Petition for Writ of Certiorari — Charles Wayne Bussell, Petitioner v. Kentucky

ATTEST: GAgIpQCK, CLERK

COMMONWEALTH OF KENTUCKY

CHRISTIAN CIRCUIT COURT

DIVISION I

INDICTMENT NO. 91-CR-O01 11

CHARLES WAYNE BUSSELL

f

JAN 2 92016

1

CHRISTLANy, KENTUCKY

Y

L1r

D.C.

MOVANT

V.

COMMONWEALTH OF KENTUCKY

RESPONDENT

ORDER

This matter is before the court upon the moti

on by Charles Wayne Bussell to

vacate his conviction pursuant to RCr 11.42 in

the

above-captioned case. At the third

trial of this matter in June of 2009, Bussell was

found guilty of Robbery in the First-

Degree and Murder, and was sentenced to life

without the possibility of parole for

twenty-five years. That conviction was appealed

and affirmed by the

Supreme Court of

Kentucky in an unpublished opinion, Commonweal

th v. Bussell, 2009-SC-000647-MR,

2011 WL3793151 (KY August 25, 2011).

In its opinion, the Supreme Court provided the follo

wing summary of relevant facts:

On December 2, 1990, Shirley Castle and his wife

, Beth, became worried when

his sister, Sue Lail, did not arrive at Sunday

church services, as was her

custom, Later that day, the Castles went to Lail’s

house and found no one

home, though her car was parked in the driveway.

A copy of the Saturday,

December 1, 1990, Courier-Journal and a breakfast

plate were found lying on a

table. When she didn’t appear the following day, the Cast

les called police.

In Lail’s living room trash can, officers found a torn

check in the amount of $50

partially made out to “Charles.” They also noticed

that the Saturday mail had

not been collected. Lail’s housekeeper, Mary Dud

ley, indentified several items

that were missing from the home, including Lail’s

robe and slippers, a vacuum

cleaner, two rings, and sterling silver flatware. Neig

hbors told Officers that they

had seen Lairs handyman, Charles Bussell, working

at the home on Saturday

morning around 11:00 a.m.

Officers interviewed Busselt in the

days following Lail’s disappearan

ce and

learned of his long relationship wit

h her family. Bussell’s father had wor

ked for

Lail’s father as a handyman. Bus

sell himself continued the relationship

after his

father died and had worked for Sue

Lail directly for about six years at

the time

of her disappearance. Bussel) reg

ularly performed yard work and rep

air jobs

around Lail’s home.

Bussell told officers that he did

some painting and yard work for Lail

on the

morning of Saturday, December

1, 1990. When he was finished, abo

ut 12:30

p.m., he went to the house to be

paid. Lail wrote him a $200 che

ck, which

accounted for 28 hours worked and

the cost of two bags of manure to

finish a

compost pile. As she wrote the

check, according to Bussell, Lail ask

ed

him to

paint a rental property she owned.

He agreed to do the job for $35

0, but asked

for an advance on that work. Lail

consented and began to write a

$50 check

when Bussell interrupted her, reques

ting a larger advance. Lail handed

him the

check to tear up and throw in the tras

h can, then wrote a second check

in the

amount of $200. As was her custom

, Lail wrote all of the information

regarding

the checks in her book. Finally, Bus

sell asked if he could borrow her

vacuum

cleaner, which he had occasionally

done in the past. Lail agreed and

BusseU

left, placing the vacuum in the bac

k seat of his vehicle. He then too

k it to the

home of Bertha Chambers, his girl

friend, and left it on her front porch.

About a week later, policed recei’,e

d a call from Kay Bobbett, Bob

bett told

officers that Robert Joiner, a friend,

had given her a ring that she beli

eved

belonged to Sue Lail. When police

questioned Joiner, he confirmed

that

he had

purchased the ring from Bussell for

$25 on the evening of December 1, 199

He gave it to Bobbett the same day

0.

.

Bussell was arrested on December

14, 1990. Police continued to inv

estigate

Lail’s disappearance, searching and

taking fiber samples from Bussell’s

vehicle.

It had a dent on the passenger fen

der and pieces of bark under the

damaged

portion.

Police also recovered Lail’s vac

uum

clea

ner

from

Chambers.

Chambers related to police that Bus

sell had given her the vacuum as an

“early

Christmas present” and that he had

found it at a flea market.

On February 23, 1991, two juveniles

discovered Lail’s body in a remote

area of

the Western Kentucky Fairgrounds.

An autopsy revealed that Lail had

been

beaten and strangled. She was fou

nd wearing a pink robe and slippers.

Pol

ice

also discovered that a tree near Lail’s

body had been recently damaged.

