COMMONWEALTH OF KENTUCKY V. PHILLIP YORK
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AS CORRECTED : FEBRUARY 26, 2007
RENDERED : FEBRUARY 22, 2007
TO BE PUBLISHED
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2005-SC-000348-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM THE COURT OF APPEALS
CASE NO. 2004-CA-000550-MR
RUSSELL CIRCUIT COURT NO . 95-CR-00099
PHILLIP YORK
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
Reversinq
Appellant, Commonwealth of Kentucky, appeals from an opinion and order
of the Court of Appeals which reversed an order entered by the Russell Circuit
Court denying RCr' 11 .42 relief to Appellee, Phillip York. The Court of Appeals
reversed the circuit court and ordered that Appellee's convictions be vacated
because it believed that Appellee's constitutional rights were violated by the
ineffective assistance of Appellee's trial counsel . Finding no ineffective
assistance of counsel on discretionary review to this Court, we reverse the Court
of Appeals ; and affirm the order entered by the circuit court denying RCr 11 .42
relief to Appellee.
On November 22, 1995, Appellee was indicted for the violent beating and
subsequent death of Appellee's neighbor, Billy Bunch. At trial, the evidence was
overwhelming that Appellee severely beat the victim in the early morning hours of
1 Kentucky Rules of Criminal Procedure
February 19, 1995. Later that day, the victim was transported to the emergency
room of a local hospital. The emergency room physician, Dr. Tolentino, testified
that he performed a thorough physical and neurological examination of the
victim, but discovered no significant injuries . Consequently, he released the
victim several hours after his admission. Three days later, on February 22, 1995,
the victim was discovered dead in his bed by his mother.
At trial, the Assistant Chief Medical Examiner, Dr. Weakley-Jones, testified
that the victim died from an acute subdural hematoma (blood clot) in his brain .
She opined that the hematoma was three to five days old, and was caused by
blunt force trauma to the head. She further opined that the hematoma was
present on the morning the victim was examined by Dr. Tolentino at the hospital,
but that the doctor probably failed to detect it because he did not perform a CT
scan or an MRI .
Dr. Tolentino contradicted Dr . Weakley-Jones' testimony. He testified that
a skull x-ray would probably have shown an acute subdural hematoma, but that
the victim's skull x-ray the morning of his examination appeared normal. Other
signs of an acute subdural hematoma include neurological abnormalities such as
mental sluggishness and unusual pupil dilation. On the day he performed a
neurological examination on the victim, he observed none of these signs. Dr.
Tolentino concluded that since patients with an acute subdural hematoma tend to
show definite signs of illness within several hours of the triggering incident, it was
his opinion that the victim did not have an acute subdural hematoma on the
morning he was examined at the hospital . He further opined that patients
suffering from an acute subdural hematoma would generally die within 24 hours
of its occurrence .
Dr. Roy Biggs, a radiologist from the hospital where the victim was
examined on February 19, 1995, also testified at trial. Dr. Biggs testified that, by
definition, an acute subdural hematoma must develop within 24 hours of the
triggering event or incident. Accordingly, if the victim died from an acute
subdural hematoma, the injury causing the hematoma must have been inflicted
within the 24 hours preceding his death . Dr. Biggs further opined that if the
victim did not receive a CT scan or MRI at the hospital, it was likely because he
showed no signs of an acute subdural hematoma at the time he was treated .
During cross-examination, Dr. Biggs agreed with Dr . Weakley-Jones that a
subdural hematoma cannot be detected on a skull x-ray. He further admitted that
he was not a forensic expert, he had not reviewed any of the victim's forensic
records, and that a minority of doctors are known to use the word "acute" even
when they believe the condition did not present itself within 24 hours .
After hearing all the evidence, the jury convicted Appellee of first degree
manslaughter and for being a second degree persistent felony offender . For his
crimes, Appellee was sentenced to twenty years' imprisonment . On direct
appeal, Appellee's convictions and sentence were affirmed in an unpublished
opinion rendered by this Court . York v. Commonwealth , 97-SC-1025-MR
(rendered September 3, 1998) .
