Skaggs v. Com., 89-SC-484-DG

• Decision Date: 08 November 1990
• Docket Number: No. 89-SC-484-DG,89-SC-484-DG
• Citation: 803 S.W.2d 573
• Parties: David Leroy SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 573

803 S.W.2d 573

David Leroy SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 89-SC-484-DG.

Supreme Court of Kentucky.

Nov. 8, 1990.

Rehearing Denied March 14, 1991.

Rodney McDaniel, Linda K. West, Asst. Public Advocates, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., David A. Smith, Carol C. Ullerich, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, for appellee.

COMBS, Justice.

David Leroy Skaggs, incarcerated under sentence of death, filed an RCr 11.42 motion to vacate sentence and an RCr 10.02 motion for new trial. Forgoing an evidentiary hearing, the circuit court denied relief. The Court of Appeals affirmed. We granted discretionary review.

Skaggs was convicted of the 1981 robbery and murder of an elderly couple in their home, and of associated burglary. Upon direct appeal and automatic sentence review, this Court affirmed. See Skaggs v. Commonwealth, Ky., 694 S.W.2d 672 (1985).

In a 1985 unpublished memorandum opinion (84-SC-1181-TG), we also upheld the denial of Skaggs' first motion for new trial. That motion offered as grounds the newly discovered evidence that the expert witness through whom the defense of insanity had been presented, one Bresler, had lately been exposed as a fake and a fraud, belying the trial testimony through which he had portrayed himself as a well-credentialed doctor of forensic psychology. Because the jury had had no reason to doubt Bresler's qualifications, and because he had testified as favorably for the defendant as a bona fide psychologist would have done, we concluded that substitution for Bresler would not have affected the outcome of the trial. We also noted that the defense had refused the services of a state psychiatrist, and had been granted funds with which to employ an expert of its choice.

Skaggs would now resurrect the Bresler issue as an element of his RCr 11.42 motion, arguing that the selection of Bresler, in conjunction with other alleged missteps by appointed counsel, demonstrates that the defendant did not enjoy effective assistance at trial. Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Skaggs urges that due process requires that he be afforded access to a competent psychiatrist. We have no quarrel with this proposition, although it may be noted that the issue in Ake was access to a psychiatrist, not her/his competence. The Ake decision deplored, as a deprivation of due process, a trial court's refusal either to appoint or to provide funds for a psychiatrist to examine an indigent defendant whose sanity was viably in issue. In contrast, the present record reveals that the trial court, after having offered to appoint a psychiatrist, acceded to the defendant's preference for an allocation of funds. The court could have done no more in providing access to competent psychiatric assistance; its actions bespeak faithful adherence, rather than an affront, to due process.

Appellant insists that he was nonetheless prejudiced, as surely as if the state, and not the defense, had provided a counterfeit psychologist. But in the present context at least, the prejudice must be persuasively shown. One challenging the effectiveness of counsel must establish: (1) that counsel's performance was so seriously flawed as to have vitiated the defendant's right to counsel as guaranteed by the Sixth Amendment; and (2) that counsel's deficiencies prejudiced the defense, resulting in an unfair trial (i.e. an unreliable verdict). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1986).

Appellant views our 1985 holding that the Bresler presentation created no substantial prejudice as palpably erroneous, and invites us now to seize the opportunity to reverse ourselves. To buttress this position, it is argued (as it might have been argued on the original motion for new trial) that the defense, had it consulted a legitimate psychologist, might have altered its entire trial strategy, eschewing the insanity theory altogether. Moreover, the prejudice is said to appear more telling in light of other irregularities alleged in the recent motions.

Assuming for the moment that counsel's failure to detect Bresler as a fraud demonstrates a constitutionally defective performance, we remain unconvinced that the incident, either singly or in accumulation, affected the ultimate reliability of the trial result. Including a well-corroborated confession (about which we shall have more to say, infra ), the evidence overwhelmingly identified Skaggs as the perpetrator of the crimes, rendering implausible any defense except, possibly, insanity. Having again examined Bresler's testimony, even with the advantage of hindsight, we find the defense to have been credibly presented, favorably to the defendant, to a jury having no cause to doubt the witness's expertise.

Appellant asserts that trial counsel were prejudicially ineffective in failing to object to certain of the jury instructions. As part of its instruction on robbery in the first degree, the court required, for a verdict of guilty, findings that the defendant "took, or stole, a sum of money," from the victims, and that "in the course of so doing and with the intent [ ] he shot and killed" the victims. (Brackets added.) Appellant contends that insertion of the phrase "to accomplish the theft," (at our brackets) was indispensable to a correct instruction, intent to accomplish theft being an element of the offense of robbery. See KRS 515.020. It is arguable that the instruction was adequate, if somewhat vague. In the given context, one might easily read the word intent, connected by "in the course of so doing," as referring to the taking of money. But even assuming the instruction to have been erroneous in this particular, we fail to perceive any resultant prejudice to the defendant. The record is replete with evidence that the sole motive for the crimes was the acquisition of money, and that the theft was in fact accomplished. We are confident beyond doubt that the verdict would have been no different under a more precise robbery instruction.

Trial counsel also failed to object to an obviously and positively erroneous penalty phase instruction defining "aggravating circumstances" to mean "factors to show death is the appropriate sentence." (Emphasis added.) The vice of this proposition lies in its implication that where aggravating circumstances are found, death is the only appropriate penalty. Affirming on direct appeal in 1985, we concluded that the jury was well aware of its option not to impose the death penalty, even if it found aggravating circumstances to exist. Skaggs v. Commonwealth, supra, 694 S.W.2d at 679. The presence of the erroneous definition does not persuade us otherwise. The trial court's instruction 3 states that imposition of the death penalty, upon a finding of aggravating circumstances, is within the jury's discretion. And instruction 4(b) reads:

If upon the whole case you have...