Commonwealth Of Kentucky Court of Appeals - Justia

RENDERED: MAY 16, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2007-CA-000569-MR
MYRNA THARP APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NOS. 97-CR-00023 & 97-CR-00023-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: KELLER AND THOMPSON, JUDGES; GRAVES, 1 SENIOR JUDGE.
KELLER, JUDGE: Myrna Tharp (Tharp) appeals from the trial court’s denial of her
motion for relief under RCr 11.42. As she did before the trial court, Tharp argues that
her counsel was ineffective. She also argues that she was entitled to funding for an
expert witness during her RCr 11.42 proceedings. For the reasons set forth below, we
affirm.
1 Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

FACTS
We take the underlying facts from the Supreme Court of Kentucky’s 2000
opinion on Tharp’s direct appeal.
On January 11, 1997, Elaina Curtis, age ten months, died
from a ruptured spleen which allegedly resulted from
physical abuse inflicted by her stepfather, Kenneth Tharp.
Medical examinations of the child's body also revealed
severe bruises of the legs, abdomen, chest, forehead, left
eye, scalp and the back of the head. Some of the bruises
were estimated to be seven days old or older. There were
also fractures of the left ulnar and of another bone just above
the ankle joint, the latter estimated to be seven to eight days
old and the former estimated to be a month old. A
radiologist opined that the fractures were caused by two acts
of deliberate child abuse occurring on two separate
occasions.
Kenneth Tharp and his wife, Appellant Myrna Tharp, the
child's mother, were indicted by a McCracken County Grand
Jury on charges of wanton murder and criminal abuse in the
first degree. Kenneth was also indicted as a persistent
felony offender in the first degree. A motion for separate
trials was granted, RCr 9.16, and Appellant's case was tried
first. Appellant testified that she had never witnessed her
husband abusing Elaina and had never observed anything
seriously wrong with the child until shortly before her death.
However, she had previously given statements to the police
in which she admitted (1) that she had observed her
husband beat the child with his fists on occasions prior to
January 11, 1997; (2) that she saw her husband strike Elaina
with his fists on January 11, 1997, knocking the child from
side-to-side, and that she told him to stop hitting the child,
but then left the room and closed the door behind her,
leaving the child alone with her husband; and (3) that later
that same day, she saw her husband throw Elaina to the
floor, but thought he was just “playing” with the child. Shortly
thereafter, Appellant observed blood in Elaina's diaper and
that she was having difficulty breathing. An ambulance was
called, but efforts to save the child's life were unsuccessful.
Appellant was convicted of wanton murder by complicity and
of criminal abuse in the second degree, and was sentenced
to a total of twenty-seven years in the penitentiary.
Tharp v. Commonwealth, 40 S.W.3d 356, 359 (Ky. 2000).
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After a thorough review, the Supreme Court affirmed Tharp’s conviction.
Tharp then filed a motion for relief under RCr 11.42. In her motion, Tharp stated that
she “was married to Kenneth Tharp, a man who frightened her, but who had not in the
past ever, to her knowledge, harmed her children physically. [She] had no knowledge
of Kenneth’s abuse of Elaina until it was too late and Elaina was fatally injured.”
Tharp also made a number of allegations regarding deficits in the
performance of her counsel (counsel) at trial. The allegations pertinent to this appeal
include: (1) her attorney smelled of alcohol during the trial which “may account for his
lack of investigation and preparation;” (2) that he failed to “investigate Kenneth Tharp’s
background to establish his prior criminal acts and his violent nature”; and (3) that he
failed to adequately investigate her relationship with Kenneth Tharp. The trial court
summarily denied Tharp’s motion. Tharp appealed that denial to this Court, which
reversed and remanded because the trial court had not determined whether Tharp’s
allegations could be resolved on the face of the record. On remand, the trial court found
that Tharp’s allegations regarding ineffective assistance of counsel related to counsel’s
alleged intoxication were not refuted by the record; therefore, the court ordered an
evidentiary hearing.
Following the evidentiary hearing, the court denied Tharp’s motion, finding
no evidence of ineffective assistance of counsel. It is from the court’s order denying her
motion that Tharp appeals.
Tharp argues before us that her trial counsel was ineffective for two
reasons: (1) he was intoxicated during the trial; and (2) he should have obtained a
domestic violence expert to establish that Tharp was abused and therefore unable to
appreciate the threat to her daughter or to stop her husband from killing her daughter.