Thereafter, Appellee filed a motion to vacate his conviction pursuant to
RCr 11 .42, alleging several grounds which he claimed entitled him to relief. The
circuit court initially denied his motion without hearing, but the Court of Appeals
vacated this decision and remanded the case for an evidentiary hearing . By the
time of the hearing, Appellee alleged only one ground on which he claimed he
was entitled to relief - his trial attorneys were ineffective because they failed to
retain an independent expert medical witness to rebut the testimony of Dr.
Weakley-Jones .
At an evidentiary hearing held on February 13, 2003, Appellee presented
evidence from three witnesses: (1) Appellee's trial attorney ; (2) Dr.
Heidingsfelder, a forensic pathologist ; and (3) Appellee himself . Appellee's trial
attorney testified that he had been practicing criminal law for approximately thirty
years, that he had tried his "share" of murder cases, and that he had a good idea
of what "plays to rural juries." In this case, he attempted to prove Appellee's
innocence by showing that injuries sustained three days prior to his death could
not have caused the acute subdural hematoma that eventually killed the victim.
In accordance with this, Appellee's trial counsel called several witnesses who
claimed that after he left the hospital, they saw the victim out and about
appearing normal . He further relied on testimony offered by Dr. Tolentino and
Dr. Biggs which claimed that the victim did not have any signs of an acute
subdural hematoma at the time he was examined at the hospital and that an
acute subdural hematoma could not have been caused by injuries sustained
three days prior to the victim's death. Appellee's trial counsel opined that the
contradictory testimony presented at trial by the two local doctors was more
acceptable to a rural jury than a hired medical witness from outside the area. He
added that he thought the jury would "put a lot of opinion" in Dr. Biggs since Dr.
Biggs was local and well-known . Accordingly, he chose not to seek an outside
expert.
After reviewing Appellee's trial and medical records of the victim, Dr.
Heidingsfelder felt that Dr. Weakly-Jones' opinion was overstated in that it was
impossible to state with certainty the age of the subdural hematoma located in
the victim's brain . He opined that while blunt force trauma necessarily caused
the hematoma located in the victim's brain, the trauma could have been inflicted
anytime between 12 hours and five days prior to the victim's death . He further
stated that it was "not an absolute" that a subdural hematoma would cause death
or other obvious symptoms within 24 hours of its infliction . Appellee testified that
he asked his attorney about retaining an expert and that his attorney assured him
that an expert had been secured .
In an order entered February 16, 2004, the circuit court concluded that
even if an expert such as Dr. Heidingsfelder had testified, it was not reasonably
probable that the outcome of Appellee's trial would have been different . This
decision was based on the fact that Dr. Heidingsfelder's testimony was not
significantly different from the testimony offered by Dr. Weakley-Jones, and that
no evidence was presented regarding the source of any other injuries that may
have caused the hematoma . Accordingly, the circuit court denied Appellee's
motion to vacate his convictions .
Appellee appealed the denial of his RCr 11 .42 motion to the Court of
Appeals. In an unpublished opinion rendered April 22, 2005, the Court of
Appeals reversed the circuit court's ruling and remanded the case with
instructions that the court grant Appellee a new trial . The Court of Appeals held
that Appellee's counsel rendered ineffective assistance pursuant to the standard
set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed .2d
674 (1984) because he did not hire a forensic pathologist, such as Dr.
Heidingsfelder, to contradict the testimony offered by Dr. Weakley-Jones. We
granted the Commonwealth's petition for discretionary review; and for the
reasons set forth herein, we now reverse the Court of Appeals .
We have, of course, adopted the two-part test set forth in Strickland ,
supra, to determine whether a constitutional claim of ineffective assistance of
counsel has merit . See , ea, Thomason v. Commonwealth , 177 S .W.3d 782
(Ky. 2005) . In order to show ineffective assistance, a defendant must
demonstrate that his trial attorney's performance was both deficient and
prejudicial . Id . at 785 . In this case, the trial attorney's performance was neither
deficient nor prejudicial .
We first note that the trial court's ruling was sound and accurate in its
conclusion that it was not reasonably probable that the outcome of Appellee's
trial would have been different if an expert such as Dr. Heidingsfelder had
testified . As found by the trial court, Dr. Heidingsfelder's ultimate conclusions did
not differ significantly from the testimony offered by Dr. Weakley-Jones .
