PEARLY SUE (MILLS) GAMBREL v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-002415-MR
PEARLY SUE (MILLS) GAMBREL
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
INDICTMENT NO. 96-CR-00101
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE: GUIDUGLI, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Pearly Sue (Mills) Gambrel appeals from a Knox
Circuit Court order that denied her motion to vacate, set aside or
correct sentence and her request for an evidentiary hearing filed
pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42
challenging her conviction for manslaughter in the second degree1
1
Ky. Rev. Stat. (KRS) 507.040.
and arson in the first degree2 based on ineffective assistance of
counsel.
In the early morning of May 25, 1986, the mobile home
owned by Gambrel and her then husband, Larry Joe Mills, was
destroyed in a fire.
Mills’s charred remains
inside the mobile home.
were recovered from
At the time, the police were unable to
determine a cause for the fire or assign criminal responsibility to
anyone for Mills’s death.
Approximately ten years later, the
police received information that Gambrel and one Jerry Sizemore had
made
statements
incriminating
themselves
in
the
incident.
Following further investigation, including an exhumation of Mills’s
remains and interviews with several individuals, both Gambrel and
Sizemore were charged with and subsequently indicted for murder and
arson in the first degree.
The trial court granted Sizemore’s
motion to sever the trials of the two defendants with Gambrel being
tried first.
In a three-day trial conducted August 10-12, 1998, the
Commonwealth called thirteen witnesses and the defense called
twelve witnesses, including Gambrel.
The testimony indicated that
Mills had been with a Chester Brown and a blonde-haired woman for
several hours during the night and early morning of May 24-25,
1986.
Mills drank several pints of whiskey during the night.
At
some point, Gambrel and Wilma Jean Sizemore, who had gone to a
fast-food restaurant in Barbourville, saw Mills, Brown and the
woman in Mills’s truck.
Gambrel and Wilma Jean Sizemore pursued
the truck, but the men were able to evade them.
2
KRS 513.020.
-2-
After dropping off
the woman at her residence, the two men went to Brown’s house,
where Brown remained while Mills immediately returned to his mobile
home.
Brown testified that Mills was quite drunk at the time.
Sometime thereafter, Gambrel and Wilma Jean Sizemore
returned to the Millses’ mobile home to find Mills in the bedroom.
Gambrel testified that she and Mills engaged in a heated argument
about his being with the blonde woman.
She further stated that
Mills hit and attempted to strangle her during the argument.
Gambrel said that out of anger and frustration, she lit a piece of
paper and threw it on the bed, but that Mills and Wilma Jean
Sizemore extinguished the fire before it had caused very much
damage.
At the time, Gambrel had a broken left leg and used
crutches to assist her in walking.
She claimed that Mills had
taken her crutches and threw them outside.
Gambrel testified that
she told Mills that she was going to leave him and after gathering
some of the couple’s child’s clothing, she and Wilma Jean Sizemore
left the scene.
Wilma Jean Sizemore testified that while the
couple had engaged in a heated verbal argument, it did not involve
physical contact.
Both Gambrel and Wilma Jean Sizemore said that
they left the mobile home at approximately 2:00 a.m. and that Mills
was alive and sitting on the couch in the living room when they
departed. They also stated that they went to Wilma Jean Sizemore’s
residence and did not learn that the mobile home had burned until
approximately 7:00 a.m. on May 25.
The Commonwealth presented testimony from Mike Ward, a
forensic scientist, and Dr. Emily Craig, a forensic anthropologist,
that Mills had been injured by a blow to the head, but that he was
-3-
still alive after the fire had started.
Dr. Craig testified that
bone fragments from Mills’s skull indicated that he had been hit
with an object that fractured and punctured his skull.
She opined
that the small puncture could have been caused by a screw of a
crutch or a nail in a wooden board.
Chester Brown, who was Wilma Jean Sizemore’s live-in
boyfriend, testified that Gambrel and Wilma Jean Sizemore returned
to his house at approximately 4:00 a.m.
He claimed that the two
women argued with him about his and Mills’s activities with the
blonde woman.
Brown testified that during their conversation,
Gambrel stated, “I brought him out of the bed, lit a sock and threw
it on his feet.”
Christine Brown and her brother, Harvey Brown,3
testified that the morning of the fire they spoke with Gambrel at
their mother’s residence.
