Paul Kordenbrock v. Gene Scroggy, Warden, Kentucky State Penitentiary

KRUPANSKY, Circuit Judge,

dissenting.

I join in Judge Kennedy’s dissenting opinion with the following comments.

As the district court and the dissenting opinion observed, the absence of Dr. Niz-ny’s appearance and the testimony during the state trial and sentencing proceedings was a calculated defense strategy implemented by astute legal counsel who, from the outset, perceived and recognized the callous implications of the appellant’s action when, during the course of a planned robbery, he killed Stanley Allen and attempted to kill William Thompson by deliberately shooting each of them, in the back of the head, after ordering them to lie face down on the floor of a storage room at the rear of the Western Auto Store in Florence, Kentucky, where both men worked.

Challenged by the malevolence of the appellant’s actions, which were confirmed by the psychiatric examination and oral evaluation of Dr. Nizny, a respected psychiatrist of appellant’s choice, counsel implemented a course of trial tactics designed to induce error into the record for purposes of appeal, a result they successfully accomplished. The district court’s conclusion that defense counsels’ deliberate efforts insured against Dr. Nizny testifying in appellant’s defense was firmly supported by the evidence and is not clearly erroneous.

It is conceded by the defense that appellant has never alleged nor had he placed insanity in issue before the Boone Circuit Court of Kentucky (Circuit Court) or subsequent courts. It should also be noted that appellant’s request for funds to retain a psychiatrist of his choice was nevertheless granted.

The first of three psychiatrists to examine appellant was Dr. Warner W. Anderson. In evaluating appellant’s competency to stand trial and his mental state at the time of the robbery and shooting, Dr. Anderson concluded:

I could find no evidence from the examination that this man suffers from any mental illness.... He could not account for anything including drugs *1125 that would have altered his mental state on the day of the alleged murder.... He did not appear to be remorseful about the fact that he had taken someone’s life.... The history that he presented suggested a series of episodes indicating antisocial behavior. He is aware of the seriousness of the charges against him and is aware that the possible consequences could result in his being executed in the electric chair. I feel he is capable of assisting counsel in his own defense, (emphasis added).

On or about May 14, 1980, at the Circuit Court’s suggestion, defense counsel inquired into the availability of qualified psychiatrists at various state facilities, particularly the Grauman Forensic Psychiatry Unit (Forensic Psychiatry Services) who were available to provide “an objective evaluation” for both competency or the existence of a mental disease, defect, or condition at the time of the alleged criminal act. Subsequent to further communication with Grauman, defense counsels’ request to participate in appellants defense was declined because “this department cannot allow itself to be used as the tool for either side in criminal matters but must maintain an objective stance.”

Subsequent to an in camera hearing conducted on July 18, 1980, the Circuit Court authorized defense counsel to select and employ a psychiatrist, a psychologist, and a psychopharmacologist of their choice whose fees would be paid by the state. On August 15, 1980, defense counsel advised the Circuit Court that after discussing the desired psychiatric evaluations and related expert opinions concerning appellant’s diminished capacity immediately before and during the robbery with 16 psychiatrists and 8 psychologists, all “refused to assist the defense.”

However, on August 26, 1980 defense counsel notified the Circuit Court that they had selected and retained Dr. Melvyn Niz-ny as their psychiatric expert of choice. On October 6 and 13, 1980, defense counsel, in support of appellant’s motion for a continuance, advised that Dr. Nizny’s report would not be available until November 5, 1980, and that defense counsel had agreed to pay Dr. Nizny one-half of his fee upon submission of his written report, the balance to be forthcoming at the conclusion of his testimony, although it was Dr. Niz-ny’s policy to submit fee schedules only after he had concluded his examinations, evaluations, submitted a written report and testified at trial. Dr. Nizny had not suggested or requested defense counsels’ payment arrangement.

