Rank v. Commonwealth
| Decision Date | 23 September 2022 |
| Docket Number | 2019-CA-1491-MR |
| Parties | DOUGLAS RANK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
DOUGLAS RANK APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE
No. 2019-CA-1491-MR
Court of Appeals of Kentucky
September 23, 2022
NOT TO BE PUBLISHED
Appeal from Kenton Circuit Court Honorable Julie Reinhardt Ward, Special Judge Action NO. 10-CR-00186
Briefs for Appellant: Douglas Rank, pro se West Liberty, Kentucky
Brief for Appellee: Daniel Cameron Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
Before: Dixon, McNeill, and Taylor, Judges.
OPINION
DIXON, JUDGE
Douglas Rank appeals pro se from an order of the Kenton Circuit Court, entered February 11, 2020, denying his RCr[1] 11.42 motion. After careful review of the briefs, record, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On February 21, 2010, Rank, then a practicing psychiatrist, stabbed his client and paramour, Misty Luke, with a sword. Thereafter, Rank was charged with attempted murder and retained Robert Gettys to represent him. In October 2010, Rank pled guilty to assault first degree on the Commonwealth's recommendation of a 15-year sentence but with the opportunity to argue for the minimum of 10 years. To establish the factual predicate supporting the plea, the Commonwealth noted that Luke's injuries - a collapsed lung and damage to her internal organs from a stab wound to her abdomen - required surgery and an extended hospitalization, and caused lingering mental and physical impairments.
Dr. Miller, a private forensic psychologist retained by Gettys, testified in mitigation at Rank's sentencing hearing in December 2010. Therein, Dr. Miller stated that after interviewing Rank for three-and-a-half hours, as well as reviewing the presentence investigation, the KCPC[2] report determining that Rank was competent, and Luke's deposition and victim impact statement, he diagnosed Rank with Schizotypal Personality Disorder - a treatable medical condition. Dr. Miller opined that Rank would be at an advantage for treatment because he was intelligent, introspective, and knowledgeable of the psychotherapy process, and
that successful treatment would reduce the risk to society. Unpersuaded, the court then imposed the recommended 15-year sentence.
In December 2011, Rank filed an RCr 11.42 motion alleging various instances of ineffective assistance of counsel. The court denied the motion but was reversed in part on appeal. Commonwealth v. Rank, 494 S.W.3d 476 (Ky. 2016). On remand, in accordance with Rank, an evidentiary hearing was held to ascertain (1) the reasonableness of Gettys' investigation into the viability of an extreme emotional distress (EED)[3] defense, and (2) whether Gettys advised Rank as to the merits of pursuing an EED defense at trial as opposed to entering the plea.
At the hearing, Rank called Doug Hamilton, Larry Hamilton, and Larry Hamilton, Jr. (collectively "the Hamiltons") to give their accounts of the night of the attack. They testified that while they were watching television on the
second floor of their building, they heard screaming from the third floor where Rank resided. On the third floor, Doug and Larry, Jr., found Rank physically struggling with Luke, yelling that he was going to kill her, striking at her with a sword, and threatening Doug when he attempted to intercede. Doug was able to distract Rank by throwing a book in his face, ultimately disarming him and removing Luke from the room. Rank remained agitated, struggled with Doug and Larry, and expressed his desire to retrieve his gun in order to commit "suicide by cop." The Hamiltons assert that Rank's behavior was out of character generally, and specifically, Doug stated that Rank had been calm and collected earlier in the evening. The Hamiltons denied that anyone from Rank's defense team ever discussed the attack with them.
Rank testified that his relationship with Luke had been tense in the time preceding the attack and the two fought frequently about, among other issues, whether she had relapsed. On the day prior to the attack, Luke was with her sister, with whom Rank suspected she had relapsed; she did not come to bed, and she was not there in the morning. On the day of the attack, Rank returned to the building and, after briefly stopping on the second floor to speak with the Hamiltons, saw Luke on the third floor. Not wanting to fight, Rank went to a side room where he kept the sword. After a terse phone conversation with Luke, Luke texted Rank saying she was leaving him and ending the relationship. Rank testified that ten
seconds later, agitated and enraged, he grabbed the sword for an unknown purpose, went into their room, and saw himself stabbing Luke.
Rank claimed that neither Gettys nor Patrick Hickey, who assisted Gettys, ever inquired about the attack or explained to him what EED was, the merits of an EED defense, what investigation had been conducted, or what his defense would be at trial, though he admits Gettys investigated both insanity and involuntary intoxication defenses. Rank admitted that he never attempted to recall what occurred during the attack until after his RCr 11.42 motion was denied in May 2012, explaining that no one, including Gettys or Dr. Miller, ever inquired. He stated that after his motion was denied, a legal aide began to teach him about EED, and he was compelled to remember in order to write the statement of facts. Rank admits his memory of the night is not as clear as the memories he makes now, citing the fact he did not have the Hamiltons' statements until 2015, but specifically denies that he ever claimed to have no memory of the attack.
Dr. Miller testified that during his March 2010 forensic interview of Rank, Rank denied having any memory of the attack or the circumstances preceding. He also stated that, being familiar with Kentucky EED law, he had considered the defense during his evaluation of Rank but that he could not report it within reasonable medical certainty. Dr. Miller conceded that his file contains no
notations regarding EED, that he did not perform any collateral interviews with the Hamiltons or Luke, and he did not review the Hamiltons' interviews with police.
Dr. Edward Connor, a licensed clinical psychologist, testified that following his evaluation of Rank in September 2017, he considered EED a possible defense. He elaborated that he had identified a triggering event - Luke's text message saying "Thank you for the experience" - which Rank interpreted as terminating their relationship, and Rank's emotional pre-disposition to overreact due to his fear of loneliness, his history of depression and paranoia, and his alcohol and substance abuse. Dr. Connor's determination was guided by: statements made by Luke during a deposition for a civil action that she wanted to protect Rank from people attempting to take advantage of him, that Rank attacked her ten seconds after she sent the above referenced text, and that during the attack Rank's voice was strange and she did not know him; Rank's statements during Dr. Connor's evaluation that he came unglued after reading her text and he saw himself stabbing her; and the Hamiltons' statements that Rank wanted to go out in a blaze of glory.
Dr. Connor asserted that he would not have been able to formulate an opinion on EED without seeing the interviews or depositions of collateral sources, but he conceded to do so was not outside the realm of professional practice. Dr. Connor acknowledged that his evaluation benefited from several sources that were not available to Dr. Miller, including Luke's civil action deposition, and as a result,
Rank's EED defense may have improved with time. Finally, Dr. Connor conceded that the matter was complicated by the fact Rank, a trained psychiatrist, had several years to familiarize himself with EED.
Gettys affirmed that he was familiar with EED and was aware that it was a potential defense. His reported investigation included reviewing the statements of the Hamiltons and Luke to police, as well as the media coverage of the event; communicating with the Hamiltons, Luke's sister, Rank's ex-wife, numerous people in the area of Rank's home and psychiatric practice, and Luke, through Hickey; obtaining a copy of the Kentucky Board of Medical Licensure's investigation into allegations against Rank; retaining Dr. Miller with whom he discussed EED in terms of uncontrollable urges and temporary insanity; and discussing with Hickey whether to pursue an EED defense at trial.
Gettys stated that Rank denied having any memory of the relevant events, refused to answer his questions, and was physically intimidating when pressed for information. Through his investigation of other sources, Gettys learned that eight weeks preceding the attack with the sword, Rank, angry that Luke had been with her sister, threw what he erroneously led...
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