In 1994, Bussell was tried, found gui

lty of robbery and murder, and sen

tenced

to death. This Court affirmed the con

viction on direct appeal. Bussell

v.

Commonwealth, 882 S.W.2d 111

(Ky. 1994). In 2005, the Christian Cir

cuit

Court granted Bussell’s RCr 11.42

motion, concluding that he had rece

ived

ineffective assistance of counsel and

that the Commonwealth failed to disc

lose

91-CR-OO111

2

exculpatory evidence.

This Court unanimously

Commonwealth v. Busse

upheld that order in

ll, 226 S.W.3d 96, 105 (K

y. 2007).

Bussell was retried in Ch

ristian County in 2008.

That trial ended in a mi

following a hung jury.

strial

He was retried again in

2009 and convicted of rob

and murder. He was sen

bery

tenced to life without

the possibility of parole

twenty-five years.

for

Bussell has now moved

to

vacate his conviction pu

rsuant to ROt 11.42 on

the grounds of ineffecti

ve assistance of trial

counsel. The court held

an evide

counsel and ineffective

appellate

ntiary hearing on Septemb

er 24 and 25, 2015, at

which Bussell called six

witne

sses to testify. The Co

mmonwealth did

witnesses.

STANDARD OF REVIEW

FO

R RCr 1142 MOTIONS

In Strickland v. Washington

not call any

ON APPEAL

, 466 U.S. 668 (1984) (ad

Supreme Court in Gall v.

Commonwealth, 702 S.W

. 2d 37

test was developed with

veness of counsel. Th

e first

a showing by the moving

his counsel was deficient,

party that the performan

ce of

with the strong presump

tion being that counsel

has

ance and made all signif

ica

nt decisions in the exercise

reasonable professional jud

gments. In Strickland, the

court must indulge a stron

g presumption that counsel

Supreme Court held

“...

’s conduct falls within a

range of reasonable profes

to state:

(Ky. 1985)) a two-prong

regard to claiming ineffe

cti

prong of that test requires

rendered adequate assist

opted by the Kentucky

of

the

wide

sional assistance.” Strickla

nd at 689. The court went

on

Judicial scrutiny of counsel

’s performance must be hig

hly deferential. It is all too

tempting for a defendant

to second guess counsel’s

assistance after conviction

or adverse sentence, an

d it is all too easy for a

court, examining counsel

defense after it has prove

’s

d unsuccessful, to conclud

e that a particular act or

omission of counsel was un

reasonable.. .the court shou

ld recognize that counsel

91-CR-OO111

3

is strongly presumed to have rendered adequate

assistance and made significant

decisions in the exercise of reasonable profession

al judgment.

Strickland at 689-690.

The second prong requires that the deficiency must

have preju

diced the defense

such that there is a reasonable probability that, but

for counsel’s unprofessional errors,

the result of the proceeding would have been diffe

rent.

counsel’s errors were so serious as to deprive the

This requires showing that

moving party of a fair trial. This is a

very difficult standard to meet, as noted by the United

States Supreme Court:

With regard to the prejudice inquiry, only the stric

t-outcome determinative test,

among the standards articulated in the lower courts,

imposes a heavier burden

on the defendants than the tests laid down toda

y. The difference, however,

should alter the merit of an ineffectiveness claim only

in the rarest case.

Strickland at 697.

Thus, the moving party is requited to show that

but for counsel’s unprofessional

errors, there is a reasonable probability that the outc

ome would have been different. A

reasonable probability is a probability sufficient

to undermine confidence in the

outcome. Id. It is clear that entirely speculative

and self-serving assertions that the

outcome would have been different are merely “con

venient revisionism” and will not be

accepted. Baze v. Commonwealth, 24 S.W. 3d 619,

624 (Ky. 2000), overruled on other

grounds, Leonard v. Commonwealth, 279 S.W. 3d 151

(Ky. 2009).

In support of his motion, Bussell alleges that trial coun

sel was deficient in the

following ways:

FAILURE TO INVESTIGATE OR TO FILE OR RESPON

D TO PRETRIAL MOTIONS

Bussell maintains that his trial counsel, the Hon. Keith Virgin

, rendered ineffective

assistance of counsel by failing to adequately investiga

te and by failing to file

91-CR-OO111

4

or

respond to pretrial motions. In support of Bussell’s conten

tion, among other things, he

maintains that Virgin’s file consisted of ‘just three bankers’

boxes.”

There is apparently no dispute that the Commonwealth

Virgin in or about October 2008.