Defense counsel also alerted the Circuit Court that the Boone County Fiscal Court (Fiscal Court) would probably refuse to pay Dr. Nizny because of a jurisdictional controversy between it and the State of Kentucky over which political subdivision was responsible for payment of expert fees in criminal cases, which ongoing controversy would require the commencement of a mandamus action necessitating the postponement of appellant’s scheduled trial on November 6, 1980. At the conclusion of the hearing the Circuit Court ordered the Fiscal Court to pay Dr. Nizny’s fees and continued the trial of November 6, 1980.

With this reflection of historical circumstances surrounding defense counsels’ “efforts” to obtain psychiatric assistance on behalf of appellant, the United States District Court for the Western District of Kentucky noted that on November 6, 1980, after Dr. Nizny had examined the appellant and orally reported to defense counsel, that his psychiatric examinations of the appellant reflected no mental illness and that, during the course of extended interviews, appellant had disclosed that on the night before the murder of Allen and the attempted murder of Thompson during the robbery of the Western Auto Store he had killed a service station attendant while robbing a Star Service Station in Kentucky. He also told Dr. Nizny that after the murder he visited his girlfriend where he met Michael Kruse and partied with three women until the following morning. Dr. Nizny opined to defense counsel that as a result of his three examinations of the appellant he concluded that the appellant had “an antisocial personality,” with no regard for the rights of his fellow human beings and *1126 that “it could not be said the rehabilitation [of Kordenbrock] was probable.”

Confronted with this highly prejudicial and damaging evidence, which would have become available to the state through the cross-examination of Dr. Nizny, 1 defense counsel promptly notified Dr. Nizny that the Fiscal Court had refused to pay his fees and that in all probability would not compensate him for his professional services as promised and that defense counsel could not guarantee payment. Contemporaneously, defense counsel told the Circuit Court that Dr. Nizny would not submit a written report and would refuse to appear as a defense witness until he was paid or guaranteed payment of his fees.

It is noteworthy that although the Circuit Court had ordered the Fiscal Court to honor and pay the professional fees of Dr. Nizny, which decree was ignored, defense counsel made no effort to enforce the Circuit Court’s order by proceeding in contempt or to otherwise levy upon county bank accounts or to request or subpoena the doctor to testify in person or by deposition.

Also reflecting upon defense counsels’ “good faith” efforts to present Dr. Nizny as a witness is the doctor’s disclosure that he had never been informed of the Circuit Court’s order directing his fees be paid, and his assertions that he would have voluntarily appeared as a witness if requested even though he was beyond the subpoena jurisdiction of the Kentucky Circuit Court and even though he had not been paid.

On November 21, 1980, the Circuit Court ordered appellant to the Forensic Psychiatry Services for evaluation because defense counsel had been “unsuccessful in their efforts to procure the services of a psychiatrist of their own choosing, and the trial of this cause having been unduly delayed because of the lack of such expert assistance.” Defense Counsel immediately directed appellant “not to communicate with the psychiatrist as long as Forensic is not acting as our full-fledged defense psychiatrist.”

On April 22, 1981, trial was scheduled for June 16, 1981. On May 6, 1981, defense counsel requested the appointment of Dr. Michael Gureasko, another forensic psychiatrist of their choice, which request the Circuit Court granted on May 15, 1981. On May 18, 1981, a defense motion for continuance was filed supported by the affidavit of Dr. Gureasko. On the same day Dr. Gu-reasko telephoned the Circuit Court to request the withdrawal of his affidavit and of his decision not to participate in the case due to a “disagreement or misunderstanding with defense counsel.” The motion for continuance was denied and the case proceeded to trial.

The related sequence of events reflects an objective manifestation of defense counsels’ efforts to discourage any objective psychiatric examination, evaluation, or testimony on behalf of the appellant, which had all the appearances of psychiatric shopping. In Harris v. Vasquez, 913 F.2d 606, 620-21 (9th Cir.1990), which was a case of equal premeditation and brutality, the appellant’s psychiatric profile revealed an “anti-social personality” without remorse or the “ability to profit from past experience or punishment.” The Ninth Circuit rejected the argument that appellant was denied access to qualified psychiatric assistance because the defense, for tactical reasons, much like this case, suppressed the testimony of two psychiatrists of appellant’s choice. Thus, I concur with the district judge and the dissenting opinion in the conclusion that defense counsel deliberately induced error into the record for purposes of appeal and that Dr. Nizny’s failure to appear at appellant’s trial did not, under the circumstances of this case, constitute a constitutional infringement.

