LEIF C. HALVORSEN V. COMMONWEALTH OF KENTUCKY
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LEIF C. HALVORSEN
V.
APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY PAYNE, JUDGE
83-CR-000182-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
Appellant, Leif Halvorsen, and his co-defendant, Mitchell Willoughby, were
convicted of the murders of three acquaintances, Joe Norman, Norman's girlfriend,
Jacqueline Greene, and Joey Durrum . One victim was found in the Kentucky River and
the two other victims were found on the side of the bridge overhead. Each victim had
been bound with a blue and yellow rope and shot to death . Appellant was sentenced to
death on two of the murder counts and to life imprisonment on the third count. The
details of the murders are more fully set forth in Halvorsen v. Commonwealth' wherein
this Court affirmed Appellant's convictions and sentences on direct appeal.
Appellant filed a post-conviction motion pursuant to RCr 11 .42 asserting various
claims of ineffective assistance of counsel . After an evidentiary hearing on specified
1 730 S.W .2d 921 (Ky. 1987) .
claims, the trial court denied the RCr 11 .42 motion as well as his subsequent motion
under RCr 59.05 . It is from the denial of these post-conviction motions that Appellant
now seeks relief in this Court.
Initially, we address the Commonwealth's request that certain affidavits attached
to Appellant's brief be stricken because they were never presented to the trial court.
While it is true that these affidavits were executed after the RCr 11 .42 hearing, it
appears that the trial court granted Appellant's motion to supplement the record with
most of these attachments, and simply found that they did not change its ruling nor did
they warrant further hearings . Thus, we will deny the Commonwealth's motion to strike
and our review will include the items attached to Appellant's brief that were also
included in his motion to supplement.
To prevail on an RCr 11 .42 motion, a movant must convincingly establish that he
was deprived of a substantial right justifying the extraordinary relief afforded by post
conviction proceedings . More specifically, to prevail on a claim of ineffective
assistance of counsel, a movant must show that he was prejudiced by counsel's
deficient performance . Deficient performance is that which falls below an objective
standard of reasonableness, and prejudice must be proven by showing a reasonable
probability that the result of the proceedings would have been different absent the
deficient performance .
Appellant advances several arguments within a broad assertion that the "jury
never learned who he was, and never heard his story." The principal focus of this
2 Haight v. Commonwealth , 41 S.W.3d 436 (Ky. 2001) .
3 Stickland v. Washington , 466 U .S . 668, 104 S .Ct. 2052, 80 L.Ed .2d 674 (1984) .
4
contention revolves around trial counsel's alleged failure to consult with Appellant,
which resulted in a failure to investigate and present evidence that would have
supported the defenses of intoxication, duress, and extreme emotional disturbance
(EED) .
"Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary."5 Trial counsel testified at
the RCr 11 .42 hearing, but he had turned Appellant's complete file over to the
Department of Public Advocacy several years ago and his personal recollection of the
proceedings was understandably limited . At the post-conviction hearing, the
Commonwealth pointed out that nearly every witness Appellant called was a convicted
felon or would have had to admit to a felony had he or she testified in 1983.
Nevertheless, aside from trial counsel's testimony that, in general, he did not feel that
other drug abusers would have had anything positive to contribute, he did not have a
specific memory of interviews or investigations that he actually conducted or of the
information Appellant gave him that might have justified his making a reasonable
decision that further interviews or investigation was unnecessary. Given the ease with
which we can dispose of this issue based on Strickland 's prejudice prong, we do so and
avoid the difficulty of evaluating trial counsel's performance in this regard . Stated
differently, Appellant has failed to show that any omitted investigation would have
probably changed the result.
5 Id . at 690 .
We recognize that failure to discover mitigating evidence may prejudice a
defendant and require the reversal of his conviction and/or sentence.6 Specifically, in
Wiggins v. Smith ,' a similar argument was made with respect to mitigation evidence,
although at a different phase of the trial. The United States Supreme Court found the
error to have caused sufficient prejudice to grant Wiggins relief . The evidence that
could have been presented on Wiggins' behalf included his subjection to severe
privation and abuse during the first six years of his life while he was in the custody of his
alcoholic, absentee mother, and his suffering physical torment, sexual molestation, and
repeated rape during his subsequent years in foster care .
