Wilson v. Com.
| Decision Date | 04 June 1992 |
| Docket Number | No. 88-SC-896-MR,88-SC-896-MR |
| Citation | 836 S.W.2d 872 |
| Parties | Gregory WILSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David Bruck, Chief Atty., South Carolina Office of Appellate Defense, Columbia, S.C., Mario Gerald Conte, Jr., San Diego, Cal., Robert W. Carran, Covington, for appellant.
Chris Gorman, Atty. Gen., David A. Smith, Asst. Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
Mary Broderick, Director, Defender Div., Nat. Legal Aid & Defender Ass'n, Washington, D.C., Margery B. Koosed, Professor of Law, University of Akron School of Law, Akron, Ohio, Russell J. Baldani, Baldani, Rowland & Richardson, Lexington, for amicus curiae Nat. Legal Aid and Defender Ass'n.
Gregory Wilson appeals from a judgment based on a jury verdict which convicted him of murder, kidnapping, first-degree rape, first-degree robbery and criminal conspiracy to commit robbery. He was sentenced to death on the murder and kidnapping convictions and to consecutive prison terms of 20, 20 and 10 years respectively for first-degree rape, first-degree robbery and criminal conspiracy to commit robbery.
The victim was a restaurant employee in Newport. On Friday, May 29, 1987 at 11:45 p.m., she left her best friend's house and said she was going straight home. The prosecution presented evidence that she had just parked her car outside of her apartment in Covington when she was abducted by Wilson and co-defendant Humphrey at knife point.
Testimony at trial from various sources, including Humphrey, indicated that the victim was forced into the back seat of her own car. Humphrey drove the car to the flood wall in Covington. Wilson took the victim out of the car and took her up on the flood wall and made her lie down with her eyes closed while Humphrey went to put gas in the car. After Humphrey returned from the gas station, Wilson again forced the victim into the back seat of the car.
Wilson made the victim unbutton her blouse. Wilson finished undressing the victim and raped her. He then tied her hands with a lamp cord, and the victim began begging for her life. Wilson told her she would have to die. Humphrey said, The victim kept begging, Wilson robbed her and strangled her to death before they crossed the state line into Indiana.
Wilson and Humphrey disposed of the victim's naked corpse in a wooded thicket in rural Hendrix County, Indiana. Later that same morning, Saturday, May 30, Wilson and Humphrey stopped at a Holiday Inn in Crawfordsville, Indiana. According to a registration card, Humphrey and a guest checked into the hotel at 4:19 a.m. Two of the maids there identified the pair as Wilson and Humphrey.
Wilson and Humphrey proceeded to a Payless Shoe Store in Danville, Illinois where the victim's credit card was used to purchase two pairs of women's shoes and some hosiery. Later that same day, May 30, 1987, Wilson and Humphrey went to a K-Mart in Danville where the victim's credit card was used to make purchases totalling $227.46. Included in these purchases were a man's Seiko watch and a woman's Gruen watch for $68.00 each. Wilson and Humphrey also paid cash for a number of cosmetic items and some clothing. Later that day, the victim's credit card was used to make a $24.50 purchase at an Amoco gas station in Urbana-Champagne, Illinois.
On Sunday, May 31, Wilson and Humphrey returned to the home of Humphrey's best friend, Beverly Finkenstead. Finkenstead testified that Humphrey had a K-Mart bag with a blouse in it. They both had a watch on and were each wearing a necklace. On Sunday, June 7, Humphrey visited Finkenstead and told her details of the crimes in which she and Wilson had participated the previous weekend. Eight days later, on June 15, Finkenstead reported to the police what Humphrey had told her. Also on June 15, the Hendrix County, Indiana Sheriff's Department was summoned to a wooded thicket where a corpse had been discovered.
Authorities were able to determine the identity of the corpse only by comparing its remaining teeth with the victim's dental X-rays. The cause of death could not be determined due to the absence of internal organs. A forensic entomologist testified that, based on the extent of blowfly maggot development in and on the corpse, the estimated time of death had occurred 15 to 19 days prior to his June 16 examination of the corpse.
Wilson told cell mate Willis Maloney details of the crimes including that the initial intent had been to "snatch" the victim and rob her; that the victim was still alive when her money was taken from her; that the victim was killed before they crossed the state line into Indiana; that the corpse would be so badly decomposed that no sperm would show up; and that they had used the victim's credit card to purchase, among other things, a watch Wilson was wearing at the time of his arrest which Humphrey later obtained by signing it out from one of the jailers. Wilson also told Maloney, "I bet they can't find what I used to strangle her with."
