Appendix — Scroggy v. Kordenbrock

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| f Bteso |

9H-1298. FEB 19 1991

NO. 90- OFFICE OF THE CLERK

eee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

GENE SCROGGY, WARDEN Petitioner

versus

PAUL KORDENBROCK Respondent

PETITIONER’S APPENDIX

FREDERIC J. COWAN

ATTORNEY GENERAL

*MICHAEL L. HARNED

ASSISTANT ATTORNEY GENERAL

CAROL C. ULLERICH

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601-3494

(502) 564-7600

Counsel for Petitiorer

*Counsel of record

item Page

Opinion, United States Court

of Appeals for the Sixth Circuit

(en banc), November 21, 1990........A-1 - A-94

Opinion, United States Court

of Appeals for the Sixth Circuit,

November 3» L9EPcccccvces oeeeeevee ee —A~95 ” A-129

Opinion (Ten complete copies have

been lodged with this Court,

pertinent parts are reproduced

herein), United States District

Court for the Eastern District

of Kentucky, February 16, 1988...... A-130

Opinion, Burks v. Perini,

(unpublished), United States

Court of Appeals for the Sixth

Circuit, November 25, 1986.........-. A-155

(Written) Statement of

POE Pes cb eeensrececceeseeese A-162

Opening Statement on Behalf

Of Paul KOrgenbDrock. occccccccccccece A~166

-i-

A-154

ad ad .

RECOMMENDED FOR FULL TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

Nos. 88-5467/89-5 107

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAUL KORDENBROCK,

Plaintiff-Appellant,

v. ON APPEAL from the

United States District

GENL Scroccy, Warden, Court for the Eastern

District of Kentucky

Kentucky State Penitentiary, ef al. ,

Defendants-Appellees. _|

Decided and Filed November 21, 1990

Before: MERRITT, Chief Judge, KEITH, KENNEDY,

MARTIN, JONES, KRUPANSKY, WELLFORD,

MILBURN, GUY, NELSON, RYAN, BOGGS, and

NORRIS, Circuit Judges.

MERRITT, Chief Judge, announced the judgment of

the Court in part VIII granting the Writ of Habeas Corpus

as to both criminal liability and sentence, a judgment in

which seven of the thirteen members of the en banc Court

concur (Judges MERRITT, KEITH, MARTIN, JONES,

MILBURN, NELSON, and RYAN), and in which one

member concurs as to the sentence (Judge NORRIS).

A-1

— ee ee ee

2 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

Chief Judge MERRITT delivered an opinion in which

Judge KEITH concurs in all parts, Judge KENNEDY

concurs in part V, Judge MARTIN concurs in parts |

through IV and VI and VII, Judge JONES concurs in all

parts, Judge KRUPANSKY concurs in part V, Judge

WELLFORD concurs in part V, Juage MILBURN

concurs in parts I through V, Judge GUY concurs in part

V, Judges NELSON and RYAN concur in part V and the

conclusions announced in parts II and III, Judge BOGGS

concurs in part V, Judge NORRIS concurs in parts I, IV,

and V and the conclusions announced in part II. Judges

KENNEDY (pp. 37-60), MARTIN (pp. 61-67),

KRUPANSKY (pp. 68-83), WELLFORD (pp. 84-86) and

GUY (pp. 87) delivered separate opinions concurring in

part and dissenting in part. Judges NELSON (pp. 88-92)

and RYAN (pp. 93-94) delivered separate opinions

concurring in the judgment and in the conclusions

announced in parts II and III of Chief Judge MERRITT's

opinion. With respect to Judge KENNEDY's opinion,

Judges KRUPANSKY, GUY and BOGGS concur in all

parts; Judge MILBURN concurs in parts III and IV;

Judges NELSON and RYAN concur in part IV, Judge

WELLFORD concurs in parts I, II, and IV; and Judge

NORRIS concurs in Parts I, lil and IV.

As in many death penalty, habeas corpus cases, the

problem presented here is not whether the prisoner is

innocent of a homicide -- the killing is conceded -- but

rather whether he received the full benefit of fair rules of

constitutional procedure and a fair opportunity to offer to

the jury mitigating circumstances that might dissuade them

from imposing a sentence of death.

It is not the Court's duty to determine whether

Kordenbrock deserves or does not deserve ine death

sentence for his crime. The Court's duty is to insist upon

the observance of constitutional norms of procedure. The

District Court, and the panel decision of our Court which

has now been vacated by the grant of en banc review (see

eS .2.0.QzQ

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 3

6th Cir. R. 14), held that petitioner was not entitled to

habeas relief. Because a majority of the en banc Court

finds that the introduction and use of Kordenbrock's

confession was in violation of Miranda v. Arizona, 384

U.S. 436 (1966), and was not harmless error, we now

reverse.

I. Facts

Petitioner Kordenbrock and co-defendant Michael Kruse

agreed to steal guns from an auto parts store in Florence,

Kentucky. For two before the robbery, they visited

the store to observe the layout. The night before the

robbery they stayed with a friend in Cincinnati where they

drank alcohol, smoked ‘marijuana, and snorted cocaine.

The next morning at 8:00 Kordenbrock drank two beers

and took two Quaaludes.

After leaving the apartment, the two stopped to buy

more Quaaludes. From there they proceeded to the auto

parts store and arrived around 9:30 a.m. Kordenbrock,

who was holding a gun, ordered the owner of the store,

Mr. Thompson, and an employee, Mr. Allen, to lie face

down on the floor in the back of the store. Just then a

customer came in with his son. Kruse pretended he was

an employee and told the customer the store did not have

what he wanted.

Kruse then broke the glass gun case. Immediately

following that Mr. Allen either moved or attempted to get

up. Petitioner shot both men. Mr. Allen later died, but

Mr. Thompson survived. When Kruse had assembled the

guns the two left the store.

They stopped at two different places to sell some of the

guns. One of the men to whom they sold the guns

recognized Kordenbrock's picture which appeared on the

local news and cooperated with police in bringing about

his arrest. Upon his arrival at the police station a group

of police began to question him after giving him Miranda

A-3

4 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

wamings. The interrogation began around 11:30 p.m.

Joint App. at 1057; see also id. at 71-110.

A. The Miranda Warnings Violation

From the beginning of the interrogation, Kordenbrock

was reluctant to talk with police, an the phrase, “I

don't know what to say.” /d. at 72, 75, 80. The officers,

who already suspected that Kordenbrock had shot the two

men, encouraged him repeatedly to relate details of the

crime, saying, “you've got a conscience Paul.” /d. at 73,

82, 83. After further coaxing petitioner admitted some

aspects of the crime such as what type of car he drove the

day of the shooting and where he had disposed of the gun.

In an effort to persuade Kordenbrock to give them more

details of the actual shooting, the officers threatened him,

saying that if he would not cooperate they were going to

“book that girl["]. . .. for accessory to murder. . . and

put her in jail.” /d. at 86. The officers continued:

“Anybody that you have been with since yesterday

morning, we can go out and arrest." Jd. at 87. Still he

resisied questioning, and indicated he wanted the

questioning to stop: “I can't say nothing,” id. at 91,

"(cJan't talk, right now I can't talk.” /d. at 92. Instead

of ceasing questioning, the officers continued with their

threats: “Their ass is going to jail . . . . [I]n Ohio, they

can keep them in jail for about three days without even

charging them. . . . they're going to be put through an

ordeal they may not forget for a long time Paul and you

can stop it, rightnow...." dd. at 93.

After these threats, Kordenbrock stated: “I did it... .

{t}hat's all I can tell you is that I did it." Jd. at 94. He

then asked to call the girls to see if they were all right and

wanted "to know that those girls aren't going to be

arrested" before he gave any more details. /d. However,

when pressed further Kordenbrock made another attempt

Tabigail Smith, with whom Kordenbrock had stayed the night before

the shooting, was with Kordenbruock when he was arrested.

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 5

to cut off questioning: “I told you all I can stand tonight .

.. . Sir, I can't talk about it no more tonight.” Jd. at 98.

When the officers told petitioner they were going to write

out his confession as he dictated it, he again responded:

“Sir, I can't tell you no more tonight.” /d. at 100. The

officers, growing impatient, gave him “one more chance,"

id., and he finally gave in: “I'll tell you what you need to

oy I don't want you to go bother them girls. . . ." /d.

at 101.

Only then did Kordenbrock make the damning

statements that undermined his defense of diminished

capacity. The officer who was transcribing the statement

said, “Paul, what I'm going to write here is - I, Paul

Kordenbrock pulled the trigger aiming and firing the

weapon into the two men's heads - is that corre?" /d. at

105. That statement was included in the signed

confession. The confession did not include the statements

made during the interrogation that his “eyes were half

closed,” and that he didn't aim at any particular spot.

Apparently, in order to get the ordeal over with, he told

the officers to “[p]ut [the fact that he aimed at their heads]

in there." /d. The confession edited out facts that might

support a defense of lack of premeditation and diminished

capacity and simply read, “I then, Paul Kordenbrock,

pulled the trigger, aiming and firing at their heads so they

wouldn't get up." Jd. at 112.

B. The State's Refusal to

Provide a Psychiatric Expert for the Defense

Kordenbrock pled guilty to first degree robbery and was

then tried for capital murder and attempted murder. His

defense was diminished capacity due to drugs and alcohol

and emotional disturbance.2 His lawyers, employed by

the Office for Public Advocacy of the State of Kentucky,

2Two of Kentucky's statutory mitigating circumstances sre as

follows:

The capital offense was committed while the defendant was

under the influence of extreme mental or emotional

disturbance even though the influence of extreme mental or

6 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

sought to enlist the aid of a psychiatrist to help prove

these and other mitigating factors. At the request of the

trial judge, one of Kordenbrock's lawyers wrote to the

Secretary of the Department of Human Resources to

ascertain whether a state psychiatrist could perform this

service. Joint App. at 161. The nape | responded by

_ letter that Department psychiatrists could only evaluate

criminal defendants for their competency to stand trial and

for the existence of ‘1ental disease or defect at the time

the crime took place. The letter stated: “These

evaluations are provided pursuant to court order and are

supplied as a service to the court, and not to either the

prosecution or the defense.” /d. at 162. The Secretary

characterized these evaluations as “objective” and

"determined that this Department will not be able to assist

you with your request." /d.

This letter made it clear that a state psychiatrist could

not be used as a defense expert. The trial judge then

eniered an order stating that defense counsel could employ

at state expense a psychiatrist, psychologist asd a psycho-

pharmacologist. /d. at 59. When the chief executive

officer of the county in which the tral was to be held

received the order, he refused to authorize payment:

"The Boone County Fiscal Court will resist by all

appropriate means the payment of any bill relative to the

KORDENBROCK .. . . murder tnal{ J." /d. at 170.

Apparently the county took the position that the state

should pay for a defense expert, but the state had already

»

emotional disturbance is not sufficient to constitute a defense

to the crime. . .

Ky. Rev. Stat. Ann. § 532.025(2)(b)(2) (Baldwin Supp. 1989).

At the time of the capital offense, the capacity of the

defendant to appreciate the criminality of his conduct to the

requirements of law was impaired as a result of mental illness

of retardation or intoxication even though the impairment of

the capacity of the defendant to appreciate the criminality of

his conduct of to conform the conduct to the requirements of

law 1s insufficient to constitute a defense to the crime... .

Ky. Rev. Stat. Ann. § 532.025(2)(b)(7) (Baldwin Supp. 1989).

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 7

refused, and continued to refuse, to pay for a psychiatric

expert for the defendant.

Despite the fact that responsibility for payment was in

dispute, defense counsel hired Dr. Nizny as a defense

expert. Dr. Nizny examined Kordenbrock and made a

report on his diagnosis and assessment of petitioner.

However, Dr. Nizny, who was aware of problems other

psychiatrists had encountered getting paid, refused to file

his report until he received some sort of assurance that

payment would be forthcoming. Once again the trial

judge ordered the county to pay Dr. Nizny's fees.

When the county continued to refuse payment, the trial

court, over defense counsel's objection, ordered that

petitioner be examined by a state psychiatrist. In

response, the Director of Forensic Psychiatry Services

wrote that “we will not be able to assist only the defense

in this case. I will inform Judge Neace of our services to

both the defense and the prosecution.” /d. at 165.

Despite this letter, the tral judge again ordered that a

state psychiatrist examine petitioner.

Dr. Bland, a state psychiatrist, met with Kordenbrock,

but could not form an accurate opinion because

Kordenbrock's la had told him not to cooperate with

Dr Bland. One of Kordenbrock's lawyers stated that his

reason for instructing petitioner in that manner was that he

met with Dr. Bland and the doctor “indicated that he

could not examine Paul as our defense psychiatrist

because of the Secretary's directive.” Joint App. at 166.

In the meantime defense counsel had located a forensic

psychiatrist who was willing to examine Kordenbrock

without an unqualified guarantee to payment. Defense

counsel filed a motion for a continuance for the new

doctor to have time to prepare a report. However, due to

a misunderstanding between the doctor and counsel, the

doctor withdrew from the case. Apparently defense

counsel, now without a suitable expert, asked the tral

judge for a continuance to locate another expert, or

alternatively another order on the issue of payment for

8 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

Dr. Nizny. The judge refused the continuance and

refused to enter an order for payment until Dr. Nizny

filed his report. The trial proceeded without a defense

expert.

Kordenbrock was found guilty of murder and attempted

murder. The jury recommended that he be sentenced to

death. He appealed to the Kentucky Supreme Court

asserting 29 possible errors, none of which the court

found to have merit. Kordenbrock v. Commonwealth, 700

S.W.2d 384 (Ky. 1985), cert. denied, 476 U.S. 1153

(1986).

He next sought habeas relief before the District Court in

Kentucky. The District Court held an evidentiary hearing

both on the voluntariness of Kordenbrock’s confession and

on the issue of his entitlement to a psychiatrist. Although

the District Court found that the confession was taken in

violation of his Miranda rights, the Court held that the

introduction of the confession was harmless error. The

District Court denied relief on all of the 23 grounds

alleged. Kordenbrock v. Scroggy, 680 F. Supp. 867

(E.D. Ky. 1988). A panel of this Court affirmed the

District Court's findings. Kordenbrock v. Scroggy, 889

F.2d 69 (6th Cir. 1989). The suggestion for rehearing en

banc was granted. Kordenbrock v. Scroggy, 896 F.2d

1457 (6th Cir. 1990).