In the case at bar, Appellant presented the testimony of several witnesses at the
RCr 11 .42 hearing who would have testified on his behalf at trial, but the substance of
their testimony was a far cry from that in Wi
ins. We first examine the RCr 11 .42
testimony in the context of evidence of extreme emotional disturbance . At the time of
Appellant's crimes, Kentucky law regarding extreme emotional disturbance was still in
its infancy and largely undefined .$ Our subsequent refinement of EED jurisprudence
6 Wiggins v. Smith, 539 U.S . 510,123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) .
539 U.S . 510.
8 See , e.g_, Edmonds v. Commonwealth , 586 S.W.2d 24, 27 (Ky. 1979)
(declining to define EED beyond "it is suffice to say that we know it when we see it.")
overruled by Wellman v. Commonwealth , 694 S.W.2d 696 (Ky. 1985); But see Ratliff
v. Commonwealth , 567 S .W.2d 307 (Ky. 1978) (holding that evidence of severe mental
illness, particularly paranoid schizophrenia, and a likelihood of psychosis at the time of
the crime, warranted an instruction on EED), overruled by Wellman v. Commonwealth ,
694 S.W.2d 696 (Ky. 1985) (holding that mental illness, even if severe, was insufficient,
standing alone, to warrant an EED instruction and that the absence of EED was not an
element of murder.)
has narrowed the circumstances which may establish EED .9 However, Appellant failed
to present any evidence at his RCr 11 .42 hearing that would have supported a finding of
EED even under our earliest and most expansive interpretation of EED .
Specifically, Appellant's parents, who had testified at trial, also testified at the
post-conviction hearing. However, with the exception of Appellant's sister, a
psychologist, and a therapist in an outpatient drug rehabilitation program, the additional
witnesses who testified at the post-conviction hearing were either former co-workers or
casual acquaintances, most of whom had encountered Appellant in drug-related
interactions . The substance of these witnesses' testimony was cumulative and
demonstrated only that after Appellant's marriage ended, he became depressed and
began a downward spiral into heavy drug abuse.
Oscar "Clark" Hessell testified to Appellant's increased drug usage after his
divorce. Henry Mazyck, another co-worker testified to a drastic change in Leif's
character after his divorce . Buford Disponette testified that Appellant did contract work
for him several years before the murders and that Appellant changed when he began
doing hard drugs after his divorce . Appellant's sister, Debra Mauldin testified that
Appellant became depressed when his marriage failed and he began heavy drug usage,
and Susan Craft, Appellant's ex-wife, gave similar testimony.
Additional witnesses who testified at Appellant's 11 .42 hearing were Dr. Eric
Drogin, a psychologist and Edwin Hackney, a therapist in the Comprehensive Care
Center's outpatient drug rehabilitation program. Dr. Drogin had never met Appellant
9 See, e Wellman , 694 S .W .2d 696 (requiring "probative, tangible and
.,
.g
independent evidence of initiating circumstances, such as provocation at the time [of the
crime]" for an EED instruction, even where there is evidence of mental illness).
and gave general testimony regarding potential avenues that should be explored to
support mitigation for a defendant with a history of drug abuse . Hackney testified that
Appellant had been diagnosed with substance and alcohol abuse as well as with an
anti-social personality disorder while in his drug rehabilitation program, but that his
treatment was terminated at the end of 1982 due to Appellant's failure to have contact
with the agency since July of 1982 .
Appellant's depression over his divorce and his increased drug usage were
brought out at trial through the testimony of Appellant's father, a former co-worker, Jeff
Luce, and through cross-examination of witnesses for the Commonwealth . Additionally,
Appellant's father had testified to a recent hospital stay resulting from Appellant's drug
use and to the fact that Appellant had lost his job a couple of weeks before the murders .
Trial counsel introduced some of Appellant's medical records and employment records
through this witness . Even assuming deficient performance by trial counsel, Appellant
has not shown any prejudice . Failure to identify additional witnesses to present
cumulative testimony cannot be regarded as prejudicial .
