saferstein testified that the analysis of fibers found in Bussell's car
and compared to fibers from the housecoat Lail was wearing when her body was
discovered was "preliminary at best." Lonnie Henson of the KSP Crime Lab had
testified that the fibers were the same . Saferstein disagreed, noting that Henson used a
stereoscopic microscope to conduct the comparison and 'that this was the wrong type of
microscope to use for fiber comparison, although Henson testified at Bussell's trial that
he used a comparison microscope . Embry, however, failed to address this contradiction
to limit Henson's credibility. Moreover, Dr. Saferstein's statement that Henson's
comparison was preliminary was based on the fact that Henson did not conduct
microspectrophotometry analysis of the fibers . Doctor Saferstein further testified that he
could have rendered these same opinions in 1991 .
Doctor Terry Connors testified at the hearing as an expert in tree and wood
identification and found that the samples were suitable for analysis, contrary to King's
testimony on behalf of the Commonwealth at Bussell's trial . Doctor Connors further
testified that he conducted the tests himself, using a method of analysis that has been
generally accepted in the scientific community since at least 1970, and concluded that
no one could say to any degree of certainty that the bark on Bussell's car came from the
tree located near where Lail's body was discovered . In fact, Dr. Connors noted that the
bark on Bussell's car could have come from any one of seven species of tree .
After reviewing the evidence, the circuit court found "that Embry's failure was a
result of his failure reasonably to investigate and interview prospective witnesses."
Moreover, it found that "[t]he scientific evidence presented in November 1991 was not
nearly as compelling as the jury was led to believe . . . . If Embry had educated himself,
his decision not to consult an independent expert could have potentially been described
as tactical. However, there is no evidence that Embry made such an attempt.
Therefore, his decision cannot be described as tactical ." Ultimately, the court found that
Bussell had established, in his RCr 11 .42 hearing, that "the Commonwealth's scientific
evidence could have been controverted."
In reviewing the record before us, we cannot say that the trial judge erred in
finding Bussell's trial defense counsel deficient such that he was deprived of a fair trial .
Embry's performance during both the guilt phase and penalty phase of Bussell's trial fell
below an objective standard of reasonableness . Moreover, we discern no error in the
trial court's view that but for Embry's deficiencies, the result of the trial would have been
different . Thus, both prongs of the test set forth in Strickland , supra, have been
satisfied. Bussell was deprived of effective assistance of counsel during the guilt phase
of his trial, entitling him to a new trial .
On this appeal, the Commonwealth argues that Bussell was effectively assisted
by counsel during the penalty phase of his trial, and thus is not entitled to a new penalty
phase. However, the circuit court's order specifically granted Bussell a new trial due to
ineffective assistance of counsel during both the guilt and penalty phases of the trial .
Although we have found Bussell's trial counsel ineffective in his representation during
the guilt phase of the trial, we will nonetheless address the Commonwealth's
arguments .
This Court has held that "defense counsel has an affirmative duty to make
reasonable investigation for mitigating evidence or to make a reasonable decision that
particular investigation is not necessary . ,37 In evaluating whether defense counsel has
discharged this duty, the court must determine "whether a reasonable investigation
should have uncovered such mitigating evidence."38 If so, then the court must
determine if the failure to present this evidence to the jury was a tactical decision by
defense counsel . If the decision was tactical, it is given "a strong presumption of
correctness, and the inquiry is generally at an end .,,40 However, if the decision was not
tactical, then the court must evaluate whether there was a reasonable probability that,
but for the deficiency, the result would have been different .
Specifically, the Commonwealth argues that both Embry and Milburn were
unable to locate mitigation witnesses to testify on Bussell's behalf. However, nineteen
mitigation witnesses testified over the course of the RCr 11 .42 hearing . Despite
Embry's and Milburn's claim that they did not know how many siblings Bussell had and
that they were unable to locate them, they had in their possession a Kentucky
Correctional Psychiatric Center report, which listed all eleven of Bussell's siblings and
the towns in which they lived. Furthermore, Embry testified at the RCr 11 .42 hearing
37
38
Hodge v. Commonwealth , 68 S.W.3d 338, 344 (Ky. 2001) .
39
40
Id. (emphasis in original) (citation omitted) .
Id.
41
Id .
Id .
15
that he never sought medical, school, employment or jail records . As the circuit court
found, "Embry was unable to show the jury that Bussell had a single positive character
trait because he had not taken the time to find if he possessed any."
The Commonwealth argues that Bussell was uncooperative in assisting his
defense team in mounting a proper mitigating case during Bussell's sentencing .