They both stated that Gambrel made a
comment that she knew the mobile home had burned and stated, “I set
the bed on fire and the son of a bitch in it.”
Christine Brown
further testified that the morning of the fire while she was
driving Gambrel and her six-year-old daughter, Michelle, to see
Gambrel’s
mother
at
a
hospital,
they
discussed
the
Millses’
argument.
Christine Brown stated that during their conversation,
Michelle blurted out that, “Mommy beat little daddy with the
crutches,” whereupon Gambrel told Michelle to sit down and said she
did not know what she was talking about.
Chuck Bingham testified
that he also spoke with Gambrel at Wilma Jean Sizemore’s residence
the morning after the fire, and Gambrel indicated that she had
3
Chester Brown, Harvey Brown and Christine Brown are
siblings. Gambrel is the Browns’ niece. Wilma Jean Sizemore is
Gambrel’s second cousin.
-4-
burned the mobile home by setting the bed on fire.
Gambrel denied
making any of these statements.
The
defense
presented
testimony
from
two
witnesses,
Brenda Brown Carnes and Thursan Jones, concerning statements made
by Jerry Sizemore, who is Wilma Jean Sizemore’s son, about his
alleged involvement in the death of Mills.
According to these
witnesses, Sizemore stated that he hit Mills with a wooden board
that had a nail in it during a fight.
Fearful that he had killed
Mills, Sizemore reportedly said he had tied Mills to a chair and
set the mobile home afire to cover up the evidence.
Carnes also
testified on cross-examination that Gambrel and several others were
present during the fight and helped Sizemore place Mills in the
mobile home.
At the close of evidence, the trial court instructed the
jury on intentional and wanton murder, manslaughter in the second
degree, reckless homicide4 and arson in the first degree either
alone or in complicity5 with others.
The jury returned a verdict
finding Gambrel guilty of manslaughter in the second degree and
arson in the first degree.
At the penalty phase, the parties
offered no evidence, but defense counsel argued that Gambrel was a
battered spouse who had been physically and mentally abused by her
husband.
Defense counsel also reminded the jurors that they could
consider the evidence introduced in the guilt phase.
The jury
recommended consecutive sentences of ten years for manslaughter in
the second degree and life for arson in the first degree.
4
KRS 507.050.
5
KRS 502.020.
-5-
The
trial court subsequently sentenced Gambrel to consecutive terms of
life
and
ten
years’
imprisonment
consistent
with
the
jury’s
recommendation.
On direct appeal, the Kentucky Supreme Court affirmed the
convictions but reversed and remanded the case with respect to the
sentence6 stating a term of years may not run consecutively to a
term of life imprisonment.7
On remand, the judgement and sentences
were amended to run concurrently.
On September 12, 2001, Gambrel filed an RCr 11.42 motion
based on ineffective assistance of counsel.
She alleged that
counsel failed to prepare her to testify, erred in presenting a
witness that offered incriminating evidence, failed to object to
the severance, failed to present mitigation evidence, and failed to
request a mitigation instruction. On October 18, 2001, the circuit
court denied the motion without a hearing.
The court held that
Gambrel did not show that any alleged error by counsel would have
changed the outcome of the trial.
This appeal followed.
On appeal, Gambrel raises several issues of alleged
ineffective assistance of counsel.
She also contends the circuit
court applied an incorrect standard in reviewing her ineffective
assistance of counsel claim and erred in failing to conduct an
evidentiary hearing on the RCr 11.42 motion.
In order to establish ineffective assistance of counsel,
a
defendant
must
satisfy
a
two-part
test
showing
both
that
6
Gambrel v. Commonwealth, 1998-SC-0843-MR (rendered June
15, 2000, not to be published).
7
See Wells v. Commonwealth, Ky., 892 S.W.2d 299 (1995);
Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993).
