Gall v. Com., 83-SC-768-TG

• Decision Date: 21 November 1985
• Docket Number: No. 83-SC-768-TG,83-SC-768-TG
• Parties: Eugene Williams GALL, Jr., Respondent/Appellant, v. COMMONWEALTH of Kentucky, Movant/Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 37

702 S.W.2d 37

Eugene Williams GALL, Jr., Respondent/Appellant, v. COMMONWEALTH of Kentucky, Movant/Appellee.

No. 83-SC-768-TG.

Supreme Court of Kentucky.

Nov. 21, 1985.

Rehearing Denied Feb. 6, 1986.

Erwin W. Lewis, Edward C. Monahan, Assistant Public Advocates, Frankfort, for respondent/appellant.

Steven L. Beshear, Atty. Gen., K. Gail Leeco, Asst. Atty. Gen., Frankfort, for movant/appellee.

AKER, Justice.

Eugene W. Gall was convicted of the murder of 12-year-old Lisa Jansen and sentenced to death pursuant to the verdict of a jury under a two-stage trial procedure prescribed by KRS 532.025. This court affirmed his conviction and sentence on September 2, 1980, and modified its opinion on October 14, 1980. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 824 (March 9, 1981). On August 26, 1981, Gall filed an RCr 11.42 motion and request for an evidentiary hearing in the Boone Circuit Court. The court allowed an evidentiary hearing which began on February 23, 1983, and ended three days later whereupon Gall's RCr 11.42 motion was overruled. This court granted transfer of Gall's appeal from the circuit order. We affirm.

Gall first contends that the two public defenders who represented him, Wilbur Zevely and John Berger, rendered such ineffective assistance to him so as to deprive him of his right to counsel under the Sixth and Fourteenth Amendments of the Constitution of the United States, and Section Eleven rights under the Constitution of Kentucky. This court is bound by the principles established by the Supreme Court of the United States in the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in the context of analyzing ineffective assistance of counsel claims under the Sixth and Fourteenth Amendments.

In Strickland, also a death penalty case, the court established a two-prong test for analyzing claims that a defendant has been deprived of a fair trial due to ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. 466 U.S. ----, 104 S.Ct. 2064, 80 L.Ed.2d at 693.

Applying this standard we now turn to Gall's contention that Zevely and Berger rendered such ineffective assistance so as to deprive him of his constitutional right to counsel.

Gall first contends that Zevely and Berger, in deciding to introduce a limited amount of insanity evidence, did not present his insanity defense in a reasonable manner. Specifically, Gall cites counsels' failure to produce records and testimony of his history of mental illness, as inadequate investigation of his insanity defense. Counsel for Gall explained that in order to avoid a "battle of experts" with the Commonwealth on the issue of insanity and the defendant's mental state, they decided to produce only one live expert witness, Dr. Robert Noelker, on the issue of insanity.

Dr. Noelker saw Gall twenty-one or twenty-two times prior to trial. Dr. Noelker's examinations included a diagnostic clinical session, the taking of a history, and the giving of a series of structured and objective tests, some data from which was forwarded to California for blind analysis. Dr. Noelker also had reports available from psychiatrists who had examined and declared Gall incompetent to stand trial on numerous charges of sexual assaults and robberies in 1970. In Dr. Noelker's opinion the records were sufficient and there was no need to visit the psychiatrists who declared him incompetent. Other records which were not obtained for trial, but which were shown to Dr. Noelker later, would not have changed or enhanced his opinion that Gall suffered from chronic paranoid schizophrenia, severe sexual disturbance associated with extreme dangerousness to members of the opposite sex.

Gall cites the case of David v. State of Alabama, 596 F.2d 1214 (5th Cir.1979), in support of his contention that counsels' strategy amounted to "brinksmanship with the defendant's only possible defense", David at 1221. In David, counsels' only witness on the issue of defendant's insanity was the sheriff who arrested defendant and who made the remarkably profound scientific observation that defendant was "quite-fairly strange." Id at 1216. We find counsels' "legwork" in this case far in excess of that in the David case cited by Gall. Likewise, the case of Marzullo v. State of Maryland, 561 F.2d 540 (4th Cir.1977), says nothing in support of Gall's contention that counsels' strategy was deficient.