II. Use of Confession at Sentencing

During the interrogation Kordenbrock repeatedly stated:

"I can't tell you no more tonight.” Despite this attempt to

stop questioning, the interrogation continued. When

asked by the District Court Judge whether he interpreted

that statement to mean that the accused wanted

questioning to cease, Detective Stamper responded

disingenuously, “No, | never drew that kind of conclusion

whatsoever from the conversation we were having . Z

Joint App. at 1068. Both the District Court and a panel

of this Court found that the confession was taken in

violation of Miranda. Kordenbrock, 889 F.2d at 78. The

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 9

state appears to concede this point based on Michigan v.

Mosley, 423 U.S. 96 (1975), in which the Supreme Court

stated that the “right to cut off questioning” must be

“scrupulously honored,” and that after an accused has

invoked his right to silence the police may not “persist[]

in repeated efforts to wear down his resistance and make

him change his mind.” /d. at 104-06. Both the Court

below and the panel of this Court, however, found

admission of the confession to be harmiess error.

Kordenbrock, 889 F.2d at 80.

Although it is true that “[t}he basic admission of guilt

[of the ars was . . . not obtained in violation of

Miranda,” id. at 78, Kordenbrock made, and the

confession recites, exiremely prejudicial and incriminating

Statements made after the interrogation should have

ceased. There is no argument that the entire interrogation

is inadmissible. He concedes that he committed the

homicide. It is the statements concerning the shooting

itself which he sought to suppress. His defense to murder

was to admit to the jury from the outset of the trial that he

had killed the store employee, but that he had done so

while under the influence of drugs and alcohol. The

statements recited in the confession as made during the

interrogation were cold and calculating, made no

reference to his drug use, and tended to show

Kordenbrock in the worst possible light.

Thus the question is whether the admission of the

Statements during the guilt phase, and their readmission

during the sentencing phase, were harmless error. We

deal with the sentencing phase first. In Chapman v.

California, 386 U.S. 18 (1967), the Supreme Court

formulated the harmless error rule in cases where

constitutional violations have occurred. Although the

Court declined to adopt a rule which would require

reversal in all cases where errors of constitutional

magnitude occurred, it adopted a stringent harmless error

standard. The Court required the “beneficiary of a

constitutional error [the state] to prove beyond a

reasonable doubt that the error complained of did not

10 Kordenbrock v. Scrogry Nos. 88-5467/89-5 107

contribute to the verdict obtained.” Jd. at 24 (emphasis

added).

The Supreme Court recently affirmed that the Chapman

harmless error standard applies to errors during the

sentencing phase of a capital case: “The question...is not

whether the illegally admitted evidence was sufficient to

support the death sentence, which we assume it was, but

rather, whether the State had proved ‘beyond a reasonable

doubt that the error complained of did not contribute to

the verdict obtained.'" Satterwhite v. Texas, 486 U.S.

249, 258-59 (1988)(quoting Chapman, 386 U.S. at. 24).

The harmless error inquiry is fact specific and requires

an analysis of the particular facts at hand. In this case the

portion of Kordenbrock’s confession taken after the

Miranda violation -- other than the inferences to be made

from the fact of the robbery and shooting -- was the only

concrete, noncircumstantial piece of evidence the state had

to prove the premeditation element of the crime. It

tended to undermine at the sentencing hearing the claimed

mitigating circumstances of diminished capacity due to the

use of drugs and alcohol. The Court must entertain with

an open mind the possibility that at least one member of

the jury took the language of the confession seriously and

relied on the harshness of its description to tip the balance

in favor of the death penalty. It would be unreasonable to

assume that not one member of the jury, in sentencing

Kordenbrock, gave weight to the confession when

considering the death sentence. Both as an element of

the offense and as a reason for imposing the death

penalty, the state attempted to prove that Kordenbrock

consciously formed an intent to kill independently and

uninfluenced by any effect drugs and alcohol may have ~

had on his mental and emotional state. Logically a juror

could easily reason that the inadmissible statement that

Kordenbrock fired “at their heads so that they wouldn't

get up” implies a mental process of deliberation and

forethought sufficient to exclude drugs and alcohol as an

immediate or direct cause of the homicide. The defense

of diminished capacity turns in part on the factfinder's

A-10

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 11

reasoning about what impelled the defendant to kill: his

intent, or the influence of drugs or alcohol on his

behavior. Determination about intent and causation in

such a case are complex depending on inferences to be

drawn from the facts. The inadmissible statements in the

confession tend to establish premeditation and are hence

inconsistent with the impulsive, reactive and reckless

behavior ass@ciated with events caused by the influence of

drugs and alcohol.

As Judge Kennedy's dissent points out, the

circumstantial evidence surrounding the shootings

supports a finding of intent to kill. If coupled with the

circumstantial evidence that Kordenbrock shot both men

execution-style from behind, Kordenbrock's statemenis

that he “pulled the trigger, aiming and firing at [the two

men's] heads so that they wouldn't get up” could lead a

juror to determine that Kordenbrock consciously formed

an intent to kill unaffected by drugs or alcohol. If the

jury did not hear these statements, however, the other

evidence is not nearly so suggestive. Prior to the coerced

confession, Kordenbrock told the police that his eyes were

half-closed when he shot the two men and that he did not

aim at any particular spot. These statements tend to

‘support Kordenbrock's diminished capacity defense, and a

jury hearing this information instead of the coerced

confession would certainly view the circumstantial

evidence differently. One cannot say beyond a reasonable

doubt that the coerced confession did not influence how at

least one juror viewed the circumstantial evidence as to

whether Kordenbrock had the requisite intent to commit a

capital crime.

We are unable to say beyond a reasonable doubt that the

portion of the confession in question did not contribute to

the sentence. Indeed, after some deliberation the jury

asked if they could sentence Kordenbrock to life without

parole indicating an interest in imposing the harshest

possible sentence short of death. The court said no. The

jury was struggling with its decision, apparently uncertain

which sentence to impose. If one member of the jury

12 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

believed that the illegal portion of the confession (which

included the words that Kordenbrock “pulled the trigger,

aiming anc firing at their heads so that they wouldn't get

up") tended to dispel arguments in mitigation, the

constionlonal error was harmful. It is impossible to say

beyond a reasonable doubt that no juror held such a view.

III. Use of Confession To Establish Criminal Liability

We now turn to whether the admission of the illegally

obtained confession was harmless error in the criminal

liability or the guilt phase of the trial. First, the state

argues on the question of criminal liability that

Kordenbrock may not now raise any objection to the

admission of the confession because he waived that right

by personally confessing to the killing in his opening

statement to the jury. (Kentucky judges sometimes allow,

as in this case, the defendant to make an opening

statement.) We find the waiver argument to be

unpersuasive. The trial court overruled defense counsel's

objections to the admission of his confession before trial.

Thus, before the trial even began Kordenbrock knew his

confession was going to be admitted as evidence. The

state's attorney told the jury in his opening statement that

Kordenbrock had confessed. Kordenbrock's strategic

decision to confess the homicide but not the element of

premeditation to the jury in his opening statement was a

response to the trial court’s pre-trial ruling. Kordenbrock

asserted diminished capacity in his opening statement, a

defense inconsistent with the state’s use of the confession

to prove intent to murder. Given these facts we decline to

reach the conclusion that Kordenbrock waived his right to

object to the admission of the illegal portion of the

confession.

Likewise, we reject the state's argument that the

Supreme Court's decision in Oregon v. Elstad, 470 U.S.

298 (1985), is applicable here. Elstad involved a young

man who was questioned without being given Miranda

wamings by police in his living room and confessed to a

crime. After he was taken to the stationhouse and given

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 13

proper warnings he again confessed. Elstad argued at

trial that his second confession should not be admitted

because it was the fruit of the first tainted confession.

The Supreme Court refused to adopt defendant's “cat out

of the bag” theory and held that the Miranda warnings

given defendant before the second confession removed the

re a the confession obtained in violation of Miranda.

Id. at 318.

Elstad is inapposite here. The state argues that the

initial Miranda violation was cleansed by Kordenbrock's

second voluntary confession in open court. In Elstad the

defendant furnished the police with virtually the same

information about his crime in both confessions. Here

Kordenbrock did not give the same highly incriminating

confession at trial that he did during the police

in ation. He did not admit the same facts regarding

premeditation. Kordenbrock is not claiming as did the

defendant in Elstad that the second confession was the

fruit of the first tainted confession and should have been

suppressed. On the contrary, Kordenbrock sought to

persuade the jury in his opening statement of his version

of how the crime occurred which tended to negate

premeditation.

Having determined that Kordenbrock did not waive his

right to object to the admissibility of his confession which

was taken in violation of Miranda, the Court must again

decide whether that admission was harmless error. The

Chapman standard “requirfes] the beneficiary of a

constitutional error to prove beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.” Chapman, 386 U.S. at 24.

Under Kentucky law, the state must prove intent in

order for the jury to return a verdict of guilty. Ky. Rev.

Stat. Ann. § $67.020(1) (Baldwin 1984).3 Although

Kordenbrock concedes based on overwhelming physical

3Section 507.020 provides:

(1) A person is guilty of murder when:

A-13

14 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

and testimonial evidence that he was at the scene of the

crime and pulled the trigger, the most harmful piece of

evidence the state had on the issue of his So meggeea

ession.

intent to kill was the unlawfully obtained con The

store owner testified that Kordenbrock shot him and his

employee after he heard some glass break. However, it

does not necessarily follow that Kordenbrock held a clear

intent, unaffected by drugs or alcohol, to kill the two

men. At trial Kordenbrock claimed that he was under the

influence of drugs and alcohol at the time of the shooting

and that the shooting was a reflex action. Likewise, the

fact that Kordenbrock and his co-defendant “cased” the

store for two days prior to the robbery does not prove that

Kordenbrock intended to kill the two men -- it proves

that he was planning to rob the store. See Owen v.

Alabama, 849 F.2d 536, 540-41 .lith Cir. 1988) (where

confession was only piece of direct evidence tc prove

defendant's intent to kill, admission of confession

obtained in violation of Miranda not harmless error, even

where evidence of defendant's guilt for victim's death was

overwhelming).

Relying on Burks v. Perini, No. 85-3507 (6th Cir. Nov.

25, 1986) (unpublished opinion), the District Court found

that Kordenbrock would have adopted the same trai

strategy whether or not the confession had been admitted,

thereby making the constitutional error harmless.

Kordenbrock, 680 F. Supp. at 880. This reliance is

misplaced. In Burks, admission of defendant's confession

taken in violation of Miranda was found to be harmless

error because of the existence of strong independent

evidence pointing to defendant's guilt. Defendant testified

that he had acted in self defense and that the admission of

his confession had undermined his position. However,

there was an eyewitness who testified that defendant was

not acting in self defense. In this case there was

independent evidence that Kordenbrock committed the

crime, but there was no explicit evidence other than the

(a) With intent to cause the death of another person, he

causes the death of such person... .

A-14

a essence.

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 15

confession that plainly tended to contradict Kordenbrock's

contention that he was under the influence of drugs and

alcohol and did not intend to cause death. For this reason

Burks is inapplicable.

Here the state pushed hard to get the illegal portion of

the confession into evidence on the assumption that the

confession would likely influence the jury. We agree with

that assumption.

Thus, employing the Chapman harmless error rule, we

find that the state did not prove, beyond a reasonable

doubt, that the admission of the confession which was

taken in violation of p> asap "did not contribute to the

verdict obtained." 386 U.S. at 24. The

evidence of intent, tetontile fa from the sical facts of the

homicide, is strong but not so ming as to make

the jury's verdict on intent a foregone conclusion beyond

a reasonable doubt. In death cases such as this, if the

Miranda and Chapman tules are to retain any vitality and

not be overruled sub silentio, we must not allow police

officers and prosecutors to use at trial evidence taken in

clear violation of the Fifth and Sixth Amendments,

evidence which could have affected the outcome of the

case.

IV. Coerced Confession

Relying on the same facts that support his Miranda

claim discussed in Parts II and III above, Kordenbrock

claims alternatively that his confession was “involuntary”

and therefore inadmissible under the due process clause as

well as the Fifth Amendment. By threatening him that his

failure to cooperate could result in the detention and

interrogation of his girlfriend and others, Kordenbrock

contends that police overbore his will in extracting a

confession that was “not ‘the product of a rational intellect

and a free will.’ “ Petitioner's Brief at 63. Due process

analysis in a confessions case requires a reviewing court

to consider both the procedural fairness of and the

compulsion level created by a particular police practice.

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16 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

See Gallegos v. Colorado, 370 U.S. 49, 50-52 (1962);

see also McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.

1988) ("[P]etitioner must prove that his will was

. overborne because of the coercive police activity in

question."), cert. denied, 109 S. Ct. 1744 (1989).

In this case, however, it is unnecessary to submit to

constitutional analysis the identical facts that a gi of

this Court has held in Parts II and III to be violative of the

Fifth Amendment privilege against self-incrimination

under Miranda. The Supreme Court precedents

interpreting the scope of that pavilege set forth the legal

consequences of Kordenbrock's custodial interrogation.

See Edwards v. Arizona, 451 U.S. 477 (1981)

(questioning must cease once suspect invokes right to

counsel unless suspect initiates communication); Michigan

v. Mosley, 423 U.S. 96, 104-06 (1975) (invocation of

“right to cut off questioning” protects suspect from

“repeated efforts to wear down his resistance”); Miranda

v. Arizona, 384 U.S. 436, 473-74 (1966) (once warnings

have been given, “[i]f the individual indicates in any

manner . . . that he wishes to remain silent, the

interrogation must cease.”) Having found already that

police violated Kordenbrock’'s Fifth Amendment privilege

as enunciated in the Miranda precedents, we need not

reconsider whether those same facts.can be constructed so

as to establish another similar constitutional violation.

Harmless error analysis would yield the same result in

both instances. See ante Parts II and Ill. Accordingly,

the Court finds no grounds for additional relief based on

the due process clause.

V. Miscellaneous Claims

Kordenbrock raises a set of five other claims which the

Court believes do not warrant relief. He claims that the

prosecutor's comments violated Caldwell v. Mississippi,

472 U.S. 320 (1985); that mitigating testimony was

improperly excluded; that he was entitled to a change of

venue because of adverse publicity; that the trial judge

should have recused himself; and that his due process

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 17

rights were violated by the erasure of his taped confession

and the loss of a photo display and a vial of pills. We

consider each of these arguments in turn.

