Opinion
NO. 2014-CA-000612-MR
02-19-2016
LARRY JOE STAMBAUGH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Meredith Krause Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 07-CR-00095 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Larry Joe Stambaugh appeals from an order of the Johnson Circuit Court denying his post-conviction motions for expert funds and to vacate his 2008 conviction and sentence for sexual abuse. We affirm.
Background
In 2008, a Johnson County jury found Stambaugh guilty on four counts of first-degree sexual abuse for acts committed against his three daughters. At trial, Stambaugh's eldest daughter, M.R.S., was the only victim to testify. The jury recommended a sentence of ten years' imprisonment on each count, to run consecutively for a total of forty years. However, the trial court reduced the sentence to a total of twenty years' imprisonment. The Kentucky Supreme Court affirmed Stambaugh's conviction and sentence on direct appeal. See Commonwealth v. Stambaugh, 327 S.W.3d 435 (Ky. 2010).
On September 20, 2013, Stambaugh moved the circuit court to vacate his conviction and sentence under RCr 11.42. In his motion, Stambaugh raised eleven claims of ineffective assistance of trial counsel. One of the principal instances of alleged ineffectiveness Stambaugh cited was counsel's alleged failure to retain a forensic child psychiatrist to testify that M.R.S.'s testimony may have been tainted by suggestive interview techniques and pre-trial coaching. After determining that Stambaugh's claims contained questions of material facts that could not be conclusively resolved on the face of the record, the circuit court scheduled an evidentiary hearing for January 23, 2014.
Prior to the hearing, Stambaugh moved the circuit court for funding, pursuant to KRS 31.185, in order to retain a specialist on undue influence and the potential impact of "numerous uncontrolled suggestive interviews" on M.R.S.'s testimony. His motion argued that the expert's opinion was reasonably necessary in the RCr 11.42 hearing to show the prejudicial effect of his attorney's failure to present an expert or such evidence at trial. The motion further requested that the court authorize funds to pay a particular expert, Dr. Terrence Campbell of Sterling Heights, Michigan, $250.00 an hour for up to forty hours to review documents, speak to witnesses, and conduct research. According to the motion, Dr. Campbell was an expert in "eyewitness recall, false allegations of sexual abuse, forensic psychology, play therapy, and many other fields." The trial court denied the motion noting that forty hours at $250.00 per hour was excessive, and that Stambaugh could likely retain a similar expert who resided in closer proximity to Johnson County.
The evidentiary hearing was held on January 23, 2014, and less than two months later, the trial court entered an order denying Stambaugh's motion to vacate. It is from this March 18, 2014 order that Stambaugh appeals. We shall develop further facts as necessary.
Standard of Review
Stambaugh's appeal raises two primary issues: The trial court's refusal to grant him funds for the expert he requested and the trial court's denial of his RCr 11.42 motion. These issues require different standards of review on appeal.
Owing to the trial court's inherent ability to control the evidence and proceedings which come before it, we will reverse the trial court's decision concerning Stambaugh's motion for expert funds only if that decision constituted an abuse of the trial court's discretion. See Hodge v. Coleman, 244 S.W.3d 102, 108 (Ky. 2008); see also Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). An abuse of discretion occurs when a trial court's ruling is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. English at 945.
By contrast, a trial court's findings and conclusions regarding claims of ineffective assistance of counsel constitute mixed questions of law and fact. See Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008), citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997). The reviewing court may set aside the trial court's fact determinations only if they are clearly erroneous; that is, unsupported by evidence of substance. Id., citing CR 52.01. Furthermore, when the trial court conducts an evidentiary hearing, prudence requires that the reviewing court defer to the determinations of fact and witness credibility made by the trial judge. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986); see also Commonwealth v. Anderson, 934 S.W.2d 276 (Ky. 1996). However, we review the trial court's conclusions concerning trial counsel's performance and any potential deficiency therein de novo. See Brown at 500.
Analysis
Stambaugh first argues that the trial court erred in denying his request for expert funding. He insists that had the trial court authorized his expert to look into the matter, he likely would have succeeded in his claim of ineffective assistance of counsel based on counsel's failure to retain a forensic child psychiatrist. We disagree with both assertions.