Likewise, an examination of the RCr 11 .42 testimony concerning duress reveals
no additional evidence that could have been presented at trial . The only RCr 11 .42
testimony that even remotely relates to duress was the testimony of Darrell Bachtelle, a
former co-worker, Susan Craft, Appellant's ex-wife, and Appellant himself . Bachtelle
merely testified that Appellant began to change when he started hanging out with
Mitchell Willoughby. Craft testified that Appellant was easily manipulated . However,
Appellant, himself, testified at the penalty phase of trial that he was frightened of
Willoughby and that he was acting under Willoughby's influence at the time of the
murders. So, again, no additional evidence was unearthed in the RCr 11 .42 proceeding
that that would have supported a finding of duress. Nevertheless, Appellant argues that
trial counsel should have raised the issue of Willoughby's influence over him at the
guilt/innocence phase as opposed to the penalty phase . Trial counsel testified,
however, that he did discuss this possibility with Appellant, but the only way to elicit this
evidence was from Appellant himself. Trial counsel testified that a strategic choice was
made to keep Appellant off the stand, inter alia, so that he could argue innocence based
on the fact that no one actually witnessed Appellant discharge a firearm. Furthermore,
Willoughby made statements taking all the responsibility for the shootings . As such,
Appellant has not "overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy ."'1° Duress is not a defense
to intentional murder nor is it an available defense for one who "intentionally or wantonly
placed himself in a situation in which it was probable that he would be subjected to
coercion ."' 1 Therefore, eliciting evidence of duress at the penalty phase as opposed to
the guilt/innocence phase was reasonable trial strategy .
It is true that an abundance of testimony was offered at the RCr 11 .42 hearing
regarding Appellant's drug use. Darrell Bachtelle testified that he worked with Appellant
for about two years and could not recall a time that Appellant was not under the
influence of intoxicants . Clark Hessell testified that he had observed Appellant ingesting
drugs including downers, Quaaludes and cocaine . Steve Meadows was a childhood
friend of Appellant's who testified that when he would occasionally run into Appellant it
was obvious that Appellant was on drugs. Appellant's friend, Lee Story, testified that he
1°
11
Strickland, 466 U .S at 689.
KRS 501 .090.
had witnessed Appellant smoke marijuana and inject various drugs . In addition to this
testimony concerning Appellant's general drug usage, two witnesses testified that they
had seen Appellant in a state of drug intoxication as recently as two weeks prior to the
murders . Buford Disponette also saw Appellant three or four days before the murders,
but gave no specific testimony regarding Appellant's state of mind or appearance.
Finally, an acquaintance, Matthew Estepp, testified that he had seen both Appellant and
his co-defendant Willoughby earlier the same day of the murders . Estepp stated that he
saw Appellant inject liquid morphine and melted Demerol and that Estep had purchased
and injected morphine that day as well. While Estepp's testimony would have been
relevant evidence of Appellant's intoxication the day of the murders, it was cumulative of
testimony that was presented at trial . At trial, Willoughby testified to the drugs that he
and Appellant had used the day in question . Accordingly, Appellant has not
demonstrated that he was prejudiced by the failure to put on additional drug abuse
evidence.
Concerning Appellant's allegation that trial counsel failed to adequately consult
with him, Appellant testified that counsel spent a total of about eight hours with him in
trial preparation . While trial counsel speculated that he had spent more than eight
hours in preparation, he was without his records and did not have a specific memory of
the time involved . Nevertheless, the record supports that trial counsel discussed with
Appellant the details of the crimes, whether or not the defense of duress would be
viable at the guilt/innocence phase, and that trial counsel spent time, in addition to
meetings with Appellant, in preparation for trial. Trial counsel had interviewed a friend
and co-worker of Appellant's as well as Appellant's father, both of whom served as
defense witnesses . Thus, Appellant has not shown that trial counsel's performance was
constitutionally deficient in this regard . Moreover, the prejudice Appellant alleges to
have suffered due to the alleged inadequate consultation is the failure of trial counsel to
locate those witnesses who testified at the RCr 11 .42 hearing . As outlined hereinabove,
Appellant was not prejudiced by the failure to call these additional witnesses .
Appellant's next allegation of ineffectiveness is trial counsel's failure to obtain an
independent expert psychologist and to engage a pharmacologist . Appellant was
examined by state-appointed expert, Dr. Schwartz, and found to be competent to stand
trial . Additionally, Dr . Schwartz was already familiar with Appellant as he had been
Appellant's physician at the Comprehensive Care Center's out-patient treatment
program . Trial counsel testified that he relied on Dr. Schwartz's competency evaluation
and simply did not believe that Dr. Schwartz's report suggested the need for any further
evaluation .
Both the U.S. Supreme Court 12 and this Court 13 have granted relief to indigent
defendants who were denied funding for an independent expert psychologist, but only in
circumstances where the defendant's sanity was at issue . In Ake v. Oklahoma, 14 the
U.S. Supreme Court stated, "When the defendant is able to make an ex parte threshold
showing to the trial court that his sanity is likely to be a significant factor in his defense,
the need for the assistance of a psychiatrist is readily apparent ." And in Binion v.
Commonwealth, 15 this Court, relying on Ake , granted Binion relief for the trial court's
12 See Ake v Oklahoma , 470 U .S . 68, 105 S.Ct. 1087, 84 L.Ed .2d 53 (1985) .
13 See Binion v. Commonwealth, 891 S.W.2d 383 (Ky. 1995).
14 470 U .S. at 82-3.
15 891
S .W .2d 383.
failure to appoint or provide funding for an independent expert psychiatrist . However,
the instant case is distinguishable in two significant respects . First, Ake and Binion
addressed the state's duty to appoint or provide funding for an independent expert to an
indigent defendant. Here, Appellant had private counsel, rendering the inquiry one of
ineffective assistance of counsel. '6
Of greater significance, however, Appellant has failed to offer evidence even
remotely similar that in Ake or Binion . In Ake , as a result of the defendant's bizarre
behavior at arraignment, the trial court sua saonte ordered a psychiatric examination,
whereupon the defendant was determined to be incompetent to stand trial and
committed to a mental hospital for six weeks. He was subsequently declared
competent to stand trial on the condition that he continue to be sedated with an
antipsychotic drug. In Binion , the defendant had a long history of psychiatric treatment
and hospitalization, including previous prescriptions for antipsychotic drugs to control
the same type of delusions he was alleged to have been experiencing at the time of his
crime . An independent evaluation had also noted a possibility that the defendant had
organic brain damage .
In the instant case, the evidence presented at the RCr 11 .42 hearing,
summarized above, is wholly insufficient to have raised an issue concerning Appellant's
sanity . In addition to this evidence, however, the trial court granted Appellant's motion
to supplement the record with, inter alia, subsequent affidavits of Dr. Eric Drogin and Dr.
16
See Harper v. Commonwealth ,
978 S.W.2d 311, 314 (Ky.
1998) (distinguishing the inquiry of "whether the trial court had the responsibility to
provide an expert, [from] whether counsel was ineffective in failing to retain an
independent expert to assist in the defense.") .
10
E . Don Nelson, despite the affidavits being based on an evaluation of Appellant
conducted four years after the RCr 11 .42 hearing . Regarding these affidavits, the trial
court concluded, "Trial counsel discussed drug usage with an expert and relied on his
opinion. Although the Court permitted Movant to supplement the record with affidavits
from other experts, the Court finds that experts have different opinions and trial counsel
did not have a duty to seek all opinions of experts, counsel relied on the opinion of an
expert of his choice in light of Movant's damning statements [that he intentionally shot
two people]." We agree with the trial court's determination on this issue. Appellant
suggests that trial counsel should have sought additional experts "in light of his client's
words about how he felt that night : "'panicked,' `scared,' and the copious amounts of
drugs he had been ingesting ."' We fail to discern how these facts should have
reasonably alerted trial counsel of the need for additional experts. "Competent
representation does not demand that counsel seek repetitive examinations of Appellant
until an expert is found who will offer a supportive opinion .""
Moreover, Appellant has failed to demonstrate any prejudice from the lack of
additional experts at trial as the findings offered in the supplemental affidavits are
largely inconclusive. Although Dr. Drogin rendered a broad finding that there was
"evidence of neuropsychological impairment, including memory deficits and other indicia
of organic dysfunction" that most likely resulted from Appellant's chronic substance
abuse, the finding was of limited utility as Dr. Drogin's resulting conclusion was only that
more evaluation and testing were warranted . Further, Dr. Drogin described the
phenomenon of "Emotional Contagion," but concluded only that administering the
" Id . at 315 .
emotional contagion scale could shed additional insight into Appellant's susceptibility to
the phenomenon . Dr. Drogin's last observation was simply that there were conflicting
opinions as to whether Appellant had anti-social personality disorder.