A. Caldwell Violation

In Caldwell v. Mississippi, 472 U.S. 320 (1985), state

law placed the responsibility for imposing the death

penalty with the jury. The prosecutor in Caldwell told the

jury that their decision was not final and that their

decision was automatically reviewable by the state

supreme court. The Supreme Court held that “it is

constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who had been led to

believe that the responsibility for determining the

appropriateness of the defendant's death rests elsewhere.”

Id. at 328-29.

During voir dire in this case the prosecutor told jurors

that their "recommendation of death, if you gave one as a

juror, with your fellow jurors, would not be binding upon

the court, but that the [cJourt would give it great weight.”

Petitioner's Brief at 73. The prosecutor characterized the

jury's sentence as “a recommendation, that is all.” /d. at

74. Further, the instructions that the trial judge gave to

the jury used the word “recommend” in reference to the

sentence. Joint App. at 152.

The prosecutor's conduct in this case does not violate |

Caldwell because Kentucky law itself provides that:

the judge shall give the jury appropriate

instructions, and the jury shall retire to determine

whether any mitigating or aggravating

circumstances . . . exist and to recommend a

sentence for the defendant. Upon the findings of

the jury, the judge shall fix a sentence within the

limits prescribed by law.

or! Rev. Stat. Ann. § 532.025(1)(b) (Baldwin Supp.

1989) (emphasis added). Thus, the prosecutor technically

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18 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

stated Kentucky law correctly. Similar state sentencing

schemes dividing responsibility between judge and jury

have been upheld. See, e.g., Walton v. Arizona, 110 S.

Ct. 3047 (1990) (judge makes findings on aggravation and

mitigation and imposes sentence); Hildwin v. Florida,

109 S. Ct. 2055 (1989) (jury makes a recommendation

without findings on aggravation and then judge imposes

sentence).

in order to make out a Caldwell violation, Kordenbrock

must show that the prosecutor improperly described the

jury's role under state law in order to water down their

responsibility. Dugger v. Adams, 109 S. Ct. 1211, 1215

(1989). The Eleventh Circuit has held that to make out a

constitutional violation under Caldwell there must be

“some affirmative misstatement or misconduct that

misleads the jury as to its role in the sentencing process. .

. . [E]mphasizing the ‘advisory’ role of the jury, or the

fact that the jury is making a ‘recommendation’ to the

judge, does not support a Caldwell claim.” Harich v.

Dugger, 844 F.2d 1464, 1473-74 (11th Cir. 1988), cert.

_ denied, 109 S. Ct. 1355 (1989). We find no misstatement

of state law sufficient to trigger a Caldwell violation in the

instant Case.

Kordenbrock also turns to state law for relief. After the

sentence and appeals in this case, the Kentucky Supreme

Court in Tamme v. Commonwealth, 759 S.W.3d 51 (Ky.

1988), held that in the future juries should be instructed to

"fix" not “recommend” death sentences. But the court

declined to apply the new rule retroactively which means

that the prosecutor and the judge did not misadvise the

jury concerning the division of sentencing authority.

Thus, although Kordenbrock raises an arguable point

worthy of serious consideration, we do not believe that

the prosecutor's statements rise to the level of a Caldwell

violation.

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 19

B. Trial Court's Denial of Mitigation Witness

The trial court denied defense counsel's request to call

Dr. Stassen, an Associate Professor of Christian Ethics at

the Southern Baptist Theological Seminary in Louisville,

during the sentencing phase. Dr. Stassen met with

petitioner for about 45 minutes and would have testified

that petitioner was remorseful, that he no longer used

drugs, and that he could possibly be rehabilitated. The

District Court found the exclusion of this testimony both

irrelevant and harmless beyond a reasonable doubt.

Kordenbrock, 680 F. Supp. at 888-90.

Both Lockett v. Ohio, 438 U.S. 586 (1978), and

Eddings v. Oklahoma, 455 U.S. 104 (1982), require that

juries be allowed to consider all relevant mitigating

evidence with the limitation that “(nJothing in this opinion

limits the traditional authority of a court to exclude, as

irrelevant, evidence not bearing on the defendant's

character, prior record, or the circumstances of his

offense.” Lockett, 438 U.S. at 604 n.12. Although an

expert in ethics, biblical studies and Christian theology,

Dr. Stassen was not an expert on the subjects for which he

was Called to testify, and the exclusion of Dr. Stassen's

testimony did not constitute constitutional error on the

part of the trial judge. The propriety of the District

Court's decision is bolstered by the fact that Reverend

Feamster, Kordenbrock's minister, was allowed to testify

about his character.

C. Change of Venue

Kordenbrock claims that as a result of adverse publicity

he was entitled to a change of venue. A jury psychologist

conducted a poll on the opinions of people in surrounding

counties who were eligible for jury service. In four out of

five counties over 80% of the people polled had heard

about the case and in three out of five counties almost

50% of the people polled thought Kordenbrock was guilty

of murder. Petitioner's Brief at 111-112; see also Joint

App. at 171-182 (charts on effect of publicity).

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20 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

In Murphy v. Florida, 421 U.S. 794 (1975), the

Supreme Court delineated the standard for determining

juror impartiality where there is widespread, extensive

media coverage.

To hold that the mere existence of any

preconceived notion as to the guilt or innocence of

an accused, without more, is sufficient to rebut the

presumption of a prospective juror's impartiality

would be to establish an impossible standard. It is

sufficient if the juror can lay aside his impression

or opinion and render a verdict based on the

evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 723 (1961), quoted in

Murphy, 421 U.S. at 800.

The District Court held that despite the poll “not a

single juror or alternate seated in the case at hand had

formed any opinion on the guilt or innocence of

petitioner.” Kordenbrock, 680 F. Supp. at 887. We find

no error in the District Court's findings that the jurors

could render a verdict based on the evidence presented in

court and that their capacity for impartiality was not

compromised.

D. Recusal of Trial Judge

Afier the trial judge refused to grant Kordenbrock's

motion for a change of venue, Kordenbrock filed against

the judge an application for a writ of prohibition to

prevent the judge from hearing the case. The prosecutor

in this case handled the proceeding representing the

interests of the state and the trial judge. Joint App. at 63-

66. Defense counsel then made a motion for the judge to

recuse himself which was denied. Jd. at 67.

In United States v. Harrelson, 754 F.2d 1153 (Sth

Cir.), cert. denied, 474 U.S. 908, 1034 (1985), the Fifth

Circuit held that recusal was not necessary where there

was no evidence of specific conduct by the trial judge

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 21

which prejudiced defendant. Harrelson, 754 F.2d at

1165. There is no basis in this record to base a finding

that the judge was biased against Kordenbrock. Certainly

the fact that the prosecutor handled the prohibition

proceeding is not a basis for such a finding.

E. Destruction of Evidence

Lastly Kordenbrock claims that his due process rights

were violated when the police erased his taped confession,

lost a bottle of pills which were present while he was

being interrogated, and lost the photo display which they

showed to Mr. Thompson, the store owner, for purposes

of identification.

In Arizona v. Youngblood, 109 S. Ct. 333 (1988), the

Supreme Court held that “unless a criminal defendant can

show bad faith on the part of the police, failure to

preserve potentially useful evidence does not constitute a

denial of due process of law." /d. at 337. Apparently

Detective Stamper's secretary, who transcribed the

confession, erased the ta after consulting with the

detective. Joint App. at 1065-66. From the facts it does

not appear that police acted in bad faith in this respect.

Detective Stamper admitted that there was a bottle of

drugs on the table in front of Kordenbrock during the

interrogation, but did not order that the pills be tested, nor

did he preserve the bottle. Joint App. at 1069-71. In

California v. Trombetta, 467 U.S. 479 (1984), the

Supreme Court held that in order to show that an error of

constitutional magnitude occurred in destroying evidence,

the evidence must have had exculpatory value and there

must have been no other way to get comparable evidence.

Trombetta, /d. at 488-89. In this case Kordenbrock was

not prevented from presenting his defense of diminished

capacity because the police failed to preserve and test the

pills.

Kordenbrock argues further that the store owner's

identification of him was influenced by the overly

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22 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

suggestive nature of the photo display which the police

failed to preserve. The Supreme Court set out five factors

to consider in determining whether an identification was

proper in Neil v. Biggers, 409 U.S. 188 (1972): (1) the

opportunity for the witness to view the accused; (2) the

witness’ attention; (3) the accuracy of the witness’ prior

description; (4) the witness’ certainty; (5) the amount of

time between the crime and the identification.

All five of the Neil factors are met in this case. Mr.

Thompson, the store owner, had seen Kordenbrock enter |

his store twice before the robbery took place. His

description of Kordenbrock was accurate, he was certain

at the time of the identification, and the amount of time

between the crime and the identification was relatively

short -- less than a month after the crime. Moreover,

Kordenbrock has never denied that Thompson's

identification is correct, and any error in the photo

display, if one had occurred, would be harmless beyond a

reasonable doubt. There was no issue at trial about

identification.

The fact that the photo display was lost does not help

Kordenbrock's case. The misplacement or destruction of

the display does not entitle Kordenbrock to a presumption

that a constitutional violation has occurred. Under the

Trombetia test, the display would have not had any

exculpatory value.

VI. Refusal to Provide Psychiatric Expert for Defense

A. Applicability of Ake v. Oklahoma

The Court holds that Ake v.Oklahoma, 470 U.S. 68

(1985), should not be read to include a defendant who

contests the mental element of the crme and the

appropriateness of the death penalty due to diminished

capacity. I respectfully dissent. In Ake the Supreme

Court held that an indigent defendant is entitled under the

due process clause to expert psychiatric assistance where a

defendant's sanity is a significant issue. The Supreme

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 23

Court further held that a defendant did not have “a

constitutional right to choose a psychiatrist of his personal

liking. . . ." dd. at 83. The Supreme Court expressed

concem that the indigent defendant have access to a

“competent psychiatrist who will conduct an appropriate

examination and assist in evaluation, preparation, and

presentation of the defense.” Id. (emphasis added).

The Supreme Court did not address the precise issue of

whether an indigent defendant would be entitled to a

psychiatric expert when diminished mental capacity rather

than insanity is the issue at trial, or when diminished

mental capacity is the issue at the capital sentencing

hearing. In Caldwell v. Mississippi, 472 U.S. 320

(1985), the Supreme Court declined to reach an issue

raised by petitioner that the state failed to appoint experts

and investigators to aid him in his defense. The Court did

not reject Caldwell's argument that an expert may be

constitutionally required on issues other than sanity. It

Stated that petitioner had not presented a strong enough

case. Caldwell, 472 U.S. at 323 n.1. Caldweli's motion

requesting a ballistics expert did not adequately explain

why such an expert was necessary. /d.

Two reasons argue that Ake covers cases where mental

Capacity is seriously in issue both on the question of the

existence of the intent element of the crime and the

question of mitigation of a sentence of death because of

diminished capacity: first, the law from other circuits and

second, the reasoning of the Court in Ake.*

Other circuits have read Ake to apply to nonpsychiatric

experts. See Little v. Armontrout, 835 F.2d 1240 (8th

Cir. 1987) (en banc), cert. denied, 487 U.S. 1210 (1988);

Moore v. Kemp, 809 F.2d 702, 711-12 (11th Cir.) (en

banc), cert. denied, 481 U.S. 1054 (1987) (Eleventh

“The state raises no claim of the nonretroactivity of the Ake rule, as

applied to the instant case, under the doctrine of Teague v. Lane, 109

. Ct. 1060 (1989). The state has waived any argument based on

eague.

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24 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

Circuit “assume[d], for sake of argument, that the due

process clause could require the government, both state

and federal, to provide nonpsychiatric expert assistance to

an indigent defendant upon a sufficient showing of

need.”).

In Little, the Eighth Circuit held that the indigent

defendant in that case was entitled to the assistance of a

nonpsychiatric expert where mental state was not a factor

and the death — was not possible. The dispute in

Little arose from the victim's identification of the

defendant, which occurred only after the victim was

hypnotized. The defendant in Little was denied funds to

hire his own hypnotist expert and was convicted largely

due to the victim's identification. Judge Amolc, wniting

for the Eighth Circuit en banc, read Ake to include

nonpsychiatric testimony:

The question in each case must be not what field

of science or expert knowledge is involved, but

rather how important the scientific issue is in the

case, and how much help a defense expert could

have given.

Little, 835 F.2d at 1243. In Little the court required such

expert assistance even where the death penalty is not

possible.

Nor do we draw a decisive line for due-process

purposes between capital and noncapital cases. To

be sure, the defendant's interest in staying alive is

greater and different in kind from his interest in

avoiding a prison term, but the latter interest, in

Our opinion, still outweighs the state's interest in

avoiding the relatively small expenditure that

would be required.

Id. at 1243-44.

Other courts have also addressed the question of what

Ake requires and when its strictures would be applicable,

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 25

but no circuit has disagreed with the Eighth Circuit's

principle that the question should turn on “how important

the scientific issue is in the case.” Jd. at 1243. See

United States v. Crews, 781 F.2d 826, 833 (10th Cir.

1986) (indigent defendant raising an insanity defense

entitled to aid of psychiatrist); United States v. Sloan, 776

F.2d 926, 929 (10th Cir. 1985) ("when an indigent

accused makes a clear showing . . . that his mental

condition will be a significant factor at trial," judge must

furnish expert).

The Supreme Court's position in Ake arises from its

earlier admonition that “the State must, as a matter of

equal protection, provide indigent prisoners with the basic

tools of an adequate defense or appeal, when those tools

are available for a price to other prisoners." Britt v.

North Carolina, 404 U.S. 226, 227 (1971); see also

Douglas v. California, 372 U.S. 353 (1963) (state must

insure that defendant has meaningful chance to — his

defense); Griffin v. Illinois, 351 U.S. 12 (1956) (state

must furnish indigent defendant with trial transcript).

The Supreme Court in Ake furthered the definition of

"basic tools” to include a psychiatrist for an indigent

defendant where sanity is a significant factor at trial. The —

Ake court found that “a criminal trial is fundamentally

unfair if the State proceeds against an indigent defendant

without making certain that he has access to the raw

materials integral to the building of an effective defense.“

Ake, 470 U.S. at 77. The Court employed the Mathews

v. Eldridge, 424 U.S. 319, 325 (1976), three-prong test to

determine whether “the State [must] provide an indigent

defendant with access to competent psychiatric assistance

in preparing the defense.” Ake, 470 U.S. at 77. The

three factors the Court considered were: (1) “the private

interest in the accuracy of a criminal proceeding” which

the Court found to be “uniquely compelling,” id. at 78;

(2) the state's interest that would be affected by providing

expert assistance which the Court found to be “not

substantial," id. at 79; and (3) “the probable value of the

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26 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

psychiatric assistance sought, and the risk of error in the

proceeding if such assistance is not offered.” dd.