Although Embry testified at the hearing that Bussell was uncooperative and that the only
mitigation evidence they had was residual doubt, we have specifically held residual
doubt not to be a mitigating factor.42
Moreover, Bussell's uncooperativeness did not relieve Embry of his duty to
conduct a reasonable investigation for mitigating evidence . Initially, we note that
defense counsel is required to abide by the wishes of his or her client . 43 Furthermore,
counsel may not be constitutionally ineffective for failing to present mitigating evidence
at the penalty phase of the trial "in deference to the defendant's instructions to forego
presentation of such evidence ." 44 And, the decision not to conduct an investigation into
a defendant's background in search of mitigating evidence may be supported by
reasonable professional judgment.45 However, "the investigation must still be
reasonable under the totality of the circumstances . 4s
42
Thompson v . Commonwealth , 147 S.W.3d 22, 50 (Ky. 2004) .
SCR 3.130 - 1 .2(a) .
44 T
yler v. Mitchell , 416 F.3d 500, 503-04 (6th Cir. 2005), cent . denied, 498 U.S . 951,
111 S.Ct. 371, 112 L.Ed .2d 334 (1990) ; see also Foley v. Commonwealth , 17 S .W.3d
878 (Ky. 2000) (finding that counsel's decision not to call mitigation witnesses was a
result of discussions with the defendant and trial strategy), overruled in part on other
grounds , Stopher v. Conliffe , 170 S.W.3d 307 (Ky. 2005).
45
See Fretwell v. Norris , 133 F .3d 621, 627 (8th Cir. 1998) ; see also Fisher v.
Angelone, 163 F.3d .835 (4th Cir. 1998).
43
46
Stevens v. Zant, 968 F.2d 1076 (11th Cir. 1992) .
16
Based on the findings of the circuit court, there was not a reasonable
investigation into Bussell's background in an attempt to find mitigating evidence. Had
Embry made a reasonable investigation, he would have discovered the evidence
necessary to present a proper mitigation case during Bussell's sentencing .
Furthermore, such a decision cannot be described as merely tactical, as the record
does not support the conclusion that Embry or Milburn even attempted to ascertain
whether all possible mitigating evidence might actually assist their client . Moreover,
there is a reasonable probability that, but for Embry's deficient performance during the
penalty phase of the trial, the outcome would have been different.48 Quite simply,
Embry and Milburn failed to present a mitigation case. Thus, the circuit court did not err
in finding that Bussell was also deprived of effective assistance of counsel during the
penalty phase of his trial.4s
CONCLUSION
For the reasons set forth herein, we find no fault with the circuit court's
determination that the Commonwealth deprived Bussell of a fair trial by failing to
disclose evidence favorable to Bussell and material to his guilt or innocence in violation
47
Strickland, supra .
48
Id .
49 In part 2 of this opinion, we have recounted numerous instances of deficient
performance of trial counsel as found by the trial court. The trial of this case was in
November of 1991 . As reflected in this Court's opinion in KBA v. Embry,152 S.W.3d
869 (Ky. 2005), in and around that time, Embry was divorced from his wife, one of her
children died of a brain injury, and her other child went to prison . In November, 1991,
Embry's father died and he moved in with his mother as her caretaker. During this time,
he became addicted to crack cocaine . Ultimately, he was discharged from his
employment, and his mother died of neglect for which Embry was charged and pled
guilty to second-degree manslaughter. Ultimately, Embry was permanently disbarred .
17
of Brady, supra . Furthermore, this Court affirms the circuit court's determination that
Bussell was deprived of effective assistance of counsel during both the guilt and penalty
phases of his trial. On these grounds, Bussell shall have a new trial .
All sitting, except Scott, J. All concur.
COUNSEL FOR APPELLANT :
Susan M. J . Martin
Assistant Public Advocate
Department of Public Advocacy
100 Walnut Street
Owensboro, KY 42301
David Hare Harshaw, III
Assistant Public Advocate
Department of Public Advocacy
207 Parker Drive, Suite 1
LaGrange, KY 40031
Theodore S . Shouse
Assistant Public Advocate
Department of Public Advocacy
650 North Buckman Street, P. O. Box 6570
Shepherdsville, KY 40165
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
,Suprattt 01vurf of ~irufurkg
2006-SC-000001-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE CHARLES W . BOTELER, JR., JUDGE
91-CR-000111
APPELLEE
CHARLES BUSSELL
ORDER OF CORRECTION
The Opinion of the Court entered June 21, 2007, is hereby corrected on
its face by substitution of the attached pages 1 and 19 in lieu of the original pages 1
and 19 of the opinion . The purpose of this Order of Correction is to correct
typographical errors and does not affect the holding of the Opinion .
ENTERED : August 30, 2007.
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