Although he disagreed with Dr. Weakley-Jones as to her certainty regarding the
age of the subdural hematoma located in the victim's brain, he nonetheless
concluded that the injury causing the hematoma could have been inflicted
anywhere between 12 hours and 5 days prior to the victim's death. Even more
notable was the fact that Dr. Heidingsfelder's testimony contradicted the
extremely favorable testimony offered by Dr. Tolentino (and to some extent, by
Dr. Biggs) that if the victim indeed had a subdural hematoma at the time he
visited the hospital, he either would have been dead within 24 hours or they
would have, at least, noticed signs or symptoms of its presence. Accordingly, we
agree with the trial court that the trial attorney's failure to call an expert such as
Dr. Heidingsfelder was not prejudicial .
Most important, perhaps, to this opinion, however, is that an analysis for
prejudice was not even necessary in this case since the trial attorney's
performance was not deficient. "A defendant is not guaranteed errorless
counsel, or counsel judged ineffective by hindsight, but counsel likely to render
and rendering reasonably effective assistance ." Haight v. Commonwealth , 41
S .W.3d 436, 442 (Ky. 2001). We have repeatedly reiterated that "a strong
presumption [exists] that counsel's conduct falls within the wide range of
reasonable professional assistance ." Id.
Appellee's chief complaint was that Dr. Tolentino and Dr. Biggs were not
qualified as forensic experts by the defense. However, it is not necessary "in all
cases [for] an attorney [to] hire a rebuttal expert witness in order to avoid being
deemed ineffective ." Thompson , supra, at 786. In this case, additional expert
testimony was not critical given the fact that both local doctors testified
substantially in favor of the defense's theory of the case . See Mills v.
Commonwealth , 170 S.W .3d 310, 329 (Ky. 2005) (no ineffective assistance
where trial counsel failed to hire an expert to support his defense of intoxication
because other evidence was produced which tended to support the claim);
Harger v. Commonwealth , 978 S.W.2d 311, 315 (Ky. 1998) (trial counsel's
decision not to present an independent mental health expert was not
unreasonable and was consistent with trial strategy). The trial attorney's decision
to not utilize an outside forensic expert that likely would have contradicted his two
most favorable witnesses was reasonable trial strategy ; and it is neither fair nor
proper for us to question this decision upon hindsight . Simmons v.
Commonwealth , 191 S.W .3d 557, 564 (Ky. 2006) ("The mere fact that appellate
counsel disagrees with the strategy and tactics employed by a veteran defense
lawyer does not result in ineffective assistance by that counsel .") ; Baze v.
Commonwealth , 23 S.W.3d 619, 624 (Ky. 2000) ("It is not the function of this
Court to usurp or second guess counsel's trial strategy .") .
Criminal defense attorneys are no more deemed to have deviated from
the appropriate standard of care due to a bad result than are medical providers .
Counsel in this case put on a good defense for Appellee ; the jury just didn't
accept it. Accordingly, the decision of the Court of Appeals is reversed ; and the
order entered by the Russell Circuit Court denying RCr 11 .42 relief to Appellee is
affirmed .
All concur . Minton, J ., not sitting .
ATTORNEY FOR APPELLANT
Gregory D. Stumbo
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
ATTORNEY FOR APPELLEE
Damon L. Preston
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
Amy Robinson Staples
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
,$uyrrmr Courf of RtufurhV
2005-SC-000348-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM THE COURT OF APPEALS
CASE NO. 2004-CA-000550-MR
RUSSELL CIRCUIT COURT NO. 95-CR-00099
V.
PHILLIP YORK
APPELLEE
ORDER OF CORRECTION
The Opinion of the Court by Justice Scott entered February 22, 2007, is
hereby corrected on its -face by substitution of the attached pages 1 and 5 in lieu
of the original pages 1 and 5 of the opinion . The purpose of this Order of
Correction is to correct a typographical error and does not affect the holding of
the original Opinion of the Court.
ENTERED : February
26 , 2007.
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