It is a somewhat different, though closely related,

question whether the “basic tools” of the defense should

include the need for the state to furnish an expert where

mental capacity rather than sanity per se is an issue. The

Supreme Court left that question open in Caldwell v.

ae 472 U.S. 320 (1985). I conclude that, as a

matter of due process, the state must provide a psychiatric

expert where the defendant demonstrates that an expert is

necessary to aid in a proper defense, and that without that

expert the result of the trial would be unfair. See Little v.

Armontrout, 835 F.2d at 1244.

Applying the Ake three-prong analysis to this case, the

first and last parts of which go to the importance of the

scientific issue in the case, I believe that Kordenbrock was

entitled to a psychiatric expert. His interest in the

accuracy of the criminal proceeding -- having the jury be

in a position to understand the mental and psychiatric

aspects of the case -- outweighs the cost to the state in

furnishing experts. After all, it is the state which is

seeking to put the defendant to death. Compared to that

cost, the cost of a psychiatric expert pales. The

defendant's interest is the more “compelling” of the two.

In this case the psychiatric assistance on the subject of

diminished capacity would have been valuable to the jury

so that it could better understand Kordenbrock's character

and family circumstances in weighing aggravating and

mitigating factors and better understand exactly what

effect the drugs and alcohol had on him. For the same

reasons given in Ake for requiring a psychiatnc expert,

the risk of ignorance and error respecting the defendant's

mental processes in the trial without psychiatric assistance

in this case was high. The jury needed the assistance of

an expert to help it understand fully the nature of

Kordenbrock's case.

My view of “how important the scientific issue is in the

case" -- to use Judge Arnold's phrase in Little -- is

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Nos. 88-5467/89-5107 Kordenbrock v. Scrogey 27

reinforced by the trial judge's own effort to provide a

defense expert. The trial judge believed it was important.

He ordered it twice. His efforts were thwarted by the

refusal of the state and local governments to pay, not

because the trial judge thought the expert assistance would

have been unimportant.

B. Whether Counsel Deliberately

Failed to Secure Payment for the Expert —

Having concluded that Kordenbrock was denied his

constitutional right to have an expert aid in his defense

because of his indigence, I turn to the state's alternative

arguments that defense counsel did not pursue payment

for the expert deliberately to create an appealable issue,

that the state psychiatrist satisfied Kordenbrock's right to

expert assistance, and that the testimony of a

pharmacologist satisfied Kordenbrock's right to expert

assistance.

The District Court found that defense counsel failed to

ensure that Dr. Nizny received payment because the

doctor's report was unfavorable. Kordenbrock, 680 F.

Supp. at 872. A close examination of the facts and the

doctor's report reveals that this finding was erroneous.

After the Fiscal Court refused to nay the doctor,

defense counsel alerted the trial judge of its refusal. The

trial court again ordered the Fiscal Court to pay the bill.

This order was again ignored. The parties were at an

impasse at this point. The trial judge, after defense

counsel's third request for an order, refused to enter the

order until Dr. Nizny filed his report. Dr. Nizny refused

to file his report until payment was guaranteed.

The District Court found that defense counsel could

have done more to ensure Dr. Nizny's testimony, such as

ask the trial judge to hold the Fiscal Court in contempt or

to subpoena Dr. Nizny. /d. However, Dr. Nizny resided

in Ohio, beyond the subpoena power of a Kentucky

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28 Kordenbrock v. Scroggy Nos. 88-5467/89-5 17

Court.5 Defense counsel did not initiate a contempt

proceeding in an attempt to secure payment for Dr.

Nizny, but the dispute about payment was not caused or

brought about by defense counsel. It was caused by the

conduct of the Fiscal Court and the state. Petitioner

should not be punished because the state could not decide

who should be responsible for providing funds for an

expert.

As support for its contention that defense counsel was

deliberately attempting to create an appealable issue, the

District Court cites the unfavorable nature of Dr. Nizny's

report. Kordenbrock, 680 F. Supp. at 872. A reading of

the doctor's report shows that it was not entirely

unfavorable. Defense counsel wanted Dr. Nizny to testify

as to Kordenbrock's state of mind at the time of the

shooting as well as other possible mitigating factors. Dr.

Nizny found that Kordenbrock “was almost continually

under the influence of alcohol and/or a variety of drugs

and medications from age 14 to his incarceration in

January, 1980 .. . . This 10 to 11 year span was, to my

knowledge, never interrupted by more than a number of

hours or days.” Joint App. at 269. The doctor's report

took into account Kordenbrock's drugs and alcohol intake

the moming of the shooting in determining his state of

mind. Dr. Nizny found that when the two men entered

the store to rob it, Kordenbrock “was aware of his actions

though he ignored risks and demonstrated bad judgment .

.." Id. at 270. As for the shooting itself, the doctor's

report states that “[t]wo almost simultaneous events, in

my view, precipitated his shooting the two men. He

heard the glass gun case crash and one man apparently

started to nse from the floor." /d. The doctor refers to

petitioner's actions as “reflex-like” and “impulsive.” /d.

According to Dr. Nizny, Kordenbrock’s drug use

“decreas[ed] [his] self control” and gave him a “sense of

indestructability [sic}]." /d. at 270-71.

SKy. R. Crim. P. 7.02(S) provides in pertinent part:

A subpuena requiring attendance of a witness at a hearing or

trial may be served at any place within the Commonwealth.

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Nos. 88-5467/89-5 107 Kordenbrock v. Scrogey 29

As to other possible mitigating factors, the doctor's

report indicates that Kordenbrock was not “a man totally

self centered or totally devoid of feeling for another

person." Jd. at 271. The doctor would also have been

able to testify about the effect Kordenbrock's family life

had on him. /d. at 270.

There were sonie very significant unfavorable aspects of

the doctor's report which came out during the evidentiary

hearing that the District Court held on the matter.

Kordenbrock told Dr. Nizny that he had killed another

man in the course of robbing a gas station the night before

the shooting in the auto parts store.6 /d. at 1266. At the

evidentiary hearing held by the District Court, the

prosecutor contended that the doctor's knowledge of the

prior crime was relevant to prove Kordenbrock's modus

operandi of eliminating witnesses. /d. at 1273. This isa

debatable point. Defense counsel argued that any possible

relevance of this information would be outweighed by its

overwhelming prejudice. /d. at 1277. Without citation of

authority, the District Court found that “any judge would

have let [the prosecutor question Dr. Nizny on this

issue]." Jd. at 1275. The judge stated that “by putting

the Doctor on you'd have made the whole history

relevant." Jd. at 1277. The fact is that the trial judge

never had an opportunity to rule on this question in limine

or otherwise because of the state's conduct. We only

know that the state judge believed that a defense

psychiatric expert was important.

The prosecution's purpose in this line of questioning in

the District Court was to show that defense counsel never

intended to put Dr. Nizny on the stand because of his

knowledge about the crime which took place the night

before. But this is pure speculation based on no facts.

Even if the trial judge had allowed the doctor's testimony

on that issue, in the doctor's opinion the crimes occurred

under “identical kinds of circumstances." /d. at 1278.

Petitioner had been charged with the murder of a gas station

attendant but had not yet been indicted.

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30 Kordenbruck v. Scroggy Nos. 88-5467/89-5107

His knowledge of the prior incident did not change his

opinion of Kordenbrock's actions on the day of the

shooting. /d. at i288.

In fact, Dr. Nizny's report and his testimony would

have been significant on the issue of intoxication as a

mitigating circumstance. The jury could then have

decided whether to accept his testimony. The doctor's

report stated that Kordenbrock’s “intoxication interfered

with the capacity to form a specific intent to commit the

crimes.” /d. at 273. Dr. Nizny also testified before the

District Court that “I don't see him forming an intent to

end someone's life,” id. at 1225, obviously a fact of

importance. The jury might have found this evidence

important on the question of death, a subject on which the

jury had doubts.

C. Whether State Psychiatrist Satisfied Ake

The state also claims that if Kordenbrock was entitled to

a psychiatrist, the state psychiatrist satisfied that right. |

find this argument unpersuasive. Ake requires that a

psychiatrist who serves as a defense expert “conduct an

appropriate examination and assist in evaluation,

preparation, and presentation of the defense.” Ake, 470

U.S. at 83. A “neutral” expert would not be able to serve

this purpose. From the facts it appears that the state

psychiatrists at the Grauman Forensic Psychiatry Services

would not be able to serve as defense experts.

Defense counsel wrote to the Secretary of the

Department of Human Resources and asked if

psychiatrists at the Grauman Unit could perform this

service, and the response was a clear “no.“ Dr. Stumbo,

the Secretary, responded that Grauman psychiatrists were

only permitted to perform “objective evaluation[s]" and

that their services were “supplied as a service to the court,

and not to either the prosecution or defense.” Joint App.

at 162. In addition Dr. Bland, the state psychiatrist who

examined petitioner, “indicated [to defense counsel] that

he could not examine Paul as [a] defense psychiatrist

A-30

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 31

because of the Secretary's directive.“ /d. at 166. Paul

Farin, general counsel for the Department of Human

Resources, also testified that a Grauman psychiatrist

"[was] to be neutral in the evaluation process,” and that

he would not be permitted to testify as to ail possible

mitigating factors. /d. at 1169. With this factual

background it is not surprising that defense counsel

ordered Kordenbrock not to cooperate with Dr. Bland, a

state psychiatrist who was under no duty to treat the

psychiatric examination in confidence.

At the evidentiary hearing held by the District Court,

Dr. Bland testified that he would have been able, despite

the Secretary's directive, to testify as to mitigating

factors. Jd. at 1114. These factors would include family

background and environmental factors. /d. at 1118.

However, during the time that Dr. Bland would have

served as an expert for Kordenbrock, he was only

available for defense planning of a case “in a limited

way." Jd. at 1122. Dr. Bland testified that a Grauman

psychiatrist would have wate - pe all issues, “[bJut. . .

might not and potentially would not include the depth of

areas that might be pursued by a defense-only psychiatrist

in terms of looking for everything possible in favor [of]

the defendant.” Jd. at 1123-24,

There was also a question of whether records kept by a

Grauman psychiatrist would remain confidential. /d. at

1125. Indeed, defense counsel testified that he was aware

of “two specific instances . . . involving public defenders

. . . where confidentiality . . . [was] breached.” /d. at

1183.

Thus, it was not unreasonable for defense counsel to

conclude that he needed a defense expert, not Dr. Bland.

In order to perform the services required under Ake,

defense counsel believed he needed Dr. Nizny's testimony

and assistance.

A-31

32 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

D. Whether Pharmacclogist Satisfied Ake

Finally the state claims that Kordenbrock's rights under

Ake were sxtisfied by the pharmacologist's testimony. |

find this ».:;ument to be weary Blew gate < mys Because

defense « » isel was not able to te another psychiatrist

before tria., counsel called Dr. Nelson, a logist,

to testify. Dr. Nelson testified as to K rock's drug

addiction and to his mental state on the day of the

shootings: “He . . . had a diminished ability to exercise

judgment, ethical decisions, and formulate compiex

thoughts.” Kordenbrock, 889 F.2d at 77. The original

pane! in this case found that the pharmacologist's

testimony satisfied Kordenbrock's need for an expert

because he testified explicitly on the issue of his defense.

Id.

The purpose of a psychiatric expert was not only to

testify as to Kordenbrock's intent to commit the cnme.

The jury was also entitled to consider all mitigating

circumstances to which Dr. Nizny would have testified.

See Lockett v. Ohio, 438 U.S. 586 (1978). Dr. Nelson

_— not qualified to testify about other possible mitigating

actors.

This is especially true in light of the witnesses called by

the prosecution. To rebut the pharmacologist’s testimony,

the state called a medical doctor who testified that as a

medical doctor he was more qualified to discern

Kordcnbrock's state of mind than a pharmacologist. The

doctor disputed the pharmacologist's opinion about the

effect of drugs on Kordenbrock, claiming _ that

Kordenbrock had developed a tolerance to drugs and

alcohol. Dr. Nizny testified at the District Court

evidentiary hearing, and could have testified at trial, that

"there was some evidence that. [Kordenbrock] was

developing tolerance to the [Q]uaaludes.“ Joint App. at

1237. However, he also testified that Kordenbrock

probably had not developed a tolerance to alcohol, id.,

and that when petitioner entered the store he was under

A-32

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 33

the influence of both alcohol and Quaaludes. Jd. at 1221-

22.

VII. Failure to Instruct Jury on Mitigating Factors

Kordenbrock also argues that the trial court erred in

failing to instruct the 9? properly on mitigating

circumstances. He claims that jurors need to be toid

exactly how the penalty phase of a capital trial works. He

argues that if juries are not specifically told about the

procedure for determining mitigating circumstances they

tend to operate as a unit. There is a great danger that a

mitigating factor will noi be considered when only one

juror believes it exists because of the general assumption

drawn from other instructions that the jury must act

unanimously.

After the penalty phase the trial judge instructed the

jury that an aggravating factor had to be found

unanimously but refused to give defense counsel's

proffered instruction that the jury need not be unanimous

with regard to mitigating factors.

In Mills v. Maryland, 486 U.S. 367 (1988), the

Supreme Court held that a state sentencing form which

7The trial court instruction on aggravating circumstances reads in

part:

In recommending a sentence for the defendant Paul

Kordenbrock for the murder of Stanley Allen, you shall

consider the following aggravating circumstance, if you

believe from the evidence beyond a reasonable doubt that it

exists....

Joint App. at 154.

The instruction on mitigating circumstances reads in part:

In recommending a sentence for the defendant Paul

Kordenbrock you shall consider such mitigating or

extenuating facts and circumstances as have been presented to

a in evi and _ believe to be true, including but not

!

mited to such of following as you believe from the

evidence to be true... .

Joint App. at 155.

A-33

34 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

could reasonably be interpreted to require the jury to

agree unanimously that a _ particular mitigating

circumstance existed was unconstitutional because it

precluded the sentencer from considering relevant

mitigating circumstances. The Court in Mills found that

some jurors could have reasonably believed that in order

to find a mitigating circumstance they had to agree on it

unanimously. /d. at 384. In Mills it was clear from the

sentencing form that in order to find the existence of an

aggravating circumstance the jury had to be unanimous.

