Com. v. Bussell

• Decision Date: 21 June 2007
• Docket Number: No. 2006-SC-000001-MR.,2006-SC-000001-MR.
• Citation: 226 S.W.3d 96
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Charles BUSSELL, Appellee.
• Court: Supreme Court of Kentucky

226 S.W.3d 96

COMMONWEALTH of Kentucky, Appellant, v. Charles BUSSELL, Appellee.

No. 2006-SC-000001-MR.

Supreme Court of Kentucky.

June 21, 2007.

Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Frankfort, Counsel for Appellant.

Susan J. Martin, Assistant Public Advocate, Owensboro, David Hare Harshaw, III, Assistant Public Advocate, LaGrange, Theodore S. Shouse, Assistant Public Advocate, Shepherdsville, Counsel for Appellee.

OPINION OF THE COURT

The Commonwealth of Kentucky appeals from an order of the Christian Circuit Court vacating Appellee's, Charles Bussell's, death sentence and granting him a new trial. This case has been before this Court on several previous occasions, and thus a detailed discussion of the facts is unnecessary, except as is necessary to articulate the issues on this appeal.

In 1991, Bussell was convicted of the December 1, 1990, robbery and murder of Sue Lail. He was sentenced to death and his conviction and sentence were affirmed upon direct appeal to this Court.¹ Thereafter, we rejected Bussell's attempts² to delay the filing of an RCr 11.42 motion in the face of the governor's death warrant.³ And, in 2004, this Court denied the Commonwealth's petition for a writ of prohibition in Commonwealth v. Boteler.⁴

The matter before us began on March 26, 1996, when Bussell moved the Christian Circuit Court for relief pursuant to RCr 11.42, alleging numerous Brady⁵ violations and alleging ineffective assistance of counsel. Judge Charles Boteler was assigned as Special Judge. After various legal maneuvers, Judge Boteler granted an evidentiary hearing, which lasted nine days over the course of more than a year and which involved the testimony of sixty-four witnesses. On December 28, 2005, Judge Boteler granted Bussell a new trial. It is from this order that the Commonwealth appeals, arguing that the trial court committed several errors, viz., (1) that it erred in granting a new trial based on alleged Brady violations, and (2) that it erred in finding that Bussell was deprived of effective assistance of counsel during the penalty phase of his trial.

I. Alleged Brady violations.

As a reviewing court, on this RCr 11.42 appeal, we must defer to the findings of fact and determinations of witness credibility made by the trial judge.⁶ Thus, unless the trial court's findings of fact are clearly erroneous, those findings must stand.⁷

In Brady v. Maryland,⁸ the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."⁹ Under the Brady doctrine, evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."¹⁰ This Court reviews de novo whether the particular material at issue falls under Brady.¹¹ A "reasonable probability" may be defined as "a probability sufficient to undermine confidence in the outcome."¹²

The duty to disclose exculpatory evidence is applicable regardless of whether or not there has been a request by the accused,¹³ and the duty to disclose encompasses impeachment as well as other exculpatory evidence.¹⁴ Brady only applies to information "which had been known to the prosecution but unknown to the defense."¹⁵ With these guidelines in mind, we will examine each argument propounded by Appellant, the Commonwealth, disputing the existence of Brady violations.

In his RCr 11.42 motion, Bussell alleged that the Commonwealth failed to turn over to his trial counsel exculpatory evidence in violation of Brady. Specifically, Bussell claimed the Commonwealth failed to disclose numerous police reports in violation of Brady and the trial court's discovery order entered September 6, 1991. This order required the Commonwealth to disclose all police reports and statements of witnesses expected to testify. In its order granting Bussell a new trial, the circuit court found that the undisclosed police reports would have suggested the possibility of an alternate suspect in Mrs. Lail's death.

Six of the nine police reports found to have been undisclosed to the defense were compiled by Detective Mary Martins of the Hopkinsville Police Department. The reports disclosed the following information: (1) report on December 4, 1990, that there were new pry marks on the outside and inner portions of the door leading to screen portion of Lail's home as well as a broken lock on the door, signs suggesting forced entry; (2) report on December 5, 1990, indicating a plaster cast of a tire print found in Lail's yard; (3) report on December 11, 1990, memorializing Martins' conversation with an employee of a gas company who saw Lail the day before she disappeared and indicating that Lail's gas bill was paid December 3, 1990, two days after she disappeared; (4) report on January 19, 1991, based on statements from a confidential informant, and suggesting two other possible suspects in Lail's death; (5) report on January 22, 1991, reflecting a conversation Martins had with Don Bilyeau, a store owner in the area, in which Bilyeau reported that the black male he had seen in the area of Lail's house on the day of her disappearance had just been in his store; and (6) report on February 24, 1991, reflecting a conversation Martins had with Brian Cunningham, an employee of a local radio station who advised Martins that he checked a transmitter daily near the place where Lail's body was found.

The three remaining police reports discussed by the circuit court contained the following: (1) December 5, 1990, report that Lail had just had new carpet installed and, as a result, her front door would not close, suggesting easy entry with minimal force; (2) December 8, 1990, report where Don Bilyeau stated that he saw a black male or someone other than Bussell walking up Lail's driveway or her neighbor's driveway at about 4:00 p.m. on or about the day Lail disappeared; and (3) January 3, 1991, report in which Christian County Sheriff's deputy Bobby Dale Williams stated that a confidential informant had reported seeing a red GMC pickup backed up to Lail's home between 11:00 p.m. and 11:30 p.m. near the night of December 1, 1990.

At the RCr 11.42 hearing, the court heard testimony from circuit judge John Atkins, who at the time of Bussell's trial was the prosecutor who tried the case. The court also heard the testimony of Rob Embry, first-chair defense trial counsel, and Delissa Milburn, second-chair defense trial counsel.

Judge Atkins testified that, after the passage of thirteen years, he had no specific recollection of whether the police failed to provide him with any particular items of discovery or exculpatory evidence during his prosecution of Bussell or whether he had failed to turn over any items of discovery or exculpatory evidence. Embry, a convicted felon by the time of Bussell's evidentiary hearing on his RCr 11.42 motion, testified that he did not remember seeing or receiving several of the police reports during his defense of Bussell. However, Milburn, who assisted Embry in Bussell's defense, testified that at least after the September 6, 1991, discovery order was entered, there was no violation of the discovery rules or the discovery order and that to her knowledge the defense had received "everything [they] had asked for" by the day the trial began on November 18, 1991.

The Commonwealth contends that the trial court erred in accepting the testimony of a convicted felon, Embry, over that of Judge Atkins, and that the trial court completely disregarded Milburn's testimony on the matter. While the Commonwealth is correct that the burden is on the defendant to prove that evidence favorable to him was withheld and to show that there is a reasonable probability the result of the trial would have been different had the exculpatory evidence been disclosed to the defense,¹⁶ we cannot agree that Judge Boteler erred in this case. We are ever mindful that the trial court is in the best position to determine the credibility of witnesses and this Court should not second-guess credibility determinations.¹⁷ The circuit court found that the evidence presented at the RCr 11.42 hearing "clearly establishes that more likely than not these nine reports were never disclosed to [Bussell's] defense team." This finding is conclusive.

Whether the evidence withheld was material and met the standard of reasonable probability of a different result at trial, we rely on Kyles v. Whitley¹⁸ as follows:

While the definition of Bagley¹⁹ materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden.... [T]he prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.²⁰

Under the totality of the circumstances as found by the trial court, we agree that those reports known to the prosecution and withheld for whatever reason were material to Bussell's guilt. Moreover, while not every police report discussed during the evidentiary hearing was exculpatory or was otherwise...