Commonwealth Of Kentucky Court of Appeals - Justia

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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