Sanders v. Com., 1999-SC-0115-MR.

• Decision Date: 13 June 2002
• Docket Number: No. 1999-SC-0115-MR.,No. 1999-SC-0395-MR.,No. 1999-SC-0195-MR.,1999-SC-0115-MR.,1999-SC-0195-MR.,1999-SC-0395-MR.
• Citation: 89 S.W.3d 380
• Parties: David SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 380

89 S.W.3d 380

David SANDERS, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0115-MR.

No. 1999-SC-0195-MR.

No. 1999-SC-0395-MR.

Supreme Court of Kentucky.

June 13, 2002.

Rehearing Denied December 19, 2002.

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Elizabeth R. Stovall, Susan M.J. Martin, Department of Public Advocacy, Frankfort, KY, for appellant.

Albert B. Chandler III, Attorney General, Connie V. Malone, Assistant Attorney General, Ian G. Sonego, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, for appellee.

WINTERSHEIMER, Justice.

This appeal is taken from an order of the Madison Circuit Court denying a RCr 11.42 motion by Sanders and his motion pursuant to CR 59.05.Sanders seeks relief from his conviction for two capital murders and two robberies for which he received two death sentences and two twenty-year sentences.

In 1987, Sanders was convicted of killing and robbing the proprietor of a convenience store and a visitor who was in the store.Each victim was shot once in the back of the head.At trial, insanity was the sole defense.In 1990, this Court affirmed the conviction on direct appeal in Sanders v. Commonwealth, Ky., 801 S.W.2d 665(1990).Sanders filed a petition for writ of certiorari in the United States Supreme Court which was denied in Sanders v. Kentucky,502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76(1991), and rehearing was subsequently denied in Sanders v. Kentucky,502 U.S. 1000, 112 S.Ct. 623, 116 L.Ed.2d 645(1991).In 1993, he filed a RCr 11.42 motion in the circuit court which was denied by an order entered January 28, 1999, without a hearing.In February 1999, Sanders filed a pro se notice of appeal and motion to suspend the rules until appointment of counsel.Shortly thereafter, counsel for the Department of Public Advocacy filed a CR 59 motion to reconsider.The attorney who filed the CR 59 motion also filed a notice of appeal from the January 1999 order denying RCr 11.42 relief.The circuit judge denied the CR 59.05 motion on March 9, 1999.A notice of appeal from this order was also filed.The three appeals in this case have been consolidated in this opinion.

I.Standard of Review

We believe it is prudent to again set out the standard of review of claims raised in a collateral attack pursuant to RCr 11.42.Such a motion is limited to issues that were not and could not be raised on direct appeal.Sanborn v. Commonwealth, Ky., 975 S.W.2d 905(1998).An issue raised and rejected on direct appeal may not be relitigated in these proceedings by claiming 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).

Even in a capital case, a RCr 11.42 movant is not automatically entitled to an evidentiary hearing.Stanford, supra.An evidentiary hearing is not required concerning issues refuted by the record of the trial court.Stanford.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.Sanborn, supra.

Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), upheld the decision of a state court not to conduct an evidentiary hearing on claims of ineffective assistance of counsel.Strickland, supra, notes that the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment.

II.The Flenning Report

The right to confrontation was not violated because defense counsel cross-examined Dr. Walker without restriction.Due process does not require the prosecutor to disclose information already known by the defendant or counsel and available from a third party.

Sanders contends that the prosecutor was constitutionally required to obtain Dr. Flenning's report and provide it to his counsel pursuant to Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).We cannot agree.Essentially, his argument is that his attorney could have done a better job of arguing his insanity if he had additional information contained in the Flenning report.In considering the report together with all other reports involved, the conclusion by Dr. Flenning is not inconsistent with Dr. Walker's testimony at trial.

Sanders never denied his involvement in the crime, but he claims that the report supports his defense of insanity.Any evidence withheld must be favorable to the accused and be material to either guilt or punishment.Brady, supra.Our review of the Flenning report indicates that it is not exculpatory and it does not support the defense of insanity.Here, the only question to consider as to whether the report is exculpatory is if it supports the insanity defense.Original trial counsel had access to the report of Dr. Walker in which she summarized the interview with Dr. Flenning.Because this report did not support the defense of insanity and could actually damage Sanders, it was not necessary to call the doctor as a witness.

