denying RCr 11.42 relief because the movant had not “demonstrate[d] that had trial counsel filed a pre-trial Daubert motion, the result would have been any different.”
How later courts described this case
- denying RCr 11.42 relief because the movant had not “demonstrate[d] that had trial counsel filed a pre-trial Daubert motion, the result would have been any different.”
Written by the judges who cited it.
The opinion
NOBLE, J.,
CONCURRING IN PART AND DISSENTING IN PART:
I agree with the majority that it is appropriate for a hearing on remand to. be held to determine whether a plea offer was made and conveyed to McGorman. I disagree, however, that pretrial counsel’s 12 allowing the Appellee, a fourteen-year-old boy, to give a taped confession to police officers six days after the murder occurred without first seeking a psychological evaluation of the child or conducting plea negotiations with the Commonwealth’s Attorney is effective assistance of counsel. Pretrial counsel claimed that the confession was part of an overall, strategy to cast blame on another party, Daniel Cameron, an eighteen-year-old friend, . who was claimed to be the driving force behind the murder. The majority concludes, this was a reasonable strategy given the circumstances. I disagree and would, instead, find that pretrial counsel’s strategy was ineffective and unreasonable.
I acknowledge that what happened in this case is particularly chilling.. The Ap-pellee, a fourteen-year-old boy, lured another boy to his home for a visit, persuaded the boy to go with him out to a barn, and shot the boy in the back of the head, killing him. The Appellee then tried to bury his victim, seeking help from Daniel Cameron, who admitted he knew that Ap-pellee was planning to kill the victim.
Or, presented another wayj a fourteen-year-old boy, who heard voices and was so afraid that he was going to be hurt that he carried a gun with him when he went to take out the trash, fixated on the victim and planned for a month tu kill him- because he believed the victim had betrayed him, and was going to “tell on” him and Daniel. The boy, according to the court-appointed ' ¿valuator for trial, was so psychotic at the time he was not criminally responsible for his actions.
Unfortunately, defense counsel did not obtain this information before he advised the Appellee and his parents that the Ap-pellee should make a full recorded confession to the police. And there is no question that defense counsel was in a difficult position from the time he began representation of Appellee.
This is what defense counsel knew: According to Appellee, Daniel Cameron was a close friend and agreed with Appellee that the victim had betrayed them, and agreed that Appellee should kill the victim, even offering the Appellee money to do so. On the day the murder occurred, Appellee called Daniel three times, first to tell him that he had killed the victim, and later to ask Daniel to come help him bury the victim. On the third call, however, Daniel had apparently notified police about what had happened, and a local officer listened in on the call. He heard Appellee say that he had a body, but could not bury it by himself, and then ask Daniel to bring his vehicle to transport the body. He said the body was in a cornfield. A detective then went to Appellee’s home to ask about the missing boy. Appellee denied that he was there. But the detective checked the barn, saw where something had been dragged, and located the body in the cornfield. The murder weapon was found in Appellee’s closet, But Daniel had clearly put himself in a good position with the police by telling them of the murder.
Thus, defense counsel had a difficult set of facts to consider as he began Appellee’s defense. But those very facts are why the *747 strategy of confessing and trying to bring Daniel in as a mastermind was not viable. Daniel already had ingratiated himself with police. No child in his right mind would have acted the way Appellee did. There was no indication that Daniel had overridden Appellee’s will or actually persuaded him to take any action. Appellee had already made admissions overheard by the police officer listening in on the phone. The police had the body and the murder weapon. What could the defense possibly gain from a full, video-taped confession only six days after the murder?
Defense counsel indicated at the Criminal Rule 11.42 hearing that he believed that being truthful would soften the police and prosecution toward his client. This is a strategy that has not proven to be very effective for defendants who confess in the hope of making an officer a buddy. The officer still has a job to do and does it, as the police and Commonwealth did here. Potentially, if some blame could be shifted toward Daniel, perhaps the penalty would be mitigated, but that is highly speculative under these facts. And, unless the Commonwealth Attorney could be persuaded to consider the information about Daniel in making a plea offer, any effect would be a question for the jury.
What actually happened here was that defense counsel had Appellee take a lie-detector test to see if he was being truthful about Daniel’s involvement. The test showed that he was. Defense counsel then took him to confess to police. He did not seek any kind of psychological evaluation, and thus did not consider the possible effect the Appellee’s emergent schizophrenia might have had on the lie detector test, as some studies indicate that persons suffering from a psychosis can pass a polygraph because they actually believe their delusions. Nor did he consider where he was left to go in defending Appellee if the case progressed to trial, which it did.
And that is where the harm from this course of action really comes to fruition. The sole defense at trial was insanity. Two experts, Dr. Granacher, retained by the defense, and Dr. Bucholtz, appointed by the court, testified that Appellee was not criminally responsible when he committed the crime because he was. then in a psychotic state. But how much weight can this testimony have when the jury watched a video of a calm, if rambling, Appellee confess just six days after the murder? This premature confession undercut the only complete defense Appellant had — insanity. And even though Dr. Bucholtz testified that it could be difficult to tell how disturbed a person is even when under a psychoses, what the jury actually saw is highly persuasive.
And the jury did struggle with their decision. They sent out two questions trying to determine what kind of verdict they could reach. A third note told the court that they could not agree, and were hung. It was only after the jury was given an Allen charge that a verdict was reached. Defense counsel’s job was to present his client’s best defense and to seek the most favorable penalty if he was found guilty. Without the video-taped confession, while the jury clearly still had sufficient evidence to convict for murder, it is foreseeable that a different penalty would be reached. Certainly, the expert’s testimony would have had the chance to be given more weight.
It has been argued that counsel’s strategy was successful, because there was an offer from the Commonwealth of 20 years, when the jury actually recommended life. But that remains an undecided issue, both as to whether the offer was ever actually made, and whether it was conveyed to Appellee or his parents. This case is go *748 ing back for a hearing to determine the facts of that situation. If the offer was not made, or was not conveyed, then this argument fails, and one is hard pressed to see any possible advantage to the chosen strategy.
Indeed, Appellee’s parents removed the initial counsel from the case about 60 days before trial, because they believed he was not adequately representing their child. The successor attorney, who tried the case, could not effectively contest guilt in light of the confession, had only the insanity defense to deploy, and could not make any significant points about Daniel’s involvement. In fact, the whole “blame Daniel” theory is not supportive of seeking an acquittal by reason of insanity. The defense at trial only went to establishing that Ap-pellee was psychotic at the time he committed the crime.
I cannot perceive that any reasonable attorney would make the decision to have a child who has just behaved in such a drastic way give a video-taped confession to police six days after the crime without first having a psychological evaluation done, or attempting to plea bargain with the prosecutor (who said he did not take “proffers” but did engage in plea bargaining). This decision relies on chance-taking rather than a reasonable approach to defending such an obviously damaged child. It does appear to me that the “errors were so serious as to deprive the defendant of a fair trial” because affecting the penalty is certainly a significant part of the trial.
Consequently, I agree with Professor Fortune who testified at the Criminal Rule 11.42 hearing that pretrial counsel was ineffective, and I also agree with the Court of Appeals’ reversal ordering a new trial in this matter. A case so doomed from the beginning because of more than its facts is best done over. And that is true even if it is only the penalty that is retried, as is the case here because Appellant did not contest that he committed the crime.
. 12 The Appellee employed different counsel for trial.