# William Kenny Stephens, Cross-Appellee v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent- Cross-Appellant > Court of Appeals for the Eleventh Circuit · May 27, 1988 · 846 F.2d 642 URL: https://www.frixlaw.com/law-library/cases/9477618 ## Case - **Full name:** William Kenny STEPHENS, Petitioner-Appellant, Cross-Appellee, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee, Cross-Appellant - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** May 27, 1988 - **Citations:** 846 F.2d 642 - **Precedential status:** Published - **Opinion:** Concurring in part by Anderson - **Judges:** Tjoflat, Hill, Anderson - **Cited by:** 109 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477618 ## How later opinions describe it (automated extraction) - holding that a habeas corpus petitioner who did not raise an ineffective assistance claim in his first state habeas petition satisfied the cause prong of the cause and prejudice test when counsel on the first state habeas petition was also trial counsel whose 22 performance wa… - holding that a habeas corpus petitioner who did not raise an ineffective assistance claim in his first state ha-beas petition satisfied the cause prong of the cause and prejudice test when counsel on the first state habeas petition was also trial counsel whose performance was … - holding that when trial counsel knew that defendant had previously been admitted into a mental hospital for a few days the failure to present any evidence regarding the defendant’s mental capacity or health rendered counsel ineffective - finding ineffective assistance where, despite being put on notice of a possible mental illness, counsel “elected to pursue his investigation into [the defendant’s] mental condition no further” and “conducted no inquiry whatsoever into the possibility of presenting evidence of … ## Opinion text *667 ANDERSON, Circuit Judge, concurring in part and dissenting in part: I concur in all of Judge Hill’s opinion for the court, except Part I dealing with the claim based upon Ake v. Oklahoma, 470 U.S. 68 , 106 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). With respect to that issue, I respectfully dissent. As the majority notes, our recent in banc opinion in Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, — U.S. -, 107 S.Ct. 2192 , 95 L.Ed.2d 847 (1987), elaborates upon the pretrial showing which is necessary to sustain an Ake claim. The majority concludes that Stephens failed to make the required showing. With respect to the showing made by Stephens in this case, the only deficiencies suggested by the majority are the following: (1) that Stephens did not inform the trial judge of the type of test needed; (2) that Stephens did not demonstrate that the issue inherently requires expertise; (3) that Stephens was merely seeking to challenge the credibility of the state’s experts; and (4) that Stephens did not inform the trial judge as to what an expert could be expected to contribute to his defense. 1 Respectfully, I suggest that the deficiencies relied upon by the majority, and its conclusions, are not supported in the record. First, although the majority asserts that Stephens never informed the court of the type of testing which could be performed, the immediately preceding sentence of the majority’s own opinion acknowledged that “the defendant desired funds to retain a ballistics expert to determine whether Officer Stephens had fired his gun and the path those shots would have taken.” I submit that the record is clear that Stephens was requesting ballistics tests. Second, the majority asserts that Stephens made no showing that the ballistics issue inherently requires expertise. I disagree. Stephens written motion stated that much of the evidence concerned, among other things, “ballistics tests, trajectory patterns of various bullets, firearms examinations, [and] reconstruction of window glass.” The motion continued claiming that Stephens needed expert assistance in order to examine this evidence and determine whether or not the victim had fired his pistol, the paths of the bullets fired by the victim, the number of bullets fired by the victim and by Stephens, the sequence of firing, the implosion or explosion of glass from the victim’s vehicle, and an identification of the guns from which the bullets in the state’s possession were fired. It should have been apparent to the trial judge that the evidence in question was complex and could not be analyzed by lay witnesses without a high risk of error. Stephens’ attorney attempted to get this point across to the trial judge when he stated at the hearing, “I am not an expert — I can go in there and I can look at something and I can’t determine whether or not the trajectory of fire which the state says may have occurred is in fact what occurred.” Another indication that the trial judge should have known that Stephens’ self-defense claim depended on complex expert analysis was that the trial judge knew that the state had used its own experts in preparing for trial and intended to use that expertise in presenting its case against Stephens. This fact is evident from the following exchange between the prosecutor and the trial judge at the hearing on Stephens’ motion: Mr. Purcell (the prosecutor): ... What he seeks to do here, Your Honor, is to have one of his experts ... go over everything and run all the tests and do that sort of thing. I believe he has— The Court: That’s already been done? *668 Mr. Purcell: Yes, sir. It’s already been done, which will be introduced at trial.... Transcript of Hearing at 15. In addition, the trial judge’s in camera review of the state’s evidence should have alerted him to the complexity of the ballistics issue. The judge must have discovered the fact that the state had three experts who would testify about blood and tissue spatter patterns, bullet fragments, trajectories and flight paths, and glass shatter patterns. The judge must have known that the state planned to reconstruct the sequence of events using such expert testimony and physical and photographic evidence. Also, common sense should have suggested to the judge that such matters could not be adequately analyzed by laymen and are likely to be subject to varying expert interpretations. See Ake, 470 U.S. at 82-83 , 105 S.Ct. at 1096 . 