BRATCHER v. COMMONWEALTH
PHILLIP BRATCHER, Appellant,
v.
COMMONWEALTH OF KENTUCKY, Appellee. and
MARK BRATCHER, Appellant,
v.
COMMONWEALTH OF KENTUCKY, Appellee.
Nos. 2009-CA-001084-MR, 2009-CA-001085-MR
Court of Appeals of Kentucky.
Rendered: November 2, 2012; 10:00 A.M.
M. Brooke Buchanan, Assistant Public Advocate, Frankfort, Kentucky, BRIEFS FOR APPELLANT, PHILLIP BRATCHER.
Brian Thomas Ruff, Assistant Public Advocate, Frankfort, Kentucky, BRIEF FOR APPELLANT, MARK BRATCHER.
BEFORE: KELLER, NICKELL AND STUMBO, JUDGES.
OPINIONNICKELL, JUDGE.
Phillip Bratcher1 and his brother, Mark Bratcher, were jointly tried and convicted of the 1999 for-profit strangulation death of Susan Andrew in Louisville, Kentucky. Mark faced the death penalty; Phillip did not. Both men seek to overturn their intentional murder2 convictions due to ineffective assistance of counsel under RCr3 11.42. Having thoroughly reviewed the extensive record, we affirm both orders denying relief. FACTSA jury tried this case November 2-26, 2001, in Jefferson County, Kentucky. A synopsis of the trial can be found in Bratcher v. Commonwealth, 151 S.W.3d 332, 338-40 (Ky. 2004), wherein the Supreme Court of Kentucky affirmed Mark's conviction and sentence of life imprisonment without the possibility of parole. Phillip did not file a direct appeal, having accepted the Commonwealth's offer of a 25-year sentence prior to the penalty phase in return for his willingness to testify against Mark at any future hearings regarding the murder and his waiver of the right to appeal all issues. During the guilt phase of trial, Phillip had waived his right not to testify in return for the Commonwealth's agreement not to seek the death penalty against him. Suffice it to say, Ms. Andrew died from strangulation a short time after learning that Mark, with whom she was romantically involved and who was severely in debt, had been unfaithful to her and she had decided to stop providing financial support to him. Phillip testified at trial that he accompanied Mark to the victim's home the night of August 28, 1999, to mediate a dispute, but exited the house before anything untoward happened. Phillip claimed he knew nothing of a murder until police questioned him about Mark a few days later. In contrast, Mark testified he spent the night of August 28, 1999, in Phillip's trailer in Kokomo, Indiana, after moving his ex-wife and daughters to a new home and thought it odd when he could not reach Ms. Andrew by telephone. Mark insisted he had not killed Ms. Andrew and claimed he did not know she had named him as a beneficiary on several life insurance policies. When the victim failed to return to work after the weekend, her daughter went to her home and found her dead body on the basement steps.
MOTIONS TO VACATE
1. To avoid confusion, the appellants will be referred to by their first names.
2. Kentucky Revised Statutes (KRS) 507.020(1).
3. Kentucky Rules of Criminal Procedure.
4. KRS 506.080.
5. April's status is confusing. She may have been a girlfriend at the time of the murder that Phillip subsequently married and divorced. She could not be located at the time of trial, perhaps having run off with another man.
6. During a suppression hearing, Phillip testified his consent had been coerced but ultimately abandoned this story and admitted it was a lie.
7. Death, life without parole, and life without parole for 25 years. With these penalties removed from consideration, Phillip faced a maximum penalty of life which Bufkin testified was 50 years at the time of trial in 2001.
8. Mark had already moved for a separate trial.
9. Phillip's mother's deposition was taken, but not introduced at trial and is not part of the trial record. A letter from her doctor dated August 2, 2001, stated she was suffering from lung cancer with brain metastases; was unable to travel; being deposed, even at home in Indiana, would be a hardship; and, the accuracy of her statements would be suspect due to her medical condition.
10. The document does not appear in the record.
11. Judge Advocate General's Corps.
12. During Phillip's RCr 11.42 hearing, Phillip testified he had spent two months in a mental hospital at the age of 11 and his trial attorneys had someone give him a mental evaluation. Phillip stated the purpose of the exam was unclear to him but he figured it was for a possible defense. This testimony was not explored further.
13. Kentucky Rules of Civil Procedure.
14. On direct appeal, Mark argued the trial court erroneously limited his cross-examination of Phillip about post-traumatic stress disorder. The Supreme Court disagreed, stating the trial court properly regulated cross-examination without denying Mark's right of confrontation. Bratcher, 151 S.W.3d at 344.