Kordenbrock v. Scroggy

• Citation: 889 F.2d 69
• Decision Date: 03 November 1989
• Docket Number: 89-5107,Nos. 88-5467,s. 88-5467
• Parties: Paul KORDENBROCK, Petitioner-Appellant, v. Gene SCROGGY, Warden, Kentucky State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 69

889 F.2d 69

Paul KORDENBROCK, Petitioner-Appellant, v. Gene SCROGGY, Warden, Kentucky State Penitentiary,

Respondent-Appellee.

Nos. 88-5467, 89-5107.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 16, 1989.

Decided Nov. 3, 1989.

Edward C. Monahan (argued), Timothy T. Riddell (argued), Dept. of Public Advocacy, Frankfort, Ky., for Paul Kordenbrock.

Frederic J. Cowan, Atty. Gen., Cicely Jaracz Lambert, Asst. Atty. Gen., Michael L. Harned (argued), Penny R. Warren, Asst. Atty. Gen., Carol C. Ullerich (argued), Office of the Atty. Gen. of Kentucky, Frankfort, Ky., for Gene Scroggy.

Before KENNEDY, KRUPANSKY and WELLFORD, Circuit Judges.

KENNEDY, Circuit Judge.

Appellant Paul Kordenbrock appeals the District Court's denial of his petition for a writ of habeas corpus. Appellant claims that his conviction for intentional murder, for which he received the death penalty, and attempted murder were obtained in violation of his federal constitutional rights. ¹ He raises nine issues on appeal. We agree with the District Court that the introduction of his confession--taken in violation of his Miranda rights--was harmless error, and that the other alleged errors did not violate his constitutional rights. ²

On Friday, January 4, 1980 at 9:30 a.m., appellant Paul Kordenbrock and a codefendant, Michael Kruse, parked across the street from a Florence, Kentucky, Western Auto store. They had planned to steal guns from the store and sell them for drug money. Appellant and Kruse entered the store together. Appellant carried a gun. The owner of Western Auto, William Thompson, was in the front of the store while his employee, Stanley Allen, was in the back. Appellant ordered the men at gunpoint to move to the rear of the store and lie face down. He stood over them with the gun. About that time, Jack Webster and his eight-year-old son came into the store to have his chainsaw repaired. Kruse, posing as a sales clerk, told him they did not do repair work. Webster and his son left, at which point Kruse broke the glass of the gun display case. At that time, appellant shot Allen in the back of the head and Thompson in the neck from a distance of seven to eight feet. Allen died, but Thompson survived. Appellant and Kruse carried the guns to their car and drove off. After they left, Thompson called the police, an ambulance, his wife, and Allen's wife.

The day before the robbery appellant and Kruse were at the Western Auto store from 1:00 to 1:30 p.m. examining wood cutting tools. Thompson was alone at the store and Allen was at lunch. The next day, appellant and Kruse again went to the store at 1:00 p.m., and appellant purchased a hatchet. Appellant also saw several guns in a glass display case and asked to look at a Colt Python pistol. Thompson showed him the gun and appellant and Kruse left the store without incident.

That evening, the two men went to a party at appellant's sister's Cincinnati apartment. Appellant drank beer and whiskey, smoked marijuana, and took some cocaine. He and Kruse spent the night at the apartment, and the next morning appellant drank two beers and took two Quaaludes. They left at 9:00 a.m. to buy a tape deck from a friend of appellant. On the way, they stopped at a gas station where they purchased ten Quaaludes from a Jeffrey Piper. According to Piper, the pair appeared "laid back" on Quaaludes. Appellant and Kruse then went to the Western Auto store and committed the crimes involved in this appeal.

Less than an hour after the robbery, appellant and Kruse went to a Gary Ramell's home where they sold him three of the stolen guns for $200. They then went to the home of Richard Fehler where at 10:30 a.m. they sold two guns, payment for which was due January 15, 1980. According to Fehler, appellant appeared jittery and took some more Quaaludes. That afternoon, appellant met a Larry Hensley who purchased six guns for $300, payable the next day. In the meantime, Ramell saw a newscast about the robbery and murder which included composite drawings resembling appellant and Kruse. Hensley also saw the news and noticed that the guns he bought from appellant came in a Western Auto box containing broken glass. Ramell, Fehler, and Hensley decided to cooperate with the police. Hensley arranged to meet appellant at 10:00 p.m., the day following the robbery, to pay for the guns he received from appellant. Hensley loaned the police his truck, and appellant was arrested at 10:10 p.m. that night. He was taken to the police station for interrogation at about 11:30 p.m. and made a full confession approximately two and one-half to three hours later.

