Kordenbrock v. Com., No. 81-SC-841-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEPHENSON; STEPHENS; LEIBSON; LEIBSON
PartiesPaul KORDENBROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Docket NumberNo. 81-SC-841-MR
Decision Date05 September 1985

Page 384

700 S.W.2d 384
Paul KORDENBROCK, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 81-SC-841-MR
Supreme Court of Kentucky.
Sept. 5, 1985.
Rehearing Denied Dec. 19, 1985.

Page 385

Paul Isaacs, Public Advocate, Edward C. Monahan, Asst. Public Advocate, Timothy T. Riddell, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Penny R. Warren, Asst. Atty. Gen., Cicely D. Jaracz, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENSON, Justice.

Paul Kordenbrock was convicted of first-degree robbery, KRS 515.020, attempted murder of William Thompson, KRS 506.010, and the murder of Stanley Allen, KRS 507.020(2) and KRS 532.025. He was sentenced to twenty years' imprisonment on the first-degree robbery conviction and a consecutive term of twenty years on the attempted murder conviction.

Kordenbrock was sentenced to death for the murder of Stanley Allen. He appeals this sentence. We affirm.

The crimes were committed in a Western Auto Store owned by William Thompson. Two days prior to the incident, Kordenbrock and a friend, Michael Kruse, entered the store, browsed around, and looked at wood-cutting tools. Thompson observed them and became suspicious of their actions. The next day Kordenbrock and Kruse again visited the store, looked at guns in a glass display case, and purchased a small hatchet. Kordenbrock asked Thompson to show one of the guns in the case. Thompson again became suspicious of their motives for visiting the store. Thompson was alone in the store on both visits.

On the day of the murder, Kordenbrock, armed with a pistol, and Kruse entered the store about 9:30 a.m. Pointing the gun, Kordenbrock ordered Thompson and his employee, Allen, to the rear of the store and ordered them to lie face down. Kordenbrock stood over them. A customer entered the store, and Kruse answered a query about repair of chain saws. The customer left. Thompson heard glass break in the store, then heard a shot, and felt a searing sensation on the back of his head. He then heard a second shot. Allen was dead from the gunshot wound. Thompson survived.

Kordenbrock and Kruse divided the stolen guns after leaving the store. About 10:00 a.m., they arrived at the residence of a friend, Gary Ramell. Kordenbrock sold Ramell two of the guns. Ramell testified Kordenbrock appeared mellow, and nothing seemed to be unusual.

Page 386

Next, the pair arrived at the home of Richard Fehler. Kordenbrock sold Fehler two guns. Fehler testified that the pair seemed jittery and that Kordenbrock took Quaaludes.

The following day Kordenbrock drove to a cousin's house, and a Larry Hensley arrived and negotiated with Kordenbrock over the purchase of the guns.

In the meantime, Ramell had seen a news story about the murder and robbery. When Kordenbrock returned from his cousin's, Ramell questioned him about where the guns came from; he had noticed they were in a Western Auto box. Ramell, Fehler, and Hensley cooperated with the police and testified at the trial.

Hensley loaned the police his truck after he arranged to meet Kordenbrock to pay for the guns he had purchased. Kordenbrock was arrested at 10:10 p.m., and after interrogation, made a full confession.

Thompson testified at trial and identified Kordenbrock. Kordenbrock testified at trial and offered testimony that he was intoxicated and on drugs and did not intend to shoot or kill either of the men. After a finding of guilt, the same jury heard testimony in the penalty phase of the trial and recommended the death penalty.

It is in this setting that Kordenbrock argues twenty-nine assertions of error. Those assertions, which we do not address in this opinion, are nevertheless considered and rejected.

Kordenbrock asserts he was improperly sentenced to death without the assistance and testimony of a psychiatrist who had examined him.

This entire controversy centers on the Ohio psychiatrist who examined Kordenbrock, refusing to file a report until he was paid for the work accomplished to that point. The crimes occurred in January 1980; in April 1980, Kordenbrock requested funds to employ a psychiatrist. At a later hearing, the Commonwealth and the trial court agreed that the defense was entitled to a psychiatrist. It is interesting at this point to note that the agreement by the Commonwealth was premised on the assumption there would be an insanity defense or defense of mental disease. The trial court, at a later hearing at which the Commonwealth was excluded, stated that he assumed this need for expert assistance was for the purpose of an insanity defense, and that he had no qualms about experts for diminished capacity or insanity. At the conclusion of the hearing, the trial court ordered funds be made available to employ a psychiatrist. Kordenbrock was examined by a psychiatrist, and we begin a series of continuances based on the controversy surrounding payment of the psychiatrist. The trial was finally commenced and concluded in July of 1981, after the trial court, on June 12, 1981, declined to grant further continuances.

It appears that defense counsel made an agreement with the psychiatrist that he would be paid in two stages. He had completed the examination and demanded payment before he filed his report. The trial court declined to order the fiscal court to pay the fees until the report was filed. The situation was aggravated by a public announcement that the fiscal court would not pay for the expert assistance. This impasse continued, and the case went to trial without the testimony of the psychiatrist.

KRS 31.200(1) provides that any direct expense incurred in representing an indigent "is a charge against the county on behalf of which the service is performed." The trial court had undoubted authority to order the fiscal court to pay the fees ordered. We are of the opinion, however, that the trial court acted prudently in declining to order payment until the report was filed. The proper procedure would have been for the report to be filed and then a proceeding to compel the fiscal court to pay according to the statute. Whether this statute is or is not fair is irrelevant. It is the legislature who determines this. We are of the opinion the trial court committed no error in this respect. If the entire matter were left here, it would provide a difficult problem, particularly if Kordenbrock

Page 387

had raised a defense of insanity. However, there was no insanity defense or any pretense of a defense of mental disease or insanity. In a letter to a psychiatrist, Kordenbrock's lawyer stated he did not presently feel Kordenbrock was insane at the time of the offense.

