Kordenbrock v. Scroggy

Decision Date16 February 1988
Docket NumberCiv. A. No. 86-186.
Citation680 F. Supp. 867
PartiesPaul KORDENBROCK, Petitioner, v. Gene SCROGGY, Warden, Kentucky State Penitentiary, Respondent.
CourtU.S. District Court — Eastern District of Kentucky

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Edward C. Monohan, Timothy T. Riddell, Dept. of Public Advocacy, Frankfort, Ky., for petitioner.

Penny R. Warren, Cicely Jaracz Lambert, Frankfort, Ky., for respondent.

OPINION AND ORDER

BERTELSMAN, District Judge.

Petitioner, Paul Kordenbrock, received the death penalty after he was convicted of murder by a jury in a Kentucky trial court. His appeal was affirmed by the Kentucky Supreme Court. The case is now before this court for habeas corpus review. 28 U.S.C. § 2254.

The background facts of this case were ably presented by the Kentucky Supreme Court in Kordenbrock v. Commonwealth, 700 S.W.2d 384 (Ky.1985). The Court there stated as follows:

"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.
"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."

Id. at 385-86.

Kordenbrock now seeks a writ of habeas corpus from this court claiming twentythree assertions of error. Further facts as appropriate will be set forth in connection with the discussion of the various issues.

ISSUE I — Was petitioner improperly deprived of a court appointed defense psychiatrist?

At first glance, the facts relevant to the issue concerning appointment of the psychiatrist in this case seemed confused. However, a final evidentiary hearing clarified the circumstances and the issue is not as difficult to resolve as it first appeared.

Briefly this is what happened. Early on, counsel for the defense in this case determined that there was no possibility of an insanity defense or of claiming that Kordenbrock was incompetent to stand trial. Counsel hoped, however, to be able to raise a defense of diminished responsibility based on Kordenbrock's habitual use of drugs. Also, counsel wanted to secure the evaluation of a psychiatrist for possible use in mitigation. Therefore, counsel moved the state trial court for appointment of a defense psychiatrist. The court granted the motion pursuant to KRS 31.110(1). The defense arranged for Dr. Nizny to act as psychiatrist and had Kordenbrock evaluated by him. Based on the evidentiary hearing and the testimony of Dr. Nizny, the court finds that his preliminary report to defense counsel was unfavorable in that it had to include the fact that defendant had committed another murder the night before he committed the one in question and also that he had an "anti-social personality," that is, he had no regard for the rights of his fellow man or woman. Also, Dr. Nizny concluded and reported that it could not be said that rehabilitation was probable.

For these reasons, it was apparent that the testimony of Dr. Nizny would not be helpful to Kordenbrock's case. However, able defense counsel saw an ingenious way to turn this dilemma to Kordenbrock's advantage.

At that time, there was an ongoing dispute between Boone County and the Commonwealth of Kentucky as to who would pay for experts required by statute to be appointed to assist indigent criminal defendants. Counsel knew from previous cases that the Boone County Fiscal Court would initially refuse to pay Dr. Nizny. Therefore, counsel accurately represented to the court that Dr. Nizny would not file a report and testify unless some public agency would acknowledge that it was responsible for payment for his services. Counsel secured orders from the Boone Circuit Court requiring payment but made no meaningful efforts to enforce them. The court finds that this was a deliberate defense tactic to create an appealable issue, and that the testimony of Dr. Nizny was not really desired by or useful to the defense. The court finds that no competent defense counsel would have called Dr. Nizny to testify and calling him to testify might have constituted ineffective assistance of counsel. This finding is based on the testimony of Dr. Nizny himself. As part of that testimony, he drew up and filed a report on his evaluation of Kordenbrock just prior to the evidentiary hearing in this court. This report would not have been helpful to Kordenbrock. Further, Dr. Nizny testified that he never insisted on advance payment or partial payment, but only wanted some official assurance of payment.

Further, Dr. Nizny testified that he would have honored a subpoena from the state court even though served on him in Ohio. This service was not accomplished although it could easily have been. Further, defense counsel did not take the obvious step of bringing the matter to a head by moving to hold one or more county officials in contempt or levying on a county bank account, which would then have allowed the county to appeal and secure a ruling from a higher state court.

The court has had the opportunity to observe defense counsel in this and other cases and he is far too capable to overlook these obvious steps, if the testimony of the psychiatrist had really been desired. Therefore, the court finds that failure to obtain the psychiatrist was a deliberate defense tactic.

When Dr. Nizny refused to cooperate, the trial court ordered Kordenbrock evaluated by a neutral psychiatrist at a state facility. Although Kordenbrock was transferred to the state facility, on the advice of counsel he refused to cooperate with the psychiatrists there by not giving them an adequate history. The court finds that this was also a deliberate strategy by able defense counsel because he knew from Dr. Nizny's preliminary report, which any competent counsel would have secured before requesting a written report, that psychiatric testimony would probably not be of help to Kordenbrock.

The court finds that, had Kordenbrock cooperated with the doctors at the state facility, testimony could have been obtained from them in both the guilt and penalty phases, but that the testimony would have been neutral and would probably have included an opinion that it was unlikely that Kordenbrock would in the future refrain from criminal dangerous behavior if he was ever released. The court finds that the testimony could have been obtained in spite of the formal policy of the Department to provide psychiatric evaluations solely on competency and insanity by the device of subpoenaing the doctors from the facility to testify to their opinions on these subjects. However, defense counsel quite properly determined that a neutral evaluation would not help his client's case and, therefore, as a deliberate defense strategy advised his client not to cooperate. All of this was entirely proper and indeed required of an able defense attorney, but the defense cannot have it both ways. It cannot turn down a neutral psychiatric evaluation and then claim an error that it was deprived of such evaluation.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985), the Supreme Court of the United States discussed the circumstances when an indigent defendant in a capital case is entitled to a court-appointed psychiatrist. The holding of Ake is that he is entitled to such assistance.

The narrow holding of Ake is that a defendant in a capital case is entitled to be evaluated by a court appointed neutral psychiatrist, if his sanity is in issue or if the state introduces psychiatric testimony in the penalty phase. Neither of these situations prevails here.

The language of Ake is somewhat...

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