The initial discovery, presumably the bulk of the

banker’s boxes, was later supplemented by a disk containing

format.

provided discovery to

the case file in a digital

Unfortunately, Bussell fails to identify any materials, docum

ents, or other

evidence that was not provided or otherwise available

to be

11.42 hearing on September 25, 2015, Virgin testified that

considered. At the RCr

he ‘laboriously” reviewed all

the discovery materials, and that he read the entire transcr

ipt of the 2008 trial and

watched portions of it.

Bussell also contends that Virgin’s duty to conduct a reason

able

investigation

necessarily included a duty to consult with Bussell’s

prior attorneys.

The Hon.

Theodore Shouse, who represented Bussell in the 2004

RCr 11.42

also in the 2008 retrial which resulted in a hung jury, testified

proceedings and

at the evidentiary hearing

on September 24, 2015. Shouse did not handle the 2009 trial

because he was leaving

the Department of Public Advocacy shortly after the conclu

sion

Shouse did, however, leave a note dated July 30, 2008 advisin

of the 2008 trial.

g his successor to “start

with this box.” Shouse testified that he also sent an email and

letter to Virgin

offering

his help.

Neither the email nor the letter, nor the handwritten note to “start

with this box,”

from Shouse contained any specific information on matters unknow

n to Virgin, or

indicated that Shouse had additional information that would

otherwise have been

unavailable to Virgin. At the evidentiary hearing, but not before,

Shouse explained that

91-CR-OO111

S

if Virgin had called him, Shouse would have shared his opinions about

both expert and

lay witnesses, and venue. He also would have alerted Virgin to the tool

mark issue

which first arose during the 2008 retrial. Shouse also testified that he would

have been

able to tell trial counsel about the judge in the case and “how to win with

that judge.”

At the evidentiary hearing, Virgin testified that he did not respond to or attemp

t to

contact Shouse because he knew Shouse was running for circuit judge

in Jefferson

County and was presumably very busy with his campaign. Virgin also

testified that he

regularly practiced in this court and was already familiar with the judge

who would

be

presiding over the trial.

The Hon. Susan Martin, who handled the appeal of the 2004 RCr

11.42

proceedings, also testified at the evidentiary hearing.

In addition, the appeal of

Bussell’s first trial was the first case she was assigned in the post-convictio

n branch

of

the Department of Public Advocacy. Specifically, she testified that she left

at least two

voice mails for Virgin.

On cross-examination, she testified that there was not any

specific information that she wanted to provide Virgin but rather mote of

a general offer

to help if needed. Virgin testified that he attempted to contact Ms. Martin

efforts to contact her were unsuccessful.

and that his

Again, like Shouse, there was nothing

substantive that Martin offered to provide to Virgin that was not otherwise availab

le

to

him.

It is important that Virgin testified that he made the decision at a very early stage

of his involvement in this case that Bussell would testify. As a result, he adopte

d a

significantly different trial strategy from previous counsel, as Bussell did not testify

either of the first two trials.

91-CR-OO1].1

in

Virgin also testified that he believed he could properly

6

prepare for the trial and for Bussell’s testimony by reviewing

the record and specifically

the second trial. He also made it know that he was going to

rely on the “finer elemen

ts”

of Shouse’s preparation and trial, “fine tune” some of his elemen

ts, incorporate Bussell’s

testimony, and “win,”

Although Virgin’s trial strategy was somewhat different than

Shouse’s, there is

nothing in the record to indicate that he failed in his fundam

ental duty to investigate or

properly prepare the case for trial. Further, there is nothing

in the record to indicate that

Virgin deviated from sound trial practice and objectively reason

able representation.

Bussell also complains that Virgin only filed three pretrial motion

s

and did not

respond in writing to the Commonwealth’s motions. As the

Commonwealth points out,

the number of motions or written responses filed is irrelevant.

Given the extensive

history of the case, and the multitude of issues that had already

been litigated and

addressed, there were very few, if any, issues that had not previo

usly been addressed

or which reasonably should have been re-addressed.

Bussell also complains that Virgin did not respond in writing to

a motion

in limine

filed by the Commonwealth regarding Hopkinsville Police Depart

ment Officer Kevin

Johnson’s termination from the department, or to the exclusion of

Hopkinsville Police Department Officer Siah Cornell.

alleged bad acts by

Perhaps Virgin’s failure to

respond to these motions was based on his thorough review of the record

would have learned that the court had previously found both of these

in which he

matters to be

irrelevant to Bussell’s trial. Nevertheless, in the 2009 trial, Virgin did

make an effort or

inquiry about cross examining Johnson regarding his termination. In additio

n, testimony

91-CR-OOfl1

7

was taken by avowal regarding the termination, which ultimately was not admitted into

evidence. Officer Corneff died prior to the 2009 trial, and therefore did not testify.