A Kentucky jury convicted appellant of murder and attempted murder. The primary evidence against appellant relating directly to the murder was the testimony of Mr. Thompson and Kordenbrock's confession. The court, upon recommendation of the jury, sentenced appellant to death. Following unsuccessful appeals in Kentucky state courts, he petitioned the District Court for the Eastern District of Kentucky for habeas relief, which was denied. We consider his nine claims of constitutional violations seriatim.

First, appellant claims that since he is indigent, the Constitution entitles him to a state-funded psychiatrist to assist him in the guilt and sentencing phase of his trial. Although appellant did not assert insanity as a defense, ³ he hoped to use psychiatric testimony to establish a defense of diminished responsibility based on his habitual drug and alcohol abuse. He also hoped to use the same testimony for purposes of mitigation in the sentencing phase. For the reasons set out below, we agree with the District Court that appellant was not deprived of any constitutional right.

Appellant obtained the services of a Dr. Melvin Nizny, a Cincinnati, Ohio, psychiatrist. Dr. Nizny examined appellant and gave his attorneys an oral report of his evaluation. Although Dr. Nizny ordinarily did not require payment until after he had testified and even though Dr. Nizny had not submitted a bill, counsel for appellant advised Dr. Nizny that Boone County would refuse to pay his bill. Counsel knew that there was an ongoing dispute over whether the county or the state was responsible for paying experts appointed to assist criminal defendants. Counsel advised the Circuit Court that Dr. Nizny would not give a written report or testify unless he was guaranteed payment. The Circuit Court issued an order directing the Boone County Fiscal Court to pay Dr. Nizny. The Fiscal Court refused to do so. Appellant's counsel made no effort to enforce the order. The District Court found that counsel could have urged the Circuit Court to hold county officials in contempt or to levy on county bank accounts or to subpoena Dr. Nizny to testify.

Dr. Nizny was never advised of the Boone County Court's order directing he be paid one half upon the filing of his report and the other half after he testified. The District Court found that counsel's failure to secure payment and to have Dr. Nizny testify was a deliberate attempt to create an appealable issue. The court concluded that Dr. Nizny's evaluation would not have been useful to appellant's defense, and that his counsel was aware of it. Dr. Nizny's oral report to counsel did not indicate any mental illness. Further, appellant had told Dr. Nizny that on the night before the robbery of the Western Auto store he had robbed a gas station and killed the attendant. The unfavorable nature of Dr. Nizny's report, plus counsel's failure to take any of the obvious steps to obtain Dr. Nizny's assistance, caused the lower court to conclude that appellant was not "denied" psychiatric assistance; he was merely maneuvering to create an appealable issue. Kordenbrock v. Scroggy, 680 F.Supp. 867 (E.D.Ky.1988). This is a factual finding made after an extensive evidentiary hearing which can be set aside only if clearly erroneous. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 616 (6th Cir.1986), cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987). Upon examination of the record, we are not persuaded that a mistake has been made. Id. ("A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.") Although we do not condone the state's refusal to pay Dr. Nizny, we find no constitutional violation.

Counsel's further efforts to secure another psychiatrist failed. The case was again continued (it had previously been continued when Dr. Nizny was unavailable) and the trial court ordered appellant to be examined by a psychiatrist at a state institution who could assist in appellant's defense.

Pursuant to that order, appellant was seen on November 21, 1980, by a Dr. James Bland of Forensic Psychiatry Services, a public hospital operated by the Kentucky Department of Human Resources. Dr. Bland was to examine appellant on the issue of his competency and sanity. Because the state restricted such experts to a neutral and objective evaluation concerning only competence to stand trial and sanity, and because he feared that Dr. Bland's opinion might not remain confidential, appellant's counsel advised him not to cooperate.

On May 15, 1981, appellant requested and was granted the appointment of a Dr. Michael Gureasko to act as a defense psychiatrist. However, on May 18, Dr. Gureasko called the court and told it he would not assist appellant because of a misunderstanding with counsel. The court denied appellant's motion for a further continuance and the case was tried.

Appellant relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) for his claim that the Constitution guarantees him a court-appointed psychiatric expert to assist in his defense and in the penalty phase of trial. Ake held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a...