However, it was not clear from the sentencing form

whether a finding of a mitigating circumstance required

unanimity. The Court found that “[iJn reviewing death

sentences, the Court has demanded even greater certainty

that the jury's conclusions rested on proper grounds.

Mills, 486 U.S. at 376. The Court used the following

standard in determining whether the verdict should stand:

“Unless we can rule out the substantial possibility that the

jury may have rested its verdict on the ‘improper’ ground,

we must remand for resentencing." /d. at 377.

Two circuits have considered the question of what type

of instruction on mitigating circumstances is required by

the Constitution. In Davis v. Maynard, 869 F.2d 1401

(10th Cir. 1989), cert. granted and judgment vacated on

other grounds, 110 S. Ct. 1516 (1990), the Tenth Circuit

held that an instruction defining the role of mitigating

circumstances was not necessary. Davis, 869 F.2d at

1411. The court found that while the Constitution does

require that the jury understand the function of mitigating

factors in the sentencing scheme, a specific instruction

was not mandated. /d. In Davis “[t}he jurors were

instructed that mitigating factors should be accounted for

in reaching their decision, and that such factors should be

balanced against any aggravating circumstances found to

exist-beyond a reasonable doubt in deciding between life

and death. That is all the Constitution requires.” /d.

The Seventh Circuit took a contrary view in Kuba v.

Thieret, 867 F.2d 351 (7th Cir.), cert. denied, 110 S. Ct.

206 (1989). After considering Kubat's claim that his

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 35

counsel's performance was deficient because he failed to

object to the trial court's instructions, the court addressed

Kubat's claim that the jury instructions standing alone

required reversal as violative of the Eighth Amendment.

The Seventh Circuit construed Mills to place certain

limitations on how a trial court must instruct a jury during

the sentencing phase of a capital case. The court relied on

the Supreme Court's language that “ ‘common sense .

suggest[s] that juries do not leave blanks and do not report

themselves as deadlocked over mitigating circumstances

after reasonable deliberation, . . . unless they are

expressly instructed to do so." “ Kubat, 867 F.2d at 373

(quoting Mills, 486 U.S. at 383). Because juries are

likely to act as a unit in sentencing, the court found that

the danger of a tainted sentence was high where jurors are

“never expressly informed in plain and simple language

that even if one juror believed that the death penalty

should not be imposed, [petitioner] would not be

sentenced to death." /d.

In this case, as in Mills, “[n}o instruction was given

indicating what the jury should do if some but not all of

the jurors were willing to recognize something about

petitioner, his background, or the circumstances of the

crime, as a mitigating factor.” Mills, 486 U.S. at 379. |

believe there is a “substantial possibility” that the jury

construed the instructions to mean that mitigatin™ as well

as aggravating circumstances could be found only if the

jury was unanimous. The trial judge refused to instruct

the Jury on this very important point in spite of defense

counsel's objections and proffered instruction. It is likely

from the jury's question about whether they could

sentence Kordenbrock to life without parole that they were

struggling with mitigating factors. One or more jurors

may have believed there were mitigating circumstances.

Because the jurors in this case were told that aggravating

factors had to be unanimous, but were not told exactly

what role mitigating factors play, it would have been

reasonable for them to assume that mitigating factors had

to be found unanimously as well.

A-35

VX NN EE a

36 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

Death is the ultimate punishment. We must be certain

that juries carry out their roles properly in death penalty

cases. I believe the jury was confused on the unanimity

question concerning mitigation and that the verdict of

death may not have been imposed had they understood

that one juror could block the death sentence if he or she

believed there were sufficient mitigating circumstances.

Vill.

Accordingly the judgment of the District Court is

reversed and the case remanded to the District Court with

instructions to issue the writ of habeas corpus giving the

state an appropriate period of time to conduct a retrial as

to both criminal liability and sentence.

- A-36

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 37

KENNEDY, Circuit Judge, dissenting, with whom

Judges KRUPANSKY, GUY, and BOGGS concur in all

parts, Judge MILBURN concurs in parts III & IV, Judges

NELSON and RYAN concur in part IV, Judge

WELLFORD concurs in parts I, Il & IV, and Judge

NORRIS concurs in parts I, Il] & IV.

I concur in Part V of the majority opinion. I also

accept that appellant's written confession was obtained in

violation of his Miranda rights. The District Court so

found and that finding was not appealed. However,

because I believe that the admission of appellant's

confession was harmless error beyond any reasonable

doubt with respect to both the liability and sentencing

phases of trial, | must respectfully dissent. I also would

hold, as I did in my opinion for the panel, that there was

no Ake v. Oklahoma, 470 U.S. 68 (1985), violation and

that the jury instructions did not violate appellant's

constitutional rights.

I.

Use Of the Confession to Establish Criminai Liability

First, I believe beyond any reasonable doubt that the

admission of appellant's confession was harmless with

regard to the liability phase of trial.1 The majority says it

although the state did not honor appellant's right to end the

interrogation, | do not believe appellant's confession was involuntary

or coerced. Both the state courts and the District Court found that

appellant's will was not overborne and that his confession was the

oduct of free will and rational choice. See United States v. Murphy,

63 F.2d 202 (6th Cir. 1985). Voluntariness of a confession is a

mixed _— of law and fact and a reviewing court “will not disturb

the tral court's findings . . . unless clear error —o on the

record.” Id. at 206. Voluntariness is determined by the totality of

the circumstances surrounding the confession, taking into

consideration the accused's age, intelligence, physical condition and

emotional state, and the inherent coerciveness of the interrogation

setting. Id. at 205.

Review of the record shows that although the interrogators at times

threatened that several of appellant's friends would be arrested if he

did not continue to give a fuller staternent, the record as a whole

indicates that the ial cunet’s finding of voluntariness was not “clear

A-37

|

38 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

was prejudicial error because the confession was the only

concrete, uncircumstantial evidence of appellant's intent

to commit the shootings. However, as the Court readily

admits, there was also strong circumstantial evidence from

which appellant's intent could be inferred. Properly

framed, the question is whether the outcome of the tnal or

conduct of the defense would have been different had the

confession been suppressed.

It is beyond a reasonable doubi that the verdict of guilty

of capital murder against appellant would have been the

same regardless of the admission of the confession. The

evidence establishing appellant's guilt in the murder and

shooting was overwhelming. The surviving victim of the

shooting positively identified appellant and testified how

the murder and attempted murder occurred. Appellant, in

the course of robbing the store, ordered the two store

employees to the back room, forced them to lie prone,

and then shot them execution-style. Even if the

confession had not been admitted, the only defense

available to appellant would be to admit the killing and

shooting, but to deny intent because of drug and alcohol

use.

The identity of appellant was conclusively established.

William Thompson, the surviving victim, had ample

opportunity to observe appellant. Two days before the

robbery appellant and Michael Kruse were at the Western

Auto store from 1:00 to 1:30 p.m. examining woodcutting

tools. Thompson was alone at the store and Stanley Allen

was at lunch. The next day, appellant and Kruse again

went to the store at 1:00 p.m., and appellant purchased a

hatchet. Appellant also saw several guns in a glass

display case and asked to look at a Colt Python pistol.

Thompson showed him the gun and appellant and Kruse

left the store without incident.

error.” Appellant was cogent, there was no ‘orce or threat of force by

lice, and he was not og distressed. Cf. United States v.

rown, 557 F.2d 541 (6th Cir. 1977).

A-38

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 39

Further, less than an hour after the robbery, appellant

and Kruse went to a Gary Rameli's home where they sold

him three of the stolen guns for $200. They then went to

the home of Richard Fehler where at 10:30 a.m. they sold

two guns, payment for which was due January 15, 1980.

According to Fehler, appellant appeared jittery and took

some Quaaludes. That afternoon, appellant met a Larry

Hensley who purchased six guns for $300, payahle the

next day. In the meantime, Ramell saw a newscast about

the robbery and murder which included composite

drawings resembling appellant and Kruse. Hensley also

saw the news and noticed that the guns he bought from

appellant came in a Western Auto box containing broken

glass. Ramell, Fehler, and Hensley decided to cooperate

with the police. Hensley arranged to meet_appellant at

10:00 p.m., the day following the robbery, to pay for the

guns he received from appellant. Appellant was arrested

at 10:10 p.m. that night.

Any claim of accidental shooting was impossible in

view of the manner in which both store employees were

shot. The only possible explanations for shooting the

men, one in the back of the head and the other in the back

of the neck, were that they were attempting to get up or

that appellant was attempting to execute them so they

could not identify the robbers. In the absence of

diminished capacity, intent to kill was the only possible

inference a reasonable juror could infer from the

circumstances of the crime. The confession that he shot

them so “they wouldn't get up” could not affect the

outcome.

Had the illegal portion of appellant's confession been

suppressed, appellant would have been required to adopt

the same trial strategy out of necessity because he was not

in a position to claim he did not commit the murders.2

2Regardiess of whether Burks v. Perini, No. 85-3507 (6th Cir. Nov.

25, 1986) is distinguishable from the present appeal, | see no

alternative but that appellant would have been fo to admit that he

did the killing. Just as Burks admitted the crime but claimed self-

defense, appellant would have admitted the shooting but claimed

A-39

40 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

Before Kordenbrock asked to stop the interrogation, he

had admitted committing the murder. This admission was

made after he waived his Miranda rights. The basic

admission of guilt was thus not obtained in violation of

Miranda. He would have admitted the shooting and he

would have claimed diminished capacity through drug and

alcohol use. Given the strength of the circumstantial

evidence establishing intent, his statement that he shot the

men so “they wouldn't get up” gave relatively little

additional basis for establishing intent. The most

persuasive, damning indication of his intent lay not in the

statement that he shot them so “they wouldn't get up,” but

rather in the facts and circumstances surrounding the

crime. The statement in the confession is equivocal on

the question of whether it proves intent--it could be an

explanation for why he shot the men, or it could be an

additional fact gratuitously added at the time of his

confession. With or without admission of the confession,

appellant would have to at least admit the fact that he shot

the two men. The fact that he said in his written

confession that he shot them so they wouldn't get up is no

more indicative of intent to kill than would be the phrase

"I shot them so we could escape” or “I shot them so they

would not identify us." Once the circumstances of the

shooting were established, there was no explanation

except diminished capacity under which the jury would

not infer intent to kill.

This case is readily distinguishable from Owen vy.

Alabama, 849 F.2d 536 (11th Cir. 1988), cited by the

majonty for the proposition that where an_ illegal

confession is the only direct evidence of intent to kill, its

admission is not harmless even where evidence

establishing the defendant's guilt is overwhelming. In

Owen, the defendant confessed to a shooting and said that

""{iJf 1 had a thousand [shells in the gun] I would have

shot a thousand. Maybe this will teach them a lesson.*"

Id. at 537 (quoting Owen v. Stuie, 418 So.2d 214, 219

diminished capacity. He would have done so because of the strength

of the evidence pointing to his guilt.

A-40

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 4|

(Ala. Crim. App. 1982)). The court determined its

admission to be prejudicial error because it provided

“significant support” for the state's case and because it

undermined his insanity defense. Of course, Owen's

confession clearly evidenced intent to kill. Appellant, on

the other hand, merely stated that he shot the men and

then explained why. Owen's statement was “dripping”

with intent to kill, while appellant's statement was

equivoca! at most.

Appellant's oral statement to the jury also related

essentially the same facts as his written statement--that he

shot the two men after stealing the guns from the store,

but without the “damning” language that he did it so they

wouldn't get up. Appellant's only course, had the

confession not been admitted, would be to make the same

Statement to the jury, either directly or implicitly in his

defense. In either case, he would have to admit the deed.

The clearest finding of intent stems from the facts that he

would be forced to admit, with or without the confession.

For that reason, I am convinced that the language of the

confession did not prejudice him in the guilt phase of trial

and that its admission was harmless beyond a reasonable

doubt.

Il. P

Use of Confession at Sentencing

The majority's holding that admission of the confession

was constitutional error on the sentencing phase of the

trial is founded on the premise that appellant's written

confession contained “extremely prejudicial and

incriminating statements,” Majority Opinion at 9, which

"tended to undermine at the sentencing hearing the

claimed mitigating circumstances of diminished capacity

due to the use of drugs and alcohol.” /d. at 10.

According to the majority, the confession was “extremely

prejudicial” in the sentencing phase because it omitted

A-41

42 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

reference to drug use? and because its tenor was “cold."*

Neither of these reasons persuades me that admission of

his confession prejudiced a and I can find nothing

in appellant's written confession which would tend to

undermine his defense of diminished capacity and cause

any member of the jury to reject it as a mitigating factor

in sentencing. Indeed, careful review of the record and

the evidence presented at trial leads me to conclude that

appellant's confession could not have in any way

undermined his claim of diminished capacity or prejudiced

the jury in sentencing him to death. I will consider each

of the majority's reasons in turn.

1. Omission of Reference to Drug and Alcohol Use

The Court first argues that appellant's claim of

diminished capacity was prejudiced by the admission of

his written confession because it did not mention drug or

alcohol use. However, whether drug and alcohol use was

mentioned in or supported by his written confession is

irrelevant. The relevant inquiry is whether the confession

logically precluded him from effectively asserting his

defense of diminished capacity at trial. Obviously, it did

not prevent him from making his defense. The majority

seems to ignore the independent, substantive evidence

appellant introduced at trial to prove diminished capacity.

Consideration of such evidence is essential in determining

whether the error in admitting the confession was

3The majority seems to imply that the officers who conducted the

interrogation and recorded appellant's confession intentionally deleted

any reference to appellant's drug use prior to the shootings by

“edit{ing} out facts" that would support his claim of diminished

Capacity. Majority Opinion at 5. Nowhere in the transcript of the

interrogation 1s such an assertion supported. Officer Stamper

recorded appellant's confession as appellant related it to him. In fact,

at one point the transcript reveals appellant told the officer that he had

not used any drugs or alcohol yap that fact was not included in

the final written confession). It is therefore not surprising that drug

and alcohol use was not contained in the written confession.

“The written confession that was introduced at trial said in part “I

then, Paul Kordenbrock, pulled the trigger, aiming and firing at their

heads so that they wouldn't get up.°

A-42

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 43

harmless beyond a reasonable doubt. “In determining

whether any particular error can be ... classified [as

harmless}, this Court must review the facts and the

evidence to determine the effect of the unlawfully

admitted evidence upon the other evidence adduced at trial

and upon conduct of the defense.” Owen, 849 F.2d at

540 (citing Fahy v. Connecticut, 375 U.S. 85, 87 (1963)).