FAILURE TO CROSS-EXAMINE AND IMPEACH WITNESSES

Bussell next argues that trial counsel was ineffective in his faiture to crossexamine and impeach certain witnesses.

Specifically, Bussell contends that trial

counsel was ineffective for not moving to exclude the testimonies of Joiner and Bobbett

all together, or in the alternative, for not moving to include portions of their testimonies

from the 2004 RCr 1 1.42 hearing. As Virgin noted at the evidentiary hearing, the issues

related to the admissibility of the previously recorded testimonies of Joiner and Bobbett

were thoroughly litigated, briefed, and argued before this court prior to the 2008 trial.

Virgin further testified that in preparing for the 2009 trial, including his review of the

proceedings related to the testimonies of Joiner and

Bobbett, he did not think that

moving the court again to preclude their testimonies would have a different outcome.

Bussell also raises questions with regard to Joiner’s competency to testify at all

and maintains that Virgin should have raised this as an additional ground to exclude his

testimony. To do so would have been to ignore that on two separate occasions (the

1991 trial and the 2004 RCr 11.42), two different judges deemed Joiner to be competent

and allowed him to testify. Although the judge in the 2004 RCr 11.42 hearing noted that

Joiner had been placed under guardianship in 1993, he still allowed Joiner to testify. Of

course, Joiner’s original testimony at the trial in 1991 would have been some period of

time before he was legally disabled.

Virgin also explained his decision not to introduce the 2004 testimony of Joiner

and Bobbett as part of his overall trial strategy. Explaining that he had spent a great

91-CR-OO111

8

deal of time reviewing the RCt 1 1 .42 hearings from 2004,

Virgin expressed concern that

Joiner once again, as he did in the 1991 trial, testified that

he was still afraid of Bussell.

Virgin then made the decision that since Bussell was going

to testify, he did not want

the jury to heat Joiner’s testimony suggesting that Bussel

l was someone to be feared.

Similarly, Virgin expressed concern that Bobbett, at the

RCr 11.42 hearings, had

testified that she had overheard Bussell threaten to

blow Joiner’s brains out or

something to that affect. Again, as a part of his overall trial

strategy, he decided that

he

did not want the jury to heat that testimony.

Virgin’s decision to not introduce the 2004 testimony of Joiner

and Bobbett was

informed and strategic. He knew that there was nothing

that could be elicited from

2004 testimonies that could not be effectively obtained

their

through the testimony of other

witnesses, including the 2004 testimonies of Audrey Canter

bury, Mame Bobbett and

Bussell himself. Clearly, Virgin’s decisions with regard

to this matter were objectively

reasonable under the circumstances.

In affirming Bussell’s 2009 jury trial conviction, the Suprem

e Court of Kentucky

held that it was not palpable error for the trial court to have

testimony of Joiner and Bobbett absent their 2004 testimo

manifest injustice. Bussell at 5.

allowed the 1991 trial

ny because there was no

In its opinion, the court noted that Joiner’s testimony

was strongly corroborated by the personal check he wrote

to Bussell, which was

endorsed by Bussell, as well as the testimony of Bussell himself.

Id.

The court further noted that the benefit of cross-examination

of Joiner and

Bobbett was fully realized through means of trial counsel’s cross-e

xamination of other

witnesses.

91-CR-OO111

9

Mote importantly, the damaging potential of the cross-e

xamination of

Joiner and Bobbett was fully realized through other means

. In his brief

before the Court, Eussell explains that the RCr 1 1.42

examination of

Joiner and Bobbett approximates the cross-examination

that should have

been conducted in the 1991 trial. The thrust of the RCr 11.42

examination

of Joiner and Bobbett concerned their reputations for truthfu

lness and their

credibility. Even without the admission of the RCr

11.42 testimony,

defense counsel was able to seriously attack both Joiner’

s and Bobbett’s

credibility through the testimony of Audrey Canterbury and

Mame Bobbett,

Kay BobbeWs mother.

Audrey Canterbury testified at the RCr 11.42 hearing

and her testimony

was admitted at the 2009 retrial. Days before Joiner’

s mother died,

Canterbury made a promise to her that she would

look after Joiner.

Canterbury explained that Joiner was mentally handicapp

ed, that he was

unable to manage his own affairs, and that he lacked

any critical thinking

skills. She related that Joiner was often untruthful and

that he made up

stories. For this reason, he was often taken adva

ntage of by his

neighbors and, particularly, by Bobbett. Canterbury was

aware that Joiner

had purchased jewelry for Bobbett in the past, and it was

Canterbury’s

opinion that Bobbett was ‘rotten to the core” for having

accepted

expensive gifts from him. Canterbury even opined that

Joiner would lie for

Bobbett, if she asked, because he was infatuated with her.

