May 2002 - Department of Public Advocacy

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Continued from page 39 HEARSAY Woodall claimed defense psychologist Phillip Johnson’s testimony that Woodall had failed to complete the sex offender treatment program during a prior prison sentence was inadmissible hearsay not admissible under any KRE 802 exception. The statement was admissible under KRE 703 because it tended to show the basis of Johnson’s opinion that Woodall was mentally ill. Id., at 127-128. OTHER ISSUES The Court also considered issues on the restriction of voir dire, “for cause” strikes, instructions, denial of a continuance, crime scene photographs, number of peremptory challenges, Woodall’s guilty plea, witness issues and arguments relating to the death penalty, but broke no new legal ground. Hodge v. Commonwealth and Epperson v. Commonwealth, — S.W.3d — (rendered September 27, 2001) (modified March 21, 2002) Majority: Minority: Johnstone (writing), Lambert, Cooper, Keller Wintersheimer (writing), Graves Stumbo not sitting The Supreme Court remanded the Letcher County convictions of Roger Epperson and Benny Hodge for a post-conviction evidentiary hearing. Epperson and Hodge v. Commonwealth, Ky., — S.W.3d — (2001). JURY TAMPERING Both men alleged numerous issues related to jury tampering, including visits by the prosecutor, provision of alcoholic beverages and a decision as to the foreman of the jury, guilt and punishment on the first night of sequestration. In their motions, Epperson and Hodge had alleged jury tampering but had not included the bases for the various charges. The Court found that the allegations had been pled sufficiently: rather than a blanket allegation, both men had spelled out specific incidents, such as the Commonwealth’s Attorney’s daily ex parte contact with the jurors and that jurors had been provided with alcohol, newspapers and personal visits during their supposed sequestration. The Court restated the correct procedure for examining an RCr 11.42 action: the trial court must focus on whether the post-conviction motion raises “an issue of fact that cannot be determined on the face of the record.” Id., slip op. at 4, quoting Lay v. Commonwealth, Ky., 506 S.W.2d 507, 508 (1974) and Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743-44 (1993). Epperson and Hodge’s allegations of jury tampering rose to that level. Furthermore, jury tampering in a criminal trial is presumed to be prejudicial. Id ., citing Remmer v. United States, 347 U.S. 227, 229 (1954). Epperson and Hodge alleged facts more grave than those in Remmer. THE ADVOCATE Volume 24, No. 3 May 2002 40 INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE Counsel for neither Epperson nor Hodge presented witnesses at the penalty phase, but made stipulations pertinent to each man. Id., at 5-6. The Supreme Court agreed with the trial court that defense counsel has no duty to present any or all evidence, but found that the trial court had used the incorrect procedure in its opinion. The Court laid out a three-part analysis: 1) determine whether a “reasonable investigation” would have uncovered mitigating evidence; 2) determine whether defense counsel made a tactical decision not to present the evidence; 3) should the choice be found not tactical and that counsel’s performance was deficient, then the court must determine whether there is a reasonable probability that the outcome would not have been different. Id., at 8, quoting Porter v. Singletary, 14 F.3d 554, 557 (11 th Cir. 1994). It “appear[ed]” that a mitigation investigation had not been done, but the Court left for an evidentiary hearing whether this allegation could be borne out. The Court instructed trial courts (and counsel) that “[b]efore any possible mitigating evidence can be weighed in a meaningful manner, that evidence first must be determined and delineated.” Id., at 9. The Court appears to indicate that post-conviction counsel must be prepared to present facts in the post-conviction motion and witnesses at the evidentiary hearing demonstrating the penalty phase which could or should have been put on at trial. The Court did not address other claims presented in the RCr 11.42 motions regarding snitch and co-defendant issues and conflicts of interest on the part of both Hodge and Epperson’s defense counsel. Ronnie Bowling v. Commonwealth, — S.W.3d — (rendered March 21, 2002) Majority: Johnstone (writing), Cooper, Graves, Keller, Wintersheimer Stumbo, without opinion, concurs in result only Lambert, not sitting The Court reiterates its RCr 11.42 mandate that proof of claims in post-conviction consist not of a bare allegation contained in a post-conviction pleading but something more tangible. See Epperson, supra. Also, although the Court stated in T.C. Bowling et al., Ky., 926 S.W.2d 667 (1996), that an ability to amend could be liberally given, in this post-Bowling action, the Court shows little patience with an incomplete investigation at the time an RCr 11.42 action is filed despite the severity of a capital case and the rush to file the RCr 11.42 to premature stay of a warrant of execution. See Ronnie Bowling v. Commonwealth, slip op. at 23. BRADY VIOLATION A federal district judge’s statement that he was sentencing Chappell to the minimum “under the situation we have here,”