Tharp also argues that the trial court erred during the RCr 11.42 proceedings when it
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failed to provide funding so that she could obtain expert testimony regarding her
husband’s abuse and its impact on her. We will set forth additional facts as necessary
as we discuss these issues.
STANDARD OF REVIEW
In an RCr 11.42 proceeding, the movant has the burden “to establish
convincingly that he was deprived of some substantial right which would justify the
extraordinary relief afforded by the post-conviction proceedings . . . .” Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). When the trial judge conducts an
evidentiary hearing, a “reviewing court must defer to the determinations of fact and
witness credibility made by the trial judge.” Sanborn v. Commonwealth, 975 S.W.2d
905, 909 (Ky. 1998).
In considering ineffective assistance of counsel, the reviewing court must
focus on the totality of evidence before the trial judge and assess the overall
performance of counsel throughout the case in order to determine whether the identified
omissions or actions overcome the presumption that counsel rendered reasonable
professional assistance. See United States v. Morrow, 977 F.2d 222, 229 (6th Cir.
1992); Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
A convicted defendant claiming ineffective assistance of
counsel has the burden of: (1) identifying specific errors by
counsel; (2) demonstrating that the errors by counsel were
objectively unreasonable under the circumstances existing at
the time of trial; (3) rebutting the presumption that the
actions of counsel were the result of trial strategy; and (4)
demonstrating that the errors of counsel prejudiced his right
to a fair trial.
Simmons v. Commonwealth, 191 S.W.3d 557, 561-2 (Ky. 2006), cert. denied, ___ U.S.
___, 127 S.Ct. 1132 (2007), 166 L.Ed.2d 908.
Tharp’s claim that she should have been provided funding so that she
could obtain expert evidence in her RCr 11.42 litigation raises an issue of law and our
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eview of that is de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); see
also A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509
(Ky. App. 1999); Aubrey v. Office of Attorney General, 994 S.W.2d 516, 518-19 (Ky.
App. 1998); and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
With the preceding in mind, we will address the issues raised by Tharp on
appeal, first addressing the issue of funding for an expert during post-conviction
litigation.
ANALYSIS
1. Entitlement to Funding for an Expert
On May 12, 2006, the date of the hearing on her RCr 11.42 motion, Tharp
filed a motion seeking funds to pay for an evaluation by an expert in domestic violence,
R. Gordon Williams, Ph.D. (Dr. Williams). Tharp noted that she did not consider the use
of state facilities practical “considering the nature of the expert sought.” Tharp attached
an Affidavit from Dr. Williams in which he indicated that a preliminary review of a
summary provided by Tharp showed that she might have suffered from “Battered
Person Syndrome.” As a result, Tharp might have felt compelled to protect her husband
to the detriment of her child and that she might not have realized that Elaina was being
harmed.
Tharp also filed a motion for continuance on May 12, 2006, advising the
court that she had found another expert witness, Ann Goetting, Ph.D. (Dr. Goetting),
who would evaluate Tharp and testify pro bono. However, Dr. Goetting was not willing
to travel to Paducah in order to evaluate Tharp; therefore, Tharp requested funding to
transfer to a facility close to Dr. Goetting. Finally, Tharp requested that the court leave
the record open in order for her to file a report from Letonia A. Jones, MSW 2 (Ms.
2 We note that, at the hearing, Tharp’s counsel referred to a person named Darlene Thomas as
the evaluator; however, the record reveals that the evaluation was performed by Ms. Jones. It
is unclear from the record why Ms. Jones performed the evaluation instead of Ms. Thomas;
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Jones). According to Tharp, Ms. Jones had agreed to conduct the evaluation at no
charge and agreed to travel to the facility where Tharp was incarcerated.
The trial court stated at the hearing that it would leave the record open so
that Ms. Jones could conduct her evaluation. The court indicated that, upon receipt of
Ms. Jones’s report, the parties could determine what, if any, additional steps they
needed to take. Tharp stated that would be acceptable and that she did not believe that
any additional hearings would be necessary. Ms. Jones conducted her evaluation, and
the court accepted her report into evidence.
We note that the trial court did not specifically deny Tharp’s motions for
funding either in writing or orally on the record. We also note that, following submission
of Ms. Jones’s report, Tharp did not seek any additional proof time nor did she renew
her motion for funding to pay for Dr. Williams and/or Dr. Goetting.