From a perusal of the hearing and other statements, it appears that the underlying basis for psychiatric testimony was primarily for the penalty phase of the trial. The arguments made in Kordenbrock's brief exemplify this conclusion. His lawyers argue:

Without the assistance of a psychiatrist, defense counsel were unable to present expert testimony on (1) Paul's mental state at the time of his confession; (2) on whether Paul's actions in the Western Auto Store were less than intentional--whether they were wanton, did he act under extreme emotional disturbance; (3) the meaning of and effect on Paul of his motorcycle wreck, his military service, his relationship with his mother and father; (4) the explanation for his heavy use of drugs; (5) what effect Michael Kruse had on Paul; (6) whether Paul was a follower or leader; (7) whether he could be rehabilitated; (8) what factors mitigated Paul's acts.

KRS 31.110(1) provides that indigent defendants are entitled "to be provided with the necessary services and facilities of representation, including investigation and other preparation."

We are of the further opinion Kordenbrock was not entitled to funds for the employment of a psychiatrist to present expert testimony on the above eight subjects. This does not present a case of reasonably necessary expert testimony for the defense in this case. We do not have an Ake v. Oklahoma, --- U.S. ----, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), situation here. There, the defense was insanity; not so here. We do not believe a defendant in a case such as this has a right to a psychiatric fishing expedition at public expense, or an in-depth analysis on matters irrelevant to a legal defense to the crime.

Kordenbrock was offered a psychiatric test at a state facility. Upon being advised this facility would provide only an objective evaluation, Kordenbrock was sent to this facility but was advised by his lawyer not to communicate with the psychiatrist. The examining psychiatrist reported that Kordenbrock was calm, coherent, and exhibited no unusual activity suggestive of mental illness. We find Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), not applicable to this situation. Lockett struck down an Ohio statute for the reason the statute did not permit the consideration of mitigating factors other than the narrow factors authorized by the death penalty statute.

Kordenbrock requested a change of venue. A hearing was held, and the motion denied by the trial court. A hearing was held pursuant to KRS 452.210, which provides that the judge may order the trial to be held in an adjacent county "... if it appears that the defendant or the state cannot have a fair trial in the county where the prosecution is pending...." At the hearing, the trial court was presented with evidence by Kordenbrock about the amount of publicity and percentages of people in the county who knew of the crime, and who thought Kordenbrock was guilty, etc. The Commonwealth presented twenty-four affidavits that public opinion in the county was not such that Kordenbrock could...

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  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...whether venue should be changed, but whether public opinion is so aroused as to preclude a fair trial. Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). The appellants refused the trial court's suggestion of a Pike County jury and the trial judge ordered individual voir dire on the i......
  • Clair v. Commonwealth, No. 1999-SC-0029-MR (KY 2/19/2004), No. 1999-SC-0029-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 19, 2004
    ...S.W.2d 377, 381 (1999). Appellant had no "right to a psychiatric fishing expedition at public expense," Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985). "There is no violation of due process in the refusal to provide for expert witnesses when the defendant offers little more th......
  • Kordenbrock v. Scroggy, Nos. 88-5467
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 30, 1991
    ...to the Kentucky Supreme Court asserting 29 possible errors, none of which the court found to have merit. Kordenbrock v. Commonwealth, 700 S.W.2d 384 (Ky.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 He next sought habeas relief before the District Court in Kentucky. The......
  • Bowling v. Haeberlin, Civil No. 03-28-ART
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • September 28, 2012
    ...testimony "primarily for the penalty phasePage 127of the trial" because the testimony is "irrelevant to a legal defense to the crime." 700 S.W.2d 384, 387 (Ky. 1985) (citing Ake and KRS § 31.110); see also Section VII.A.3 infra (collecting Kentucky case law holding that defendants in Bowlin......
  • Request a trial to view additional results
57 cases
  • Hodge v. White, CIVIL ACTION NO. 13-5-DLB-EBA
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 17, 2016
    ...whether venue should be changed, but whether public opinion is so aroused as to preclude a fair trial. Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). The appellants refused the trial court's suggestion of a Pike County jury and the trial judge ordered individual voir dire on the i......
  • Clair v. Commonwealth, No. 1999-SC-0029-MR (KY 2/19/2004), No. 1999-SC-0029-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 19, 2004
    ...S.W.2d 377, 381 (1999). Appellant had no "right to a psychiatric fishing expedition at public expense," Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985). "There is no violation of due process in the refusal to provide for expert witnesses when the defendant offers little more th......
  • Kordenbrock v. Scroggy, Nos. 88-5467
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 30, 1991
    ...to the Kentucky Supreme Court asserting 29 possible errors, none of which the court found to have merit. Kordenbrock v. Commonwealth, 700 S.W.2d 384 (Ky.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 He next sought habeas relief before the District Court in Kentucky. The......
  • Bowling v. Haeberlin, Civil No. 03-28-ART
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • September 28, 2012
    ...testimony "primarily for the penalty phasePage 127of the trial" because the testimony is "irrelevant to a legal defense to the crime." 700 S.W.2d 384, 387 (Ky. 1985) (citing Ake and KRS § 31.110); see also Section VII.A.3 infra (collecting Kentucky case law holding that defendants in Bowlin......
  • Request a trial to view additional results

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