Commonwealth v. Tigue, 2011–SC–000737–DG

• Decision Date: 14 May 2015
• Docket Number: 2011–SC–000737–DG,2012–SC–000599–DG
• Parties: Commonwealth of Kentucky, Appellant/Cross–Appellee v. Shawn Tigue, Appellee/Cross–Appellant
• Court: United States State Supreme Court — District of Kentucky

459 S.W.3d 372

Commonwealth of Kentucky, Appellant/Cross–Appellee

v.Shawn Tigue, Appellee/Cross–Appellant

2011–SC–000737–DG

2012–SC–000599–DG

Supreme Court of Kentucky.

RENDERED: MAY 14, 2015

COUNSEL FOR APPELLANT/CROSS–APPELLEE: Jack Conway, Attorney General, William Bryan Jones, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601

COUNSEL FOR APPELLEE/CROSS–APPELLANT: Meggan Elizabeth Smith, Department of Public Advocacy, Assistant Public Advocate, 207 Parker Drive, Suite 1, LaGrange, Kentucky 40031

Opinion

OPINION OF THE COURT BY JUSTICE NOBLE

This case raises primarily two issues. First, does a defendant's pro se request to withdraw his guilty plea constitute a critical stage of the proceedings at which the right to counsel attaches, and, if so, is that right violated when trial counsel refuses to assist in the request or to seek alternative counsel? Second, does trial counsel's complete failure to investigate an alleged alternative perpetrator constitute reversible ineffective assistance of counsel? The Court of Appeals agreed under the first issue that such a request is a critical stage and that the Appellant, Shawn Tigue, was denied counsel when he sought to withdraw his guilty plea. Based on this error, the court reversed Tigue's convictions and ordered the case remanded “for a new trial.”¹

This Court agrees that Tigue's right to counsel was violated when he asked to withdraw his plea, but disagrees that his conviction should be reversed for that error, as his relief is limited to reversal of the trial court's final judgment, not his guilty plea. This Court nevertheless affirms the judgment of the Court of Appeals on other grounds by reaching the second issue and finding ineffective assistance of counsel.

I. Background

Bertha Bradshaw was murdered in her Bell County home on the morning of April 11, 2003, by a shotgun blast to the back of her left shoulder. At the time she was shot, she was covered and lying in her bed with her head at the foot of the bed and her feet at its head. Several items were taken from the home, including her purse, several bottles of pills and unfilled drug prescriptions, a Remington 12–gauge pump shotgun, and a green canvas “squirrel bag” belonging to Bradshaw's husband. The kitchen door had been damaged and forcibly entered.

A neighbor told the police that she had seen a maroon Chevrolet pickup truck belonging to Shawn Tigue backed into Bradshaw's driveway between ten-thirty and eleven o'clock that morning. When the police located the truck, Tigue was in the passenger seat and his wife was driving. Police stopped the truck, asked them to exit the vehicle, and searched them for weapons. A pill bottle with a scratched-up label and containing three different types of pills was found in Tigue's pocket. Tigue was then arrested and taken into custody. A search of his truck revealed the green squirrel bag containing assorted 12–gauge shotgun shells.

After Tigue was taken into custody, he signed a waiver of his Miranda rights and was questioned about the murder by Detective Donald Perry. Tigue appeared to Detective Perry to be high at that time, but the detective concluded that he was still able to comprehend the situation based on Tigue's asking if he could still stop the questioning even after signing the waiver. During this interview, Tigue told detectives that he was prescribed the hydrocodone found in his pill bottle and that he had purchased the other two types of pills, which were both alprazolam (commonly known by its tradename, Xanax ). He denied knowing anything about Bradshaw's murder and consented to a search of his house, where detectives found no evidence linking him to the shooting. He was then taken to jail on drug charges.

From what remained of the label on the pill bottle in Tigue's possession at the time of his arrest, Detective Perry was able to determine that it was a prescription for alprazolam written for Bertha Bradshaw that had been filled at a Rite Aid Pharmacy in Pineville, Kentucky, at about noon on the day of Bradshaw's murder. The pharmacist's description of the man who had filled the prescription matched that of Tigue.

The next day, April 12, Detective Perry interviewed Tigue again. Tigue admitted to having filled the prescription at Rite Aid. When questioned about the green bag that was found in his truck, Tigue stated that his neighbor, Danny Smith, had come to his house and given him those items between 10:00 a.m. and noon the day before, effectively pointing toward Smith as the murderer. He said that Smith had told him to fill the prescription and get rid of the bag, and that he could have half of the alprazolam for doing so. Detective Perry then left to try to find Smith.