Reliance by Sanders on Pennsylvania v. Ritchie,480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40(1987), is misplaced because that case involved a government investigation of child abuse conducted by social workers employed by a Pennsylvania agency.The U.S. Supreme Court held that the investigation file should be reviewed by the trial court for potential exculpatory or impeachment information under Brady and rejected the argument that only a review by defense counsel would be constitutionally adequate.The investigators were not acting at the request of defense counsel and did not submit a report for review by defense counsel.

Sanders has the burden of establishing that there is a reasonable probability that the result of the trial would have been different if the allegedly withheld exculpatory documents were disclosed to the defense.Strickler v. Greene,527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286(1999).Claim of error must establish prejudice so as to produce ineffective assistance of counsel.It is not enough for the defendant to show that the error by counsel had some conceivable effect on the outcome of the proceeding.Strickland.

Sanders argues that Strickland should not apply to his trial lawyer because that counsel was subsequently disbarred in an unrelated matter after this trial.Kentucky Bar Ass'n v. Kevin Charters, Ky., 89-SC-148-KB.There is no persuasive authority submitted by Sanders to presume that counsel was incompetent to try his criminal case.Other courts have applied Strickland in similar cases after rejecting the per se ineffectiveness argument.SeeUnited States v. Rondon,204 F.3d 376(2d Cir.2000);State v. McCroy,259 Neb. 709, 613 N.W.2d 1(2000).A reviewing court should consider the overall performance of counsel throughout the case in order to determine whether the acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.Cf. Strickland.A reasonable investigation is not the investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources but also with the inestimable benefit of hindsight would conduct.Thomas v. Gilmore,144 F.3d 513(7th Cir.1998);Cf.Baze v. Commonwealth, Ky., 23 S.W.3d 619(2000).

An evidentiary hearing is not automatically necessary in every case to ascertain whether the performance of defense counsel was reasonable.Such an inquiry is objective in nature and is presumed to be reasonable.Cf.Chandler v. United States,218 F.3d 1305(11th Cir.2000).

The use of the Flenning report to cross-examine Dr. Walker, or by calling Dr. Flenning; as a witness would have resulted in a reinforcement of the argument by the prosecutor about inconsistencies in Sanders' statements and illustrate that Sanders repeatedly changed his version of various events as he was interviewed by different evaluators.The circuit judge correctly rejected the complaints by Sanders about the testimony of Dr. Walker and the report of Dr. Flenning.

III.Pretrial Statements

Sanders contends that his trial counsel was ineffective for failing to move to suppress statements that he gave to police before trial.Trial counsel was not ineffective because he failed to seek suppression of Sanders' pretrial statements.We agree with the trial court that Sanders cannot establish prejudice connected with this claim because he has not shown that a motion to suppress would have been successful.On the contrary, his alleged assertions of a desire to stop further questioning or to consult with an attorney do not even rise to the level of being "equivocal."His claim that his statements were involuntary due to his state of mind is conclusory and unsupported.In addition, in making a decision on prejudice, the Court should consider all the evidence presented against Sanders.Even if a motion to suppress his statement had been made and sustained, considering the strength of the other evidence presented against Sanders, the outcome of the trial would not have been different.

IV.Inconsistent Statements

Trial counsel was not ineffective because of the repeated inconsistencies in statements given by Sanders to police and KCPC staff.The mere fact that Sanders asked to talk to police during the sixth and final interview does not support an inference that the police were forcing him to speak against his will.Sanders testified at trial, admitted his guilt and was certainly free to explain the statements he made to police if they were a result of being coerced or intimidated by the police.

Trial counsel pursued a trial strategy consistent with the statements Sanders had provided to police during his last interview, admitting to the criminal acts, but denying responsibility by virtue of mental disassociative reaction.Trial counsel was not under a duty to try to convince the jury that...