Sobbett’s mother, Mame Bobbett, also testified at the RCr

11.42 hearing

and her testimony was replayed for the 2009 jury.

The bulk of her

testimony concerned Joiner’s character for untruthfulness

and his history

of “telling stories.” Like Canterbury, it was Mame Bobbeti’s

stated opinion

that Joiner would lie for her daughter because he was in love

with her.

Id. at 6.

Finally, the court considered the overall strength of

the prosecution’s case, the

compelling circumstantial evidence of Bussell’s guilt, and

the strong physical evidence

against Bussell when it concluded:

Even had the (Joiner and Bobbett) RCr 11.42 testimony been

admitted at the

trial, we do not believe the jury would have been left with

a significantly different

impression of their credibility. Moreover in light of the

compelling case

presented by the Commonwealth, we do not believe that

there exists any

probability that the jury would have acquitted Bussell, even

if Joiner’s and

Bobbett’s RCr 11.42 testimony had been admitted.

Id. at 6-7.

91-CR-OO111

10

There are a number of other contentions that Virgin failed to effectively

cross-

examine certain witnesses and/or that Virgin failed to effectively cross-e

xamin

e with

regard to certain issues.

Although this court specifically finds that none of these

instances rises to the level of ineffective assistance of counsel, nor do

any

issues reveal the existence of any probability of acquittal even if Virgin

complete conformity with Gussell’s complaints. Those witnesses and

of these

had acted in

issues will be

summarily addressed as follows:

1. Webb Lail

Webb Lail, the victim’s son, testified that he saw a certain ring on his mothe

finger at Thanksgiving, approximately one week before she went

missing.

r’s

The

Commonwealth presented evidence at trial that Bussell stole that certain ring

and sold

it

to Joiner. Bussell complains that trial counsel was ineffective for not impeaching

Webb

Lail with the statement his wife, Patty, made to the police that she had not

seen the ring

on her mother-in-law’s hand at Thanksgiving. In fact, Virgin did cross-examin

e Officer

Martins with regard to this very issue.

Although there were hearsay and other

evidentiary considerations, there is no question that Virgin addressed, or

at least

attempted to address, this issue through cross-examination.

2. The Checks

Busseti also maintains that trial counsel failed to cross-examine Officer Martin

s

regarding the absence of Bussell’s finger prints on the checks in evidence as well

as on

the handwritten note. Again, in fact, Virgin did cross-examine Officer Martins on

the

issue of the handwriting on the checks.

The checks were dealt with on numerous

instances by multiple witnesses throughout the trial. Further, Bussell himsel testifie

f

d

91-CR-OOlfl

11

regarding the checks in the 2009 trial, and as the Kentucky Supreme Court

stated,

“The

check numbers do not substantiate (his) story.” Busseif at 6. Again, in light

of all the

evidence presented in this case, both direct and physical as well as circum

stantial, there

is not any probability, let alone a reasonable probability, that the result of the

trial would

have been different nor is there any basis to undermine confidence in the

outcome

based on this issue.

3. The Vacuum Cleaner

There was also concern expressed by Bussell that the jury did not hear that the

victim had a practice of loaning items to others, including her vacuum cleane

r. In fact,

trial counsel did cross-examine Officer Martins with regard to this issue.

Specifically,

Virgin asked Officer Martins about Bussell’s statement at the time of his arrest

that the

vacuum had been borrowed from the victim.

4. The Paint

Some of the most compelling evidence against Bussell was the paint evidence

that was obtained from a tree in the general vicinity of where the victim’s body was

found which matched the paint on Bussell’s automobile. The paint evidence was

the

subject of testimony of both lay witnesses and expert witnesses. Most, if not all,

of the

paint evidence was located and collected by Sergeant Over and Officer McGuire of the

Hopkinsville Police Department. Both witnesses were cross-examined thoroughly

with

regard to their methods of collection and retention of the evidence.

Nevertheless, Bussell suggests additional questions that could have been asked

but were not. Certainly, that is the case in virtually every trial. In this case, Bussell fails

91-CR-OO111

12

to raise any significant issues with regard to the paint evidence to suggest that

Virgins

conduct falls outside the wide range of reasonable professional assistance.

5.

Officer Credibility

Bussell also maintains that trial counsel failed to impeach two officers who

worked the investigation in Lail’s murder, specifically Officer Johnson and

Officer

McGuire. With regard to Officer Johnson, trial counsel did obtain his testimony

on the

disputed issue by avowal, but this court ruled the issue irrelevant and inadm

issible. At

that point, there was really nothing more that trial counsel could have done.

