OPINION OF THE COURT
The Commonwealth of Kentucky appeals from an order of the Christian Circuit
In 1991, Bussell was convicted of the December 1, 1990, robbery and murder of Sue Lail. He was sentenced to death and his conviction and sentence were affirmed upon direct appeal to this Court.
The matter before us began on March 26, 1996, when Bussell moved the Christian Circuit Court for relief pursuant to RCr 11.42, alleging numerous Brady
As a reviewing court, on this RCr 11.42 appeal, we must defer to the findings of fact and determinations of witness credibility made by the trial judge.
In Brady v. Maryland,
The duty to disclose exculpatory evidence is applicable regardless of whether or not there has been a request by the accused,
In his RCr 11.42 motion, Bussell alleged that the Commonwealth failed to turn over to his trial counsel exculpatory evidence in violation of Brady. Specifically, Bussell claimed the Commonwealth failed to disclose numerous police reports in violation of Brady and the trial court's discovery order entered September 6, 1991. This order required the Commonwealth to disclose all police reports and statements of witnesses expected to testify. In its order granting Bussell a new trial, the circuit court found that the undisclosed police reports would have suggested the possibility of an alternate suspect in Mrs. Lail's death.
Six of the nine police reports found to have been undisclosed to the defense were compiled by Detective Mary Martins of the Hopkinsville Police Department. The reports disclosed the following information: (1) report on December 4, 1990, that there were new pry marks on the outside and inner portions of the door leading to screen portion of Lail's home as well as a broken lock on the door, signs suggesting forced entry; (2) report on December 5, 1990, indicating a plaster cast of a tire print found in Lail's yard; (3) report on December 11, 1990, memorializing Martins' conversation with an employee of a gas company who saw Lail the day before she disappeared and indicating that Lail's gas bill was paid December 3, 1990, two days after she disappeared; (4) report on January 19, 1991, based on statements from a confidential informant, and suggesting two other possible suspects in Lail's death; (5) report on January 22, 1991, reflecting a conversation Martins had with Don Bilyeau, a store owner in the area, in which Bilyeau reported that the black male he had seen in the area of Lail's house on the day of her disappearance had just been in his store; and (6) report on February 24, 1991, reflecting a conversation Martins had with Brian Cunningham, an employee of a local radio station who advised Martins that he checked a transmitter daily near the place where Lail's body was found.
The three remaining police reports discussed by the circuit court contained the following: (1) December 5, 1990, report that Lail had just had new carpet installed and, as a result, her front door would not
At the RCr 11.42 hearing, the court heard testimony from circuit judge John Atkins, who at the time of Bussell's trial was the prosecutor who tried the case. The court also heard the testimony of Rob Embry, first-chair defense trial counsel, and Delissa Milburn, second-chair defense trial counsel.
Judge Atkins testified that, after the passage of thirteen years, he had no specific recollection of whether the police failed to provide him with any particular items of discovery or exculpatory evidence during his prosecution of Bussell or whether he had failed to turn over any items of discovery or exculpatory evidence. Embry, a convicted felon by the time of Bussell's evidentiary hearing on his RCr 11.42 motion, testified that he did not remember seeing or receiving several of the police reports during his defense of Bussell. However, Milburn, who assisted Embry in Bussell's defense, testified that at least after the September 6, 1991, discovery order was entered, there was no violation of the discovery rules or the discovery order and that to her knowledge the defense had received "everything [they] had asked for" by the day the trial began on November 18, 1991.
The Commonwealth contends that the trial court erred in accepting the testimony of a convicted felon, Embry, over that of Judge Atkins, and that the trial court completely disregarded Milburn's testimony on the matter. While the Commonwealth is correct that the burden is on the defendant to prove that evidence favorable to him was withheld and to show that there is a reasonable probability the result of the trial would have been different had the exculpatory evidence been disclosed to the defense,
Whether the evidence withheld was material and met the standard of reasonable probability of a different result at trial, we rely on Kyles v. Whitley
Under the totality of the circumstances as found by the trial court, we agree that those reports known to the prosecution and withheld for whatever reason were material to Bussell's guilt. Moreover, while not every police report discussed during the evidentiary hearing was exculpatory or was otherwise required to be disclosed, the cumulative effect of the information contained in those reports certainly suggests a reasonable probability that had the information been disclosed, the outcome of Bussell's trial would have been different. And, under the rationale set forth in Kyles, supra, the prosecutor in this case was under a concomitant "duty to learn of any favorable evidence known to . . . the police." Id.
