STEVEN ESTEP v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 26, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002022-MR
STEVEN ESTEP
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 97-CR-00165
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI AND TACKETT, JUDGES.
GUIDUGLI, JUDGE.
Steven Estep (hereinafter “Estep”), proceeding
pro se,1 has appealed from the Pike Circuit Court’s August 19,
2002, Findings of Fact and Order denying his RCr 11.42 motion
for relief.
Estep had previously been convicted for the January
24, 1997, murder of his ex-wife, Kathy Bowling, for which he
1
By order entered February 3, 2003, this Court granted the
Department of Public Advocacy’s motion to withdraw as counsel
and allowed Estep to proceed pro se in his post-conviction
appeal.
received a life sentence without the possibility of parole for
twenty-five years, and was also convicted on counts of
kidnapping, wanton endangerment and burglary.
The main issue in
this appeal is whether Estep received ineffective assistance
from his trial counsel, Haroyln Howard.
Having reviewed the
parties’ briefs, the record and the applicable case law, we
affirm.
For purposes of this opinion, we shall adopt as our
own the statement of facts as set forth in the Supreme Court of
Kentucky’s April 20, 2000, opinion affirming Estep’s direct
appeal from his conviction:2
For the third time in one day, Estep
entered a local drug store where the victim,
his ex-wife, worked. After entering the
store, he immediately sought her out and was
heard speaking with her. Shortly
thereafter, another store employee heard a
noise from the back of the store,
investigated, and found the victim lying
face down on the floor with Estep standing
over her pointing a gun at her. Estep,
seeing the other employee, redirected the
gun towards her and told her that she better
leave.
When police arrived, they discovered
that Estep had barricaded himself and the
victim in the restroom. During the
negotiations to get him out, he repeatedly
told the police that the victim was in good
condition. After approximately a three-hour
stand-off with the police, Estep
surrendered. He had shot the victim eight
times and she died of multiple gun shot
2
Appeal No. 1998-SC-0662-MR.
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wounds to the head, chin, upper chest, and
forearm.
Estep was indicted for intentional
murder, kidnap[p]ing, and single counts of
first-degree wanton endangerment and firstdegree burglary. A jury convicted him on
all counts and [he was] sentenced to Life
without the possibility of parole for 25
years for murder, sixty years for
kidnap[p]ing, twenty years for burglary, and
five years for first degree wanton
endangerment. The sentences were ordered to
run consecutively with each other, with the
exception that all would run concurrently
with the life sentence.
In his direct appeal to the Supreme Court of Kentucky,
Estep argued, unsuccessfully, that he was entitled to an
instruction on extreme emotional disturbance, that there was
insufficient evidence to convict him of first degree burglary or
kidnapping, that the victim’s father was improperly allowed to
sit at the Commonwealth’s table during trial, and that the trial
court improperly overruled his motion for a mistrial.
As to his
entitlement to an instruction on extreme emotional disturbance,
Estep contended that the trial court improperly excluded
psychological testimony that he suffered from a mental illness
that made him fear abandonment to a pathological degree.
The
Supreme Court reviewed the issue and determined that Estep had
failed to establish any evidence of a triggering event that
temporarily disturbed his emotions, which is a necessary element
pursuant to the applicable law.
-3-
On August 30, 2001, Estep, proceeding pro se, filed an
RCr 11.42 motion to vacate his conviction and sentence.
He
argued that he received ineffective assistance from his trial
counsel, citing three arguments:
1) his trial counsel stated
she would be ineffective if she were not removed from the case;
2) his trial counsel failed to talk to Dean Blair, who Estep
claimed would have shed light on both his and the victim’s
actions leading up to the shooting; and 3) his trial counsel
failed to investigate his competency.
The trial court appointed
an attorney to supplement Estep’s RCr 11.42 motion.
The
supplement, filed June 19, 2002, solely addressed Estep’s claim
that his trial attorney was ineffective for failing to
sufficiently investigate and find exculpatory witnesses to
present at trial regarding an alleged triggering event.
Estep
had allegedly been told just prior to the shooting that Kathy
had been seen kissing Dean Blair in her car, which, coupled with
her earlier statement to Estep that she was ending her
relationship with him, provided the necessary triggering event
to establish that he was operating under an extreme emotional
disturbance.
The trial court held an evidentiary hearing on August
8, 2002, having determined that the allegations in Estep’s
motion could not be refuted on the face of the record.
At the
hearing, Estep relied solely upon the testimony of his mother,
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Louise Estep (hereinafter “Mrs. Estep”).
Mrs. Estep testified
that she had spoken to her son three times on the day of the
shooting.
During the last conversation, which began at
approximately 3:00 p.m., she claimed to have told Estep that she
had seen Kathy kissing Blair in a parking lot a week previously.
She testified that Estep made no response to that statement, and
soon thereafter ended the telephone conversation.
The shooting
occurred between 3:30 p.m. and 4:00 p.m. that afternoon.
Mrs.