With regard to Officer McGuire, Bussell contends that it was ineffec

tive

assistance of counsel for trial counsel not to have cross-examined him regarding

a 1993

Hopkinsville Police Department interoffice memorandum concerning lab tests.

The

memo, which was part of Officer McGuire’s personnel file, was arguably hearsa

y and it

is unlikely that the memo itself would have been introduced into evidence. Moreover,

Officer McGuire’s testimony was reinforced by numerous other officers and witnes

ses

throughout the trial. Therefore, the lack of impeachment of Officer McGuire’s credibility

based on this 1993 interoffice memo (two years after the commission of the crime)

had

little or no beating of the outcome in this case.

6. Victim’s Behavior

Bussell contends that trial counsel’s “failure to effectively cross-examine the

Commonwealth’s case left the jury unable to hear about the strange behavior” of the

victim leading up to her disappearance. Although such evidence seems to be minimally

probative, Bussell maintains that trial counsel should have cross-examined Officer

Martins about her conversation with an employee of the Western Kentucky Gas

91-CR-OO111

13

Company who informed Officer Martins that when the victim came in to pay her bill the

day before she disappeared, she brought the wrong bill, had a strange look on her face,

and appeared disoriented. Notwithstanding Bussell’s contention, trial counsel did crossexamine Officer Martins with regard to the payment of her gas bill. In addition, Bussefl

himself testified to seeing the victim on the date she disappeared, in addition to the days

and weeks leading up to her disappearance.

7.

Alternative Suspects

Although Bussell acknowledges that trial counsel did elicit some testimony about

alternative suspects, he maintains that trial counsel failed to cross-examine Officer

Martins about a report she wrote wherein a confidential informant provided the names of

persons perhaps being involved in the victim’s disappearance. Officer Martins did in

fact testify that other names came up in the investigation, but that no other information

ever developed connecting them to the victim or her disappearance. Trial counsel’s

cross-examination of Officer Martins with regard to this issue was appropriate and

acceptable.

8.

Destruction of Evidence

Bussell contends that trial counsel failed to elicit testimony from Officer Martins

that she ordered the destruction of a AAA card belonging to the victim. Officer Martins

did testify that she found the victim’s AAA card on the Dawson Springs Road a year or

two after the victim’s body was recovered, It is not clear what else Russell contends

that trial counsel could have or should have done with regard to this issue, but it is cleat

that trial counsel’s assistance with regard to this issue was not ineffective.

91-CR-OO111

14

9.

Victim’s Relationship with BusseH

Bussell also argues that trial counsel failed to adequately cross-examine

witnesses regarding the relationship he had with the victim. In light of the substantial

physical and circumstantial evidence that was introduced regarding Bussell’s

guilt, as

well as the fact the Bussell himself testified to his relationship with the victim

and the

victim’s family, it is impossible to conclude that anything that trial counsel did or did

not

do with regard to this issue prejudiced Bussell in any significant way.

FAILURE TO UNDERSTAND THE FORENSIC SCIENCE UNDERLYING THE

COMMONWEALTH’S CASE

The evidence in Bussell’s case was primarily circumstantial and, in large part,

rested upon trace evidence, including paint, fiber, and wood evidence. Bussel

l claims

that because trial counsel did not understand these areas, and was deficie

nt in his

selection and retention of an expert, he failed to effectively cross-examin

e the

Commonwealth’s experts.

First, with regard to the allegation that trial counsel was deficient in his selection

and retention of an expert, that complaint is wholly without merit. The defense expert,

Dr. Saferstein, was eminently qualified to testify as an expert witness regarding matter

s

pertaining to trace evidence, having done so many times in multiple states, including the

2008 retrial of Bussell. There is no issue with regard to trial counsel’s selection and

retention of Dr. Saferstein as an expert.

Secondly, Sussell alleges that trial counsel was deficient for failing to adequately

understand the state of forensic science underlying the Commonwealth’s case.

In

support of this alleged deficiency, Bussell maintains that there were additional questions

91-CR-OO111

15

that Virgin should have asked in order to point out certain

“differences” between the

various samples that were tested for comparison purposes.

By way of review, the trace evidence in this case was substantial and

There was damage on Bussell’s vehicle consistent with hitting

significant.

a tree. There was also

wood or bark lodged in the fender of Bussell’s car which was identif

ied as winged elm.

A damaged winged elm tree was located at the scene where

the victim’s body was

discovered. The location of the damage on the winged elm tree was

consistent with the

height of the fender on Bussell’s vehicle. The paint smears taken

from the damaged

winged elm tree were forensically similar to the paint on Bussel

l’s vehicle. In addition,

fibers from the victim’s gown were found in the back seat of Bussel

l’s vehicle as well as

the vacuum cleaner, both of which were in Bussell’s possession.