Furthermore, we disagree with the Commonwealth's assertion that "`alternative suspect' information is not exculpatory unless it eliminates the defendant as the culprit." In Beaty v. Commonwealth,
The court held that the undisclosed reports were material and that "the information contained in these reports are favorable to [Bussell] pursuant to Brady." Thus it concluded that the undisclosed reports undermined confidence in the outcome of the trial, denying Bussell's right to a fair trial. The court considered the reports as a collective pursuant to Kyles, supra, and found that the reports "could have been used to develop a rational defense, which [Bussell] failed to present in November of 1991." We perceive no error in the trial court's ruling with regard to its finding that a Brady violation occurred in Bussell's case, and we note that this ruling does not imply bad faith on the part of the Commonwealth in failing to disclose the reports.
The standard by which we measure ineffective assistance of counsel is found in Strickland v. Washington.
Thus, Bussell must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
There is "a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance."
In Bussell's RCr 11.42 motion, he alleged that, during the guilt phase of his trial, Embry failed to investigate and interview prospective witnesses and that he failed to retain experts to refute scientific evidence proffered by the Commonwealth. Additionally, Bussell argued in his RCr 11.42 motion that defense counsel was ineffective during the penalty phase of the
Specifically, Bussell alleged that Embry failed to investigate and interview Kay Bobbett and Robert Joiner. Bussell argued that had Embry investigated Joiner, he would have discovered that Joiner was mentally limited; that he was routinely taken advantage of by neighbors and Bobbett; that he told at least three different versions of his story to Sgt. Over regarding the ring allegedly sold to him by Bussell; that his trial testimony directly contradicted his statements to the 911 operator and the police; that he had a bad reputation for truthfulness in the community; and, that he had told Bobbett the location of Lail's body before it was discovered. Bussell also argued that had Embry investigated Bobbett, he would have discovered that she took advantage of Joiner and also lied during her testimony that she had only received one other ring from Joiner when in fact she had received two other rings from him before being given the ring found to have been stolen from Lail.
Bussell also alleged that Embry failed to offer the statement of the victim's daughter-in-law, Patty Lail, during the trial despite the fact that a copy of her statement was found in the case file. Patty Lail's statement directly contradicted testimony offered by her husband, Mrs. Lail's son Webb Lail, that Webb had seen the sapphire ring only a week before Lail disappeared. Patty, however, stated to police that Lail had not shown the ring to her or Webb at any time during the week before her disappearance. The RCr. 11.42 court commented that "[w]ith Patty Lail's statement coming to light, even had Bussell stolen the ring, a credible argument that the ring was not stolen when Mrs. Lail was killed could have been made. . . . It is disturbing and certainly pertinent to our inquiry that defense counsel had a key piece of evidence within his possession, but his investigation was so deficient he failed to review reasonably his own case file."
Bussell further claimed that Embry failed to reasonably educate himself in the various forensic fields and thus his future decisions to retain experts in these fields was unreasonable. During Bussell's trial, the Commonwealth employed experts from the Kentucky State Police (KSP) Crime Lab to testify concerning tree bark found near Lail's body as well as on the damaged fender of Bussell's car, automobile paint found on the tree, and hair and fiber analysis of samples taken from Bussell's car and Lail's home. However, during the RCr 11.42 hearing, Bussell presented testimony from two experts in these same fields, Dr. Richard Saferstein and Dr. Terry Connors, which discredited that offered by the Commonwealth's experts.
Doctor Saferstein, former Director of the New Jersey State Police Crime Lab, testified that the analysis of the paint evidence by the Commonwealth's expert Laurence King was "erroneous," was not "scientifically valid" and was a "false characterization" of the evidence. King had testified during Bussell's trial that the samples of paint from Bussell's car and from the damaged tree were identical regarding the top two layers of paint. The circuit court found that "Mr. King's ultimate conclusion was contradicted by the facts and by his own testimony."
