Conley v. Commonwealth

• Decision Date: 13 June 2019
• Docket Number: 2017-SC-000291-MR
• Citation: 599 S.W.3d 756
• Parties: Lara Paige CONLEY, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

599 S.W.3d 756

Lara Paige CONLEY, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2017-SC-000291-MR

Supreme Court of Kentucky.

JUNE 13, 2019

JULY 25, 2019

COUNSEL FOR APPELLANT: Emily Holt Rhorer, Assistant Public Advocate, Department of Public Advocacy

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Thomas Allen Van De Rostyne, Assistant Attorney General

OPINION OF THE COURT BY JUSTICE BUCKINGHAM

The U.S. Supreme Court held in Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense[.]" Id. at 83, 105 S.Ct. 1087. The application of the principles in Ake by the trial court in this case led to errors that require us to vacate Lara Paige Conley's conviction and 27-year sentence for the murder of her mother and remand the case for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

Conley testified that on the night of the incident (March 24, 2015), she and her mother, Carlene Conley, had been arguing, as they frequently did. According to Conley, at one point her mother hit her in the head with a heavy object as Conley was letting her dog out of its cage. After wrestling on the kitchen floor, Conley stabbed Carlene to death. According to Conley, she has no memory of the fight or calling 911.

Citing KRS ¹ 31.185, Conley, who was indigent, initially filed a motion seeking funds to hire a mental health expert to assist her in preparing for trial. She supported her motion with evidence that she has a history of various mental illnesses, including bipolar disorder

, disassociation, depression, post-traumatic stress disorder, anxiety, and panic attacks. Further, the circumstances surrounding the murder, including 77 stab wounds, 27 incise wounds, and two bite marks to Carlene's body, raised clear indications that there were potentially significant mental health issues involved in the case that might prove crucial to Conley's defense.

Stating that the motion "failed to establish reasonable necessity," the trial court denied the motion. In lieu of authorizing funds for a private expert witness, the court instead ordered Conley to KCPC² for a mental evaluation that was conducted by staff member Dr. Amy Trivette. That order was in substitution of Conley's request for an independent mental health expert.

Following the completion of Dr. Trivette's report, the trial court reversed its initial ruling and held that Conley was entitled to an independent mental health expert under Ake , and it authorized funds for Conley to retain Dr. Ed Conner as an expert witness. The Commonwealth subsequently invoked its right to a mental health expert to contest Dr. Conner's findings and opinions. See RCr ³ 8.07(2)(B). The trial court resolved the Commonwealth's request for an expert witness by effectively repurposing Dr. Trivette from her initial role as Conley's witness to the new role of being the Commonwealth's witness. Under this ruling, Dr. Trivette "changed sides" and became a witness against Conley.

At the end of the trial, the trial court instructed the jury on wanton and intentional murder, first-degree manslaughter (extreme emotional disturbance (EED) with no intent to kill), second-degree manslaughter, and all perfect and imperfect self-protection defenses. The self-defense instructions included, over Conley's objection, an initial aggressor qualification instruction. The jury found Conley guilty of murder and recommended a sentence of 27 years in prison. The trial court entered a judgment consistent with the jury's verdict and sentencing recommendation. This appeal by Conley followed.

II. MENTAL HEALTH ISSUES AND CONLEY'S ENTITLEMENT TO AN EXPERT WITNESS UNDER AKE v. OKLAHOMA

Conley initially filed an ex parte motion for funds to retain Dr. Ed Connor "to assist with preparation of the client's defense."

In her motion Conley informed the court that she had records documenting her history of mental health issues and that she had consumed large quantities of vodka daily, had not slept in three or four days, and had ingested a very large quantity Dramamine

close in time to the stabbing. The motion further noted that Conley had suffered injuries the night of the stabbing and had been treated previously for abuse by her mother.

The motion also specifically stated it would not be appropriate to send Conley, who was indigent, to KCPC because "by their own admission and policy they cannot act as a defense expert witness." Conley attached a letter from KCPC to that effect to her motion. KCPC stated in its letter that it "cannot act in the capacity of a defense expert," that KCPC's "interviews with inmates are not confidential," and that "we do not consult with defense attorneys to help them cross-examine prosecution witnesses." In other words, the KCPC letter indicated it would not provide its services as an independent mental health expert loyal to the defense such as would be expected under Ake principles.