By the time of the 2009 retrial, the sample sizes of most, if not

all, of the trace

evidence were too small for any additional testing. As a result, the

defense experts,

including the defense expert who testified at the evidentiary hearing in Septem

ber 2015,

were unable to conduct independent testing.

In several instances, including some of

the paint samples, the sample size was too limited for even the

Commonwealth’s

experts to conduct complete testing. Nevertheless, all of the experts

who have testified

at any phase in this case have agreed that each of the items in each

paint, fiber, and wood

—

yielded forensically similar results.

of the categories

—

The only issue then is

whether trial counsel sufficiently understood the science involved for the

purpose of

cross-examining the Commonwealth’s experts and for the purpose of exposi

ng any

deficiencies in the testing or conclusions through the direct examination

of Bussell’s

expert.

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It should be noted that none of the defense experts who have testified at any

phase of this proceeding have had significant or substantial problems with the

methodologies utilized by the Commonwealth’s experts in testing the trace evidence.

To the extent that there were differences in conclusions, they were, at most, slight

differences and very technical in nature.

In reviewing his examination of the expert witnesses, it certainly seems that

Virgin did the best he could with what he had. For example, on cross-examination of

the Commonwealth’s expert regarding the testing of the paint evidence, Virgin was able

to elicit that complete testing could not be performed due to the limited sample size.

With regard to the fiber evidence, he was able to get the Commonwealth’s expert to say

that he was not 100% sure that the fibers removed from the back seat of Bussell’s

vehicle came from the victim’s housecoat, although they were ‘indistinguishable.” He

also elicited from his own expert that nightgowns like the victim’s are mass produced

and are not as unique of an identifier as something like a fingerprint.

These are just a

few examples of what this court concludes was otherwise both a direct and crossexamination of expert witnesses that falls easily within a wide range of reasonable

professional assistance.

FAILURE TO OBJECT TO TESTIMONY OF COMMONWEALTH’S WITNESSES

REGARDING TOOL MARK EViDENCE

Bussell’s defense was that someone else, not Bussell, robbed and killed the

victim. At least part of that theory centered around a pry mark or marks located on the

door frame of the back door to the victim’s house which was capable of being latched

from the inside. At least initially, police suspected that the pry marks were evidence of a

break-in. At trial, three police officers testified regarding their observations related to

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the pry marks. One of those officers, Park, had training in the field of tool marks as well

as significant work experience in that field. All three of the officers testified at trial that

the damage to the door did not appear to be caused by someone trying to break into the

house.

At the evidentiary hearing, Bussell presented the testimony of William A. Tobin, a

forensic metallurgist, for the purpose of refuting that Park was qualified to testify as any

kind of expert tool mark examiner. Tobin also strongly disagreed with Park’s conclusion

and testimony that the damage to the door was caused by normal wear and tear.

However, and this is fatal to Bussell’s claim with regard to this mailer, Tobin

testified that if the door was shut and latched, then it would not have been possible for

the damage to have occurred or have been caused by a person outside the residence.

Thus, neither the testimony of Park nor Tobin supports the defense theory that the pry

marks on the door were caused by a break-in. It should go without saying that if the

door was not shut and latched, the door could simply be opened without the need to

utilize anything that would leave a pry mark on the interior frame of the door. For these

reasons, Bussell’s complaint with regard to this mailer fails.

FAILURE TO OBJECT TO THE COMMONWEALTH’S CROSS-EXAMINATION OF

THE DEFENDANT

Bussell contends that he was asked on cross-examination to comment on the

veracity of two of the Commonwealth’s witnesses. The Commonwealth maintains that it

was not inquiring whether the witnesses were lying nor was it asking Bussell to

characterize their testimony in some way. Instead, the Commonwealth maintains that it

was simply asking Bussell if he knew of a reason or motive why the witnesses’

testimony differed from his own.

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This issue was presented on appeal to the Supreme Court of Kentucky, which

concluded that this type of questioning did not rise to the level of palpable error.

Busseli

at 9. While acknowledging that the standard of review in the context of Bussel

l’s RCr

11 .42 motion is not palpable error, the Commonwealth maintains that

the same

reasoning applies. Specifically, the Supreme Court stated that the Comm

onwealth is

permitted to bring out that the fact that the defendant’s testimony contrad

icts that of

other witnesses. Id. This court agrees.

As stated previously, Virgin made the decision early on that Bussell was going

testify in the case and win.”

takes the witness stand.

to

Obviously, there are inherent risks when a defendant

Nevertheless, after careful consideration, Virgin concluded

that having Bussell testify gave him the best opportunity to obtain a succes

sful result.

