KENYATTA FAULKNER v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 11, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001118-MR
KENYATTA FAULKNER
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NOS. 90-CR-00069 & 90-CR-00070
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, McANULTY, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Kenyatta Faulkner (Faulkner) appeals pro se from
an order of the Barren Circuit Court denying his Kentucky Rule of
Criminal Procedure (RCr) 11.42 motion.
Finding no error, we
affirm.
In the early morning of August 19, 1990, Faulkner went
to the apartment of Teresa Green (Green), with whom he had a
turbulent relationship.
After arguing, Faulkner stabbed Green
several times with a knife and then attacked another male,
Jonathon Rogers (Rogers).
There were witnesses to the incident,
and Faulkner made statements to several persons admitting to
having killed Green.
Very soon after the incident, Faulkner was
voluntarily admitted to a mental hospital in an extremely
distressed mental condition.
Subsequently, he was indicted for
the murder of Green and for the attempted murder of Rogers.
Faulkner was initially represented by William Klapheke
(Klapheke).
Klapheke filed a notice of intent to rely on a
defense of insanity and sought a competency hearing.
The trial
court ordered that Faulkner be transferred to the Kentucky
Correctional Psychiatric Center (KCPC) for the requisite
examination.
At the conclusion of Faulkner’s competency hearing,
the trial court made the following findings: (1) Faulkner did not
lack the substantial capacity to appreciate the nature and
consequences of the proceedings against him; (2) he was capable
of rationally participating in his defense; (3) he was capable of
communicating with his attorney in preparing his defense; and
finally (4) that on the date of the commission of the offenses,
Faulkner had the capacity to appreciate the criminality of his
conduct and had the ability to conform his conduct to the
requirements of the law.
At the conclusion of the competency hearing, Klapheke
was permitted to withdraw as counsel.
A few months later,
Faulkner retained Robert Alexander (Alexander) to represent him.
Given the delay in trying the case, in January 1992, the trial
court granted the Commonwealth’s motion to have Faulkner
reexamined to determine his present competence to stand trial.
The jury found Faulkner guilty of both murder and
criminal attempt to commit murder.
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The jury recommended
consecutive sentences of sixty years for the murder of Green and
twenty years for the attempted murder of Rodgers.
sentenced to eighty years in prison.
Faulkner was
The Kentucky Supreme Court
affirmed both convictions on direct appeal.
Faulkner v.
Commonwealth, 92-SC-093-MR (rendered February 18, 1993).
On December 10, 1994, Faulkner filed a forty-one page
RCr 11.42 motion in which he raised numerous issues, including
ineffective assistance of counsel, failure of the trial judge to
recuse himself because of bias, alleged errors in virtually every
provision of the jury instructions, and insufficiency of the
evidence.
The Commonwealth’s response maintained that all of the
issues should have been raised on direct appeal.
On January 18,
1995, the trial court denied the RCr 11.42 motion without a
hearing, holding that all but one of the issues were either
disposed of by the Supreme Court on direct appeal or should have
been raised on direct appeal.
The trial court also held that the
remaining issue, which dealt with the denial of a continuance in
order to retain a new attorney, did not rise to the level of a
constitutional violation.
Faulkner filed a motion to reconsider
and for additional findings of fact pursuant to Kentucky Rule of
Civil Procedure (CR) 52.01 and RCr 11.42(b).
On February 1,
1995, the trial court denied the motion to reconsider.
Faulkner
appealed the court’s denial of his RCr 11.42 motion.
On August 23, 1996, this court rendered an opinion
affirming the trial court’s decision in part, reversing in part,
and remanding the case for further proceedings.
We held that the
trial court erred in failing to address Faulkner’s claim of
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ineffective assistance of counsel based on three grounds: (1)that
counsel failed to call Faulkner’s legal guardian and first
attorney, Klapheke, to testify about the events on the night of
the stabbing; (2) that counsel failed to call expert witnesses to
testify about Faulkner’s mental condition; and (3) that counsel
failed to present as evidence past medical records of Faulkner’s
previous mental problems.
We noted that all of these alleged
errors involved issues regarding the competency hearing and
Faulkner’s defense of insanity.
A panel of this Court remanded
the matter to the circuit court for an
evidentiary hearing on
the issue of the ineffective assistance of counsel and for
appointment of counsel to represent Faulkner at the hearing.
On April 12, 1999, the trial court held an evidentiary
hearing on the issue of ineffective assistance of trial counsel.
Prior to the hearing, Faulkner’s counsel engaged Ed Connor, a
licensed clinical psychologist, to review the case.
was the only witness to testify at the hearing.
Dr. Connor
He stated that
he reviewed various documents from Faulkner’s brief stay at the
mental hospital immediately after the incident, the documents
from the evaluation performed at KCPC prior to the competency
hearing, and documents associated with Faulkner’s incarceration
at the Barren County Jail.
Dr. Connor also indicated that he
interviewed Faulkner on two occasions, interviewed Faulkner’s
grandmother and father, and reviewed the KCPC psychologist’s
trial testimony and report.
Based on his evaluation, Dr. Connor concluded that he
could not say with any degree of psychological certainty that
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Faulkner was not criminally responsible for his conduct that led
to the murder and attempted murder convictions, but Dr. Connor
believed that evidence of Faulkner’s condition and history should
have been presented in mitigation during the sentencing phase of
the trial.