The jury was presented with the testimony of several

witnesses who observed appellant either immediately

before or after the shootings. Terry Hall testified that

appellant arrived at a party at his sister's residence the

night efore the shootings “in bad condition” with red

eyes, slurred speech, and appearing “kind of woozie."

Trial Exhibits (TE) 4158, 4164, 4170. Gary Ramell

Stated that he was “spaced out" and “pretty messed up” at

the party. The morning of the murders, approximately

seven hours after the party, he awoke and drank two beers

and took two Quaaludes, and then took another Quaalude

thirty minutes later. Dr. Eljom Don Nelson, TE 4294-

95. Jeffrey Piper testified that he sold appellant ten more

Quaaludes about thirty minutes before the shootings. TE

4113. He told the jury that appellant “was very high on

Quaaludes,” that his speech was slurred, and that his eyes

were messed up. TE 4116, 4136. Gary Ramell again

testified that about thirty minutes after the shootings he

saw appellant and that he appeared “kind of mellow, he

didn't seem like he had a care in the world,” TE 3791,

and that he was glassy-eyed. TE 3806. In his opening

Statement to the jury, appellant stated that he

“shotgunned” two beers the morning of the shootings and

took a Quaalude. After stopping to get gas and buy more

drugs, he took two more. Appellant also told the jury that

when he shot the two men, he was “standing there all

messed up from the night before and what I had already

consumed that morning.” He told the jury that he “never

intended to shoot aiybody . . . [i]t just happened.” The

jury was thus fully aware of the degree of appellant's drug

and alcohol consumption at the time of the shootings.

A-43

ad Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

I fail to understand, as the majority contends, how the

mere absence of a reference to drug and alcohol use in his

written confession could have in any way undermined

appellant's diminished capacity defense. Admission of the

confession did not prevent him from putting before the

jury ail available evidence of his intoxication due to drugs

and alcohol. The evidence supporting diminished capacity

was neither contrary to, nor even inconsistent with, the

statements made in his written confession. Appellant was

as able to put on evidence explaining his mental state

when he shot the two men as he would have been had the

confession been suppressed. It seems to me logically

impossible for the confession to have prejudiced his

ability to make his diminished capacity defense.

This is not a situation where appellant sought to

suppress a confession containing statements contrary to

what he would attempt to prove at trial. For example, if

appellant had denied using drugs or alcohol in his

confession, the erroneous admission of it would

undermine his defense of diminished capacity and

constitute prejudicial error in the manner urged by the

majority. Such would also be the case if he had stated in

his written confession that he was not intoxicated or high

on drugs. However, in the case before us, appellant's

confession was innocuous on the. matter of diminished

capacity because it made no reference to drug or alcohol

use at all. Failing to mention it in the confession did not

render him unable to prove it at trial, nor would its

absence in the written confession make it less likely that

the jury would find him to have acted while intoxicated.

Appellant seems really to be complaining because a

confession which contained reference to drugs and alcohol

would be better for his diminished capacity defense.

Appellant's confession was independent of and unrelated

to his ability to defend based on diminished capacity. As

such, | am convinced beyond a reasonable doubt that

admission of the confession was harmless error.

Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 45

2. Tenor of the Confession

Even if the confession did not prevent appellant from

asserting his claim of diminished capacity, the majority

contends that the “cold” statement “I then, Paul

Kordenbrock, pulled the trigger, aiming and firing at their

heads so that they wouldn't get up,” may have caused at

least one juror to disbelieve that he acted with diminished

capacity. I do not agree that any juror could have been

influenced by the “coid" tenor of the confession in such a

way. The Court again makes no reference to the

uncontested testimony that appellant introduced which

established his intoxication. As I view the question, the

issue is whether appellant's written statement that he shot

them so “they wouldn't get up” was so callous,

calculating, cold, inflammatory, and prejudicial that ir

could cause any reasonable juror to reject all of the

evidence establishing his defense of diminished capacity.

Again, determining whether the error was harmless

requires us to consider the effect of the illegal confession

not by itself, but rather in conjunction with all of the

evidence adduced at trial. See Fahy, 375 U.S. at 87;

Owen, 849 F.2d at 538.

The majority's reasoning would have us assume that a

juror, in the face of all the evidence and testimony

indicating appellant's intoxication and diminished capacity

from his recent consumption of drugs and alcohol, would

reject that uncontested testimony simply because of his

written statement that he shot them so “they wouldn't get

up." His written statement may have been cold, as would

be virtually any statement confessing a murder. While it

may have been cold, however, I cannot believe that its

tone was so callous and calculating that it would cause any

reasonable juror to actively and affirmatively ignore the

substantive evidence presented at trial which indicated he

was intoxicated. I find it incredible to think that any

reasonable juror could listen to all the testimony

establishing his diminished capacity, and then disbelieve,

reject, or ignore that evidence because of the language of

the confession.

A-45

a Kordenbrock v. Scrogey Nos. 88-5467/89-5 107

Appellant tempered any harshness of his written

confession by his direct appeal to the jury in his opening

statement and all the substantive evidence at trial showing

his drug and alcohol use. Thus his written word was

supplemented with an explanation of his mental state

when he shot the two men. That the jury did not believe

his defense cannot be logically attributed to his

confession, a confession that made no reference to drug

and alcohol use. Nothing he added at trial to soften the

confession's tenor was even slightly inconsistent with or

contrary to his written statement. Although I agree that

the written confession may have appeared “cold" to the

jury, I cannot agree with the majority that it was

prejudicial. No juror, given all the evidence of

intoxication, could have rejected the evidence out of hand

because of the confession's tenor.

The majority argues, I think correctly, that "[i}f one

member of the jury believed that the illegal portion of the

confession . . . tended to dispel arguments in mitigation,

the constitutional error was harmful." Majority Opinion

at 11-12. I strongly disagree with its conclusion,

however, that “[iJt is impossible to say beyond a

reasonable doubt that no juror held such a view,” or that

"(i]t would be unreasonable to assume” that none did.5

Id. (emphasis added). It is not sufficient for the Court

merely to assert its conciusion and entertain the notion

that a juror might have been swayed by the confession in

rejecting appellant's diminished capacity defense. It is at

least obliged to set forth some reason why a juror would

take such a view in the face of the uncontested evidence

appeliant introduced.6 See Fahy, 375 U.S. at 87; Owen,

Sin support of this contention, the Court points out that the jury,

during sentencing deliberations, asked the trial judge whether it could

impose life 2 greg ween with no parole, indicating that the jury was

sruggling with its decision. I believe the majority is reading too

much into the jury's request. Mere indecisiveness or inquiry into

sentencing options is hardly evidence that a juror may have been

iathetunal by the confession.

Sin making this statement, | am aware that the government, as

beneficiary of the Miranda violation, must prove beyond a reasonable

doubt that the violation did not contribute to the verdict. However,

A-46

ne

Nos. 88-5467/89-5 107 Kordenbrock v. Scrogey 47

849 F.2d at 540. After considering that evidence, |

believe it is not only possible and reasonable to believe

that no juror held such a view, but that it is reasonable

beyond doubt that none did.

Far from being “the damning statements that

undermined his defense of diminished capacity," Majority

Opinion at 5, appellant's confession, because it did not

mention drug or alcohol use, logically could not have

impeded his ability to prove diminished capacity as a

mitigating factor when nothing in the confession was

inconsistent with that defense. Moreover, I cannot agree

that any reasonable juror would disbelieve or reject all the

evidence of his intoxication simply because of the tenor of

the confession. I am convinced beyond any reasonable

doubt that the erroneous admission of appellant's

confession was harmless in the sentencing phase.

Il.

Failure To Have Psychiatric Testimony

Appellant claims that since he is indigent, the

Constitution entitles him to a state-funded psychiatrist to

assist him in the guilt and sentencing phase of his trial.

Although appellant did not assert insanity as a defense,’

that does not obviate the need for the Court to articulate how, in light

of the evidence presented at trial, a reasonable juror could have

rejected or ignored it. Simply asserting that one may have rejected it

is not sufficient.

7*Counsel for defendant Kordenbrock have never served notice of an

intention to rely upon insanity as a defense. The Court believes that

Kordenbrock has been afforded ample nity to — such a

defense if one exists.” Order Denying Continuance, June 2, 1981,

Judge Sam Neace, Boone County Circuit Court. Appellant's counsel

testified at the District Court evidentiary hearing on the wnt that

appellant's sanity was never considered as a defense:

: I understand that your belief was st al! times that your

client was not insane, nor was he incompetent to stand tnal.

Is that correct?

A: That's my--that was my belief, and that is my belief.

A-47

48 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

he hoped to use psychiatric testimony to establish a

defense of diminished responsibility based on his habitual

drug and alcohol abuse. He also hoped to use the same

testimony for purposes of mitigation in the sentencing

phase. For the reasons set out below, I agree with the

District Court that appellant was not deprived of any

constitutional nght.

Appellant first obtained the services of a Dr. Melvin

Nizny, a Cincinnati, Ohio psychiatrist. Dr. Nizny

examined appellant and gave his attorneys an oral report

of his evaluation. Although Dr. Nizny ordinarily did not

require payment until after he had testified and even

though Dr. Nizny had not submitted a bill, counsel for

appellant advised Dr. Nizny that Boone County would

refuse to pay his bill. Counsel knew that there was an

ongoing dispute over whether the county or the state was

responsible for paying experts appointed to assist criminal

defendants. Counsel advised the Circuit Court that

Dr. Nizny would not give a written report or testify unless

he was guaranteed payment. The Circuit Court issued an

order directing the Boone County Fiscal Court to pay

Dr. Nizny. The Fiscal Court refused to do so.

Appellant's counsel made no effort to enforce the order.

The District Court found that counsel could have urged

the Circuit Court to hold county officials in contempt or

to levy on county bank accounts or to subpoena Dr. Nizny

to testify. It further found that Dr. Nizny would have

voluntanly honored a subpoena from the Kentucky court

even though served in Ohio.

Dr. Nizny was never advised of the Boone County

Court's order directing he be paid one half upon the filing

of his report and the other half after he testified. The

District Court found that counsel's failure to secure

Q: ...[NJever at any time did you ever pursuant to the

statutory requirements of Kentucky file a notice of your

intention to claim an insanity defense, did you?

A: I--that's correct. I had no factual basis to do that.

Deposition of Edward Monahan.

A-48

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 49

payment and to have Dr. Nizny testify was a deliberate

attempt to create an appealable issue. The court

concluded that Dr. Nizny's evaluation would noi have

been useful to appellant's defense, and that his counsel

was aware of it. Dr. Nizny's oral report to counsel did

not indicate any mental illness. Further, appellant had

revealed to Dr. Nizny that on the night before the robbery

of the Western Auto store he had robbed a gas station and

killed the attendant, the only witness. The unfavorable

nature of Dr. Nizny's report,® plus counsel's failure to

take any of the odvious steps to obtain Dr. Nizny's

assistance, caused the lower court to conclude t

appellant was not “denied” psychiatric assistance; he was

merely maneuvering to create an appealabie issue.

Kordenbrock v. Scroggy, 680 F. Supp. 867 (E.D. Ky.

1988). This is a factual finding made after an extensive

evidentiary hearing which can be set aside only if clearly

erroneous. See Rabidue v. Osceola Ref. Co., 805 F.2d

611, 616 (6th Cir. 1986), cert. denied, 481 U.S. 1041

(1987). Upon examination of the record, I am not

persuaded that a mistake had been made. ("A finding is

clearly erroneous when although there is evidence to

support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake

8The District Court also found that Dr. Nizny's preliminary rt

was also unfavorable in that he found st had an Senti-social

personality,” that is, he had no regard to the nghts of his fellow man

or woman. Also, Dr. Nizny concluded and that “it could not

be said that rehabilitation was probable.“ Kordenbrock v. Scroggy,

680 F. Supp. 867, 872 (E.D. + 1988). The majority state that

Dr. Nizny‘s report “indicates that Kordenbrock was not ‘a man totall

self centered or totally devoid of feeling for another person.’

Majority Opinion at 28. What the report says is:

I found him trying, in an adolescent way, to please and to

assume responsibility. For example, the weekend before the

event in question, he cleaned his uncle's barn of manure in

exchange for room and board; I do not believe that one

would consider this action that of a man totally self centered

- yoenen be of feeling for —_— Sod footpr; Legend spe

scribed being preoccu “ ootprints on his car

and had mi : his aPrtriend that he would have it

washed. Aflier the crimes, be descnbed attention to this but

none to his victims.

(Emphasis added.)

A-49

50 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

has been committed.") /d. The Court holds clearly

erroneous the district judge's finding that appellant's

counsel did not want Dr. Nizny to testify because, it says,

his finding was based on the erroneous assumption that

the state court, if Nizny had testified, would have required

disclosure of the fact that appellant had robbed, shot and

killed the gas station attendant the night before. Although

the murder the night before was one of the unfavorable

aspects of the report which caused the district judge to

conclude defense counsel did not want him as a witness, it

was not the only one. Moreover, in larger degree, I agree

with the district judge's statement made during arguments

before him and quoted in the majority opinion that “any

judge would have let the prosecution question Dr. Nizny

on this [shooting] issue.” Although the information was

prejudicial, it was also highly probative. Certainly the

fact could not be concealed from the prosecution. If

Dr. Nizny were to testify that appellant probably shot the

store employees because he was startled when the glass

broke rather than because he wished to eliminate them as

witnesses or just wanted to murder them, would not the

fact that he had shot the gas station attendant the night

before be the most probative evidence to test

fallaciousness in the doctor's opinion? Surely, Dr. Nizny

would have had to take into account the prior killing in

reaching any opinion on rehabilitation. The likelihood of

the evidence being admitted is, in my opinion, almost a

certainty. Moreover, the Court's inference that counsel

did not want Dr. Nizny as a witness does not depend on

the certainty that the evidence would come in, but the

likelihood. It was on this likelihood that counsel would

make their decision. Although I do not condone the

state's refusal to pay Dr. Nizny, I find no constitutional

violation.

Counsel's further efforts to secure another psychiatrist

failed. The case was again continued (it had previously

been continued when Dr. Nizny was unavailable) and the

trial court ordered appellant to be examined by a

psychiatrist at a state institution who could assist in

appellant's defense.

A-50

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 5S!