Doctor Saferstein also disagreed with the hair and fiber analysis conducted by Linda Winkle of the KSP Crime Lab. Of the four hairs found in Bussell's car that Winkle reported were "similar" to Lail's hair, Dr. Saferstein testified that three of the comparisons were not valid, finding that one was "not a valid comparison," that he "fervently disagreed" with Winkle's
Finally, Dr. Saferstein testified that the analysis of fibers found in Bussell's car and compared to fibers from the housecoat Lail was wearing when her body was discovered was "preliminary at best." Lonnie Henson of the KSP Crime Lab had testified that the fibers were the same. Saferstein disagreed, noting that Henson used a stereoscopic microscope to conduct the comparison and that this was the wrong type of microscope to use for fiber comparison, although Henson testified at Bussell's trial that he used a comparison microscope. Embry, however, failed to address this contradiction to limit Henson's credibility. Moreover, Dr. Saferstein's statement that Henson's comparison was preliminary was based on the fact that Henson did not conduct microspectrophotometry analysis of the fibers. Doctor Saferstein further testified that he could have rendered these same opinions in 1991.
Doctor Terry Connors testified at the hearing as an expert in tree and wood identification and found that the samples were suitable for analysis, contrary to King's testimony on behalf of the Commonwealth at Bussell's trial. Doctor Connors further testified that he conducted the tests himself, using a method of analysis that has been generally accepted in the scientific community since at least 1970, and concluded that no one could say to any degree of certainty that the bark on Bussell's car came from the tree located near where Lail's body was discovered. In fact, Dr. Connors noted that the bark on Bussell's car could have come from any one of seven species of tree.
After reviewing the evidence, the circuit court found "that Embry's failure was a result of his failure reasonably to investigate and interview prospective witnesses." Moreover, it found that "[t]he scientific evidence presented in November 1991 was not nearly as compelling as the jury was led to believe. . . . If Embry had educated himself, his decision not to consult an independent expert could have potentially been described as tactical. However, there is no evidence that Embry made such an attempt. Therefore, his decision cannot be described as tactical." Ultimately, the court found that Bussell had established, in his RCr 11.42 hearing, that "the Commonwealth's scientific evidence could have been controverted."
In reviewing the record before us, we cannot say that the trial judge erred in finding Bussell's trial defense counsel deficient such that he was deprived of a fair trial. Embry's performance during both the guilt phase and penalty phase of Bussell's trial fell below an objective standard of reasonableness. Moreover, we discern no error in the trial court's view that but for Embry's deficiencies, the result of the trial would have been different. Thus, both prongs of the test set forth in Strickland, supra, have been satisfied. Bussell was deprived of effective assistance of counsel during the guilt phase of his trial, entitling him to a new trial.
On this appeal, the Commonwealth argues that Bussell was effectively assisted
This Court has held that "defense counsel has an affirmative duty to make reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is not necessary."
Specifically, the Commonwealth argues that both Embry and Milburn were unable to locate mitigation witnesses to testify on Bussell's behalf. However, nineteen mitigation witnesses testified over the course of the RCr 11.42 hearing. Despite Embry's and Milburn's claim that they did not know how many siblings Bussell had and that they were unable to locate them, they had in their possession a Kentucky Correctional Psychiatric Center report, which listed all eleven of Bussell's siblings and the towns in which they lived. Furthermore, Embry testified at the RCr 11.42 hearing that he never sought medical, school, employment or jail records. As the circuit court found, "Embry was unable to show the jury that Bussell had a single positive character trait because he had not taken the time to find if he possessed any."
The Commonwealth argues that Bussell was uncooperative in assisting his defense team in mounting a proper mitigating case during Bussell's sentencing. Although Embry testified at the hearing that Bussell was uncooperative and that the only mitigation evidence they had was residual doubt, we have specifically held residual doubt not to be a mitigating factor.
Moreover, Bussell's uncooperativeness did not relieve Embry of his duty to conduct a reasonable investigation for mitigating evidence. Initially, we note that defense counsel is required to abide by the wishes of his or her client.
Based on the findings of the circuit court, there was not a reasonable investigation into Bussell's background in an attempt to find mitigating evidence. Had Embry made a reasonable investigation, he would have discovered the evidence necessary to present a proper mitigation case during Bussell's sentencing.
For the reasons set forth herein, we find no fault with the circuit court's determination that the Commonwealth deprived Bussell of a fair trial by failing to disclose evidence favorable to Bussell and material to his guilt or innocence in violation of Brady, supra. Furthermore, this Court affirms the circuit court's determination that Bussell was deprived of effective assistance of counsel during both the guilt and penalty phases of his trial. On these grounds, Bussell shall have a new trial.
All sitting, except SCOTT, J. All concur.