We find, as did the circuit court, that the decision of Gall's trial attorneys to introduce a limited amount of insanity evidence was a reasonable trial tactic, considering counsels' experience that bringing on a barrage of expert witnesses usually resulted in the defendant losing, and does not amount to ineffective assistance under the first prong of the Strickland test. As for the second prong of the Strickland test, which requires that the allegedly deficient performance by counsel actually prejudice the defense, we agree with the circuit court in its conclusion that Gall's decision to act as his own attorney, combined with his lawyer-like dress and lawyer-like cross-examination questions, gave the appearance to the jury of being in control of himself, and consequently destroyed his insanity defense. In our opinion Gall has failed to prove either prong of the Strickland test, much less both prongs as that test requires. 466 U.S. at ----, 104 S.Ct. at 2064, 80 L.Ed. at 693.

Gall next contends that his attorneys did not present an effective change of venue petition. On September 6, 1978, counsel petitioned for a change of venue. Attached to the petition were thirteen affidavits of "respectable citizens, many of whom were well-known personally to the Court." The affidavits stated that the affiants were familiar with public opinion in Boone County and believed that there was no conceivable way Gall could have a fair trial in Boone County. Also filed with the petition were eighty-three pages of newspaper articles demonstrating extensive media coverage of the crime and Gall. Although Counselor Zevely felt that the petition adequately presented the venue question, it had been his experience with the trial court that venue would not be changed unless and until voir dire demonstrated that an impartial jury could not be impaneled.

This court, in Gall v. Commonwealth, Ky., 607 S.W.2d 97, 101-104 (1980), in an extensive analysis of this issue, determined that Gall had "a panel of impartial, 'indifferent' jurors." Id. at 102, citing Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). "None of the fourteen jurors chosen to hear Gall's case thought he was guilty when preliminarily questioned." 607 S.W.2d at 102. Gall failed to show "the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality." Id. citing Irvin. We concluded:

Finally, in terms of this particular proceeding, the very fact that in a capital case the court was able to complete a 14-member jury (including the alternates) from only 51 venireman utterly refutes the existence of such community prejudice as would prevent the selection of a proper jury. 607 S.W.2d at 102.

Gall cites Harris v. Housewright, 697 F.2d 202 (8th Cir.1982), where two young attorneys appointed to represent a defendant in a capital murder case, one admitted to the bar less than two weeks before appointment, were held to have inadequately represented their client. Gall contends that Harris supports his contention that the mere filing of a newspaper article along with affidavits of residents of the county in which the case is being prosecuted, to the effect that a fair trial cannot be had, is ineffective assistance of counsel. Gall fails to mention some seven odd grievous errors made by the attorneys in that case, including failure to challenge a juror whose brother-in-law was a member of the sheriff's department who had "worked the case." Id. at 207. Another juror was the daughter of the bailiff, who sat at Harris' trial, Id. Although the failure to challenge these jurors was prejudicial in itself, the court nevertheless held: "No single error made by the petitioner's appointed counsel is of constitutional dimension, yet, when viewed cumulatively, the multiple errors revealed in the record, as discussed below, demonstrate that counsel's total performance was below the level of professional skill customary for competent counsel similarly situated." (Citations omitted.) Id. 206.

We are of the opinion that Gall's reliance on Harris is misplaced, especially in light of the fact that, unlike Harris, Gall had an impartial jury. Although we see no deficiency in Attorney Zevely's judgment to not expend any further time and effort to change venue, in light of his experience with the trial court's practice to attempt to first seat an impartial jury, we find that there was no prejudice to Gall under the Strickland standard since Gall had an impartial jury. See Gall v. Commonwealth, Ky., 607 S.W.2d 97, 101-104.

Gall's third contention is that counsel was ineffective in their preparation of the penalty phase of the trial. An abundance of evidence was introduced at the penalty phase. The expert testimony that Gall was insane was equally relevant on the issue of whether Gall suffered from a mental disease or defect which could be...