-6-
counsel’s
performance
was
deficient
and
that
the
deficiency
resulted in actual prejudice resulting in a proceeding that was
fundamentally unfair.8
The burden is on the defendant to overcome
a strong presumption that counsel’s assistance was constitutionally
sufficient or that under the circumstances counsel’s action might
be
considered
“trial
strategy.”9
A
court
must
be
highly
deferential in reviewing defense counsel’s performance and should
avoid second-guessing counsel’s actions based on hindsight.10
assessing
counsel's
performance,
the
standard
is
whether
In
the
alleged acts or omissions were outside the wide range of prevailing
professional
norms
based
on
an
objective
standard
of
reasonableness.11
In order to establish actual prejudice, a defendant must
show a reasonable probability that the outcome of the proceeding
would
have
been
different.12
A
reasonable
probability
is
a
probability sufficient to undermine confidence in the outcome of
8
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); accord Gall v. Commonwealth, Ky., 702
S.W.2d 37 (1985); Foley v. Commonwealth, Ky., 17 S.W.3d 878, 884
(2000), cert. denied, 531 U.S. 1055, 121 S. Ct. 663, 148 L. Ed. 2d
565 (2000).
9
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Moore v.
Commonwealth, Ky., 983 S.W.2d 479, 482 (1998); Sanborn v.
Commonwealth, Ky., 975 S.W.2d 905, 912 (1998).
10
Harper v. Commonwealth, Ky., 978 S.W.2d at 311, 315
(1998); Russell v. Commonwealth, Ky. App., 992 S.W.2d 871, 875
(1999).
11
Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2064-65;
Commonwealth v. Tamme, Ky., 83 S.W.3d 465, 469 (2002); Wilson v.
Commonwealth, Ky., 836 S.W.2d 872, 878 (1992).
12
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Bowling
v. Commonwealth, Ky., 981 S.W.2d 545, 551 (1998), cert. denied, 527
U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778 (1999).
-7-
the proceeding considering the totality of the evidence before the
jury.13
Both
the
performance
and
prejudice
prongs
of
the
ineffective assistance of counsel standard are mixed questions of
fact and law.14 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.15
Given the defendant’s burden of establishing
both deficient performance and actual prejudice, a court need not
address both components if the defendant makes an insufficient
showing on either one and should dispose of an ineffectiveness
claim on lack of sufficient prejudice if possible.16
RCr 11.42 provides persons in custody under sentence a
procedure for raising collateral challenges to a judgment of
conviction
entered
against
them.
A
movant,
however,
is
not
automatically entitled to an evidentiary hearing on the motion.17
An evidentiary hearing is not required on an RCr 11.42 motion where
the issues raised in the motion are refuted on the record, or where
the
allegations,
even
if
true,
would
not
be
sufficient
to
13
Strickland, 466 U.S. at 694-95, 104 S. Ct. at 2068-69.
See also Moore, supra, n. 9, at 484, 488; Foley, supra, n. 8, at
884.
14
Strickland, 466 U.S. at 698, 104 S. Ct. at 2070;
Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997).
15
See McQueen v. Scroggy, 99 F.3d 1302, 1310-1311 (6th Cir.
1996); Groseclose, supra, n. 14, at 1164.
16
Strickland, 466 U.S. at 697, 122 S. Ct. at 2064; Brewster
v. Commonwealth, Ky. App., 723 S.W.2d 863, 864-65 (1986).
17
Harper, supra, n. 10 at 314; Wilson v. Commonwealth, Ky.,
975 S.W.2d 901, 904 (1998).
-8-
invalidate the conviction.18
Even claims of ineffective assistance
of counsel may be rejected without an evidentiary hearing if they
are refuted on the record.19
Gambrel asserts that the circuit court used the wrong
standard when considering the prejudice prong of the Strickland
test.
In
specifically
its
opinion
cites
to
denying
Strickland
the
and
motion,
the
correctly
trial
court
recounts
the
prejudice standard as a “reasonable probability that but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.”
Gambrel maintains that following this
reference, the trial court “abandoned the ‘reasonable probability’
test” and “absent from the [c]ourt’s analysis is use of the
controlling ‘reasonable probability’ standard.”
A fair reading of the circuit court’s opinion convinces
us that it did not apply an incorrect standard.
The court
recounted the evidence presented at trial supporting the verdict
and weighed the effect of counsel’s alleged errors.
unconvinced
that
the
court’s
failure
to
reiterate
We are
the
words
“reasonable probability” each time it mentioned its conclusion as
to the effect of counsel’s performance on the outcome of the trial
reveals an abandonment of that standard. It is undisputed that the
court was aware of the correct standard and applied a balancing
test.