Dr. Nelson, a professor of clinical pharmacology, interviewed Appellant but his
findings were, likewise, of limited utility. After recounting Appellant's history of long-term
drug abuse as well as those drugs which Appellant ingested on the day of the murder,
Dr. Nelson concluded that Appellant's judgment at the time of the shooting would have
been impaired . He cited Appellant's inability to recall the events the morning of the
murders to support the conclusion that the drugs had serious effects on his mental
processes . Nevertheless, as the Commonwealth points out, Appellant was able to
recall the events of the actual murders in great detail .
Another ground for Appellant's contention that trial counsel should have secured
a pharmacologist is that Appellant had been exposed to industrial solvents during his
employment at Frantz Mechanical . At the RCr 11 .42 hearing, Victor Sabo, a former co
worker, testified that he and Appellant worked with toxic glue and cleaning solvents at
Frantz. Another co-worker stated that the glue made one "high." Sabo testified that he
became ill and lost his sense of smell due to the odor of these materials . Dr. Nelson
stated that these solvents are known to impair judgment and mental functioning when in
the body. However, he did not elaborate on whether they may have been in Appellant's
system during the murders which was more than two weeks after Appellant had been
fired from the Frantz job. In fact, he made no specific findings in relation to Appellant .
Again, Appellant has not shown that trial counsel's failure to retain additional experts
was unreasonable nor has he demonstrated any prejudice therefrom . This contention is
without merit.
Appellant next complains that trial counsel failed to request adequate
instructions . Specifically, Appellant contends that the absence of extreme emotional
disturbance was an element of murder in 1983. Thus, the jury should have been
instructed that the Commonwealth was required to prove its absence beyond a
reasonable doubt. Though we do not agree with Appellant's contention, it does deserve
a more thorough analysis than the Commonwealth gives it in its brief.
In Gall v. Parker' $ the U .S. Court of Appeals for the Sixth Circuit reversed the
U.S. District Court's denial of habeas corpus relief based on the prosecution's failure to
prove the absence of extreme emotional disturbance at trial. The court noted that Gall
had presented evidence of a severe psychotic disorder which was sufficient at that time
to establish EED.
On direct appeal, this Court held that Gall's showing had been
insufficient to place the burden on the Commonwealth .'9 However, the Sixth Circuit
held that the absence of EED was an element of murder under Kentucky law at the time
of Gall's offense and trial and that the burden had been improperly shifted in Gall's
case, violating the framework set out in In re Winship2° and Mullanev v. Wilbur.2'
's
231 F.3d 265 (6th Cir. 2000), superseded by statute on other grounds as
stated in Bowling v. Parker, 344 F .3d 487 (6th Cir. 2003).
's
Gall v. Commonwealth , 607 S.W.2d 97 (Ky. 1980), Denial of Habeas Corpus
Reversed by Gall v. Parker, 231 F.3d 265 (6th Cir. 2000).
2° 397 U.S . 358, 90 S .Ct. 1068, 25 L.Ed .2d 368 (1970) .
21
421 U .S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) .
13
Notwithstanding this holding, however, the Gall court22 recognized that this
framework does not prevent state courts from requiring a defendant to present at least
some evidence to raise an issue of fact to support a jury instruction . In fact, the early
cases cited in Gall to demonstrate that Kentucky treated the absence of EED as an
element of murder nevertheless required the defendant to present some evidence .
Specifically, in 1979, this Court held "A failure to act under the influence of extreme
emotional disturbance is an element of the offense of murder, and if the evidence
affords any basis upon which the jury could entertain a reasonable doubt as to whether
appellant acted under the influence of extreme emotional disturbance, the absence of
that element must be enumerated as a part of the instruction on murder . . ." 23
In the instant case, Appellant failed to present any such evidence. As outlined
hereinabove, Appellant's evidence was merely that he turned to drugs after his divorce .
Thus, this case is more akin to Slaughter v. Parker,24 wherein the evidence established,
at most, that Slaughter panicked during the crime . Slaughter presented no evidence of
mental illness or extreme emotional disturbance . The Sixth Circuit found this to be a
material factor distinguishing Slaughter from Gall . A similar distinction exists in this
case .
Moreover, this Court's decision in Gall was rendered in 1980, more than two
years before Appellant's offenses . Thus, our interpretation of Kentucky law as stated in
Gall governed Appellant's case. Appellant relied on pre-Gall cases that were modified
22 231 F .3d 265.
23 Edmonds, 586 S .W .2d at 27 (emphasis added).
24 450 F.3d 224 (6th Cir. 2006) .