was not conclusive evidence that Chappell received a benefit for his state testimony. Defense counsel cross-examined Chappell about his federal charges and could have obtained his federal sentencing transcript to discover if, indeed, a benefit had been conferred. Bowling v. Commonwealth, slip op. at 3. Bowling did not prove the claim that the prosecutor performing a background search such as that normally performed on witnesses would have turned up Chappell’s pending Fayette County felony charges or that the prosecutor in Bowling had actual knowledge of those charges. Id. It appears the Court desired that a criminal history search done on Chappell be attached as part of an appendix to the post-conviction pleading, again that tangible “something.” Bowling also did not prove his allegation that the prosecutor in Laurel County had requested leniency for Chappell from the Fayette County prosecutor. Again, the Court had nothing tangible as proof that such errors occurred. INEFFECTIVE ASSISTANCE OF COUNSEL Bowling alleged nine ineffective assistance of counsel claims, none of which met the Strickland v. Washington, 466 U.S. 668 (1984), standard. Counsel was not ineffective for failing to call Jones as a witness to impeach Chappell. Calling Jones would only have resulted in a swearing contest between two felons. Id., at 7. An FBI analyst matched bullets and bullet fragments to each of the two crime scenes and to those found in Bowling’s box of ammunition. Bowling’s issues regarding counsel’s ineffectiveness for failing to ensure testing by a defense expert and to ask for a continuance so that such testing might be completed appear to attempt to circumvent the real issue of the admissibility of the FBI expert’s testimony. Id,. at 15. RECUSAL OF THE TRIAL JUDGE Bowling argued that the trial judge was a material witness; again, the Court found insufficient evidence in the record to support this claim. Id., at 21. DISQUALIFICATION OF COMMONWEALTH’S ATTORNEY Bowling’s pre-hearing motion to disqualify Commonwealth’s Attorney Handy was denied. Handy then became a witness at the hearing. Although he should have disqualified himself, no prejudice resulted from his failure to do so. A “seasoned and able judge” was the trier of fact who would not have been unduly influenced by the prosecutor acting as both party to the action and witness. Id., at 21-22. The Court also considered issues of interviewing witnesses, prior bad acts, the excusal or a juror, instructions, penalty phase ineffective assistance and alleged ineffective assistance of appellate counsel, but made no novel legal statements. THE ADVOCATE Volume 24, No. 3 May 2002 Tamme v. Commonwealth, — S.W.2d — (rendered March 21, 2002) Majority: Wintersheimer, Cooper, Graves, Johnstone Keller (writing), Lambert (concurrence) Stumbo (concurrence in result only) The Court reversed the grant of Tamme’s motions pursuant to RCr 10.02/10.06 and RCr 11.42 and remanded for further hearings on the remainder of the RCr 11.42 issues. LAW OF THE CASE Tamme was tried for the 1983 slayings of two employees in a marijuana farming operation and sentenced to death for both murders. On appeal, the Court ruled in Tamme v. Commonwealth I, Ky., 759 S.W.2d 51 (1988) that Tamme should be retried in a proceeding where illegal drug farming was not mentioned. At Tamme’s second trial, defense counsel did not use that evidence in cross-examining the witnesses against Tamme. The trial court’s decision that counsel was ineffective was incorrect. The only “reasonable and legally correct interpretation of Tamme I is that [introduction of] evidence regarding the marijuana farming was not to be allowed” by either party. Tamme III, slip op. at 4. The Court continues to reiterate that issues which either were raised and decided or could have been raised on direct appeal cannot again be relitigated in RCr 11.42 proceedings. The issue regarding introduction of the farming evidence was raised and decided on direct appeal and cannot be relitigated. Tamme III, id. The Court holds that doctrine of law of the case applies. The decision in Tamme I was final and binding on the parties, trial and appellate courts. That doctrine promotes the adjudication of all claims in one proceeding, rather than one claim in each of many proceedings. Such is the case here. Further, counsel was not ineffective in failing to use the testimony in cross-examination. Tamme I held that either party could not use the information. An argument that the prosecution could not use the information but that the defense could as impeachment “is absurd.” Id. Even had the information been available in such a form, defense counsels’ performance was reasonable. The strategy was to present an alibi and to portray Tamme as a solid citizen, not to portray him as a person involved in the farming of an illegal drug. Moreover, Tamme did not prove that he was prejudiced by such a decision. Again, there was no proof that had the evidence been presented, Tamme would not have been convicted a second time. Id., at 8. LEGAL STANDARD IN DECIDING MOTIONS FOR NEW TRIAL In his pleading, Tamme offered an affidavit of a newly discovered witness, Armstrong, whose information could have Continued on page 42 41
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May 2002 - Department of Public Advocacy

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