Gambrel’s position that the court applied a more stringent,
improper standard of proof for “actual prejudice” is without merit.
18
Sanborn, supra, n. 9, at 909; Haight v. Commonwealth,
Ky., 41 S.W.3d 436, 442 (2001).
19
Haight, 41 S.W.3d at 442; Brewster, supra, n. 16, at 864.
-9-
Gambrel
argues
that
counsel
rendered
ineffective
assistance by failing to adequately explain her right not to
testify and failing to prepare her to testify.
She states that she
has only an eighth grade education and no prior experience in the
criminal justice system. Gambrel asserts that counsel met with her
for only 90 minutes two days before trial and that she was
unprepared
to
withstand
the
withering
cross-examination
of
a
hostile prosecutor.
As did the circuit court, we believe Gambrel has not
shown that counsel’s performance with respect to her testifying was
deficient.
Gambrel’s protestations of ignorance are disingenuous.
She indicated on the stand that she wanted to testify and tell her
side to resolve doubts about Mills’s death that had existed for
several years.
She was present throughout the Commonwealth’s
presentation of evidence and was aware that her testimony clearly
differed with that of several prosecution witnesses, which would
subject her to cross-examination on those differences.
Gambrel
admits spending at least 90 minutes consulting with counsel shortly
before the trial.
As the Court in Strickland stated,
Judicial scrutiny of counsel’s performance must
be highly deferential.
It is all too tempting for a
defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. * * *
Because of
the difficulties inherent in making the evaluation, a
-10-
court must indulge a strong presumption that counsel’s
conduct
falls
within
the
wide
range
of
reasonable
professional assistance . . . .20
Gambrel suggests that had she known the prosecutor would
be hostile and she would be subjected to intense cross-examination,
she would not have testified.
witnesses
concerning
Given the testimony of several
Gambrel’s
own
incriminating
statements,
conviction was virtually assured had she not testified and denied
the statements, so it was not unreasonable for defense counsel to
advise
her
to
examination.
testify
despite
the
risk
of
a
probing
The intense cross-examination was more a result of
conflicts in the evidence than a lack of preparation.
she
has
not
explained
affected her testimony.
that
cross-
counsel’s
how
additional
preparation
Moreover,
would
have
Gambrel has not overcome the presumption
performance
was
within
the
wide
range
of
professionally competent assistance or that counsel’s preparation
of her resulted in actual prejudice.
Gambrel complains that her counsel was inadequate for
calling Carnes, who testified about statements by Jerry Sizemore
that he struck Mills with a board, tied Mills to a chair in the
kitchen, and burned the mobile home to destroy the evidence.
During her testimony, Carnes stated that Sizemore indicated that
Gambrel,
along
with
Wilma
Jean
Sizemore
and
Chester
Brown,
participated in placing an injured Mills in the mobile home.
Gambrel contends that counsel was unaware of the incriminating
20
466 U.S. at 689, 102 S. Ct. at 2065.
-11-
nature of Carnes’s testimony and that the benefits of calling her
as a witness outweighed the risks.
While Gambrel raises some serious questions regarding
counsel’s decision to call Carnes, even if counsel’s performance
was deficient, it did not result in actual prejudice. The evidence
supporting the conviction was substantial.
Several witnesses
testified to three separate statements by Gambrel that she started
a fire with Mills in the mobile home.
Gambrel’s young daughter
reportedly stated that Gambrel hit Mills with her crutches. Virgil
Gray, who first reported the fire, testified the fire apparently
started in the bedroom area based on the extent of damage when he
saw the still-burning mobile home. More importantly, two neighbors
who lived near the Millses, saw and heard Wilma Jean Sizemore’s and
Gambrel’s vehicles leaving the scene at approximately 4:00 a.m.,
two hours after the time Gambrel claimed to have left and shortly
before the fire started.
The only evidence that Sizemore was even
at the mobile home that night was his alleged statements to the two
witnesses, Carnes and Jones.
In addition, the fact that the jury
found Gambrel guilty of manslaughter in the second degree, which
did
not
include
a
complicity
instruction,
suggests
the
jury
discounted the testimony concerning Sizemore’s statements.
The
mere possibility that the conviction rested on Carnes’ testimony is
not sufficient.