It is apparently at this time that Tigue would later claim he was overcome with fear that Smith would retaliate against his family. Before Detective Perry was able to locate Smith, dispatch informed him that Tigue had asked that he return. Upon Detective Perry's return, Tigue confessed to breaking into Bradshaw's house, shooting her with the shotgun, and taking the items. After confessing to the crimes, he told the detective where he had hidden the shotgun. He then took the police to the hidden shotgun and consented for them to retrieve from his house the blue flannel shirt he had been wearing during the commission of the crimes. Tigue was then taken back to the jail and charged with murder and first-degree burglary.

Despite his confession, Tigue thereafter maintained his innocence. He claims that in his first discussion with defense counsel,² he told them that his confession was false and that he knew who had actually killed Bradshaw, though he would not say who the killer was. Tigue would later elaborate that while he had in fact illegally entered the Bradshaw home and taken the pills, money, and other items, he had done so only after Smith had earlier shot and killed Bradshaw with the shotgun and told him to go get the items he took. This version of events would have established an alternative perpetrator defense to the murder.

But Tigue never named Smith as the murderer to his counsel, although he claims he tried to tell the DPA investigator, Lisa Saylor, about Smith and what had actually happened, but she “blew [him] off.” She allegedly told him there was nothing to be done about it because he confessed. He maintained his innocence from his first contact with counsel and told them he wanted to go to trial. Tigue claimed that his reluctance to name Smith again throughout was driven by his fear that doing so would put his family's safety at risk from retaliation by Smith.

Tigue was arraigned on May 16, 2003, at which time the court found him to be indigent and appointed Cotha Hudson from DPA to represent him. He also entered a plea of not guilty to all charges. Before the final pretrial conference on September 3, Hudson filed a motion for bond, which was denied, and the Commonwealth filed a notice of intent to seek the death penalty based on the statutory aggravator in KRS 535.025(2)(a)(2) of a murder committed during the commission of a burglary.

Tigue was represented at the pretrial conference by another DPA lawyer, Lowell Lundy, who had been assigned as co-counsel once the death penalty was put in play. The case was assigned for trial on March 30, 2004.

Thereafter, the circuit court's record is devoid of any activity in the case until January 12, 2004, when Lundy reluctantly filed, at Tigue's insistence,³ a motion to suppress the confession and other evidence allegedly obtained in violation of Tigue's constitutional rights. Two days later and with similar reluctance, Hudson filed a motion for a psychiatric examination and in-patient treatment for Tigue, and attached to it a three-page medical record of an emergency room visit for psychiatric care on April 23, 1998.⁴ Both motions were noticed for hearing on January 23, but Hudson agreed at the hearing to have both held in abeyance. Lundy orally moved to withdraw the motions at a subsequent hearing on January 27.

Leaning heavily on the confession, Tigue's counsel was quite candid and unambiguous about the fact that their entire pre-trial strategy had been geared solely toward brokering a plea deal with the Commonwealth to avoid the possibility of a death sentence. Despite his counsel's advice to seek a plea bargain, Tigue initially refused to consider pleading guilty and instead insisted on going to trial to prove that he was not Bradshaw's murderer. His months-long obstinacy ultimately ended on February 2, 2004, however, when he capitulated to the pleas of family members and his defense team and decided to accept a plea bargain, under which he would be sentenced to life without the possibility of probation or parole for 25 years in exchange for his guilty plea.

With Lundy present at the plea hearing, the trial judge conducted a plea colloquy, during which Tigue answered “yes” when asked whether the statements contained in the plea agreement about his guilt were true; whether his plea was knowingly, intelligently, and voluntarily entered; whether he understood that he was waiving his constitutional rights, including the right to a trial by jury and the right to appeal; and whether he was satisfied with his counsel. At the conclusion of the hearing, the judge advised Tigue that if he had any questions, he could ask them when he returned for sentencing, which was delayed until February 26 to allow for completion of the presentence investigation report under KRS 532.050. At the conclusion of the plea hearing, Lundy Filed with the court formal written notices of withdrawal of the motions to suppress and for psychiatric evaluation.

Soon after returning to the jail, however, Tigue called his counsel and family members to tell them that he wished to withdraw the guilty plea, which he claimed was false and involuntary. And in the weeks that followed, he made numerous...