Sanborn v. Com.

• Decision Date: 18 June 1998
• Docket Number: No. 96-SC-939-MR,96-SC-939-MR
• Citation: 975 S.W.2d 905
• Parties: Parramore Lee SANBORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 905

975 S.W.2d 905

Parramore Lee SANBORN, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-939-MR.

Supreme Court of Kentucky.

June 18, 1998.

As Modified on Denial of Rehearing

Oct. 15, 1998.

Randall L. Wheeler, Karl Keys, Assistant Public Advocates, Department of Public Advocacy, Frankfort, for appellant.

A.B. Chandler, III, Attorney General, Connie Vance Malone, David A. Smith, Assistant Attorney General, Ian G. Sonego, Susan Roncarti, Assistant Attorneys General, Criminal Appellate Division, Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a denial of a RCr 11.42 motion seeking the vacation of the murder, kidnapping, rape and sodomy convictions and the sentence of death for the murder and 95 years for the kidnapping, rape and sodomy.

The questions presented are whether the trial judge prejudged Sanborn's ineffective assistance of counsel claims; whether Sanborn was denied meaningful preparation and presentation of the issues in his RCr 11.42 proceeding; whether the circuit court, or this Court, denied him a meaningful process for the development and presentation of issues; whether governmental misconduct rendered his conviction and death sentence unreliable and denied him the constitutional right of due process and a fair trial; whether there was juror misconduct; whether Sanborn's trial counsel was ineffective; whether the death sentence was constitutionally inappropriate; whether there was cumulative error and whether the page limitation on this appeal denied him effective assistance of counsel.

This Court reversed Sanborn's first conviction in Sanborn v. Commonwealth, Ky., 754 S.W.2d 534(1988), but subsequently affirmed the conviction and sentences which followed his second trial in Sanborn v. Commonwealth, Ky., 892 S.W.2d 542(1994).He now appeals the denial of his RCr 11.42 motion.

Sanborn committed the crimes of which he was convicted on the night of October 12, 1983 or during the early morning hours of the following day.He abducted the female victim from her home in Henry County where she lived with her husband and three children.He attacked her, raped her, sodomized her and stabbed her numerous times.Her body was found a few miles from her home.At his second trial, the jury found Sanborn guilty of intentional murder, kidnapping, first-degree rape and first-degree sodomy.The jury fixed a sentence of death for the intentional murder and 95 years on each of the noncapital offenses.The trial judge approved the death sentence and ordered the other sentences to run consecutively for a total of 285 years.This Court affirmed the second conviction and the U.S. Supreme Court denied certiorari in Sanborn v. Kentucky, 516 U.S. 1034, 116 S.Ct. 687, 133 L.Ed.2d 534(1995).Subsequently, the circuit court held an evidentiary hearing regarding the RCr 11.42 motion of Sanborn.After the hearing was concluded, the circuit judge denied the RCr 11.42 motion.

We believe it is prudent to set out the standard of review of claims raised in a collateral attack under RCr 11.42.Such a motion is limited to issues that were not and could not be raised on direct appeal.An issue raised and rejected on direct appeal may not be relitigated in these proceedings by claiming that it amounts to ineffective assistance of counsel.Brown v. Commonwealth, Ky., 788 S.W.2d 500(1990);Stanford v. Commonwealth, Ky., 854 S.W.2d 742(1993).

An evidentiary hearing is not required about issues refuted by the record of the trial court.Stanford, supra.Conclusionary allegations which are not supported by specific facts do not justify an evidentiary hearing because RCr 11.42 does not require a hearing to serve the function of a discovery deposition.Stanford.When the trial court conducts an evidentiary hearing, the reviewing court must defer to the determinations of fact and witness credibility made by the trial judge.McQueen v. Commonwealth, Ky., 721 S.W.2d 694(1986);Commonwealth v. Anderson, Ky., 934 S.W.2d 276(1996);McQueen v. Scroggy, 99 F.3d 1302(6th Cir.1996).

I

The circuit judge did not prejudge Sanborn's claim of ineffective assistance of counsel.The judge stated that he would consider any evidence presented at the hearing before making a final determination.Sanborn had sought to disqualify Special Judge Shadoan who had presided over the retrial and served as the judge in the RCr 11.42 proceeding.To support his claim, he offers certain statements by the circuit judge in which he both praised and criticized the performance of the Department of Public Advocacycounsel.