Based on the above, we hold that whether Tharp was entitled to expert
funding is moot. Tharp got what she wanted, an expert evaluation. Whether that
evaluation was performed pro bono or paid for by the Commonwealth is irrelevant.
Therefore, we will not further address this issue.
B. Ineffective Assistance of Counsel
As noted above, Tharp raised two issues regarding her counsel’s
assistance. We will first address the issue of counsel’s alleged impairment due to
alcohol.
Whether counsel was intoxicated at trial is a question of fact. The trial
court found that Tharp “failed to prove that her attorney was intoxicated at trial.” In
doing so, the court noted that “there were numerous bench conferences during the trial
at which time [counsel] would have been within a few feet of the Trial Judge who likely
would notice if he was intoxicated or smelling of alcoholic beverage.” Furthermore, the
however, since Ms. Jones conducted the evaluation, we will refer to her as the evaluator.
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court noted that the only testimony presented was that counsel had, at times, smelled of
alcohol. There was no testimony, even by Tharp, that counsel was intoxicated.
We have reviewed the entire record, including the video of the trial, and
we find no evidence that counsel was intoxicated or otherwise impaired. Therefore, we
affirm the court’s finding that Tharp failed to meet her burden of proving ineffective
assistance of counsel on this issue.
Tharp next argues that counsel should have presented a “battered
spouse” defense and obtained expert evidence to that effect. At the hearing, the trial
judge indicated that he thought that Tharp’s arguments were inconsistent. He noted
that Tharp stated at trial that she was not aware of any abuse of Elaina until it was too
late to save her. Tharp argued that counsel should have obtained an expert to explain
that, because she was also being abused, she could not or would not recognize
Kenneth Tharp’s abuse of her children. However, at trial, Tharp downplayed allegations
that she had been physically abused by Kenneth Tharp. Therefore, counsel would have
had to intuit this abuse in order to make the determination that expert testimony was
necessary or even appropriate.
In an attempt to overcome this logical hurdle, Tharp also argues that she
admitted to police in a statement that she had seen Kenneth Tharp strike Elaina with his
fists prior to the date he beat Elaina to death. Furthermore, Tharp argues that she
made statements that she had been physically abused by Tharp. According to Tharp,
armed with this knowledge, counsel should have retained an expert to testify about
Tharp’s mental state. However, Tharp’s admission that she had seen Kenneth Tharp
previously strike Elaina belies her claim that she was psychologically unable to
appreciate that Kenneth Tharp was abusing Elaina. It also belies her position at trial
and in the RCr 11.42 proceedings that she had no prior knowledge that Kenneth Tharp
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was abusing her children. Therefore, even if counsel was aware that Kenneth Tharp
had abused Tharp, any expert evidence would not have benefited her.
We note that Tharp argues in her brief that “extensive evidence existed to
demonstrate that Appellant was battered. Ms. Jones’ affidavit is rife with examples of
Kenneth Tharp’s physical and emotional abuse of Appellant.” It appears that Ms. Jones
obtained those examples from transcripts of statements given by the Tharps to the
police. However, we do not have those statements in the record and cannot review
them. Therefore, we must rely on the trial court’s interpretation of the statements.
Finally, we note that counsel’s failure to obtain expert testimony appears
to have been a matter of trial strategy. As noted by the Commonwealth in its brief, the
story Tharp presented at trial was that she had no prior knowledge of abuse of Elaina by
Kenneth Tharp. That story is inconsistent with any attempt by Tharp to simultaneously
state that Kenneth Tharp’s abuse of her prevented her from stopping his abuse of
Elaina. Any mental evaluation of Tharp would have highlighted this inconsistency,
bringing into clearer focus Tharp’s already damaged credibility. We discern nothing in
Tharp’s argument, or in the evidence before us, that rebuts the presumption that
counsel’s actions were the result of trial strategy. See Simmons v. Commonwealth, 191
S.W.3d at 561-62 (Ky. 2006), cert. denied, _____ U.S. _____, 127 S.Ct. 1132, 166
L.Ed.2d 908 (2007). Therefore, we hold that counsel’s failure to obtain expert testimony
at trial did not rise to the level of ineffective assistance of counsel.
CONCLUSION
For the reasons set forth above, we affirm.
ALL CONCUR.
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BRIEF FOR APPELLANT:
David H. Harshaw III
Assistant Public Advocate
LaGrange, Kentucky
BRIEF FOR APPELLEE:
Jack Conway
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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