Maloney's and Humphrey's account of the rape was corroborated by the presence of semen on the back seat of the victim's car. Head hairs similar to those belonging to Humphrey were found inside the victim's car. Pubic and head hairs similar to those belonging to Wilson were also found inside the victim's car. A handwriting expert established that Humphrey had authored the forged credit card receipts. A search of the hotel room where Wilson and Humphrey were arrested produced various items of clothing, all bearing K-Mart price tags.
Humphrey was the only defense witness during the guilt/innocence phase of the trial. Wilson gave his own closing argument in which he told the jury he was not guilty, he "never met nor knew the victim" and that Humphrey told her sister that she killed the victim. The jury returned guilty verdicts against both defendants. After the penalty phase, Wilson was sentenced to death for kidnapping and murder. He was sentenced to consecutive prison terms of 20, 20 and 10 years respectively for first-degree rape, first-degree robbery and criminal conspiracy to commit robbery.
Wilson, through appellate counsel, raises twenty-four assignments of alleged error in this appeal. We have carefully reviewed all the issues presented by Wilson and this opinion will concentrate on the question of whether Wilson was denied his right to counsel or effective assistance by the appointment of volunteer counsel William Hagedorn and John Foote. Allegations which we consider to be without merit will not be addressed here.
Wilson argues that the trial court deprived him of his right to counsel, effective assistance of counsel and equal protection by refusing to grant his pretrial motion to discharge his appointed volunteer counsel who he claims were not competent to represent a capital defendant.
On July 1, 1987, Clyde Richardson and Steve Megerle were appointed to represent Wilson. Trial was set for October 27, 1987. Richardson filed an affidavit concerning his poor health and sought a continuance. At a subsequent hearing, Megerle revealed that he wanted to withdraw because of a conflict since he had previously represented witnesses for the Commonwealth.
On November 9, 1987, Megerle was permitted to withdraw and Kevin McNally from the Department of Public Advocacy was appointed and advised that another local counsel would be appointed soon. At a subsequent hearing, the trial judge set a September, 1988 trial date and indicated that he would help the local public defender administrator, Robert Carran, find local counsel. In the meantime, McNally filed a motion to withdraw because he was resigning from the DPA and had never planned to be lead counsel in the case. The DPA declined to replace McNally. Public Advocate Paul Isaacs testified that even though DPA lawyers had handled all 34 of Kentucky's other capital cases, they were too busy to take on this one. On May 17, 1988, Judge Lape posted at the Kenton County Courthouse a "Plea" for counsel to represent Wilson.
On June 1, 1988, the trial court entered an order permitting McNally to withdraw from representing Wilson and ordered him to turn over Wilson's file to William Hagedorn, who had responded to the Judge's plea for counsel, with an offer to represent Wilson pro bono as lead counsel. He also appointed John Foote and Sharon Sullivan, ordered that Richardson remain as co-counsel and ordered that Richardson, Foote and Sullivan "shall be allowed the appropriate fee for their services through the Northern Kentucky Public Defender, Inc." Sullivan, two weeks later, asked the Court to reconsider the order appointing her as counsel.
On July 6, 1988, the trial court permitted Richardson and Sullivan to withdraw and directed Richardson to turn Wilson's file over to Hagedorn. Wilson then filed a pro se motion to disqualify Judge Lape and objected to the order regarding turning over his files. A hearing on Wilson's motion was conducted on August 16, 1988. Wilson was represented at the hearing by Mario Conte of the National Association of Criminal Defense Lawyers. Wilson's apparent purpose was to argue that Hagedorn and Foote were not competent to represent him in a capital case. When Conte attempted to bring forth evidence of Hagedorn's alleged past unethical behavior, the trial judge terminated the hearing.
At many points during the trial, Wilson repeated his assertion that his court-appointed standby counsel were, to use Wilson's words, "unprepared, ill-trained, ill-equipped, and lacked the necessary competence and experience" and objected to the proceeding based on the Sixth, Eighth and Fourteenth Amendments. Wilson made these assertions despite the fact that the record indicated that Hagedorn had previously tried fifteen...
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