14
by our holding in Gall and expressly overruled in Wellman v. Co mmonwealth . While
we recognize that Wellman was decided two years after Appellant's offenses, we also
observe that Wellman reaffirms Gall and explains that our Gall decision had been
misunderstood . Specifically, we stated :
We are continually beset with arguments founded
upon "extreme emotional disturbance" despite the
articulation of its meaning and impact in Gall v.
Commonwealth , Ky., 607 S .W .2d 97, 108-109 (1980) . It is
our opinion that the principal cause of this problem is the
failure of this court, in Gall, to specifically overrule those
portions of Ratliff, Bartrug and Edmonds, [citations omitted],
which declare that the absence of extreme emotional
distress is an essential element of the crime of murder and
require the Commonwealth to prove such absence, even in
those cases where there is no evidence whatever indicating
emotional disturbance . To the extent that such cases declare
absence of extreme emotional distress to be an element of
the crime of murder, they are expressly overruled .
The presence or absence of extreme emotional distress is a
matter of evidence, not an element of the crime . They are a
matter of the circumstances of each homicide, and there is
certainly no obligation to prove the absence of something
which was never there.26
At the time of Appellant's offenses, the absence of EED was not an element of
murder pursuant to Gall . Therefore, it was not ineffective assistance of counsel for trial
counsel to refrain from requesting an EED instruction based not only on the evidence,
but also on the law.
Appellant asserts that trial counsel was ineffective for failing to request adequate
instructions on intoxication . However, Appellant raised this issue on direct appeal and
25
26
694 S .W.2d at 697.
Wellman, 694 S .W .2d at 697.
15
this Court found no error in the instructions given concerning intoxication .2' The same
is true for Appellant's contention that trial counsel should have requested a wanton
murder instruction . On direct appeal, this court discerned no error in the failure to
instruct on wanton murder as there was no evidence to support it.28
Appellant contends that trial counsel failed to prepare him for his testimony
during the penalty phase of trial . However, trial counsel testified that he and Appellant
had discussed the details of the murders and that Appellant testified just as counsel
expected . Furthermore, it was clear that some discussions regarding Appellant's
testimony had taken place because trial counsel had instructed him to leave out the
portion of the events concerning another murder which was not a part of the charges in
the case and Appellant complied with this instruction . Accordingly, there is no merit to
this assertion .
Appellant also alleges that he was entitled to expert assistance to establish his
ineffectiveness claims . However, the trial court did not abuse its discretion in denying
funds for reasons similar to those given above in our rejection of Appellant's ineffective
assistance claim based on failure to engage additional experts . Appellant has
presented no evidence that would warrant additional experts .
Appellant's next assertion is that he should have received an additional RCr
11 .42 hearing based on the affidavits of Dr. Drogin and Dr. Nelson. For the reasons
expressed above, these affidavits are of limited value and do not warrant further
hearings . Appellant also asserts that the trial court erred in failing to include certain
issues in the initial RCr 11 .42 hearing . These additional issues are whether counsel
27
Halvorsen , 730 S .W.2d 921 .
28 Id .
16
failed to obtain an adequate independent psychological exam, whether counsel failed to
request adequate instructions, whether trial counsel violated the Hobbs Act, whether
funding should have been granted for additional investigation, and whether imposing the
death penalty after Appellant has spent over twenty years in prison is cruel and unusual
punishment.
However, most of these issues were argued at the RCr 11 .42 hearing and have
been addressed hereinabove . The trial court correctly found that an additional hearing
was unnecessary given that it had ruled on all issues based upon the record, the
evidentiary hearing, and the relevancy of the issues raised. With regard to the alleged
Hobbs Act violation, the trial court did allow Appellant to address the court at the RCr
11 .42 hearing and gave Appellant the opportunity to inform the court of his allegations
despite Appellant's having supplemented his RCr 11 .42 motion with this particular claim
on the morning of the hearing.
Finally, Appellant asserts that his death sentence is in contravention of the
International Covenant on Civil and Political Rights (ICCPR), his execution after twenty
years on death row is cruel and unusual punishment, and that trial counsel violated the
Hobbs Act. We find no merit to any of these issues . Congress ratified the ICCPR in
1992 under specific reservations ; namely, that the provisions of Articles 1 through 27 of
the ICCPR are not self-executing.29 In Buell v. Mitchell,30 the Sixth Circuit held that nonself-executing agreements are not given effect as law. Furthermore, Appellant's
argument that his death penalty was arbitrarily imposed in violation of the ICCPR
29
138 CONG. REC. S4781-01, *S4783-84 (daily ed. April 2, 1992) (statement
of presiding officer of resolution of ratification) .