Estep went on to testify as that although she did not recall
telling Estep’s trial counsel about this conversation, she did
recall asking her during trial, “What if I knew something that
would have been a reason to cause Steve to go off like that?”
According to Mrs. Estep, trial counsel indicated that she did
not want to hear this reason because the trial court had already
ruled that she could not introduce any evidence that Estep had
been acting under an extreme emotional disturbance.
Mrs. Estep
also testified that she related her telephone conversation with
Estep to her sister and daughter, who both testified at trial.
Although she was subpoenaed by the Commonwealth, Mrs. Estep did
not testify at trial.
On August 19, 2002, the trial court entered its
Findings of Fact and Order denying Estep’s RCr 11.42 motion, the
relevant part of which we shall set out below:
* * *
-5-
The failure of adequate representation
in this case is said to have occurred
because the Defendant’s attorney failed to
find and present evidence of a triggering
event. He offers his mother’s testimony
about telephone conversations he is alleged
to have had with her on the day of the
killing. He argues that had his trial
counsel discovered evidenced of these phone
calls, she could have presented it as the
triggering event for his killing of Kathy
Bowling. With a triggering event in
evidence, he could have presented the expert
psychological evidence and the jury would
have been given the option of finding him
guilty of First Degree Manslaughter.
FINDINGS OF FACT
On the day that the Defendant kidnapped
and killed Kathy Bowling, his mother now
claims to have spoken with him by telephone
on three occasions with the last
conversation having occurred less that one
hour before the crime.3 The Defendant’s
mother testified that during the last
telephone conversation, she told her son
that she had seen Kathy Bowling kissing Dean
Blair in a parking lot. According to the
Defendant’s mother, Bowling had been
romantically involved with Dean Blair before
she met the Defendant. She said that
before, during and after their marriage, the
Defendant and Kathy Bowling had argued about
her prior, present and possible future
involvement with Blair. It seems improbable
that the last repetition of such an often
repeated allegation could be considered a
sudden event. However, the Defendant
contends that this new evidence is proof of
3
(footnote 2 in original) Howard and the Defendant may have
discussed the events of that day, but neither testified at the
hearing. The only evidence of what had been told to Howard
about these alleged telephone conversations is the testimony of
the Defendant’s mother.
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a triggering event that would have allowed
him to rely upon the defense of extreme
emotional disturbance.
The Defendant’s mother did not tell the
police or her son’s attorney about these
telephone conversations that are said to
have been made immediately before the
killing. If Howard had spoken with the
Defendant about the events of that day, it
seems likely that he would have told her
about telephone conversations he had with
his mother shortly before he killed his exwife. It seems improbable that the
Defendant and his mother would have ke[pt]
such a significant event a secret from his
attorney. This Court does not believe that
these phone conversations took place.
However if you assume that evidence of
the telephone conversations was available,
Howard was not given an opportunity to
discover it. The Defendant’s mother met
several times with Howard before and during
her son’s three week murder trial. At no
time did she tell Howard about these alleged
telephone conversations. It is her
testimony that while she did not tell Howard
about the telephone conversations she did
offer the following hint during the trial by
asking Howard, “What if I knew something
that would have set him off?” To which
Howard is said to have replied that she
could not get into e.e.d. It seems
improbable that Howard would not have
pursued this hint of exculpatory evidence.
During the three-week trial, this Court
observed Howard energetically defend the
Defendant. This Court believes that Howard
would have seized any hint of evidence
relating to the Defendant’s claim of extreme
emotional disturbance. This Court does not
believe that this alleged conversation
between Howard and the Defendant’s mother
took place.
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Howard provided the Defendant with
effective representation. Counsel had
obtained the services of an expert witness
and sought repeatedly to have the
Defendant’s mental condition placed into
evidence during the guilt phase of the
trial. She had many conversations with the
Defendant’s mother and appeared to be
familiar with the record which included the
statement that the Defendant’s mother made
to the investigating officers. There was no
reason for Howard to have suspected that
this woman would keep useful information
from her. It is a weak suggestion of
inadequate representation to complain about
Howard’s alleged failure to respond to the
question “what if. . .” at the end of one
day of a three-week trial. This Court
believes that Howard had no obligation to
have pursued this question asked in such a
casual manner during such a stressful event.
OTHER GROUNDS
In his pro se motion, the Defendant
stated two other grounds in support of his
Motion to Vacate Judgment. Appointed
counsel did not mention these other grounds
in the supplemental memorandum or at the
hearing. The first is that counsel stated
that if she were not removed from the case,
she would be ineffective. At the conclusion
of the last hearing before trial, counsel
addressed some health concerns with the
Court. The Court observed Howard closely
during the three-week trial. She was
energetic and gave no hint that any of her
physical ailments interfered with her
performance. Her health concerns were
unfounded.
The second ground raised by the
Defendant pro se, but not addressed by
appointed counsel is that Howard failed to
address his competency despite having
several head injuries. Howard had the
Defendant examined by an expert chosen by
-8-
the Defense team. Apparently there was no
basis for claiming incompetency to stand
trial.