The statements are inconsistent and certainly do not indicate any prejudgment.The Chief Justice of this Court denied the motion to recuse Judge Shadoan.The statements of the circuit judge clearly demonstrate that he was applying the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).The comments by the judge do not provide a legal basis to disqualify him from reviewing the motion.This Court has adopted standards for disqualification in Marlowe v. Commonwealth, Ky., 709 S.W.2d 424(1986), which parallel those enunciated by the United States Supreme Court in Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474(1994).

II

Sanborn was not denied meaningful preparation or presentation of issues in his RCr 11.42 proceeding.Sanborn and his counsel had sufficient time in which to prepare appropriate issues for the RCr 11.42 motion.His conviction was affirmed in all respects on October 27, 1994; on October 2, 1995, the U.S. Supreme Court denied certiorari.The Governor signed a death warrant on January 3, 1996 which was 122 days after the denial of certiorari.On January 26, 1996, six days before the scheduled February 1, 1996 execution, the Supreme Court entered an order granting Sanborn a 60-day stay of execution.On March 26, 1996, the very date on which the temporary stay of execution was to expire, Sanborn filed this motion.The evidentiary hearing was conducted on August 12 and 13, 1996.Sanborn had more than ten months to file the necessary motions to prepare for an evidentiary hearing.

Pursuant to RCr 9.04, counsel for Sanborn were unable to identify any witnesses or evidence or claims that with any degree of specificity would have been able to present had they been granted a postponement of the hearing.

The complaint by Sanborn that he was not provided with funding before the filing of his RCr 11.42 motion is without merit.The circuit court does not have jurisdiction regarding pre-RCr 11.42 motions.Bowling v. Commonwealth, Ky., 926 S.W.2d 667(1996).

III

Neither the circuit court, nor this Court, denied Sanborn a meaningful process for the development and presentation of his issues.There is no authority to support ex parte motions for hearings for expert funding in a RCr 11.42 proceeding.Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985), is not a post-conviction case.The issue in that case related to the preparation of a trial defense and the right to access to psychiatric examination.It does not apply to every matter relating to the funding of experts for indigent defendants at every stage of a criminal case.SeeBaze v. Commonwealth, Ky., 965 S.W.2d 817(1997).

The allegations that the DPA policy requiring a court order for the release of funds for experts and the fact that there is no jurisdiction for pre-RCr 11.42 motions, thereby compelling him to file an inadequate motion are without merit.Initially we must observe that the purpose of an RCr 11.42 motion is to provide a forum for known grievances and not an opportunity to conduct a fishing expedition for potential grievances.SeeGilliam v. Commonwealth, Ky., 652 S.W.2d 856(1983).

The Court ordered the DPA to pay $1,000 for the assistance of an investigator and they chose to spend that sum to have the trial record reviewed.The claim by Sanborn that RCr 7.24 authorizes discovery in this proceeding is erroneous.RCr 7.24 relates to pretrial discovery, not discovery in a post-conviction situation.Moreover Sanborn failed to make any specific showing of the materiality as required by RCr 7.24(2).

The complaint by Sanborn about lack of access to the disciplinary file of the Kentucky Bar Association relating to Commonwealth Attorney Bruce Hamilton was raised on direct appeal.This issue may not be relitigated by means of a RCr 11.24.

The circuit judge did not abuse his discretion by denying defense counsel the right to raise issues that could have been and might have been raised on direct appeal.The Sanborn motion raised a number of issues other than ineffective assistance of counsel and those claims were devoid of specific facts as required by the rule and were lacking in any factual basis to establish why such claims could not have been raised on direct appeal.

The decision by the circuit judge to review one box of Sanborn's trial attorneys' files and materials and to allow the Commonwealth to review those materials was not error because Sanborn made claims of ineffective assistance of counsel thereby waiving the attorney-client privilege and the work product privilege.SeeState v. Taylor, N.C., 327 N.C. 147, 393 S.E.2d 801 at 806-7(1990);Gall v. Commonwealth, Ky., 702 S.W.2d 37(1985).The circuit judge reviewed the files in order to determine that there was nothing that the Commonwealth should not have been able to see.The Commonwealth did not receive access to the files until 19 minutes before the hearing ended.Under all the circumstances, the error if any was totally harmless and Sanborn does not show how his collateral attack was prejudiced in any manner.

IV

Sanborn presents a general complaint of governmental misconduct relying on the requirements that the government disclose exculpatory evidence or information which was first adopted by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215...