He stated that relevant information included:
(1)
the dynamics of the intense sexual relationship between Faulkner
and Green; (2) the fact that Faulkner was only sixteen years old
and Green was thirty-three years old when they first met and
developed their relationship; (3) Faulkner’s low I.Q.; (4) the
fact that he was abandoned by his mother at an early age; and (5)
that Faulkner claimed to suffer from auditory hallucinations.
In
a subsequent report, Dr. Connor stated that he believed that if
the above information had been presented to the jury during the
sentencing phase perhaps it would have offered more insight into
the etiology of the crime and the jury might have recommended a
lesser sentence.
The Commonwealth stated that Faulkner’s trial
counsel was present at the hearing, but surprisingly neither the
Commonwealth nor Faulkner elected to call him as a witness.
On April 21, 1999, the trial court issued an order
denying the RCr 11.42 motion.
The court made no explicit finding
on whether trial counsel’s conduct was deficient, but it held
that Faulkner failed to establish a reasonable probability that
introduction of additional evidence would have resulted in a
different sentence.
Shortly thereafter, Faulkner filed Dr.
Connor’s written report with the court.
A second order was
entered on April 30, 1999, confirming the initial denial of the
motion.
The order noted that the report was consistent with Dr.
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Connor’s hearing testimony and did not justify a finding of
ineffective assistance of counsel.
The court stated:
All of this information [concerning
Faulkner’s limitations and the circumstances
leading up to the incident] was introduced to
the jury during the guilt/innocence phase
through the testimony of several defense
witnesses including the defendant.
. . . .
The Court refuses to reverse a
conviction for murder or reduce a sentence
based on speculation and possibility without
testimony from competent legal authority
which sufficiently demonstrates ineffective
assistance of counsel. The claim of
ineffective assistance of counsel cannot be
based solely on the testimony of a
psychologist.
This appeal followed.
In order to establish ineffective assistance of
counsel, a defendant must satisfy a two-part test showing both
that counsel’s performance was deficient and that the deficiency
resulted in actual prejudice affecting the outcome of the
proceeding.
Stickland v. Washington, 466 U.S. 688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Harper v. Commonwealth, Ky., 978
S.W.2d 311, 315 (1998), cert. denied, ___U.S.___, 119 S.Ct. 1367,
143 L.Ed.2d 527 (1999).
The major focus is whether the
proceeding was fundamentally unfair or unreliable. Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 842, 112 L.Ed.2d 180
(1993); Casey v. Commonwealth, Ky. App., 994 S.W.2d 18 (1999).
The defendant has the burden of establishing ineffective
assistance.
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066;
Bowling v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999).
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In an RCr 11.42 proceeding, the defendant “must do more
than raise a doubt about the regularity for the proceedings under
which he was convicted.
He must establish convincingly that he
has been deprived of some substantial right which would justify
the extraordinary relief afforded by this postconviction
proceeding.”
Commonwealth v. Pehphrey, Ky., 998 S.W.2d 460, 463
(1999)(quoting Commonwealth v. Campbell, Ky., 415 S.W.2d 614, 616
(1967)).
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.”
Strickland,
466 U.S. 694, 104 S.Ct. at 2068; Moore v.Commonwealth, Ky., 983
S.W.2d 479 488 (1998), cert. denied, ___U.S.___, 120 S.Ct. 110,
145 L.Ed.2d 93 (1999).
“Under the Strickland standard, in
deciding whether counsel’s performance prejudiced the defendant,
a reviewing court ‘must consider the totality of the evidence
before the judge or jury.’”
Moore, 983 S.W.2d at 484 (quoting
Strickland, 466 U.S. 668, 695, 104 S.Ct. 2052, 2069, 80 L.Ed.2d
674 (1984)); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905, 911
(1998), cert. denied, 526 U.S. 1025, 119 S.Ct. 1266, 143 L.Ed.2d
361 (1999).
Both the performance and prejudice prongs of the
ineffective assistance of counsel standard are mixed questions of
fact and law. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070;
Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997), cert.
denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998).
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While the trial court’s factual findings pertaining to
determining ineffective assistance of counsel are subject to
review only for clear error, the ultimate decision on the
existence of deficient performance and actual prejudice is
subject to de novo review on appeal.
See McQueen v. Scroggy, 99
F.3d 1302, 1310-1311 (6th Cir. 1996), cert. denied, 520 U.S.
1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997); Groseclose, 130
F.3d. at 1164.
We are limited in our review by the fact that the
record does not contain a transcript or videotape of the original
trial proceedings.
The appellant has the responsibility of
presenting a complete record on all issues he wishes to be
considered on appeal.
CR 75.01.
“[W]hen the complete record is
not before the appellate court, that court must assume that the
omitted record supports the decision of the trial court.”
Commonwealth v. Thompson, Ky., 697 S.W.2d 143, 145 (1985).
See
also Gillium v. Commonwealth, Ky. App., 925 S.W.2d 189 (1996).
The trial court’s holding that Faulkner has not
demonstrated prejudice by trial counsel’s failure to present
evidence of his mental condition and history during the penalty
phase was based in large part on his finding that most, if not
all, of the information had already been introduced during the
guilt phase of the trial.
Absent a transcript or videotape of
the trial proceedings, we must assume that the omitted portion of
the record supports that finding.
Thompson, supra.
Furthermore,
Faulkner did not challenge the Commonwealth’s claim at the RCr
11.42 evidentiary hearing that the information was introduced
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during the guilt phase through several defense witnesses,
including himself.
Faulkner has not demonstrated that the trial
court’s factual finding on this point is clearly erroneous.
For the foregoing reasons, we affirm the order of the
Barren Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenyatta Faulkner, Pro Se
La Grange, Kentucky
A. B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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