* * *
This appeal followed.
On appeal, Estep argues that he received ineffective
assistance of counsel due to the trial court’s failure to grant
a continuance of the trial and due to his attorney’s failure to
seek review of the ruling not permitting him to introduce any
evidence of his mental health problems.
Furthermore, Estep
argues that the attorney appointed to supplement his RCr 11.42
motion was ineffective in representing him during the postconviction proceeding because of his conflict in interest.
The
Commonwealth disputes each of these arguments in its brief, and
argues that the trial court properly denied Estep’s RCr 11.42
motion.
It is well settled in this Commonwealth that in order
to establish a claim of ineffective assistance of counsel, a
defendant must establish that counsel’s performance was
deficient and that the deficient performance prejudiced the
defense.
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), cert. denied, 478 U.S. 1010, 106 S.Ct.
3311, 92 L.Ed.2d 724 (1986).
Because a defendant is only
entitled to receive reasonable effective assistance, he must
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establish that counsel’s representation fell below an objective
standard of reasonableness or the prevailing professional norms.
The defendant making the motion bears the burden of proof and
must overcome a strong presumption that counsel’s performance
was adequate.
See Jordan v. Commonwealth, Ky., 445 S.W.2d 878
(1969); McKinney v. Commonwealth, Ky., 445 S.W.2d 874 (1969).
Where the trial court has held an evidentiary hearing, as in
this case, the issue becomes whether the court below acted
erroneously in finding that the defendant received effective
assistance of counsel.
Ivey v. Commonwealth, Ky.App., 655
S.W.2d 506 (1983); Lynch v. Commonwealth, Ky.App., 610 S.W.2d
902 (1980).
On appeal, Estep first argues that his trial counsel
was ineffective when she failed to obtain a continuance and was
therefore not prepared for trial.
We first note that Estep did
not raise this issue as to whether the trial court should have
granted a continuance either in his direct appeal or in any of
his RCr 11.42 pleadings.
Because he did not raise this issue
before the trial court, Estep has failed to preserve this issue
for review.
Additionally, the propriety of the circuit court’s
decision as to the granting of a continuance should have been
raised in his direct appeal to the Supreme Court of Kentucky.
In any event, Estep has failed to show that his counsel’s
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performance fell below any reasonable standard or that he was
prejudiced in any way.
Next, Estep argues that his trial counsel was
ineffective when she failed to seek review of the trial court’s
ruling not to allow the introduction of mental health evidence
during the guilt phase.
As the Commonwealth points out in its
brief, this particular issue was raised in Estep’s direct appeal
to the Supreme Court of Kentucky.
The Supreme Court thoroughly
reviewed the issue and affirmed the trial court’s decision to
exclude such evidence because there was no showing of a
triggering event.
Therefore, Estep’s allegation of ineffective
assistance on this issue must fail because his alleged basis for
the claim is false.
We further note that Estep did not preserve
this issue because he failed to raise this allegation of
ineffective assistance before the trial court.
Finally, Estep argues that he received ineffective
assistance from the attorney appointed to supplement his RCr
11.42 motion because he did not review a prehearing tape.
Clearly, this issue is not preserved because Estep did not raise
this issue before the trial court prior to arguing it on appeal.
Further, we agree with the Commonwealth that RCr 11.42 cannot
provide relief for ineffective assistance of appellate counsel.
Bowling v. Commonwealth, Ky., 80 S.W.3d 405 (2002); Harper v.
Commonwealth, Ky., 978 S.W.2d 311 (1998), cert. denied, 526 U.S.
-11-
1056, 119 S.Ct. 1367, 143 L.Ed.2d 527 (1999).
Although attorney
Gafford was not actually acting in an appellate capacity, we
believe that the same reasoning applies and that Estep is
therefore precluded from raising any issues relating to his
performance in the present appeal.
Although Estep did not actually raise any issues from
the trial court’s RCr 11.42 ruling, we shall nevertheless review
that order.
We hold that the trial court did not commit any
error in denying Estep any relief.
Mrs. Estep’s testimony
regarding her alleged telephone conversations with her son on
the day of the shooting was not believable, and, even if true,
could not have formed a basis for establishing a claim for
ineffective assistance of counsel.
She admitted that she had
never told Estep’s trial counsel about the conversations and the
possibility that she herself had provided the triggering event
leading to the shooting.
Estep did not provide any type of
support for Mrs. Estep’s testimony, such as testimony from her
daughter and sister, or even from himself.
We agree with the
trial court that Estep failed to establish that his trial
counsel was ineffective regarding the alleged triggering event
information.
Finally, we find no error in the trial court’s rulings
regarding trial counsel’s health and her actions regarding
Estep’s competency.
-12-
For the foregoing reasons, the Pike Circuit Court’s
order denying Estep’s motion for RCr 11.42 relief is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Steven Estep
West Liberty, KY
A. B. Chandler
Attorney General
Anitria M. Alo
Assistant Attorney General
Frankfort, KY
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