2 Third, the majority suggests that Stephens’ request for experts was deficient in that it merely sought to challenge the credibility of the state’s experts. However, it is apparent from Ake that the Supreme Court was sensitive to the risk of error involved when such a crucial determination is subject to varying expert interpretations, 470 U.S. at 82-83 , 105 S.Ct. at 1096 , and the only expert evidence is that provided by the state. 470 U.S. at 84-85, 89-90 , 105 S.Ct. at 1097, 1099 . Finally, the majority asserts that Stephens did not inform the court as to what an expert could be expected to contribute to his defense, which led to the majority’s conclusion that Stephens did not show that the ballistics issue would be a significant factor at trial. Respectfully, I conclude that the record indicates otherwise. A fair reading of the record suggests that it was clear to all concerned that the sequence of the firing of the various weapons and who fired first would be a significant factor at trial. In paragraph 4 of his pretrial motion, Stephens listed the reasons he felt he needed an independent expert to examine the state’s evidence. Among those reasons were the need “to determine whether ... the deceased ... fired his service pistol prior to his death, the paths of the bullets fired by the deceased, the number of bullets fired from both the deceased’s pistol and allegedly from the rifle of Defendant, the sequence of firing of various weapons, the implosion or explosion of glass from the vehicle of the deceased, and an examination of the bullets to determine from whose weapon they were fired.” Implicit in this paragraph is Stephens’ intention to claim that the deceased fired the first shot and Stephens acted in self-defense. Also, at the hearing on the motion, Stephens’ lawyer stated that “the whole theory of the defendant’s case rests upon the examination [of the state’s] evidence-” Transcript of Hearing at 15. This statement and Stephens’ written motion were sufficient to inform the trial judge that the ballistics issue was crucial to his defense. Although the trial judge could not know at the pretrial hearing stage what evidence would ultimately be presented, the trial judge did conduct an in camera review of the state's evidence before ruling on the motion, and thus must have discovered that the state would call three expert witnesses to analyze blood and tissue spatter patterns, bullet fragments, bullet trajectories and flight paths, and glass shatter patterns. This should have been sufficient to alert the judge to the probability that the ballistics issue would be a significant factor. In fact, Stephens’ assertion that the ballistics issue was crucial was borne out at trial. Stephens’ sole theory of defense at trial was that of self-defense. This contention, in turn, was totally dependent on Stephens’ assertion that the victim fired the first shot. Thus, the question of who fired the first shot could hardly have been more important to Stephens’ defense. *669 I conclude that the demonstration made by Stephens to the trial judge satisfied the requirements articulated by the Supreme Court in Ake and by this court in Moore . Stephens showed not only the type of tests needed, i.e., ballistics tests, but also the name of an available expert. He showed that the issue was one subject to varying expert interpretations, and one as to which lay opinion would be inadequate. The trial judge conducted an in camera review of the state’s evidence, thus enabling the judge to evaluate the nature of the prosecution’s case and the nature of the rebuttal evidence being requested and the degree of need therefor. I conclude that it should have been apparent to the trial judge that the sequence of firing and who fired first was crucial to the defense and would be a significant factor at trial. When the only evidence on this complex issue came from the state’s expert, and Stephens was denied the opportunity to consult with or present his own expert, Stephens, like Ake, could not “offer a well-informed expert’s opposing view and therefore loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof.” Ake, 470 U.S. at 84 , 105 S.Ct. at 1097 . 3 . The majority also points out that the defense motion for experts was made one year after the crime, and that the deceased officer’s hands probably could not be tested for gun powder at that late date. While the delay might well have affected that particular test, it is unlikely that the delay would have impeded the more significant ballistics tests which were sought by Stephens. Significantly, delay was not mentioned by the prosecutor or the trial judge as a reason for denying the motion. . That these matters are in fact subject to varying expert interpretations was borne out by the affidavits and depositions proffered in Stephens’ federal habeas corpus proceedings. These experts reach different conclusions than those reached by the state’s experts at trial, specifically contradicting the conclusion that the physical evidence refutes Stephens’ contention that the victim fired first. See Depositions of Fassnacht and Riddick. . In an alternative holding, the majority finds overwhelming evidence that Stephens did not act in self-defense, because a disinterested witness observed the final moments of the incident, observing Stephens walking slowly to the rear of the car and firing a final shot into the car. However, it is clear that the disinterested witness’s testimony is not relevant at all to the issue of who fired the first shot. See footnote 16 of the majority opinion acknowledging that the disinterested witness could not testify concerning who fired first. In my judgment, if the officer did fire the first shot, I would be reluctant to conclude that there is overwhelming evidence that Stephens was not acting in self-defense. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477618. Public record. Not legal advice.