The trial court denied Conley's motion for funds to hire Dr. Connor on the basis that the defense "failed to establish reasonable necessity for same." See Woodall v. Commonwealth , 63 S.W.3d 104, 126 (Ky. 2001) (the standard of review for a claim of error with respect to a court's denial of a defendant's motion for funding to conduct additional neuropsychological testing is whether there was a reasonable necessity for such funding). Under the circumstances of this case, where Conley had an extensive history of prior mental illness, her potential intoxication at the time of the stabbing, and, most importantly, the horrendous injuries that were inflicted upon her own mother, we conclude the trial court erred by denying Conley funds to hire Dr. Conner at the time of this initial ruling.

In lieu of providing funds for a mental health expert, the trial court instead, inconsistently with the objective of Conley's motion, referred her to KCPC for a criminal responsibility examination. The trial court obviously intended its ruling to be that the KCPC examination would be for Conley's benefit and use in the preparation of her defense and in substitution for her request for a private mental health expert. Clearly, KCPC interpreted the order that way as well because upon the completion of her report, Dr. Trivette sent it directly to defense counsel. Thereafter, Conley was admitted to KCPC and evaluated by Dr. Amy Trivette, who concluded that Conley was not absolved from her involvement in the death by reason of insanity.

Conley subsequently renewed her request for expert witness funds to hire Dr. Connor. In her motion Conley contended that Dr. Trivette's examination was insufficient because all KCPC did was examine her for criminal responsibility, but that she needed an independent expert such as Dr. Connor who would investigate and evaluate all her psychological issues, including other possible relevant mental health issues, possible EED issues, and potential mitigation factors at sentencing.

Ultimately, the trial court relented, reversed its original ruling, and allocated funds for Conley to retain Dr. Conner as a mental health expert witness. Because of other continuing errors relating to the issue, however, this belated allocation of funds to retain Dr. Conner did not fully cure the prejudice associated with the initial error in denying Conley's motion for expert witness funds and instead sending her to KCPC.

Subsequently, Conley filed notice other intention to introduce expert testimony relating to mental illness as to the issues of guilt and punishment pursuant to RCr 8.07(2)(A)(iii). In response the Commonwealth filed a motion for a rebuttal mental health examination pursuant to RCr 8.07(2)(B). In its motion the Commonwealth stated it wanted the KCPC criminal responsibility report prepared by Dr. Trivette in lieu of a separate independent mental health examination, and it requested a copy of her report from defense counsel. Defense counsel refused to provide the report, stating the Commonwealth was not entitled to Dr. Trivette's report because Conley was not raising an insanity defense. The Commonwealth responded that it appeared the defense was going to mount an EED defense and that it was entitled to the report.

Conley noted she had not wanted to go to KCPC in the first place, but the court would not give other funding. Therefore, she maintained she was, in effect, forced into that situation because, as the trial court's order in sending her to KCPC was part of the defense investigation, the report was protected attorney-client work product, and the Commonwealth was therefore not entitled to it. In opposition to providing the KCPC report, Conley also noted she had now retained an independent mental health expert, Dr. Conner, and that the Commonwealth would receive his report when complete. She further argued that the Commonwealth was not entitled to the KCPC report because she would not be using the report at trial.

The Commonwealth maintained it should get the KCPC report because it would moot the need for an independent mental health examination as a rebuttal to Dr. Conner. Conley agreed the Commonwealth was entitled to their own examination of Conley pursuant to RCr 8.07(2)(B), but she contended the Commonwealth was not entitled to the KCPC report because it was protected defense work product, and further, it would create a conflict of interest if the Commonwealth were to be adjudged entitled to the report. Conley argued that the only reason the Commonwealth would be entitled to the KCPC report was if she were mounting a criminal responsibility defense—an insanity defense—which she was not.

The trial court initially agreed with Conley that it was a conflict of interest for the Commonwealth to...