The subtle sagacity and effectiveness of defense counsels’ tactics in implementing appellant’s defense strategy is again demonstrated by their decision to have the defendant personally address the jury by *1127 reading a prepared and obviously tailored opening statement which emotionally described his physical and mental condition as impaired by heavy and continuous drug and alcohol consumption the night before and immediately preceding the Western Auto Store robbery.

The result of defense counsels’ adroit legal maneuver is apparent from the expressed concerns of at least two of my associates who have become troubled by the stark contrast between the appellant’s signed confession which was read to the jury “as a simple, direct, calm, and confident recitation of cold-blooded murder_ entirely devoid of any reference to alcohol or drug use, any suggestion of hesitancy to act or confusion of purpose, or any tinge of regret” and the defendant’s opening statement at trial wherein he detailed a “narrative of heavy and continuing drug and alcohol consumption immediately preceding the killing, an abbreviated description of the robbery and shooting in language thinking of uncertain purpose, and then an explicit denial of an intent ‘to shoot anybody.’ ”

The reason for the disparity is obvious from a review of the verbatim transcript of appellant’s interrogation conducted immediately subsequent to his arrest which Judge Nelson, in a concurring opinion, characterized in the following language:

The appellant’s exercise of his right to remain silent produced no untoward consequences at all. There was no exercise of physical force, no threat of physical force, no hint of physical force. The verbatim transcript of the interrogation does not suggest that the police ever lost their tempers, or even so much as raised their voices. If I had been a prosecutor in this case, I daresay I would have been quite content to have a videotape of the questioning shown in open court.

At no point did the police try to get the appellant to shade the truth in any way. After the appellant said that he was the one who pulled the trigger, for example, the questioner said “Don’t jack us[;] if you didn’t [do it] tell us[;] if you did[,] tell us.” There is no reason at all to doubt the sincerity of the appellant’s response, which was “Sir, I did it, I told you.” This is simply not a case where the police were trying to browbeat a suspect into confessing to a crime that he might not have committed.

The interrogation was not prolonged unreasonably; the verbatim transcript takes less than 40 typewritten pages, with a new line for the start of each question and each answer. There is no indication that the appellant was deprived of food or drink or bathroom privileges. When he wanted a cigarette, he was given a cigarette. When he asked for an exercise break, he was given an exercise break. This is a long way indeed from the rubber hose or the rack and thumbscrew.

The interrogation reflects that for two and a half hours two interrogating officers cajoled, solicited, urged, coaxed, and requested appellant to explain or offer some reason for the murders which appeared to have been perpetrated in a cold, calculated manner. Not during this entire period, apart from expressing a need for money to pay hospital bills, did the appellant once, directly or indirectly state or infer that he was confused, irrational, hallucinating or in any way physically or mentally incapacitated by fatigue, the ingestion of drugs or alcohol or any combination thereof when he shot his victims in the back of the head while they were helplessly lying face down on the floor.

My colleagues, in discussing their troubled concerns avoid, sub silentio, appellant’s unequivocal denial of having ingested any drugs, or alcohol or being confused, spaced-out, or irrational from fatigue, drugs, or alcohol during the morning of and at the time he shot his victims.

The colloquy which could be considered pertinent to the defense of diminished capacity resulting from drug or alcohol is concise and certainly dispositive of the expressed concern arising from the disparity between the appellant’s signed confession and his opening statement.

Q: Were you taking some kind of drugs or something, were you out of it?

A: No, Sir.

*1128 Q: Were you mentally worn out, you really didn’t know what you were doing? Had you been up for 3 or 4 days worrying yourself sick over your hospital bills?

A: Just know I needed money to pay bills.