We are not convinced that had Carnes not been
called as a witness, there is a reasonable probability that the
jury would have returned a different verdict.
During her direct examination, Gambrel stated that Mills
had broken her leg approximately a week prior to May 24.
-12-
When she
started to testify that Mills had beaten her repeatedly on prior
occasions, the circuit court sustained the Commonwealth’s objection
based on the exclusion for prior bad acts, but it permitted Gambrel
to testify about physical acts that occurred during their argument
the night of the fire including his allegedly having choked and hit
her, and knocked her crutches away.
On cross-examination, the
Commonwealth challenged the later testimony as a recent fabrication
because Gambrel had not mentioned it to the police during an
interview
in
1986.
Gambrel
argues
that
defense
counsel
was
ineffective for failing to rebut the Commonwealth’s allegation of
recent fabrication with testimony from her sister and documents
evidencing marital discord, i.e., divorce filings and a filing for
a restraining order based on physical abuse.
While Gambrel is correct that under Kentucky Rules of
Evidence (KRE) 801A(a)(2), prior statements of a witness consistent
with his/her trial testimony are not excluded by the hearsay rule
when offered to rebut an express or implied charge of recent
fabrication, she has not shown that counsel’s failure to offer the
suggested evidence was ineffective assistance.
First, the legal
documents were filed in and related to acts occurring in 1984 and
1985, prior to the May 24-25 incident, which was the subject of the
charge of recent fabrication. Second, Gambrel has not alleged that
her attorney was aware or reasonably should have been aware that
she made statements to her sister about a physical altercation with
Mills the night of the fire.
Third, even had Gambrel’s sister
testified, there is not a reasonable probability that it would have
affected the outcome because self-protection or domestic violence
-13-
was
not
raised
as
a
defense
to
the
charges,
her
sister’s
reliability would have been subject to attack, and Wilma Jean
Sizemore testified there was no physical altercation that night.
Gambrel also asserts that her attorney’s failure to offer
any mitigation evidence or request a mitigation instruction during
the sentencing phase of the trial was ineffective assistance.
She
states that counsel should have called her, her sister and her
sister-in-law, and offered the divorce documents and restraining
order to show a history of physical abuse by Mills.
Gambrel
maintains such evidence would have weighed heavily with the jury
because she had no prior criminal history.
First, we note that Gambrel has cited no cases and we
have
found
none
supporting
a
right
instruction in non-capital cases.
defendant
may
introduce
to
a
separate
mitigation
KRS 532.055(2)(b) only states a
evidence
in
mitigation,
and
KRS
532.055(2)(c) states the court shall instruct on the range of
punishment.
While counsel may argue for leniency based on the
mitigation evidence, there is no right to a mitigation instruction.
Accordingly, defense counsel was not deficient for failing to
request a mitigation instruction where the convictions did not
involve capital offenses.
In the present case, defense counsel offered no separate
mitigation evidence in the sentencing phase, but rather raised the
issue of domestic violence and spouse abuse in her argument to the
jury
following
eligibility.
the
reading
Defense
of
counsel
a
stipulation
argued
that
as
Gambrel
to
parole
had
been
subjected to a history of physical and psychological abuse by Mills
-14-
and reminded the jury that it could consider the evidence admitted
in the guilt phase for sentencing purposes.
In Hodge v. Commonwealth,21 the Kentucky Supreme Court
discussed the application of the Strickland standard where defense
counsel fails to introduce mitigating evidence.
counsel
has
neither
an
absolute
duty
to
It noted that
present
mitigating
character evidence, nor a duty to present all available mitigating
evidence.22
However, counsel has a duty to make a reasonable
investigation for mitigating evidence or to make a reasonable
decision
that
a
particular
investigation
is
not
necessary.23
Failure to conduct an adequate investigation hampers an attorney’s
ability to make strategic decisions as to the penalty phase of a
trial.24
When faced with a claim of ineffective assistance of
counsel for failure to present mitigating evidence, a court must
determine whether the failure to introduce mitigating
evidence
advocacy.”
was
trial
And
if
strategy
defense
or
“an
counsel’s
abdication
of
advocacy
was
deficient, then a finding must be made of what mitigating
evidence was available to counsel. Thereafter, the trial
court must then determine whether there is a reasonable
21
Ky., 68 S.W.3d 338 (2001).