With regard to the specific line of questioning which Bussell now objects to, it

is certainly

possible that Bussell could have had one or mote plausible explanations as to

why the

testimony of the other witnesses differed from his. Therefore, trial counsels failure

to

object to this line of questioning was well within the wide range of reason

able

professional assistance under these circumstances.

FAILURE TO OBJECT TO THE COMMONWEALTH’S CLOSING ARGUMENT

Bussell also argues that trial counsel was deficient and ineffective by failing to

object to certain comments made by the Commonwealth during its closing argum

ent.

As Bussell points out, improper comments by the prosecutor may requite a jury

admonition or even a mistrial in some circumstances.

However, such relief is only

available when the defense attorney properly and timely objects.

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19

In this case, Virgin did not object to any of the comments made

by the

Commonwealth in its closing argument. Again, the question remain

s whether there is

sufficient evidence that trial counsel’s performance was so deficient

as to rebut the

strong presumption that counsel’s conduct falls within a wide range

of reasonable

professional assistance. Strickland at 689.

In reviewing the alleged objectionable comments, this court cannot find anythi

ng

that would be so problematic as to rebut that presumption or in any

confidence in the jury verdict.

way undermine

In fact, it is welt within the wide range of reasonable

professional assistance for an attorney not to make any objections

during opposing

counsel’s closing arguments for any number of legitimate reasons. This

court has no

problem that defense counsel declined to do so in this case.

FAILURE TO OBJECT TO ERRONEOUS JURY INSTRUCTION AND FAILU

RE TO

RAISE THE ISSUE OF ERRONEOUS JURY INSTRUCTION ON APPEA

L

Bussell contends that trial counsel was ineffective by failing to object to the

jury

instruction regarding First-Degree Robbery and, similarly, that appella

te counsel was

ineffective for failing to raise the issue on appeal.

At issue is the portion of the instruction which provides multiple theories of

item or items may have been stolen as an element of the offense of robber

what

y. This type

of combination instruction is proper under Kentucky law. Travis v. Commonwea

lth, 327

S.W. 3d 456, 459-460 (Ky. 2010). Therefore, there is no merit to Bussell’s

argument

with regard to this issue.

FAILURE TO PRESENT MITIGATING EVIDENCE

Bussell next complains that his trial counsel was ineffective by failing to presen

mitigating evidence during the penalty phase of his trial.

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t

In fact, trial counsel did

20

present the testimony of two witnesses, both family members, during

the penalty phase.

However, Bussell maintains that trial counsel ignored the “treasu

re trove” of mitigating

evidence that was available.

Both family members presented a picture of Bussell that was favora

ble. Among

other things, that he is a member of a large family with whom

he remains close. In

addition, they also testified about his involvement in church, his partici

pation in sports,

and a temperament that is inconsistent with that of a murderer.

There was also a third

witness who trial counsel attempted to call, but who was too emotio

nal

and asked not to

testify.

There is nothing in the record to support the contention that

trial counsel’s

performance with regard to this issue was deficient.

CONCLUSION

Bussell filed this motion pursuant to RCr 11.42, in an attempt

to vacate

his

conviction. In order to prevail, he must show both that his counse

l provided deficie

nt

assistance and that as a result of that deficient assistance he was

prejudiced to the

extent that there is a reasonable probability that, but for counsel’s unprof

essional errors,

the result of the proceeding would have been different.

Strickland, supra.

conducting an evidentiary hearing and further considering the briefs

After

and other pleadings

filed by counsel, this court concludes as a matter of law that Bussel

l has failed to

demonstrate or otherwise satisfy either of the prongs of the rules set forth

in Strickland.

Therefore, for the reasons set forth above, Bussell’s motion to vacate

his conviction

pursuant to RCt 11.42 shall be and is hereby DENIED.

91-CR-OO111

21

This is a final and appealable order.

SO ORDERED, this

of

2016.

II7 ‘4 >d’

And w C. Self, Judge /

Christian Circuit Court,7v I

CERTIFICATE OF SERVICE

This is to certify that a true and accurate copy of the foregoing Order has been sent via

U.S. Mail this

c’

day of sci) 2016, to the following:

Tim Coleman

Blake Chambers

OFFICE OF THE COMMONWEALTH’S ATTORNEY

201 E. Ohio Street, Ste 3

P0 Box 1038

Morgantown, KY 42261

Krista A. Dolan

DEPARTMENT OF PUBLIC ADVOCACY

100 Fair Oaks Lane, Ste. 301

Frankfort, KY 40601

Gary J. Haddock, Circuit Clerk

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22