* # * •}: ¡ü *

Q: It’s been done and you can’t undo it. We just like for you to cooperate and tell us why it happened (inaudible) there’s bound to be some damn reason behind this crazy thing. People just don’t do that, you just don’t get that way over night, there’s bound to be something that made you do it or got you to go that far, you know.

Was you numb Paul?

A: What?

Q: Was you numb?

A: Numb. No, sir, I wasn’t.

Moreover, the signed confession which contains the totality of his material disclosures made during his interrogation is the statement that he read, acknowledged, and was willing to sign at the conclusion of the inquiry.

The answer to Judge Nelson’s musings that “at an emotional level — and jurors do have emotions — I think it [the exclusion of selected disconnected phrases from appellant’s interrogation from his written confession] could have tipped the scales” is also apparent from a review of the verbatim transcript of that quest for information.

Read in context, when appellant stated he was “scared shitless” he was not referring to a confused, irrational state of mind, panic, or other form of diminished capacity he experienced immediately before, during, or after the murders that had been induced by fatigue, drugs, or alcohol. He was expressing a calculated fear of being identified and returned to prison at some future time either as a probation violator or as a participant in the instant robbery.

Q: Are you still on probation down in Covington?

A: Yes, sir.

Q: How long?

How much longer? <!

Yeh. <3*

Two more years. <1

* 4- * * * *

Q: Paul, we’re going to find all this stuff out, it’s just a matter of time, look how much we’ve already dug up and in a way the body ain’t even cold, you know that, just a matter of time, all the people we’ve got out working right now.

Paul, did those guys put up any kind of a struggle with you?

A: The one guy started to get up when the customer came in.

Q: Did you think he was going to get up and fight you or something?

A: I didn’t know.

Q: Did that scare you?

(no answer)

Q: Was you afraid of going back to jail that much that you had to shoot him? Did you fear it that much?

A: Well, I was scared shitless.

The remaining omissions from the confession of concern to Judge Nelson related to the events immediately preceding the shootings while the appellant’s view of the retail area from the rear storage room where he was holding his victims at gunpoint was totally obscured. Shortly after directing Thompson into the storeroom where the clerk Allen was cleaning shelves, he ordered both men to lie face down, head to head, in a 9 o’clock position, he then heard a customer enter the store and an audible conversation between his accomplice and some unknown person. Obviously “he didn’t know what was happening” in the retail area until after he heard the customers leave the store when it was “too late”.

The isolated extrapolations from various pages of the interrogation transcript which the appellant adamantly refused to clarify during persistent importuning by his interrogators appear as meaningless, disjointed, unrelated expressions which fail to reflect upon the appellant’s claimed defense of diminished capacity.

*1129

Contrary to the inferences of the panel majority, that appellant was foreclosed from fully presenting his evidence of diminished capacity, the record discloses that he introduced the totality of that evidence which he was desirous of placing before the jury for its consideration.

Initially, his staged and scripted personal appearance before the jury where he read a carefully prepared, emotionally charged, opening statement insulated from any threat of personal impeachment through cross-examination 2 was dramatic. He described how he and his accomplice had partied the night before the Western Auto Store robbery, his hangover during the morning of the robbery, how he “shot gunned” three cans of beer and swallowed a single qualude tablet before leaving his sister’s residence, the site of the party, to rob the Western Auto Store. He related how he and his accomplice stopped enroute and had a ham and cheese sandwich, purchased gasoline and ten qualudes of which each consumed two before they proceeded to “get the guns.” He explained to the jury how he was “all messed up from the night before and what he had already consumed that morning” and how “I heard a crashing of glass and I’m not sure what caused my next movements, but I shot both men.” He then told the jury that, “I ran to the front of the store and Mike had the guns and we left. I never intended to shoot anyone. It just happened. I ran around the next day and a half trying to sell the guns. I got arrested the next Sunday night and told them I did it and it is something that I have been living with for the past eighteen months and 26 days. I don’t know how to put it in words how I feel.”