22
Id., at 344. See also Taylor v. Commonwealth, Ky., 63
S.W.3d 151, 162 (2001)(“Defense counsel is not required to place
all available mitigating circumstances into evidence”), cert.
denied, ___ U.S. ___, 122 S. Ct. 2632, 153 L. Ed. 2d 813 (2002).
23
Id.
See also Austin v. Bell, 126 F.3d 843 (6th Cir.
1997); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), cert.
denied, ___ U.S. ___, 122 S. Ct. 1639, 152 L. Ed. 2d 647 (2002).
24
Battenfield v. Gibson, 236 F.3d 1215, 1229 (10th Cir.
2001).
-15-
probability
that
the
jury
would
have
weighed
the
mitigating and aggravating factors differently.25
In this case, Gambrel’s attorney presented no evidence
during the penalty phase.
Although counsel had some knowledge of
an alleged history of spouse abuse suffered by Gambrel, it is
unclear the extent of her knowledge, what pretrial investigation
counsel conducted into possible mitigation evidence or the reason
why she failed to present any of this evidence in the penalty
phase.
Defense
counsel
correctly
reminded
the
jury
in
her
sentencing argument that it could consider the evidence of domestic
violence introduced during the guilt phase,26 but that evidence was
limited to Gambrel’s broken leg and her testimony of a physical
altercation
the
night
of
the
fire.
When
the
circuit
court
sustained the Commonwealth’s objection and excluded other instances
of abuse, it told defense counsel she could introduce such evidence
during the penalty phase but she did not do so.
Gambrel asserts
that she, her sister, and her sister-in-law could have presented
evidence of a history of spouse abuse, as well as testimony on her
lack of any criminal history.
The circuit court found defense counsel’s failure to
present mitigating evidence did not result in prejudice because of
the damaging testimony of the Commonwealth’s witnesses and the
25
Hodge, supra, n. 22, at 345 (citation omitted). See also
Foley, supra, n. 8, at 884-85; Skaggs v. Parker, 235 F.3d 261 (6th
Cir. 2000), cert. denied, 534 U.S. 943, 122 S. Ct. 322, 151 L. Ed.
2d 214 (2001).
26
See, e.g., Harper, supra, n. 10, at 317.
-16-
argument of counsel for leniency because Gambrel was a “battered
spouse.”
A proper assessment of the effect of any mitigating
evidence, however, is not possible until that evidence has been
fully determined.27
Gambrel has provided sufficient information on
available mitigating evidence to justify an evidentiary hearing to
more fully explore the specifics of potential evidence that a
reasonable investigation by defense counsel would have developed.
The jury recommended the maximum sentence on both the manslaughter
in the second degree and arson in the first degree offenses with
only a small portion of the mitigating evidence that was arguably
available.
We believe the circuit court’s determination of the
absence of actual prejudice was premature.
For the foregoing reasons, an evidentiary hearing must be
held to identify precisely what mitigating evidence was available
to defense counsel, the reasonableness of any investigation into
mitigating
evidence
counsel
conducted,
and
the
rationale
for
counsel’s failure to present additional mitigation evidence. Based
on the information pertaining to these issues, the circuit court
must determine whether defense counsel’s performance with respect
to the penalty phase and her failure to introduce mitigating
evidence was constitutionally deficient.
If it was deficient, the
circuit court must then determine whether there is a reasonable
probability that the jury would have weighed the mitigating and
27
See Hodge, supra, n. 22, at 345 (“Before any possible
mitigating evidence can be weighed in a meaningful manner, that
evidence first must be determined and delineated.
This is the
proper function of an evidentiary hearing”).
-17-
aggravating factors differently sufficient to undermine confidence
in the outcome of the penalty phase.
Finally, Gambrel maintains that an evidentiary hearing
was
required
to
protect
her
constitutional
rights.
Having
concluded that all of her claims of ineffective assistance of
counsel are rebutted by the record except for the issue involving
counsel’s failure to introduce mitigating evidence in the penalty
phase, we affirm the denial of the RCr 11.42 motion as to all the
claims except for the mitigating evidence complaint, which requires
an evidentiary hearing.
The order denying Gambrel’s RCr 11.42 motion is affirmed
in part and reversed in part, and this case is remanded for further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis J. Burke,
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
-18-
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