Pursuant to that order, appellant was seen on November

21, 1980, by a Dr. James Bland of Forensic Psychiatry

Services, a public hospital operated by the Kentucky

Department of Human Resources. Dry. Bland was to

examine appellant on the issue of his competency and

sanity. Because the state restricted such experts to a

neutral and objective evaluation concerning only

competence to stand trial and sanity, and because he

feared that Dr. Bland's opinion might not remain

confidential, appellant's counsel advised him not to

cooperate.

On May 15, 1981, appellant requested and was granted

the appointment of a Dr. Michael Gureasko to act as a

defense psychiatrist. However, on May 18th, Dr.

Gureasko called the court and told it he would not assist

appellant because of a misunderstanding with counsel.

The court denied appellant's motion for a further

continuance and the case was tried.

Appellant relies on Ake v. Oklahoma, 470 U.S. 68

(1985) for his claim that the Constitution guarantees him a

court-appointed psychiatric expert to assist in his defense

and in the penalty phase of trial. Ake held that:

when a defendant demonstrates to the trial judge

that his sanity at the time of the offense is to be a

significant factor at trial, the State must, at a

minimum, assure the defendant access to a

competent psychiatrist who will conduct an

appropriate examination and assist in evaluation,

preparation, and presentation of the defense.

Id. at 83. The Court qualified this right:

This is not to say, of course, that the indigent

defendant has a constitutional mght to choose a

psychiatrist of his personal liking or to receive

funds to hire his own. Our concern is that the

indigent defendant have access to a competent

A-51

: ’

52 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

psychiatrist for the purpose we have discussed

Id. Appellant claims his constitutional rights were

violated because the county refused to pay for Dr. Nizny's

services and because the state-funded expert offered,

Dr. Bland, was limited to determining appellant's

competence and sanity, and could not make an evaluation

conceming his diminished responsibility or other

mitigating factors.

However, appellant's claim that the scope of Dr.

Bland’s examination and testimony was too limited to be

effective is without merit. Dr. Bland testified at the

evidentiary hearing in the District Court that he could

have addressed all of the psychiatric issues appellant's

counsel wanted Dr. Nizny to address.9 Moreover,

SDr. Bland was a physician specializing in psychiatry. He testified

that he would have por able os cnasiian oll cans of cee liant that Dr.

Nizny was requested to examine:

Q: Are any of the [nineteen] ions in the letter

from Mr. Lseochen Seocliaat's tial pth on gh Dr. Nizy

... in that September the 8th, 1980, correspondence that

you would have been prohibited, unable or unwilling to

address, had you been able to examine and had Mr.

Kordenbrock :

cooperated with you?

A: I can't say that | would be able to answer all of them in

any substantial way. That would on a lot of factors.

But I don't see any here that | wouldn't be able to address.

And in fact they're the types of questions that are commonly

asked in trial proceedings regarding my testimony.

Q: All right. Those questions are a uestions

in cases where mental capacity or mental illness might be an

issue?

A: Yes.

THE COURT: Tum particularly to number 11, what

statutory and otherwise mitigating factors exist in Paul's

commission of these offenses? Would you have been able to

consider that and testify on that if you had come up with

some--if they had come up with something favorable to the

defendant?

THE WITNESS: Yes.

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 53

appellant's objection that Dr. Bland was neutral and

therefore could not give effective defense assistance is

without merit. Ake merely requires that a competent

psychiatrist be provided to assist indigent defendants, not

the psychiatrist of their choice. 470 U.S. at 83.

Appellant's argument that Dr. Bland was not required to

examine him at his counsel's direction is belied by Dr.

Bland's stated willingness to pursue the examination along

a course plotted by defense counsel:

Q: ... Would you have--would you have if

directed by the court engage in any other matter

THE COURT: What about number 15, can Paul be

rehabilitated? Could you have given the jury in the

sentencing phase an opinion on that?

THE WITNESS: That was not an unusual question to be

asked, your honor. Yes, I could have.

Testimony of Dr. Bland. Dr. Bland was also prepared to investigate

and testify as to appellant's family history and psychological

background:

Q: As part of your mental--your examination of an accused,

Doctor, during this iod is a thorough history taking

important?

A: Yes.

9: Would you include in that history as part of your opinions

effects of any drugs or alcohol which the defendan t might use

either chronically, or on the occasion of the crime or on the

occasion of a subsequent confession to the crime?

A: Yes. That would be part of the history.

Q: And would you have been prepared to testify, Doctor, if

called by the defense if you found there to be any effects of

any of t things with respect to any of your opinions as to

the capacity of an individual? ™

A: Yes.

Q: Likewise, family background, intelligence and other

environmental factors?

A: Yes, that would be considered.

Id.

A-53

54 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

which the--defendant's amemneye might ask you to

_ pursue, if ordered by the court?

A: Yes.

Q: Regardless of the amount of time which it

might take?

A: Yes, I would.

Testimony of Dr. Bland. Dr. Bland also stated that his

neutral, jective evaluation would have _ supplied

appellant with any information that appellant could use in

his defense:

THE COURT: But you would have made the

evaluation and called it either way you saw it.

You would have made the evaluation. If you

thought he was crazy with drugs and irresponsible

from the drugs, or couldn't form the criminal

intent from the drugs, or form a mitigating

circumstance, or anything in his _ family

background were a mitigating circumstance you

would have just reported like you saw it, nght?

THE WITNESS: I would have just reported it as I

saw it and also gave an interpretive opinion about

how that might have or might not have in my

opinion affected the situation.

Id.

I am unpersuaded by the majority's appeal to

Dr. Bland's statement that he would be available as an

expert "in a limited way.” Although it is true that his

investigation “might not and potentially would not include

the depth of areas that might be pursued by a defense-only

psychiatrist in terms of looking for everything possible in

favor [of] the defendant,” such an expert is not required

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 55

by Ake. Appellant is requesting, and the majority would

grant, only the po i best defense expert. However, Ake

—

requires at most a yp poco psychiatrist to “assist in

evaluation, i -— Presentation of the defense."

470 U.S. at 83. Dr. Bland‘s testimony shows he could

have and would have provided the necessary assistance.

I agree with the District Court that Dr. Bland's

assistance, had appellant taken advantage of it, would

have met Ake's command of guaranteeing appellant

“access to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation,

preparation, and presentation of the defense." Jd. I also

agree that as a matter of strategy appellant chose not to

avail himself of this witness. His concern over

confidentiality could have been met by a court order. The

trial court evidenced a cooperative attitude to provide

appellant with the service of a psychiatrist.

Appellant's constitutional rights under Ake were not

violated. Ake's guarantee of a state-funded psychiatrist

arises only after defendant shows that his sanity will be “a

significant factor at trial." Jd. See also Harris v.

Vasquez, 913 F.2d 606 (9th Cir. 1990); Cartwright v.

Maynard, 802 F.2d 1203 (10th Cir. 1986); Volson v.

Blackburn, 794 F.2d 173 (Sth Cir. 1986); Bowden v.

Kemp, 767 F.2d 761 (11th Cir. 1985). Appellant never

attempted to raise insanity as a defense. At most he

sought to show that his capacity was diminished through

drug and alcohol use, thus depriving him of the specific

intent necessary to convict him of intentional murder.

Although Ake does not establish a bright line test for

determining when a defendant has demonstrated that

"sanity at the time of the offense will always be a

significant factor,” it is clear that "'Ake requires that the

defendant, at a minimum, make allegations supported by a

factual showing that the defendant's oe is in fact at

issue in the case.'" Cartwright, 802 F.2d at 1211-12

(quoting Volson, 794 F.2d at 176). Such a showing is not

made by merely positing that appellant was a habitual

drug and alcohol abuser. See Pedrero v. Wainwright, 590

A-55

56 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

F.2d 1383, 1391 (Sth Cir.) (pre-Ake case holding that

insanity is not made an issue by showing defendant was a

drug addict entitling him to state-funded defense

psychiatrist), cert. denied, 444 U.S. 943 (1979).

Finally, even if the state court did improperly deny

appellant access to Dr. Nizny, I agree with the District

Court that his constitutional rights under Ake were

adequately protected by the testimony of Dr. Eljorn Don

Nelson. Dr. Nelson taught pe tieeremy od at the

University of Cincinnati College of Medicine and directed

the college's drug and poison information center. He

teaches medical students, physicians and psychiatrists

about the diagnosis and treatment of drug and alcohol

abuse. He had received special training in the area of

psychopharmacology. It is again important to note that

appellant admittedly never made his sanity an issue--he

only sought to establish diminished capacity and the

inability to form specific intent because of drugs and

alcohol. At trial, Dr. Nelson testified that he had

examined appellant and detailed his long history of drug

and alcohol abuse. He then testified specifically about

appellant's mental state at the time of the crime:

Q: Doctor, do you have an opinion as to Paul

Kordenbrock's ability to fully control his actions at

9:30, Saturday, January Sth, 1980, based on...

information about his level of drugs?

A: I think that Paul Kordenbrock was under the

influence of alcohol and/or Diazapam and/or

Phencyclidene and I think he, probably, as a result

of that had a diminished ability to exercise

judgment, ethical decisions, and formulate

complex thoughts. I think he was basically, in lay

terms, he was drunk and stoned. That is my

opinion.

Q: . . . [DJo you have an opinion as to whether or

not Paul Kordenbrock was psychologically and

A-56

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 57

physically addicted to drugs at 9:30 on Saturday,

January Sth, 1980? .

A: I think he was physically and psychologically

addicted to alcohol. If the street tablets contained

he was — psychologically and

Diazapam

physically dependent to that

Testimony of Dr. Nelson. Dr. Nelson's testimony went

to the heart of appellant's defense. On appeal, appellant

fails to establish how Dr. Nizny's testimony would differ

or add to Dr. Nelson's testimony. Although he claims

that Dr. Nizny’s testimony would have explained to the

jury why appellant behaved the way he did, it appears that

Dr. Nelson’s examination and testimony were sufficient to

establish the defense of diminished responsibility and

mental capacity. Simply asserting that Dr. Nizny's

testimony would have been beneficial is not enough.

"Where a defendant offers ‘little more than undeveloped

assertions that the requested assistance would be

beneficial, we find no deprivation of due process in the

trial judge's decision [to deny psychiatric assistance].'*

Bowden, 767 F.2d at 765 (quoting Caldwell v.

Mississippi, 472 U.S. 320, 323 n. t (1985)). Appellant's

defense was not that he was insane or mentally diseased--

it was only that drugs and alcohol affected his ability to

formulate specific intent and should have been used for

mitigation in his sentence. Therefore, I agree with the

District Court that any error in denying access to Dr.

Nizny was harmless to the extent that Dr. Nelson

examined appellant and testified to the same issues.

Appellant's constitutional mghts under Ake were not

violated.

Lastly, Ake's guarantee of access to psychiatric counsel

in the sentencing phase of trial does not apply to these

facts. Ake's guarantee applies in two situations--when the

defendant's sanity is a significant factor at trial and “in the

context of a capital sentencing proceeding, when the State

presents psychiatric evidence of the defendant's future

dangerousness.” Ake, 470 U.S. at 83. Ake only

A-57

58 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

guarantees a defendant the right to a psychiatrist at the

sentencing phase to oppose the government's psychiatric

testimony. The Supreme Court explained that the need

for a defense psychiatrist arises only when the government

uses an expert because “(without a psychiatrist's

assistance, the defendant cannot offer a well-informed

expert's opposing view, and thereby loses a significant

opportunity to raise in the jurors’ minds questions about

the State's proof of an aggravating factor." Id. at 84

(emphasis added). In Bowden, the court stated that

“[ujnlike the sentencing situation in Ake, Bowden's

prosecutor had no need to present psychiatric evidence to

show an aggravating factor, and he presented none. The

dangers and inequities which concerned the Court in Ake

consequently did not exist.” 767 F.2d at 764 n.5. Nor

do those dangers and inequities exist in this appeal. The

State presented no psychiatric experts at the sentencing

phase, only a doctor who was a general family

practitioner who testified about the effects of drugs. As

such, appellant was not constitutionally entitled to a state

funded psychiatrist under Ake. In addition, the testimony

given by Dr. Nelson went to the effects of his drug and

alcohol abuse and could be used for purposes of

mitigation and to counter the state's witness.

IV.

Jury Instruction Re Unanimity

Nor can I agree with the majority opinion that

appellant's constitutional rights were violated when the

trial judge instructed the jury in the penalty phase that an

aggravating factor had to be found unanimously, but was

silent with regard to how many had {o agree in finding a

mitigating factor. Appellant claims this caused the jury to

mistakenly believe that finding a mitigating factor also

required unanimity. In reviewing this claim, I first note

that errors of instruction are not reviewable in a habeas

proceeding unless they work to deprive appellant of due

process. Long v. Smith, 663 F.2d 18 (6th Cir. 1981),

cert. denied, 455 U.S. 1024 (1982). The standard for

A-58

Nos. 88-5467/89-5107 . Kordenbrock v. Scroggy 59

determining this is “'whether the ailing instruction by

itself so infected the entire trial that the resulting

conviction violates due process,'" not merely whether it is

erroneous. Henderson v. Kibbe, 431 U.S. 145, 154

(1977) (quoting Cupp v. Naughien, 414 U.S. 141, .47

(1973)). It is cleag that the instructions given here did not

“infect[] the entire trial" and deny appellant due process.

As the District Court held, there is nothing in the

instructions that would lead the jurors to believe that

finding a mitigating factor required unanimity. The

instructions carefully stated that finding an aggravating

factor required such agreement, but it cannot be

reasonably inferred that silence as to finding a mitigating

factor would likely cause the jury to assume that

unanimity was also a requirement. Indeed it would

indicate the opposite. The instructions were not

misleading.

Kubat v. Thieret, 867 F.2d 351 (7th Cir.), cert. denied,

110 S. Ct. 206 (1989) relied upon in the majority opinion,

is clearly distinguishable from the instant case. Unlike

silence, the jury there was specifically told that they must

find mitigating factors unanimously.

If, after your deliberations, you unanimously

determine that there is no sufficiently mitigating

factor or factors to preclude the imposition of the

death sentence on the defendant, ....

If, after your deliberations, you unanimously

conclude that there is a sufficiently mitigating

factor or factors to preclude imposition of the

death sentence, ....

Id. at 369 (emphasis added and in original). Although

another instruction permitted the jury to so state if they

were unable to reach a unanimous verdict, that could not

correct the erroneous instruction.

A-59

60 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

I therefore conclude that the instruction did not deprive

appellant of due process or invade any constitutional night.

A-60

Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 61

BOYCE F. MARTIN, JR., Circuit Judge, concurring in

part and dissenting in . I concur in the majority's

opinion reversing Paul Kordenbrock'’s conviction and

sentence on the grounds set out in parts II-IV of the

opinion. However, on the remaining issues, I have

additional comments and/or a slightly different analysis of

the issues. Thus, I write separately on each of the

remaining parts of the opinion.

V. Miscellaneous Claims

I agree with the majority's treatment of issues B., C.,

and D. As to issue E., I believe that the police's action of

displaying the pill bottle before Kordenbrock during

interrogation was intentionally manipulative. 1 also

believe that the police's oh-so-convenient loss of the pill

bottle and erasure of the tape are inexcusable bungles for

courts to tolerate in capital cases.

As to Issue A., I disagree that the standard announced

in Caldwell v. Mississippi, 472 U.S. 320 (1985), was

satisfied. In Caldwell, the Court held that it is

"constitutionally impermissible to rest a death sentence on

a determination made by a sentencer who has been led to

believe that the responsibility for determining the

appropriateness of the defendant's death lay elsewhere."

Caldwell, 472 U.S. at 328-29. In Caldwell, the Court

dealt with a prosecutor’s inaccurate statements to a jury

regarding its sentencing responsibilities. This case is

unique because while the prosecutor accurately informed

the jury that the Kentucky capital sentencing law in effect

at the time of Kordenbrock's case requires a jury to

"recommend" the sentence in a capital sentencing

proceeding, the statute itself did not accurately reflect the

de facto sentencing responsibility of the jury which was to

fix the sentence.

In cases where the term “recommendation” has been

upheld for jury instructions informing the jurors of their

sentencing function, the states involved actually limit the

jury's function to giving a non-binding recommendation to

A-61

62 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

the trial judge. See, e.g., Harich v. Dugger, 844 F.2d

1464, 1473-74 (lith Cir. 1988), cert. denied, 109 S. Ct.

1355 (1989) (Florida); see also Project, Nineteenth

Annual Review of Crim. Proc.: United States Sup. Ct.

and Cts. of App. 1988-89, 78 Geo. L. J. 669, 1294

n.2747 (1990) (noting that Florida, Alabama, and Indiana

use a jury recommendation system as an advisory opinion

for trial judge). The Kentucky sentencing statute in effect

at the time Kordenbrock was sentenced mischaracterized

the binding nature of the jury's decision as a

“recommendation” when in fact the jury fixed the penalty

as either life or death. Consequently, the capital

sentencing jury instructions were amended by the

Kentucky Supreme Court in Zamme v. Commonwealth,

759 S$.W.2d 51 (Ky. Sup. Ct. 1988), to accurately state

the jury’s role.

Most courts have held that Caldwell focuses solely on

the prosecutor's statements regarding the applicable

sentencing law and that there must be a misstatement

regarding that law for a Caldwell violation to have taken

place. Yet, Caldwell speaks in broader terms, holding

that it is “constitutionally impermissible to rest a death

sentence on a determination made by a sentencer who has

been led to believe that the responsibility for determining

the appropriateness of the defendant’s death rest

elsewhere." Caldwell, 472 U.S. at 328-29. The fact that

the words of the Kentucky statute are inaccurate, not the

prosecutor's instructions, is immaterial because the harm

and constitutional deficiency stem from the jurors’ false

perception of their sentencing responsibility.

The standard for a challenge to the jury instructions

themselves was set out in Dugger v. Adams, U.S.

, 109 S. Ct. 1211 (1989). The Court held that the

defendant “necessarily must show that the remarks made

to the jury improper Y describe the role assigned to the

jury by local law." 109 S. Ct. at 1215. Here, the fact

that the Kentucky statute was accurately described does

not mean that in application, the law was constitutional.

The statute clearly gave the jury a false sense of its actual

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 63

responsibility--thus necessitating the Kentucky Supreme

Court's amendment, in Tamme, of the statutory

instructions. In Dugger, the Court declined to reach the

issue because the defendant failed to object to the

allegedly improper instructions. Interestingly, the Court

referred to the issue as a Caldwell issue despite the fact

that it was a jury instruction issue, not aon

statement issue--supporting my view that well applies

to misleading jury instructions as well. Consequently, I

believe that this case presents the highly unusual situation

where an accurate description of the capital sentencing

statute is unconstitutional because Kentucky's statute

inaccurately described the jurors’ actual role.

VI. Refusal to Provide

Psychiatric Expert for the Defense

A. Applicability of Ake v. Oklahoma

I join Chief Judge Merritt's dissent on this issue. The

question is whether Ake v. Oklahoma, 470 U.S. 68

(1985), is limited to providing an indigent defendant with

a psychiatric expert for presenting only a sanity-related

defense. I believe that such a limitation on Ake's holding

is an unusually myopic reading of the reasoning in that

opinion.

I fully agree with Chief Judge Merritt's analysis of this

issue. The extension of Ake beyond the sanity issue is

supported both by Justice Marshall's Matihews v.

Eldridge, 424 U.S. 319 (1976), due process analysis in

Ake and by the lower federal courts and state courts that

have recognized that Ake stands for the proposition that

the state must furnish the defense with the “basic tools"

for an adequate defense. Ake, 470 U.S. at 77; see, e.g.,

Little v. Armentrout, 835 F.2d 1240, 1243 (8th Cir. 1987)

(en banc), cert. denied, 487 U.S. 1210 (1988) (holding

that Ake required even non-psychiatric experts); Moore v.

Kemp, 809 F.2d 702 (11th Cir.) (en banc), cert. denied,

481 U.S. 1054 (1987); State v. Coker, 412 N.W.2d 589,

593 (lowa 1987) (defendant entitled under Ake to expert

A-63

64 Kordenbrock v. Scroggy _ Nos. 88-5467/89-5107

or intoxication defense); In re Allen R., __—sON..H.

506 A.2d 329 (1986) (Ake entitled defendant to mental

health expert on issue of defendant's competency to waive

Miranda rights); but see State v. Massey, 316 N.C. 558,

324 S.E.2d 811, 816 (1986) (defendant not entitled to

expert on competency to waive Miranda rights); Stafford

v. Love, 726 P.2d 894 (Okla. 1986) (Ake limited to

psychiatric experts only); Ex parte Grayson, 479 So.2d 76

(Ala.), cert. denied, 106 S. Ct. 189 (1985) (Ake limited to

psychiatrists and the insanity defense). I believe that

under Justice Marshall's due process/fundamental fairness

analysis, Ake provides for experts on issues other than

sanity.

Moreover, I believe that Kordenbrock's right to an

expert for his diminished capacity defense is equally

cognizable under his equal protection clause argument. In

a pre-Ake state habeas case, the Fourth Circuit held that

the equal protection clause required the state to provide

expert assistance for a criminal defense “when a

substantial question exists over an issue requiring expert

testimony for its resolution and the defendant's position

cannot be fully developed without professional

assistance.” Williams v. Martin, 618 F.2d 1021 (4th Cir.

1980). This right, according to the court, was “firml

based on the equal protection clause.” /d. at 1026.

There, the request was for a pathologist to assist the

defendant's argument that a gunshot wound did not cause

the victim's death. The court held that the equal

protection clause required the appointment of the

pathologist. I believe Kordenbrock satisfies the standard

in Williams v. Martin and that his entitlement to an expert

is solidly established under the equal protection clause as

well as under the due process reasoning in Ake.

I agree with Chief Judge Merritt that Kordenbrock's

counsel cannot be found to have manufactured an

appealable issue by “deliberately failing to secure payment

for an expert.”

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 65

I also concur with Chief Judge Merritt's reasoning that

Ake requires more than a “neutral” expert. The language

of the majority opinion and dissent in Ake shows that the

expert was deemed to be a defense expert. While Ake

does not give the defendant the expert of his choice, it

does indicate that the defense is entitled to an expert "who

will conduct an appropriate examination and assist in

evaluation, preparation, and presentation of the defense."

Ake, 470 U.S. at 83 (emphasis supplied). The tasks of the

defense psychiatrist were described as “to conduct a

professional examination on issues relevant to the defense,

to help determine whether the insanity defense is viable,

to present testimony, and to assist in preparing the cross-

examination of a State's psychiatric witnesses.” Jd. at 82.

It is clear that the Ake majority did not contemplate a

neutral psychiatrist as satisfying due process. Indeed,

Justice Rehnquist assailed the majority in his dissenting

opinion for establishing the mght to a “defense

consultant." Jd. at 87. Moreover, in Ake, the Court all

but overruled United States ex rel. Smith v. Baldi, 344

U.S. 561 (1953), where the state had supplied neutral

psychiatrists.

The reason for a partisan witness is clear. Dr. Bland,

the state psychiatrist, testified before Judge Bertelsman at

the habeas hearing that he could not pursue theories

desired by the defense, assist their cross-examination, nor

guarantee confidentiality to the defense. As stated by the

Tenth Circuit, the Court's duty to appoint a defense

expert under Ake “cannot be satisfied with appointment of

an expert who ultimately testifies contrary to the defense.

.. « The essential benefit of having an expert in the first

place is denied the defendant when the services of the

doctor must be shared with the prosecution.” United

States v. Sloan, 776 F.2d 926, 929 (10th Cir. 1985); see

also United States v. Crews, 781 F.2d 826, 833-34 (10th

Cir, 1986)(despite testimony of four treating or court-

appointed psychiatrists, defendants was entitled to his own

psychiatrist to aid in the interpretation of the experts’

finding and to assist in cross-examination); bur see

Magwood v. Smith, 791 F.2d 1438, 1443 (ilth Cir.

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66 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

1986)(court upheld denial of defendant's request for

independent expert where three of the state's six expert's

testified in favor of the defense). In Magwood, the court

overlooked the fact that presenting testimony is only one

of the many functions of the psychiatric expert and the

defendant was deprived of the assistance of cross-

examining the defense experts. The use of an impartial

expert subverts the adversary process by making a single

expert the ultimate decider of the issue. The jury or judge

can only make a principled decision when there is a

"battle of the experts” where truth is more likely to

emerge through each side presenting its own case. With a

“neutral” expert, the defense cannot really challenge the

findings of adverse testimony because that expert is the

only one available to the indigent defendant. Moreover, a

potential for conflict of interest emerges when a state

agency uncovers incriminating evidence--is its duty to the

defendant or to the public? While a defendant is not

entitled to an expert who will testify to the issues in a way

that the defendant wishes, the expert must be “partisan” in

the way a retained expert would provide assistance to the

defense. See generally Note, Expert Services and the

Indigent Criminal Defendant: The Constitutional Mandate

of Ake v. Oklahoma, 84 Mich. L. Rev. 1326, 1349-54

(1986); Comment, Nonpsychiatric Expert Assistance and

the Requisite Showing of Need: A Catch-22 in the Post-

Ake Criminal Justice System, 37 Emory L.J. 995, 1008,

1018-22 (1988).

Recently, the Fifth Circuit held that Ake was not

violated by court appointment of a psychiatrist whose

examination report to both the defense and prosecution.

Granviel v. Lynaugh, 881 F.2d 185 (Sth Cir. 1989), cert.

denied, 58 U.S.L.W. 3752 (5/27/90). In a dissent from

the Court's denial of certiorari, Justice Marshall, Ake's

author, joined by Justice Brennan, blasted the decision as

unfaithful to Ake's clear requirement of a partisan expert--

not a “disinterested” expert. I believe that Justice

Marshall's dissent, although obviously not a majority

opinion, is a particularly persuasive comment on Ake's

requirements since he is that opinion's author.

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 67

I concur in Chief Judge Merritt's analysis of the issues

concerning whether a pharmacologist satisfied Ake. I also

join in Chief Judge Merritt's analysis of the jury

instructions regarding the jury's consideration of

mitigating factors in Part VII of the opinion.

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68 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

KRUPANSKY, Circuit Judge, dissenting. 1 join in

Judge Kennedy's dissenting opinion with the following

comments. |

As the district court and the dissenting opinion

observed, the absence of Dr. Nizny'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. =

Chalienged 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:

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Nos. 88-5467/89-5107 -- Kordenbrock v. Scroggy 69

I could find no evidence from the examination

that this man suffers from any mental illness... .

He could not account for anything including drugs

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 te and 8

psychologists, al! “refused to assist the defense.”

However, on August 26, 1980 defense counsel notified

the Circuit Court that they had selected and retained Dr.

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70 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

Melvyn Nizny 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. Nizny's policy to

submit fee schedules only after he had concluded his

examinations, evaluations, submitted a written report and

testified at tnal. 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 ‘t 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 pa

adi 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, afier 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

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 71

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 nghts of his

fellow human beings and 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,* 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

The compe inion has fully discussed the relevancy and

adimissibility of Dr. Nizny's adverse trial testimony.

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72 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

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.

Gureasko 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

rances 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, supp the

testimony of two psychiatrists of appellant's choice.

Thus, i concur with the district a 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 tnal did

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 73

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 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 ee 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 nght 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

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74 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

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 noe 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

faced down on the floor.

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 75

My colleagues, in discussing their troubled concerns

avoid, sub silentio, appellant's unequivocal denial of

having ingested any om, or alcohol or being confused,

spaced-oul, or irrati fatigue, drugs, or aicohol

uring 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.

Q: Were you mentally wor out, you really didn't

know what you were doing? Had - been up

for 3 or 4 days worrying yourself sick over

your hospital bills?

A: Just know I needed money to pay bills.

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?

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76 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

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 i 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?

Yes, sir.

How long?

How much longer?

Yeh.

7 O22 O

Two more years.

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Q: Paul, we're going to find all this stuff out, it's

just a matter of time, look how much we've

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 77

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 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 apneliants 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”.

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78 Kordenbrock v. Scroggy Nos. 88-5467/89-5107

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.

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? 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

moming” 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

2The defendant did not take the witness stand to testify in his own

defense.

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Nos. 88-5467/89-5107 Kordenbrock v. Scroggy 79

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

sailed 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

A-79

80 Kordenbrock v. Scroggy Nos. 88-5467/89-5 107

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. Thompson 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 —

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 appeliant searched the rear

room and found a cardboard box suitable for packing the

handguns which he carried into the retail area of the store.

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Nos. 88-5467/89-5 107 Kordenbrock v. Scroggy 81

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 (Rameil), 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 Fehler (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,

te

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