A parade of defense witnesses followed who attested to the appellant’s impeachment-free opening statement. The subject of his diminished capacity immediately before, at the instant of, and after the shooting, was thoroughly exhausted for the jury through appellant’s opening statement and the direct and cross-examination of the witnesses who appeared on his behalf.

The state counterbalanced appellant’s claim of diminished capacity by overwhelming proof, independent of appellant’s signed confession, which reflected a well planned, efficiently implemented robbery and escape. Key to the state’s evidence against the appellant was the positive identification of the appellant and the eyewitness detailed account of William Thompson, the manager of the Western Auto Store, who miraculously survived, the intended instantaneous death from the bullet directed to his head by the appellant. He not only survived but remained conscious during the entire ordeal and had total recall of the entire incident.

Thompson testified that on two consecutive days next preceding the robbery, appellant and his accomplice Kruse visited the Western Auto Store and browsed for approximately 30 minutes on each occasion under suspicious circumstances. On each of the two visits Thompson was the only person attending the store. During these visits appellant and his accomplice noted the store room at the rear of the premises which was protected from the view of customers and sidewalk pedestrians and the location of the locked glass handgun display cabinet.

The state’s evidence further developed that after leaving his sister’s apartment on Saturday morning, January 6, 1980, appellant and his accomplice Kruse proceeded to a gas station where they bought gasoline and ten qualudes from the station attendant. They then proceeded directly to the Western Auto Store approximately five minutes away. Before leaving their automobile, which was parked across the street from the store, appellant took a revolver from under the seat of the vehicle which he carried into the Western Auto Store. Thompson testified that he observed both men enter the store at approximately 9:30 a.m., when the appellant immediately directed him at gun point into the rear storage room where Allen was cleaning shelves and ordered both men at gun point to lay face down, head to head, in a 9 o’clock position while he stood over them. Thomp *1130 son further testified he heard a customer enter the store and a conversation during which appellant’s accomplice directed the customer to a hardware store to have his chainsaw sharpened. Thompson further testified that after he heard the customer depart he heard the sound of breaking glass, which he surmised was the glass of the gun display cabinet.

Thompson testified further that some moments after he heard the shattering of glass a shot exploded and he felt a searing and burning sensation in the back of the head, a pause before he heard a second shot which he knew was directed at Allen. The state further proved that the appellant had been awarded a marksman citation during his two years service with the Marines, that the two shots fired into his victims were fired from a distance of approximately eight to ten feet. It was apparent that firing a single shot from that distance, into an area as small as the base of a human skull, required sustained concentration, a steady arm, a steady hand, and a controlled trigger finger. Common knowledge dictates that a premeditated head shot is intended to cause instant death. It was also apparent from the evidence that the same concentration and physical control of placing the first shot had to be deliberately repeated a second time to accurately place the second shot into an area about the size of a billiard ball.

After firing both shots the appellant searched the rear room and found a cardboard box suitable for packing the handguns which he carried into the retail area of the store. The evidence further disclosed that the two men thereupon carefully separated the guns from the shattered glass shards from the display case and placed the weapons into the cardboard container which the appellant casually walked across the street to Kruse’s automobile. The appellant and his accomplice thereafter drove to a parking lot some distance away where they divided the handguns.

They then proceeded to the residence of appellant’s friend, Gary Ramell (Ramell), arriving there at approximately 10:00 a.m. The appellant negotiated the sale of three guns to Ramell for the sum of $200.00. The pair then continued on to the home of another of appellant’s friend, Richard Feh-ler (Fehler), arriving there at approximately 10:30 a.m. He negotiated the sale and sold additional guns to Fehler and picked up a cassette tape deck. Appellant and Kruse then returned to his sister’s apartment, arriving at approximately 12:30 p.m. where they remained for approximately two hours during which time they attempted to install the cassette tape deck. Karen Bowman (Bowman), appellant’s sister’s roommate, testified that both men appeared normal during this period of time.

• Kruse departed at about 2:30 p.m. and appellant borrowed Bowman’s car and drove to the home of his cousin, Jim Hoffman, where he was to meet Larry Hensley (Hensley), who was interested in purchasing appellant’s remaining handguns. Appellant negotiated the sale of his remaining guns for a price of $300 payable the next day. Appellant and Fehler, who had accompanied him to Hoffman’s residence, returned to Fehler’s home where they met Ramell at approximately 7:00 p.m. While appellant and Fehler were selling the remaining handguns to Hensley at the Hoffman residence, Ramell had viewed a television news account of the murder and robbery complete with photographs that resembled appellant and Kruse. Appellant hurriedly left the Fehler residence when Ramell attempted to question him about the source of the guns which he had purchased from the appellant. Ramell, Fehler, and Hensley notified the police and agreed to cooperate in an investigation. As a result of their effort, appellant was apprehended at 10:10 p.m. on the night of Sunday, January 7, 1980. The appearance and action of the appellant immediately subsequent to the robbery and during the period when he was negotiating the sales of the handguns was described as normal. Certainly, his composed, calculated, and systematic efforts to negotiate the sale of the stolen handguns displayed no signs of panic, remorse, irrationality or other evidence of diminished capacity.

Albeit, the appellant’s signed confession, as suggested by Judge Ryan, may have *1131 been “a simple, direct, calm and confident recitation of cold blooded murder_ devoid of any suggestion of hesitancy to act or confusion of purpose, or any hint of regret” and “an unqualified confession of premeditated murder.” It was, nevertheless, the statement that the appellant wanted to sign. It was, in no detail, inconsistent with the overwhelming proof independently developed by the state and unanimously accepted by twelve of his peers who sat in judgment and sentenced him to death.

In sum, dispassionately reviewed, it was the state’s overwhelming proof of the premeditated, deliberate, methodical, merciless, and cruel course of conduct which was pursued by the appellant from the selection of the robbery target, the “casing” of the premises, the systematic perpetration of the crime, including the execution and attempted execution of all identifying witnesses, to his post-execution activity in negotiating the sale of his stolen weapons, that reflected the objective manifestation of the appellant’s complete physical and mental self-control: a self-control that was demonstrated immediately before and at the moment he deliberately fired the two shots into the skulls of two helpless men, while he executed his robbery with the precision of a planned military manuever, which included the intended execution of all identifying witnesses, and during an organized escape. Appellant’s demonstrated deliberate course of conduct belies any irrational, confused reflex actions that conveyed “the impression of clouded thinking and purpose” or a state of panic.

The jury, not the members of this reviewing court, had the opportunity of observing the behavior of the witnesses upon the witness stand; their manner of testifying; the reasonableness and probability of their testimony; the opportunity they had to see, hear, and know the things about which they testified; the accuracy of their memory; their candor or lack of candor; their intelligence, interest, and bias, together with all the circumstances surrounding their testimony, obviously assign greater credibility to the witnesses and testimony presented by the state. It assigned little, if any, credibility to the appellant, his witnesses, and their testimony. The panel majority in absentia now invades the jury’s exclusive domain to judge the weight and credibility of the trial-developed evidence by rejecting its unanimously assigned credibility evaluations with a conjectured possibility anchored in factually unsupported suppositions and hypotheses, presumptions that do not rise to the level of a legal probability that, “it would be unreasonable to assume that not one member of the jury, in sentencing petitioner, gave weight to the confession when considering the death sentence.” The speculation that a single juror might have been swayed by the confession in rejecting appellant’s diminished capacity defense in the face of the state’s overwhelming evidence is not only highly improbable, but impossible. To the contrary, it is reasonable beyond doubt that none did. I am convinced from the record beyond a reasonable doubt that the erroneous admission of appellant’s confession was harmless in the sentencing phase of this case.

Accordingly, I join in Circuit Judge KENNEDY’S dissenting opinion, which affirms the disposition of the district court.

. The dissenting opinion has fully discussed the relevancy and admissibility of Dr. Nizny’s adverse trial testimony.

. The defendant did not take the witness stand to testify in his own defense.