30
274 F.3d 337, 372 (6th Cir. 2001) .
17
presupposes that his constitutional claims of ineffective assistance of counsel are
meritorious, and we have concluded that they are not. Accordingly, we reject
Appellant's argument . Concerning Appellant's Eighth Amendment claim, state and
federal courts alike have rejected the contention that incarceration on death row as a
result of the appellate process violates the Eighth Amendment prohibition against cruel
and unusual punishment.3'
Lastly, the trial court did not abuse its discretion in denying Appellant's Hobbs Act
claim . Counsel with the Department of Public Advocacy withdrew from Appellant's case
at some point and contracted with other counsel to continue his case, and later the
original DPA counsel resumed . Appellant contends that DPA's initial withdrawal was a
result of the actions of his trial counsel - a state senator - threatening to cut the
Department of Public Advocacy's (DPA) funding unless the RCr 11 .42 proceeding
31
See e.g_, White v. Johnson , 79 F.3d 432 (5th Cir.1996) (holding that a
seventeen-year period of incarceration on death row during habeas corpus review
process did not violate Eighth Amendment ban against cruel and unusual punishment);
Free v. Peters , 50 F.3d 1362 (7th Cir. 1995) (holding that any inordinate delay in
execution of defendant's death sentence was directly attributable to his own conduct,
and did not constitute cruel and unusual punishment) ; McKenzie v. Day , 57 F.3d 1493
(9th Cir. 1995) (holding that it would not constitute cruel and unusual punishment to
execute prisoner after delay of 20 years between conviction and date of execution and
resetting of execution date eight times, combined with allegedly unconstitutional
conditions of confinement) ; Ex parte Bush, 695 So.2d 138 (Ala. 1997) (holding that
capital defendant's incarceration for 16 years awaiting the execution of his death
sentence did not constitute cruel and unusual punishment) ; State v. Smith , 931 P.2d
1272 (Mont. 1996) (holding that defendant's having spent approximately 13 years on
death row and having had four sentencing hearings did not establish that death
sentence would violate his right to due process or his right to be free from cruel and
unusual punishment particularly in light of the fact that defendant had benefited from
appellate and federal review process of which he had availed himself and which had
resulted in delay and multiple sentencing hearings) ; Rose v. State , 787 So.2d 786 (Fla.
2001) (holding that prolonged stay on death row for more than twenty years was not
cruel and unusual punishment) ;
18
against him was dropped . He asserts that trial counsel's actions violated the Hobbs Act
which provides in pertinent part:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or attempts
or conspires to do so, or commits or threatens physical
violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be
fined under this title or imprisoned not more than twenty
years, or both .32
According to the United States Supreme Court, the Hobbs Act "manifest[s] a
purpose to use all the constitutional power Congress has to punish interference
with interstate commerce by extortion, robbery or physical violence ." 33 Even
assuming that the Hobbs Act had any applicability to Appellant's allegations,
Appellant has not shown any prejudice in this RCr 11 .42 proceeding. As the trial
court stated, "Movant was never without counsel and had means to move the
Court for funds to prosecute his motion. The denial of such funds by the Court
would not be based on whether his counsel was employed by the Department of
Public Advocacy or contracted with the agency." Accordingly, there was no
abuse of discretion in the trial court's denial of this claim.
For the foregoing reasons, we affirm the trial court's denial of post-conviction
relief.
All sitting . Lambert, C.J ., and Cunningham, Minton, Noble, Schroder, and Scott,
JJ., concur.
32
33
8 U .S .C . 1951(a).
Stirone v. U.S ., 361 U .S. 212, 215 80 S.Ct. 270, 4 L.Ed .2d 252 (1960) .
19
COUNSEL FOR APPELLANT :
Susan Jackson Balliet
Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, KY 40601
Louis F. Mathias, Jr.
Tami Renee Stetler
Assistant Attorneys General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
Brian T. Judy
Cabinet for Health and Family Services
Office of Legal Services
275 East Main Street, 5W-B
Frankfort, KY 40621
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