As we stated supra, trial courts generally possess "the inherent authority to control the proceedings before them to eliminate unjustifiable expense and delay." Hodge, 244 S.W.3d at 108. This authority permits trial courts to, among other things, "examine the post-conviction petition and the list of proposed witnesses ..." and to deny expenses for "unnecessary witnesses." Id. Therefore, to prevail on his claim, Stambaugh must show that the expert witness he requested was reasonably necessary for a full presentation of his case. Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008).
At this point, we must stop and clarify what the trial court's December 19, 2013 ex parte order did, and did not, say. Throughout his appeal, Stambaugh characterizes the trial court's order as a "failure to grant funds for an expert[.]" This is not a fair representation. Stambaugh's motion sought funds to retain a particular, out-of-state expert. The trial court's order denied funds for that expert. It did not prevent Stambaugh from seeking funds for a similarly qualified expert who resided, in the court's words, "closer to Johnson Circuit Court than Sterling Heights, Michigan."
Furthermore, we disagree with Stambaugh that the trial court's reasoning constituted an abuse of discretion and an abandonment of the "reasonably necessary" analysis prescribed in Hodge. On the contrary, the trial court complied with Hodge when it essentially concluded that Stambaugh could accomplish a full presentation of his case through more convenient and less expensive means. The trial court's order appropriately addressed the necessity of the particular expert Stambaugh requested; and in doing so, it did not foreclose upon Stambaugh's right to seek another expert's services. Therefore, we cannot agree that the trial court's ruling ran afoul of established law; nor can we say, based upon the evidence, that it was arbitrary, unfair, or unreasonable.
Stambaugh's Notice of Appeal stated his intention to appeal from the trial court's March 18, 2014 order denying his RCr 11.42 motion. However, Stambaugh's argument on appeal barely touches upon the requisite analysis to resolve a claim of ineffective assistance of counsel. Instead, he observes that a complete assessment of Stambaugh's claims of ineffective assistance of counsel is impossible without the expert testimony we have just addressed. Therefore, it could be argued that the propriety of the trial court's ruling on the question of ineffective assistance of counsel is not squarely before us. Nevertheless, we briefly address it.
To prove a claim of ineffective assistance, a defendant must demonstrate that his counsel's performance at trial was constitutionally deficient and that, but for that deficiency, the result of his trial would likely have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We agree with the trial court that Stambaugh's RCr 11.42 motion fails on at least one of these points.
Stambaugh's RCr 11.42 motion constituted an eleven-pronged attack upon the actions of his trial counsel and his subsequent conviction. His appeal concerns only one of those prongs: that trial counsel was ineffective for failing to hire an expert to testify regarding the influence of interview techniques and suggestive trial preparation upon a single child witness. At the evidentiary hearing, trial counsel testified concerning the stark choice Stambaugh faced prior to trial regarding how to challenge M.R.S.'s testimony - by merely claiming that she was lying or by presenting expert testimony. Stambaugh now seeks to rebut the child's testimony and demonstrate the potential that it was tainted. Counsel chose the former, and the trial court concluded that this constituted reasonable trial strategy. We observe no error in the trial court's conclusion.
Stambaugh's RCr 11.42 motion attacked trial counsel's difficult, but strategic, choice at trial. Stambaugh now has the benefit of hindsight; trial counsel did not. Therefore, we reiterate the caution which is apparent in the trial court's order and which our Supreme Court has stated before: "[A]s a court far removed from the passion and grit of the courtroom, we must be especially careful not to second-guess or condemn in hindsight the decision of defense counsel. A defense attorney must enjoy great discretion in trying a case, especially with regard to trial strategy and tactics." Harper v. Commonwealth, 978 S.W.2d 311, 317 (Ky. 1998). The trial court was correct to grant trial counsel this discretion.
Furthermore, we defer to the Johnson Circuit Court's exclusive ability to evaluate the evidence and the credibility of witnesses, including trial counsel, during the trial and the evidentiary hearing. We agree that trial counsel's decision was reasonable trial strategy. Most importantly, his decision was not constitutionally ineffective.
Conclusion
For the reasons we state supra, the trial court did not abuse its discretion in denying Stambaugh's request for funds prior to his RCr 11.42 evidentiary hearing; and it did not err in subsequently denying his RCr 11.42 motion. The order of the Johnson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Meredith Krause
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky